2011 NLCA 40, 2011 NLCA 40

Date: 20110615 Docket: 10/58 Citation: Locke’s Electrical Limited v. Newfoundland and Labrador Labour Relations Board et al. , 2011 NLCA 40 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : LOCKE’S ELECTRICAL LIMITED APPELLANT AND : NEWFOUNDLAND AND LABRADOR LABOUR RELATIONS BOARD FIRST RESPONDENT AND : PAUL GEORGE WAYNE WILTON CLAUDE PENNEY CLYDE HILLIER LEONARD JESSO CALVIN SMITH ROBERT GALE CONRAD BANNISTER STEWART HOWELL SECOND RESPONDENTS AND : INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2330 THIRD RESPONDENT

Coram: Green, C.J.N.L., Welsh and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General) 200901T0236 Heard: March 18, 2011 Judgment Rendered: June 15, 2011 Reasons for Judgment by Welsh, J.A. Additional concurring reasons by Green, C.J.N.L. Concurred in by Hoegg, J.A. Counsel for the Appellant: Harold Smith, Q.C.

Counsel for the First Respondent: Jamie Martin Counsel for the Second Respondents: James Bennett Counsel for the Third Respondent: Mark Murray Welsh, J.A.: [ 1 ] Nine workers at a construction site had their employment terminated in a manner that caused them to go to their union for assistance. The union refused to take up their cause. The workers applied to the Labour Relations Board seeking a remedy. The Board concluded that the union had acted in bad faith in failing to deal with the workers’ grievance, and ordered the union to submit the grievance to arbitration.

The employer applied to the Board for a review of its decision, and when that was unsuccessful, sought judicial review in the Trial Division. That too was unsuccessful. The employer’s appeal to this Court focuses on the

interpretation and application of

section 92 of the Labour Relations Act which provides a special grievance procedure for the construction industry. BACKGROUND [ 2 ] On June 15, 2006, Locke’s Electrical Limited (the “Employer”) terminated the employment of nine union members (the “Employees”). The Employees did not accept the Employer’s statement that their termination was due to a shortage of work on the construction site, particularly since, within two days after their terminations, the Employer had replaced all nine of them with other union members.

The Employees sought the support of their union, the International Brotherhood of Electrical Workers (the “Union”). However, the Union refused to take action on the Employees’ behalf. [ 3 ] As a result, on September 8, 2006, the Employees filed a complaint with the Labour Relations Board regarding the Union’s failure to pursue their grievance against the Employer. The Board undertook an investigation and concluded that the conduct of the Union amounted to a lack of good faith.

In a decision dated November 1, 2007, the Board Chair explained, at pages 16 and 17: While the [Union’s] inadequate communication with the [Employees] is not appropriate conduct, such conduct, in itself, did not automatically import a finding of lack of good faith in this matter. Ultimately, it was the [Union’s] conduct surrounding the June 8 th meetings which allowed the Board to conclude that the [Union] acted in bad faith towards the [Employees]. Specifically, at paragraph 15 of the Board Officer’s report, the Officer reported that, on the evening before the June 8 th meetings, Mr. Power and Mr.

Dalton [Union representatives] met with the Employer’s representatives and “confirmed the employer had the right to discipline workers and any workers who were laid off for cause would not be challenged by the union”. The Officer stated that Mr. Power noted that it was typical in the construction industry that lay-offs be used instead of discipline. Leaving aside any views as to the propriety of such a representation to the Employer by the [Union], there was no indication that this representation was communicated to the members before the June 8 th meetings.

If the members had knowledge that the [Union], in essence, gave the Employer “carte blanche” to lay-off members, then it was reasonable to assume that the members may have conducted themselves differently, i.e. by not making any comments at the meetings. It may be, as suggested by many of the [Employees], that the meeting assisted the Employer in identifying who it would lay-off, based on its perception of which members were “troublemakers”; however, there was no indication in the Employer’s response to this application as to why the [Employees] were selected for lay-off and why they were not recalled.

In any event, the meetings occurred due to the [Employees’] activities arising from their perceived violations of the collective agreement regarding, primarily, the 48 hour work week. The fact that the [Union] condoned the Employer’s presence at these meetings exemplified a lack of good faith. It is the Board’s view that it is reasonable to conclude that the Employer’s presence at the meetings, in the circumstances, was clearly intimidating and threatening to the members.

