United Association of Journeymen v. Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,, 2022 NLSC 1

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 v. Filtrum Inc. , 2 022 NLSC 1 Date : January 6, 202 2 Docket : 202101G0874 Between: United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 AppLicant And: Filtrum Inc. FIRST Respondent And: the newfoundland and labrador labour relations Board second respondent Before: Justice Sandra R.

Chaytor On Judicial Review From: A Decision of the Newfoundland and Labrador Labour Relations Board, File # 2020 L.R.B.D. No. 14, dated the 12th day of May 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 24, 2021

Summary: The Applicant sought judicial review of a decision of the Newfoundland and Labrador Labour Relations Board which rejected a certification application and of the Board’s decision to deny an application to amend the certification application so as to expand the geographical scope of the proposed bargaining unit. Applying a standard of review of reasonableness, the Court dismissed the Application.

The Board had excluded the employees from the proposed bargaining unit on the basis that the majority of the work performed by the employees on the filing date of the certification application was not work within the trade jurisdiction of the Applicant. The Court held that the test applied by the Board in excluding the employees was in keeping with established practice and precedent of the Board. The Board’s finding as to the nature of the work performed by the employees was supported by the evidence.

There was no need to deal with the issue regarding the amendment application as the geographical scope of the proposed bargaining unit would not have changed the outcome of the certification application nor was it relevant to the Court’s assessment of the reasonableness of the Board’s decision on the main issue. The Respondent was awarded costs in accordance with Column 3 of the Scale of Costs appended to Rule 56 of the Rules of the Supreme Court . Appearances: Michael S. Gillingham Appearing on behalf of the Applicant Stephen Penney and Robert Bradley Appearing on behalf of the First Respondent Megan S.

Reynolds Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; I.A.B.S.O.I., Local 764 v . Bluebird Investments Ltd., [2007] L.R.B.D. No. 19, 144 C.L.R.B.R. (2d) 163 (N.L. L.R.B.) ; I.A.B.S.O.I., Local 764 v. Skyway Steel Ltd ., [2007] C.L.L.C. 220-024, 134 C.L.R.B.R. (2d) 276 (N.L. L.R.B.) ; C.J.A., Local 1386 v. United Contractors Ltd. , [2003] N.B.L.E.B.D. No. 23 , 93 C.L.R.B.R. (2d) 230 (N.B. L.E.B.) ; H.A.T. Electric , 2003 C.L.L.C. 220-012 STATUTES CONSIDERED: Labour Relations Act , R.S.N.L. 1990, c.

L-1 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D ; Labour Relations Board Rules of Procedure under the Labour Relations Act , R.S.N.L, 1990, c. L-1

REASONS FOR JUDGMENT Chaytor, J. : INTRODUCTION AND BACKGROUND [ 1 ] On June 19, 2019, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 (“the Union”) filed an application for certification (“the Certification Application”) with the Newfoundland and Labrador Labour Relations Board (“the Board”) pursuant to the Labour Relations Act , R.S.N.L. 1990, c.

L-1 (“the Act ”). [ 2 ] The bargaining unit that the Union applied to represent was described in the Certification Application as follows: All employees of Filtrum Inc. in Gander, NL, falling under the trade jurisdiction of UA Local 740 including, without limitation, all employees doing plumbing, pipefitting, pipe welding, instrumentation, sprinklerfitting, and excluding all supervisors and individuals above the rank of supervisors. [ 3 ] At the time the Certification Application was filed (“Filing Date”), Filtrum Inc. (“Filtrum”) was engaged in the construction of a wastewater treatment facility in Gander, Newfoundland and Labrador. [ 4 ] Filtrum had only two employees working on the Filing Date both of whom were located at its Gander work site.

It was their second day on the job. They were the only employees sought by the Union to be included in the proposed bargaining unit. No competing trade union was seeking to represent the employees for collective bargaining purposes. [ 5 ] The Board assigned an officer to investigate the Certification Application. On June 27, 2019, the Board held a representation vote and ballots were cast by the employees.

The ballots were segregated because they were in dispute. [ 6 ] In July 2019, Filtrum filed its Reply to the Certification Application disputing the inclusion of the two employees in the bargaining unit and the Union filed a Response to Filtrum’s Reply. The parties’ positions differed with respect to the work performed by the employees on the Filing Date and whether that work fell within plumbing and pipefitting, the trade jurisdiction of the Union.

They also disagreed with respect to the type of work that the employees were hired to undertake and whether the Board could consider evidence other than the work actually performed by the employees on the Filing Date. [ 7 ] Filtrum contended that the Board should make its determination on the issue of inclusion in the bargaining unit on the basis of what the employees spent the majority of their time doing on the Filing Date. It submitted that the Board should consider other evidence, such as the primary reason for hire, only when there was no conclusive evidence of the work performed on that date.

In any event, Filtrum contended that the employees were hired to perform work spanning multiple trade jurisdictions particularly in the early stages of their employment and on the Filing Date, pipefitting work had not yet commenced. [ 8 ] The Union, on the other hand, contended in its submission to the Board that the Filing Date was not determinative in labelling the employees’ actual work and that the Board could consider other evidence including the dominant purpose for hire, being pipefitting and duties incidental to that trade. [ 9 ] On November 1, 2019, the investigating officer reported the details of the work performed by the two employees.

