Having Your Cake and Eating It Too

You may recall back in August I made an entry about a local union decertification case, in which an employee, Mr. Anger, applied to terminate the Union's bargaining rights, and the Union responded by rather cleverly taking the position that nobody was doing bargaining unit work on the day of the Application. For complicated labour relations reasons, in the construction industry, that's the test - only people doing bargaining unit work on the day of the Application are entitled to vote, so if nobody's doing bargaining unit work that day, nobody is entitled to vote, so the Application can't succeed.

The basis for the Union's position is that the employer is based in Tillsonburg, and the Union's certificate of bargaining rights only refers to the Counties of Oxford, Middlesex, Bruce, Elgin, Perth, and Huron. Not Norfolk. And all the work the employer was doing at the time was in Norfolk. So, even though the terms of the collective agreement were being applied, and union dues were being collected, technically that was all voluntary on the employer.

Now, had the employer decided unilaterally to, say, stop collecting Union dues in respect of Norfolk projects, the Union could likely have taken the position that it had been voluntarily recognized as having bargaining rights in Norfolk, and that the employer was estopped from taking a contrary position. So when the employer saw that the Union was taking the position that it didn't have bargaining rights in Norfolk, it took that opportunity to secure a 'with prejudice' admission from the Union that there were no bargaining rights in Norfolk.

On August 30th, therefore, with everyone agreeing that Norfolk wasn't part of the definition of the bargaining unit, the OLRB dismissed Mr. Anger's Application. So Mr. Anger wrote back to them and said something to the effect of, 'Wait, you're saying that all this work I've been doing in Norfolk wasn't unionized? Well, in that case, I want my union dues back retroactively.' That seems a natural position to take - there's a certain logic to it. The Union's saying "We never had bargaining rights in Norfolk." Presumably, if there were a grievance in respect of Norfolk work, that position would mean that they would be unable to represent the employee. Yes, the employer was voluntarily giving the employees wages, etc, in accordance with the collective agreement, but lot's of non-union employers pay wages in accordance with industry standard collective agreements.

So, in respect of work in Norfolk, what was the Union getting paid for? Absolutely understandable for Mr. Anger to ask for his money back.

The OLRB's response, however, was to say (and I'm paraphrasing): "We've already dealt with your Application. We dismissed it. It's over. If you want to bring a new Application, you can. But there's no Application you can bring for a refund of your dues." So the OLRB, for its part, is refusing to do anything on the basis of that letter.

A tricky and unusual fact pattern. It would be interesting to see what Mr. Anger does next.

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