Further, it is the Board’s view that it was inappropriate for the [Union] to fail to disclose that it had verbally relinquished the right to challenge lay-offs. The [Union] was instrumental in creating a circumstance in which some of the [Employees’] comments may have lead to their termination.

The Board found that the lack of good faith exhibited by the [Union] in relation to the June 8 th meetings was to such an extent that it allowed the Board to find that there was a lack of good faith in the handling of the grievance. The [Union’s] refusal to deal with the [Employees’] grievance is consistent with the representation it made to the Employer prior to the June 8 th meetings. In

summary, the Board was of the view that the lack of good faith displayed by the [Union] in its failure to disclose to the members the deal it had made with the Employer on June 7 th , and by its condonation of the Employer’s participation at the June 8 th meetings, could not be considered separate from its refusal to deal with the [Employees’] grievance.

In other words, based on the conduct of the [Union] before and after the June 8 th meeting, the only reasonable conclusion which could be made is that there was a lack of good faith in the handling of the [Employees’] grievance. [ 4 ] Having found that the Union had not acted in good faith in dealing with the Employees’ grievance, the Board ordered the Union to submit the Employees’ grievance to arbitration. This was the remedy that was sought by the Employees.

However, the Employer objected to the Board’s order that the Union proceed “to submit the grievance filed by Paul George et al. dated 28 June 2006 to arbitration” on the grounds that the grievance filed by Mr. George and others was a grievance improperly taken under the collective agreement by the Employees rather than the Union, and further, that a grievance under the collective agreement was precluded by

section 92 of the Act dealing with disputes arising in the construction industry. In the absence of counsel for the parties,

section 92 had not been raised before the Board. [ 5 ] Accordingly, the Employer applied to the Board to have the November 1, 2007 decision of the Board (the “first Board decision”) reviewed and rescinded as permitted under section 19(2) of the Labour Relations Act , RSNL 1990, c. L-1. The Board’s finding that the Union had not acted in good faith was not challenged. Rather, the focus of the application for a review was the Board’s order and the failure of the first Board to consider whether the Employees’ application under

section 130 of the Act, which permits employees to challenge the conduct of their union, was precluded by

section 92. [ 6 ] In an order dated September 17, 2008, the Board stated that, having considered the Employer’s application for a review, and having determined that there was “no reason to alter its original decision”, the Employer’s application for review “be and it is hereby rejected”. On October 22, 2008, the Board issued reasons for that decision. The Board considered

section 92 of the Act, making the following determinations: [31] … There is nothing in

Section 92 that indicates that it should supplant the provisions of

Section 130. Likewise, there is nothing in

Section 130 to indicate that workers in the construction industry are excluded from the remedies available to employees under

Section 130 of the Act . … [34] … It would be a narrow

interpretation of the Act and contrary to public policy to construe the Act to mean that employees in the construction industry are unable to avail themselves of the provisions in

Section 130, thereby providing no remedy to such employees in the event that their bargaining agent fails to act in good faith. [35] … The argument, as the panel understands it, is that

Section 92 somehow trumps

Section 130. None of the parties was able to provide legislation or jurisprudence to support that exact point to say that the Board should disallow

Section 130 applications because this particular application deals with employees in the construction industry. … [40] It is against public policy interests and against the interests of collective bargaining to ignore the employee’s right to fair representation and the union’s concurrent duty to act in good faith when representing employees. [ 7 ] The Employer then applied for judicial review of the Board decisions, again raising arguments regarding the statement of the grievance in the order and the operation of

section 92. The applications judge determined that the decisions should be reviewed on a standard of reasonableness. She concluded that the Board’s decision following the review was reasonable and dismissed the Employer’s application with costs to the Employees. [ 8 ] I note that this appeal proceeds on the basis that the Union acted in bad faith, or, as stated by the Board in the alternative, not in good faith. The Board’s finding on that issue, which was the focus of the first Board decision, was not challenged at any stage of the proceedings.

