Decisions - 2001

Decisions - 2001



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Decisions issued in 2001

27/12/01 - Canadian Union of Public Employees, Local 38 and ENMAX Corporation, Encompass, Enmax Power and Enmax Energy - Letter Decision

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21/12/01 - International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 146 and United Brotherhood of Carpenters and Joiners of America, Local 1325 and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 and International Association of Bridge, Structural and Ornamental and Reinforcing Iron Workers, Local Union No. 720 and J.V. Driver Installations Ltd. - Letter Decision

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19/12/01 - Alberta Building Trades Council and J.V. Driver Installations Ltd. and Christian Labour Association of Canada (CLAC) and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 146 and United Brotherhood of Carpenters and Joiners of America, Local 1325 and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 and International Association of Bridge, Structural and Ornamental and Reinforcing Iron Workers, Local Union No. 720 - Letter Decision

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18/12/01 - Dean Phillips and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local No. 4050 and Canadian Waste Services Inc. - Letter Decision

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4/12/01 - Cana Services Employees Association and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325 and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 488 - Letter Decision

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4/12/01 - Canadian Union of Public Employees, Local 838, Red Deer, Alberta affecting David Thompson Regional Health Authority - Letter Decision

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30/11/01 - Canadian Union of Public Employees, Local 38 and The Corporation of the City of Calgary and Enmax Corporation - Formal Decision

Reconsideration – s. 11(4) – Union bringing Charter challenge at reconsideration stage – Board dismissing application.

Sale of business – s. 44 - Original panel making successorship declaration – Union filing reconsideration application - Union claiming determination that employees became, by operation of law, employees of successor was contrary to section 2(d) of Charter – Board dismissing application – Charter issue not raised before original panel.

A previous panel of the Board declared that Enmax Corporation (“Enmax”) was the successor employer for that part of the business of the City of Calgary comprised of the Utility Customer Accounts. The Board found that all employees of the City affected by the transaction became employees of Enmax. The union sought reconsideration of the earlier decision. It said the determination that the affected employees of the City were employees of Enmax was contrary to section 2(d) of the Charter. The constitutional issue was not raised before the original panel.

Held, The Board dismissed the union’s reconsideration application on two bases. First, the union could have and should have raised its constitutional argument before the original panel. This was not an appropriate case to make an exception to the Board’s general rule that new issues could not be raised on reconsideration. Second, the failure to notify the Attorneys General under the Judicature Act of the proceedings before the original panel precluded the Board from proceeding with the Charter argument at the reconsideration stage. The Attorney General for Alberta objected to the fact the original panel heard evidence in his absence and, because no transcript existed, the Attorney General had no ability to question witnesses on those aspects of their testimony that might bear on the submissions he would make regarding the constitutional validity of section 44.

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27/11/01 - United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local Union No. 496 and Northland Properties Ltd. - Formal Decision

Unfair labour practices – Employer – s. 146(1)(a)(ii) - Union alleging employer canvassing employees to identify union supporters and attempting to incite employees not to support union - Union claiming employer laying off employees for anti-union motives – Board finding breach of section.

Unfair labour practices – Employer – s. 147(a), (c) – Union claiming employer laying off employees for anti-union motives – Board finding breach of section.

Unfair labour practices – Union – s. 149(d), (f) – Employer claiming individual, acting on behalf of union, organizing on company time and premises and threatening, intimidating and unduly influencing employees into supporting union.

The union filed two certification applications for standard construction bargaining units of pipefitters and sprinkler fitters. Both the union and employer filed unfair labour practice complaints. The employer claimed that its mechanical superintendent, acting on behalf of the union, organized for the union on company time and premises and threatened, intimidated and unduly influenced employees into supporting the union. The union alleged that certain individuals, acting on behalf of the employer, had canvassed employees to determine who was a union supporter and attempted to incite employees not to support the union. The union also said the employer used its knowledge of the workforce and the information contained in two Board Officer’s reports to ascertain who was a union supporter and that the employer had laid off employees for anti-union motives, contrary to the Code.

Held, The Board dismissed the employer’s complaints. The actions complained of were not the actions of the trade union or a person acting on behalf of the union. The mechanical superintendent was not a union official and there was no evidence that he had any real or apparent authority to assist in the union’s organizing efforts.

The Board found the employer in breach of the unfair labour practice provisions. The site superintendent asked employees whether they had signed membership cards. In addition, the company’s vice-president had suggested to one employee that he write a letter to the Board “to make the problem go away”, which the Board found to be a solicitation to renounce union membership. These actions constituted interference with representation of employees by a trade union contrary to section 146(1)(a)(ii).

