Labour (Ont) - Employer Request for Vote [LRA s.42]. International Union of Operating Engineers, Local 793 v 1476247 Ontario Ltd.
In International Union of Operating Engineers, Local 793 v 1476247 Ontario Ltd. (Div Court, 2023) the Divisional Court considered (and allowed) a JR of several OLRB decisions favouring an employee who was successful in a s.42 ['Vote on employer’s offer'] LRA request. In these quotes the court considers the nature of an employer's LRA s.42 request to conduct a vote on a collective agreement offer:
The Board erred in law in its interpretation of s. 42(1) of the Act
 Section 42(1) of the Act states:
42 (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made. The purpose of s. 42(1) of the Act is to provide an employer with the unilateral right to request a vote on its offer where the union leadership does not wish to take an offer to its members. It is a trigger that the employer can only use once, hence it is known as a final offer vote. In the non-construction sector the Minister shall direct the vote, but in the construction industry the Minister has discretion to do so.
 There is no process set out in s. 42(1) other than the requirement that the employer must request the vote. The Act does not provide for notice to the union or provide for union input or a right to object. Indeed, as this case illustrates, the Minister’s decision may be made promptly. Here, it was made within 24 hours of the request. No union input was sought and there was, effectively, no opportunity for the union to object. On the same day that the Minister made the direction, the Board scheduled the vote, also without seeking input from the union. At the request of the Board to ensure that the correct final offer was being voted on, the union signed each page of the final offer. However, this was merely an administrative act, and did not indicate the union was consenting to the process. Rather, in my view, the union’s cooperation in initialling the final offer is a further indication that the parties, and the Board, treated the Minister’s direction as, effectively, an ex parte, binding order.
 There is much merit, therefore, in the union’s submission summarized by the Vice-Chair at para. 25 of his Full Decision, “that it was not required to object to the request to direct a final offer vote pursuant to section 42(1) of the Act because it was inevitable that the Minister would exercise his direction [sic] to order a vote even if it objected.”
 The Vice-Chair did not address the text and context of s. 42(1) to support his conclusion that a union must somehow “object or otherwise make submissions to the Minister…at the outset of the section 42(1) process.” Nor did he cite any authority for this conclusion, because there is no such authority. Rather, in his Full Decision he cited Canada Cement Lafarge, a non-construction case decided in 1980, which held at para. 8 that “a vote in favour of accepting a last offer creates, in the usual case, the basis upon which a binding agreement… is to be entered into.” [emphasis added] Canada Cement Lafarge does not, however, address any process or right to object to a section 42(1) vote; to the contrary, s. 42(1) gives the employer “the right at any time during bargaining to call for a vote, which is described as “a safety valve” in the “traditional tension in bargaining.”
 In International Union of Operating Engineers, Local 793 v Associated Contracting Inc, 1997 CanLII 15515 (ON LRB) (“Associated Contracting 1997”), which is thought to be the first case in which s. 42(1) was invoked in the construction industry, the Minister sought union input before directing a vote, but the Board was clear that “the union’s consent is unnecessary, and indeed, would be inconsistent with the policy reflected in the section.” (para. 28). The Board observed at para. 29 that “[u]nions will often (if not always) be opposed to such votes. If it were otherwise, the employer would not have resorted to the section 42 mechanism in order to get a vote on its offer.”
 Other section 42 cases are also inconsistent with the Vice-Chair’s analysis. In Associated Contracting 1999, a decision cited by the Vice-Chair, the Board held that a vote under s. 42(1) in favour of a final offer in the construction sector is “not determinative.” At para. 33, the Board addressed a number of reasons for this, including “where a pattern agreement exists for many employers.” Consequently, in the context of a first contract application in that case, the Board was “not disposed to give much weight to the results of the final offer vote.” The Board did not address, at all, the issue of whether the union had in some way objected to the Minister prior to the vote being directed, and it can be assumed the Board was aware of what had been stated two years earlier, in para. 29 of Associated Contracting 1997, quoted in the preceding paragraph, that “unions will often (if not always) be opposed to such votes.”
