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SECTION IV–ILLUSTRATIVE BOARD DECISIONS AND JUDICIAL REVIEWS

4.1 Illustrative Board Decisions

British Columbia Terminal Elevator Operators’ Association et al., [2007] CIRB no. 384

This decision elaborated on the Board’s reasons for finding that the employees’ refusal to cross picket lines established by the Public Service Alliance of Canada (PSAC) in relation to legal strike action against the Canadian Grain Commission constituted a strike within the meaning of the Code and addresses a Charter issue raised by the unions concerning whether the definition of "strike" in the Code and the Code provisions prohibiting mid-contract strikes infringe the rights to freedoms of expression and association protected by sections 2(b) and 2(d) of the Charter.

The Board confirmed the objective definition of strike as established by its jurisprudence and found, in this case, that the concerted refusal to cross a picket-line constituted a "strike" within the meaning of the Code, notwithstanding the existence of picket line clauses contained in the parties’ collective agreements. The Board noted that the statutory prohibition against all forms of mid-contract strikes must take precedence over the parties’ contractual rights..

The Board concluded that the act of refusing to cross a picket line constitutes a form of expression, but is not a lawful activity under the Code. The Code’s restrictions, which affect only the timing and manner of the expression, as opposed to the content, do not amount to infringement of the workers’ right to freedom of expression under section 2(b) of the Charter. With respect to the freedom of association under section 2(d) of the Charter, the Board stated that although Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, may have made the test somewhat broader to include certain activities that might not otherwise have been caught by the Supreme Court of Canada’s 1987 labour trilogy analysis, it nevertheless confirmed the principle that there is no constitutionally protected right to strike or bargain collectively. Individual employees, unionized and non-unionized alike, remain free to join together to demonstrate their solidarity and support towards other workers, in other ways and at other times. Therefore, the provisions of the Code did not infringe the freedom of association protected by section 2(d) of the Charter.

Even if there had been an infringement on the right to freedom of expression or association, the infringement would still be justified under section 1 of the Charter.

This decision was issued on June 8, 2007, the same date as the Supreme Court of Canada’s landmark decision in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391.

Applications for reconsideration of this decision are pending before the Board; judicial review applications are pending before the Federal Court of Appeal.

Bank of Canada, [2007] CIRB no. 387

The Board was seized with an unfair labour practice complaint filed by the Public Service Alliance of Canada (the union), alleging that the Bank of Canada (the employer) violated its obligation to bargain in good faith by refusing to disclose to the union, in the context of negotiations for a first collective agreement, the salary and premium information for individual employees. The employer argued that it was prohibited from disclosing the specific information to the union under the provisions of the Privacy Act and sought an order that the union is subject to the requirements of the Personal Information Protection and Electronic Documents Act (PIPEDA).

In this case, the union, as the exclusive bargaining agent for the employees in the bargaining unit, was entitled to the complete compensation package information, including full salary, premium and disbursement information, for each employee in the bargaining unit. Since the information was gathered by the employer to administer the individual employment contracts of employees prior to being unionized, this purpose was consistent with the purpose for which the information was being sought by the union, that is, the negotiation of employees’ terms and conditions of employment. The Board therefore found that the exceptions under the Privacy Act allow the disclosure of the requested information by the employer to the union.

Although the Board has the power and jurisdiction to examine other statutes such as PIPEDA in the exercise of its functions under the Code, the Board was of the view that the question of whether the union is subject to PIPEDA is better left for the Privacy Commissioner to answer in the context of a complaint made before that Commissioner by an individual against the union. However, the Board nonetheless confirmed that it is the union’s duty to respect the requirements of any law that may apply to it, including PIPEDA.

Global Helicopter Pilots Association (2007), as yet unreported CIRB decision no. 396

The Global Helicopter Pilots Association applied to the Board, pursuant to section 24 of the Code, to be certified as the bargaining agent for a group of helicopter pilots hired in Canada but located at various bases throughout the world. The named employer (CHC Global Operations, a Division of CHC Helicopters International Inc. (Global)) is a Canadian business with headquarters in British Columbia. It provides chartering helicopter services, operating in Canada and around the world, to the oil and gas industry.

The decision dealt with a preliminary issue of the Board’s jurisdiction to hear the application for certification insofar as it extends to helicopter pilots located outside of Canada. The question was whether the pilots were employed on or in connection with the operation of a federal work, business or undertaking.