However, the most serious breaches of the Code were the layoffs. The suspicious timing of the layoffs, the employer’s state of knowledge about where support for the union lay, the employer’s failure to give any satisfying business rationale for the layoffs, and certain comments made by management all satisfied the Board that the employees were laid off because of their perceived support for the union. The layoffs amounted to breaches of sections 147(a)(i), (viii), (c) and 146(1)(a)(ii). The Board issued a compensation order and a partial reinstatement order. Immediate reinstatement to active employment was not an appropriate remedy. The wronged employees did not lose continuous work by the employer’s breach of the Code, but rather the opportunity to work on future jobs for the employer, where their experience would normally give them a preference.

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26/11/01 - Hotel Employees and Restaurant Employees International Union, Local 47
and Frontier Catering Ltd., North Country Catering Ltd., Denman Industrial Trailers Ltd. and/or Oilsands Industrial Lodge - Letter Decision

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28/11/01 - Correction Letter

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26/11/01 - Certain Employees of Brown & Marshall Limited and International Brotherhood of Electrical Workers, Local 424 and Brown & Marshall Limited - Formal Decision

Revocation – s. 49(2) – Evidence in a form satisfactory to Board - Board departing from its general rule that incomplete applications must be rejected – Board accepting incomplete application as timely – Case raising unique facts.

The day after a Board finding that the union remained the bargaining agent for a unit of employees of Brown & Marshall Electric Limited (“BME”) described as “All General Construction Electricians”, certain employees of BME filed an application for revocation and supporting petition with the Board. The application and petition were first presented to a Board Officer at 1:00 p.m. The petition in support was not a Board generated document. The Officer noted that while there were signatures on the petition, the header of the petition form had not been filled out. The form contained no space or indication for the employer’s name and the union’s name did not appear on the blank provided. The Officer advised that, according to Board policy, she could not accept the incomplete application and that the employer and union names were imperative for a revocation application. The employee representative was provided with a new petition form that he returned to the Board along with the application later the same day. The application was accepted as filed at 2:45 p.m.

At approximately the same time as the applicants presented their application to the Board, members of the union were ratifying a new registration collective agreement with the Electrical Contractors Association. Because the entering of a new collective agreement would impose a statutory bar on the revocation application, the Board had to determine the exact time the union ratified its agreement. The case also involved a review of the Board’s practice on how it reviews and accepts revocation or certification applications supported by petition evidence.

Held, The Board found that ratification took place at 1:20 p.m. This meant that the application as filed at 2:45 was untimely.

The Board noted that but for the rejection of the application and original petition by the Board Officer at 1:00 p.m., the original application as presented would have been timely. The Board reviewed its practice regarding the acceptance of revocation applications and considered whether it should have accepted the application and petition as filed at 1:00 p.m. The Board found it was an appropriate case to depart from its general policy. The case involved a unique set of facts. The applicants did not know they were represented or that their employer was certified by the union until 10:30 a.m. that morning. They also did not know the union was engaged in collective bargaining or that their employer could or would be impacted by negotiations ongoing in the industry. They could not have acted more promptly than they did. Although the petitioners used a deficient form, they testified that they knew exactly who their certified bargaining agent and employer were and the purposes of the application. These facts prompted the Board to accept the application and petition as first presented to the Board as timely. To find otherwise would constitute a fettering of the discretion that the Board maintains under section 49(2) to accept evidence of support in a “form satisfactory to the Board”. A rigid application of the Board’s policy in this case would work a serious unfairness on the applicants in circumstances where a deviation from the policy did not seriously undermine the policy considerations behind the rule. As the requirement for 40% support was met, the Board ordered that the matter proceed to a vote.

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22/11/01 - International Union of Operating Engineers, Local 955 and Vertex Construction Services Ltd. and Construction Workers Union, Local No. 65 and Alberta Labour Relations Board. - Court of Queen's Bench Decision

Judicial review – s. 18(2) – Court dismissing judicial review application – Board making no reviewable error in choosing to overturn earlier decision.

Sittings of the Board - s. 9(7) – One panel member dissenting on reconsideration decision – Party alleging that rules of natural justice breached because minority of Board allowed to prevail over majority – Court dismissing argument – Section 9 addressing issue.

Sale of business - Successor rights - s. 44 - Effect of successorship on application of s. 55 – Reconsideration panel finding second certification application barred because certification applications in respect of predecessor and successor were the “same or substantially the same” - Judicial review application dismissed.

Timeliness - s. 55 - Original panel finding two certification applications not “the same or substantially the same” because companies were separate legal persons and different employers – Reconsideration panel finding that original panel misinterpreting section – Second certification application barred – Judicial review application dismissed.