I also note that, at the hearing in this Court, the Union indicated that it was prepared to proceed to arbitration after the first Board decision. However, throughout the subsequent proceedings, the Union continued to support the Employer’s position against the Employees. ISSUES [ 9 ] At issue in this appeal is whether the applications judge erred in concluding that the Board’s decision to order the Union to submit the Employees’ grievance to arbitration was reasonable given the operation of

section 92 of the Act in the construction industry. ANALYSIS Legislation [ 10 ]

Section 92 of the Act provides a process for resolving employee-employer disputes in the construction industry. The purpose is to achieve resolution as quickly and efficiently as possible so as to avoid work stoppages during a limited construction season.

Section 92 states, in relevant parts:

(1) This

section applies only to the construction industry.

(2) Where an employer or employers’ organization has entered into a collective agreement, then, notwithstanding anything to the contrary in this Act or in the collective agreement, a dispute or difference between the parties to the collective agreement, including persons bound by the collective agreement, relating to or involving (

a) the

interpretation, meaning, application or administration of the collective agreement or a provision of the collective agreement; (

b) a violation or an allegation of a violation of the collective agreement; (

c) working conditions; or (

d) a question whether a matter is arbitrable, shall be submitted for final settlement to arbitration in accordance with this

section in substitution for an arbitration or arbitration procedure provided for in the collective agreement. …

(4) Where a dispute or difference arises that the parties are unable to resolve on the day on which the dispute or difference arises, the parties to the dispute or difference shall agree by midnight of that day upon the appointment of a single arbitrator to arbitrate the dispute or difference.

(5) Where 1 of the parties advises the minister that a dispute or difference has arisen and that the parties to the dispute or difference have failed to comply with subsection (4) or (12), the minister shall, as soon as possible, appoint an arbitrator. …

(8) The decision of the arbitrator shall be made within 48 hours of the time of appointment unless an extension is agreed upon by the parties. …

(12) Where the parties to a dispute or difference agree before midnight of the day on which the dispute or difference arises to invoke a grievance procedure contained in the collective agreement instead of proceeding as required by subsection (4), the parties may so settle the dispute or difference and failing settlement by those means the parties may, notwithstanding anything in this section, proceed to settlement by arbitration under

section 86. Pursuant to

section 86 of the Act, a collective agreement must include “a provision for final settlement without stoppage of work, by arbitration or otherwise”. Where a provision to this effect is not included in the collective agreement,

section 86 provides a statutory arbitration process to be applied. [ 11 ]

Section 130 of the Act provides a process and remedies applicable when employees claim that the union has acted in bad faith in handling their grievance. It states in relevant parts:

(1) An employee in a bargaining unit, who claims to be aggrieved because his or her bargaining agent has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that he or she has filed or attempted to file with that bargaining agent in accordance with a procedure that has been established by the bargaining agent may make a written complaint to the board.

(2) A complaint made under subsection (1) shall be made within 90 days from the date on which the complainant knew or, in the opinion of the board, ought to have known, of the action or circumstances, giving rise to the complaint.

(3) The board shall investigate a complaint made to it under subsection (1) and determine whether the bargaining agent acted in a manner that was arbitrary or discriminatory or in bad faith.

(4) A provision in this Act or a collective agreement that limits the time in which a grievance or arbitration proceeding shall begin or a decision made does not apply where a matter is referred to the board under this section.

(5) Where, on investigation of a complaint in accordance with subsection (3), the board finds that the bargaining agent acted in a manner that was arbitrary or discriminatory or in bad faith, the board shall direct that bargaining agent to take those steps that the board thinks appropriate in the circumstances. … Standard of Review [ 12 ] The applications judge concluded that reasonableness is the appropriate standard of review to be applied to the Board’s decision. I agree.

The issue in dispute required the Board to interpret and apply the legislation that is central to its mandate, clearly falling within its expertise. Reasonableness of the Board’s Decision [ 13 ] It is unnecessary to determine whether the first Board decision was unreasonable on the basis of the failure to consider

section 92 of the Act, an issue that was not raised before that panel, because the issue was addressed by the second panel when a review was sought in accordance with

section 19 of the Act. The applications judge determined that the Board’s decision, after taking account of the submissions on

section 92, was reasonable. I agree for the following reasons.

