1999 Date: 20000728
Docket: S.H. No. 157617
IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 927 v. International Union of Operating Engineers, Local 721,
2000 NSSC 81
BETWEEN:
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOCAL 927
Applicant
-and-
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 721, LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 615 and BFC MARINE
Respondents
DECISION
HEARD BEFORE: The Honourable Justice Robert W. Wright, in Halifax, Nova Scotia on March 23, 2000
WRITTEN RELEASE
OF DECISION: July 28, 2000
COUNSEL: Harold Doherty for the Applicant - Teamsters Local 927
Ronald Pink, Q.C. and David Roberts for the Operating Engineers and Labourers Unions
Alex Ikejiani for the Labour Relations Board (Nova Scotia)
Terry Roane, Q.C. for the Respondent BFC Marine
Wright, J.
INTRODUCTION
[1] On January 28, 1999 the Construction Industry Panel of the Nova Scotia Labour Relations Board (“the Panel”) rendered a decision resolving a jurisdictional dispute between the International Union of Operating Engineers, Local 721 (“the Engineers”) joined with the Labourers International Union of North America, Local 615 (“the Labourers”) on the one hand and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, Local 927 (“the Teamsters”) on the other. The work in dispute was the driving of trucks in connection with the gas pipeline construction project undertaken in Nova Scotia by BFC Marine (“BFC”). BFC was engaged by Maritimes & Northeast Pipeline Management Inc., the owner of the pipeline project, to construct a pipeline from Goldboro, Nova Scotia to the Canada-US border at St. Stephen, New Brunswick between the months of May and October, 1999.
[2] In its decision , the Panel directed that the driving of trucks over one ton was to be assigned to the Engineers and that the driving of trucks of one ton and under was to be assigned to the Labourers, unless such transporting was to be done over an unreasonably large distance in which case the work was to be done by the Teamsters. The qualification in relation to unreasonably large distances was not to apply to owner-operated trucks. The validity of that decision is now challenged by the Teamsters by way of an application for judicial review by this Court.
HISTORY OF THE PROCEEDINGS
[3] This dispute had its beginning on November 9, 1998 when BFC assigned the driving of trucks on the project to members of the Teamsters in keeping with the provisions of the National Agreement for mainline pipeline construction dating back to 1954. This prompted the filing of a jurisdictional complaint by both the Engineers and Labourers under Section 52 of the Trade Union Act (“the Act”) who claimed the jurisdiction over such work historically in Nova Scotia. The Panel, being satisfied that a jurisdictional dispute existed and that a work stoppage was likely to occur if it was not resolved, issued interim Orders on November 16 and 24, 1998 assigning the disputed work to the Teamsters.
[4] The Panel then conducted a formal hearing into the two jurisdictional complaints which was heard on December 16 -19, 1998. The Panel’s decision was to rescind those interim Orders and to award the disputed work to members of the Engineers and Labourers, the dividing line of the work being determined by the size of the trucks to be driven. More specifically, the Engineers were assigned the work of driving low bed and flat deck trucks (trucks over one ton) while the Labourers were assigned the work of driving “crew cab trucks” (trucks one ton and under). The only work thereby remaining available for members of the Teamsters was the driving of trucks over an unreasonably large distance (which qualification was not to apply to owner-operated trucks).
[5] In March of 1999, the Teamsters filed an application to have the Panel reconsider its decision. The application was denied which lead to the filing of this application for judicial review in which the Court is asked to quash and set aside the decision of the Panel released on January 28, 1999.
SUMMARY OF TEAMSTERS’ POSITION
[6] The Teamsters have forthrightly made the following acknowledgments:
(a) The Panel, pursuant to Sections 50 - 52 of the Act, has the authority to resolve jurisdictional disputes in the construction industry when the threat of a work stoppage exists [such authority having been recognized by the Nova Scotia Court of Appeal in Plumbers’ Union et al. v. Steel Workers’ Union et al. (1992) 110 N.S.R. (2d) 123];
(b) The standard of review to be applied in the judicial review of such a decision made within the Panel’s jurisdiction is the “patently unreasonable” test;
(c) The Panel, when acting within its jurisdiction, is entitled to curial deference in light of its expertise in labour relations matters, the broad policy context within which it operates, and the protection of the privative clause in Section 19(1) of the Act;
(d) No challenge is made to the Panel’s findings of fact in its decision. Rather, the validity of the decision is challenged as being patently unreasonable in light of the legislative regime of the Nova Scotia Trade Union Act.
