Construction Workers Union (CLAC), Local No. 63 v. Firestone Energy Corporation, 2012 ABQB 540

Court of Queen ’ s Bench of Alberta Citation: Construction Workers Union (CLAC), Local No. 63 v.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488, 2012 ABQB 540 Date: 20120831 Docket: 0901 08385 Registry: Calgary Between: Construction Workers Union (CLAC), Local No. 63 and Firestone Energy Corporation Applicants - 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 Brotherhood of Electrical Workers, Local Union 424 and Suncor Energy Inc.

And First North Catering and Rentokil Initial Canada Limited, c.o.b. as Initial Security and The Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ I. Introduction [ 1 ] The main issue in this case is the question of whether unionized employees can waive their right to an “open period”, that is,

a statutorily defined period of time when employees can elect to change or remove their bargaining agent. This matter arises out of the Alberta Labour Relation Board’s (the “Board”)

interpretation of section 37(2) of Alberta’s Labour Relations Code , RSA 2000, c L-1.

Section 37 mandates a two month open period during which competing unions can seek certification to represent an employee bargaining unit in collective agreement negotiations with an employer.

Section 52 additionally establishes an open period for applications for revocations of bargaining rights. These sections do not explicitly stipulate whether the open periods can or cannot be waived.

Therefore, the question of whether and how an open period can be waived requires the Board to interpret legislative intent. [ 2 ] This judicial review also considers the Board’s findings of unfair labour practices. [ 3 ] The parties in this case include the employer, Firestone Energy (“Firestone”), the incumbent union, the Construction Workers Union, Local No. 63 (“CLAC”) (together “the applicants”), and two competing building trade unions, the International Brotherhood of Electrical Workers, Local Union 424 (“IBEW”) and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 (“UA”) (together “the respondents”). [ 4 ] The applicants seek judicial review of a decision by a Panel of the Alberta Labour Relations Board (the “Panel”), which determined that an open period is a statutory right that cannot be waived: Firestone Energy Corp (Re) , [2009] ALRBD No 22 [ Re Firestone ] (the “original decision”).

The applicant Firestone also asks this court to review the Panel’s decision that it committed certain unfair labour practices through the process of renegotiating its collective agreement with the incumbent union CLAC. The applicants additionally seek a review of the reconsideration decision which upheld the original decision: Firestone Energy Corp (Re) , [2011] ALRBD No 4 [ Re Firestone Reconsideration ] (the “reconsideration decision”). Because the results of these two decisions are in effect the same, my findings with regard to the original decision similarly apply to the reconsideration decision. II.

Background [ 5 ] The Panel provides a detailed overview of the evidence and facts of this case in its decision: Re Firestone at paras 25-129. I summarize the most pertinent of these facts below. [ 6 ] This dispute stems from the respondents’ spring 2005 organizing efforts at Suncor Energy Inc.’s Millennium Vacuum Unit (“MVU”) construction project north of Fort McMurray. The project was one of the largest, most complex construction projects taking place in the oil sands district at the time. It also involved a significant break from traditional employment methods for Alberta oil sands projects.

Historically, large industrial oil sands installations have been constructed exclusively by contractors who have bargaining relationships with the building trades unions. Building trades unions (“BTUs”) are unions that represent employees from a specific trade, such as the respondent IBEW, which represents workers in the electrical industry and the respondent UA, which represents workers in the plumbing and pipefitting industry.

These are in contrast to multi-trade unions, such as the applicant CLAC, which do not restrict themselves to representing one or more particular crafts among the building trades, but instead can represent an entire construction project workforce. [ 7 ] Suncor tendered various parts its MVU construction project on a "managed open bid" basis. In other words, it did not restrict the bidding to contractors that use unionized trades employees. [ 8 ] This presented a major opportunity for non-building trades contractors seeking to gain a foothold in a large oil sands construction project.

The successful bidder for this contract was Flint Energy Services Ltd. (“Flint”), a non-union contractor that has never had a bargaining relationship with any of the building trades unions. Some of its related companies, however, have bargaining relationships with CLAC. [ 9 ] As the first non-building trades contractor to win a major construction project on the Suncor site, Flint was also the first contractor to face issues of integrating a non-building trades workforce into a site dominated by members of the building trades unions.

Suncor and Flint were both concerned about bringing a completely non-union workforce onto the site due to the potential for "labour strife" and "organizing": Re Firestone at para 36. Therefore, Flint decided early on to try to perform this work through its associated company Firestone, in light of Firestone’s existing bargaining relationship with CLAC. The Panel concluded that Firestone was essentially acting as an alter ego of Flint, and could be engaged by Flint whenever Flint needed unionized workers, as in the present case: Re Firestone at paras 32-33.

[ 10 ] Firestone therefore became responsible for human resource management of the workforce for the MVU project. However, Firestone faced some initial difficulties. CLAC failed to become certified as a bargaining agent for Firestone’s MVU electricians. Flint therefore changed its subcontract to HJB Fabricators Ltd (“HJB”), another related company with a pre-existing bargaining relationship with CLAC. Flint moved its current employees onto the HJB payroll until CLAC succeeded in gaining the bargaining rights for Firestone’s employees.

After a successful certification vote, CLAC was established as the bargaining unit for the Firestone employees and the employees under the HJB contact were asked to fill out new employment applications in order to transfer back to Firestone’s payroll. [ 11 ] Firestone’s MVU work thus started in September 2003 with a CLAC-represented workforce. It was expected that the project would be completed by December 2004, before the expiry of the initial collective agreement. However, by December 2004, it was clear that there were several months of work remaining.

