Judgments

Decision Information

Decision Content

A-191-91 A-607-91
Canadian Association of Trades and Technicians (C.A.T.T.) (Applicant)
v.
Treasury Board and Federal Government Dockyard Trades and Labour Council East (Respondents)
INDEXED AS: CANADIAN ASSN. OF TRADES AND TECHNICIANS V. CANADA (TREASURY BOARD) (CA.)
Court of Appeal, Marceau, Stone and Linden JJ.A.— Halifax, February 18 and 19, 1992.
Public Service — Labour relations — PSSRB rejecting certi fication application on ground applicant not "employee organ ization" within PSSRA, s. 2 — Case law requiring "employee organization" be viable entity for collective bargaining pur poses — Board holding not viable entity based on inadequate constitution, citing specific deficiencies — Erred in law as to meaning of "employee organization" and exceeded jurisdic tion in attempting to impose more democratic constitution — Employee organization cannot be deprived of prima facie right to certification except by express provision of Act forbidding certification or conferring upon Board discretionary power to refuse it — Act not giving Board express, general power to supervise in detail quality of constitutional structure of employee organizations — Determination of viability limited to deciding if organization has written constitution, duly adopted by members, allowing it to operate as viable entity and to legally bind organization and members — Constitutional details for unions and members to decide.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 2, 35, 36, 40.
CASES JUDICIALLY CONSIDERED
APPLIED:
New Brunswick Teachers' Federation—La Fédération des Enseignants du Nouveau-Brunswick v. Province of New Brunswick and Canadian Union of Public Employees, et al (1970), 3 N.B.R. 189; 17 D.L.R. (3d) 72 (C.A.); Re
SAO National (Inc.) and Oakville Trafalgar Memorial
Hospital Association, [1972] 2 O.R. 498; (1972), 26 D.L.R. (3d) 163; 72 CLLC 495 (C.A.).
REFERRED TO:
Capital Coach Lines Ltd. (Travelways) and Canadian Brotherhood of Railway, Transport and General Workers and Travelways Maple Leaf Garage Employees' Associa tion, [1980] 2 Can LRBR 407.
AUTHORS CITED
Robert, Henry Martyn Roberts' Rules of Order, Missis- sauga, Ont.: Fenn Publishing Co. Ltd., 1987.
APPLICATION to set aside PSSRB rejection of application for certification on the ground that C.A.T.T. was not an "employee organization" as defined in PSSRA.
COUNSEL:
Susan D. Coen for applicant.
James L. Shields for respondent Federal Gov ernment Dockyard Trades and Labour Council East.
Harvey A. Newman for respondent Treasury Board.
John E. McCormick for intervenor Public Ser vice Staff Relations Board.
SOLICITORS:
MacDonald, Hannem & Coen, Halifax, Nova Scotia, for applicant.
Soloway, Wright, Ottawa, for respondent Federal Government Dockyard Trades and Labour Council East.
Deputy Attorney General of Canada for respon dent Treasury Board.
Public Service Staff Relations Board for inter-
venor Public Service Staff Relations Board.
The following are the reasons for judgment of the Court delivered orally in English by
LINDEN J.A.: The matter raised in this appeal is the role of the Public Service Staff Relations Board in supervising the quality of the constitutional structure of employee organizations. The Board rejected the application for certification of the applicant C.A.T.T. on February 20, 1991, on the ground that it was not
an "employee organization" as defined in section 2 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, as amended, which reads:
2....
"employee organization" means any organization of employ ees the purposes of which include the regulation of relations between the employer and its employees for the purposes of this Act ....
By this section 28 [Federal Court Act, R.S.C., 1985, c. F-7] application, the union attacks that decision on the basis that it was wrong in law, was beyond the jurisdiction of the Board and was based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it.
The bargaining unit of employees of the Treasury Board has been represented since 1976 by the respon dent, Federal Government Dockyard Trades and Labour Council East, which intervened in the appli cation before the Board and also opposed this section 28 application. The Treasury Board did not object to C.A.T.T.'s application before the Board and, although it was represented in this section 28 applica tion, it did not take any position.
