The Nova Scotia Labour Board’s (“Board”) long-standing approach to construction industry unionization was called into question by the Supreme Court of Nova Scotia in a decision dated March 26, 2015 – CanMar Contracting Limited v. LIUNA, Local 615 (2015 NSSC 89).
Snapshot Approach does not Override Community of Interest
The long-standing approach that was called into question is the one which provides that employees who are absent from work on the date a union certification application (“Date of Application”) is made, regardless of the reason (e.g. sickness, vacation), are excluded from the bargaining unit. This is called the Snapshot Approach.
In CanMar, pursuant to this long-standing approach, the Board excluded two CanMar employees, Messrs. Panteleios and Lopez, from the bargaining unit because they were absent from work on the Date of Application on an approved “one-day leave”.
CanMar, represented by Rick Dunlop and Michelle Black of the Stewart McKelvey Labour and Employment Group, argued on the basis of s. 25(14) of the Trade Union Act that Messrs. Panteleios and Lopez did not lose their community of interest because they were absent on the Date of Application and therefore should be included in the bargaining unit. Section 25(14) requires:
The Board in determining the appropriate unit shall have regard to the community of interest among the employees in the proposed unit in such matters as work location, hours of work, working conditions and methods of remuneration.
Justice Wood of the Supreme Court of Nova Scotia described the Board’s response to CanMar’s argument as follows (at para. 41):
- “In para. 28 of its decision the Board notes there was no dispute that Messrs. Panteleios and Lopez shared a community of interest with the other employees who were included in the bargaining unit. The Board then says this did not make any difference since they were not at work on the date of application.
- In para. 29 the Board refers to the provisions of s. 25(14) and says it indicates community of interest is a factor relevant to defining the bargaining unit “per se”. The Board then states that whether an employee is in the bargaining unit for determining certification is a “different question”.
- It is clear from these passages that the Board did not consider the question of community of interest to be relevant to the issue before it. They do not explain how that could be so in light of the mandatory wording of s. 25(14).”
Justice Wood recognized that “[p]olicies and guidelines can be beneficial” but that the Board “has an obligation to decide each case before it on its particular circumstances” (para. 45).
He also commented on the Board’s reasoning, which he said appeared to be “quite simple”:
The “snapshot” approach to certification has been used for many years and has the advantage of expediency and predictability for members of the industry. It mandates that any employee not at work on the date of application be excluded from the unit without any consideration of individual circumstances. In this case the Board decided to apply that approach without variation and concluded that the community of interest of Messrs. Lopez and Panteleios was irrelevant or at least trumped by the policy considerations underlying the “snapshot” approach (at para. 48).
Justice Wood went on to say (at paras. 49-51) that the difficulties with the Board’s analysis were that:
- “...it appears to avoid the express legislative requirement in s. 25(14) to consider employee community of interest.
- Concerns with respect to lack of predictability and complex hearings are not borne out on the facts of this case since the status of Messrs. Lopez and Panteleios was not in dispute.
- A decision to consider employees on a one-day leave of absence for possible inclusion if they share a community of interest with others in the bargaining unit would not undermine the objectives of predictability or efficiency.”
Justice Wood granted CanMar’s application for judicial review on this ground.
Standing Regarding the Purchase of Alcohol Allegations Should have been Granted
A further issue Justice Wood was asked to consider was whether the Board was reasonable in denying CanMar and an employee intervenor (“McSween”) standing to call evidence or present arguments relating to the initial signing of the membership cards.
The allegation was that LIUNA had “purchased alcohol for employees during an organizational meeting and that this resulted in some employees being intoxicated at the time membership cards were signed” (para. 12). CanMar and McSween were concerned that the cards did not reflect the true wishes of the employees.
Justice Wood disagreed with the Board’s decision to deny standing on the basis that the employees (other than McSween, who revoked his membership card) did not intervene:
To elevate employee intervention to the point where it becomes a mandatory precondition to an employers’ ability to allege union misbehaviour is both unreasonable and procedurally unfair (para. 21).
Justice Wood granted CanMar’s application for judicial review on this ground as well.
Having granted CanMar’s application for judicial review on these two grounds, Justice Wood ordered the matter to be sent back to the Board. He asked the parties to try to reach an agreement as to whether it should be the same, or a differently constituted, panel that hears these matters anew.