Pursuant to section 37(2) of the Code , the open period, during which rival unions such as IBEW and UA could begin to actively advertise amongst the Firestone employees, was set to begin on February 1, 2005. Collective Agreement Renewal Negotiations [ 12 ] In early December, 2004, before the open period was set to begin, Firestone and CLAC initiated negotiation discussions for a new CA. The parties knew that this would be a serious negotiation.

One witness from CLAC told the panel that “one of the things that made these negotiations a serious undertaking was the potential legal consequences of closing an open period”: Re Firestone at para 57. Firestone had also made it known to CLAC that if the negotations failed, Firestone could lose the Flint contract. [ 13 ] On December 15, 2005, CLAC posted a notice to the Firestone workforce that it had begun the process of negotiating a new agreement and was seeking suggestions for proposals from employees before December 20.

This overlapped with the Christmas shutdown of the worksite scheduled for December 17 to January 3. [ 14 ] On January 10, 2005, CLAC and Firestone met to negotiate a renewal agreement. The details of this negotiation are outlined in Re Firestone at paras 64-65. On January 12, the parties ended their negotiation with a tentative agreement in hand. Ratification Vote [ 15 ] CLAC then turned its attention to securing employee ratification of the renewal CA. However, January 13 was the last workday before a turnaround when the entire shift was due for four days off until Tuesday, January 18.

From the time when the parties began planning the renewal negotiations, until the dispersal of the workforce at the end of the work day on January 13, there was no disclosure to employees that they might be asked to give up their upcoming open period. The Panel noted that members of the bargaining committee and CLAC stewards were under instructions to speak to inquisitive employees only in general terms about the progress of negotiations.

None of the notices distributed to employees attempted to explain what the open period was, or that it might be closed. [ 16 ] The ratification meeting was announced to the employees during a morning assembly on January 19. The Panel found that numerous employees either did not understand the purpose of the meeting or did not even hear the announcement. The Panel reviews the details of the meeting and outlines numerous balloting issues that occurred during the ratification vote in Re Firestone at paras 79-106.

At the meeting, CLAC explained to the employees what the open period was and that the vote would be closing the upcoming open period. The ballots for the vote also stated that employees were voting to replace the old agreement with the new one and “in so doing give up your "open period" to replace CLAC as your bargaining agent”: see Re Firestone at para 68 [Panel’s emphasis removed]. The employees were then asked to vote. [ 17 ] Every trade except one voted in favour of the new collective agreement.

The outstanding trade subsequently ratified the collective agreement in second vote held at their request. [ 18 ] In March 2005, in response to more overt building trade organizing efforts, CLAC took the position that a new collective agreement was in place, that there was no open period, and any certification application by UA or IBEW would therefore be untimely. [ 19 ] UA and IBEW subsequently initiated their complaints against Firestone and CLAC. While their submissions to the Panel and

to this Court differ somewhat in scope and emphasis, combined they asked the Panel to reconsider its prior jurisprudence on the question of whether the statutory open period can be waived by employees, to find that Firestone committed unfair labour practices, and to find that even if employees could waive their open period, they did not do so in this case. III. The Panel ’s Decision [ 20 ] The Panel made three determinations, all in the respondents’ favour.

First and foremost, the Panel overruled its earlier jurisprudence and held that the statutory right to an open period is a public order provision that cannot be waived through early ratification of a collective agreement. In the alternative, the Panel found that Firestone committed unfair labour practices, resulting in the declaratory remedy that the open period had not been waived.

In the final alternative, the Panel held that on the facts of this case, the Firestone employees had not given informed waiver of their right to an open period, and therefore the new collective agreement did not close that open period: Re Firestone at paras 314-322. [ 21 ] The 121-page decision incorporates the evidence submitted throughout the hearing, which occupied “ten days spread over seven months, with 12 witnesses and over 70 exhibits”: Re Firestone at para 9.

This decision was upheld by the Board on reconsideration: see Re Firestone Reconsideration . [ 22 ] In order to explain its decision to overrule its earlier jurisprudence, the Panel first reviewed the five Alberta cases dealing with the issue of waiver of open periods.

A brief discussion of these cases is helpful here as well, since these cases form a central part of the Panel’s decision-making process. [ 23 ] The earliest case dealing with early closure of open periods involved a series of five decisions: IWA, Local 1-206 v Carpenters, Local 1525 and Norfab Homes Ltd (1976), Alta LRB No 76-046 [ Norfab #1 ], quashed (1977) 2 AR 151 (Steer, J) [ Norfab #2 ] ; reheard (1977), 77 CLLC 16,079 (Alta IRB) [ Norfab #3 ]; quashed (Alta SC 1977, Brennan J, full citation unavailable) [ Norfab #4 ]; restored on appeal [1978] AJ No 453 , Doc 11175 (Alta CA) [ Norfab #5 ]. [ 24 ] In the Norfab pentalogy, a union applied for certification to represent a unit of employees already represented by another union.

The incumbent union and employer challenged the timeliness of the certification, arguing that it was barred by the ratification of a new collective agreement that took place during an open period. The raiding union argued that the parties could not circumvent the open period by ratifying a new collective agreement before the expiry of the old agreement. With instructions from the Court (see Norfab #2 ), the Board concluded on the facts of that case that the original agreement was still in force until its normal expiry.

