International Union of Operating Engineers, Local 955 Applicant - v. -, 2011 ABQB 24

Court of Queen ’ s Bench of Alberta Citation: International Union of Operating Engineers, Local 955 v. North American Mining Inc., 2011 ABQB 24 Date: 20110117 Docket: 1003 11716 Registry: Edmonton Between: International Union of Operating Engineers, Local 955 Applicant - and - North American Mining Inc. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.J. Smith _______________________________________________________ [ 1 ] The Union applies for Judicial Review of Arbitrator Power's

interpretation of the Collective Agreement and finding of a non- suit. [ 2 ] The facts relevant to the non-suit were agreed. They are that an individual dispatched by the Union at the request of the Employer under the terms of the Collective Agreement was qualified and otherwise eligible for hire. The Employer rejected the individual. [ 3 ] The Union grieved on behalf of its member.

[ 4 ] The terms of the Collective Agreement which were interpreted by Arbitrator Power and which are relevant follow:

ARTICLE 3:00 -- MANAGEMENT RIGHTS 3.01 Subject to the terms of this Agreement , the Union recognizes the right of the Employer to the management of its operations and direction of the working forces including the right to hire and select employees , promote or discharge any employee for just cause, and further recognizes the right of the Employer to operate and manage its business in accordance with its commitments and responsibilities including methods, processes and means of production or handling. 3.02 The Employer shall have the right to name-hire IUOE Local 955 Members who have been employed by the Employer in the previous eighteen (18) months from the date of hire. 3.03 In the event that a project’s conditions place the Employer in an uncompetitive position with non-union bidders, or with the owners forces, this Agreement may be altered accordingly by mutual agreement of the Union and the Employer.

ARTICLE 4:00 -- UNION RIGHTS 4.01 When the Employer is in need of employees, qualified members in good standing from the Union will be employed . For the purposes of this clause, local residents shall be defined as residing in the regional municipality of Wood Buffalo, and shall be given preference of employment with the Employer. Employees shall be requested from the Union and the employees will be issued a referral slip in due course. If the Union is unable to supply qualified persons within twenty-four (24) hours, the Employer may hire wherever possible.

On Saturdays, Sundays and Holidays the Employer shall have the right to hire employees directly with preference to qualified members of the Union and the Job Steward shall be advised when they commence work. The Employer shall advise the Union on the first working day following, of anyone so employed on a Saturday, Sunday or Holiday. If any such employee is not an eligible member in good standing with the Union, the Union shall have the right to have them replaced forthwith with a qualified local residential member in good standing with the Union.

The right to employ people on Saturdays, Sundays and Holidays shall not be abused by the Employer. [Emphasis added] [ 5 ] It is agreed between counsel and I concur that the standard of review applicable to the non-suit is that of correctness, it being a question of law, and to Arbitrator Power's

interpretation of the Collective Agreement is that of reasonableness, it being a matter within the jurisdiction of Arbitrator Power. [ 6 ] The Union argues that the use of the word ‘will’ in the first line of

Article 4.01 was found to be mandatory by Arbitrator Power (para. 30) and as such cannot be found to allow for rejection of a qualified person for hire as was done here. The Union also submits that consideration of the evidence and its impact on the non-suit ought to have preceded Arbitrator Power's

interpretation of the Collective Agreement. [ 7 ] The Employer argued that Arbitrator Power had settled facts before him. The remaining task was to settle the law, which he did by reasonably interpreting the Collective Agreement. The non-suit flowed from his

interpretation of the Collective Agreement.

[8] It is my view that Arbitrator Power had settled facts before him. He was alive to the limitations upon him regarding the useof the evidence on the non-suit. The individual dispatched by the Union was eligible under

Article 4.01. The only question whichremained to be answered was whether the Employer had a right to reject the individual under the terms of the Collective Agreement.Therefore, Arbitrator Power was not required to apply the evidence to the test for a non-suit. In these circumstances that exercise wouldhave been redundant. [9] Therefore, that Arbitrator Powers's Award is devoted to his

interpretation of the Collective Agreement with a simpleconclusion at the end on the issue of the non-suit, is not misguided. [10] The Union takes issue with how Arbitrator Power framed one of the issues to be determined. It is "whether the Employer hasto hire: (

a) the members who are given referral slips, or (

b) from amongst the members who are given referral slips". [11] Arbitrator Power framed the issue initially as "the issue the grievance raises is...: Was the Employer entitled to refuse to hireMr. Gabbert?". [12] There was no evidence on whether Mr. Gabbert was dispatched with others or alone. The Union asks that the absence of thisevidence ought to make possible a finding that by rejecting Mr. Gabbert, the Employer has breached

Article 4.01 by not hiring him in theface of the mandatory language. In this way, the evidence, or lack of it, combined with the framing of the issue, ought to preclude a non-suit. [13] My view is that Arbitrator Power framed the issues to clarify steps to interpret the Collective Agreement. In other words, hedetermined the applicable law, as it is set out in the Collective Agreement, relating to the Employer’s right to select employees in theface of the Union Rights set out in

Article 4.01. The number of members dispatched on the occasion of Mr. Gabbert's dispatch isirrelevant to the legal question of the Employer's right to select, and therefore reject, dispatched members. [14] Therefore, I find no error in Arbitrator Power first accepting the agreed facts, next interpreting the Collective Agreement andlast making a simple acknowledgment that the non-suit flowed. [15] In my view, the real issue on this application is whether Arbitrator Power's

interpretation of the Collective Agreement inrelation to the Employer's right to select employees is reasonable. [16] The reasonableness standard has been set out in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] S.C.J. No. 9 atpara. 47: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [17] The Award discloses Arbitrator Power was aware that the Union's argument was partly that since

Article 3.01 gives theEmployer the right to select, but that right is "subject to the terms of this Agreement" that then the mandatory language of

Article 4.01required that dispatched members be hired. It also discloses that the Employer preferred the

interpretation that the mandatory nature ofArticle 4.01 required that qualified Union members be hired but that the Employer retained the right to select. [18] Arbitrator Power then grappled with the issue head on delving into relevant case law to assist him in determining the mostlikely

interpretation of the Collective Agreement. Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004SCC 23 , [2004] 1 S.C.R. 609 (Voice) and Re International Brotherhood of Electrical Workers, Local 424 and FlourConstruction Canada Ltd. and Tracer Canada Ltd. (Cronin Grievances) (2003), Alta. G.A.A. 2003-096 (Tracer).

