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Labour (Ont) - Abandonment. International Union of Operating Engineers, Local 793 v. Labourers’ International Union of North America, Ontario Provincial District Council
In International Union of Operating Engineers, Local 793 v. Labourers’ International Union of North America, Ontario Provincial District Council (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR.
Here the court considers the 'abandonment' of bargaining rights by a trade union:A. The Board applied established principles to reasonably conclude that Operators abandoned its bargaining rights
[37] The principle that a trade union can abandon its bargaining rights has long been established in Board jurisprudence and confirmed by the courts: see Bricklayers' & Masons' Union No. 1 v. G.S. Wark Limited, 1996 CanLII 11190 (Ont. LRB), at para. 9; Carpenters' District Council of Lake Ontario and Hugh Murray (1974) Ltd.; Re Labourers' International Union of North America, Local 527 and John Entwistle Construction Ltd. (1980), 1980 CanLII 1826 (ON SC), 33 O.R. (2d) 670 (Div. Ct.), leave to appeal to Court of Appeal refused, February 2, 1981.
[38] In the Abandonment Decision, at para. 43, under the heading “Legal Framework”, the Board set out what it called “essential guideposts for analysis where a party alleges a trade union has abandoned its bargaining rights in the construction industry”, citing previous Board decisions:(i) it is the party alleging abandonment that bears the onus to prove it on a balance of probabilities (see [Burling] Ranger Company Inc. 2007 CanLII 2101 (ON LRB) at paragraph 17);
(ii) whether abandonment has been demonstrated is a question of fact in each case, and the Board must make its determination not based on a “…scientifically measurable test…” but rather the reasonably objective conclusions that arise from an assessment of the evidence as a whole (see Maurice's Masonry and Forming Ltd., 2016 CanLII 86063 (ON LRB) at paragraph 4);
(iii) a trade union may be said to have abandoned its bargaining rights if the Board is satisfied that, over a sufficient period of time, the trade union holding such rights has done little to “actively promote” the bargaining rights (see J.S. Mechanical 1979 CanLII 832 (ON LRB) at paragraph 4);
(iv) the Board in analyzing the facts should be careful to distinguish between the abandonment of bargaining rights and what may appear to be inadequate representation of employees (see J. G. Jackson & Associates Mechanical Contractors Ltd., 2016 CanLII 62266 (ON LRB) at paragraph 50); and
(v) when inquiring whether a trade union holding bargaining rights has failed to actively promote them, the Board will look to see if the evidence establishes a sufficient length of inactivity, whether the trade union has sought to obtain a collective agreement out of its bargaining rights, and if there are extenuating circumstances that may sufficiently explain a trade union not actively promoting its bargaining right (see, for example, John Entwistle Construction Limited [1979] OLRB Rep. March 211 at paragraphs 10 and 11). [39] Operators does not allege any particular error in the above statement of principles but alleges a notable omission – the Board did not mention the question of whether Operators intended to abandon its bargaining rights, which Operators submits is the central question in any case where abandonment is alleged.
[40] Operators relies in particular on the Board’s 1996 decision in G.S. Wark, at para. 12, which stated that “the onus is on the parties asserting abandonment to establish it, and that the presumption is that trade unions do not voluntarily abandon bargaining rights” (emphasis added). At para. 19, the Board explained:"Intent" is a fundamental part of the principle of abandonment, and it is inherent in the principle that a finding of abandonment depends upon a finding that the trade union intended to abandon its bargaining rights. But the intent which is important is the union's objective intent as demonstrated by its conduct during the relevant time period, and not its subjective intent as expressed after the fact when the union is responding to an assertion that it has abandoned its bargaining rights. That is, the question is: when viewed objectively, does the trade union's conduct demonstrate an intention to abandon bargaining rights? [Emphasis added.] [41] Operator submits that in determining that Operators abandoned its bargaining rights relating to the CWW employees, the Board departed from previous Board decisions without justification by failing to apply the presumption that trade unions do not voluntarily abandon bargaining rights. As a result, Operators says that the Board failed to apply the fundamental principle that a finding of abandonment depends upon a finding that the trade union intended to abandon its bargaining rights. Operators submits that the Board instead applied the wrong test by asking whether Operators had actively promoted its bargaining rights and emphasizing the poor quality of its representation of the bargaining unit.
