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Labour - Managerial Exclusion

. Thomas Cavanagh Construction Limited v. International Union of Operating Engineers

In Thomas Cavanagh Construction Limited v. International Union of Operating Engineers (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an employer's labour JR, this brought against "a series of decisions by the Ontario Labour Relations Board (the “Board”) that led to the certification of the Respondent, International Union of Operating Engineers, Local 793 (the “Union”) to represent all employees in its standard craft unit (operating engineers) employed by the Employer in the industrial, commercial and institutional (“ICI”) sector of the construction industry ...".

Here the court considers whether certain forepeople are included in the bargaining unit, and thus under the collective agreement:

[3] The main issue before the Board was whether four individuals, who were working forepersons, ought to be included in the applied-for bargaining unit and thus “count” for the purposes of assessing the level of membership support for the Union.

[4] After 11 days of hearings the Board issued a decision in which it determined that the working forepersons were not performing bargaining unit work for the majority of their time on the Application Filing Date (“AFD”). Thus, they were excluded from the bargaining unit. As a result of this decision, the Union was found to enjoy the support of over 55% of the employees in the bargaining unit as of the AFD, which entitled them to be certified as the bargaining agent for the unit.

[5] The Employer’s application for judicial review seeks to challenge the Board’s decision to exclude the working forepersons from the bargaining unit. In doing so, it argues that the Board made a number of factual errors in its consideration of the evidence before it; that its decision to apply the “majority-of-time” test was contrary to the established jurisprudence of the Board; that if the majority-of-time test was appropriate, the Board erred in its appreciation of the evidence which should have led to a finding that the working forepersons satisfied that test; and that the effect of the Board’s decision is to unjustifiably deny the working forepersons the opportunity to participate in choosing their bargaining representative. According to the Employer, the Board has created an untenable legal framework such that the working forepersons cannot be included in any bargaining unit.

....

The established jurisprudence does not state that the majority- of- time test is inappropriate for working forepersons who are supervising a mixed crew.

[25] The Board gives a useful description of working forepersons in para. 90 of the Reconsideration Decision. They are workers who supervise and direct the work of crews, but they exercise no management functions. They are also “expected to, and do, work on the tools as necessary.”

[26] Crucial to the Board’s decision to apply the majority-of-time test in this case is the fact that the working forepersons were supervising a mixed crew of workers. As the Board explains in its Interim Decision:

111. The craft applied for in this case is that of operating engineers. The four Forepersons in this case supervised mixed crews of labourers and operating engineers, the one exception being Mr. Tremblay’s brief supervision of the work at the Brown’s Corner site on Ashton Station Road where the only individual employed by TCC was the bulldozer operator (an operating engineer). The Board’s task in an application for certification such as this is not to resolve a work jurisdiction issue as between two or more trades. It is not for the Board to determine whether the four individuals in issue are better positioned to be a labourer’s bargaining unit or an operating engineers’ unit. The question here is simply whether the individuals are appropriately included in the operating engineers’ craft unit. The burden of proof with respect to that question rests with the TCC as the party requesting their inclusion.

[27] Given the fact that the working forepersons in this case were supervising mixed crews (some of whom were in the ICI sector, some of whom were not), the Board decided that it had to consider the time that each working foreperson spent “working on the tools” of the bargaining unit in question on the AFD and the time that each working foreperson spent supporting the work of and giving direction to the workers who were in the craft of the bargaining unit applied for. If the foreperson spent the majority of their time on the AFD engaged in these activities, then they were eligible for inclusion in the bargaining unit. If they did not, they were not.

[28] In adopting this approach, the Board applied and followed the recent decision of the Board in Labourers’ International Union of North America, Ontario Provincial District Council v. Cooper-Gordon Limited, 2024 CanLII 61004 (ONLRB) (“Cooper-Gordon”). Cooper-Gordon is also a decision involving an application for certification of a bargaining unit for construction labourers in the ICI sector. One of the issues in that case was the status of a working foreperson who was overseeing a mixed crew of workers on the AFD, some of whom were in the bargaining unit being applied for and some of whom were not. At para. 57 of Cooper-Gordon, the Board finds that its approach (which was to apply the majority-of-time test) was in accordance with the Board’s jurisprudence.

[29] At para. 91 of the Interim Decision, the Board describes the rationale for the majority-of-time test as follows:

The rationale for doing so is related to the labour relations principle that a worker in the construction industry cannot belong to more than one construction bargaining unit on any given day.

[30] In a 2009 decision of the Board – Labourer’s International Union of North America, Ontario Provincial District Council v. Birnam Excavating Ltd., 2009 CanLII 66096 (ON LRB) – the Board agreed with the employer that “it does not make sense to determine which bargaining unit a working foreman falls into by making a detailed analysis of the work of the majority of the crew that he is supervising”. As put by the Board in Birnam Excavating:

49. I agree with counsel for the employer that it does not make sense to determine which bargaining unit a working foreman falls into by making a detailed analysis of the work of the majority of the crew that he is supervising. In a non-union road-building crew, it would not be unusual for qualified people to do a bit of operators’ work and a bit of labourers’ work in the same day. It would also not be surprising if the people chosen as crew leaders were skilled in the work of both of the trades whose work they supervised and co-ordinated. An employer would expect a road-building crew foreman to be able to both jump on a piece of machinery and to jump in a hole to keep the work moving. It would be artificial to exclude a working foreman from a labourers’ bargaining unit because the crew was a mix of labourers and operators.