The Board concluded that, even though the mem bers of C.A.T.T. were employees and even though proper steps were taken in organizing the union, C.A.T.T. appeared to be "very autocratic" and did not provide its members with some basic rights. Accord ing to the Board, its constitution lacked material that was required for it to be considered to be an employee organization. Among the items missing from the constitution of C.A.T.T., the Board found, were: it did not provide for the calling of membership meetings; it did not have a properly established con stitution committee; it did not set out sufficient guide lines for the bargaining committee; it contained no provision concerning the ratification of collective agreements; it did not deal with representation rights in grievance procedures; and other, less important, matters. The Board held that these defects, "taken
together" were "fatal" and could not be remedied by later amendment.
We are of the view that the Board erred in law and exceeded its jurisdiction in coming to this conclusion.
It should be pointed out that no express, general power is conferred on the Board to supervise in detail the quality of the constitutional structure that is pro vided for in union constitutions. Subsection 36(1) of the Public Service Staff Relations Act does allow the Board to review the constitution of the union to sat isfy itself that the organization enjoys the support of the majority of the employees and that its representa tives are duly authorized to apply for certification (see paragraphs 35(c) and (d)). Section 40 does pro hibit certification of unions which have been tainted by employer participation (subsection (1)), contribu tions to political parties (subsection (2)), or discrimi nation against any employee "because of sex, race, national origin, colour or religion" (subsection (3)). But, other than that, no specific power to ensure union democracy or a particular type of structure is bestowed on the Board by the statute.
A limited power to supervise union constitutions has also evolved through labour board decisions, which have been adopted by the Courts. It is built upon the requirement that, in order to be qualified for certification, an applicant must, along with other things, be an "employee organization" (section 35). Since the definition of employee organization in the statute (see above) is rather skeletal, the labour law jurisprudence has sought to flesh it out to some extent.
The Board correctly outlined the established gen eral criteria for an "employee organization", that is (1) it must be an organization of employees, (2) it must be formed for labour relations purposes and (3) it must be a viable entity for collective bargaining purposes. The Board decided that the first two requirements had been met, but not the third one—
viability. It went on, however, to improperly expand on the content of the third requirement, thereby exceeding its jurisdiction and making serious errors in law as to the meaning of "employee organization."
It must be recalled that, as Mr. Justice Hughes said [at pages 197-198] in the context of a similar provin cial statute, in New Brunswick Teachers' Federation —La Federation des Enseignants du Nouveau Bruns- wick v. Province of New Brunswick and Canadian Union of Public Employees, et al (1970), 3 N.B.R. 189 (C.A.), an employee organization which satisfies the conditions set out in the statute has a "prima facie right to be certified" in accordance with the statute and it cannot be deprived of that right "except by some provision of the Act expressly forbidding certi fication or conferring upon the Board some discre tionary power to refuse it." Since the object of the Act is to promote collective bargaining by democrati cally chosen bargaining agents, "some substantial ground must be shown to deprive an employee organ ization of its prima facie right to certification".
The New Brunswick Court of Appeal concluded that the Board erred in denying certification to the employee organization because certain members were not eligible to be elected as officers. Mr. Justice Hughes explained that it was improper to deny a union certification because of any limitation on the rights of its members. The Court referred to the prin ciple expressio unius, in support of its reasoning, pointing to a similar provision to the one in this case, forbidding certification to organizations that discrim inate on a series of grounds, hut not including "the right of any member to hold office" (at page 202). In concluding, Mr. Justice Hughes reminded us that union elections are matters of "domestic concern to the membership; that the legislatures and courts have traditionally kept their distance from such matters" [at page 203].
These principles were adopted by the Ontario Court of Appeal in Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972], 2 O.R. 498, where certification had been denied by the Ontario Labour Relations Board on the ground that provisional members of a union were kept from holding elected office. In setting aside that decision, Jessup J.A. agreed [at page 501] that such a factor could not be added to the "determination of whether a union is an organization" under the Onta- rio statute. He too relied on the fact that, since certain practices such as discrimination may prevent a union from receiving certification, other undemocratic prac tices are not meant to be a ground for denying certifi cation. Mr. Justice Arnup agreed, saying that the Board, in so doing, had given itself "an enlarged jurisdiction not warranted by the Act" (at page 505).
