Unionization in the Construction Industry: Vacation Day + Snapshot Rule = Disenfranchisement

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 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...