In December 2019, Filtrum filed further information and response as to the sequence of events and work tasks performed by the employees. [ 10 ] On March 3, 2020, the Union filed an application seeking to amend the Certification Application to expand the geographical scope of the bargaining unit to be province-wide. The Union claimed that it did not do so initially because of inadvertence and noted that province-wide is the common bargaining unit for certification applications for building craft trades. [ 11 ] Filtrum contested the application to amend.

It contended that the bargaining unit description should be limited to Gander, in accordance with the Certification Application as originally filed. It stated that it had relied on the Union’s original application in its business planning and in responding to the Certification Application.

It further noted that Gander was the only location where it had employees working on the Filing Date. [ 12 ] The investigating officer prepared a report for the Board dated April 15, 2020 following which the Board decided it had sufficient information to decide the matter without holding a hearing. [ 13 ] On May 12, 2020, in a unanimous decision, the Board denied the application to amend and rejected the Certification Application. It ordered that the appropriate bargaining unit was plumbers and pipefitters of Filtrum working in Gander, as set out in the Certification Application.

The Board found that neither of the employees should be included in the bargaining unit and ordered that the votes cast by them be destroyed within six months. [ 14 ] The Board provided reasons for its decision on November 20, 2020. The decision explained that the Board had declined to exercise its discretion to allow the amendment to expand the geographic scope of the proposed bargaining unit description to province- wide certification because: (1) the Union could have filed or could file another application for certification seeking to incorporate the expanded geographic scope;

(2) Filtrum asserted it relied upon the initial description of the bargaining unit in its business planning and in the course of responding to the Certification Application; and (3) the vote on the Certification Application had been conducted prior to the amendment application on the basis of the initial proposed geographic region. [ 15 ] With respect to its reasons for not including the employees in the proposed bargaining unit, the Board based its decision on the majority of the work performed by the employees on the Filing Date. The Board found that the bulk of the work performed on that date

was not work within the trade jurisdiction of the Union. In determining the nature of the work, the Board referenced the

definitions of pipefitting contained in the Construction Labour Relations Association of Newfoundland and Labrador Collective Agreement (“ CLRA Collective Agreement ”). [ 16 ] The Union has brought this application for judicial review of the Board’s decision pursuant to Rules 54.02 and 54.06 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D , seeking an order of certiorari to quash the decision. Standard of review [ 17 ] In Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , the Supreme Court of Canada set out a new course for determining the standard of review to be applied by courts reviewing administrative decisions. It also provided guidance in how to conduct reasonableness reviews. The Applicable Standard [ 18 ] Determining the applicable standard of review is not contentious in this case as the parties agree it is reasonableness. [ 19 ] As clarified by the Supreme Court of Canada in Vavilov , the presumption is that the standard of review is reasonableness. The presumption can be rebutted in two types of situations.

First, where the legislature has statutorily prescribed a standard of review or where it has provided for an appeal from the administrative decision. Second, where the issue on review falls into one of the categories of questions that the rule of law requires be reviewed on a standard of correctness. The latter includes constitutional questions, general questions of law of central importance to the legal system or jurisdictional questions. [ 20 ] This judicial review is brought by way of Rule 54 of the Rules . There is no applicable statutory appeal clause.

Nor does this case concern a question requiring review on a standard of correctness. Although the Union contends that the Board’s decision has implications for organized labour in the construction industry, the issue is not of central importance to the legal system as a whole. I am satisfied that the applicable standard is reasonableness. Assessing Reasonableness [ 21 ] The Union, as the party challenging the Board’s decision, bears the burden of proving on a balance of probabilities that the Board’s decision was not reasonable.

To meet its burden it must establish that there are sufficiently serious shortcomings in the Board’s decision such that, it does not exhibit the requisite degree of justification, intelligibility, and transparency ( Vavilov at paragraph 100 ). [ 22 ] In Vavilov , at paragraphs 13 and 75 , the majority noted that a reasonableness review finds its starting point in judicial restraint and respect for the distinct role of administrative decision makers . It further instructed that a principled approach to reasonableness review is one, which puts the reasons of the Board first.

The Court must begin its inquiry into the reasonableness of the Board’s decision by examining its reasons with “'respectful attention” and seeking to understand the reasoning process followed by the Board to arrive at its conclusion ( Vavilov , paragraph 84 ). [ 23 ] There are two hallmarks of a reasonable decision: (1) it is based on an internally coherent and rational chain of analysis; and (2) it is justified in relation to the facts and law that constrain the decision maker ( Vavilov at paragraph 85 ). [ 24 ] With respect to the first hallmark, Vavilov instructs that a reasonable decision is based on reasoning that is both rational and logical.

The Court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. Further, the Court must be satisfied that, “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” ( Vavilov at paragraph 102 ). [ 25 ] On the other hand, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or reveal that the decision was based on an irrational chain of analysis.

