Construction Workers Union (CLAC), Local No. 63 et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 et al., 2012 ABQB 540

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 31, 2012
• Citations: 2012 ABQB 540;(2012), 547 A.R. 339 (QB)

CWU v. PPF (2012), 547 A.R. 339 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.036

Construction Workers Union (CLAC), Local No. 63 and Firestone Energy Corporation (applicants) v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 and International Brotherhood of Electrical Workers, Local Union 424 and Suncor Energy Inc. and First North Catering and Rentokil Initial Canada Limited, c.o.b. Initial Security and the Alberta Labour Relations Board (respondents)

(0901-08385; 2012 ABQB 540)

Indexed As: Construction Workers Union (CLAC), Local No. 63 et al. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

August 31, 2012.

Summary:

A union (CLAC) represented the employer's workers. The collective agreement was expiring. Section 37 of the Alberta Labour Code mandated a two month open period during which rival unions could seek certification to represent workers to negotiate a collective agreement. The Code did not explicitly permit or prohibit the waiver of the open period. The employer and CLAC, the employer's preferred union, commenced negotiations for a new collective agreement before the open period commenced, and reached a tentative agreement, which CLAC took to the workers for ratification. Workers were told for the first time, at the ratification meeting, that by voting for the new collective agreement they would be giving up the "open period" to give rival unions an opportunity to lobby to replace CLAC as their bargaining agent. The new collective agreement was ratified. Two rival unions filed complaints with the Alberta Labour Board, arguing that contrary to previous Board jurisprudence, the statutory open period could not be waived, that the employer's conduct constituted an unfair labour practice, and that even if employees could waive the open period, there was no informed waiver. The Board, departing from its previous jurisprudence (open period could be waived by workers), held that (1) the statutory open period was a public order provision that could not be waived; (2) the employer was guilty of unfair labour practices; and (3) even if the open period could be waived, there was no informed waiver of the open period by workers. CLAC applied for judicial review.

The Alberta Court of Queen's Bench, applying the reasonableness standard of review, dismissed the application.

Administrative Law - Topic 2159

Natural justice - Administrative decisions or findings - Effect of prior decisions - [See Labour Law - Topic 526 ].

Labour Law - Topic 526

Labour relations boards and judicial review - Powers of board - Power to reconsider, rescind, etc. - The Alberta Labour Board revisited prior Board jurisprudence that determined that the "open period" in s. 37 of the Labour Code (window for rival unions to seek certification as an existing collective agreement was expiring) could be waived by workers - That approach was found reasonable by court decisions, but there was no binding court precedent finding that the correct interpretation of s. 37 was that the open period could be waived - The Board ruled that there was "strong reasons" to depart from the previous line of reasoning - Accordingly, the Board determined that the statutory open period was a public order provision that could not be waived - The Alberta Court of Queen's Bench stated that since the Board's new interpretation of s. 37 was reasonable, it need not decide which of the two conflicting interpretations was correct - The Board was not bound by its own prior decisions - While the Board was bound to follow court precedents, "the cases cited by [CLAC] do not bind the [Board] to a finding that open periods can be waived" - See paragraphs 70 to 81.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - A union (CLAC) represented the employer's workers - The collective agreement was expiring - Section 37 of the Alberta Labour Code mandated a two month open period during which rival unions could seek certification to represent workers to negotiate a collective agreement - The employer and CLAC, the employer's preferred union, negotiated a new collective agreement before the open period commenced, which CLAC took to the workers for ratification - Workers were told for the first time, at the ratification meeting, that by voting for the new collective agreement they would be giving up the "open period" to give rival unions an opportunity to lobby to replace CLAC as their bargaining agent - The new collective agreement was ratified - Two rival unions filed complaints with the Alberta Labour Board - The Board determined that (1) the statutory open period was a public order provision that could not be waived; (2) the employer was guilty of unfair labour practices; and (3) even if the open period could be waived, there was no informed waiver of the open period by workers - CLAC sought judicial review - The Alberta Court of Queen's Bench held that "the appropriate standard of review for the Board's finding of unfair labour practices is reasonableness. ... I also find that reasonableness is the appropriate standard for reviewing the decision that the open period mandated by Code section 37(2) cannot be waived." - See paragraphs 48 to 49.

Labour Law - Topic 834

Labour relations boards and judicial review - Procedure - Decision - Reconsideration of - [See Labour Law - Topic 526 ].

Labour Law - Topic 3546

Unions - Unfair labour practices - By employer - Interference with union formation, administration or representation of employees - [See Labour Law - Topic 4015 ].

