Saskatchewan Labour Relations Board Enforces Union’s Agreement Not to Certify

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

On January 13, 2015, the Saskatchewan Labour Relations Board (the “Board”) dismissed a union’s certification application for being in breach of an agreement the union entered into with the employer not to apply for certification during a specified period in the United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 179 v Modern Niagara Western Inc., LRB File No. 089-15.

A memorandum of agreement (the “MOA”) was entered into between the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 179 (the “Union”) and Modern Niagara Western Inc. (the “Employer”). In the MOA, the Union agreed that it would not seek to apply for certification to represent the employees of the Employer during the currency of the MOA and for a period of six months following its expiry.

Contrary to the agreement, the Union applied for certification, during the term of the MOA. The Employer objected to the certification based on the parties agreement and applied to have the application dismissed by the Board. The Union argued, in part, that to grant the remedy sought by the Employer would amount to a denial of the freedom of employees to be represented by a union of their choice pursuant to The Saskatchewan Employment Act and The Canadian Charter of Rights and Freedoms. The Union also argued that the matter fell outside of the jurisdiction of the Board as the MOA was a private contract entered into between the parties.

In finding it had jurisdiction, the Board stated that the process of certifying unions to be the bargaining representatives for employees of employers is a jurisdiction granted exclusively to the Board under its governing legislation. Following a line of British Columbia decisions, the Board held that the MOA prevented an application for certification during the embargoed period. The operation of the MOA was found not to deny members of the Union the opportunity to be represented. They were represented and continued to be represented by the Union for collective bargaining. Pursuant to a provision in the MOA, the terms of the employee’s employment were specified by the Provincial collective agreement covering the Plumber and Pipefitting trades. As a result, the Union members enjoyed the same rights, benefits and privileges as other Union members working with certified contractors under that agreement. Consequently there was no advantage or disadvantage to the Union members working for the Employer or for any other unionized employer under the Plumber and Pipefitting Provincial Agreement.

As a result of the foregoing, the Board held that the Union’s application for certification was an abuse of process and the Union was estopped from bringing the certification application in respect of the Employer.

This decision provides new guidance to employers and unions seeking to enter into agreements designating the timing of when an application for certification can be made. While this issue was not previously considered by the Board, this new decision clarifies that unions can be held to agreements they enter into on behalf of their members not to apply for certification, at least for a specified period of time.