Ontario Labour Relations Board Implements Changes for Upcoming Open Period in the Construction Industry

Transcription

1 March 2013 Labour & Employment Law Section Ontario Labour Relations Board Implements Changes for Upcoming Open Period in the Construction Industry Carrie L. Clynick February 1, 2013 marked the first day of the open period for many construction collective agreements in Ontario. By statute, collective agreements in the ICI and residential sectors of the construction industry are open during the three months prior to their expiry. Many other construction collective agreements follow the same pattern. During the open period, construction trade unions are legally entitled to raid or displace other construction trade unions (known as displacement applications) and employees of a unionized employer are legally entitled to terminate the union's bargaining rights with their employer (known as termination applications). If rumours prove to be true, the 2013 open period will be a busy one. In preparation, the Ontario Labour Relations Board ( OLRB ) has implemented changes to the manner in which disputes in displacement and termination applications in the construction industry are dealt with during the construction open period. 1 The changes are outlined in OLRB Information Bulletin No. 32 which can be found on its website. 2 A review of the changes indicate that the Board is taking a no-nonsense approach, expediting the process and demanding that parties plead their case fully and promptly. These new requirements will require counsel and their construction clients to not only be well organized, but to think critically about which strategies they implement both offensively and in response to applications. This article will provide a brief overview of the changes found in Information Bulletin No. 32. Displacement Applications The initial filing of and responding to displacement applications remains the same, except that in the construction certification package delivered to the employer and any affection union, Information Bulletin No. 32 has replaced Information Bulletin No. 9. Otherwise, parties should still refer to OLRB Information Bulletin No. 6 (Certification of Trade Unions in the Construction Industry) and Rule 25 of the Board's Rules of 1 OLRB Information Bulletin No. 32 applies only to displacement applications and termination applications made between February 1, 2013 and April 30, 2013 and triennially thereafter. It does not apply to nonconstruction applications. 2

2 - 2 - Procedure with respect to the required procedure up to and including the vote 3. As was before, any party who wishes to dispute the inclusion of an individual on the voters' list and/or on the section 8.1 list must identify that individual prior to their casting a vote. Disputes that a party seeks to raise after the conclusion of balloting will not be considered except with leave of the Board. All post-vote submissions are now governed by the new OLRB Information Bulletin No. 32. a) Status Disputes Status disputes generally include a disagreement about whether a person who was on a voters' list or a section 8.1 list: i) was employed by the employer on the date of application, ii) was performing bargaining unit work for the majority of their time on the date of application, iii) exercised managerial functions and is excluded pursuant to s. 1(3)(b) of the Act or iv) was a dependent or independent contractor for the purposes of the Act. 4 Status submissions, both by parties disputing the right of an individual to cast a ballot and by parties who assert that a person should be entitled to cast a ballot must file their submissions setting out all the facts and documents in support of their position no later than ten (10) days 5 after the vote. This deadline also applies to any challenges to the s. 8.1 list. 6 Although the time frame to make these initial status submissions is longer than for displacement applications filed outside the construction open period, the Board has explicitly indicated that it will be holding parties to a higher standard in making submissions during this open period. As indicated in OLRB Information Bulletin No. 32, the Board expects that parties file submissions containing specific facts rather than conclusions or categories of challenges (as has traditionally been done in certification applications) and has indicated that if a party fails to set out sufficiently cogent and particularized facts, it may decline to hear oral evidence related to the dispute. This of course, could have significant implications for the overall success of an application. Parties who wish to respond to the aforementioned set of submissions may do so within a further seven (7) days. These submissions must also include all the facts and documents upon which a party wishes to rely and will be held to the Board's new higher standard. 3 Parties can also refer to OLRB Information Bulletin No. 8 Vote Arrangements in the Construction Industry 4 OLRB Information Bulletin No In the Board's Rules of Procedure, "day" is defined as any day of the week from Monday to Friday, excluding a statutory holiday and any other day the Board is closed 6 All submissions and documents filed with the Board should be provided to all other parties or their counsel prior to or at the same time as they are filed with the Board