Labour Law - Topic 4015

Unions - Certification - Applications - "Open period" for rival unions - A union (CLAC) represented the employer's workers - The collective agreement was expiring - Section 37 of the Alberta Labour Code mandated a two month open period during which rival unions could seek certification to represent workers to negotiate a collective agreement - The Code did not explicitly permit or prohibit the waiver of the open period - The employer and CLAC, the employer's preferred union, commenced negotiations for a new collective agreement before the open period commenced, and reached a tentative agreement, which CLAC took to the workers for ratification - Workers were told for the first time, at the ratification meeting, that by voting for the new collective agreement they would be giving up the "open period" to give rival unions an opportunity to lobby to replace CLAC as their bargaining agent - The new collective agreement was ratified - Two rival unions filed complaints with the Alberta Labour Board, arguing that the statutory open period could not be waived - Previous Board jurisprudence provided that the open period could be waived by workers - The Board, revisited that line of jurisprudence, finding "strong reasons" to depart from that line of reasoning - The Board determined that the statutory open period was a public order provision that could not be waived by workers - The Alberta Court of Queen's Bench, in dismissing CLAC's judicial review application, held that the Board's decision was reasonable, as it fell within the range of possible acceptable outcomes - As the Board's decision (no waiver of open period) was reasonable, it did not matter whether that interpretation of s. 37 or the previous jurisprudence (waiver allowed in limited circumstances) was correct - The court also held that the Board's finding that the employer was guilty of an unfair labour practice, based on improper motives in engaging in early renegotiation to ensure that its preferred union represented its workers, was reasonable - See paragraphs 65 to 95.

Cases Noticed:

United Brotherhood of Carpenters and Joiners of America, Local 1525 v. Board of Industrial Relations and International Woodworkers of America, Local 1-206 and Norfab Homes Ltd., [1976] Alta. L.R.B. No. 76-046, quashed (1976), 2 A.R. 151 (Q.B.), refd to. [para. 23].

United Brotherhood of Carpenters and Joiners of America, Local 1525 v. Board of Industrial Relations and International Woodworkers of America, Local 1-206 and Norfab Homes Ltd. (1977), 77 C.L.L.C. 16,079, refd to. [para. 23].

Alberta Union of Provincial Employees, Local 99 v. Rivercrest Lodge Nursing Home Ltd., [1992] Alta. L.R.B.R. 486, refd to. [para. 25].

Canadian Health Care Guild v. Capital Care Group Ltd., [1998] Alta. L.R.B.R. 316, refd to. [para. 26].

Alberta Union of Provincial Employees v. Canadian Union of Public Employees, Local 875 et al., [2002] Alta. L.R.B.R. 200, upheld on reconsideration [2002] Alta. L.R.B.R. LD-075, refd to. [para. 27].

Alberta Union of Provincial Employees v. Canadian Union of Public Employees, Local 875 et al. (2003), 345 A.R. 7; 2003 ABQB 999, refd to. [para. 27].

United Brotherhood of Carpenters and Joiners of America, Local 1325 v. J.V. Driver Installation Ltd. et al., [2003] Alta. L.R.B.R. 282, quashed (2004), 378 A.R. 1; 2004 ABQB 915, refd to. [paras. 28, 29].

International Brotherhood of Electrical Workers, Local Union 242 v. T.N.L. Industrial Contractors Ltd., [1996] Alta. L.R.B.R. 194, refd to. [para. 31].

Syndicat des Employés de L'Imprimerie Veilleux Ltée v Syndicat International des Art Graphiques, Local 509 (1983), 83 CLLC 14,027 (Que. Lab. Ct.), refd to. [para. 37].

International Woodworkers of America, Local 207 et al. v. Sundance Forest Industries Ltd., [1992] Alta. L.R.B.R. 745, refd to. [para. 38].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 48].

United Food and Commercial Workers Union, Local 401 et al. v. Westfair Foods Ltd. et al. (2010), 477 A.R. 315; 483 W.A.C. 315; 2010 ABCA 120, refd to. [para. 48].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 52].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 52].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 53].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; 198 N.R. 99, refd to. [para. 55].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al., [2009] 2 W.W.R. 215; 446 A.R. 20; 442 W.A.C. 20; 2008 ABCA 400, refd to. [para. 56].

Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168 et al. (2009), 448 A.R. 101; 447 W.A.C. 101; 2009 ABCA 33, refd to. [para. 56].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al. (2011), 502 A.R. 229; 517 W.A.C. 229; 2011 ABCA 55, refd to. [para. 56].

Alberta Union of Provincial Employees v. Health Sciences Association of Alberta et al. (2009), 457 A.R. 387; 457 W.A.C. 387; 2009 ABCA 266, refd to. [para. 57].

Abdoulrab et al. v. Labour Relations Board (Ont.) et al. (2009), 251 O.A.C. 28; 95 O.R.(3d) 641; 2009 ONCA 491, refd to. [para. 62].

Taub v. Investment Dealers Association of Canada et al. (2009), 255 O.A.C. 126; 98 O.R.(3d) 169; 2009 ONCA 628, refd to. [para. 62].

Canada (Attorney General) v. Mowat, [2010] 4 F.C.R. 579; 395 N.R. 52; 2009 FCA 309, refd to. [para. 62].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 66].

Board of Education (Roman Catholic) of Essex v. Ontario English Catholic Teachers' Association (2001), 150 O.A.C. 2; 56 O.R.(3d) 85 (C.A.), refd to. [para. 73].

Counsel:

Dan McDonald, Q.C., for the applicant, Construction Workers Union (CLAC), Local No. 63;

Tom Ross, for the applicant, Firestone Energy Corporation;

Bob Blair, for the respondent, U.A. Local 488;

William J. Johnson, Q.C., for the respondent, International Brotherhood of Electrical Workers, Local 424;

Shawn McLeod, for the respondent, Alberta Labour Relations Board.

This application was heard on June 12-14, 2012, before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on August 31, 2012.