Thus the new collective agreement had not closed the open period, and the Board could grant certification to the new union: Norfab #3 at 419. [ 25 ] The next case to discuss this issue was the Board’s unappealed decision in AUPE, Local 99 v Rivercrest Lodge Nursing Home Ltd , [1992] Alta LRBR 486 [ Rivercrest Lodge ]. This case again involved the timeliness of a competing union’s application for certification to represent an bargaining unit.

The Board held that, while it would be contrary to public policy and unenforceable for a collective agreement to automatically prevent an open period from arising, it was possible for employees to voluntarily relinquish their rights to an open period through early ratification of a new collective agreement. [ 26 ] The Board continued this line of reasoning in its decision in Canadian Health Care Guild v Capital Care Group Inc et al, [1998] Alta LRBR 316 [ Capital Care ].

The Board conducted a detailed review of the Canadian legislative landscape, sought to interpret the provisions of the Code , and sought to develop what it called a “principled approach to early termination” of collective agreements in Alberta. The Board developed the general rule that an employer and incumbent union cannot by themselves close an open period through early negotiation of a collective agreement, but employees who clearly and unambiguously accept a new collective agreement can waive their right to an open period: Capital Care at paras 46-48.

The right must be waived by a direct vote, and must be waived by the employees who will be affected by the loss of the open period. In other words, it cannot be waived in advance by what might be a different group of employees: Capital Care at paras 48-49. [ 27 ] The Board’s first opportunity to apply the Capital Care approach arose in AUPE v CUPE, Local 875 and St. Joseph ’s Auxiliary Hospital, [2002] Alta LRBR 200, upheld on reconsideration [2002] Alta LRBR LD-075.

Based on the Capital Care approach, the Board found that a purported replacement collective agreement, negotiated five months before the end of the previous agreement term, had closed the open period. Therefore a competing union’s attempt at a raid was untimely. On judicial review, however, this Court

found that such an application of the Capital Care analysis was unreasonable: AUPE v CUPE, Local 875 and St. Joseph ’s Auxiliary Hospital, 2003 ABQB 999 , 345 AR 7 [ St. Joseph ’s ]. Marceau J concluded that the Board erred by equating the ratification of a new collective agreement with waiver of the open period, without first considering whether or not that waiver had been informed: St. Joseph ’s at para 44.

The reconsideration decision was quashed and the Board was directed to reconsider the original decision. [ 28 ] The most recent contemplation of this issue by the Board arose in Carpenters, Local 1325 v JV Driver Installations Ltd , [2003] Alta LRBR 282, decided while the judicial review decision in St. Joseph ’s was pending. The Board in this case was faced with a collective agreement that pre-dated the hiring of any employees.

The incumbent union argued that the new agreement was ratified by the employees either through their acknowledgment of the agreement before commencing their employment, by their application for union membership or by their dispatch to the work site. The Board rejected the first two possibilities on the basis that these acts did not amount to a free choice by the employees to accept or reject the agreement.

However, the Board accepted the final argument that the agreement was ratified when CLAC dispatched employees to the site. [ 29 ] This final determination by the Board was quashed on judicial review: Carpenters, Local 1325 v JV Driver Installations Ltd , 2004 ABQB 915 , 378 AR 1 [ JV Driver ]. Bielby J (as she then was) found that the Board had committed a patently unreasonable error in deciding that the agreement could be ratified by dispatch.

The Board failed to consider such factors as the particular vulnerability of construction industry employees, that there is nothing in the Code that exempts construction employees from their right to an open period, the Board’s own decision in Capital Care , and the comparatively minor consequences of finding that no waiver had occurred (namely, the relatively minor consequence to the employer if the open period remained open, versus the significance of the employees’ loss of their right to change their bargaining agent): JV Driver at para 71 .

Bielby J noted that it is unreasonable to find that an open period can be shortened or eliminated without the informed approval of the affected employees: JV Driver at paras 1-5 . [ 30 ] The next case in Alberta to raise this issue is the present case. [ 31 ] Before it could reconsider the Capital Care approach, the Panel had to determine what grounds it required in order to revisit its prior jurisprudence. In a 1996 decision, the Board defined its standard for review of its own prior jurisprudence: IBEW Local Union 242 v TNL Industrial Contractors , [1996] Alta LRBR 194 [ TNL ].

The Board in TNL found that, based on the need for consistency and predictability in the Board’s decisions, it should only revisit a prior decision if that decision was “manifestly wrong.” [ 32 ] While acknowledging the importance of maintaining consistency in its decisions, the Panel determined that the “manifestly wrong” threshold was too high, and that such a high threshold was unnecessary to ensure the consistency of Board decisions. The Panel found that the “manifestly wrong” standard has not been well defined in the past, and risks making the Board too inflexible to adapt to changing labour contexts.

The Panel looked to other jurisdictions for guidance and determined that the Board may appropriately depart from a line of its own cases where there are “strong reasons” to do so.

Strong reasons include: [A] serious error in understanding the law or a serious misapprehension of sound labour relations policy; a failure to consider important authorities available at the time of the earlier decision; the development of persuasive contrary authority since the earlier decision; changed circumstances in the relevant industry; and the fact that experience has revealed unintended consequences of the previous line of authority: Re Firestone at para 200. [ 33 ] The Panel concluded that it had strong reasons to revisit Capital Care because the Board made several errors in deciding that case.

First, it misapprehended the Court’s reasoning in the Norfab pentalogy. After a lengthy assessment of the Norfab #2 decision, the Panel concluded that the decision was more about the adequacy of the Board’s original reasons in Norfab #1 , and not about whether an open period can be closed.

