ARCHIVED - Canada Industrial Relations Board

• Previous Page
• Table of Contents
•  

This page has been archived.

SECTION IV - ILLUSTRATIVE BOARD DECISIONS AND JUDICIAL REVIEWS

4.1 Illustrative Board Decisions

TD Canada Trust in the City of Greater Sudbury, Ontario (2006), as yet unreported CIRB decision no. 363 (certification by cluster in the banking industry)

This matter was a reconsideration of a Board decision which granted an application for certification of a single bargaining unit that covered a cluster of bank branches in the Greater Sudbury area, contrary to TD's position that a cluster of branches was inappropriate and contrary to what it believed was the Board's general branch-by-branch approach in the banking industry. The original decision was also challenged as being against the express wishes of all of the employees of one particular branch, the Lively Branch.

The reconsideration panel confirmed that there is no established practice or policy that favours branch-by-branch units over clusters, in the banking industry. Further, it confirmed that the union required only a majority of employee support in the overall unit found to be appropriate and not in each individual branch. The contrary wishes of the Lively employees did not affect the majority support demonstrated in the overall unit, thus a representation vote was not required. Nor did the inclusion in the unit of employees who did not support the union violate their rights of "non-association" under the Canadian Charter of Rights and Freedom.

Finally, the panel confirmed the Board's policy that the level or the extent of the Board officer's investigation into allegations of intimidation and coercion is discretionary and may vary depending upon a variety of factors. It rests with the panel seized to determine whether further investigation is required or if it is satisfied that the membership evidence is reliable. Only where the Board is satisfied that the improprieties affect the validity or reliability of the membership evidence submitted, will the Board consider an alternative method of verifying employee wishes and the level of support for the applicant union. A representation vote was not warranted on this basis either. All aspects of the reconsideration application were dismissed.

An application for judicial review before the Federal Court of Appeal was heard on September 11, 2007, with its judgment reserved.

Canadian National Railway Company, [2006] CIRB no. 362 (enforcement of settlements)

This matter involved an application filed by the union to have the Board declare that a settlement agreement, concerning various outstanding matters before the Board, had been concluded between the parties and order the employer, CN, to comply with its terms.

The Board first found that it does have the jurisdiction and power, under sections 15.1, 16(p), 21, 98 and 99 of the Code, to determine whether the issues in matters pending before the Board have been settled and to make any necessary orders. The Board concluded that in support of the statutory objective of the constructive settlement of disputes, it is necessary to protect the integrity of the informal settlement process. The Board's general powers must be interpreted in a manner that provides it with the requisite authority to inquire into whether a settlement has been reached and if so, to enforce its terms, in order to prevent parties from reneging on commitments made during the informal dispute resolution process. To find that the Board lacks this power would seriously undermine the Board's authority and its process in fulfilling its statutory mandate.

The Board then found that a settlement had been concluded between the parties. The terms of the oral agreement reached between the negotiating parties were found to be sufficiently clear, unconditional and covering all the essential issues, so as to constitute a binding and enforceable settlement agreement.

Air Canada, [2006] CIRB no. 360 (Board's jurisdiction to rule on mediator's recommendations)

In this reconsideration decision, the Board upheld the original panel's decision that it had no jurisdiction, under section 16(p) of the Code, to rule on whether or not the mediator Teplitsky recommendations (to modify the pilots' seniority list established by arbitrator Keller following the merger with Canadian Airlines), if implemented, would violate the Code.

The panel saw no error in the Board's approach to the meaning of section 16(p). What the Air Canada Pilots Association really sought was a form of pre-clearance or advanced ruling under section 16(p) on the propriety of its actions in order to avoid subsequent duty of fair representation (DFR) complaints. However, such issues can and should be dealt with under section 37, if and when any such action is taken.

Before concluding, the panel confirmed the limited status of the Air Line Pilots Association to continue to represent the minority pilots' interests respecting any negotiated changes to the seniority list. If and when the Board is called upon in the future to judge any proposed changes to the list, it will have to assess the need for and cause of the changes. It offered that mere efforts to impose the majority will on the minority will likely not serve as sufficient reason to change the seniority provisions, while other proposals may be seen as legitimate changes for valid operational reasons.

Application for judicial review was dismissed by the Federal Court of Appeal on June 19, 2007.

Securiguard Services Limited, [2006] CIRB no. 359; and 132 CLRBR (2d) 299 (review of ministerial action)

In this matter, the employer complained that the notice of dispute filed by the union pursuant to section 71 of the Code was invalid and asked the Board to set aside the subsequent appointment of a conciliation officer by the Minister of Labour. The application was brought under section 16(p) of the Code. The Board found that it had no jurisdiction to hear the application.

First, the Board determined that the application was not properly before the Board because section 16(p) does not, in itself, authorize the filing of an application. The purpose of the section is to allow the Board to resolve questions that arise during the course of a proceeding already before it. It does not grant parties an independent right of access to the Board's decision-making process.