[31] On February 2, 2020, Vice-Chair Shouldice issued a decision in this case, known as the “Prima Facie Decision”: 2020 CanLII 94523, In that decision, Vice-Chair Shouldice was dealing with a motion by the Union to remove certain people from the list that the Employer had filed as being people who were eligible to be included in the bargaining unit as of the AFD without holding a hearing on the matter. Included in that list were the working forepersons that were the subject of the Interim Decision. At para. 38 of his decision, Vice-Chair Shouldice stated:

The Board’s jurisprudence establishes that it is possible for an individual to be included in a bargaining unit of employees as a working foreman even if that individual did not spend the majority of his working day on the application filing date performing bargaining unit work.

[32] Thus, the status of the working forepersons proceeded to a hearing. The Prima Facie decision does not stand as authority for the principle that the majority-of-time test should not be applied when determining the status of a working foreperson who is supervising a mixed crew. It simply recognizes that there is Board jurisprudence, in particular, Birnam Excavating, supra, where the Board did not apply that test.

[33] In Labourers’ International Union of North America v. Remo General Contracting Ltd., 2014 CanLII 80541 (OLRB), Vice-Chair Kelly, the same vice-chair whose decision is under review, determined an application involving the status of working forepersons on the application filing date. According to the Employer, the Vice-Chair rejected the majority-of-time test. Thus, this decision contradicts the position taken by the same Vice-Chair in the case at bar.

[34] The Employer’s characterization of the Remo General decision is incorrect. First, at para. 39 of Remo General, Vice-Chair Kelly states: “In order to include them in the bargaining unit I must be satisfied that Mr. Pusey, Mr. Stanberry and Mr. Brown were engaged in construction labourers’ work for the majority of the day on June 20, 2011, the date of application…” (emphasis added). Second, as the Vice-Chair notes at para. 11 of the Reconsideration Decision, the Remo General case did not involve a working foreperson supervising a mixed crew.

[35] It is true that at para. 41 of Remo General, Vice-Chair Kelly does state that he accepts the analysis in two Board cases – Frost Refrigeration and Patrick Mechanical- “that the ‘majority of the day’ test [which is the same as the ‘majority-of-time’ test] may not be useful in the assessment of a working foreperson, and that the Board would be better served by having regard to the extent to which the acting foreman is integral to the performance of the crew for which he is responsible.” At paragraphs 96 to 97 of the Reconsideration Decision, the Board discusses the Frost Refrigeration and Patrick Mechanical decisions and finds that neither involve forepersons who were supervising a mixed crew. They follow the authority established in International Union of Painters and Allied Trades v. Blastco Corp., 2001 CanLII 10640 (ON LRB), which is also a case where the working foreperson was not supervising a mixed crew.

[36] What these cases stand for is the proposition that a working foreperson who supervises a crew composed of workers in the bargaining unit should not be excluded from the bargaining unit simply because he does not spend the majority of the day “working on the tools” of the trade. If the foreperson’s work is integral to the work of the crew, he is supervising that is sufficient. According to counsel for the Board, who appeared on this application, it may be fair to say that the established Board jurisprudence is that this is the approach that should be taken when dealing with working forepersons who supervise workers in a single trade or craft.

[37] This is a different majority of the day or majority-of-time analysis than the Board had to conduct in the case under review. In the case under review, the Board accepted that in assessing the time spent by the forepersons at issue on operators’ engineer work (as opposed to labourer’s work) on the AFD, the Board should count not only the work spent on the “tools of the trade”, but also any work that the Employer could establish was integral to the work of the operating engineers in the crew. However, because the working forepersons at issue supervised a mixed crew, it was necessary to prove that the work they performed as operating engineers took up the majority of their day on the AFD. As noted above, the Board found that this was necessary to ensure that there was no suggestion that a working foreperson could belong to two bargaining units on the same day. This could happen if the inquiry into a working foreperson’s status stops at a finding that the work of the foreperson is integral to the trades he is supervising. Under that analysis, a working foreperson who spends ten percent of their day doing work that is integral to the operating engineers and seventy-five percent of their day doing work that is integral to the work of another bargaining unit, could potentially be members of both bargaining units.

[38] This is not to say that the Board’s application of the majority-of-time test to a working foreperson supervising a mixed crew is the established Board jurisprudence. There is clearly Board authority to the contrary, namely the Board’s decision in Birnam Excavating. There is also Board jurisprudence that supports the approach taken by the Board in this case, namely Cooper-Gordon. Thus, what we have is a conflict in the Board jurisprudence. The fact that there is a conflict in the jurisprudence does not render a decision unreasonable. As put by the Supreme Court in Vavilov, at para. 129:

Administrative decision-makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court stated in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision-makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p, 800.

[39] For these reasons, I find that the Employer has failed to demonstrate that the Board employed a test for the determination of the issue before it that was contrary to its established jurisprudence. Therefore, it was not unreasonable for it to use the majority-of-time test.

. Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec

In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec (SCC, 2024) the Supreme Court of Canada allowed an employer appeal from a successful lower court s.2(d) ['freedom of association'] Charter challenge, here against a Quebec law that prohibited managers (here, casino managers) from unionizing.

Here the court characterizes the purpose of the common managerial exclusion from labour law regimes (here it was in Quebec):

[51] In my view, the purpose of the legislative exclusion is not to interfere with managers’ associational rights. As my colleague Justice Côté explains, the legislature’s purposes in excluding managers from the definition of “employee” under the Labour Code were to distinguish between management and operations in organizational hierarchies; to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities; and to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees (paras. 168-69).