Construction Industry Certification: Nova Scotia Court of Appeal Weighs In

June 9, 2016

In Nova Scotia, an employer in the construction industry may become certified by a union if the Labour Board is satisfied that the applicant union “has as members in good standing more than fifty percent of the employees in the appropriate unit.”  Accordingly, the definition of the bargaining unit is a significant issue in construction industry certifications because the employees in the unit materially impact whether the certification application is successful.

For many years, the Nova Scotia Labour Board has used the “snapshot” approach to construction industry union certifications. Under that approach, only employees working in the craft on the date of the certification application are included in the bargaining unit. This means that workers, even if they are long-term employees, who are absent on the date of the application for any reason (including vacation or sickness) are not counted in the bargaining unit.

Last year, a decision from the Nova Scotia Supreme Court called this approach into question. In CanMar Contracting Ltd v. Labourers International Union of North America, Local 615, 2015 NSSC 89, the Court concluded that the Board’s use of the “snapshot” approach to certification was unreasonable and procedurally unfair. It found that the Board erred in failing to consider whether two employees who were absent from the workplace on the date of the application had a community of interest with the other employees, and that it was unreasonable to exclude them from the bargaining unit simply because they were not at work on the date of application.

This decision represented a significant shift in Nova Scotia as the Labour Board’s use of the “snapshot” approach had been longstanding and well established. On May 31, the Court of Appeal overturned the Supreme Court decision, effectively reinstating the Labour Board’s snapshot approach (2016 NSCA 40).

The Court of Appeal held that the Board’s use of the snapshot approach was reasonable and it was not procedurally unfair. The Court found that, in the construction industry, the community of interest was embodied by the craft. As a result, the issue in construction industry certifications is whether the employee works in the craft of the proposed unit and not the definition of community of interest. The Court noted that an employee’s role on a site (and their connection to a craft) may change from day-to-day, and the date of application rule brings certainty in these dynamic circumstances. The Court held that the date of application rule is a permissible policy to effectuate the objectives of the Trade Union Act, and emphasized that it is the role of the Board (and not the Court) to make these types of policy decisions.

The Court of Appeal’s decision returns Nova Scotia to the former status quo and clarifies that it is permissible for the Board to define the bargaining unit based on those working on site in the craft on the date of application.

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