A decision will also be unreasonable where the conclusion reached cannot flow from the analysis undertaken or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point. [ 26 ] Ultimately, the reviewing court must be satisfied that the decision maker’s reasoning “adds up” ( Vavilov at paragraphs 103 and 104 ). [ 27 ] With respect to the second hallmark, what is reasonable depends upon the constraints imposed by the legal and factual context of the Board’s decision.

Vavilov provided a number of elements (not intended to be exhaustive) that will generally be relevant in evaluating whether a decision is reasonable. These are:

(1) The governing statute (in this case the Labour Relations Act ); (2) other relevant statutory or common law; (3) the principles of statutory

interpretation; (4) the evidence before the Board; (6) the submissions of parties; (3) the past practices and decisions of the Board; and (7) the potential impact of the decision on the affected individuals ( Vavilov at paragraph 106 ). [ 28 ] This is the framework of assessment to be applied in analyzing whether the Union has met its onus of establishing that the Board’s decision was not reasonable. issues [ 29 ] The issues to be decided are: 1. Was the Board’s decision to exclude the employees from the bargaining unit reasonable?

2. Was the Board’s decision in declining to exercise its discretion to amend the Certification Application reasonable? [ 30 ] For the reasons that follow, the Application is dismissed with costs to Filtrum. The Union has not established that the Board’s decision to exclude the workers from the bargaining unit was unreasonable.

There is no need to deal with the second issue as the geographical scope of the proposed bargaining unit would not have affected the outcome of the Certification Application nor is it relevant to the Court’s assessment of the reasonableness of the Board’s decision on the first issue. analysis Issue 1: Was the Board’s decision to exclude the employees from the bargaining unit reasonable? [ 31 ] The Board’s decision consists of 141 paragraphs set out over 25 pages. The decision begins by reiterating the facts and issues that were not contentious.

It notes that the parties agreed the work completed by the employees on the Filing Date fell within the industrial and commercial sector of the construction industry, and that the appropriate bargaining agent for a bargaining unit in the construction industry should be determined on a trades basis. [ 32 ] The decision continues by articulating the issues to be determined as well as the relevant provisions of the Act . The decision then sets out a

section entitled, “Further Background” comprised of 70 paragraphs over approximately 12 pages. Throughout this section, the Board details the parties’ positions, the evidence adduced in support of their respective positions and provides comprehensive summaries of the employees’ comments to the investigating officer. [ 33 ] The decision continues with an “Analysis” section. Thirty paragraphs of this

section pertain to the Board’s consideration and explanation of why it excluded the employees from the bargaining unit. [ 34 ] The Board cites its decision in I.A.B.S.O.I., Local 764 v. Bluebird Investments Ltd., [2007] L.R.B.D. No. 19, 144 C.L.R.B.R. (2d) 163 (N.L. L.R.B.) in articulating the test it is to apply in determining inclusions in the bargaining unit.

It states that it must look at which employees worked on the Filing Date and whether they performed work that relates to the Union’s trade jurisdiction. [ 35 ] The Board then continued its decision by setting out the facts that it accepted in its analysis, being: (1) when the two employees were hired by Filtrum it was on the expectation that they would, among other things, perform pipefitting work; (2) the employees were expected to perform work other than pipefitting and that this was acknowledged by the employees; and (3) the employees’ qualifications and certifications were consistent with having been hired for plumbing and pipefitting work, among other things. [ 36 ] The Board noted that the employees’ qualifications as pipefitters supported the Union’s submission that they should be included within the bargaining unit.

However, it noted the difficulty for the Union was the work performed by the employees on the Filing Date. Although the Union submitted that this work related to its trade jurisdiction, the Board stated that it did not reach the same conclusion. [ 37 ] The Board found that on the Filing Date, as confirmed by the employees, the following work was performed by the employees: 1. helped Mr.

Jarvis [the electrical supervisor] level a seacan container that had been loaded with materials and tools from another job; this took approximately 0.5 hours; 2. continued sorting through tools and materials that were in a tool truck; there were a lot of materials that weren’t needed so the Employees built a box out of some plywood and a pallet to store these items and keep them out of the weather; this took approximately 1.5 hours; and 3. unloaded a transport shipment from a fifty-three foot trailer; this shipment included diffusers, hoses, anchors, cable and other pipefitting related materials; this took approximately 3.5 hours. [ 38 ] In addition to this work, the Board noted that the employees may have also sorted through piping that was offloaded and then organized that piping in a way that it could easily be joined together. [ 39 ] In its analysis, the Board again referenced the differing positions of the parties.

The Union’s submission being that while the employees may have been performing some non-jurisdictional work on the Filing Date, they were still performing jurisdictional work and that they were unloading materials required for pipefitting work.

Filtrum’s position is stated as being that the employees spent most of their time on the Filing Date performing labour and/or carpentry work and that no work within the Union’s trade jurisdiction had been carried out. [ 40 ] Having stated the test to be applied, its findings of fact and having articulated the conflicting positions of the parties, the Board then set out its conclusion on this issue at paragraphs 129-136 of its decision, as follows: 129.

