Rick Dunlop and Michelle Black

On March 14, 2014, CanMar Contracting Limited (“CanMar”) granted a day off to two of its hard working and longer serving employees so they could spend time with their respective families. That same day, the Union filed an application to unionize CanMar. After several days of hearings, the Nova Scotia Labour Board (“NSLB”) determined that, because these two employees took the day off, they (unlike their fellow employees who did not take the day off) were not entitled to a say in the unionization of their employer.¹ CanMar (and the two employees) argued that the two employees should have a say, but the NSLB and the Nova Scotia Court of Appeal (“NSCA”) disagreed.² On March 2, 2017, the Supreme Court of Canada dismissed CanMar’s application for leave to appeal the NSCA decision.³

The Snapshot Rule

When faced with an application for unionization the NSLB, like all labour relations boards, is tasked with determining the employee constituency who will decide the unionization question (i.e. the employees who make up the unit appropriate for collective bargaining). The constituency is determined with regard to the following:

1. A consideration of whether the employees share a community of interest (“COI”). The Nova Scotia Trade Union Act (“TUA”) directs that “in determining the appropriate unit” the Board is to “have regard to the [COI] among the employees in the proposed unit in such matters as work location, hours of work, working conditions and methods of remuneration.”⁴

2. The NSLB also applies one of two rules that are not found anywhere in the TUA or its regulations:

• Double Date Rule – The Double Date Rule applies to the non-construction industry and provides that, in order for an employee to have a say in the unionization question, the employee must be employed and working on the date the union chooses to file its application for unionization and on the date of the representation vote, unless the employee is not working due to a scheduled day off, vacation, leave (e.g. parental), or LTD for a period of less than 2 years. The Double Date Rule implicitly recognizes that employees are sometimes absent for good reason and that such absences should not deprive them of having a say on unionization. The Double Date Rule also addresses gerrymandering concerns (e.g. employers hiring employees to dilute the impact of union supporters).
• Snapshot Rule – The Rule that applies in the construction industry is different, in part, because there is no automatic representation vote. The Snapshot Rule provides, among other things, that an employee who is not working on the date the union decides to file the application for unionization does not have a say on the unionization question. Unlike the Double Date Rule, the Snapshot Rule does not make exceptions for vacation, scheduled days off, parental leaves, or disability leave. If the employee is absent, for whatever reason, the employee does not get a say.

The Snapshot Rule’s policy rationale is twofold:

First, it is based on the September 1970 Report of the Commission of Enquiry Into Industrial Relations in the Nova Scotia Construction Industry (“Woods Report”) finding that employment in the construction industry is transient (i.e. employees move from job to job and from employer to employer).⁵ During the NSLB hearing, CanMar submitted expert evidence and a 2014 report that challenged whether the 1970s “transient” assumption remained accurate in 2014. The NSLB summarily dismissed the empirical evidence without explanation.⁶

Second, the NSLB, although recognizing that the Snapshot Approach “may be skewed or even arbitrary”, nonetheless believes that it has “the virtues of simplicity and certainty.”⁷

NSLB and NSSC Decision

The Nova Scotia Supreme Court (“NSSC”)⁸ described the NSLB’s rejection of CanMar’s argument that the exclusion of the two employees through the application of the Snapshot Rule could not be reconciled with the TUA’s directive to consider COI in determining the constituency as follows:

• …the [NSLB] notes there was no dispute that Messrs. Panteleios and Lopez shared a [COI] with the other employees who were included in the bargaining unit. The Board then says this did not make any difference since they were not at work on the date of application.⁹
• In para. 29 the [NSLB] refers to the provisions of s. 25(14) and says it indicates [COI] is a factor relevant to defining the bargaining unit “per se”. The [NSLB] then states that whether an employee is in the bargaining unit for determining certification is a “different question”.¹⁰
• It is clear from these passages that the [NSLB] did not consider the question of [COI] to be relevant to the issue before it. They do not explain how that could be so in light of the mandatory wording of s. 25(14).¹¹

The NSSC recognized that “[p]olicies and guidelines can be beneficial” but that the Board “has an obligation to decide each case before it on its particular circumstances.”¹² The difficulties with the NSLB’s analysis were that:

• …it appears to avoid the express legislative requirement in s. 25(14) to consider employee [COI].¹³
• Concerns with respect to lack of predictability and complex hearings are not borne out on the facts of this case since the status of Messrs. Lopez and Panteleios was not in dispute.¹⁴
• A decision to consider employees on a one-day leave of absence for possible inclusion if they share a [COI] with others in the bargaining unit would not undermine the objectives of predictability or efficiency.¹⁵

The NSSC quashed this part of the NSLB’s Decision and remitted the matter back to the NSLB.