Norfab #2 does not, therefore, dictate the conclusion reached in Capital Care that open periods can be closed. [ 34 ] Additionally, the Panel considered it to be a serious error that the Capital Care analysis was framed without any consideration for its fitness outside the long-term care industry involved in that case. [ 35 ] The Panel identified at least four features of the construction industry that make it possible for parties to use the Capital Care approach to undermine the very rights that the Code is meant to protect, such as the right of employees to choose their bargaining agent and freedom of association.

Namely, the transitory nature of employment relationships, the ease with which trade unions can acquire bargaining rights from a very small group of employees, the preponderance of families of related corporations, and the prevalence and

ease of subcontracting and moving assets from company to related company. Each of these factors serve to make it easier for an employer like Flint or Firestone to encourage a preferred trade union like CLAC to maintain its certification to represent employees and prevent a competing union from ever gaining certification to represent a bargaining unit.

With concern that this cycle could continue indefinitely, effectively raid-proofing the preferred union, the Panel concluded that the facts of the present case only serve to highlight the short comings of the Capital Care analysis. [ 36 ] Additionally, Capital Care promotes, rather than prevents, uncertainty. The ability to close an open period initially appeared simple, but in the Board’s experience, had generated numerous unresolved questions, such as: how will the doctrine of individual waiver be translated to a group? What is the effect of a misrepresentation to employees?

Can waiver be defeated when employees did not understand the nature of an open period? The Panel was thus concerned that a failure to reconsider Capital Care would result in further litigation to resolve these and many other new issues. [ 37 ] Finally, the Panel considered a persuasive authority not before the Board in its decision in Capital Care.

In Syndicat des Employés de L ’Imprimerie Veilleux Ltée v Syndicat International des Art Graphiques, Local 509 , (1983) 83 CLLC 14,027 (Que Lab Ct), the Quebec Labour Court held that provisions of the Quebec Labour Code that create open periods are public order provisions, which an employer and incumbent union cannot contract out of. The Panel found that this case only further supported its conclusion that it had “strong reasons” to revisit its decision in Capital Care . [ 38 ] The Panel therefore provides what it considers the appropriate

interpretation of the Code . The Capital Care

interpretation of the Code was based on the implicit view that the only rights protected by the Code are those of employees, employers and incumbent unions. However, the Panel concludes that the rights of other trade unions to apply for certification is not merely derivative of employee rights, but rather these unions have rights of their own under the Code to advertise and establish contact with employees in a potential target bargaining unit. The freedom to advertise and communicate with employees is protected by the Code : IWA-Canada, Local 1-207 et al v Sundance Forest Industries Ltd , [1992] Alta LRBR 745.

Employees are allowed to participate in these activities pursuant to s. 21(1) of the Code . The Panel thus determined that “[t]he Code permits trade unions to do these things because a measure of competition is vital to real employee choice and freedom of association just as advertising is vital to real consumer choice and freedom of commerce”: Re Firestone at para 240. [ 39 ] Furthermore, the Panel concludes that “[i]t is in the public’s interest, not just the prospective bargaining agent’s interest, that unions be allowed to compete for employee allegiance”: Re Firestone at para 241.

Competition promotes conscientious and effective representation by incumbent unions. Open periods balance the desirability of competition among bargaining agents with the desirability of industrial stability by limiting the times when other unions can raid incumbents. However, the Panel concluded that this can only work when competitive organizing occurs at certain publically known periods.

Allowing changes or terminations to these open periods ignores the public interest in stable, certain and known periods of competition, and the benefits that competition for bargaining rights can promote. [ 40 ] Thus, the Panel determined that the better interpretive view of

section 37 is that “the open periods established by

section 37 of the Code are a matter of public policy beyond the ability of the affected parties to contract out of”: Re Firestone at para 238. [ 41 ] The final result of this analysis is that employers and incumbents may voluntarily enter early negotiations and can renew their collective agreement, but for the purposes of a competing certification application or revocation application, the open period under the old agreement remains in effect. Therefore, early re-negotiation is permissible but can only extend the agreement beyond original end date or replace it after the open period passes.

The new agreement cannot terminate or replace the old one such that certification or revocation are rendered untimely. [ 42 ] While this decision would resolve this case, the Panel went on to make further alternative findings, citing its awareness of the reality that its first decision may be controversial. In addressing the respondents unfair labour practices complaints, the Panel relied on its numerous findings of fact, drawn from the extensive evidence heard throughout the course of the hearing: Re Firestone at paras 251- 266.

In particular, the Panel found that Firestone interfered with the representation of its employees by both IBEW and UA by seeking, initiating, negotiating and executing a new collective agreement with the intent and effect of raid proofing its workforce, in contravention of s. 148(1)(a)(ii) of the Code .

Firestone’s motive to prevent BTU organizing was central to this decision. [ 43 ] The Panel also concluded that the logical corollary of this finding was that Firestone provided prohibited support to CLAC by offering it the opportunity to extend its bargaining rights for another two years without facing an organizing drive. This amounted to a breach of s. 148(1)(

b) of the Code, which requires that employers remain neutral with respect to the selection of a bargaining agent.

[ 44 ] The Panel then made a third and final alternative finding. Despite the clear wording on the ballot for the vote, the Panel found that the many issues with the administration of the vote, and, in particular, the overall lack of notice given to the employees, meant that the employees could not give informed waiver. Even if employees could waive their right to an open period, the Firestone employees did not do so in this case.