Even if the Board accepts the statement of the Employees and the Union as to the work that the Employees performed on the date of the Application for certification, that work does not fall squarely within the trade jurisdiction of the Union.

130. It cannot be said that the Employees were “engaged in the craft and working with the tools” on the date of the Application for certification, to quote from the Board’s decision in Bluebird (2007), supra , citing its decision in Skyway Steel . 131. Leveling a seacan, sorting tools and materials, building a wooden storage box and unloading various materials from a transport shipment is not “work” or “Commercial Plumbing and Pipefitting”, “Industrial Plumbing and Pipefitting” , or “Industrial Maintenance” as described in the CLRA Collective Agreement.

It is general labor work and/or carpentry work that does not relate to the trade jurisdiction of the Union. 132. The only alleged work that the Employees performed on the date of the Application for certification that arguably relates to plumbing and pipefitting was sorting through piping that was offloaded and organizing that piping in such a way that it could easily be joined together. This type of work, although may fall under the trade jurisdiction of the union, is not exclusive to the trade jurisdiction of the Union. 133.

Unloading materials from a transport shipment is work that many different trade jurisdictions can perform, with or without the Employee’s qualifications and certifications, even if the material may have related to plumbing and pipefitting. The Employees performing general work that different trades could perform does not bring them within the bargaining unit in this matter. As noted by the Board in Parsons Trucking Limited, supra , in many cases there may be an overlap of work jurisdiction. 134.

The Board has determined that on the date of the Application for certification the Employees were not performing work that could bring them within the appropriate bargaining unit. The question remains, though, whether the Board should look beyond the date of the application for certification. 135. The Employees had only worked one day before the date of the Application for certification. On that date, June 18 2019, the Employees offloaded materials, cleared out general tools from a tool truck and created an inventory.

Even if the tools in question were related to plumbing and pipefitting, which is disputed, none of that work would squarely relate to the trade jurisdiction of the Union; it was general labour work. As such, and even if one looks to the work the Employees usually performed it does not fall within the appropriate bargaining unit. 136. The Board is not prepared to consider the work that the Employees performed in the weeks and months following the date of the Application for certification to determine whether they should be included within the bargaining unit.

That type of prospective approach would cause considerable uncertainty in applications for certification in the construction industry and run contrary to the widely accepted practice of using the date of an application is the relevant timeframe. 137. For all of the foregoing reasons the Board finds that the Employees should not be included within the bargaining unit.

On the date of the Application for certification the Employees were not performing work that would bring them within the bargaining unit, regardless of the basis on which they were hired or their qualifications and certifications. [ 41 ] On this judicial review, the Union submits that the Board erred firstly in the test applied in determining inclusion in the bargaining unit by: (

a) limiting its analysis to the work performed on the Filing Date as opposed to other evidence regarding the nature of the employees’ work; and (

b) requiring the majority of work performed that date be within the union’s jurisdiction. Secondly, the Union contends that the Board erred in its characterization of the work performed on the Filing Date as not being work of the pipefitting trade. Within this argument, the Union submits that the Board did an incomplete analysis of the CLRA Collective Agreement and erred in finding that the work performed must be exclusive to the trade to be included within the bargaining unit. [ 42 ] Filtrum submits the Board’s decision is reasonable and there is no basis for this Court to interfere with it.

Filtrum contends that the Board applied the appropriate test and in raising these arguments, the Union is attempting to challenge the Board’s factual findings. Was it reasonable for the Board to base its determination regarding inclusions in the bargaining unit on the majority of the work performed on the Filing Date? [ 43 ] The Union submits that the Board’s decision is unreasonable as it was based upon only the work that the employees performed on the Filing Date. Further, it required that on the Filing Date, the employees must have performed all, or mostly, bargaining unit work.

The Union submits that this approach was inconsistent with other decisions of the Board including its decision in Bluebird . [ 44 ] In making this submission, the Union relies upon the following comments by the Board in Bluebird at paragraph 19: … the Board can consider an application for the trade-based certification as long as the affected employees perform some of the work in the jurisdiction of the Ironworkers; it is not necessary that the employees perform all types of work in the Ironworkers’ jurisdiction …

[ 45 ] The Union contends that this means to be included in a bargaining unit, the employees needed only perform some work within the Union’s jurisdiction on the Filing Date; it need not have been the majority of work performed. [ 46 ] Whether the Board’s decision is consistent with its past decisions is a factor to be considered in assessing its reasonableness. I do not accept however, that the Union’s

interpretation of Bluebird is correct. To the contrary, I find the Board’s decision in this case is consistent with its decision in Bluebird as well as other labour board decisions and practices. [ 47 ] The comments by the Board at paragraph 19 of Bluebird were part of its analysis on the issue of whether the proposed bargaining unit was appropriate for collective bargaining purposes. The employer had taken the position in that case that the proposed bargaining unit was not appropriate, as it would not be performing some of the work listed in the union’s description of the proposed bargaining unit.

Therefore, the employer contended that as the employees would not be performing all of the ironwork tasks listed on the certification application, the proposed bargaining unit was not appropriate. [ 48 ] In Bluebird , the Board rejected that argument by the employer. At paragraph 19, the Board is stating that it could consider the application for trade-based certification as long as the employees would be performing some of the work in the union’s jurisdiction.