NSCA Decision

The NSCA overturned the NSSC Decision and, in doing so, emphasized that decisions of the NSLB are to be given deference. The NSCA’s “deference lens” (as it often called), however, only applied to the result reached by the NSLB, not the reasoning that the NSLB applied to arrive at the result. The NSCA defended the Snapshot Approach through its own reasoning path.

1. Gerrymandering

Unions choose the day they file a unionization application. The Snapshot Rule allows unions to gerrymander through filing applications on days that they know, through intelligence provided by the employee union supporters (i.e. the internal organizers), that the non-union employee supporters are absent.

The March 14, 2014 text messages exchanged between the internal and external organizers suggest that the Union chose to file the unionization application on that day precisely because these two employees (who, it was believed, were not Union supporters) were absent.

The NSLB and NSCA (and even the NSSC) chose not to directly address this uncomfortable aspect of the case. Instead, the NSCA relied upon abstract hypothetical factual scenarios (e.g. one day the employee may work in one craft unit, and the next day in another craft unit; the employee’s assignment may turn from construction to non-construction; the employee may work outside the geographical unit)¹⁶ that bore no resemblance to the actual situation of the excluded employees whom the NSLB found had consistently worked at the same site and performed similar work to the other bargaining unit employees.¹⁷

2. Snapshot Rule is Consistent with Majoritarianism and Democracy?

Despite the TUA’s clear direction that the Board’s duty is to define a unit appropriate for “collective bargaining purposes” (not a unit appropriate for “unionization” which is what the NSLB suggested),¹⁸ the NSCA concluded that the Snapshot Rule “defines the appropriate unit for the purposes of measuring union support”.¹⁹ The NSCA went even further by saying that the Snapshot Rule is not “the arbitrary affront to democracy and majoritarianism” as argued by the excluded employees because the NSLB was “satisfied that a majority of the employees in the appropriate unit or constituency had signed” Union membership cards.²⁰ With the greatest respect, this is a peculiar conception of majoritarianism and democracy given that the Union gerrymandered the constituency, i.e. it chose March 14, 2014 as the “election day” precisely because it knew that, with the application of the Snapshot Rule, the absence of the two employees would give the Union a “majority”.

3. Snapshot Rule Mandated by the TUA?

Portions of the NSCA decision suggest that the Snapshot Rule is grounded in the wording of the TUA.²¹ This suggestion, however, is inconsistent with NSCA’s declaration in its controversial Egg Films²² decision, that the Double Date and Snapshot Rules are not found in the TUA or its regulations.²³Moreover, the NSLB itself could not say whether the Snapshot Rule was mandated by the TUA or an NSLB policy choice, but definitively concluded that it was a longstanding policy under the construction industry certification process under the TUA.²⁴

a) On Site

The NSCA reasoned that the Snapshot Rule’s “reliance on “site” work emanates explicitly” from the TUA’s definition of “construction industry” (i.e. “on site”) and is the “premise” of the Snapshot Rule.²⁵ The NSCA’s “on site” rationale is curious because the NSLB did not refer to “on site” as a rationale and the NSLB found that the two employees maintained their employment status (even though they were absent) and were consistently on site and performing labourers’ work; they simply were not on site on the date the Union chose to file the application for unionization.

b) Arithmetic Certainty at a Moment in Time

The NSCA boldly declared that the TUA construction industry certification provisions (s.95(3)) “assumes an arithmetic certainty at a moment in time – i.e. a snapshot”.²⁶ Section 95(3), however, does not provide for a specific moment in time. Ironically, it is the certification provisions in the non-construction industry part of the TUA, which specifically provide that the NSLB is to be “satisfied that at the date of application for certification the applicant trade union had as members in good standing”.²⁷ Section 95(3) contains no such wording.

4. Community of Interest

The TUA mandates that, in determining the unit appropriate for collective bargaining, the Board is required to consider COI. CanMar argued that the Snapshot Rule, which is not mandated by statute or regulation, could not trump this statutory directive. The NSLB avoided this question but the NSSC agreed with CanMar, finding that the NSLB was statutorily required to consider COI in determining the appropriate bargaining unit.²⁸

The NSCA concluded that the NSLB’s appraisal of COI is “more attenuated”²⁹ in the construction industry than it is in the non-construction industry and that, in the construction industry, “generally the craft [i.e. the type of skilled work] embodies the COI.”³⁰ These conclusions are not supported.

The NSLB never said or proceeded as if COI was more attenuated (i.e. weakened) in the construction industry. The NSLB has applied COI to exclude employer family members from construction industry bargaining units.³¹ It is difficult to see how excluding employees on the basis of COI is an attenuated application of COI.