[7] The Teamsters contend that the Panel made a number of reviewable errors in its decision, the primary arguments being that:
(a) The Panel failed to give effect to and modified the National Collective Agreements at play;
(b) The Panel failed to restrict its consideration of past practice in Nova Scotia to the sector in which the jurisdictional dispute arose;
(c) The Panel created the acquisition and revocation of bargaining rights in a manner contrary to the Act.
[8] Before addressing these specific arguments and other submissions made by the Teamsters, it is necessary to review the jurisprudence on the meaning and application of the “patently unreasonable” standard of review.
THE MEANING OF PATENTLY UNREASONABLE
[9] It is common ground between the parties that the Panel has the legislative authority to resolve jurisdictional disputes between trade unions in the construction industry and to assign work that becomes in dispute. The Panel’s decisions are protected by the privative clauses found in Sections 19(1) and 94(5) of the Act and cannot be disturbed by the court unless they are found to be patently unreasonable. This was the clear finding of the Nova Scotia Court of Appeal in Plumbers’ Union v. Steel Workers’ Union, supra.
[10] The meaning of patently unreasonable was examined by Mr. Justice Cory in Canada (Attorney-General) v. P.S.A.C. [1993] 1 S.C.R. 941 and again in Toronto (City) Board of Education v. O.S.S.T.F., District 15 et al. [1997] 1 S.C.R. 487. Mr. Justice Cory articulated his analysis as follows:
What constitutes a “patently unreasonable” decision?
It is said that it is difficult to know what “patently unreasonable” means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary “patently”, an adverb, is defined as “openly, evidently, clearly”. “Unreasonable” is defined as “not having the faculty of reason, irrational, not acting in accordance with reason or good sense”. Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
[11] In the latter case, Mr. Justice Cory re-emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal is protected by a broad privative clause. He went on to say (at p. 505):
It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction can only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. Indeed the principle of judicial deference is no more than the recognition by courts that legislators have determined that members of an arbitration board with their experience and expert knowledge should be those who resolve labour disputes arising under a collective agreement.
[12] These and other related passages were recently applied by this Court following the same analysis in Canada Post Corp. v. Canadian Union of Postal Workers (1999) 179 N.S.R. (2d) 106. In that case, Justice Davison had to consider whether the findings of a labour arbitrator in a grievance arbitration were “clearly irrational”. He found that there was a rational basis for the arbitrator’s findings which were not to be disturbed on judicial review.
[13] Similarly, in the present case the question for determination is whether the decision of the Panel in assigning the work in dispute to the Engineers and Labourers respectively, having regard to the provisions of the Trade Union Act, can be said to be irrational or not in accord with reason.
THE PANEL’S DECISION
[14] The approach taken by the Panel in deciding this jurisdictional dispute was consistent with that followed for more than 25 years, dating back to its 1973 decision in Fred Smithers Concrete Contracting Ltd. and Atlantic Concrete Ltd. (LRB 239 C). In that case, the Panel outlined the factors to be taken into account as follows:
In jurisdictional dispute cases the Panel is concerned with a number of factors and it is, at this point, impossible to say which of them will be most important in any given case and therefore are not listed here in any order or priority. In every case the Panel is interested in the stated jurisdiction of the disputant trade unions, as set out in their constitutions or otherwise. The Panel is also interested in any written agreements or even informal understandings to which the disputants are parties. Statements of jurisdiction in collective agreements will be relevant as will the rulings, awards or decisions of other authoritative decision makers recognized by both disputing unions, including the decisions of other Canadian jurisdictional dispute tribunals acting under statutory authority. Past practice in the industry is important, particularly practice in the area where the dispute arises. The Panel will be concerned with the nature of the work involved, especially the skills required and safety considerations. The effects of any assignment of the work on the efficiency and economy of the employer’s operation, or on the construction industry generally, is also important.