The January 19 ratification vote therefore did not close the open period. [ 45 ] The remedy for all three of these breaches in this decision was a declaration that the open period had not been closed. [ 46 ] The Panel could have decided this case on the simpler questions of waiver or unfair labour practices. Instead the Panel sought to clarify its prior jurisprudence and decided this issue with respect to its

interpretation of the Code . The respondent IBEW submits that this judicial review should be summarily dismissed because regardless of how I decide the issues raised on this appeal, the final outcome regarding the collective agreement ratification will not change. The parties did not appeal the Panel’s final determination that there was no informed waiver. However, counsel for CLAC submits that a decision is in the parties’ and industry’s interests - this issue will arise again if the matter is left unconsidered, and therefore it is better for all interested parties that the Court address it here. The Panel made its determination on the basis of its

interpretation of the Code and for this reason I will consider the submissions of the parties on that issue. III. Issues [ 47 ] The issues raised in this judicial review are therefore as follows: 1. What is the appropriate standard of review of the Panel’s decisions? 2. Was the Panel’s decision that the Code prohibits the early closing of an open period reasonable? 3. Was the Panel’s decision that Firestone committed unfair labour practices reasonable? IV.

Analysis Issue 1 - The Appropriate Standard of Review [ 48 ] The parties are in agreement that the appropriate standard of review for the Board’s finding of unfair labour practices is reasonableness. This determination required the Board to make findings of fact based on the evidence adduced, draw inferences of anti- union animus and credibility, and apply its home statute to those findings. I agree with the parties that such determinations are entitled to deference and that the appropriate standard of review is therefore reasonableness: see e.g.

Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 at paras 53-54 [ Dunsmuir ] ; United Food and Commercial Workers Union, Local 401 v Westfair Foods Ltd , 2010 ABCA 120 , 477 AR 315 at paras 43-46 . [ 49 ] For the reasons that follow, I also find that reasonableness is the appropriate standard for reviewing the decision that the open period mandated by Code section 37(2) cannot be waived. The Code does not specify whether an open period can be waived. The Board must therefore determine whether this is because the legislature intended waiver to be possible, or not, within the context of the Code.

This requires the Panel to interpret its home statute. [ 50 ] In order to determine the appropriate standard of review, the Supreme Court of Canada set out a two-step process of judicial review in Dunsmuir at paragraph 62 . First, a Court must ascertain whether the jurisprudence has already determined the degree of deference to be afforded with regard to the particular type of question addressed by the tribunal.

If this inquiry proves unfruitful, then the Court must consider the context of the decision and factors that make it possible to identify the proper standard of review, including the presence or absence of a privative clause, the purpose of the tribunal as determined by

interpretation of enabling legislation, the nature of the question at issue, and the expertise of the tribunal: Dunsmuir at para 64 .

[51] The jurisprudence has already determined that the reasonableness standard is appropriate when reviewing a labour board’sinterpretation of its enabling statute. [52] The SCC has on numerous occasions held that matters involving the

interpretation and application of a tribunal’s enablingstatute will generally attract deference and should be reviewed on a standard of reasonableness: see e.g. Dunsmuir at para 54; Alberta(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 [ATA]; Smith v AlliancePipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160. [53] More than three decades ago, Dickson J (as he then was) emphasized that courts should give deference to a specializedadministrative tribunal with particular expertise interpreting its own enabling legislation. He cautioned that, with appropriate regard tothe legal and administrative context, a tribunal’s

interpretation should generally be allowed to stand unless it is “so patently unreasonablethat its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review”:Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp, (SCC), [1979] 2 SCR 227 at 237[CUPE], cited in Dunsmuir at para 35. [54] Dickson CJ’s pronouncement from CUPE is echoed by Rothstein J in ATA at para 34, where he states that: ...it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, theinterpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particularfamiliarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review. [55] Furthermore, the Supreme Court has specifically held that labour relations boards exemplify a highly specialized type ofadministrative tribunal and will generally be entitled to the highest level of judicial deference: ILWU Local 514 v Prince Rupert GrainLtd, (SCC), [1996] 2 SCR 432 at para 24. [56] Moreover, the Alberta Court of Appeal has concluded that the reasonableness standard applies in circumstances where theBoard interprets and applies the provisions of the Code: see e.g. the post-Dunsmuir decisions International Association of Machinistsand Aerospace Workers, Local Lodge No 99 v Finning International Inc, 2008 ABCA 400, 446 AR 20 at para 12; Alberta Union ofProvincial Employees v United Nurses of Alberta, Local 168, 2009 ABCA 33, 448 AR 101 at para 22; Driver Iron Inc v InternationalAssociation of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No 720, 2011 ABCA 55, 502 AR 229. [57] For example, in Alberta Union of Provincial Employees v Health Sciences Association of Alberta, 2009 ABCA 266, 457 AR387 at paras 15-16 [Health Sciences], the Court of Appeal enunciated that, “[p]rior to Dunsmuir, this Court and others consistently heldthat Board decisions interpreting and applying provisions of the Alberta Labour Relations Code are entitled to the highest level ofdeference” and should continue to attract the highest level now available after Dunsmuir, namely the reasonableness standard.