[ 14 ]

Section 92 of the Act provides a process for resolving employee-employer disputes where the union, as the bargaining agent, represents the interests of the employees. Individual employees have no standing to take action under

section 92. That right is reserved to the employer and the union, being the parties to the collective agreement. [ 15 ] As noted above, in the construction industry, resolving disputes without delay is an important consideration. Where a dispute cannot be settled on the same day, provision is made in

section 92 for the parties to submit the dispute to arbitration. However, although timeframes to encourage expeditious settlement of a dispute are specified, they will not apply in every circumstance. For example, under subsection (5), if the parties cannot agree on an arbitrator, application must be made to the minister to make the appointment. Further, under subsection (12), the parties may agree “to invoke a grievance procedure contained in the collective agreement instead of proceeding as required by subsection (4)”. [ 16 ] By contrast,

section 130 of the Act is directed, not to a dispute between the employer and the union, but to a claim by employees that their union has acted in bad faith, in this case, by failing to act on their grievance. The limitation period for making the application under

section 130 is ninety days from when the employees knew or should have known of the action or circumstances giving rise to their complaint. Time limitations as to bringing a grievance or an arbitration proceeding specified in another provision in the Act, which would include

section 92, are rendered inapplicable (section 130(4)). [ 17 ] The remedy available under

section 130 is broadly stated; that is, the Board is authorized to direct the union “to take those steps that the board thinks appropriate in the circumstances”. In this case, the Employees asked for an order that the Union take their grievance against the Employer to arbitration. This is the remedy the Board granted and, in fact, is the remedy, that is, arbitration, that would have applied under

section 92 had the Union not failed to act on behalf of the Employees. The Employer has, in practical terms, lost only the benefit of the time lines specified in

section 92. As noted above, such time lines are specifically rendered inoperative by section 130(4). The Employer has at no point requested resolution of the dispute by invoking the grievance procedure contained in the collective agreement pursuant to section 92(12) of the Act. [ 18 ] Of significant importance is the fact that there is nothing in

section 92 that would limit or preclude the operation of

section 130. Indeed, as noted in the Board’s decision, there is no basis on which to conclude that employees in the construction industry should be prevented from applying to the Board for an appropriate remedy where they claim their union has acted in bad faith. [ 19 ] One submission the Employer made was that the Board had no authority to order the Union to submit the “grievance filed by Paul George, et al., dated 28 June, 2006, to arbitration” because that grievance was brought by reference to

article 15 of the collective agreement, and

section 92 of the Act displaces the collective agreement. I do not accept this proposition. [ 20 ] I begin with the Board’s order requiring the Union to submit the grievance to arbitration, and a review of the purpose of

article 15 of the collective agreement, together with the potential application of

article 15 in these circumstances. The order states: WHEREAS pursuant to

Section 130 of the Labour Relations Act , the Labour Relations Board has received a complaint from Paul George, et al. alleging that International Brotherhood of Electrical Workers, Local 2330 has failed to act in good faith in the handling of a grievance they have against Locke’s Electrical Ltd.; AND WHEREAS the Board, following investigation and consideration of the representations of the interested parties, has determined that International Brotherhood of Electrical Workers, Local 2330 has failed to act in good faith in the handling of a grievance Paul George, et al. has against Locke’s Electrical Ltd.; NOW THEREFORE it is hereby ordered by the Labour Relations Board that International Brotherhood of Electrical Workers, Local 2330 proceed forthwith to submit the grievance filed by Paul George, et al. dated 28 June, 2006 to arbitration.

Article 15 states: 15.02 The parties to this Agreement are agreed that it is of the utmost importance to adjust [sic] complaints and grievances as quickly as possible and shall be settled in the following manner: 15.03 STEP 1 The matter shall be taken up with the Foreman by the employee and/or Job Steward and/or Business Agent. Failing settlement within one (1) working day, the matter will proceed to Step 2 within a further one (1) working day. 15.04 STEP 2 The matter shall be taken up with the Supervisor by the Job Steward and /or Business Agent.

Failing settlement within one (1) working day, the matter will proceed to Step 3 within a further one (1) working day. 15.05 STEP 3 The grievance shall be put in writing referring to the clauses of the Collective Agreement violated and taken up with the employer. The employer shall make reply in writing within two (2) working days.

