united association of journeymen v. apprentices of the plumbing and pipefitting industry of the united states and canada, local, 2021 NLSC 104

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. Canada Fluorspar (NL) Inc. , 2021 NLSC 104 Date : July 26, 2021 Docket : 202101G0877 Between: united association of journeymen and apprentices of the plumbing and pipefitting industry of the united states and canada, local 740 Applicant And: Canada Fluorspar (NL) Inc.

First Respondent And: United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9220 Second Respondent And: The Labour Relations Board Third Respondent - AND – D ocket : 202101G1656 Between: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, (UNITED STEELWORKERS), Local 9220 Applicant And: Canada Fluorspar (NL) Inc.

First Respondent And: united association of journeymen and apprentices of the plumbing and pipefitting industry of the united states and canada, local 740 Second Respondent And: The Labour Relations Board Third Respondent Before: Justice Vikas Khaladkar On Judicial Review From: A Decision of The Labour Relations Board, File #5647 (2020 L.R.B.D. No. 10) dated the 12th day of August, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 22, 2021, April 27, 2021 and June 22-23, 2021

Summary: The Steelworkers’ successorship rights are recognized and affirmed. The decision of the Board in this regard is set aside. The Pipefitters’ Application is dismissed. The decision of the Board concerning the appropriateness of the proposed bargaining unit is upheld. Appearances: Michael S. Gillingham Appearing on behalf of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 Michelle A. Willette Appearing on behalf of Canada Fluorspar (NL) Inc.

Bettina Quistgaard Appearing on behalf of United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9220

Megan S. Reynolds Appearing on behalf of The Labour Relations Board Authorities Cited: CASES CONSIDERED: W.W. Lester

(1978) Ltd. v. U.A., Local 740, (SCC), [1990] 3 S.C.R. 644; Sexton Lumber Co.and CEP, Local 60N, Re, [2012] L.R.B.D. No. 16, 2012 CarswellNfld 487 (L.R.B.); Canada (Minister of Citizenship and Immigration)v. Vavilov, 2019 SCC 65; Sodexo Canada Limited v. Hotel Employees and Restaurant Employees International Union, Local 779, 2020NLSC 111; International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers’Association Inc., 2020 NLCA 20; NARL Refining Limited Partnership v.

United Association of Journeyman and Apprentices of thePlumbing and Pipefitting Industry of the United States and Canada, Local 740, 2020 NLSC 100; S.E.A. Contracting Ltd. v. C.J.A., Local579, 2002 NFCA 34 , 2002 NLCA 34; Vertex Construction Services Ltd. v. I.U.O.E., Local 115 (2000), 58 C.L.R.B.R. (2d) 161,2000 CarswellBC 2834 (L.R.B.); United Steelworkers of America v. Sears Canada Inc., (Ont. L.R.B.) STATUTES CONSIDERED: Labour Relations Act, R.S.N.L. 1990, c.

L-1; Labour Relations Code, R.S.B.C. 1996, c. 244 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION and background [1] On September 22, 2017 the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industryof the United States and Canada, Local 740, the Applicant in Docket #202101G0877, (the “Pipefitters”) filed an Application forCertification (the “Application”) with The Labour Relations Board (the “Board”) under the Labour Relations Act, R.S.N.L. 1990, c. L-1,(the “Act”).

The Pipefitters sought to be certified as the bargaining agent for a group of employees of Canada Fluorspar (NL) Inc.(“CFNLI”). [2] United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union,(United Steelworkers), Local 9220, the Applicant in Docket #202101G1656, (the “Steelworkers”), applied to intervene, and was givenleave to Intervene by the Board. [3] A hearing concerning the preliminary issue of successorship rights of the Steelworkers was conducted in St. John’s on March11-13, 2019.

In addition, further written submissions were filed by the parties concerning the issue of whether the Steelworkers hadabandoned any bargaining rights that it had. [4] In May 2019, the Board unanimously decided that the Steelworkers had no successorship rights relating to the Application, butthat it had not abandoned any bargaining rights that it did have.

On May 28, 2019 the Board issued an Order rejecting the Steelworkers’successorship rights for the purpose of being recognized as the certified bargaining agent for the employees of CFNLI. [5] In October 2019, and January 2020, the Board received further submissions and evidence from CFNLI and the Pipefittersconcerning the composition of the bargaining unit. The majority of the Board panel considered five factors in deciding theappropriateness of a bargaining unit to be certified as a bargaining agent. These were: a. Community of Interest; b. Avoidance of Fragmentation; c.

Viability of the Bargaining Unit for Collective Bargaining; d. The wishes of the Employees and CFNLI; and e.

The Employee’s access to collective bargaining and the right to join a union. [6] The majority found that CFNLI was not a construction company but, rather, a mining company that does operate within theindustrial and commercial sector of the construction industry for any capital construction projects. [7] The majority found that the rationale for trade-based certification in the construction industry does not necessarily apply to anon-construction company that operates in the construction industry on a limited or periodic basis. [8] The majority held that trade-based certification would create serious labour relations problems.

CFNLI would have to workwith, potentially, multiple trade-based bargaining units for any capital construction carried out at the mine regardless of magnitude. In themajority’s estimation, this would make the potential for work stoppages, jurisdictional disputes and labour unrest greater.

[ 9 ] The majority held that while the bargaining unit proposed by the Pipefitters catered to individuals who had a strong community of interest, and that this factor supported the composition of the bargaining unit proposed by the Pipefitters, this factor was overshadowed by some of the other factors that the Board needed to consider. [ 10 ] The majority found that the proposed bargaining unit would promote fragmentation.

They held that since CFNLI’s main business was mining, there was a potential for at least two, and perhaps many more, bargaining units and CFNLI would have to deal with multiple bargaining units regardless of the magnitude of the task to be performed. In the majority’s estimation this would lead to a greater potential for labour unrest. [ 11 ] With respect to the viability of the unit for collective bargaining, the majority decided that the Pipefitters sought to represent 42 employees. By early 2020 CFNLI had 209 employees in operations and 35 employees in capital construction projects.

In early 2020 the majority found that only 11 would have been represented by the Pipefitters. [ 12 ] The majority held that it was not bound to limit its assessment of the appropriateness of the bargaining unit to the date of the Application.

The majority decided that a reading of the Act in its entirety, and giving due consideration to the purpose of the Act , leads to the conclusion that the Board has the flexibility to consider sufficiently immediate or imminent subsequent events that may impact on its assessment. [ 13 ] In the end result the majority held that the viability of the bargaining unit for Collective Agreement purposes was not a factor that supported the composition of the bargaining unit as proposed by the Pipefitters. [ 14 ] The majority held that since the parties had not reached a consensus with respect to the appropriate bargaining unit, the wishes of the parties was not a factor that supported the composition of the bargaining unit as proposed by the Pipefitters or as proposed by CFNLI. [ 15 ] The last factor that the majority considered was whether employees were being afforded access to collective bargaining. [ 16 ] The majority held that the right of employees to unionize was not impacted by making a choice between a trade-based bargaining unit or an all-employee bargaining unit.

In either case employees would have the right to unionize. The majority indicated that the role of the Board is to choose the appropriate bargaining unit – not to choose a particular bargaining agent. [ 17 ] The majority held that employee access to collective bargaining was not a factor that supported the composition of the bargaining unit as proposed by the Pipefitters. [ 18 ] The majority held that the circumstances before them were unique. If CFNLI was a construction employer then the bargaining unit would undoubtedly be trade-based.

However, the majority held that CFNLI operates a mine, not a construction company, albeit undertakes construction work from time to time. [ 19 ] The majority used its discretion, under

section 38 of the Act , to include additional employees in the bargaining unit because it was appropriate to do so. The majority indicated that, in so doing, it was fulfilling one of its fundamental roles – the determination of an appropriate bargaining unit on the Application. [ 20 ] Based upon the foregoing analysis, the majority found that an appropriate bargaining unit would consist of an all-employee bargaining unit. The majority found that the Pipefitters did not have the 40% membership support required by the Act . The Pipefitters represented, on the date of the Application, 27 members in good standing.