[42] I do not agree that the Board fundamentally misconstrued previous Board jurisprudence by failing to apply the principle that a finding of abandonment depends upon a finding that the trade union intended to abandon its bargaining rights. Operators’ reliance on the Board’s statement in G.S. Wark to support that submission ignores other parts of that decision, which indicate that the union’s intention is one factor to be considered when determining whether bargaining rights have been abandoned, but not the only factor. In G.S. Wark, at para. 11, the Board stated:Whether a trade union has abandoned bargaining rights is a question of fact which stands to be determined on the facts surrounding the issue in each particular case. Among the factors which the Board considers in determining an issue of abandonment are the length and degree of the trade union's inactivity, whether the trade union has attempted to negotiate or renew a collective agreement, whether terms and conditions of employment have been altered without the agreement or objection from the trade union, and the trade union's explanation for its conduct (or lack thereof). The quality of a trade union's representation will not, as such, be a relevant consideration, except to the extent that it may suggest abandonment. [43] At para. 14, the Board went on to consider the issue of intention:[A]lthough a trade union's "intent" with respect to bargaining rights is a factor which the Board will consider, this intent must be discerned from the objective facts, and the reasonable inferences which can be drawn from those facts. The weight which is given to a trade union's subjective ex post facto expression of intent at a hearing when abandonment is raised will depend on the circumstances, but it will generally be given little weight unless there is something in the evidence before the Board which supports it, and it will not necessarily be determinative in any event. [Emphasis added.] [44] Similarly, at para. 19, the Board also stated that “the intent which is important is the union's objective intent as demonstrated by its conduct during the relevant time period, and not its subjective intent as expressed after the fact when the union is responding to an assertion that it has abandoned its bargaining rights” (emphasis added).
[45] Contrary to Operators’ position, I am not satisfied that the Board improperly shifted the onus to Operators by failing to apply the presumption that trade unions do not voluntarily abandon bargaining rights. At the time of the abandonment hearing, there was already uncontested evidence before the Board in Labourers’ certification application that Operators had not concluded a first collective agreement despite obtaining bargaining rights almost ten years earlier. I agree with Labourers that this evidence would be sufficient to displace the presumption that Operators did not intend to abandon their bargaining rights. In its January 2020 interlocutory decision, the Board ordered Operators to call its evidence first on the abandonment issue, providing Operators with the opportunity to explain the lengthy period without a collective agreement. After considering the extensive evidence that Operators provided at the abandonment hearing, the Board found that Operators had abandoned its bargaining rights. That finding is entitled to significant deference.
[46] Operators also submits that the Board applied the wrong test by asking whether Operators had actively promoted its bargaining rights and emphasizing the poor quality of its representation of the bargaining unit.
[47] Once again, I disagree. As the Board recognized in the Abandonment Decision, the union’s obligation to actively promote its bargaining rights is well established in Board jurisprudence. In applying that principle in the Abandonment Decision, the Board was well aware that care must be taken to distinguish between abandonment and inadequate representation of employees, as indicated further below.
[48] In setting out the legal framework for the Abandonment Decision, at para. 43(iii), the Board correctly noted the union’s obligation to “actively promote” its bargaining rights, citing J.S. Mechanical, at para. 4. In G.S. Wark, at para. 10, the Board explained:A primary purpose of every Ontario Labour Relations Act has been … to facilitate collective bargaining and promote the expeditious resolution of workplace disputes. This purpose cannot be realized if a trade union is not active in the exercise of its bargaining rights…. [A] trade union which has obtained bargaining rights … is expected to actively exercise those rights. A trade union which fails to use bargaining rights may lose them. [Emphasis added.] [49] In the Abandonment Decision, at para. 43(iv), the Board also referred to the need to distinguish between abandonment and inadequate representation of employees, citing J. G. Jackson, at para. 50. In G.S. Wark, at para. 11, the Board also referred to that consideration, stating that the “quality of a trade union's representation will not, as such, be a relevant consideration, except to the extent that it may suggest abandonment” (emphasis added).
[50] In the Abandonment Decision, the Board considered (and distinguished between) those principles in its findings to support the conclusion that Operators had abandon its bargaining rights. I see no error in the Board’s analysis.