It was not necessary for the employees to perform all types of work listed on the certification application. [ 49 ] It is clear upon a reading of the entirety of the decision in Bluebird , that the Board utilized the same test in that case as it applied in the case before the Court.

That is, for employees to be included in the bargaining unit, they were required to have performed mostly work within the Union’s jurisdiction on the Filing Date. [ 50 ] At paragraphs 28 and 29 of Bluebird, the Board concluded that the proposed trade-based unit of ironworkers was appropriate for collective bargaining purposes, provided two or more employees performed primarily ironwork on the date of the application. The Board then continued to decide which employees should be included in the bargaining unit on that basis.

The two employees who were primarily doing ironwork on the Filing Date were included in the bargaining unit. For the third employee (who could not recall what he was doing that date), the Board looked at his usual work and determined that 70% of the time he performed carpentry work, not ironwork. He was not included. [ 51 ] In the case before the Court, in dealing with its approach to the issue of whether the employees were to be included in the bargaining unit, the Board cited Bluebird , including references within that case to I.A.B.S.O.I., Local 764 v.

Skyway Steel Ltd ., [2007] C.L.L.C. 220-024, 134 C.L.R.B.R. (2d) 276 (N.L.

L.R.B.) . [ 52 ] In Skyway Steel, at paragraph 94, the Board wrote, “the nature and extent of the work performed by an employee on the date of the application is determinative of whether an employee who performs more than one function or craft is to be included in a proposed bargaining unit.” The Board continued at paragraph 95 by noting, “This Board, as with other Boards across Canada, is cognizant of the policy reasons for the utilization of the date of application as the date for determining voter eligibility and inclusions for bargaining units in the construction industry.” [ 53 ] On this point, the Board in Skyway Steel , like its decision in this case, cited the New Brunswick Labour Board decision in C.J.A., Local 1386 v.

United Contractors Ltd. , [2003] N.B.L.E.B.D. No. 23 , 93 C.L.R.B.R. (2d) 230 (N.B. L.E.B.) .

In that case, at paragraph 13, the board reaffirmed “its consistent practice and procedure on applications for certification in the construction industry and makes its determination of the appropriate bargaining unit and level of employee support for the trade union applicant on the basis of those employees in the bargaining unit engaged in the craft on the date of the application.” [ 54 ] Therefore, contrary to the Union’s submission, the Board’s approach in this case to the issue of inclusion in the bargaining unit is consistent with that applied in Bluebird and with long-standing precedent and practice of labour boards which is to examine the nature of the majority of the work done by employees on the Filing Date. [ 55 ] The Union makes further argument that the Board is permitted to make an assumption about the nature and extent of the employees’ work based on the tasks performed on the Filing Date, unless that assumption is rebutted by other evidence on the record regarding the nature of the employees’ work. [ 56 ] The Union submits there was ample evidence available to the Board, other than what was performed by the employees’ on the Filing Date which establishes the actual nature of their work was pipefitting.

Therefore, the Union submits that the Board erred in ignoring this evidence and relying solely on the work performed on the Filing Date in determining whether the employees should be included in the bargaining unit.

The Union points, for example, to the letters of hire for both employees which reference their working conditions as pipefitters, their qualifications as pipefitters, and the nature of the project being such that it would clearly require pipefitters. [ 57 ] The Union submits that the following comments made by the Board at paragraph 93 of Skyway Steel supports its argument in this regard: …In the absence of the issue being raised by the parties, or otherwise being evident based on the contents of the file, the Board has, and will, reasonably assume that the nature of the work performed on the date of application was the same as that performed the majority of the time…. [ 58 ] This wording is such that it could arguably support the Union’s

interpretation of this passage. It is apparent, however, from a consideration of the entirety of the decision in Skyway Steel that what the Board meant by this passage is that in the absence of evidence as to what an employee was doing on the date of the application for certification, it will then look to what the employee normally does to determine whether he or she should be included in the bargaining unit.

On the other hand, where there is uncontroverted evidence of what the employee did on the application filing date, the Board will reasonably assume that the nature of the work performed on that date is the same as that performed the majority of the time. [ 59 ] In Skyway Steel , the Board rejected the same argument that is being made in this case by the Union. In Skyway Steel , the Board

had evidence as to the normal and expected duties of the employees but it disagreed with the employer’s submission that inclusion in the bargaining unit should be based on that evidence as opposed to what the employees did on the date of the certification application.

The Board in Skyway Steel excluded from the bargaining unit an employee who usually performed a significant amount of ironwork in the field because he was in the shop on the application filing date. [ 60 ] In Skyway Steel , where evidence existed of the work performed by employees on the application date, that evidence was determinative as to who was included or excluded from the bargaining unit, notwithstanding evidence in the file that indicated the usual work of the employees to be different.

For two employees where there was no evidence of what they were doing on the filing date, only then did the Board look for evidence in the record as to the nature of their usual duties and based its decision on that evidence. [ 61 ] Similarly, in Bluebird , an employee did not recall what he was doing on the date of the application.