There were more than 68 persons who were employed in the construction phase by CFNLI. The Pipefitters did not represent 40% of the employees. The Application was rejected. [ 21 ] The Board provided one written decision in respect of both applications, namely the Application for Intervention made by the Steelworkers for the recognition of the successorship rights alleged by them. In the same decision the Board provided its ruling with respect to the Pipefitters’ Application. I propose to do the same.

THE Steelworkers’ intervention [ 22 ] CFNLI and the Steelworkers agreed that the standard of review in this case is reasonableness. The issue to be decided in this case is whether or not the Board’s decision was reasonable.

Was the Board’s Decision Reasonable? [ 23 ] In order to conduct the reasonableness review, it is necessary for the Court to take cognizance of a number of historical facts relating to the Steelworkers and their association with the fluorspar mine that operated prior to CFNLI’s operations. [ 24 ] The historical information relied upon by CFNLI and the Steelworkers was, for the most part, not contentious.

The Board set out, from paragraphs 34 to 62 of its decision, a synopsis of the historical information – including the existence of the Board’s three historic Orders relating to the Steelworkers. [ 25 ] At paragraph 42 of its decision the Board acknowledged that the Steelworkers, Local 6480, was certified on May 18, 1988 as the bargaining agent in respect of St.

Lawrence Fluorspar Limited (“SLFL”), which then carried on an underground mining and processing operation. [ 26 ] Later in 1988, the second historic Order was issued by the Board, by virtue of which Local 9220 (the Steelworkers) was certified the successor union for Local 6480. The Steelworkers then negotiated the Collective Agreement between SLFL and the Steelworkers – which was made with effect from January 1, 1989 for a term of two years. [ 27 ] By 1991 SLFL was encountering financial difficulties. It abandoned its attempts to recommence operations at the Blue Beach

Mine and it was placed into receivership with Ernst & Young Incorporated (“Ernst & Young”), who was appointed Receiver-Manager. Later that year SLFL was adjudged bankrupt. The Blue Beach Mine was rehabilitated – meaning that the mine shaft was made inoperable. [ 28 ] In 1991 the Steelworkers applied for an Order declaring that Ernst & Young were transferees of the business and operation and, therefore, that the Certification Order and Collective Agreement applied to the Receiver-Manager.

The Board agreed with the Steelworkers and, on July 17, 1991, made an Order declaring the Steelworkers was a successor union and that the Certification Order and Collective Agreement were binding on Ernst & Young. [ 29 ] In 1994 the Crown cancelled leases held by SLFL. [ 30 ] Ernst & Young assigned and conveyed all personal property of SLFL, including its mining assets and equipment, to the Greater Lamaline Area Development Association (“GLADA”).

GLADA had agreed to take control of the assets until a buyer could be found. [ 31 ] In November, 1994 the Board issued the third of its historic Orders by holding that the Certification Order granted to the Steelworkers would also bind GLADA, as successor to Ernst & Young. However, neither Ernst & Young nor the Steelworkers ever reopened the mining enterprise that had been carried on by SLFL.

Despite no business activity being conducted, GLADA recognized the Steelworkers as the bargaining agent and continued to apply the terms of the Collective Agreement. [ 32 ] The Crown held a public tender to develop the fluorspar deposits in and around St. Lawrence.

A successful proposal was submitted by Northern Resources Investment Limited (“NRI”) and the Crown agreed to grant NRI the exclusive right to obtain mining leases on the subject lands. [ 33 ] Effective April 1, 1995 Burin Minerals Limited (“BML”), a wholly owned subsidiary of NRI, was granted the exclusive right to obtain new mining leases over the fluorspar deposits. It obtained both mineral and surface rights from the Crown. [ 34 ] BML acquired the mining assets of GLADA. [ 35 ] BML and the Steelworkers went about negotiating a new collective agreement and bargained between 1996 and 1998.

However, the parties never executed a collective agreement. [ 36 ] BML was responsible, under its option agreement with GLADA, to complete a feasibility analysis of a mining proposal to be submitted to the Crown. For four years, until 2000, BML carried out some exploration and engineering work in the area in an effort to complete the feasibility study to re-develop mining operations at the former Alcan Mine. However, BML experienced difficulty in raising the money required and the project stalled. [ 37 ] As late as 2001 BML and the Steelworkers were still dealing with one another over the anticipated project.

At the time there was one member of the Steelworkers providing security services to BML. He resigned in 2001 and BML decided not to replace him on account of its financial instability at the time. [ 38 ] BML did not receive the funding that it sought. For a decade after 2001 there was no contact between the Steelworkers and BML. Since 2001 there has been no employment of any members belonging to the Steelworkers. [ 39 ] By 2009, BML had successfully raised funds and completed its feasibility study.

It reorganized and changed its name to Canada Fluorspar (NL) Inc., which is CFNLI in these proceedings, and a wholly owned subsidiary of Canada Fluorspar Inc., a publicly traded company, on the TSX venture exchange. [ 40 ] In June, 2011 the Steelworkers wrote to CFNLI to assert the continuing validity of its Certification Order. CFNLI responded by indicating that Ernst & Young had not re-opened the mine and that there had been no continuity or continuum of business that would support a recognition of the Steelworkers’ previous collective bargaining rights. The Steelworkers did not respond.

The parties’ positions remain the same as they were in 2011. [ 41 ] In 2012 BML’s mining and surface leases were cancelled by the Crown. New mining and surface leases were issued to BML which, in turn, were transferred to a joint venture with a French company called Newspar. The Newspar mining and surface leases comprised substantially all of the area and assets utilized by SLFL. [ 42 ] In 2013 CFNLI found a new mineralized structure about four kilometres away from the former Blue Beach Mine. A proposal was created to develop the newly discovered deposit – called Grebe’s Nest.

Whereas the former Alcan and SLFL properties consisted of underground mines and related buildings and infrastructure, the Grebe’s Nest deposit was to be mined using an open-pit method. Entirely new buildings were built to house the operations and processing of the fluorspar. By the time that Grebe’s Nest became functional none of the former SLFL mining property was being used at all.

Evidence was led by CFNLI’s CEO that the buildings and equipment formerly used by Alcan and SLFL were dilapidated and unusable. [ 43 ] On the preliminary issue of successorship rights, the Board heard from three witnesses called by CFNLI and one called by the Steelworkers. A number of documents were submitted as exhibits – some by consent, others through the witnesses who testified. In addition, the parties filed a number of cases that they relied upon in support of their submissions. [ 44 ] The Board heard from Barry Sparkes, a registered professional geologist, called by CFNLI. Mr.

Sparkes testified that CFNLI was mining the AGS vein of fluorspar deposit – which does not intersect with other fluorspar veins in the area that had been formerly mined by SLFL and Alcan. [ 45 ] CFNLI’s second witness was Frank Pittman who was an independent consultant hired by CFNLI to do construction management and project management. Mr. Pittman had also been employed by SLFL and, later, with BML and with Newspar. Mr. Pittman testified that CFNLI, unlike SLFL, concentrated on exploring for a near surface mining opportunity since open-pit mining is a

less expensive mining method. He testified that the SLFL mining leases had reverted back to the Crown along with SLFL’s mineral licenses. [ 46 ] CFNLI’s third witness, Bill Dobbs, is the President and CEO of CFNLI. Mr. Dobbs testified that the former mill was a rusty industrial site with holes in the roof of the mill and rusty, forgotten, equipment. His view was that the mill equipment was a liability, not an asset. He testified that CFNLI made no use of the mine site assets and mill equipment of BML.