The TRADE UNION ACT provides no standards for a decision in a jurisdictional dispute. The Panel’s duty is to attempt to render a fair and workable decision in light of the factors set out above.
[15] The Panel went on to review the evidence presented at the hearing in relation to each of these factors. It then made a series of findings which are summarized, and which I adopt from, the Engineers/Labourers’ brief as follows:
(a) The Engineers, Labourers and Teamsters had collective agreements with the national employers’ association that represented pipeline contractors, including BFC. The Panel found the jurisdictional language in the collective agreements favoured assigning the work to the Teamsters, subject to a clause in the Engineers’ agreement that recognized local practice and decisions of provincial labour boards.
(b) A previous ruling under the Canadian Plan for the Settlement of Jurisdictional Disputes was based on particular facts and was of little assistance in this case.
(c) Past practice in the construction industry in Nova Scotia favoured assigning the work to the Engineers and the Labourers. The Panel found the Teamsters had virtually no presence in the construction industry in Nova Scotia. While this was the first pipeline to be built in Nova Scotia, the experience of the Engineers and the Labourers in the construction industry generally must be given considerable weight.
(d) The Engineers and the Labourers had sufficient trained members to do the work and to do it safely. The Engineers had an existing, long-term relationship with independent truckers who would be required to complete the project on time. The Teamsters, on the other hand, could not supply enough skilled, local workers. In view of the tight time constraints for the project, this was a critical factor.
(e) Because the employer would have to negotiate regional rates if the work was assigned to the Engineers and the Labourers, consideration of the efficiency and the economy of the employer’s operation weighed slightly in favour of assigning the work to the Teamsters.
(f) Giving the work to the Teamsters would disrupt the historical pattern for such assignments in the construction industry in Nova Scotia, regardless of the fact that there was no local practice for the construction of pipelines.
[16] After weighing each of these factors, the Panel found that on balance, the assignment of the work in dispute ought to be made to the Engineers and Labourers who were better positioned to get the work done safely and efficiently and which would preserve the jurisdictional status quo that existed in the construction industry in Nova Scotia.
[17] The Teamsters do not challenge the reliance of the Panel on its earlier jurisprudence developed in the Smithers Concrete case. Indeed, that decision received favorable comment by the Nova Scotia Court of Appeal in Plumbers’ Union v. Steel Workers’ Union, supra, where Chief Justice Clarke referred to it as important “because it demonstrates the expertise and understanding that the Panel has in the realm of jurisdictional disputes”. Rather, the Teamsters contend that the decision reached by the Panel in following this analysis was patently unreasonable in light of the legislative regime under the Trade Union Act.
ALLEGED REVIEWABLE ERRORS
[18] As summarized earlier in this decision, the Teamsters allege a number of reviewable errors to have been made by the Panel which makes its decision patently unreasonable. The first argument made is that the Panel lacks a general or implied power under the Act generally, or under its authority specifically under Sections 50 -52, to rescind, modify or vary an otherwise valid collective agreement. It is pointed out that there is a National Agreement between the Pipeline Contractors Association (which includes BFC) and four international unions (the parties herein along with the Plumbers and Pipefitters Union) which sets out the scope of work for each of those unions for purposes of pipeline construction. As acknowledged by the Panel, it is clear that only the Teamsters’ collective agreement covers the specific work of driving trucks. However, with the obvious objective of protecting their historical work, there is inserted in the Engineers’ national collective agreement the following clause:
6.5.1 The Employer agrees that, notwithstanding the provisions in any of the other three pipeline crafts’ agreements, appendices or understandings, the assignment of any work shall made in accordance with local area practice and Provincial Labour Board Decisions.
[19] No similar provision is contained in either the Labourers’ or Teamsters’ collective agreements.
