The proceedings originated in a construction industry grievance, which was filed in July 2004 by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552. The grievance alleged principally that the School Board employed non-union labour at two schools. However, the Union failed to refer the grievance to arbitration until more than four months beyond the 14 day mandatory time limit for doing so under the Collective Agreement.

Of particular note, an article of the Collective Agreement dealing with the grievance procedure provided that any grievance which had not been referred to arbitration within the 14 day time limit would be “deemed to have been settled satisfactorily by the parties”.

The OLRB found that the time limit was not mandatory and, even if it was, sections 48(16) and 133 of the Labour Relations Act, 1995 (LRA) permitted it to relieve against those limits and to hear the grievance.

Subsequently, the Court of Appeal wrote that although it did not adopt the entirety of the Divisional Court’s analysis of the situation, the OLRB’s decision could not stand, notably in respect of what the Court of Appeal saw as lying at the heart of the appeal, in particular the OLRB’s interpretation and application of s. 133 in the circumstances of the case.

Central to the Court of Appeal’s reasons was the notion that the OLRB could not hear the Union’s grievance because, at the time of the referral to arbitration, there was no longer any grievance: it had been deemed settled under the Collective Agreement. In the Court of Appeal’s words:

[61] To interpret in s. 133(1) the words “despite the grievance and arbitration provisions in the collective agreement” as somehow giving the Labour Board the authority to decide whether any matter is arbitrable, even a grievance that no longer exists, is to read that phrase in isolation without consideration of the function of s. 133 as a whole. Indeed, it was open to the Legislature to craft a very different s. 133(1), one that might have included language such as the following: “… may refer a grievance, including a grievance already adjudicated, settled, deemed to be settled, or abandoned.”

[62] The point I wish to emphasize is that s. 133 requires “a grievance”. It is only a grievance that animates the section and makes it meaningful. Section 133 provides a useful forum for the prompt resolution of construction industry grievances, a forum not available for grievances outside of the construction industry, but if there is no grievance, then the section is not engaged...

Also worthy of note, the Court of Appeal underlined that s. 48(16) of the LRA only “permits an arbitrator to extend the time for the taking of any step in the grievance procedure under a collective agreement, as opposed to any step in an arbitration procedure”.

In the result, the Court of Appeal determined that the OLRB’s decision to assume jurisdiction over the untimely referral to arbitration had to be set aside as unreasonable:

[66] In my view, therefore, the Vice-Chair’s interpretation falls outside the range of acceptable outcomes, because he concluded that he had the authority to refer to arbitration and to decide a grievance when there was in fact no grievance. His interpretation pays little or no heed to, trivializes, and renders inconsequential the mandatory timelines agreed upon by the parties to the Collective Agreement.

[67] The Labour Board has no inherent jurisdiction. Expert as it may be in the understanding and application of its empowering statute, it possesses only the powers delegated to it by its statute, and by the collective agreement. Thus, when the Labour Board sits as arbitrator under s. 133 it must respect, not ignore, the language of the collective agreement. Section 133 cannot reasonably be interpreted to mean that the OLRB may in its own unfettered discretion revive a dead grievance by extending the parties’ agreed-upon time limits for referral to arbitration.

This is the fourth and last video from Jeremy’s presentation. Thank you to Reed Construction Data Canada for allowing us to re-post these videos.

This is the third video from Jeremy’s presentation from a four-part series recorded by Reed Construction Data Canada. We will post the last video next week.

This is the second video from a four-part series from Jeremy’s presentation recorded by Reed Construction Data Canada. We will continue to post video clips over the next two weeks.

A cursory reading of the text of the Bill (described as the Truth in Employment Act of 2011) suggests that employers would be entitled not only to refuse to hire a "salt”, but also to terminate a "salt" after discovering their undercover plot. 

One suspects that this is "red meat" for the employer lobby.  One gets a flavour for the underlying sentiment from the statement of purpose of the bill: "to alleviate pressure on employers to hire individuals who seek or gain employment in order to disrupt the workplace of the employer or otherwise inflict economic harm designed to put the employer out of business.”  Ahem.  In Ontario, these sorts of sentiments about unions are not expressed in polite company, although that may be how many employers actually feel.

However, because individuals seldom identify themselves as undercover union organizers either at the time of hiring, or during an organizing campaign itself, it's hard to see when the necessary preconditions would arise for either refusing to hire, or terminating, a union organizer.

On the contrary, it is easy to foresee terminations (or hiring refusals) based on the suspicion, without much or any evidence, that the person is a “salt”, followed by acrimonious litigation that culminates in the employer losing the case.

The bigger problem that "salting" poses from a "workplace democracy" perspective is that individuals who are essentially salaried employees of unions are entitled to participate in the process of selecting the union itself – and are not restricted to trying to persuade others to select the union.  In other words, a "salt" gets to vote – meaning that one of the institutional parties in a typically adversarial process gets a say in the outcome.  Arguably, this contradicts the concept of majority rule, which is enshrined in Canada's labour legislation as a governing principle.

The OLRB has decided not to be troubled by this issue, citing the understandable (and perhaps legally defensible) rationale that the definition of "employee" does not require it to determine an individual's motivations, or whether the individual has employment with another organization of the same time.  One suspects that the OLRB is not keen to see its already complicated certification processes additionally burdened by litigation over whether an individual is a "salt" are not.

Ontario employers who oppose "salting" are more likely to achieve success in a practical sense by seeking amendments to legislation that would require participants in a union "vote" to have at least a few weeks or a month of employment before they get to count.

Thanks to Littler Mendelson for the summary.

In the most recent case, the Board put another nail in the coffin of arguments against "salting":

... it is immaterial whether a salt is receiving pay from the union at the same time as receiving compensation from the employer.  ... such circumstances are irrelevant in the determination as to whether a “salt” is an employee.  ... the Board does not give weight or value to the motives of a person in its determination as to who is an employee.  ... the fact the Summers and McLeod have participated in “salting”, a legal and permissible organizing tactic, should in no way result in a characterization that they do not have clean hands, as asserted by the responding party.  Their participation in a legal activity in no way impacts on their credibility as witnesses in these proceedings.

For employers who oppose the practice, it's clear that only a legislative change can alter the legal rules at this point.