In that case, in the absence of evidence as to what the employee was doing on the filing date, the Board considered what he normally did and concluded that his usual duties were not within the trade jurisdiction of the applicant union, so he was excluded from the bargaining unit. [ 62 ] In Bluebird , there was a factual dispute as to the tasks performed by three employees on the application filing date. The employer contended they were taking apart wooden forms while the union said they were tying rebar, which was within the ironworker jurisdiction.

The Board noted that when there are conflicting positions as to the tasks performed on the date of the application, it often resolves this by considering the employee’s comments to the investigator. Two of the three employees recalled that they were tying rebar. They were included in the bargaining unit. The third employee did not recall what he was doing. The Board stated that in such a situation, it then examines what the employee does the majority of his time and assumes he would have been doing the same on the filing date. The third employee usually performed carpentry work.

He was not included in the bargaining unit. [ 63 ] Therefore, in Bluebird it was only in the absence of evidence of what work was performed on the application filing date that the Board looked to other evidence in making its determination as to inclusions in the bargaining unit. [ 64 ] In this case, there was evidence as to the tasks carried out by the two employees on the Filing Date. The Board accepted the description of the tasks as confirmed by the employees. The dispute in this case is largely about the characterization of those tasks and whether they fit within the Union’s trade jurisdiction.

That issue is addressed later in this decision. [ 65 ] Although the Board noted the tasks performed by the employees on the day before the Filing Date, being the only other day worked, the Board’s decision centered on its assessment of the work performed on the Filing Date. The Board rejected the Union’s submission to consider the work that may be performed in the future as that would be prospective. This approach is also consistent with precedent and practice of the Board. [ 66 ] The difficulties that can arise by looking at prospective work were addressed in United Contractors.

In its decision at paragraph 12, the New Brunswick Labour Board cautioned that to consider employees in the bargaining unit because they had been engaged in carpentry work in the past and would be so engaged in the future would beg questions such as when in the past or the future would be considered. On this point, the Board referenced H.A.T.

Electric , 2003 C.L.L.C. 220-012 noting that to shift from a snapshot approach to the issue, a single day on which, a secure evidentiary foundation can be established, to several snapshots, or a series of slides verging on a continuous motion picture over an indeterminate period of time, would raise almost insuperable evidentiary problems. [ 67 ] It is clear from the foregoing review of prior decisions referenced by the Board in its decision that the Board followed its own precedents and the well-established practice of labour boards in other jurisdictions.

Where, as in this case, the Board had evidence of what the employees were doing on the Filing Date that is the basis of determination of whether the employees should be included in the bargaining unit. Therefore, contrary to the Union’s submission, I find that the decision made by the Board on this basis is reasonable. [ 68 ] Having accepted that the Board’s approach to the issue by examining what the employees were doing for the majority of their time on the Filing Date was reasonable, I will now turn to consider whether the Board’s characterization of that work was reasonable.

Was the Board’s finding as to the nature of the work performed by the employees reasonable? [ 69 ] The Union contends that the Board’s decision that the employees were not performing work within the Union’s trade jurisdiction was not reasonable in that it was based upon: (1) an incomplete analysis of the CLRA Collective Agreement in defining the work of the trade jurisdiction; (2) an erroneous conclusion that offloading and sorting materials of the trade was not part of pipefitting work; and (3) an erroneous conclusion that the work had to be exclusive to the trade and not work capable of being performed by other trades. [ 70 ] At paragraphs 123 and 124 of its decision, the Board set out the positions of the Union and Filtrum on the issue of the nature of the work the employees performed on the Filing Date.

The Union acknowledged that the employees may have been performing some non-jurisdictional work but contended that they were still performing work within the Union’s jurisdiction. The Union submitted that they were unloading materials required for pipefitting work and that this should be classified as within the Union’s jurisdiction. Filtrum submitted that the employees spent most of the time performing labour and/or carpentry work and no work within the Union’s trade jurisdiction. [ 71 ] As the trade jurisdiction of the Union was raised by both parties, the Board turned to

Article 2, the definition

section of the CLRA Collective Agreement for guidance in determining the trade jurisdiction of the Union. [ 72 ]

Article 2.09 defines “work” to mean: Work means plumbing, steamfitting, gasfitting, industrial pipefitting, pneumatic or hydraulic pipefitting, instrument piping, all process piping used above and below ground and under water, all heating and stress relieving of pipe, all welding, tacking and burning connected with the above, and shall include the assembling, erecting, installing, dismantling, repairing, reconditioning, adjusting, altering, servicing

and work awarded to the Union pursuant to

Article 18 of this Agreement. [ 73 ]

Article 2.11 states that, “industrial plumbing and pipefitting means all plumbing and pipefitting work required in or performed as part of on-site fabrication, construction and erection of heavy industrial developments”, with a list of facilities including water treatment plants. [ 74 ] Following its reference to the CLRA Collective Agreement , the Board then set out its conclusions in paragraphs 129-133 of its decision.