In order to decide if an organization is a viable union, therefore, the Board is not entitled to examine in minute detail each of the provisions of the consti tution and pass judgment on their democratic flavour. These matters of detail are for the unions and their members to decide, not for the Board, unless it is given express statutory authority. The Board must limit itself to deciding if the organization has a writ ten constitution, duly adopted by the members, which allows it to operate as a viable entity and to legally bind the organization and its members. (See Capital Coach Lines Ltd. (Travelways) and Canadian Broth erhood of Railway, Transport and General Workers and Travelways Maple Leaf Garage Employees' Association, [1980] 2 Can LRBR 407, at page 410).
In this case, there can be no doubt that there was a written constitution consisting of some 12 pages and 37 articles covering most of the matters that union constitutions usually cover, including a general com mitment to democracy which reads: "Each member shall be entitled to a full share in union self-govern ment. Each member shall have full freedom of speech and the right to participate in the democratic deci sions of the union" (IV (g)). In addition, there can be no uncertainty about the capacity of the organization to legally bind itself and its members. There is provi-
sion for an elected Executive Board which is to meet "at least once a month" and which shall be the "gov- erning body of the union", which may "take such action and render such decisions as may be necessary to carry out fully the decisions and instructions of the union meetings and to enforce the provisions con tained in this constitution." Given these provisions and the evidence adduced, the Board was obligated to decide that the employee organization, given its prima facie right to seek certification, was a viable one.
The criticism expressed by the Board as to the quality of the democracy established in the constitu tion was not within its jurisdiction. Certainly there were gaps in the constitution which it would he desir able to fill. Certainly, there were matters which it might be better to eliminate. But it is not the business of the Board to impose a more democratic constitu tion on the union; that is the responsibility of the union and its members. In seeking to impose those preferable provisions, the Board erred in law and exceeded its jurisdiction.
In addition, there were serious errors made by the Board in its reading of the constitution. While it is true that there was no express provision requiring the calling of monthly or special meetings of the mem bers, regular monthly meetings were certainly con templated in the document, where it was stipulated that the Secretary-Treasurer had to report in writing every month at a regular meeting of the union (XV). While there was no express requirement dealing with notices of meetings, it was understood that they would be given, where it is stipulated that the Recording-Secretary "shall post notices of all meet ings" (XIII). (There was also a provision made for a newsletter, which would undoubtedly contain notices of any meetings.) While there were no specific guide lines as to the ratification of collective agreements by the members, there were terms concerning the setting up of a negotiating committee and the need for it to gather proposals from the members and to obtain their "final mandate" (XXIV). Any Executive Board or Negotiating Committee which did not put a pro posed collective agreement before the regular monthly meeting (or call one for the specific pur-
pose), especially if it were outside the mandate, whether or not a clause required this, would certainly find itself out of office at the next union election and perhaps even decertified. Whereas the Board thought there was no constitution committee, nor any guide lines for one, there was provision for such a commit tee, for the election of its members, and some general guidance was offered to it (XXXIV). To cover certain procedural omissions, there was also a provision that Roberts' Rules of Order were to apply, unless other wise provided (XXXVII (aa)). An added safeguard for democracy in the union constitution was a refer endum procedure which could be triggered by ordi nary members who wished to vote on decisions, poli cies and constitutional changes on matters that pertain to the business of the union. Another demo cratic provision in the document was a recall clause (XXII). There are certainly gaps and deficiencies in this constitution which would deny it the description of an "ideal " or "perfect" constitution; it is clearly not a model constitution to be praised or emulated. But, neither is it a constitution that would permit the Board to decide that this employee organization is not a viable one, so as to deny it certification.
This section 28 application will be allowed. The decision of the Board will be set aside and the matter referred back to the Board to continue with the certi fication process on the basis that this union is a legally constituted employee organization.
As for the second application (Court number A-607-91), given the decision in the first application, the matter is moot and, hence, the section 28 applica tion will be dismissed.
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