Applicants arguments for reduced deference [58] It is clear that reasonableness will generally be the appropriate standard for review of a Labour Board’s

interpretation of itsown statute. However, the applicants argue that a less deferent standard of review might apply here in light of the specific context of thePanel’s decision. [59] Both applicants submit that the Board was not only interpreting its own statute, but also that it had to follow the principle ofstare decisis. The correctness standard will apply if an issue is one of general law that is of central importance to the legal system as awhole and outside the tribunal’s specialized area of expertise: Dunsmuir at para 60. The proper application of the stare decisis doctrinefits within this description.

However, I do not need to decide on this matter because, as is elaborated below, the doctrine of stare decisisdoes not affect the Panel’s decision in this case. The Board can alter its own precedents: see e.g. Health Sciences. Furthermore, the Courthas merely decided whether the Board’s prior decisions were reasonable or within the Board’s jurisdiction to decide, not whether itsdecisions were correct on the issue of open periods. The Court has declined to interpret the relevant

section of the Code. Thejurisprudence developed by the Courts and referred to by the applicants does not address the question before the Panel in this case.Therefore, there is no question of whether the doctrine of stare decisis was correctly followed.

[ 60 ] Firestone additionally submits that the context of this case warrants careful and rigorous scrutiny of the Panel’s decision, as opposed to the high level of deference normally afforded to tribunals in a review for reasonableness. [ 61 ] The Supreme Court in Dunsmuir defined only two standards of review - reasonableness and correctness. Rothstein J has since clarified that there are no degrees of deference within the “reasonableness” standard of review.

He states in ATA at paragraph 47 : Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted. ... A review of a question of statutory

interpretation is different from a review of the exercise of discretion. Each will be governed by the context. But there is no determination of the intensity of the review with some reviews closer to a correctness review and others not. Therefore, I will apply the standard as defined by the Supreme Court in order to determine whether the Panel’s decision was reasonable. [ 62 ] Finally, Firestone submits that because the Panel’s decision reverses its prior

interpretation of section 37(2), it has created two contradictory lines of authority with regard to the waiver of open periods. The applicant submits that two conflicting

interpretations cannot both stand and this Court must decide which of these conflicting

interpretations is the “correct”

interpretation. Persuasive authorities have stated that “[i]f two

interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes” required for a decision to be reasonable: Abdoulrab v Ontario (Labour Relations Board) , 2009 ONCA 491 , 95 OR (3d) 641 at para 48 ; see also Taub v Investment Dealers Association of Canada , 2009 ONCA 628 , 98 OR (3d) 169; and Canada (Attorney General) v Mowat , 2009 FCA 309 , [2010] 4 FCR 579. [ 63 ] I do not need to delve into this area of argument. In the present case the Panel is not creating a second conflicting

interpretation. Rather, the Panel specifically rejects and overrules its earlier approach that allowed for the early closing of open periods. The Panel did not create a competing line of jurisprudence, but rather created a new approach to open periods based on its express finding that the previous jurisprudence should no longer apply. Therefore, pursuant to the Panel’s decision, only one line of reasoning will continue to exist with regard to the early closing of open periods. While I must determine whether or not the Panel’s decision to enunciate this new

interpretation of the Code was reasonable, I do not need to decide which of the two conflicting

interpretations is correct. [ 64 ] It is clear from the parties’ extensive review of the jurisprudence that the standard of review for the Labour Board’s

interpretation of its enabling legislation is settled. The Panel’s

interpretation of the Code as providing an open period that unions and employers cannot contract out of and employees cannot waive will be reviewed on a reasonableness standard, as will the Panel ’ s determination of unfair labour practices.

Issue 2 - Was the Panel ’ s decision that an open period cannot be waived reasonable? [ 65 ] To meet the reasonableness standard, the Panel’s decision-making process must demonstrate “the existence of justification, transparency and intelligibility” and the decision itself must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para 47 . [ 66 ] The Supreme Court has provided guidance on the role of the tribunal’s reasons in applying the reasonableness standard in Newfoundland and Labrador Nurses ’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 [ Nurses Union] . Abella J wrote for a unanimous Supreme Court at paras 14 and 16 that: [T]he reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. ...

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [ 67 ] The fact that the Panel wrote a detailed and extensive decision is obvious. This alone does not render a decision reasonable. However, the Panel’s decision also provides a step-by-step explanation of how it arrived at its decision.

The transparency of its reasons is evidenced by the Panel’s explanations for each determination, often with multiple alternative explanations provided. These

explanations are clear, detailed and intelligible. [68] The Panel’s final decisions all fall within the range of possible acceptable outcomes. On the issue of open periods, the Paneldecided that within the context of the case before it, only one outcome could acceptably uphold the goals of the Code. The Panel couldhave found that open periods can be closed, can only be closed with conditions, or cannot be closed at all.

In detailing the judicial historyof this issue it is clear that the Panel and the Courts have previously concluded that there must at least be conditions on when an openperiod can be closed, namely the requirement of informed waiver. However, the Panel provides numerous reasons why it felt in itsexperience and expertise that this approach was flawed. In particular, it found that this case was a prime example of how the CapitalCare approach risks undermining other rights protected by the Code.

The Panel therefore interpreted the statute in light of this anddetermined that in accordance with the purposes and other sections of the Code, labour policy more generally, and in line with otherCanadian jurisdictions, open periods cannot be waived. [69] I am satisfied that the Panel’s decision taken as a whole is reasonable and falls within a range of acceptable outcomesdefensible on the facts and in law.

Nonetheless, the parties raised a number of specific issues in this review, and for clarity I will addressthe particular elements of the application of the doctrine of stare decisis, the Panel’s decision to revisit Capital Care and the Panel’s newinterpretation of the statute. i. Stare decisis [70] The applicants submit that the Panel erred by failing to follow decisions of the Court to which it was bound through thedoctrine of stare decisis.

