• Voluntary Recognition in New Brunswick Agreements Must Be in Writing
  • October 8, 2010 | Author: Sacha D. Morisset
  • Law Firm: Stewart McKelvey - Moncton Office
  • The Relevant Facts
    The Labourers’ International Union of North America, local 900 (“LIUNA”) filed a grievance alleging that Basque Construction was bound by the provisions of the collective agreement between LIUNA and the Moncton Northeast Construction Association with respect to labourers.  It contended that it had acquired bargaining rights through voluntary recogni-tion.

    LIUNA was unable to produce a voluntary recognition agreement.  The Union, however, at-tempted to establish that there was an “unwritten” voluntary recognition agreement be-tween the two parties.  In support of this claim, the Union produced evidence showing that the Employer had submitted union dues for at least some of its employees during each month in 1996, for three months in 1997, for three months in 1998, for four months in 2000, for one month in 2001, for two months in 2002 and for one month in 2003.  The Union’s evi-dence also showed that the Employer had used one to three union employees sporadically from 2004 to 2007.

    The Employer readily acknowledged that, from time to time, it used unionized labourers when performing work on bigger projects.  However, the company would not use unionized labourers on smaller jobs, which was the bulk of its activities in the recent past.  The Em-ployer indicated that over the last ten years, 90% of its workforce would have been non-union and had not used unionized labourers for the last three years.  Furthermore, it had not been uncommon for the Employer to hire both union and non-union labourers who would work side-by-side.

    The Employer argument was two-fold.  First, it argued that the Industrial Relations Act required that voluntary recognition agreements must be in writing, unlike the legislation in other provinces, namely British Columbia and Newfoundland, which contains different language on the form of a valid voluntary recognition agreement.  Second, it argued that even if the legislation could be read to allow “unwritten” voluntary recognition agreements, the evidence advanced by the union was insufficient to establish that the employer had, by its words and actions, voluntarily recognized the Union as the exclusive bargaining agent for its employees.

    The Arbitrator’s Decision
    The Arbitrator noted that the definition of a recognition agreement in the Industrial Relations Act refers to it as being “in writing”.  He ruled that the statute therefore makes this a re-quirement. He stated: “There are obviously very good reasons for the requirement that these agreements be in writing given their importance and the need for certainty and clarity.  If, for whatever reason, a union finds it difficult to conclude a written recognition agreement with an em-ployer, it is always open to that union to apply to the Labour and Employment Board for certifica-tion as the bargaining agent.  It is not a question of a union being frustrated should an employer present itself as willing to enter into a voluntary recognition agreement but delay or refuse to sign a written agreement.”

    Even though he accepted the Employer’s first argument, the Arbitrator also ruled that, even if “unwritten” voluntary recognition agreements were permitted in New Brunswick, the Un-ion had not established word or conduct that would prove that the Employer had exclusive-ly recognized the Union as the bargaining agent of its employees.  He noted that the Union knew that the Employer was working on non-union jobs and not remitting dues and had done nothing to stop it or to assert its bargaining rights if it considered them to exist.

    What This Means for You
    The arbitrator’s decision clarifies that in New Brunswick, voluntary recognition agreements must be in writing.  Although cases from other Canadian jurisdictions suggest that unions can establish bargaining rights by presenting evidence of words and conduct in line with a bargaining relationship, the New Brunswick legislation contains clear wording that “unwrit-ten” voluntary recognition agreements are not valid.