[51] In the Abandonment Decision, at para. 51, the Board found that it was satisfied that Operators abandoned its bargaining rights “because for too long a period it did not ‘actively promote’ the bargaining rights it had.” The Board explained:In the Board’s view, [Operators] did not actively promote the bargaining rights at issue between approximately 2012 and 2021. Although the Board can say on the evidence before it that [Operators] made material efforts to conclude a collective agreement in respect of the subject bargaining rights commencing in 2021, by then it had objectively abandoned them, and so the post-2021 activity cannot “cure” the prior abandonment. [52] As discussed further below, the Board then considered the evidence before it relating to the period from 2012 and 2020 and decided that there was no objective evidence to support the conclusion that Operators took material steps to actively support its bargaining rights during that period: see Abandonment Decision, at paras. 53-58. At para. 59, the Board found that Operators’ “bargaining rights were ultimately abandoned by 2020.” Those findings were reasonable and entitled to deference.
[53] At para. 53, the Board found that for the period 2012 to 2016, there was “no objective evidence … that [Operators] took any material steps to actively promote its bargaining rights, apart from the request for conciliation made in 2012.” In reaching that conclusion, the Board referred to “Mr. Kerr’s non-specific recollections” about communications with CWW during that period about concluding a collective agreement, the notes for which had been lost. The Board found that this “totality of evidence does not meet the objective standards the Board looks to in determining if bargaining rights have or have not been abandoned.”
[54] At para. 56, the Board also referred to discussions between Mr. Kerr and CWW representatives in 2017 to 2018, which indicated that Operators remained interested in including a benefit plan in any non-ICI sector collective agreement with CWW but noted that “the record of those discussions is vague and not a basis for the Board to agree with Mr. Kerr that [Operators] made ‘some progress’ towards settling a collective agreement.” The Board also noted that on this issue, there was “no material difference between where the parties were in 2012 and where they were in 2018.” The Board found that there was no evidence that in those discussions Operators did anything “other than repeat its position to CWW Inc. that it should consider inclusion of items previously and categorically rejected by CWW Inc.”
[55] At para. 57, the Board also noted that after 2018, Operators returned to its earlier strategy of obtaining inclusion of Operators’ prior benefit plant in the Veolia collective agreement and then use it as a “bargaining tool” with CWW. The Board concluded it was “not prepared to accept that again attempting to forward a five-year old proposal that had been previously rejected and in respect of which no activity occurred in the intervening period can reasonably be said, by then, to be actively promoting the bargaining rights that [Operators] held with CWW Inc.”
[56] Operators submits that those and other passages in the Abandonment Decision indicate that the Board fundamentally departed from the classic test for abandonment, making it clear that the Board’s singular focus was on the quality of the union’s representation and what the union was able to achieve, rather than whether Operators intended to abandon its bargaining rights (which Operators agrees must be viewed objectively). According to Operators, the record before the Board reflected Operators’ desire for a collective agreement that included a benefit agreement. Operators submits that the fact that it did not achieve its goal was not a relevant consideration when determining the abandonment issue.
[57] I do not agree. At para. 56 of the Abandonment Decision, the Board addressed the issue of quality of representation as follows:The Board is mindful of the admonition that a distinction should be drawn between the quality of representation of employees and an assertion of abandonment, and that these are two different categories. The Board is also of the view that maintaining this important distinction ought not be taken to mean that essentially any activity by a trade union must mean that there has not been abandonment. The Board is satisfied that the activity described by Mr. Kerr in 2017 and 2018 was not sufficient for the Board to conclude that [Operators] was “actively promoting” the bargaining rights it held. [58] As previously noted, quality of representation in itself is not a relevant factor “except to the extent that it may suggest abandonment”: G.S. Wark, at para. 11. I am satisfied that the Board was aware of the distinction between abandonment and inadequate representation of employees and did not err in its analysis of the issue when determining whether Operators abandoned its bargaining rights.
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[63] When considering abandonment, the Board’s focus was whether the union’s conduct in the period of inactivity is inconsistent with what it likely would have done if it did not intend to abandon its rights: see J. G. Jackson, at paras. 86-87. Once bargaining rights have been abandoned, they cease to exist and cannot simply be reactivated by subsequent activities: see United Brotherhood of Carpenters and Joiners of America, Local 38 v. Marineland of Canada Inc., 1990 CanLII 5633 (Ont. LRB), at paras. 7-8, 19. A union wishing to reestablish bargaining rights must either bring an application under the LRA or negotiate a written voluntary recognition agreement. Intention or conduct alone is not sufficient: see Labourers International Union of North America v. Pachecos Contractors Ltd., 2008 CanLII 60071 (Ont. LRB), at paras. 13-15.
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