 In Aloia Bros. Concrete Contractors Inc., 1999 CanLII 20015, the Board did not suggest that a union can or should object to a vote being taken under s. 42(1) of the Act, noting only that “the section does not address the effect of such a vote.” [emphasis in original, at para. 4] The Board observed, at para. 10, that the Minister’s power to direct a vote is discretionary in the construction industry “and the exercise of that discretion has been exceedingly rare.” The Board stated, consistent with Canada Cement Lafarge, that “a positive vote by the employees casting ballots does not, in itself, either result in a collective agreement or require a trade union to execute a collective agreement on the terms proposed.” [emphasis in original] In Aloia, the employer sought and obtained direction for a final offer vote, and the union then abandoned its bargaining rights.
 The Vice-Chair’s reliance on Canada Cement Lafarge, a non-construction sector case, does not support such a finding either; rather, it also recognized reasons why unions, particularly in the construction sector where pattern agreements exist, might not wish to accept the results of a section 42(1) vote. And it certainly does not say that a union loses the right to reject a vote because it did not object to the vote in the first place.
 Indeed, in the Full Decision, the Vice-Chair seemed to recognize that there could be justifiable reasons for a union to not execute a collective agreement following a final offer vote in favour, stating at para 42:
When the Board considers whether a union has a justifiable reason for not executing the accepted final offer (a prima facie violation of section 17 of the Act) and commencing, or continuing with strike activity, it considers not only the stated reason for why the union asserts that it is justified in refusing to conclude a collective agreement but also the context surrounding that decision as it does in each instance where a party files an application with the Board alleging a breach of the duty to bargain in good faith. Furthermore, the Board’s jurisprudence does not support the Vice-Chair’s assertion in his Full Decision (at para. 51) that the union “must show that it took reasonable steps to make positions and concerns known throughout the 42(1) final offer vote process before refusing to accede to the results of the vote”, a passage which seems somewhat inconsistent with the Vice-Chair’s unambiguous conclusion in his Initial Decision that a union must object at the outset.
 Moreover, the evidence filed by the union in its request for reconsideration shows that the union did what the Vice-Chair seemed to require. Virgil Nose, a union supervisor, stated that he had “specifically advised Hugo De Grandis that the Union was not necessarily going to accept the results of the vote for the very reason that it would undermine the pattern agreement in place for every other Local 793 signatory contractor performing concrete pumping work.” Yet, despite this uncontradicted evidence that the union had warned DCP, in advance of the vote, that it might not accede to a vote in favour of the final offer, the Vice-Chair stated at para. 17 of the Reconsideration Decision that he relied on Local 793’s “complete lack of action, including remaining silent on its position that it would not [accede] to the results of the final offer vote.” This factual finding is unreasonable.
 In short, no case suggests that there is an obligation on a union to object “at the outset” to the Minister directing such a vote; the union’s opposition is assumed. Moreover, permitting a union to attempt to block such a vote would be inconsistent with the purpose of the section.
 Accordingly, and bearing in mind that I am reviewing a decision of an expert tribunal and its interpretation of its enabling statute, I find that there is no support for the Vice-Chair’s conclusion that a union must object to a section 42(1) vote when it is requested by an employer, and that such a conclusion is unreasonable. The wording of s. 42(1) does not support it, and the Vice-Chair has provided no intelligible justification for such a conclusion. He does not point to anything in the section, or the Act, that would support his interpretation. Nor does he address, as a practical matter, how such an objection would be made or be consistent with the purpose s. 42(1), which provides a unilateral right of the employer to call for a vote – a safety valve to use when the employer makes a final offer and wants to put pressure on the union’s leadership to accept an offer.
 The Vice Chair’s conclusion is also not supported by the Board’s jurisprudence, nor has he provided reasoning which would support or explain his departure from previous decisions dealing with s. 42(1) of the Act, which identify reasons why a union might not accede to a favourable vote, regardless of whether the union objected to the vote, or not.