The Board concluded that Global was a federal business or undertaking, and that the employees working at the Nova Scotia base were clearly employed on or in connection with Global. Assuming that Global was the true employer of all the pilots in question, as had been assumed for the purposes of this preliminary issue, the Board was of the view that many, if not all of the pilots could be considered as having sufficient connection with Global as the federal undertaking in question. Consequently, most if not all employees concerned could potentially be within the jurisdiction of the Code and the Board for the purposes of the application for certification. On the basis of all the evidence, the Board found that it was possible to rule that the Board had the initial jurisdiction to entertain the application for certification; however, the Board also concluded that a final determination as to the Board’s jurisdiction over all of the different pilots concerned ought to await the determination of the issues of true employer and appropriateness of the bargaining unit.

The Board’s decision was upheld on reconsideration; an application for judicial review is pending before the Federal Court of Appeal.

British Columbia Maritime Employers Association (2007), as yet unreported CIRB decision no. 397

The dispute had its genesis in the introduction of the federal government’s Marine Transportation Security Clearance Program (MTSCP), as prescribed by the Marine Transportation Security Regulations (the Regulations). The MTSCP requires employees who work in safety sensitive positions to obtain a Transportation Security Clearance (TSC) by a certain date. The International Longshore and Warehouse Union (ILWU) advised the identified employees "not to apply at this time" for the TSC. This led the British Columbia Maritime Employers Association to apply for a declaration of unlawful strike under section 91 of the Code. The ILWU argued that the Regulations violated the Canadian Charter of Rights and Freedoms, the Privacy Act, the Canadian Bill of Rights and the Canadian Human Rights Act. During the hearing, the Attorney General of Canada filed a Reference with the Court concerning these challenges.

The Board first addressed the preliminary issue regarding what impact the Reference might have on the matters before it. The majority of the Board was of the view that the challenges to the legislation contained in the Reference had been moved to the Court’s jurisdiction. The majority then determined that the Board had a continuing statutory duty to decide whether or not an unlawful strike was taking place. The majority found that an unlawful strike had occurred when the ILWU advised the employees not to apply for the security clearance, and the employees refused in concert to apply.

The dissenting member found that there had not been a strike, and would have awaited the Court’s decision in the Reference before rendering a final decision.

The Attorney General’s Reference is still pending before the Federal Court of Appeal; however, the Court denied the union’s request for a stay of the Board’s order and the Regulations.

Canadian National Railway Company (2007), as yet unreported CIRB decision no. 398

This case dealt with the unique circumstances surrounding a displacement application filed by the Teamsters Canada Rail Conference to represent a unit of employees working for the Canadian National Railway Company (CN). The application was filed during the ratification process for a tentative settlement agreement reached between the incumbent union (the United Transportation Union (UTU)) and CN in the context of a lawful strike. The parties to the tentative settlement agreement had concluded an interim return-to-work protocol providing that employees return to work during the ratification process. Seventy-nine percent of the UTU membership rejected the tentative settlement agreement. Parliament ultimately passed back to work legislation, entitled the Railway Continuation Act, 2007 (the Railway Act), providing for an end to any strike action and imposing a final offer selection process, which was conducted by Arbitrator Sims.

The main issue in this case was whether the Board should grant consent, as required pursuant to section 24(3) of the Code, to file the application for certification during a lawful strike.

Although the UTU and CN submitted that the Board should first determine the issue of consent as a preliminary issue, prior to even processing the application for certification, the Board found that, in this particular case, it was preferable to receive and review the full submissions of the parties in order to determine whether it would exercise its discretion to grant consent, should consent be required in the circumstances, because the question of whether there was an ongoing strike at the time the application was filed was a contested issue.

With respect to the substantive issues raised in the application, the Board first found that the Railway Act did not have the effect of closing the open periods provided for under section 24 of the Code and, secondly, that the application was filed during a lawful strike even if a majority of the employees had returned to work for the period of time between the signing of the tentative settlement and the ratification vote. That being found, the determining issue was whether or not to grant consent. The Board examined the unusual circumstances of this case: the fact that a majority of employees were back at work at the time the application was filed, that back-to-work legislation had been tabled, that there existed internal union problems within the UTU, that 79 percent of the membership rejected the tentative agreement, and that the final offer selection award would be binding on any other union certified by the Board. The Board found that there were compelling labour relations reasons and, consequently, a labour relations purpose to be served for the Board to grant consent. Consent was therefore granted, and the employees were given an opportunity to decide which union they would like to represent them.

The Board subsequently ordered a representation vote to be taken. A reconsideration application of the decision to hold a representation vote is currently pending before the Board.