If the grievance is not then settled or if the employer fails to make reply within the aforementioned two (2) working days, then within a further two (2) working days, either party may refer the matter to Arbitration in accordance with …” [ 21 ] Given that the time frames set out in steps one and two could not be applied in this case due to the passage of time and the operation of section 130(4) of the Act, the relevant components addressed in

article 15 are: (1) that the grievance, providing specifics, must be put in writing and given to the employer; and (2) that either the union or employer may submit the matter to arbitration. Requiring that the grievance be in writing and that it refer to the relevant clauses of the collective agreement alleged to have been violated is an efficient tool to ensure the employer has notice as to the grounds for the grievance. Compliance with this requirement is not inconsistent with

section 92 of the Act. Indeed,

section 92 displaces the collective agreement in a very limited way; that is, by specifying in subsection (4) that, if the parties are unable to resolve the dispute on the day on which it arises, they are to agree by midnight of that day upon the appointment of a single arbitrator.

Section 92 does not address how the nature of the dispute or grievance is to be set out for purposes of notice to the employer and consideration by the arbitrator. [ 22 ] As applied to this case, the Board’s reference to the grievance filed by Mr. George would serve the purpose of ensuring that the

nature of the grievance is specified in writing. The Board did not order that the grievance be submitted to arbitration in accordance with the provisions of the collective agreement. Setting aside the time requirements of

section 92 and

article 15 which could not be applied due to the passage of time and the operation of section 130(4), if there is a difference between the Act and the collective agreement in respect of the arbitration procedure, the procedure under

section 92 would apply. [ 23 ] In

summary, the reference to the grievance filed by Mr. George in the Board’s order must be taken to refer to providing written notice to the Employer regarding the nature of the grievance. The reference does not incorporate direction as to the procedure to be applied when the matter goes to arbitration.

Section 92 of the Act, which deals with that issue, and which specifies arbitration by a single arbitrator, would apply. As discussed above, the time constraints set out in

section 92 would not apply insofar as they have been rendered inoperative by the passage of time and section 130(4) of the Act. The Board’s order is consistent with its broad mandate under section 130(5) to order the Union “to take those steps that the board thinks appropriate in the circumstances”. [ 24 ] The Employer also focused on the language of the Board’s order referring to the “grievance filed by Paul George, et al.” to submit that there was, in fact, no valid grievance that the Board could order the Union to submit to arbitration because the Employees had no standing to file a grievance.

The Employer submitted that the Board could have ordered the Union to grieve the Employees’ layoffs, but that it could not order the Union to submit the Employees’ grievance to arbitration. This submission fails to take account of the context in which the language of the legislation and the order must be read. [ 25 ] It is clear from the Board decisions that what was intended was that the Union would proceed to deal with the complaint the Employees had against the Employer by taking the matter to arbitration.

As discussed above, “grievance” as referred to in the context of the Board’s order amounts to a convenient and efficient way to describe in written form the complaint brought by the Employees regarding their layoffs. There is no basis on which to infer or conclude that this was an attempt by the Board either to assign to the Employees a power they did not have to file a grievance, or to redefine the meaning of grievance so as to circumvent the technical use of the term as it applies to preclude the filing of a grievance by an employee.

It is clear that the Board intended simply to provide an appropriate remedy under

section 130 of the Act by ordering the Union to take action on behalf of the Employees to have the issue of their layoffs determined by arbitration. [ 26 ] The Employer also submitted that there must be some process internal to the Union under

section 130, and that there was no evidence as to the operation of and compliance with that process.

For ease of reference, I repeat section 130(1): An employee in a bargaining unit, who claims to be aggrieved because his or her bargaining agent has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that he or she has filed or attempted to file with that bargaining agent in accordance with a procedure that has been established by the bargaining agent may make a written complaint to the board. [ 27 ] This provision serves the purpose of setting out the circumstances in which an employee may make a complaint to the Board that the union has acted in bad faith.

One of the requirements is that the employee follow the “procedure that has been established by the bargaining agent” in bringing forward the complaint. The references in this context to “grievance” and “a procedure that has been established by the bargaining agent” provide the grounds and process for an application to the Board under

section 130. They have nothing to do with the employer, and do not restrict the remedy the Board may grant where it is satisfied that the employee’s complaint establishes bad faith by the union. [ 28 ] The Employer also submitted that

section 92 provides options alternative to arbitration which should be available, but which could not be accessed because the order is for the Union to submit the matter to arbitration. The Employer stated in its factum that: [70] … [The Employer and the Union] could: (1) resolve the dispute on the day that the grievance is filed; (2) agree, by midnight of the day that the grievance is filed, upon the appointment of a single arbitrator to arbitrate the dispute; or (3) agree, by midnight of the day that the grievance is filed to invoke the grievance procedure contained in