He stated that CFNLI had built a new mine and new mill at a new site, along with ancillary buildings and equipment. He indicated that the old mill equipment would not be capable of being restarted even after a few months’ work because it had deteriorated too much. [ 47 ] Mr. Dobbs testified that the technology used by CFNLI wasn’t available 10 or 15 years earlier and is entirely different than the technology used by SLFL. [ 48 ] Mr. Boyd Bussey was called on behalf of the Steelworkers. He is a staff representative with the Steelworkers.

He testified that he wrote to CFNLI on June 17, 2011 in order to point out the Steelworkers’ Certification Order for the site in St. Lawrence. He testified that CFNLI replied and took the position that bargaining rights were not in place. Mr. Bussey did not file an application with the Board based on CFNLI’s reply because there were no workers then in place. It was decided to wait until the mine eventually went into production. [ 49 ] Mr. Bussey testified that there are no members of the local for the Steelworkers and no local executive. No dues have been paid by anyone to the local since August, 2001. [ 50 ] Mr.

Bussey testified that he had no knowledge of the negotiated, unsigned collective agreement between the Steelworkers and CFNLI. [ 51 ] The positions of CFNLI, the Steelworkers and the Pipefitters were similar to their positions before the Board. The following is a

summary of each party’s position on the issue of successorship rights: Position of CFNLI a. There is no Collective Agreement in force between the Steelworkers and CFNLI; b. The facts do not support a finding of successorship rights in favour of the Steelworkers; c. There was no continuity of business between the operations of SLFL and CFNLI; d. There was no viable, functioning entity that was transferred from GLADA to BML and, subsequently, to CFNLI, such that successorship rights should now be enforced; e. The Steelworkers abandoned any bargaining rights that it may have. Position of the Steelworkers a.

The Steelworkers holds an existing Certification Order that includes the employees covered by the Pipefitters’ Application; b. There is a Collective Agreement in force between the Steelworkers and CFNLI; c. CFNLI is the same company as BML – since BML reorganized and changed its name; d. BML confirmed to the Steelworkers that it would remain as the bargaining agent for the anticipated project; and e. The Steelworkers has not abandoned its bargaining rights. Position of the Pipefitters a. The period of the mine’s inactivity supports the argument that there are no successorship rights; b.

There is no subsisting Order that includes the employees covered by the Pipefitters’ Application;

c. The Steelworkers lacks standing; d. Even if CFNLI and BML could be considered the same company, that fact alone is insufficient to ground the Steelworkers’bargaining rights; and e. The Steelworkers abandoned any bargaining rights that it may have had. The Board’s Findings Relating to Succession Rights [52] The Board referred to the Supreme Court of Canada’s decision, in a case that had arisen in Newfoundland and Labrador, inW.W. Lester

(1978) Ltd. v. U.A., Local 740, (SCC), [1990] 3 S.C.R. 644, which enunciates the test for determiningwhether successorship rights exist. The Board referred, in part, to the following extract from the W.W. Lester case that appears atparagraphs 52-53 of the W.W. Lester decision: 52 … However, even where the Act provides for disposition of part of a business, transfer of assets alone may be insufficient toestablish successorship. Rather, a discernible part of the business must be disposed of. As George W.

Adams, in his text, CanadianLabour Law (Aurora: Canada Law Book, 1985), at p. 414, states in concluding a review of the law from various jurisdictions: “Invirtually all cases where a sale of a part of a business has been found, a separate and identifiable part of the predecessor’s operation hasbeen transferred”.

Adams continues at p. 415: What is clear from all these cases is that what must be transferred is a portion of the business capable of being defined andidentified as a functioning entity that is viable in itself or sufficiently distinguishable to be severable from the whole. 53 To determine whether or not the business or part of the business has been disposed of, most boards examine the nature of thepredecessor business, and the nature of the successor business determines if the business of the predecessor is being performed by thesuccessor.

Most boards approach the issue by examining factors like the work covered by the terms of the collective agreement, the typeof assets that have been transferred, whether goodwill has been transferred, whether employees are transferred, whether the business isoperating in the same location, whether there is continuity of management, and whether there is continuity of the work performed: … Nosingle factor is determinative, since factors which are sufficient to support a successorship finding in one type of industry may beinsufficient in another: … In each case the Board must determine if, within the business context in which the transaction occurred, it canreasonably be said on the factors present that the business or part of the business has been transferred from the predecessor to thesuccessor.

Because a business is not merely a collection of assets, the vital consideration “is whether the transferee has acquired from thetransferrer a functional economic vehicle”: … [53] The Board indicated that it considered the following factors from Sexton Lumber Co. and CEP, Local 60N, Re, [2012]L.R.B.D.

No. 16, 2012 CarswellNfld 487 (L.R.B.) at paragraph 119 in determining whether or not successorship rights existed in theSteelworkers favour: • the organizational structure of the successor and predecessor employers • the location • similarity in production methods • transfer of customers • transfer of markets • any good will that may have been transferred • trademarks

• accounts receivable • transfer of existing contracts • transfer of any inventory • whether there has been any transfer of the employees. [ 54 ] The Board held that BML did not acquire a “functional economic vehicle” when it purchased the mining assets from GLADA in the asset purchase agreement concluded in 1996.

The Board held that what BML acquired was equipment and assets related to a former mining business that was no longer operating – which had been acquired by GLADA through a receiver in bankruptcy – Ernst & Young – from SLFL. [ 55 ] The Board held that CFNLI’s mining site is not a former mining site or location where SLFL had conducted its mining operations.

CFNLI’s business is conducted on a new site that had not been mined before. [ 56 ] The Board held that the production methods of CFNLI and SLFL were sufficiently different to not support a finding of successorship rights for the Steelworkers. [ 57 ] The Board held that there was neither a transfer of customers from SLFL to GLADA through the Ernst & Young transaction, nor was there a transfer of goodwill.

There could not be a transfer of customers, according to the Board, because there was no ongoing business that was transferred. [ 58 ] Similarly, the Board held that there were no transfers of accounts receivable or transfers of existing contracts. CFNLI ended up with old mining assets and equipment that it did not use and which, it was suggested, was incapable of being used. [ 59 ] And, finally, the Board concluded that although BML had recognized the Steelworkers with respect to its previously proposed operations in the former St.

Lawrence mining areas in the 1990s, this did not create successorship rights with respect to CFNLI’s present- day operations in a new area using new equipment. [ 60 ] The Board found that the Steelworkers had established that it did have identifiable bargaining rights as specified in the historic Orders of the Board.

The Board held that there must be unequivocal evidence which either points to actual abandonment or from which a reasonable inference of abandonment can be drawn. [ 61 ] The Board held that the Steelworkers did not voluntarily abandon its bargaining rights and, while there were lengthy periods of no contact between the Steelworkers and CFNLI, the Steelworkers consistently asserted its bargaining rights. [ 62 ] The Board held that the Steelworkers were not required to undertake academic exercises with an employer in order to represent non-existent employees in order to refute a finding of abandonment of bargaining rights.

The Board said, at paragraph 139 of its decision: 139. If the Intervenor had failed to take reasonable steps to enforce its bargaining rights while there were employees in the bargaining unit that would have supported a finding that the Intervenor had abandoned its bargaining rights.

In this case, though, and following 2001, there were no employees for the Intervenor to represent up until the period of time before the Application was filed. [ 63 ] Despite finding that the Steelworkers had not abandoned its bargaining rights as outlined in the historic Orders of the Board, the Board found that any bargaining rights that the Steelworkers had have no applicability to the employees of CFNLI. [ 64 ] The Board left open the possibility that if the mine sites previously operated by SLFL are re-opened, then it is arguable that the Steelworkers might be able to assert successorship rights at that time.

Issue [ 65 ] The sole issue that I must determine with respect to this aspect of the case is whether or not the Board’s decision in relation to successorship rights is reasonable.