The International Union of Operating Engineers Local 955 (“Local 955") sought judicial review of a Board reconsideration decision where one of the panel members dissented. The majority of the panel chose to overturn an earlier Board decision that found that Local 955’s certification application was not barred under section 55. On judicial review, the union claimed the original decision did not contain a reviewable error that would justify reconsideration. Two natural justice arguments were also raised before the Court. The first was that the reconsideration panel breached the rule that “he who decides must hear” because the ultimate decision-maker did not hear the evidence. The second argument was that the Board followed a procedure that allowed a minority to overrule a majority of the Board.

Held: The Court dismissed the application. There was no reviewable error in the Board’s exercise of its reconsideration power or its interpretation of section 55. The arguments that the Board’s decision breached the rules of natural justice were dismissed. The reconsideration panel relied on the fact findings of the original panel to apply the law and section 9 addressed the argument that a decision of two Board members could not prevail.

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20/11/01 - Construction Labour Relations - an Alberta Association and PCL Industrial Construction Inc. and Communications, Energy and Paperworkers Union of Canada, Local No. 501A and Alberta Labour Relations Board and Petro-Canada - Court of Queen's Bench Decision

Judicial review – s. 18(2) – Court allowing judicial review application and quashing Board decision.

Picketing – s. 82 – Board finding picketing involving tort of contractual interference – Board refusing to regulate or prohibit picketing because no evidence tort ongoing following cease and desist directives – Court quashing Board decision.

Employees of Petro-Canada, represented by the Communications, Energy and Paperworkers Union 501A, commenced a lawful strike. Picketing took place at different locations, including at a gate used primarily by employees of PCL and its contractors (the “Construction Gate”). PCL applied to the Board to prohibit the picketing of the Construction Gate. The Board refused to regulate the picketing. PCL sought reconsideration. A reconsideration panel found that the picketing at issue satisfied the tort of interference with contractual relations. However the panel chose not to implement any restrictions on picketing because there was no evidence before it that the breaches or attempted inducement of breaches of contract were continuous or ongoing following the issuance of cease and desist directives ordering employees of PCL and its contractors to cross the picket line. PCL sought judicial review.

Held, The Court found the decision patently unreasonable. The Board should have banned the picketing at the Construction Gate. The reconsideration panel’s decision contained a substantial and reversible error when it held on the one hand that the picketing was unlawful, but nevertheless, on the other hand, the Board had jurisdiction to balance the interests of the pickets and others simply because the picketing was peaceful and uneventful.

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05/11/01 - Canadian Union of Public Employees, Local 417 and The Town of Three Hills - Letter Decision

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29/10/01 - Charles Doering and United Steelworkers of America, Local 1976 and Dennis Dunster and Bulk Systems (Alberta) Ltd. - Letter Decision

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19/10/01 - TransAlta Utilities Corporation and United Steelworkers of America, Local Union 1595 and employees of Luscar Ltd. represented by the United Steelworkers of America, Local Union 1595 - Formal Decision

Complaints – Timeliness - s. 15(1.1) – Board refusing to apply section to determination and common employer applications – Section applying to “complaints” only.

Common employer declaration - s. 45 – Board finding all elements of section met but refusing to grant declaration – No labour relations purpose to declaration – Union delaying bringing application – Application attempting to extend rather than preserve bargaining rights.

Practice and procedure – Delay – Board declining to dismiss determination applications for delay – Long-standing paternalistic relationship between union and employer constituting extenuating circumstances.

The TransAlta Employees Association (the “Union”) asked the Board to find that a number of employees of TransAlta Utilities Corporation and TransAlta Energy Corporation were part of its bargaining unit and covered by its collective agreement. It also asked the Board to find that the two companies were common employers. The companies argued that the Union’s applications were untimely and claimed the Union had abandoned its bargaining rights or under-bargained its certificate. The companies also argued they were not common employers and that the Union was circumventing the certification provisions in the Code and the Board should, accordingly, not grant the declaration sought.

Held, The Board found that the determination applications were not time-barred under section 15(1.1) and should not be dismissed for delay. Section 15(1.1) did not apply in this case because it deals with complaints and not applications for determination. Although the delay was significant, there were extenuating circumstances that arose because of the long-standing paternalistic relationship that existed between the Union and TransAlta Utilities. In addition, the delay did not unduly prejudice the companies. For these same reasons, the Board concluded that the Union had not under-bargained its certificate or abandoned its bargaining rights.

Although all the elements of the common employer section were met in this case, the Board refused to grant a common employer declaration. There was no labour relations purpose to be served by granting the declaration, the Union had delayed too long in bringing its application, and the application was an attempt to extend, rather than preserve,bargaining rights.