Section 15 of the collective agreement. [ 29 ] In referring to “the day that the grievance is filed”, the Employer has failed to recognize that

section 92 does not refer to a grievance, other than where the grievance procedure under the collective agreement is invoked under subsection (12). Rather,

section 92 refers to resolution of “a dispute or difference”. For convenience, I repeat subsection (4): Where a dispute or difference arises that the parties are unable to resolve on the day on which the dispute or difference arises, the parties to the dispute or difference shall agree by midnight of that day upon the appointment of a single arbitrator to arbitrate the dispute or difference. [ 30 ] In this case, the day on which the dispute or difference arose is long since past. Resolution of the matter by a single arbitrator in accordance with section 92(4) is consistent with the order made by the Board.

The Employer’s focus on the filing of a grievance by the Union to engage the provisions of

section 92 is not supported by the language of the legislation. [ 31 ] Finally, the Employer submitted that the Board erred in finding that

section 130 “creates a general duty of fair representation” (Employer’s factum, paragraph 95). The Employer referred to the following paragraph in the reasons for the second Board decision: [36] The employer and the union argued that because the employer and the union are the only parties to the collective agreement, and because neither of them invoked Section 92(12) of the Labour Relations Act , access to the grievance procedure is not available to the employees. While there is nothing in the Act to say that the Union must bring the grievance on behalf of the employees,

Section 130 clearly and unequivocally recognizes the employees’ right to be fairly represented by the union and the union’s unequivocal duty to act in good faith. If the union failed to initiate the grievance procedure on behalf of the employees under the time constraints outlined in

Section 92 as a result of bad faith, then the union should be held accountable for that failure to initiate the process because the process is

not otherwise available to the employees to bring on their own: they are not parties to the collective agreement. (Underlining in original.) [32] Read in context, the Board stated that the Union had a duty to act in good faith when assessing whether to proceed with thedispute against the Employer on behalf of the Employees.

The Employees’ right to fair representation by the Union, which is referencedthroughout the reasons for the second Board decision, is directed to the bad faith manner in which the Union dealt with the Employees,and in this sense, the question of fair representation was a relevant consideration. [33] In the result, it cannot be said that the Board’s decision was unreasonable. In the language of Dunsmuir v. New Brunswick,2008 SCC 9 , [2008] 1 S.C.R. 190, the decision “falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law” (paragraph 47).

It follows that the applications judge did not err in concluding that the Board’s decision wasreasonable in ordering the Union to submit to arbitration the grievance alleged by the Employees against the Employer. Costs [34] The Employees shall have their costs in this Court and in the Court below on a party and party basis as against the Employerand the Union, apportioned on the basis that each would pay fifty percent of the Employees’ costs.

The inappropriate conduct of theUnion was the genesis of the court actions, and, while the Union indicated in this Court that it was prepared to proceed in accordancewith the first Board’s order, the Union has, nonetheless, throughout the process supported the position of the Employer against theEmployees.

I would add here that, despite the position taken on this appeal, the Union has undertaken to proceed with the arbitration onthe Employees’ behalf with the utmost good faith and diligence. [35] I note in passing that the first Board failed to deal with the Employees’ request for an order that the Union “pay for costsincurred [by the Employees] thus far for labour relations advice regarding the complaint” (first Board decision, at page 8).

While theEmployees’ request for such an order was not made in this Court and is, therefore, not a matter for consideration here, I note in obiterthat, where the Board finds that a union acted in bad faith, a request such as this by employees should be specifically addressed by theBoard to explain why the request is either granted or denied.

SUMMARY AND DISPOSITION [36] The applications judge did not err in concluding that the Board’s decision was reasonable in ordering the Union to submit toarbitration the grievance alleged by the Employees against the Employer. Accordingly, the appeal is dismissed. [37] The Employees shall have their party and party costs as against the Employer and the Union, apportioned such that each willpay fifty percent of the Employees’ costs in this Court and in the Court below. _______________________ B.G. Welsh, J.A.