The Steelworkers’ Argument [ 66 ] The Steelworkers argued that the Board’s decision is not reasonable because it does not meet the standards of justification, transparency and intelligibility and that the outcome is not defensible in relation to either the facts or the law. [ 67 ] The Steelworkers argued that the Board ought to have considered whether BML was a successor employer to GLADA. [ 68 ] The Steelworkers took issue with the Board’s analysis concerning whether a functional economic vehicle was passed from GLADA to BML. [ 69 ] The Steelworkers argued that the Board improperly ignored its own historic Certification Orders and, in doing so, failed to address the Steelworkers main argument that the Steelworkers relied upon the Orders to establish its existing bargaining rights.

Furthermore, the Steelworkers said that the Board failed to address its argument that BML and CFNLI are the same employer – so its bargaining rights with BML simply continued with CFNLI after BML had reorganized and changed its name. [ 70 ] In the first of the three historic Orders dated May 18, 1988 the Board certified the Steelworkers, Local 6480 to represent a bargaining unit of employees of SLFL that comprised all employees except supervisory personnel, training instructors, foremen, shift bosses and all those above the rank of foremen and shift bosses in a supervisory capacity, administrative and accounting personnel and certain others listed in the Order. [ 71 ] In the second historic Order the Board substituted Local 9220 for Local 6480. [ 72 ] In the third historic Order, following the insolvency of SLFL, dated November 23, 1994, the Board found that there had been a disposition from Ernst & Young, as Receiver-Manager of SLFL, to GLADA.

The Board held that GLADA was bound to the Collective Agreement in effect between Ernst & Young and the Steelworkers from January 1, 1989 to December 31, 1990. [ 73 ] Neither Ernst & Young nor GLADA reopened the Alcan Mine. [ 74 ] BML acquired the mining assets of GLADA in 1996. [ 75 ] In 2001, in anticipation of receiving a loan from the Provincial government, BML confirmed to the Steelworkers that it would remain as the bargaining agent for the anticipated project – being the refurbishing of the Alcan Mine. [ 76 ] BML continued to employ a member of the Steelworkers until he resigned in 2001.

This person was employed to provide security services for BML’s property. He was not replaced due to BML’s financial inability to sustain the ongoing expenditure. [ 77 ] BML did not receive the anticipated funding from the Provincial government. It did not proceed as planned with the Alcan Mine site. There followed a decade of no contact between BML and the Steelworkers. [ 78 ] In 2009 BML reorganized and changed its name to Canada Fluorspar (NL) Inc. [ 79 ] In June, 2011 the Steelworkers wrote to CFNLI and asserted its continuing rights under the Certification Order.

In August, 2011 CFNLI responded that there had been no continuity in the mining business that would support a recognition of the Steelworkers’ bargaining rights. That continues to be CFNLI’s position. [ 80 ] There is no dispute that BML and CFNLI are the same company. [ 81 ]

Section 93 of the Act states as follows: 93.

(1) Where an employer sells, leases or transfers or otherwise disposes of or agrees to sell, lease, transfer or otherwise dispose of his or her business or the operations of the business or a part of either of them and (

a) the employer or the purchaser, lessee, transferee or person otherwise acquiring the business is a party to or is bound by a collective agreement with a bargaining agent on behalf of employees affected by the sale, lease, transfer, disposition by other means or contract; (b) 1 or more bargaining agents have been certified as bargaining agent for the employees; (c) 1 or more trade unions or a council of trade unions has applied to be certified as bargaining agent for the employees; or (d) 1 or more bargaining agents have given or are entitled to give notice under either

section 72 or

section 73 with respect to the employees, then, unless the board otherwise directs, the collective agreement, certification, application, notice or entitlement to give notice continues in force and is binding upon the purchaser, lessee, trustee or a person otherwise acquiring the business.

(2) An employer, purchaser, lessee, transferee or a bargaining agent, trade union or council of trade unions or other person referred to in subsection (1) may apply to the board for the resolution of a question or problem that as a result of the sale, lease, transfer or disposition has arisen or may arise with respect to a collective agreement, certification, application notice or entitlement to give notice.

(3) Where an application is made under subsection (2), the board shall, by order, make whatever award, give whatever direction, or take other action that in its discretion the board considers appropriate, to resolve a relevant question or problem, and in particular may in that or a later order

(

a) modify or rescind to the extent that the board considers necessary or appropriate a collective agreement; (

b) amend or revoke a certification or amend an application for certification ; (

c) modify or restrict the operation of a notice or entitlement to give notice; (

d) determine whether employees affected constitute 1 or more appropriate bargaining units; (

e) where more than 1 collective agreement is to continue in force, designate the employees that are to be covered by each agreement; (

f) modify or restrict the operation or effect of a provision of a collective agreement and define the rights with respect to the agreement of employees affected by the sale, lease, transfer or disposition by other means; (

g) declare which trade union or council of trade unions shall be the bargaining agent for the employees; and (

h) interpret a provision of a collective agreement. [Emphasis added] [ 82 ] The Steelworkers argued that because BML and CFNLI are the same company, there was no transfer or disposition under

section 93 and the

section does not apply. [ 83 ] The Steelworkers said that in 1991 the Board found that Ernst & Young was a successor employer to SLFL and was bound as the employer to the Certification Order and the Collective Agreement. [ 84 ] The Steelworkers said that in 1994 the Board determined that GLADA was the successor employer to Ernst & Young and GLADA, in turn, became bound by the Certification Order and Collective Agreement. [ 85 ] The Steelworkers said that in 1996 GLADA sold the assets it had acquired from Ernst & Young to BML.

The Steelworkers said that BML acknowledged that it was the successor employer to GLADA, applied the Collective Agreement and negotiated another Collective Agreement in 1997-1998 (which was never executed by either of the parties that negotiated it). [ 86 ] The Steelworkers argued that in 2009 BML reorganized and changed its name to CFNLI.

There was no transfer or disposition of any business as a result of the reorganization and change of name. [ 87 ] In 2001, after the last union member resigned his position with BML, the Steelworkers wrote to BML concerned that its jurisdiction would be compromised if there were no union members working on site. BML’s mine manager, Phonce Cooper, responded on behalf of BML as follows: Regarding your point of not having a unionized position onsite, there should be no need for concern. We have already stipulated in an earlier letter that we recognize Local 9220 USWA as the bargaining unit for the site.

That should be sufficient. Rest assure [sic], there are no alternative motives to my action. My objective and that of our shareholders remain the same as always, to bring this project to production. It has been a long and difficult struggle but the goals are achievable if we all work together. I want to thank you and Local 9220 for your understanding and co-operation to- date. Your past support for our efforts has not gone unnoticed and we commend you for it. … [ 88 ] The Steelworkers argued that its Certification Order is not restricted to any particular project(

s) of CFNLI. It is for “all employees of the Company”, subject only to the stipulated exclusions. It said that its bargaining rights do not attach to any particular employees but, instead, attach to CFNLI’s business undertaking. analysis The Standard of Review [ 89 ] The Supreme Court of Canada has held, in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 that the standard of review for administrative decision is, presumptively, reasonableness. The presumption can be rebutted if the legislation in

question mandates a different standard or where there are constitutional questions, where jurisdictional lines between tribunals are inissue or where there are questions of law of central importance to the legal system as a whole. None of those exceptions are applicablehere and all parties acknowledge that the appropriate standard of review is reasonableness.