It determined that unloading materials from a transport shipment, even if the material is related to plumbing and pipefitting, is work that many different trade jurisdictions could perform and that in doing such work, the employees were performing general work that different trades could perform. Therefore, the Board concluded that these tasks could not bring the employees within the bargaining unit. [ 75 ] The Union contends that the Board introduced the CLRA Collective Agreement in assessing the work of the trade on its own initiative without submissions from the parties.

Having done so, the Union submits that it was incumbent on the Board to consider the entirety of the agreement including

Article 15 entitled “Job Conditions”. [ 76 ]

Article 15 states: 15.02 All brackets and hangers that are not specifically itemized and listed in a standard manufacturer’s catalogue are to be fabricated by members of Local Union 740. All on site marking of holes, sleeves, inserts and hangers required for the installation of mechanical service shall be performed by members of the Union. The placing and installation of all toilet and bathroom accessories shall be the work of the members of the United Association excepting those made of clay products set in tile.

The handling and using of all tools and equipment that may be necessary for the erection and installation of all work and materials used in the pipefitting and plumbing industry shall be done by United Association. [emphasis added] [ 77 ] The Union submits that sorting through tools and materials in a tool truck, offloading tools and equipment from the transport shipment and sorting through and organizing that piping so that it could easily be joined together falls into the category of “handling and using” tools and equipment pursuant to

Article 15. [ 78 ] It is not known if the Board considered

Article 15, as it is not referenced in its decision. In this respect, it would have been preferable for the Board to have heard submissions from the parties on the relevant provisions of the CLRA Collective Agreement . Having said that, the agreement would be well known to the parties and the Board. It would be logical for the Board to utilize the CLRA Collective Agreement to assist it in determining whether the work performed was within the trade jurisdiction of the Union and it would be reasonable for the parties to anticipate that the Board would do so.

The parties had ample opportunity to put before the Board any material or submissions that would support its positions on the nature of the work being performed including any reference to the CLRA Collective Agreement . [ 79 ] In any event,

Article 15 relates to the handling and use of the tools and equipment, not just the handling.

Upon review of the record, there was no evidence before the Board that the employees used any tools or equipment for the purposes of the pipefitting work on the Filing Date. [ 80 ] At paragraph 130 of its decision, in concluding that it could not be said that the employees were “engaged in the craft and working with the tools” on the Filing Date, the Board cited a reference from United Contractors which is included in Bluebird and Skyway Steel. [ 81 ] In United Contractors , at paragraph 11, this practice of considering for the purposes of an application for certification, only those persons engaged in the craft and working with the tools on the date of the application is noted to be long standing and well known throughout the industry. [ 82 ] The argument being advanced by the Union with respect to

Article 15, does not detract from the logical analysis of the Board, in following precedent, and finding that for the majority of the time on the Filing Date, the employees were performing work outside the Union’s jurisdiction as they were not engaged in the craft of the union and working with the tools of the trade. [ 83 ] The Union further takes issue with the Board’s finding that the unloading of materials from a transport shipment was general work that different trade jurisdictions could perform (even if the material related to plumbing and pipefitting) and therefore performing this work could not bring the employees within the bargaining unit. [ 84 ] The Union contends that this aspect of the Board’s analysis was flawed.

The fact that a labourer may offload piping does not mean the work is also not within a pipefitter’s trade jurisdiction. Only a pipefitter, the Union submits, would know how to prepare, select, and sort the tools and equipment. [ 85 ] Although the Board does not discuss the facts of United Contractors , it relies on the case in its decision including the reference noted above as to the importance of the employees being “engaged in the craft and working with the tools” on the Filing Date.

The facts in United Contractors are similar to that of this case in terms of the offloading of materials from a truck. [ 86 ] In United Contractors , the New Brunswick Labour Board had to determine whether the erection of a pre-engineered steel building and, in particular, the installation of insulation and steel siding was to be characterized as carpentry work for the purposes of a certification application, and if so, which members were engaged in carpentry work on the date of the application. [ 87 ] In that case , the board excluded two employees from the bargaining unit who were hauling insulation and steel sheets from a

flatbed truck on the filing date. This was so even though it was clear that the materials were to be used by the workers in the construction project for which they were hired. Similar to the decision in this case, the New Brunswick Labour Board found that in performing that type of work, the employees were engaged as labourers and not doing work of the carpentry trade. Thus, they were excluded. [ 88 ] In the case before the Court, the Board similarly concluded that offloading materials from a transport shipment was not pipefitting work. There was evidence before the Board upon which it could make this assessment.

Part of this conclusion was based on a finding that workers, other than pipefitters, could do this task. There was evidence in the record that an electrician and a supervisor also participated in the unloading of the equipment.

The Board also had photographic evidence of the type of work that was being carried out on the Filing Date, as well as documentation pertaining to the project timeline, which supported Filtrum’s position that it was too early for pipefitting work to commence. [ 89 ] Therefore, I conclude that the Board’s decision as to the nature of the majority of the work done by the employees on the Filing Date was justifiable on the evidence before the Board.

