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Labour (Ont) - Certification. RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
In RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Div Court, 2023) the Divisional Court considers a JR application to set aside a labour certification "to represent certain employees within one division of the Company", here on the issue of "suffer(ing) concrete labour relations harm":[2] ... It also argues that in making its decision the Board unreasonably concluded that the Company would not suffer concrete labour relations harm if the Union were recognized as the bargaining agent for the specified bargaining unit.
[3] ... The Board considered the Company’s submissions about the labour relations difficulties the Company alleged it would encounter if the Union was recognized as the bargaining agent for the specified unit and reasonably concluded that those difficulties did not rise to the level of “serious”.
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The Board’s conclusion that the Company had failed to demonstrate that certifying the bargaining unit proposed by the Union would cause “serious” labour relations harm was reasonable.
Fragmentation
[36] The Company submits that the Board did mot deal with its assertion that allowing the Union’s bargaining unit description would leave the Company “open to becoming organized by a different trade union. That would lead to a potential conflict in bargaining rights, jurisdictional disputes, grievances and further limitations on the mobility of its own employees.”
[37] There is no merit to this submission.
[38] At para. 36 of the Decision, the Board sets out the Company’s position on this issue:The Company further contends that the Union’s proposed bargaining structure will potentially contribute to a patchwork of bargaining units represented by different trade unions, thus limiting Right Time’s reliance upon a mobile and interactive workforce, and restricting work opportunities for its workers. [39] At para. 38, the Board notes the Company’s reliance on the decision in National Automobile Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Christion Horizons, 2012 CanLII 29606 (ON LRB) for the principle that:…the narrower unit would cause a real potential for fragmentation and jurisdictional disputes should another union organize the remaining non-union employees performing the same work in similar facilities and in close geographic proximity but beyond the boundaries of the union’s bargaining unit. [40] At para. 46, the Board addresses the Company’s submission as follows:As the Union points out, several of Right Time’s Divisions were unionized several years prior to the filing of the applications for certification in this proceeding. That structure, a mix of union and non-union Divisions, has not produced evidence of any impediment to the inter-Division sharing of human resources. In fact, the employees working for Boonstra, Mr. Furnace, Francis Home Environment and the Home Aire Care Divisions work harmoniously under very different terms and conditions of employment despite the centralization of a number of Right Time’s operational functions. AtlasCare has deployed its non-union workers to Boonstra’s and Mr. Furnace’s union shops and has borrowed bargaining unit personnel from both of those Divisions with no negative labour relations outcome despite the fact that the terms and conditions of employment in each Division varied in a number of respects, such as wage rates and benefit entitlements, to name a few. None of the Company’s witnesses, except Mr. Shamji, disclosed any problems with these arrangements. In fact, Mr. Dagg was unaware of the presence of unions at Boonstra and Mr. Furnace; Mr. Aggarwal conceded he knew nothing about the applicable collective agreements; and Mr. Mansouri, AtlasCare’s Operations Manager, was indifferent to whether Mr. Furnace’s staff were in a union (he did not know). [41] Thus, far from ignoring the Company’s submission, the Board considered its arguments and found that there already were unions with bargaining rights for various divisions of the Company with overlapping work jurisdictions and the sharing of labour, and found that the Company had not identified any labour relations issue that had arisen as a result of that structure. Its analysis and conclusion in this regard were reasonable.
Alleged Harm That Would Be Caused by the Collective Agreement at Issue
[42] The Company argued that unlike the collective agreements that are in place with Boonstra and Mr. Furnace, the collective agreement at issue could force its AtlasCare Division to offer work within the Union’s bargaining rights to competitors who are also bound to the Union before contacting other Right Time divisions for labour.
[43] The Company’s evidence on this issue came from Mr. Shamji. That evidence is summarized at para. 31 of the Decision:Mr. Shamji testified that, in his view, the above conditions for subcontracting would be potentially onerous to Right Time and its practice of sharing labour among Divisions in the GTA. He held that view despite the fact that as of the date of his testimony on August 31, 2022, there was only one subcontractor in the GTA bound to the Union. Mr. Shamji stated that that could change in future, that many more subcontractors in the GTA could become bound to the Union. Furthermore, even if the current bound subcontractor has sufficient work to keep its employees fully employed, Mr. Shamji said that that too could change in a matter of weeks. [44] The Board considered that evidence and, at para. 48, found it be “more on the speculative side.” The Company is essentially asserting before us that this assessment of the evidence was “unreasonable”.
[45] To reach this conclusion would require us to do our own weighing of the evidence at issue. This runs contrary to the function of a reviewing court on a reasonableness analysis. Our task is to assess the reasonableness of the Board’s decision, in the context of the labour relations expertise of the tribunal below, not to reweigh the evidence that it has already considered.
[46] The Company also argued that the Board ignored a key aspect of the collective agreement at issue – namely, that the Company is not a party to the agreement; the agreement is between the Ontario Refrigeration and Air Conditioning Contractors’ Association and the Union. According to the Company, this will cause them serious labour relations harm as it will not be able to bargain directly with the Union if difficulties do occur.
[47] I agree with the Union that this is not an attack on the reasonableness of the Decision; it is an attack on the accreditation provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A that mandate that employers must work with a bargaining agency. I also find that there was no need for the Board to address this argument as it found that the current wording of the collective agreement would not cause serious labour relations harm. It was therefore not necessary for it to address whether the Company would or would not have the opportunity to change the language of that agreement. . RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
In RT HVAC Holdings Inc. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Div Court, 2023) the Divisional Court considers a JR application to set aside a labour certification "to represent certain employees within one division of the Company", here on the issue of what 'portion' (my term) of the business that may be certified::[2] The Company submits that the Decision is unreasonable because it refused to follow applicable Board practice, which it alleged was not to certify a bargaining unit within only one division (which is not a legal entity). ...