I agree that reasonableness is the appropriatestandard. [90] Vavilov instructs, at paragraph 85, that “… a reasonable decision is one that is based on an internally coherent and rationalchain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. … [91] At paragraph 83 of Vavilov the majority of the Supreme Court of Canada said: 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including boththe decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is to review, and they are, at least as ageneral rule, to refrain from deciding the issue themselves. … the reviewing court must consider only whether the decision made by theadministrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable. [92] The majority in Vavilov instructs, at paragraph 127, that while an administrative decision-maker is not expected to respond toeach and every argument made by the parties, it is required to ensure that its reasons meaningfully account for the central issues andconcerns raised by the parties. [93] At paragraph 128 the majority states that a decision-maker’s failure to meaningfully grapple with the key issues or centralarguments raised by the parties may call into question whether the decision-maker was actually alert and sensitive to the matters beforeit. [94] Justice McGrath of this Court had occasion to consider changes in the law occasioned by the Supreme Court of Canada’sdecision in Vavilov.

In Sodexo Canada Limited v.

Hotel Employees and Restaurant Employees International Union, Local 779, 2020NLSC 111 Justice McGrath indicated at paragraphs 26-29 that the starting point for Courts in judicial review applications post-Vavilovcontinues to require Courts to be deferential to administrative tribunals in light of their specialized expertise and experience: 26 While there is a renewed focus on reasons, the Union also asks the Court not to lose sight of the fact that the starting point, asenunciated by the majority of the Supreme Court of Canada in Vavilov, remains judicial restraint and deference to administrativedecision-makers in their own setting.

In fact, both the majority and the dissent in Vavilov note that the concept of curial deference toadministrative tribunals has its genesis in a labour decision from the Supreme Court of Canada: C.U.P.E., Local 963 v. New BrunswickLiquor Corp., (SCC), [1979] 2 S.C.R. 227 (S.C.C.). 27 The Supreme Court of Canada, in Vavilov, also made it clear that reviewing courts should not expect the decision of anadministrative decision-maker to resemble “judicial justice”.

At paragraph 91 of Vavilov, the Supreme Court of Canada states as follows: 91 A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessedagainst a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions,jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside:Newfoundland Nurses, at para 16.

The review of an administrative decision can be divorced neither from the institutional contextin which the decision was made nor from the history of the proceedings. 28 Further, at paragraph, 92, the court takes notice that decision-makers often have expertise and experience that is highly specific totheir field. This can impact both the form and the content of their reasons and make them quite different from a judicial decision.

Thosedifferences are not necessarily a sign of an unreasonable decision. 29 At paragraph 93 of Vavilov, the Supreme Court of Canada also referenced statements made in Dunsmuir that respectful attention to a decision-maker’s demonstrated expertise may reveal to a reviewingcourt that an outcome that might be: ... puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevantadministrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. [95] In International Brotherhood of Electrical Workers, Local 1620 v.

Lower Churchill Transmission Construction Employers’Association Inc., 2020 NLCA 20 the Newfoundland and Labrador Court of Appeal explained with respect to relevant considerations asfollows: Assessing Reasonableness 17 In assessing the reasonableness of a decision, the relevant considerations are summarized in Canada Post:

[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” ( Vavilov at para 85 ). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” ( Vavilov , at para. 84 , quoting Dunsmuir , at para. 48).

The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” ( Vavilov , at para. 97 , citing Newfoundland Nurses [2011 SCC 62 , [2011] 3 S.C.R. 708]). [32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” ( Vavilov , at para. 90 ).

The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility- and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” ( Vavilov , at para. 99 , citing Dunsmuir , at paras. 47 and 74, and Catalyst Paper Corp. v.

North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 (S.C.C.) at para. 13 ). [33] … The challenging party must satisfy the court “that any shortcomings or flaws relied on … are sufficiently central or significant to render the decision unreasonable” ( Vavilov , at para. 100 ). … 18 Considerations that may inform the analysis include: relevant statutory or common law; principles of statutory

interpretation; the evidence; submissions by the parties; past practices and decisions; and impact of the decision on the affected individual. [ 96 ] In NARL Refining Limited Partnership v. United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2020 NLSC 100 Justice McGrath had occasion to discuss the parameters of the reasonableness review.

She indicated that the reasonableness review remained a reasonably robust form of review which looks to the decision-maker’s reasoning process to determine if the decision, as a whole, is reasonable. [ 97 ] Justice McGrath noted, at para. 36 of her decision, that Courts are to intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds the starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision-makers.

However, it is not a “rubber stamping” process or a means of sheltering administrative decision-makers from accountability. It remains a robust form of review. [ 98 ] And, at paragraph 38, Justice McGrath noted that when assessing whether the decision is reasonable, reviewing Courts are reminded that decision-makers communicate their rationale for a decision by means of their reasons.

The Court must therefore be concerned with both the reasonableness of the rationale and its outcome. [ 99 ] At para. 101 of Vavilov , the Supreme Court of Canada stated that in determining if a decision is unreasonable reviewing Courts should consider, firstly, a failure of rationality internal to the reasoning process and, secondly, whether a decision is untenable in some respect in light of the relevant factual and legal constraints that pertain. [ 100 ] At para. 104 of Vavilov, the Supreme Court of Canada gave guidance with respect to the concept of internal rationality – which will be brought into question if the reasons given by the administrative tribunal exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise.

A reviewing Court must ultimately be satisfied that the decision- maker’s reasoning “adds up”. Is the Board’s Decision Reasonable? [ 101 ] The Board was cognizant that the Steelworkers were asserting successorship rights.

The Board held that the Steelworkers had not abandoned its rights under the Collective Agreement. [ 102 ] Therefore, it was incumbent on the Board to identify precisely why successorship rights ought not to apply and, particularly so, when the Board had earlier ruled that GLADA was a successor employer to Ernst & Young. [ 103 ] It will be remembered that Ernst & Young were appointed as Receiver-Manager in respect of the enterprise carried on by SLFL. Ernst & Young did not carry on the business that had been carried on by SLFL, yet the Board ruled that Ernst & Young was a successor employer.

Similarly, GLADA did not carry on the business that had been carried on by SLFL and, yet, the Board ruled that GLADA was a successor employer. [ 104 ] The following table illustrates the factors that would have been considered by the Board for each of the employers that obtained an interest in the fluorspar deposits: SLFL Ernst & Young GLADA BML/CFNLI The organizational structure of the successor and predecessor employers. Operating mine. Receiver-Manager – no mining operations. Acquired property to sell to an interested mine operator. Mine operator.

The location. Former Alcan property. Two underground mines. Former Alcan property. Two underground mines. Former Alcan property. Two underground mines. Former Alcan property and additional licenses for open-pit mine. Similarity in production methods. Undergound mining. No mining carried out. No mining carried out. Open-pit mine. Transfer of customers. No customers were transferred. No customers were transferred. No customers were transferred. Transfer of markets. No markets were transferred. No markets were transferred. No markets were transferred. Any goodwill that may have been transferred.

There was no goodwill to transfer. There was no goodwill to transfer. There was no goodwill to transfer. Trademarks. No evidence of the transfer of any trademarks. No evidence of the transfer of any trademarks. No evidence of the transfer of any trademarks. Accounts Receivable. Receiver-Manager would have taken control of any accounts receivable. No accounts receivable were transferred. No accounts receivable were transferred. Transfer of existing contracts. Receiver-Manager would have received the benefit of any existing contracts. There would not have been any existing contracts to transfer.

There would not have been any existing contracts to transfer. Transfer of any inventory. Receiver-Manager would have become vested of any inventory and would have disposed of it. GLADA did not acquire any inventory. BML did not acquire any inventory from GLADA. Whether there has been any transfer of the employees? Yes. One unionized employee continued to work. Yes. One unionized employee continued to work until 2001. Yes.

One unionized employee worked for BML from 1996 until 2001. [ 105 ] Reviewing Courts should consider, firstly, a failure of rationality internal to the reasoning process and, secondly, whether a decision is untenable in some respect in light of the relevant factual and legal constraints that pertain. [ 106 ] Was there a failure of rationality internal to the Board’s reasoning process? I have concluded that there was such a failure.