The Court must refrain from “reweighing and reassessing the evidence” considered by the Board in reaching its conclusions ( Vavilov at paragraph 125 ). [ 90 ] I will comment briefly on the Union’s concern regarding the Board’s apparent inference that work performed needs to be “exclusive to the trade” in order to form part of a valid bargaining unit.

The Union contends that if exclusivity is a requirement this could lead to gaps in collective bargaining in the construction industry and impede construction workers access to collective bargaining. [ 91 ] First of all, this is an argument without evidentiary foundation as to the alleged potential impact on the facilitation of collective bargaining within the construction industry. [ 92 ] Furthermore, the Board’s reference to exclusivity must be viewed in the factual context of this particular case.

The facts of this case, as determined by the Board, are that the employees spent the majority of their time on the Filing Date performing work that was not within the trade jurisdiction of the Union. [ 93 ] At paragraph 131 of its decision, the Board found that leveling a seacan, sorting tools and materials, building a wooden storage box, and unloading various materials from a transport shipment was general labour work and/or carpentry work as opposed to work that related to the trade jurisdiction of the Union. [ 94 ] After making this determination regarding the majority of work performed on the Filing Date, the Board then (without making any finding of fact as to whether any jurisdictional work had actually been performed), wrote as follows at paragraph 132 of its decision: 132.

The only alleged work that the Employees performed on the date of the Application for certification that arguably relates to plumbing and pipefitting was sorting through piping that was offloaded and organizing that piping in such a way that it could easily be joined together.

This type of work, although may fall under the trade jurisdiction of the union, is not exclusive to the trade jurisdiction of the Union. [ 95 ] This comment regarding exclusivity by the Board was of no consequence to its overall decision as it was made in relation to a small portion of work that may have been performed after the employees had spent the majority of the Filing Date performing non- jurisdictional work.

This does not affect the overall decision of the Board or its reasonableness in excluding the two employees from the proposed bargaining unit as that decision was based upon its finding that the majority of the work performed by the employees on the Filing Date was not within the Union’s trade jurisdiction.

Conclusion on issue #1 [ 96 ] An analysis of the decision of the Board demonstrates that the Board: understood the issues in play; articulated the test that it would apply being the nature of the majority of the work performed on the Filing Date; justified the basis for utilizing that test as being grounded in precedent and past practice of the Board; understood and considered the positions of the parties; and made assessments of the evidence upon which it made factual determinations as to the work performed. [ 97 ] The Board then undertook an analysis of the issues on the basis articulated and concluded that the majority of the work performed by the employees on the Filing Date was not within the trade jurisdiction of the Union.

On this basis, the employees were excluded from the bargaining unit. [ 98 ] The test applied by the Board was in keeping with the established practice of the Board and other labour relations boards in determining inclusion in a bargaining unit. The Board’s finding as to the nature of the work performed by the employees on the Filing Date was supported by the evidence as well as its

interpretation of the CLRA Collective Agreement and other cases with similar facts. Furthermore, the Board’s decision is well reasoned and articulated such that the Court was able to follow its logic and analysis in reaching its conclusions. As such, the Union has failed to establish that a decision so made is unreasonable.

Issue 2: Was the Board’s decision in declining to exercise its discretion to amend the Certification Application reasonable? [ 99 ] The Union submits that the Board erred in denying its application to amend and thereby restricting the scope of the proposed bargaining unit to Gander as opposed to province-wide. [ 100 ] This was a discretionary decision of the Board. In its decision, the Board referenced section 17(1) of the Labour Relations Board Rules of Procedure under the Labour Relations Act , R.S.N.L, 1990, c.

L-1 , which states that it is not required to accept an amended application for certification. [ 101 ] In its oral submission, the Union conceded that the substantive and determinative issue on this judicial review is the first issue. The outcome or reasonableness of the Board’s decision on that issue is not impacted by the Board’s handling of the amendment application. Whether the Board allowed the amendment or not was of no consequence to the outcome of the Certification Application as

on the Filing Date, Filtrum only had employees working in Gander, not elsewhere in the province. [ 102 ] Although the Union submitted that it might be helpful for the Court to provide some guidance on the Board’s handling of the application to amend, particularly with respect to limitations on the Board’s discretion and the brevity of its reasons on this issue, such guidance is better left for a case in which the issue would be pertinent to the overall outcome of the judicial review.

summary and disposition [ 103 ] In excluding the employees from the bargaining unit, the Board undertook a comprehensive review of the evidence; properly identified the issues; acknowledged and dealt with each of the parties’ submissions; made factual findings in keeping with the context of the Certification Application; and applied well-established principles and practices as referenced in the precedents cited by the Board. [ 104 ] As such, I conclude that the Board’s decision was based on an internally coherent and rational chain of analysis and was justified in relation to the facts and law that constrained the Board. [ 105 ] There is no need to deal with the second issue as it is not relevant to the outcome of the main issue on this judicial review. [ 106 ] The Union has not met its burden of establishing that the Board’s decision was unreasonable.

The Application is dismissed. As Filtrum is the successful party, it is entitled to its costs as against the Union in accordance with Column 3 of the Scale of Costs appended to Rule 56 of the Rules of the Supreme Court . _____________________________ Sandra R. Chaytor Justice