4.2 Judicial Reviews

TD Canada Trust v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (2007), 370 N.R. 267 (F.C.A., no. A 192 05)

The original panel of the Board granted an application for certification filed by the United Steelworkers of America (the union) and determined that a single bargaining unit comprising employees of eight of TD Canada Trust’s (TD) branches was appropriate (TD Canada Trust in the City of Greater Sudbury, Ontario, [2005] CIRB no. 316). The Board dismissed TD’s reconsideration application (TD Canada Trust in the City of Greater Sudbury, Ontario, [2006] CIRB no. 363; and 141 CLRBR (2d) 94).

The Court dismissed the application for the judicial review filed by TD.

The Court addressed two natural justice grounds. The first dealt with the Board’s alleged insufficient and procedurally unfair investigation into certain employees’ allegations of intimidation and coercion by union representatives. The Court found that this ground could not succeed, as the Board is entitled to considerable deference in procedural matters. The second ground dealt with the fact that the request to intervene filed by the seven employees at the Lively Branch (the Lively Seven) had apparently been ignored by the original panel. According to the Court, this oversight was remedied when the group was granted intervenor status in the reconsideration hearing. The Court stated that "[a] reconsideration hearing is meant to be a serious review of the original decision" and concluded that the reconsideration panel gave full consideration to the applicants’ material and submissions.

The Court confirmed that the standard of review for the Board’s certification decision and reconsideration decision was that of patent unreasonableness. As such, it did not find any error of fact or law that would warrant the Court’s interference.

The Court was not convinced that there was interference with the freedom of association (section 2(d) of the Charter) that warranted Charter protection. It found that there was no evidence of any forced association of any individual of the Lively Seven with ideas or values to which he or she did not adhere. As a result, the Court concluded that an analysis under section 1 of the Charter was not required.

Air Canada Pilots Association v. Air Line Pilots Association et als, no. A-144-06, June 19, 2007 (F.C.A.)

The Court upheld a decision of the Board in Air Canada, [2006] CIRB no. 349; and 138 CLRBR (2d) 193, in which the Board decided, among other things, that it had no jurisdiction, under section 16(p) of the Code, to rule on whether or not arbitrator Teplitsky’s recommendations (to modify in part arbitrator Keller’s seniority integration list at Air Canada), if implemented, would violate the Code.

The Court stated that section 16(p) is an "empowering" provision, one which grants the Board discretionary powers, as opposed to a jurisdictional provision. Therefore, the applicable standard of review is that of patent unreasonableness. In this case, the Board’s decision was rational and made particular sense in the overall context of the seniority list proceedings. The Air Canada Pilots Association (ACPA) tried to rely on other provisions of the Code, such as sections 15.1(2), 18 and 18.1, but these sections were not applicable and the ACPA’s reliance on section 15.1(2) indicated to the Court that it was simply seeking a reconsideration of arbitrator Keller’s award.

Application for leave to appeal to the Supreme Court of Canada has been dismissed.

Thien v. International Longshore and Warehouse Union, Ship & Dock Foremen, Local 514 et al. (2008), 372 N.R. 252 (F.C.A., no. A-250-07)

Mr. Thien originally complained to the Board under section 37 of the Code that his union, the International Longshore and Warehouse Union, Ship and Dock Foremen Local 514 (the union), breached its duty of fair representation by refusing to represent him in a grievance procedure pertaining to his entitlement to a retirement allowance. Mr. Thien had been dismissed by Western Stevedoring Company Limited, his employer, for cause and was subsequently denied a retirement allowance. The Board dismissed Mr. Thien’s complaint in Harvey Thien, April 20, 2007 (CIRB LD 1592), on the basis that the complainant had not provided sufficient facts to establish a violation of the duty of fair representation.

Mr. Thien sought judicial review of the Board’s decision on two grounds: (1) the Board had not dealt satisfactorily with his request for an oral hearing; and (2) the Board had failed to examine the issue of whether the union had breached its duty of fair representation when the union did not address the complexity of the issue and the structure of the longshore industry and the issue of whether termination by one employer within a group of employers severs all entitlements.

The Court dismissed the application for judicial review. It found that there was no error in the Board’s decision not to hold an oral hearing; that Mr. Thien’s allegations of failure on the part of his union to address the issues outlined above were not substantiated; and that Mr. Thien did not show that the Board’s conclusion—that most of his arguments appeared to be directed at the merits of the grievance—was erroneous. The Court also commented that Mr. Thien’s complaints on judicial review went beyond the question of whether or not the union breached its duty of fair representation, and involved considerations relating to the merits of both the decision denying him entitlement to the retirement allowance and the employer’s decision to terminate his employment.

Application for leave to appeal to the Supreme Court of Canada was dismissed.

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