Let me explain. [ 107 ] The Board decided that Ernst & Young, although a Receiver-Manager engaged in liquidating the assets of a bankrupt company on behalf of its creditors – and in no way a mine operator, was a successor employer and was bound by the Collective Agreement negotiated by the Steelworkers with SLFL. [ 108 ] The Board could have taken the position, at that time, that there was no transfer of a functional economic vehicle but it did not do so. [ 109 ] Similarly, when Ernst & Young transferred the remaining assets of SLFL to GLADA, it was clear that GLADA was acquiring the property simply so that it could be transferred to a third party interested in mining fluorspar.

GLADA, itself, had no intentions of operating a mine. Nevertheless, the Board determined that GLADA, like Ernst & Young, was a successor employer and that the Collective Agreement applied to it. [ 110 ] BML/CFNLI were interested in mining fluorspar. That was their business. They entered into negotiations with the Steelworkers to renew the Collective Agreement. They assured the Steelworkers in 2001 that the fact that a union member was no longer on staff would not prejudice the Steelworkers’ right to assert that it retained successorship rights.

In 2001 the Board found, at paragraph 54 of its decision, that BML confirmed to the Steelworkers that it would remain as the bargaining agent for the anticipated project (the mining of fluorspar). [ 111 ] It is not logical that a Receiver-Manager and a development association, neither of whom had any intention of carrying on the business of mining fluorspar, could be found to be successor employers but BML/CFNLI – a mining company that wanted to mine fluorspar and had acknowledged the Steelworkers’ right to remain as bargaining agent– would not be accorded the status of a successor employer. [ 112 ] The Board found that BML did not acquire a functional economic vehicle when it purchased mining assets from GLADA in 1996.

As I have indicated earlier, neither Ernst & Young nor GLADA acquired functional economic vehicles either, but in both instances the Board saw fit to award successorship rights to the Steelworkers by designating Ernst & Young and GLADA as successor employers. [ 113 ] The Board found that the mine site being mined by CFNLI was not a site that had been mined by SLFL. The reasoning of the

Board in this regard is baffling. CFNLI is mining fluorspar. The new location is within a few kilometers of the old location. The Board’s reasoning would be more understandable if CFNLI were now operating a strawberry farm, or something else totally unrelated to mining. But that is not the case.

The core business carried out by CFNLI is exactly the same as was carried out by SLFL – the mining of fluorspar ore, refining of same and sales to potential customers worldwide. [ 114 ] The Board drew a distinction between the production methods utilized by SLFL (underground mining) versus those employed by CFNLI (open-pit mining). Considerable time passed between the bankruptcy of SLFL and the time that CFNLI was able to establish its operation. CFNLI had made a discovery of fluorspar that was capable of being mined using open-pit methods as opposed to underground methods.

There was no limitation in the Board’s initial Certification Order concerning the manner in which fluorspar ore was to be wrested from the ground. Had SLFL found the Grebe’s Nest deposit and proceeded to mine it using open-pit methods, the Board would not have ruled that the Certification Order ceased to apply. The methods used for the extraction of the ore are irrelevant to the inquiry concerning the applicability of successorship rights. What is relevant is the fact that BML/CFNLI were carrying on essentially the same business as their predecessor, SLFL.

They were extracting fluorspar ore, processing it and selling the product. It is the same business. [ 115 ] The Board held that there was no transfer of customers, accounts receivable or existing contracts to BML/CFNLI and gave this as another reason for its decision to deny successorship rights.

The decision ignores the Board’s own historic Orders – granting successorship rights in two transactions – Ernst & Young and GLADA – in which there was no transfer of customers, accounts receivable or existing contracts. [ 116 ] The Board did not expressly make a finding on whether or not BML was the successor employer to GLADA.

The Board did not explain why the terms of the original Certification Order – which acknowledged an “all employee” bargaining unit that was not limited territorially, or in the modes of production or in what was produced – did not apply to BML. [ 117 ] Vavilov instructs me to review the Board’s decision in the context of the governing statutory scheme, the evidence that was led, the submissions made by the parties and the past practices and decisions of the Board. Most germane, in that regard, are the three historic Orders made by the Board in relation to fluorspar enterprise in St.

Lawrence. [ 118 ] The Board did not engage in relation to the evidence that was tendered that BML and CFNLI are one and the same. It did not provide any reasoning as to why BML would not be considered a successor employer to GLADA, or why a change in the site or method of production should disentitle the Steelworkers from asserting its successorship rights. [ 119 ] The Board’s finding that the Steelworkers had not abandoned its rights under the Certification Order gives rise to more than a “conundrum” as characterized by the Board. It gives rise to a logical incongruity.

If the Steelworkers’ rights continue then they must do so in accordance with the original Certification Order. Since that Order is silent as to the place in which those rights accrue, or the nature of the enterprise to which they attach, and since the Order covers all employees of CFNLI, there cannot be any limitation that seeks to be territorially based or be based upon the means of production. [ 120 ] For these reasons I find that the Board’s decision relating to the Steelworkers is unreasonable and should be set aside.

The Pipefitters – application for certification Introduction [ 121 ] A trade-based union whose members are more than 50 percent of the employees of one or more employers in a unit may make application to be certified as a bargaining agent for that unit pursuant to

section 36 of the Act . [ 122 ] Section 38(1) of the Act deals with the certification of a bargaining agent. It states as follows: 38.

(1) Where a trade union makes application for certification under this Act as a bargaining agent of employees in a unit, the board shall determine whether the unit in respect of which the application is made is appropriate for collective bargaining and the board may, before certification, where it considers it appropriate to do so, include additional employees in, or exclude employees from, the unit, and shall take those steps that it considers desirable to determine the wishes of the employees in the unit as to the selection of a bargaining agent to act on their behalf. [ 123 ]

Section 38 gives the Board wide discretion to certify or, where appropriate, to add to or subtract from the pool of employees who will make up the bargaining unit. As was the case with respect to the Steelworkers’ Application in this matter, the standard of review is reasonableness. The onus is on the Pipefitters to convince me that the Board’s decision to constitute all employees, with some exceptions, as the appropriate bargaining unit was unreasonable. [ 124 ] By way of background, the Application by the Pipefitters was made as the construction phase of CFNLI’s operation was nearing its end.

Subsequent to construction CFNLI would have undergone two further stages – commissioning and operations. Different skillsets are, presumably, required for each phase of the enterprise, albeit there would undoubtedly be some overlap from phase to phase. The Board’s Ruling [ 125 ] The Board held that the “build-up” principle, as applied in Ontario, is precluded by the legislation in Newfoundland and Labrador. In addition, the Board declined to apply a staged certification approach – which would have had them specify different bargaining units for the various stages of the mining operation.

The Board explained that a staged approach would unduly complicate the certification process and it would create uncertainty. The parties did not argue that the “build-up” principle was applicable in this case. [ 126 ] The Board indicated that the fundamental question it needed to answer was whether the proposed bargaining unit is appropriate. The Board stated that it did not have to determine whether or not the bargaining unit was the most appropriate. [ 127 ] The Board indicated that the factors it must consider in determining whether the bargaining unit is appropriate include:

a. The community of interest between the employees comprising of the unit, which may involve the nature of their work; b. The avoidance of fragmentation caused by defining the unit too narrowly; c. The viability of the unit for collective bargaining; d. The wishes of the parties; and e.

The accessibility of employees to collective bargaining. [128] The Board elaborated upon the meaning of each of the factors at paragraph 183, and later, of its decision. [129] The Board found that the nature of the work performed, terms and conditions of employment, administrative structure,geographical location, skill of the employees and common employment conditions support a finding of community of interest insofar asthe bargaining unit proposed by the Pipefitters is concerned. [130] The Board held that if the bargaining unit is defined in too narrow a manner, then an unnecessary number of small bargainingunits would be certified with negative consequences, namely: weak employee presence at the bargaining table; unnecessary disruption tothe employer and additional potential for incidents of unrest.

