Thursday, August 12, 2010

Between a rock and a Concrete place

Beneff Concrete Ltd. is a Tillsonburg-based concrete company, with a labour force which is unionized through the Labourers International Union of North America (LIUNA) Local 1059.

Construction industry unions have their own statutory framework, and it's pretty complicated.

Most of us understand a union in the "factory floor" sense, where the factory staff unionize, the union steps in and gets to negotiate on behalf of all non-managerial employees in the factory. These workers get job stability, etc.

Construction Industry Unions

In construction, though, there is no such thing as job stability. Construction workforces are, by their very nature, unstable, and workers get picked up on a day-by-day or project-by-project basis. So in the construction industry, the unionization goes along different lines, and with different dimensions. Essentially, a union will become the certified bargaining agent of all employees of an employer doing a certain type of work (i.e. concrete formwork, electrical, carpentry, masonry, general labour, etc.) in certain types of projects (residential or ICI - Industrial-Commercial-Institutional) in a certain geographical region.

The geographical region is frequently defined by "Board Areas", set by the Ontario Labour Relations Board. Here's a Provincial map of the Board Areas.

It gets more complicated, too, because you get Province-wide collective agreements affecting multiple employers, etc., but that gets a little bit beyond the scope of what I'm talking about here.

I encourage you to look at that map, and specifically at Areas 3 and 4. Area 3 is pretty large: Bruce, Huron, Perth, Middlesex, Oxford, and Elgin counties. Area 4, on the other hand, is just Norfolk and Brant. (The map still labels "Haldimand-Norfolk", but Haldimand and Niagara are nonetheless Area 5.)

Now note where Tillsonburg is: In Oxford, but barely. It's in Area 3, but not far from Area 4.

Follow me so far?

Now, when LIUNA became the certified bargaining unit for Beneff, it became the certified bargaining agent for all of Beneff's "construction employees engaged in concrete forming and finishing construction on all construction projects within the counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non‑working foremen, office, clerical and engineering staff."

In other words, Board Area 3.

Trouble is that Beneff does a great deal of work in Norfolk. Technically, the certificate doesn't affect work being done in Norfolk. So Norfolk projects shouldn't be considered union work, the work and wages shouldn't be bound to the collective agreement, and no union dues should be remitted.

Actually, no, the trouble is that it appears that Beneff did so anyways. Maintained the applicability of the collective agreement, paid union dues, etc., relating to Norfolk projects.

No problem, right? Just stop. LIUNA's not entitled to it, right? Well, that might not work. You see, the way that labour law works in Ontario, when you voluntarily give a union something, it can be very difficult to take it back afterwards. For example, let's say you have a collective agreement requiring union representation for disciplinary meetings, but not investigative meetings. When you're holding an investigative meeting, the union rep will insist that union representation is required. The manager, who may or may not be aware of that specific aspect of the collective agreement off the top of his head, probably doesn't know the definition of "disciplinary meeting", and certainly doesn't want to be spending half his time trying to sort through the collective agreement every time he deals with the Union, will often just decide it isn't worth the fight and let the union rep in.

After that's happened a few times, it has become a "past practice", and the employer has a hard time reversing it. So even though the collective agreement doesn't give the union the right, they've built the right through the employer practice.

This is a little different...but in a context like this, it is open for the union to claim that they've been voluntarily recognized as having bargaining rights in Norfolk.

Anger v. LIUNA

This case is interesting.

Mr. Anger has brought an OLRB Application to terminate LIUNA's bargaining rights. As it happens, on the day that he brought the Application, the only projects where work was happening were in Port Dover and LaSalette. Because of the fluid nature of the industry, only people working on the day of the Application are considered for the purpose of a vote for certification or decertification. It's an arbitrary rule, but one the Board sticks to firmly, thinking it better than any of the alternatives. So...nobody was working for Beneff in Board Area 3 on that day.

The Union therefore quite cleverly answers, "Hey, look at the definition of our bargaining unit. There was nobody in the bargaining unit that day, and therefore the Application should be dismissed." It also argues that Mr. Anger was incited to bring the Application by the employer - if there's even a whiff of a scent of employer influence on a decertification Application, the Application is toast. (Makes it very difficult for decertification Applications to work. The OLRB has a very complicated set of rules and a complex process under an extremely sophisticated legal regime. Lay people find the process hard to stomach, and an individual union member will find legal fees hard to afford. And the employer can't help, and the union won't.

Of course, once the decertification Application is brought, the employer is entitled to intervene and make its own submissions. So Beneff's counsel - not identified by any of the decisions, but clearly a skilled labour lawyer - says, "Okay, that's fine, if the Union takes the position that the bargaining unit doesn't include Norfolk projects, then clearly they're right, the Application should be dismissed. But let's be real clear on this: If the Union takes that position, it will be stuck with it, and won't be able to fight us when we accordingly take the position that the collective agreement doesn' apply to Norfolk projects, we don't have to use union members for such projects, we don't have to pay them in accordance with the collective agreement if we do, and we don't have to remit union dues to the union for them."

For greater clarity, the question has been raised as to whether or not any of LIUNA's affiliates would claim to have bargaining rights in Norfolk. The Union is fighting this one tooth and nail, but without much success so far.

So the Union is faced with a tricky decision: Either they take the position that Norfolk is part of the bargaining unit, in which case the decertification Application can proceed, and they risk losing Beneff entirely, or they can cut their losses, say "Okay, fine, Norfolk projects aren't subject to the collective agreement", and accordingly lose Beneff's Norfolk projects for certain.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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