[20] While the National Agreements favour the assignment of the work in dispute to the Teamsters, as the Panel recognized, it is to be remembered that those agreements are only one of several factors to be considered in resolving a jurisdictional dispute as laid down in the Smithers Concrete decision. The Teamsters claim the work in dispute under their National Agreement. The Engineers/Labourers claim the work in dispute on the basis that they have been historically assigned such work under local area practice. Both are legitimate bases upon which to claim entitlement to the work in dispute and when the threat of a work stoppage is thereby created, the Panel clearly has the legislative authority to resolve it. That authority is founded in Sections 50 -52 of the Act (and Section 51(6) in particular) and the only constraint on its exercise is that the assignment of work be made “to persons skilled in or belonging to a specific trade or craft or a specific trade union”. The Engineers and Labourers clearly meet that criteria.
[21] It is not unusual for a collective agreement to contain jurisdictional language that overlaps with the jurisdiction of other unions whether it be rooted in a collective agreement or the historical assignment of work in the construction industry. In such circumstances, the Legislature has conferred upon the Panel the clear authority to resolve such jurisdictional disputes in the course of which the Panel is required to consider the parameters of any collective agreements at play as one of a number of relevant factors. The Panel did this in coming to its decision and it has not acted irrationally in any respect in doing so.
[22] The second reviewable error alleged by the Teamsters is that the Panel failed to restrict considerations of past practice to the sector in which the jurisdictional dispute arose. When this dispute arose, a separate pipeline sector did not exist under Section 92(h) of the Act nor had the Panel used its power to create such a sector. This was the first pipeline construction project to be undertaken in Nova Scotia and hence, there was no local past practice to be drawn upon in that industry. The Panel therefore looked at past practice for the driving of trucks in the industrial, commercial and institutional sector of the Nova Scotia construction industry where such work was historically performed by the Engineers and Labourers respectively (depending on the size of truck). The Teamsters contend that the Panel committed a reviewable error in doing so and in not restricting considerations of past practice to the sector in which the jurisdictional dispute arose. Such a sectoral analysis was followed by the New Brunswick Labour and Employment Board in its subsequent decisions on September 28, 1999 in Re BFC Marine No. 1 and in Re BFC Marine No. 2.
[23] In my view, there was nothing irrational or improper about the Panel’s consideration of past local practice in another sector of the Nova Scotia construction industry in resolving this dispute. The New Brunswick Board obviously takes a different position but that does not mean that the Panel has acted irrationally by taking the view it has. It was certainly not so restricted by anything contained in the Act. The jurisdiction of trade unions is, of course, over the construction industry as a whole and it was not patently unreasonable for the Panel to look at construction industry practice as a whole as opposed to following a strict sectoral analysis.
[24] The third argument advanced by the Teamsters is that the Panel’s decision effectively deprived the Teamsters of bargaining rights acquired in the National Agreement with the Pipeline Contractors Association of Canada and awarded them to the Engineers and Labourers contrary to the legislative scheme established in Parts I and II of the Act. Again, I find that argument to be without merit. All three unions retained the bargaining rights they had for employees of BFC, subject to the assignment of work made by the Panel in resolving the jurisdictional dispute. The Panel merely decided what work was to be performed by the members of which union, a decision which it clearly had the authority to make under Sections 50 - 52 of the Act. In the end result, members of the Engineers were to drive trucks over one ton, members of the Labourers were to drive trucks one ton or less, and members of the Teamsters were to drive trucks where an unreasonably large distance was involved from the site of the construction project. This result does not offend the provisions of the Trade Union Act concerning the acquisition and revocation of bargaining rights.
[25] Beyond these three main arguments, the Teamsters further submit that it was patently unreasonable for the Panel to take into account certain irrelevant considerations, namely, the relationships for the supply of owner-operated dump trucks for the project, and the place of origin and retirement status of the two members of the Teamsters who worked on the project. It is argued, firstly, that the Panel is only mandated to deal with employer-employee relationships and that since owner-operators are not employees under the Act, the Panel stepped outside its legislative authority in considering that factor.
[26] It is apparent that when this project began, neither the Engineers nor the Teamsters had a sufficient number of dump truck operators within their respective memberships to get the job done. As the BFC Project Administrator testified before the Panel, the availability of owner-operators was a key ingredient in getting the disputed work done in a timely way. To satisfy this requirement, the Engineers reached a tentative agreement with the Nova Scotia Trucking Association with whom it had a longstanding relationship. The Trucking Association had had no past dealings with the Teamsters whose plans were to dispatch owner-operator trucks to the project through a company based in Ottawa.