It was the Board’s view that fragmentation ought to be avoided. [131] The Board noted, in this regard, at paragraphs 191, 192 and 193 of its decision as follows: 191. The legislative scheme in the Province does not allow for a bargaining unit consisting of operational employees and constructionemployees for the Employer. Operational employees do not work in the industrial and commercial sector of the construction industry.Given this, the potential for there to be more than one bargaining unit with the Employer is unavoidable in these circumstances. 192.

What is avoidable, though, is potentially having more than two bargaining units for the Employer. Having two bargaining units isstill fragmentation but it is less fragmentation than having three, four or five separate bargaining units comprised of operational andconstruction employees. 193. In this case, allowing trade-based certification would increase the potential for a number of smaller bargaining units, which wouldcorrespondingly increase the potential for labour disruption and unrest.

For example, when there are multiple trade-based bargainingunits jurisdictional disputes would naturally arise. [132] The Board noted, at paragraph 195, that in this case the employer is a mining company that sometimes operates in the industrialand commercial sector for capital construction projects. [133] The Board noted, at paragraph 198, that it was not persuaded that a trade-based certification, common in the constructionindustry, is appropriate for a company that only operates in the construction industry sporadically. [134] The Board noted that mining is a sedentary enterprise that is not distributed over a large geographic area.

It is not a seasonalbusiness and, therefore, not prone to significant swings in hiring and layoffs. [135] The Board concluded on this point that serious labour problems could arise from a trade-based certification in this case. TheBoard foresaw that CFNLI may have to work with several bargaining units regardless of the size and complexity of the undertaking. TheBoard felt that this would make the potential for work stoppages, jurisdictional disputes and labour unrest far greater. [136] In support of its conclusion the Board cited Newfoundland and Labrador Court of Appeal’s decision in S.E.A.

Contracting Ltd. v.C.J.A., Local 579, 2002 NFCA 34 , 2002 NLCA 34. The Court of Appeal said, at paragraph 15: 15 The potential for fragmentation of the workforce into different bargaining units is a legitimate consideration for a Board chargedwith the task of determining if a bargaining unit is an appropriate one. Viability of the proposed unit must be considered by the Boardand the number of employees and type of operation are relevant to this consideration.

The Board did not err in considering potential forfragmentation of the workforce. [137] The Board noted that in order for a bargaining unit to be viable for collective bargaining, one must view the administrativestructures of the employer and convenience of bargaining. The Board reiterated that the fewer the number of bargaining units, the greaterthe viability endowed to the bargaining units. The Board indicated that the structure of the bargaining unit should be rational. The Boardwas alert to the notion that centralized management decision-making would have an impact on employment issues.

And lastly, the Boardindicated that it was necessary to consider the economic advantages of the proposed bargaining unit. [138] The Board indicated that at the time the Application was filed there were about 42 employees out of 200 that were to be part ofthe proposed bargaining unit. By 2020 CFNLI employed 209 employees in operations and none of them would have fallen within the

proposed bargaining unit. There were also 35 employees engaged in construction. Of these a maximum of 11 would fall within theproposed bargaining unit. [139] The Board held, at paragraph 208 of its decision, that it was not bound “to limit its assessment of the appropriate bargaining unitto the date of the Application”. It held that on the date of the Application the changes to the workforce (from construction to operations)was foreseeable. It followed the ruling of the British Columbia Labour Relations Board (“BCLRB”) in Vertex Construction Services Ltd.v.

I.U.O.E., Local 115 (2000), 58 C.L.R.B.R. (2d) 161, 2000 CarswellBC 2834 (L.R.B.) at paragraph 76, to the effect that the object ofthe Labour Relations Code, R.S.B.C. 1996, c. 244 does not confine the Board’s consideration of appropriateness to the date of theApplication.

The BCLRB noted that if subsequent events are to be considered in the analysis, that they must be sufficiently immediate orimminent at the time the application is received. [140] The Board held that this factor did not support the bargaining unit proposed by the Pipefitters. [141] The Board would give effect to the wishes of the employees and CFNLI where a consensus ad idem existed. However, no suchconsensus was present in the case before the Board.

Accordingly, the Board ruled that this factor favoured neither CFNLI nor thePipefitters. [142] The last factor considered by the Board related to employee access to collective bargaining.

The Board found that while smallerbargaining units tend to support access to collective bargaining, it is at the cost of fragmentation. [143] The Board ruled that one bargaining unit representing all of the employees working on construction projects for CFNLI would notbe too large or spread out over too many locations to allow for access to collective bargaining. [144] The Board noted, at paragraph 217 of its decision, that the right to unionize was not being brought into question by choosingbetween trade-based bargaining units or an all-employees bargaining unit. [145] The Board indicated, at paragraph 218 of its decision, that its role was to choose the appropriate bargaining unit, not to choose aparticular bargaining agent. [146] The Board indicated that this factor supported neither the Pipefitters nor CFNLI. [147] After reviewing these factors in detail, the Board concluded, at paragraph 227, that the bargaining unit proposed by the Pipefitterswas not appropriate for collective bargaining in the circumstances.

While trade-based certification is the norm in the constructionindustry, it does not follow that it is appropriate for a mining company that undertakes occasional construction projects. The Boardindicated that it was exercising its discretion under

section 38 of the Act to include additional employees in the bargaining unit because itfelt that it was appropriate to do so. [148] The Board indicated that in choosing an appropriate bargaining unit it was fulfilling one of its fundamental roles that go to theheart of the Board’s jurisdiction.

In support the Board cited the Vertex case and the BCLRB’s rationale in paragraphs 70-71. [149] The BCLRB stated, at paragraph 70-71 that the determination of the appropriate bargaining unit is the “linchpin which supportsvirtually every other decision of the Board: supervision of the collective agreement, regulation of collective bargaining, monitoringlabour disputes, and responding to efforts to change a union’s certification through a raid or decertification”. [150] The Board cited a ruling of the Ontario Labour Relations Board in United Steelworkers of America v. Sears Canada Inc., (Ont.

L.R.B.) at paragraph 38 which stated, in part, as follows: 38. Counsel for the Company correctly makes the point that there is a public policy component to the determination of a bargainingunit. Reference was made to The Hospital for Sick Children [1985] OLRB Rep February 266, … and particularly to paragraph 17thereof: 17.

Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and thatuncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of theconcept of the “appropriate bargaining unit”?

Quite simply, it is an effort to inject a public policy component into the initialshaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance thelikelihood of a more viable and harmonious collective bargaining relationship. … [151] The Board ruled that an all-employee bargaining unit was appropriate for the capital construction projects of CFNLI. [152]

Section 38 of the Act directs the Board to determine whether a bargaining unit, as proposed, is appropriate for the purposes ofcollective bargaining. It also gives the Board discretion to add in or exclude employees from the bargaining unit if it considers itappropriate to do so.

The Pipefitters’ Argument [153] The Pipefitters referred the Court to a number of cases in which trade-based bargaining units were appropriate in the industrialand commercial sector of the construction industry. [154] The Pipefitters argued that the Board failed to provide a rational analysis with respect to its views on fragmentation and craftcertification in the construction industry.

They say that the characterization of CFNLI’s business as a mining company was the decisivedifference between a craft and wall-to-wall bargaining unit and that there is no support for taking this action in the Board’s ownjurisprudence, nor can any be found from decisions in other jurisdictions.

[ 155 ] The Pipefitters argued that the Board erred in choosing what it felt was the most appropriate unit for collective bargaining. It said that the Board’s role on a certification application is not to reshape the proposed bargaining unit into one that makes “more sense” or to “choose” one which is “more efficient”. The Pipefitters said that the role of the Board is to assess whether the unit, as proposed, is appropriate for collective bargaining.