Further, the NSLB never said that COI was restricted to craft. The NSLB said that the TUA’s COI section “does not purport to provide an exhaustive list of the factors relevant to bargaining unit determination.”³² In D.B. MacEachern’s,³³ the NSLB’s predecessor said that “a bargaining unit appropriateness finding potentially goes beyond… the traditional craft jurisdiction…”

5. NSCA’s Curious Treatment of D.B. MacEachern’s

In D.B. MacEachern’s, the union successfully excluded student carpenters from the appropriate unit. Despite the fact that the student carpenters satisfied the Snapshot Rule, they were excluded because they did not share a COI with the other employees because the student carpenters have “a short and a limited term, with little experience in the industry, to have a determining influence on whether or not an employer in the construction industry is to be unionized.”³⁴ Given that the Snapshot Rule is premised on the purported transience of construction industry employee, excluding student carpenters on the basis that they did not share a COI because they are transient is ironic, to say the least.

CanMar presented D.B. MacEachern’s as an example of where COI trumped the Snapshot Rule. However, the NSLB ignored the submission and the NSCA distinguished D.B. MacEachern’s on the basis that, while there was no disagreement that the two excluded CanMar employees had a COI with the other labourers, the “[NSLB] discounted them”³⁵ because they did not satisfy the Snapshot Rule. In D.B. MacEachern’s, “that point did not arise.”³⁶

The NSCA’s reasoning path leads to the following problematic conclusions: First, the Snapshot Rule, a rule that is not provided for in the TUA or regulations, is the fundamental precondition to being included in the appropriate unit (i.e. the constituency), and thereby trumps COI, which according to the NSCA in Egg Films is a “statutory directive.”³⁷ Second, COI may only be used to exclude (not include) those employees who satisfy the Snapshot Rule that the union wishes to exclude.

6. “Bright Line Tests Have Edges that Chafe at the Line”

The NSCA declared that “bright line tests” (i.e. a test that leaves no room for interpretation), such as the Snapshot Rule, “have edges that chafe at the line.”³⁸ A reader, however, of the Egg Films and D.B. MacEachern’sdecisions, however, can reasonably query whether the Double Date and Snapshot Rules are true bright line tests:

• In the non-construction industry, the Double Date Rule is as much a “bright line test” as the Snapshot Rule is in the construction industry.³⁹ Therefore, according to the NSCA’s “bright line test” declaration, the Double Date Rule should have applied in Egg Films, a non-construction industry case. Instead, the NSLB applied the Snapshot Rule to “one day” employees. The NSLB’s rationale for eschewing the Double Date rule in favour of the Snapshot Rule was because the “one day employees” would not have had access to collective bargaining if the Double Date Rule was applied and such a result would have been contrary to legislative intent.⁴⁰ If, however, legislative intent is the guide, one has difficulty reasonably concluding that the Nova Scotia Legislature would have intended for an employee to be deprived of a say on a question as fundamental as the unionization of his workplace on the basis that he took a day off to spend time with his family.
• Similarly, if the Snapshot Rule is a “bright line test” then in D.B MacEachern’s the student carpenters would have been included for the same reason that the CanMar employees were excluded, i.e. the unbiased application of the Snapshot Rule.

7. Policy Choice

The NSCA concludes its discussion of the Snapshot Rule with the following points: (1) The TUA is a “roadmap for a tangled landscape” with the NSLB, as referee, developing its “own rules, policies and procedures”;⁴¹ and (2) The NSLB may “reasonably craft” the Snapshot Rule differently if it so chooses.⁴²

What does this mean?

The NSCA’s decision has short term tactical ramifications and presents non-unionized construction industry employers and employees with long term strategic options:

1. Short Term Tactical Ramifications

Employees who choose to take a day off, whether it be due to illness, disability, or vacation, on the date the union files the application will continue not to have a say on the fundamentally important question as to whether their workplace will be unionized. Employers should seek counsel as to how they can avoid the impact of the Snapshot Rule.

2. Long Term Strategic Options

The long term strategic options are:

Option 1 – Accept the Status Quo. This is unacceptable.

Option 2 – Lobby the Government for legislative or regulatory change. This is difficult.

Option 3 – Convince the NSLB to Amend the Snapshot Rule. To the rationalist (and optimist), this option remains viable for the following reasons:

First, non-union construction industry employees and employers deserve a better rationale than that which they have been given, i.e. transience and “simplicity and certainty.” The Snapshot Rule has been rejected in Saskatchewan, Alberta, and British Columbia. In contrast to the NSLB’s “simplicity and certainty” defence of the Snapshot Approach, the Saskatchewan Labour Relations Board’s analysis is thoughtful and nuanced:

…In deciding who should be regarded as an employee for the purpose of having a voice in the question of whether a group of employees should be represented by a trade union, the Board must consider the implications of drawing the boundaries of the franchise too narrowly or too broadly.  