While tribunals are bound to follow Court precedents, the cases cited by the applicants do not bind the Panel toa finding that open periods can be waived. [71] The courts have considered the Board’s decisions regarding open periods on three occasions, in Norfab, St Joseph’s and JVDriver. [72] The Norfab precedent is narrower than the Board initially determined in Capital Care. In Capital Care the Board interpretedSteer J’s rejection of the Panel’s decision that employees had not waived an open period in Norfab #2 as a rejection of the propositionthat an open period can never be waived.

However, as identified by the Panel, the Board in Norfab #1 did not decide the complaintspecifically on the basis that open periods can never be waived. Rather this was one of many considerations that the Board noted beforedeciding that the new union’s certification application was not barred by a new agreement. Furthermore, the Court in Norfab #2 did notreject the possibility that open periods cannot be waived. Rather, it did not speak to this at all because it determined that the Board didnot have the jurisdiction to decide this issue on this or other grounds.

The Court declined to directly interpret The Alberta Labour Act atthe invitation of one of the parties: Norfab #2 at paras 28-29. The case was sent back to the Board for reconsideration. In the finaldecision regarding that case, the Alberta Court of Appeal held that the employer and the incumbent union had failed to put their renewalagreement in place. The ultimate decision was therefore not a determination of whether an open period can or cannot be closed early. [73] St. Josephs and JV Driver can be discussed together because of their similarity with regard to the stare decisis issue.

Each ofthese cases involved judicial review of a Board decision. Both were reviewed with the greatest deference possible. These decisions standfor the proposition that it is unreasonable to conclude that an open period has been closed without the informed consent of the employeesaffected by such closure. The question of whether an open period can actually be closed was not before the Court, with the result that theCourts have not made a binding decision on that question: see St Josephs at paras 3, 26-53; JV Driver at paras 47-50 and 52-80. Inneither case does the Court provide its own

interpretation of the Code or consider whether or not the Board would be correct to decidethat open periods can be waived. Where a Court reviews a tribunal decision for reasonableness, its decision does not bind the tribunal tofollow that prior tribunal precedent.

All that the Court has done is said that a particular decision was a reasonable one: Essex CountyCatholic School Board v Ontario English Catholic Teachers Association, (ON CA), [2001] 56 OR (3d) 85 (ONCA).Therefore, the Courts in St Josephs and JV Driver have not created a binding precedent on the question of whether or not the Codepermits waiver of an open period. [74] Moreover, it is possible for different outcomes to fall within the range of acceptable outcomes: see Dunsmuir at para 47.Though two conflicting

interpretations may not stand simultaneously, the outcome in this case can be reasonable despite the fact thatCourts have previously found the Board’s former

interpretation of the Code to also be reasonable. The decision must simply fall withinthe acceptable range of outcomes and here I find that it does.

ii. Re-examining Capital Care - The “Strong Reasons ” Standard [ 75 ] Firestone submits that the Panel erred by taking the “unnecessary” step of changing its standard of review for its own jurisprudence.

Despite the applicant’s criticisms, I find that the Panel provided compelling reasons for its decision to revisit its old jurisprudence. [ 76 ] The Panel acknowledged the underlying purpose for the high threshold enshrined in the “manifestly wrong” test and adopted a test that it found, upon reflection and in its expertise in interpreting and applying the Code , more appropriately met this underlying purpose. [ 77 ] As recognized by the reconsideration panel and this Court, the Panel was alert to the value of consistency and predictability in labour relations matters: “We subscribe to the central thought in the TNL and J.V.

Driver cases that the Board should be reluctant to alter long-established principles in its jurisprudence. Consistency is very important to the labour relations community and the Board alike”: Re Firestone at para 193. [ 78 ] Furthermore, the “manifestly wrong” standard is not a rule defined in the Code , but is rather a Board-created concept: see TNL . The Code gives the Board the authority to reconsider its prior decisions.

Section 12(4) of the Code states that:“...the Board may, at any time ... reconsider any decision, order, directive, declaration or ruling made by it and vary, revoke or affirm the decision, order, declaration or ruling.” [ 79 ] The Alberta Court of Appeal has also discussed the ability of the Board to reconsider its past decisions: ... since s. 11(4) of the Code gives the Board broad reconsideration powers, it is not strictly bound by its previous decisions (although it does, of course, value consistency. See e.g. Building Trades Council v TNL Industrial Contractors , [1996] Alta L.R.B.R. 497 (Lab. Rel. Bd.).

This means that, in a future application, the Board might be persuaded to reconsider the approach it took in this case: Alberta v Alberta (Labour Relations Board) , 2001 ABCA 299 , 293 AR 251 at para 44 ; see also International Union of Operating Engineers, Local 955 v Midwest General Contractors Ltd , 2001 ABQB 522 , 292 AR 381. [ 80 ] The Board is free to depart from its own precedent: see e.g. Health Sciences . [ 81 ] Furthermore, the applicant’s challenge the Panel’s “strong reasons” for revisiting Capital Care . The Panel determined that its past

interpretation of its own legislation was wrong, and identified numerous issues stemming from that approach, including in particular that the Capital Care approach was poorly defined, did not work when applied to a different industry than the one implicated in that case, and did not actually support the purposes of the Code but rather could be used to subvert them. All of these reasons support the reasonableness of the Panel’s decision to re-examine its past decision. iii. The Board ’s

Interpretation of

Section 37 [ 82 ] The applicants contend that the Panel failed to take a contextual and purposive approach to statutory

interpretation when it considered whether the Code permits waiver of open periods. They allege that the Panel erred by not considering the entire Code and thus not finding that the legislature intended there to be no limits on a bargaining unit's ability to waive its open period. In particular, they refer to

section 183, which creates an open period for registration of collective agreements, and section 60(1), which allows parties to give notice to initiate bargaining between 120 and 60 days before the expiry of an agreement and thus before the open period. [ 83 ] The standard of review for the Panel's

interpretation of its home statute is reasonableness, which means that while I am not "subservient" to determinations of the Panel, I should afford it respect and deference: see Dunsmuir at para 48 ; Nurses Union at paras 17-18.

