Date: 19991214
Docket: A-362-98
CORAM: ISAAC, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
LEDCOR INDUSTRIES LIMITED
Applicant
- and -
CONSTRUCTION & GENERAL WORKERS UNION,
LOCAL 92 OF THE LABOURERS' INTERNATIONAL
UNION OF NORTH AMERICA;
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 955;
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
& ORNAMENTAL IRON WORKERS, LOCAL 720;
GENERAL TEAMSTERS, LOCAL UNION NO. 262;
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, LOCAL 1325;
AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 424
BHP DIAMOND MINES INC.
STANDARD ELECTRIC LTD.
and CONSTRUCTION WORKERS, UNION (CLAC) LOCAL 63,
AFFILIATED WITH THE CHRISTIAN LABOUR
ASSOCIATION OF CANADA
Respondents
Heard at Calgary, Alberta on Monday, December 13, 1999.
Judgment delivered at Calgary, Alberta, on December 13, 1999.
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON, J.A.
Date: 19991214
Docket: A-362-98
CORAM: ISAAC, J.A.
McDONALD, J.A.
SEXTON, J.A.
BETWEEN:
LEDCOR INDUSTRIES LIMITED
Applicant
- and -
CONSTRUCTION & GENERAL WORKERS UNION,
LOCAL 92 OF THE LABOURERS' INTERNATIONAL
UNION OF NORTH AMERICA;
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 955;
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL
& ORNAMENTAL IRON WORKERS, LOCAL 720;
GENERAL TEAMSTERS, LOCAL UNION NO. 262;
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, LOCAL 1325;
AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 424
BHP DIAMOND MINES INC.
STANDARD ELECTRIC LTD.
and CONSTRUCTION WORKERS, UNION (CLAC) LOCAL 63,
AFFILIATED WITH THE CHRISTIAN LABOUR
ASSOCIATION OF CANADA
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Calgary (Alberta)
on Monday, December 13, 1999)
SEXTON, J.A.:
[1] There are before us two applications for judicial review being A-362-98 and A-363-98. These Reasons are applicable to both applications and a copy of these Reasons will be placed in each file. The applicant Ledcor is a construction company which was employed to construct the operating facilities for a diamond mine in the Northwest Territories. Ledcor employed tradesmen skilled in the various trades to carry out the construction. Standard Electric is an electrical contractor also employed on the same project and it employed only electricians.
[2] The employees of both companies were members of and represented by the Christian Labour Association of Canada (CLAC). The term of the collective agreement between CLAC and Ledcor was January 1, 1997, to May 31, 2000. The Standard Electric employees were also covered by a collective agreement with CLAC running for the same period. The Respondent unions filed an application with the Canada Labour Relations Board pursuant to Section 109 of the Canada Labour Code seeking access to the workers represented by CLAC on the construction project. Section 109 provides:
| 109. (1) Where the Board receives from a trade union an application |
| for an order granting an authorized representative of the trade union |
| access to employees living in an isolated location on premises owned or |
| controlled by their employer or by any other person, the Board may make |
| an order granting the authorized representative of the trade union |
| designated in the order access to the employees on the premises of their employer or such other person, as the case may be, that are designated in the order if the Board determines that access to the employees |
| (a) would be impracticable unless permitted on premises owned or |
| controlled by their employer or by such other person; and |
| (b) is reasonably required for purposes relating to soliciting union |
| memberships, the negotiation or administration of a collective |
| agreement, the processing of a grievance or the provision of a union |
| service to employees. |
| (2) The Board shall, in every order made under subsection (1), specify |
| the method of access to the employees, the times at which access is |
| permitted and the periods of its duration. |
[3] The Board ordered that the Respondents were entitled to access at this specific construction site for the purpose of soliciting union memberships. The Court was informed that the construction was completed in October, 1998. The Respondents have not had access to the employees as of this date. The Respondents have argued that, having regard to the fact that the construction has been completed, this issue is moot. The Applicant argues that the matter is not moot because there are a few employees left on the site to carry out maintenance works and any small bits of construction which may arise. The bulk of the employees have left the site. We have concluded that for all practical purposes the force of the access order is spent and the matter is moot.