On the one hand, to require that an employee actually be at work on the date the application is filed in order to be included in the Statement of Employment would be clearly unfair to employees who are by any reasonable standard regular employees, and who are for some reason absent on that arbitrarily chosen date. An employee who is away on sick leave or maternity leave has a legitimate and obvious interest in the outcome of the representational question.

At the other end of the spectrum, allowing the inclusion of a large number of persons whose current connection with the employer is tenuous may give a disproportionate voice in the representation question to persons whose stake in the terms and conditions of employment in the workplace may be minimal.⁴³

This analysis has led the Saskatchewan Labour Relations Board to review what an employee’s duties over a reasonably representative period of time prior to the filing of the application for certification to determine an employee’s status, rather than looking solely at a moment in time.

Second, important policy decisions, such as the Snapshot Rule, should be based upon current social scientific evidence about the degree of the transience in non-unionized construction industry work, not an outdated assumption that the nature of employment in the non-unionized construction industry has remained unchanged since 1970. Presumably, the NSLB would agree that evidence based policy making is to be preferred to outdated assumption based policy making.

Third, the NSLB should seriously reflect upon whether strictly applying the Snapshot Rule is consistent with the TUA’s intent. Even the most ardent Snapshot Rule advocate must have difficulty rationalizing the disenfranchisement of an employee on the basis that he is spending time with his family, or ill, or absent for any other legitimate reason.

¹ Labourers International Union of North America, Local 615, CanMar Contracting Limited and Sean Patrick McSween 2014 NSLB 265. (“NSLB Decision”)
² Labourers International Union of North America, Local 615 v. CanMar Contracting Ltd., 2016 NSCA 40.
³ CanMar Contracting Ltd. v. Labourers International Union of North America, Local 615, et al., 2017 CanLII 10070 (SCC)
⁴ TUA, s. 25(14).
⁵ Woods Report, page 15.
⁶ NSLB Decision, para. 31.
⁷ NSLB Decision, para. 30, quoting from Ainsworth Inc. CIP-3194, February 2011.
⁸ CanMar Contracting Ltd. v. Labourers International Union of North America, Local 615, 2015 NSSC 89. (NSSC Decision)
⁹ NSSC Decision, para. 41.
¹⁰ NSSC Decision, para. 41.
¹¹ NSSC Decision, para. 41.
¹² NSSC Decision, para. 45.
¹³ NSSC Decision, para. 49.
¹⁴ NSSC Decision, para. 50.
¹⁵ NSSC Decision, para. 50.
¹⁶ NSCA Decision, para. 84.
¹⁷ NSLB Decision, paras. 22 and 27.
¹⁸ NSLB Decision, para. 29.
¹⁹ NSCA Decision, para. 136.
²⁰ NSCA Decision, para. 135.
²¹ NSCA Decision, para.86, 90, 133(2).
²² Egg Films Inc. v. Nova Scotia (Labour Board), 2014 NSCA 33 (CanLII) (“Egg Films”)
²³ NSCA Decision, para. 94 quotes from Egg Films – “Neither the “double date” nor the “snap shot” approach is legislated by statute or subordinate legislation”
²⁴ NSLB Decision, para 31.
²⁵ NSCA Decision, Para 133(2)
²⁶ NSCA Decision, para. 90.
²⁷ TUA, s. 25(7).
²⁸ NSSC Decision, para. 47.
²⁹ NSCA Decision, para. 83.
³⁰ NSCA Decision, para. 83.
³¹ For example: C.G. A., Local 1588 v. Pearo Brothers Woodworking Ltd. (Decision No. CIP -3008) August 25, 2008 and C.G.A. Local 83 v. M&Buddy Company Ltd. (Decision No. 2410C, February 25, 2005)
³² NSLB Decision, para. 29.
³³ D.B. MacEachern’s Electrical Company Limited (Decision No. CIP-3039, November 16, 2006) at para. 21 (“D.B. MacEachern’s”)
³⁴ D.B. MacEachern’s, para. 23.
³⁵ NSCA Decision, para 103.
³⁶ NSCA Decision, para. 103.
³⁷ Egg Films, para. 121.
³⁸ NSCA, para. 97.
³⁹ For example, see United Food and Commercial Workers Union, Local 864 v Cambridge Sydney Limited, 2011 NSLB 84 (CanLII),
⁴⁰ NSCA Decision, para. 94 citing para. 107 of Egg Films.
⁴¹ NSCA Decision, para. 99.
⁴² NSCA Decision, para. 97.
⁴³ International Brotherhood of Electrical Workers, Local 2038 v. Croft Electric Ltd., 2007 CanLII 68772 (SK LRB), at paras. 43 (emphasis added).