They said that while the Board may, in its discretion, determine a bargaining unit is inappropriate, or may even make alterations to the bargaining unit by including or excluding certain employees, what it does not ordinarily do is substitute a more appropriate bargaining unit. [ 156 ] The Pipefitters argued that the Board erred in concluding that the viability of the bargaining unit did not support the Pipefitters’ Application.

They said that the fact that the number of tradespeople within the scope of the proposed bargaining unit had dropped to 11 by January, 2020 did not affect the bargaining unit’s viability for collective bargaining. [ 157 ] The Pipefitters said that there was evidence before the Board that the employer was seeking to hire plumbers and pipefitters in July, 2019. [ 158 ] The Pipefitters argued that the Board erred in failing to consider or afford any weight to the wishes of the employees and their right to join a trade-based union.

It said that the Board’s decision pays very little attention to the right of the workers to organize, on the basis of craft or otherwise. [ 159 ] The Pipefitters said that the Board acted arbitrarily when it decided a craft-based bargaining unit would be inappropriate on the basis that CFNLI was not a construction employer. [ 160 ] The Pipefitters argued that the Board made an error in the process of reasoning and, as well, that the decision is untenable in light of the legal and factual constraints which bear upon this case.

CFNLI’s Argument [ 161 ] CFNLI said that the Board recognized that while craft-based bargaining units may be the norm in the construction industry, the Board had to consider the unique circumstances of the case at hand. [ 162 ] CFNLI argued that different considerations applied in this case because craft-based certification would require CFNLI to negotiate with multiple bargaining units regardless of the magnitude of the project undertaken.

The Board held that this would create the potential for work stoppages, jurisdictional disputes and increased labour unrest. [ 163 ] CFNLI noted that the Board recognized that it had ordered all-employee bargaining units for mining employers in the past, albeit for their mining operations. [ 164 ] CFNLI argued that the Board properly found that there were unique circumstances in this case allowing it to deviate from the traditional approach of certifying craft-based bargaining units. [ 165 ] CFNLI said that the Board had before it Certification Orders that were made from 1976 to 2014 in the mining sector.

These Certification Orders consistently provided for all-employee bargaining units. [ 166 ] CFNLI said that the Board determined that the bargaining unit applied for by the Pipefitters was not appropriate in the circumstances. It said that the Board legitimately exercised its discretion, under

section 38 of the Act , to add additional employees in the bargaining unit because it was appropriate to do so. [ 167 ] CFNLI said that the Board’s finding that the viability of the bargaining unit did not support the Pipefitters’ Application was reasonable in the unique circumstances of this case.

CFNLI said that the Board considered the material evidence before it, including the fact that there was a posting for journeymen pipefitters placed by CFNLI in July, 2019. [ 168 ] CFNLI said that in applying the standard of reasonableness in accordance with Vavilov , the Pipefitters must satisfy the Court that any shortcomings or flaws relied upon are sufficiently central or significant to render the decision “unreasonable”.

CFNLI say that it is not the role of the Court to conduct a “line by line treasure hunt for error”. [ 169 ] CFNLI said that the Board’s reasoning “adds up” in that it logically considered the unique circumstances before it in assessing the viability of the bargaining unit. [ 170 ] Regarding the issue of giving sufficient weight to the wishes of the employees, CFNLI said that the Board properly outlined the factors to be considered in determining whether the bargaining unit was appropriate, including the wishes of the employees and their right to join a trade-based union of their choice. [ 171 ] CFNLI said that

section 38 of the Act provides the Board with the discretion to determine whether the bargaining unit applied for in an application is appropriate for collective bargaining. In addition the

section gives the Board the discretionary authority to include or exclude additional employees in the unit. CFNLI said that the Board exercised its discretion reasonably in light of the circumstances of this case. [ 172 ] CFNLI said that an employee’s freedom to join a trade-based union of their choice must be reconciled with promoting harmonious labour relations. CFNLI said that the Board assessed the bargaining unit put forward by the Pipefitters and determined that it was not appropriate for bargaining.

CFNLI said the Board ultimately determined, having considered all of the applicable factors, that it did not make labour relations sense to have smaller trade-based bargaining units within an otherwise non-construction operation. analysis [ 173 ] The Board is a specialized tribunal with extensive experience in the field of labour relations. They are entitled to a great measure

of deference while their decision is reviewed against the standard of reasonableness. Particularly so when the impugned decision goes to the very heart of the Board’s jurisdiction. As has been noted earlier, the determination of what constitutes an appropriate bargaining unit is critical to many aspects of the relationship between CFNLI and the employees. That decision has been described as the linchpin on which all else turns. [ 174 ] The determination as to whether or not a bargaining unit is appropriate for the purposes of certification, is a question of fact.

In determining whether or not a bargaining unit is appropriate for collective bargaining, the Board is entitled to view all of the salient facts that pertain to the Application – including an assessment of CFNLI’s immediate operations with a view to determining its employment needs. The Board, in this case, saw that CFNLI was ramping up its operations and that capital construction projects would diminish in significance. No one was able to advise the Board with any certainty about what might transpire in the future.

However, the Board was entitled to the view that CFNLI’s mining operations would be its main business whereas the need to engage in construction projects was a peripheral consideration. [ 175 ] I find that the Board was entitled to look to the immediate future to determine the type and scale of jobs that would be available.

Based upon this information it was within the Board’s jurisdiction to determine whether the proposed bargaining unit would be a good fit for the employees affected and for CFNLI. [ 176 ] The task of certifying an appropriate bargaining unit is at the heart of the Board’s jurisdiction and supports many other decisions of the Board. In accordance with Vavilov the Board is entitled to great deference in the construction of its own home statute. [ 177 ] The Board correctly identified its task and the applicable legal principles. It correctly applied the legal principles to the facts of the case.

The Board deviated from its traditional practice, as it is entitled to do, based upon the unique circumstances that prevail in this matter. [ 178 ] The Application related to the mining sector – which traditionally has been certified as an all-employee bargaining unit in this Province. It will be remembered that the Steelworkers in this case was certified as an all-employee bargaining unit when SLFL was the employer. If my decision that the Steelworkers have successorship rights is upheld, then an all-employee bargaining unit already exists in this enterprise.

The Board will need to determine whether the Steelworkers’ Certification Order also extends to CFNLI’s workers who are engaged in construction from time to time, or whether a new bargaining unit would be more appropriate. [ 179 ] While trade-based bargaining units might be the norm in the construction industry, that is not an absolute hard and fast rule. Something unique or different about an employer’s enterprise might well influence the Board to depart from the traditional practice. The Board, in this case, found such a unique circumstance.

It was reasonable for the Board to break with tradition since, following the conclusion of the construction phase, CFNLI would be left with a trade-based bargaining unit within an otherwise non-construction operation. The Board felt that this might lead to labour unrest and disputes. [ 180 ] The standard of review is not perfection. While the Board may have made errors in arriving at its conclusions, the standard to which they must be held is reasonableness. Did the Board follow a reasonable path?

Was the eventual decision reasonable? [ 181 ] I am of the view that the Board did follow a path that was open, accountable and rational. Under the circumstances I cannot find fault with the Board’s conclusion that the proposed bargaining unit was not an appropriate bargaining unit under the circumstances. The Board has made known its opinion that an all-employee bargaining unit to represent construction workers would be preferable.

Any union wishing to represent the construction workers will have to organize the entire construction workforce if it wishes to represent them as its bargaining agent. [ 182 ] The Pipefitters’ Application is dismissed. conclusion [ 183 ] The Steelworkers’ Application is granted. The decision of the Board concerning the successorship rights of the Steelworkers is set aside on the basis that it was unreasonable. [ 184 ] The Steelworkers shall have their costs of the Application as against the parties opposite under Column III of the

Schedule of Costs. [ 185 ] The Pipefitters’ Application is dismissed. The decision of the Board concerni

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