[ 19 ] I agree with the Union that

Article 6.01 in the Voice Collective Agreement is not worded the same as

Article 4.01. However, it is my view that the effect of the two clauses is virtually identical. Therefore, I agree with Arbitrator Power's conclusion in this regard (para 44). [ 20 ] The comments of Arbitrator Smith in Tracer demonstrate the difference between the mechanism of hiring and the actual selection of employees. Unions seek control of the mechanism. Employers seek control over selection. Collective Agreements provide a range of possibilities as to how these rights intermesh. [ 21 ] Arbitrator Power directed his mind to this very issue. 30 In my view, the word “will” in art. 4:01 is mandatory.

It does not mean “may”. It means “must.” Respecting an argument the Employer raised as to the meaning of “qualified,” I am proceeding on the assumption that it merely means that the individual holds all the tickets, licences, etc., that the position for which the Employer seeks qualified tradesmen requires. 31 The issue before me is whether the Employer has to hire: (

a) the members who are given referral slips, or (

b) from amongst the members who are given referral ships. Which

interpretation is preferable, given the wording of our agreement? 32 Art. 3:01 states that, “Subject to the terms of this Agreement, the Union recognizes the right of the Employer to the management of its operations and direction of the working forces including the right to hire and select employees...” 33 There are, however, constraints upon that right to select: (

a) if the Employer needs employees, the agreement obliges it to employ qualified members in good standing of Local 955; (

b) employees shall be requested from the Union; and (

c) preference is to be given to local residents. 34 There are exceptions to the constraints: (

a) art. 3:02 says the Employer has the right to name-hire ex-employees who were employed by the Company within the past 18 months; (

b) the latter portion of art. 4:01 allows the Employer to hire directly on weekends and holidays, with preference to qualified members of the Union, and giving the Union the right to replace them subsequently if they are not eligible members in good standing with the Union; and (

c) if the Union cannot supply qualified persons within 24 hours, the Employer can hire “wherever possible”. 35 To my mind, the implication to be taken from the foregoing is that although art. 3:01 gives the Employer the right to select, it cannot name hire, or hire other than through the Union except in situations to which art. 3:02 or the latter half of art. 4:01 apply. 36 Notwithstanding the limitations upon the Employer’s right to select just outlined, I see no constraint, explicit or implicit, on the Employer’s right to reject Union members referred to it. Rejecting is not name-hiring.

Rejecting is not failing to request employees from the Union. Rejecting is not failing to give preference to local residents. Rejecting is not failing to hire Union members. Rejecting is the exercise of the Employer’s right to choose not to accept a dispatched member of the Union as an employee. 37 I think, given that the collective agreement specifically states that the Employer has the right to hire and select employees (subject to the other terms of the collective agreement), the preferable

interpretation is that the Employer must hire from the Union, and can’t hire persons other than those referred to it by the Union unless the exceptions I’ve noted apply, but that it is not obliged to accept somebody just because he or she is dispatched, and I so find. . . .

45 Having said that the Employer has the right to select, the last issue relating to the non-suit is whether the Employer has anobligation to be reasonable or at least not arbitrary in exercising its right to select. 46 Arbitrator Smith in Voice said that when viewing the relevant provisions of the collective agreement before her as a whole, theemployer had that obligation.

The Supreme Court of Canada said that there was no need for it to consider her finding in that regard. 47 However, in Fluor, she held that the reasonableness standard did not apply, saying at p. 21, that “since there is no right to beselected by the Employer, there is no decision flowing from the Employer which infringes any right of the Employee.” To support thatconclusion, she cited our Court of Appeal’s decision in Alberta v. Alberta Union of Provincial Employees et al. (1995), 1995 ABCA 144, 169 A.R. 18 (alta.

C.A.); from which I quoted earlier. 48 It is my conclusion that the law applicable to the facts before me, given my

interpretation of arts. 3:01 and 4:01, make it clear thatthis Employer does not have to act reasonably or non-arbitrarily in exercising its discretion to select. Therefore, it does not matterwhether I or anyone else considers the basis for the Employer’s rejection of Mr. Gabbert to be reasonable or not, and I need not nor do Iexpress any opinion in that regard.

There was no suggestion human rights legislation comes into play, and in the absence ofconsiderations of that nature, this Employer has the right to reject qualified members of Local 955 referred to it by the Union. [22] I am of the view that Arbitrator Power's reasons are reasonable, within the range of acceptable and rational solutions,transparently justifiable and intelligible and readily defensible. [23] The application is dismissed. [24] Costs may be spoken to if counsel wish. Heard on the 13th day of January, 2011. Dated at the City of Edmonton, Alberta this 17th day of January, 2011. L.J. Smith J.C.Q.B.A.

Appearances: Murray D. McGown, Q.C. McGown Johnson

for the Applicant Hugh J.D. McPhail, Q.C. McLennan Ross LLP for the Respondent