[27] In considering who was best able to supply owner-operator trucks to complete the project, the Panel concluded as follows:
It is apparent to the Panel that the Teamsters at this point could not supply the number of local trained, skilled workers that will be required for this project, although they are making serious efforts to obtain and train the workers, should they be assigned the work. Nor are their arrangements for owner-operators in any way as secure as those that exist between the Engineers and the Nova Scotia Trucking Association. We conclude on this factor that the Engineers/Labourers are currently in a better position in relation to the work, skills and safety factor. Given the short time before the project will be in full swing, this is a critical factor.
[28] There was, in my judgment, nothing wrong with the Panel having considered this factor. Indeed, it falls within one of the criteria laid down in the Smithers Concrete case, namely, the ability of each union to contribute to a safe, efficient and timely completion of the pipeline project. By considering this factor, the Panel did not purport to assume any jurisdiction over the independent truckers.
[29] Similarly, it was not patently unreasonable for the Panel to consider the place of origin and retirement status of the two members of the Teamsters who had worked on the project. The Panel’s comments in this regard were simply made in addressing the question of which union could best supply the number of local trained skilled workers that were required for the project. As noted, the Panel concluded that the Engineers/Labourers could best do so and this factor weighed significantly in favour of those unions.
[30] Lastly, the Teamsters argue that it was patently unreasonable for the Panel to take into account the potential disruptive effect on the construction industry generally by the assignment of the work in its favour when it spoke of that in terms of something that might happen. This was submitted to be an irrelevant consideration and one contrary to public policy.
[31] The Engineers/Labourers point out that elsewhere in its decision, the Panel agreed with them that an assignment in favour of the Teamsters would to some extent disrupt the historical assignments of the work in dispute. In my view, the semantics are not important. What is important is the concern expressed by the Panel over maintaining the stability of the construction industry in Nova Scotia and the desirability of leaving the jurisdictional status quo undisturbed. The Panel undoubtedly recognized that unions staunchly protect their jurisdictional work. There was evidence before it given by the Director of Labour Relations for the agency representing unionized employers in the commercial and industrial sector of the construction industry that jurisdictional disputes are “bad news” because they can cause economic damage and disrupt the workplace. This bears as well, of course, on the efficiency and economy of the employer’s operation and the construction industry generally (which is one of the significant factors identified in the Smithers Concrete case). The Panel expressed its overarching conclusion in this regard as follows:
On the basis of this review of the Atlantic Concrete factors in light of the evidence, the Panel concludes that the jurisdictional ‘status quo’ should not be disturbed. While this is a large, labour intense project, it is also a short-term one, with the construction phase to be completed before the end of 1999. To disrupt the longstanding relationships in Nova Scotia in relation to the driving of these trucks in the construction industry would have no positive effect, and might well have a negative one. We are satisfied that the Engineers/Labourers are in the best position to get the work done safely and efficiently. The National Agreements all contemplate that regional variation may be required to comply with provincial labour regulation. While the practice in the pipeline industry is well-established, that practice should not be preferred over an equally well-established local area practice more generally in the construction industry in the province, where the result may well be to upset the apple cart for a short term (though large) project.
[32] In my view, these considerations by the Panel were both relevant and pragmatic. There was nothing patently unreasonable in the manner in which they were dealt with by the Panel.
CONCLUSION
[33] The Panel has clear legislative authority to resolve jurisdictional disputes in the construction industry when the threat of a work stoppage exists. Its decision in this case followed the jurisprudence developed in its earlier decision in the Smithers Concrete case and was not otherwise inconsistent with the provisions of the Act. I find that its decision was not patently unreasonable in any respect and accordingly, this application for judicial review by the Teamsters is dismissed with costs, which I hereby fix in the amount of $1500 plus taxable disbursements to be shared equally by the Engineers’ and Labourers’ unions. BFC, which also successfully opposed this application by the Teamsters, shall be entitled to recovery of costs in the amount of $750 plus taxable disbursements.
J.