Green, C.J.N.L.: [38] I agree with my colleague, Welsh, J.A. that this appeal should be dismissed for the reasons given by her. [39] I would add, however, that the essence of the appellant’s argument in support of the appeal proceeds on a false premise, basedon an inappropriate reading of the wording of the first Board order.

The operative part of the order required the union to submit the grievance filed by Paul George et al. dated 28 June 2006 to arbitration. [40] The reference to the “grievance filed by Paul George et al dated 28 June 2006” relates to the document submitted by theemployees themselves to the employer, purportedly under

article 15 of the collective agreement, after the union had failed or refused toact on their behalf. [41] The appellant has seized on the literal words of the order and argues, relying on this Court’s decision in United Association ofJourneymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 v.

NewfoundlandProcessing Ltd. et al (1993), (NL CA), 108 Nfld. & P.E.I.R. 271, that the Board was expressly ordering the union todo something that it had no authority to do, viz. to require the implementation of a grievance procedure, by proceeding to arbitrationunder the collective agreement when its applicability was excluded by the operation of s. 92 of the Labour Relations Act. In theNewfoundland Processing case, the Court held that s. 92(2), which provided that the special procedure in that

section is “in substitutionfor an arbitration or arbitration procedure provided for in the collective agreement”, precluded recourse by the employees to thecollective agreement grievance procedure (except in the limited circumstances where s. 92(12) applies) because the two cannototherwise co-exist.

Furthermore, control over processing of disputes in the construction industry is vested in the union, not the employeesthe union represents. [42] While it is true that, because the applicability of s. 92 was not argued at the Board hearing, the focus was on the steps theemployees had taken in the face of the union’s refusal to act on their behalf, and the Board referred to the provisions of the collectiveagreement in the course of its reasons, a fair reading of the Board’s reasons shows that the fundamental concern of the Board was that

the union had not acted in good faith in its dealings with the employees with respect to their complaint as to how they had been treated bythe employer and that they were entitled to have their complaints properly dealt with.

The wording of the Board’s order must be readand understood in the context of that fundamental purpose. [43] It is inappropriate to parse the language of the Board order as if it were a statutory provision such as might be found in ataxation statute. [44] The order can – and should – be read not as requiring a specific procedure (i.e. processing a grievance under an inapplicablecollective agreement grievance process) but as requiring the union to take whatever steps were appropriate to ensure that theemployees’ complaints (their “grievances” in common, not technical, parlance) were presented to the employer and dealt withappropriately.

The reference to the document, styled “grievance”, dated 28 June 2006 need not be taken as requiring that piece of paperto continue to be processed, but simply as a convenient referent to the nature of the complaint of the employees, as described in thatdocument. [45] This is the approach the applications judge took to the

interpretation of the order: [32] … Although there may be somewhat of an ambiguity in the way the foregoing order is stated, what the Board intended is readilyapparent in its identification of the request of the applicants … There is no indication the union misunderstood the intent of the firstBoard in making the order. All the parties would be aware that the employees could not file a grievance under the collective agreement.The basis for the employees proceeding with a

Section 130 application was to compel the union to grieve on their behalf.

It would beunreasonable to accept the applicant’s position, on this point, when it is obvious that the union was being ordered to proceed with agrievance on behalf of the second respondents, in a style similar to that filed by Paul George, et al. dated June 28, 2006. [Underlining added.] [46] While it is true that, under s. 92, there are other ways of resolving disputes than proceeding to arbitration, such as by settlementreached between the union and the employer, it does not follow that the Board, in ordering the union proceed directly to arbitration, wasunreasonably or illegally limiting full recourse to the dispute resolution mechanisms of that section.

It is clear that the Board was notimpressed with the discussions between the union and the employer which led to the union taking a “hands-off” approach regarding theinterests of these particular employees. In those circumstances, there was nothing inappropriate in ordering the union to proceed directlyto arbitration because of lack of confidence that the union, if it “settled” the dispute, would act in good faith in their interests. [47] In the circumstances, it can be said that the applications judge did not err in concluding that the Board’s decision was notunreasonable.

So interpreted, the Board’s decision can be said to fall “within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law” (see, Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, para. 47). J. D. Green, C. J.N.L. [48] I join with the Chief Justice in concurring in the reasons and result set out by our colleague Welsh, J.A. I concur, as well, inthe additional reasons set out by the Chief Justice. L. R. Hoegg, J.A.