[ 84 ] The applicants themselves identified free collective bargaining as an underlying principle of the Code : see Written Submissions of Firestone Energy Corporation at para 74. The Panel found that its prior

interpretation undermined free collective bargaining through its potential for abuse. It also found that the regime of allowing two-year collective agreements to proceed unchallenged can only protect industrial stability when it is balanced with an opportunity for employees to maintain or change their bargaining agent. The Panel was not overlooking or re-characterizing legislative intent, but rather deciding that upon reflection, its prior

interpretation of the Code undermined legislative intent. The Panel sought to interpret the Code in a way that better reflected the intent of Code as a whole. [ 85 ] The applicants further contend that the Panel erred in applying construction industry factors to change the law for all industries. [ 86 ] It was reasonable for the Panel to consider the features of the industry involved in this hearing in order to determine whether the Board's prior

interpretation was appropriate. While the Panel did not explicitly explore the application of this

interpretation in other industries, it did turn its mind to the fact that an industry specific analysis is problematic. This can be seen in the Panel’s re-consideration of Capital Care . [ 87 ] The Panel's reasons do not have to be perfect, so long as they support a decision that falls within a range of acceptable outcomes. Legislatures defer the

interpretation and application of legislation to administrative tribunals for their expertise. This case is an example of a tribunal drawing upon its experience and expertise in order to decide that it had previously erred in its

interpretation of the Code . [ 88 ] The Board is a highly specialized body designed to administer the Code . This court is generalist and does not possess the specialized expertise in the Code that the Panel possesses. I find that the Panel provided extensive reasons, which explain why it made the decision that it did. That decision fits within the range of acceptable

interpretations of the Code . The Panel’s decision that open periods cannot be waived protects employees and employers alike. It does so by ensuring two-year periods of stability, while also protecting the ability of employees to exercise their rights in a meaningful way. This does not, as the applicants suggest, impede freedom to contract. Employees are free to re-contract with an incumbent union should they wish to do so. The open period incentivizes the incumbent union’s efforts to protect the interests of the employees who it represents in contractual negotiations. Given the Panel's explanation of the negative effects of its prior

interpretation, considered within the context of the Code , the Panel's reasons support its final decision, and that decision is reasonable in the factual and legal context of this case. [ 89 ] The Panel’s

interpretation of the Code is acceptable and reasonable. Issue 3 - Was the Board ’s Decision Regarding Unfair Labour Practices Reasonable? [ 90 ] The Board found that Firestone breached section 148(1)(

a) of the Code (interference with the representation of employees) and section 148(1)(

b) of the Code (contributing “other support to a trade union”). [ 91 ] Firestone disputes that there were any representation rights to interfere with because those rights arise only when a certification application is submitted. The respondent IBEW’s application was untimely in light of the renewal agreement. Even if a broader

interpretation of “representation rights” is taken, Firestone submits that the evidence does not support finding a breach because the employees retained the ultimate right to participate in the lawful activities of their bargaining agent, and ratify the collective agreement. [ 92 ] As the Panel emphasizes, “labour law is full of examples of legally permissible actions that become breaches of statute - unfair labour practices - in their particular factual context”: Re Firestone at para 250.

The Panel considered extensive evidence including, in particular, the history of the relationship between Flint and Firestone, Flint’s readiness to change its sub-contractor to HJB when CLAC could not be certified for Firestone employees, the history of anti-union animus in the construction industry, and the history of this particular construction project as a break from the tradition of using BTU employees and as a major opportunity for Flint and Firestone. [ 93 ] In considering the evidence before it, the Panel drew an inference that Firestone had improper motives when negotiating the

early renewal agreement with CLAC. The Panel concluded that Firestone sought to prevent organizing efforts by the building trades unions. [ 94 ] The Panel explained its reasoning in a transparent, intelligible and justifiable way. The Panel had extensive evidence to arrive at its findings and to draw the related inferences. It explained which facts supported or did not support findings of unfair labour practices. There is enough evidence before me to say that the Panel’s conclusion fell within the acceptable range of outcomes. Conclusion [ 95 ] The Panel’s

interpretation of the Code was reasonable, as was the Panel’s finding of unfair labour practices. The applications are therefore dismissed. Heard on the 12 th , 13 th and 14 th day of June, 2012. Dated at the City of Calgary, Alberta this 31 st day of August, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Dan McDonald, Q.C. For the Applicant Construction Workers Union (CLAC), Local No. 63 Tom Ross For the Applicant Firestone Energy Corporation Bob Blair For the Respondent U.A. Local 488 William J. Johnson, Q.C. For the Respondent International Brotherhood of Electrical Workers, Local 424 Shawn McLeod For the Respondent Alberta Labour Relations Board