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18/10/01 - Canadian Health Care Guild and the Alberta Union of Provincial Employees and Carewest - Letter Decision

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17/10/01 - Genalta Recycling Inc. and Jamel Metals Inc. v. United Steel Workers of America, Local Union 5220, United Steel Workers of America, Local Union 6034, and AltaSteel Ltd. and Alberta Labour Relations Board - Court of Queen's Bench Decision

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12/10/01 - Babcock & Wilcox Industries Ltd. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 146 - Directives

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01/10/01 - The City of Lethbridge and Canadian Union of Public Employees, Local 70 - Letter Decision

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28/09/01 - Canadian Union of Public Employees, Local 838 and David Thompson Regional Health Authority - Letter Decision

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12/10/01 - Aluma Systems Canada Inc. and certain employees affected by United Brotherhood of Carpenters and Joiners of America, Local 1325 (CJA Local 1325) and International Association of Heat and Frost Insulators and Asbestos Workers Local 110;

and AC and S Contracting Ltd. and certain employees represented by International Association of Heat and Frost Insulators and Asbestos Workers Local 110;

and Pinestone Contracting Ltd. affecting certain employees represented by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 (PPF Local 488) and International Union of Operating Engineers, Local 955 and the Construction and General Workers' Union Local 92 (Labourers' Local 92);

and Lockerbie Industra Inc. affecting certain employees represented by the PPF, Local 488 and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 146;

and Alstom Canada Inc. affecting certain employees represented by PPF Local 488, BSOIW, Local 146, Labourers' Local 92, Bridge, Structural and Ornamental and Reinforcing Ironworkers Local 720 and Sheet Metal Workers' International Association, Local 8 - Directives

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10/10/01 - City of Lethbridge and Canadian Union of Public Employees, Local 70 - Letter Decision

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28/09/01 - Canadian Union of Public Employees, Local 838 and David Thompson Regional Health Authority - Letter Decision

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27/09/01 - Miscellaneous Employees, Teamsters Local Union 987 of Alberta and Versacold Group, Calgary, Great Plains Facility - Letter Decision

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26/09/01 - GenAlta Recycling Inc. and Jamel Metals Inc. v. United Steelworkers of America, Local Union 5220, Untied Steelworkers of America, Local Union 6034, and AltaSteel Ltd. and Alberta Labour Relations Board - Court of Queen's Bench Decision

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21/09/01 - United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 and Tom Bland and J.V. Driver Installations Ltd., Vawn Jeddry and Bill McLean - Letter Decision

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20/09/01 - Miscellaneous Employees, Teamsters Local Union 987 of Alberta and Serca Food Service Inc., Western Division - Formal Decision

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19/09/01 - United Steelworkers of America, Local Union No. 6034 and Sears Canada Inc. - Letter Decision

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18/09/01 - Casurt R. Morgan and Canadian Union of Public Employees, Local No. 37, Dan Donahue and Doug Wellis - Letter Decision

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17/09/01 - United Utility Workers’ Association of Canada v. TransAlta Utilities Corporation / TransAlta Energy Corporation and Independent Power Projects and Certain Employees of TransAlta Utilities and Utilicorp Canada Corp. - Letter Decision

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13/9/01 - International Union of Painters and Allied Trades, Local No. 177 and Certain employees of JR Coating Systems 2000 Inc. and International Union of Painters and Allied Trades, Local No. 177 - Letter Decision

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13/09/01 - J.V. Driver Installations Ltd. v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local Union No. 720 and Christian Labour Association of Canada - Letter Decision

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28/08/01 - Brown & Marshall Electric Ltd. and Local Union 424, International Brotherhood of Electrical Workers - Formal Decision

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21/08/01 - Carolina Fletcher and Jubilee Lodge Nursing Home Ltd. and Jubilee Lodge Nursing Home Employees Association - Letter Decision

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20/08/01 - United Steelworkers of America, Local Union No. 520 v. GenAlta Recycling Inc. - Letter Decision

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14/08/01 - Larry Kristman and Communications, Energy and Paperworkers Union of Canada, Local Union No. 501A and Petro-Canada - Letter Decision

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14/08/01 - United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325 and Select Systems Contractors Ltd. and Skyway Scaffoldcraft Ltd. and Construction Workers Union (CLAC) Local No. 63 - Formal Decision

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08/08/01 - Alliance of Canadian Cinema,Television and Radio Artists - ACTRA and White Iron Productions Inc. and B.C. Productions Inc. - Formal Decision

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03/08/01 - Stuart Olson Contracting Inc. and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325 - Formal Decision

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01/08/01 - J. V. Driver Installations Ltd. and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local Union No. 720, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325 and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local Union No. 720 and Christian Labour Association of Canada - Letter Decision

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27/07/01- Kevin Scott Wakeford and Edmonton Police Association, Robert Claney, Phil Vogan and The City of Edmonton Police Service - Letter Decision