Canadian Association of Labour Lawyers
Although the bottom line in this judicial review decision resulted in the dismissal of Local 1325’s application for judicial review, in fact Local 1325 was successful in persuading the Court that the analysis by which the ALRB had permitted the Employer and CLAC to eliminate the statutory open period by use of a project agreement was patently unreasonable.
The ALRB has historically held that an open period can be closed by means of the negotiation of a new collective agreement and the early termination of an old agreement, but only if the new agreement is accepted by employees by way of a reasonable ratification procedure. CLAC and J. V. Driver had imported this device into the construction industry and there was an established pattern of truncation or elimination of open periods by new agreements ratified by a relatively small workforce. In the fall of 2000 a new tactic was employed – a project agreement was entered into with a duration that was inconsistent with the existing provincial agreement, which would not expire for another fifteen months. The Board had held that the project agreement (negotiated before any employees were employed on the project) was ratified through what it called “hiring hall ratification” – in essence as soon as a CLAC member went to work on the project pursuant to a dispatch slip from CLAC they were deemed to ratify the agreement on behalf of all employees in their particular trade. The Board appeared to accept that this “ratification” was sufficient to eliminate a statutory open period.
The Court held that the Board’s view of the efficacy of “hiring hall ratification” to eliminate an open period was patently unreasonable. The Court found that the Board’s analysis deprived construction industry employees of the right to change bargaining agents, and that it “potentially locks them into a cycle in which they can protest neither the collective agreement nor the union who negotiated it for them”.