Second, the Board determined that it had no jurisdiction to set aside the Minister of Labour's appointment of the conciliation officer or to declare the notice of dispute void. It rejected the argument that the privative clause that prevents a court from reviewing a ministerial appointment of a conciliation officer (section 86) implicitly confers jurisdiction on the Board to do so. It found no provision in Part I of the Code that authorizes the Board to review the exercise of any of the ministerial functions.

Crawford Transport Inc. (2006), as yet unreported CIRB decision no. 370 (bad faith bargaining and unfair labour practice)

This matter involved a bad faith bargaining and unfair labour practice complaint filed against Crawford, a trucking company. The parties reached an impasse in collective bargaining over a work allocation clause. The existing clause provided that errors in work allocation were non-grievable. An arbitrator ruled that the issue was grievable under the collective agreement and struck down the clause. In the ensuing negotiations, the employer took to impasse a proposal that allowed work allocation grievances but barred any monetary remedy. The union rejected the final offer and voted in favour of a strike. The employer then withdrew the final offer.

The employer's business came from two main customers, both of whom decided to end their relationship with Crawford, due to the looming prospect of a strike and the almost certain disruption of service to their own businesses. As a result, Crawford's business diminished significantly, it laid off all of its employees and transformed its transportation business into an equipment-leasing business, leasing to its competitor who now services its former customers.

The Board found that in these circumstances and with the history associated with the particular clause in question, the employer's absolute insistence on this clause, with no room for movement, and its refusal to return to the bargaining table, constituted bad faith bargaining.

The Board also upheld the unfair labour practice complaint. It held that Crawford's conduct in bargaining contributed to the decision of its customers to withdraw its business, which in turn caused the lay-offs and the closure of that business. While a company has the right to genuinely go out of business, its decision to do so does not remove its obligations under the Code.

With respect to remedy, the Board rejected the union's request to order Crawford to reopen the transportation business as it would "exceed the practical limits of the Board's remedial powers." Instead, it ordered lost wages and benefits to the laid-off employees and damages for lost negotiating costs to the union.

4.2 Judicial Reviews

Transport Besner Atlantic Ltée v. Syndicat des travailleuses & travailleurs de Transport Besner (CSN), 2006 FCA 146 (nos. A-475-04, A-11-05, A-107-05, A-392-05)

The Federal Court of Appeal dismissed the four applications for judicial review in this matter.

The three Board decisions with respect to a declaration of sale of business and a single employer declaration were upheld by the Court: Transport Besner Inc. et al., [2004] CIRB no. 285; and 119 CLRBR (2d) 1; Transport Besner Inc. et al., [2004] CIRB no. 303; and 125 CLRBR (2d) 69; and Transport Besner Inc. et al., [2005] CIRB no. 329; and 135 CLRBR (2d) 306. The Court concluded that the Board's decision to issue a sale of business declaration and a single employer declaration was not patently unreasonable.

The Court explained the scope of section 44 of the Code. It made some important distinctions between the Canada Labour Code and the Quebec Labour Code's provisions on sale of business and analyzed the relevant case law from the Supreme Court of Canada. The Court stated that a legal relationship is not necessary in order to determine whether a sale of business has taken place.

The Court also concluded that the Board's decision to allow 98 truckers laid off by Transport Besner to participate in the representation vote following the sale of business and single employer declarations was not patently unreasonable.

J.D. Irving Ltd. v. I.L.A, Local 273, 2006 FCA 193 (no. A-399-05)

The Board, in an earlier ruling (Irving Shipbuilding Inc. et al., [2002] CIRB no. 153; and 91 CLRBR (2d) 71), found that since J.D. Irving had extended its operations in the Port of Saint John, New Brunswick, to conduct longshoring work, such operations were covered by an existing geographic certification order.

When the Board proceeded to deal with unresolved issues following this earlier ruling, the employer once again challenged the Board's jurisdiction and argued that the particular operations which included the longshoring work fell under provincial, not federal, jurisdiction. It claimed that the standard of patent unreasonableness only applied to the Board's interpretation of its own statute, such as section 34 of the Code. It asserted that the test of correctness must be applied where there is a constitutional issue, such as a division of powers question or Charter ground.

The application for judicial review was dismissed. The Court reaffirmed that the question of whether work is or is not longshoring is within the Board's expertise and that the standard of review in that regard is patent unreasonableness. The Court concluded that the employer could not now challenge the Board's earlier finding that J.D Irving is engaged in longshoring at the Port of Saint John by means of a collateral attack on the Board's reaffirmation of that finding. Having made and reaffirmed those findings, the Court found that the Board was entitled to conclude that such activity came within the legislative power of Parliament under the heading of navigation and shipping and was therefore a federal work.

Note: The above two significant Federal Court of Appeal cases have been summarized in this Report, even though they were referred to in last year's Report, since they are illustrative of judicial reviews heard by the Federal Court of Appeal in fiscal year 2006-07.

• Previous Page
• Table of Contents
•