ASHCOR certification bid fails after board keeps disputed workers in bargaining unit

The Canadian Energy Workers Association’s application to represent ASHCOR Technologies Ltd. employees was dismissed after Alberta’s labour board rejected objections aimed at removing workers from the proposed bargaining unit.

In Canadian Energy Workers Association v ASHCOR Technologies Ltd., 2026 ALRB 64, issued May 12, 2026, the Alberta Labour Relations Board concluded that the application still lacked evidence of support from 40 per cent of employees in the agreed unit. This was a certification-application decision, not a finding that employees had voted against union representation.

The unit could not be narrowed by reviving withdrawn objections

ASHCOR, an ATCO subsidiary, processes coal ash into a cement-replacement product. Its Alberta operations included a Battle River facility and Calgary offices. The organizing application required the board to determine who counted as an employee in a workforce that included agency-supplied contractors and staff working across related Canadian and U.S. businesses.

The union initially proposed a unit expressly excluding managers, department heads, professionals and confidential staff. A board officer recommended the usual all-employee description because the Labour Relations Code already excludes people who meet its managerial, professional or confidential labour-relations tests. The officer reported insufficient evidence of 40 per cent support.

The union withdrew its objection to that description but maintained objections to particular workers. It could not then exclude a mine planner and two engineers-in-training merely because they allegedly lacked a community of interest with other employees. The union accepted that those three were employees under the Code; excluding them required changing the all-employee unit it had already accepted.

The board summarily dismissed those objections as without merit or an abuse of process. Another objection was not pursued. The remaining disputes concerned contractors, a licensed engineer, procurement work and the identity of the employer in an integrated cross-border operation. The union had to prove its objections on a balance of probabilities.

Contract labels did not settle employee status

For a project cost-control worker and a maintenance planner, the union relied on arrangements through staffing agencies, invoicing, corporate structure and differences from regular employee benefits. ASHCOR answered that the workers were dependent contractors, a category expressly included in the Code’s definition of employee.

The board considered both the identity of the true employer and whether the contractors were economically independent. It could look beyond the formal contracts to how the relationships actually worked. Relevant employer factors included control of work, remuneration, hiring, discipline, dismissal and the parties’ understanding.

On the evidence available, the union did not establish that an entity other than ASHCOR was the employer. The workers reported within ASHCOR, which paid for their services. There was insufficient evidence about the staffing agencies’ authority or obligations to displace that conclusion.

The dependency analysis also favoured inclusion. Both worked full-time or more at ASHCOR’s facilities, were paid by the hour and used company-supplied tools and equipment. There was no evidence of an opportunity to subcontract, earn entrepreneurial profit, bear business losses or obtain other income during the work. Operating through a closely held corporation did not itself make a worker independent.

The board expressly limited its conclusion to the evidence and arguments before it. It had heard little about the relationships between the staffing agencies and individual workers. A different record could require a different approach; the ruling did not declare every agency-supplied contractor an employee of the client business.

Professional qualifications and sensitive information were not enough

A project manager was a licensed professional engineer, but that did not automatically exclude him. The professional exclusion also required employment in the person’s professional capacity. The board found insufficient evidence that his high-level project reviews involved the professional application of mathematics, physics or related subjects required by the engineering legislation.

The board did not attempt a comprehensive interpretation of engineering’s regulated scope of practice. Its conclusion was evidentiary: the union had not proved professional-capacity work in this role. Nor did a profile suggesting simultaneous work elsewhere establish that the project manager was economically independent of ASHCOR.

A procurement lead’s access to pricing and personal salary information did not establish employment in a confidential labour-relations capacity. The board distinguished personnel or commercial information from matters such as collective bargaining strategy, grievance arbitration and labour-board proceedings.

The board also found no sufficient managerial basis for excluding that employee. Some supervision or feedback about another worker was not enough without effective control or recommendations materially affecting employees’ economic circumstances. The evidence did not establish that level of authority.

Cross-border billing did not remove a Calgary worker

For another procurement worker, the union argued that the employer was ASHCOR USA rather than the Alberta company. Much of his time supported a Michigan project and was billed to the U.S. entity. The board acknowledged evidence supporting that position but found the usual employer indicators difficult to separate in the highly integrated organization.

The worker was based alongside ASHCOR employees in Calgary, performed similar procurement work, sometimes supported Canadian projects and used equipment supplied by ASHCOR. Supervisory and operational responsibilities crossed company lines. In those particular circumstances, the board found him an ASHCOR employee under the Code and rejected the related confidentiality objection.

With all objections dismissed, the officer’s finding of insufficient evidence of 40 per cent support remained and the certification application failed. The decision illustrates why contractual labels, professional credentials or foreign billing arrangements do not alone determine bargaining-unit membership. It does not impose a collective agreement or decide the status of a different organizing application.