Saskatchewan Labour Relations Board Applies Build-up Principle to Deny Certification in Construction Industry

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

In a July 15, 2016 decision, the Saskatchewan Labour Relations Board (the “Board”) found that a certification application for an “all employee” unit of employees within the construction industry was filed prematurely due to the rapid build-up of employees that was to occur subsequent to the union’s application.

In Construction Workers Union (CLAC), Local 151 v Technical Workforce Inc., LRB file No 037-16, the Board considered the Construction Workers Union’s (CLAC) application to become the certified bargaining representative for an “all employee” unit of Technical Workforce Inc. At the time of the application there were 7 employees which fell within the scope of the bargaining unit. The Board conducted a certification vote among the 7 employees by mail in ballot. The results of that vote were in support of the Union’s application.

Subsequent to the vote taking place, Technical Workforce Inc. informed the Board by affidavit that its workforce was set to increase from the initial 7 employees to approximately 140 employees in only a few months. Technical Workforce Inc. had been engaged to act as a labour broker for the construction of a significant project expected to take several years, which necessitated a rapid increase in its workforce.

In examining whether the certification should proceed in any event, the Board determined to apply the build-up principle. Pursuant to the build-up principle, an application for certification may be considered premature if a substantial and representative segment of the central workforce has yet to be employed. In deciding whether it applies, the Board is required to balance the rights of future employees to choose their bargaining representative over the rights of current employees to be represented by their choice of bargaining agent. While the build-up principle has rarely been applied in the construction industry or other sectors, the Board found that it was applicable in this case.

The Board held that an all-employee unit in the construction industry was no different from an all employee unit in another sector of the economy such as retail or industrial. This is due to the fact that in an all employee unit, the employees would have no pre-existing representational relationship with the union as would be the case with the standard craft bargaining units typical of the construction industry.

In finding that the current circumstances were similar to the Board’s prior decision in U.F.C.W. Local 1400 v K-Bro Linen Systems Inc., [2015] LRB File No. 072-14, which was upheld by the Saskatchewan Court of Queen’s Bench, the Board applied the build-up principle to find that the CLAC’s application was premature in this case. The expected build-up of Technical Workforce Inc. employees was extreme and would occur within only a few months of the initial application. As a result, the Board dismissed CLAC’s application for being pre-mature, but left it open for CLAC to file a fresh application at a later date.

This is an unusual case, since the Board has rarely ever applied the buildup principle.