[4] We believe that there is a second reason the matter is moot. Section 24 (2) (d)(i) of the Code provides:
| (2) subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made |
| ... |
| (d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-seventh month of its operation and, thereafter only, |
| (i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and |
The collective agreements in question are in their thirty-six month.
[5] The Applicants assert on the appeal that the Board erred in allowing access at a time prior to that permitted by Section 24 (2) (d) (i).
[6] However the Respondents could apply immediately and there would be no problem of timeliness. Similarily there would be no problem of timeliness as of March 1, 2000. This reinforces our view that the matter is moot.
[7] It also appears to us that these applications are premature.
[8] The Applicants argue that the Board has effectively decided the issue of the validity of the collective agreements and also the issues of whether the Respondents should be certified as bargaining agents for the subject employees. We do not so read the Board's Reasons. The Board said:
| The above references are not to suggest that the unit voluntarily recognized by Ledcor and CLAC in their collective agreement is, as argued by the Unions, invalid. Reference is made to the Board's policy and prior jurisprudence simply for the purposes of underlining the apparent difference in the unit configuration described in the recognition clause of the voluntary collective agreement between CLAC and Ledcor and those units which the Board has, in the past, considered appropriate in the construction industry. |
| At this juncture, it is not necessary for us to delve into the issue of whether or not the units, for which the Unions seek to solicit union membership pursuant to section 109, are appropriate for certification under section 28 of the Code. Should the Unions subsequently apply for certification, the appropriateness of the units sought, as well as any objections to the same by Ledcor, CLAC, or BHP, can be addressed within the confines of that application. |
[9] There is another reason why those applications are premature. Subsequent to the Board's decision the Applicants requested the Board to reconsider its decision. The Board has agreed to do so but no reconsideration has yet taken place.
[10] The Applicants argue that the reconsideration only relates to the narrow issue of the existence of a single trade bargaining unit comprised of the electrical employees. We were given the letter of the Board dated April 1, 1999 in which the Board indicates its decision to reconsider. We do not read it so narrowly as the Applicants.
[11] For these reasons these applications are dismissed with one set of costs.
"J. Edgar Sexton"
J.A.
[1]
FEDERAL COURT OF APPEAL
Date: 19991214
Docket: A-362-98
BETWEEN:
LEDCOR INDUSTRIES LIMITED
Applicant
- and -
CONSTRUCTION & GENERAL WORKERS UNION
LOCAL 92 OF THE LABOURERS'
INTERNATIONAL UNION OF NORTH AMERICA;
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 955;
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL & ORNAMENTAL IRON WORKERS,
LOCAL 720; GENERAL TEAMSTERS, LOCAL
UNION NO. 262; UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
LOCAL 1325; AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 424
BHP DIAMOND MINES INC.
STANDARD ELECTRIC LTD.
and CONSTRUCTION WORKERS, UNION
(CLAC) LOCAL 63,
AFFILIATED WITH THE CHRISTIAN LABOUR
ASSOCIATION OF CANADA
Respondents
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-362-98
STYLE OF CAUSE: LEDCOR INDUSTRIES LIMITED v.
CONSTRUCTION & GENERAL WORKERS
UNION, LOCAL 92 OF THE LABOURERS'
INTERNATIONAL UNION OF NORTH AMERICA et
al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Monday, the 13th day of December, 1999
[2] REASONS FOR JUDGMENT OF SEXTON, J.A.
DATED: December 14, 1999
APPEARANCES:
Mr. David J. Ross for the Applicant
and Mr. W.R. Ross Ledcor Industries Limited
Mr. Daniel J. McDonald, Q.C. for the Applicant
Construction Workers'Union
(CLAC) Local 63
Mr. Robert R. Blakely for the Respondent
and Mr. Micah Field Construction & General Workers Union
Local 92
SOLICITORS OF RECORD:
McLennan Ross for the Applicant
Edmonton, Alberta Ledcor Industries Limited
Burnet, Duckworth & Palmer for the Applicant
Calgary, Alberta Construction Workers' Union
(CLAC) Local 63
Blakely & Dushenski for the Respondent
Edmonton, Alberta Construction & General Workers Union
Local 92