[3] For the reasons that follow, the application is dismissed. I do not accept the Company’s assertion that the Board unreasonably applied Board precedent and practice, which included the principle that a trade union will generally be granted the unit it applies for unless certifying that unit will generate serious labour relations difficulties for the employer. ...
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The Board did not issue a certificate in respect of an employer that is not a legal entity.
[29] The Company is correct that the Board jurisprudence contains a principle that in the absence of the agreement of the parties, “the Board ought not to certify a trade union in respect of an employer that is not a legal entity”: Canadian Construction Workers Union v. Newton Group Ltd., 2016 CanLII 1756 (ON LRB), at para. 7.
[30] However, as the above recital of the facts indicate, the Union accepted this principle and agreed in its submissions of August 31, 20121 that the correct identity of the responding party employer was RT HVAC Holdings Inc. RT HVAC Holdings Inc. is the legal entity named in the certificates issued in the application, and is the legal entity for whom the Union has gained bargaining rights to represent its employees.
There is no well-established Board practice against limiting bargaining units to a division of a legal entity.
[31] In the Decision, the Board dealt with the Company’s submission on this point as follows, at paras. 42-45:42. The parties agree that RT HVAC Holdings Inc. is the correct name of the responding party. However, the Union seeks to be certified in relation to a single Division or business Division of Right Time. Right Time contends that bargaining units described in such a manner are not appropriate for collective bargaining.
43. In Forma-Finishing, the displacing trade union applied to represent all cement masons and cement masons’ apprentices employed by a Division (Forma Finishing) of a numbered corporate responding party. There was another Division, Forma-Con, controlled by the same numbered corporation. The responding party and the incumbent union took the position that the applicant was required to apply for both Divisions, relying on the Board’s preference as articulated in Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. June 815, to identify a corporate entity rather than a Division as employer.
44. The Board in Forma Finishing rejected any notion that bargaining units structured on Divisional lines are automatically inappropriate for collective bargaining. The Board stated, as a general principle, that the Board will find as appropriate an applicant trade union’s proposed bargaining unit “unless concrete and demonstrable serious labour relations problems will arise from the granting of that bargaining unit.” In that case, neither the employer nor the incumbent union could establish such problems with the trade union’s proposed Divisional bargaining unit.
45. I agree with the approach taken by the Board in Forma Finishing. On the face of it, the Union’s proposed bargaining units structured along a single-Division model are prima facie appropriate unless Right Time can establish serious (“concrete and demonstrable”) labour relations harm. The issue before the Board is not whether the bargaining unit proposed by the Company is preferable or superior. The question is whether the Union’s proposed unit is “viable for collective bargaining” (paragraph 28, Alstom Canada, supra, referring to Hospital for Sick Children, supra). [32] The Company asserts that the Board unreasonably applied the general principle cited in Hospital for Sick Children and relied on in Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada Union Local 598 v. 1033803 Ontario Inc. o/a Forma-Finishing, 2013 CanLII 23915 (ON LRB) (“Forma-Finishing”). The Company asserts that Board used this general principle—that the Board will find a union’s proposed bargaining unit appropriate if it is viable for collective bargaining unless serious labour relations harm can be demonstrated—“to push aside an accepted and well-understood Board practice” against granting a certification in relation to a bargaining unit made up of a division of a company. In support of its submission that there was such an “accepted and well-understood Board practice” the Company relied on the decision of the Board in Millwright District Council of Ontario, Local 1410 v. Alcan Aluminum Limited, 35 C.L.R.B.R. (2d) 51, where the Board stated the following, at para. 53:53. However, I do think it appropriate to make the following observations. The Board has generally not found it appropriate to limit a construction industry bargaining unit in the manner proposed by the Alcan business units except on agreement of the parties, or perhaps where the “division” to which the bargaining rights are restricted is either in fact the only division of the employer, or is the only part or division of the employer which conducts all of the employer’s business in the construction industry as a separate entity. [33] It is misleading to rely on the Alcan Aluminum decision for the proposition that there is a Board practice against certifying bargaining units composed of divisions that displaces the general principle cited in Hospital for Sick Children that the Board relied on in making its decision. In Alcan Aluminum, the union sought to certify a bargaining unit composed of all the company employees. The respondents opposed the company-wide bargaining unit and maintained that the bargaining unit description ought to be limited to one division. Thus, in rejecting the respondents’ argument, the Board made a decision that was in keeping with the principle in favour of accepting a union’s description of its bargaining unit if the unit is viable for collective bargaining and no serious labour relations harm is demonstrated.
[34] The Company was unable to point to a single authority in support of its proposition that the Board acted unreasonably in its application of this principle. Further, in Beatrice Foods, one of the decisions relied on by the respondents in Forma-Finishing to oppose a bargaining unit description that only contained the employees of one division, the Board, after concluding that a legal entity must be named in the style of cause as the employer, goes on to say, at para. 3, that the bargaining unit description may be limited by division:If, as in the present case, it is appropriate to restrict the applicant’s bargaining rights to employees who work in a particular division that has been established by their corporate employer, this can be accomplished by referring to that division in the description of the bargaining unit as was done in the aforementioned decision dated May 31, 1982 in which the unit was described as “all employees of the respondent in its Model Dairy Division at Sault St. Marie…”. [Emphasis in original.] [35] For these reasons there is no merit to the Company’s submission that the Board acted unreasonably in finding that there is no presumption that a division-based bargaining unit is inappropriate.
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