3 - 3 - b) Other Disputes Parties who wish to make submissions regarding the conduct of the vote have five (5) days after the vote to do so. If there are disputes other than those pertaining to the conduct of the vote or status, parties must make their submissions regarding the disputes, including full particulars of the facts on which they rely and full legal submissions on the issues within ten (10) days of the vote. 7 As noted in Information Bulletin No. 32, these disputes might include the timeliness of the application, the proper identify of the employer, trade union status, the description of the bargaining unit and conflict with a subsisting collective agreement, among others. Any party wishing to respond to these initial submissions on "other disputes" must do so within a further ten (10) days and must include full particulars of the facts on which they rely and full legal submissions on the issues. It should be noted that both Forms A-71 (Application for Certification Construction Industry) and A-72 (Response to Application for Certification Construction Industry) also contain a space for "other relevant statements" where parties can briefly outline their disputes earlier in the process. 8 c) Disclosure According to Information Bulletin No. 32, each party is still required to advise the others within five (5) days of the other party's last submission of all the documents it seeks to have produced. That party is then required to respond as fully and completely as possible or if they object to producing any document, they must set out their reasons in writing, provide them to the other parties and file them with the Board within five (5) days of receiving the request for production. d) Case Review A significant change in procedure is that there will be no case management hearings in respect of displacement applications filed during the open period. Instead, all the material filed by the parties will be reviewed by a panel of the Board, which will make a determination about the sufficiency of the parties' factual assertions. Again, the Board will be holding the parties to a higher standard of pleadings and particulars than it has previously done, and will only entertain a dispute if a party can demonstrate that it has present knowledge of evidence (verses speculative knowledge) that is likely to be of significance to the dispute. The Board has noted in the absence of such particulars, it may decide the dispute on the basis of the materials filed. 7 The time frame to file submission with respect to "other disputes" is shorter than the fifteen (15) day time frame for displacement applications filed outside the construction open period 8 Form A-77 and A-78 for termination applications/responses also allow for "other relevant statements"

4 - 4 - If a hearing is necessary, the panel will set out what issues are to be addressed on the first day of hearing and if appropriate, the manner in which the hearing is to commence on that day. 9 e) Expedited Hearing For those issues that the Board deems necessary of further review and that cannot be decided based on the written submissions and documentary evidence provided by the parties, the Board will hold an expedited hearing. The hearings will be conducted by a panel of the Board on the Thursday or Friday of the eighth week after the date of the Board's initial decision in the matter. As usual, the party that asserts a person should be on the list or in the bargaining unit is responsible for ensuring their attendance at the hearing (unless the Board orders otherwise). Termination Application The initial filing of and responding to termination applications remains the same as before, except that in the construction certification packages delivered to the union and employer, Information Bulletin No. 32 has replaced Information Bulletin No. 10. Otherwise, parties should still refer to OLRB Information Bulletin No. 7 (Termination of Bargaining Rights in the Construction Industry under sections 63 or 132 of the Labour Relations Act) and Rule 26 of the Board's Rules of Procedure with respect to the required procedure up to and including the vote 10. As with displacement applications, any party who wishes to dispute the inclusion of an individual on the voters' list must identify that individual prior to their casting a vote. Disputes that a party seeks to raise after the conclusion of balloting will not be considered except with leave of the Board. The aforementioned time limits and high standards implemented by OLRB Information Bulletin No. 32 with respect to displacement applications also apply to termination applications filed during the construction open period, including time limits with respect to status disputes, other disputes and disclosure. Another significant change in procedure is that there will be no Regional Meetings in respect of termination applications (after which status and other submissions would normally be due). Instead, as in displacement applications all the material filed by the parties in a termination application will be reviewed by a panel of the Board at a Case Review who will be making a determination about the sufficiency of the parties' factual assertions. Although it is noted in OLRB Information Bulletin No. 32 that the Board will take into account that a party is unrepresented, the Board explicitly states that even unrepresented parties will still have to plead sufficient cogent facts about a disputed person so that the Board is persuaded that there is a need to hear evidence on those facts. 9 OLRB Information Bulletin No Parties can also refer to OLRB Information Bulletin No. 8 Vote Arrangements in the Construction Industry

5 - 5 - As in displacement applications, in the event the Board determines a hearing is necessary, it will be held on the Thursday or Friday of the eighth week after the date of the Board's initial decision in the matter. Counsel representing construction clients should become familiar with the changes implemented by the Board as outlined in Information Bulletin No. 32 and relay the new requirements to their clients. Familiarity with the Board's expectations might just make the difference between success and failure for your clients this open period. About the Author Carrie L. Clynick is an associate at Cavalluzzo Shilton McIntyre & Cornish LLP where she practices in the area of union-side labour law, with an emphasis on the construction industry.