Acquisition of Bargaining Rights

• Author: Christopher Rootham
• Pages: 152-219

152

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Acquisition of Bargaining Rights

A. INTRODUCTION

The prevailing pattern of labour relations legislation in Canada is that

labour relations boards determine which organization has the exclu-

sive right to represent a class or classes of employees in collective bar-

gaining.1 Labour boards allow employees to chose which organization

will acquire this exclusive right of representation through a process

known as “certif‌ication.” This so-called Wagner Act model of labour

relations — with the two principles of majoritarianism and exclusiv-

ity — is in force in most private sector and public sector workplaces.2

The Federal Public Sector Labour Relations Act (FPSLRA) is no

dierent from other Canadian labour relations statutes in this respect.

The only dierence is that certif‌ication is the sole process by which an

employee organization can earn the exclusive right to represent mem-

bers in collective bargaining in the federal public service. In the private

sector, some labour relations statutes permit “voluntary recognition” of

bargaining agents. The FPSLRA does not permit voluntary recognition:

the def‌inition of a “bargaining agent” is “an employee organization

that is certif‌ied by the Board” (at s 2(1)). As Finkelman and Goldenberg

1 Jacob Finkelman & Shirley Goldenberg, Collective Bargaining in the Public Ser-

vice: The Federal Experience in Canada (Ottawa: Institute for Research on Public

Policy, 1983) at 84.

2 Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1

at para 94.

Acquisition of Bargaining Rights | 153

explained, “[B]y this means the employer (the government) thus relieves

itself of any possible charge that it might be showing favouritism if it

recognized one employee organization rather than another.”3

This chapter explores the various issues that arise when employee

organizations apply to be certif‌ied as the bargaining agent for a par-

ticular group of employees.

B. APPLICATIONS FOR INITIAL CERTIFICATION

) The Applicant for Certif‌ication Must Be an “Employee Organization”

The FPSLRA def‌ines an “employee organization” as an organization

the purposes of which include the regulation of relations between the

employer and its employees for the purposes of parts I and II of the

FPSLRA.4 The Board has seldom examined the bona f‌ides of an employee

organization applying for certif‌ication in great detail, and when the

Board has done so, it has been rebuked by the Federal Court of Appeal.

The leading case concerning whether an organization is an

employee organization remains the 1992 decision of the Federal Court

of Appeal in Canadian Association of Trades and Techniciansv Canada

(Treasury Board).5 In that case, the Canadian Association of Trades

and Technicians (CATT) applied to displace the Federal Government

Dockyard Trades and Labour Council East as the bargaining agent for

the Operational Category — East Coast bargaining unit. The incum-

bent bargaining agent argued that the constitution of CATT was “so

f‌lawed and invalid that CATT fails to meet the requirements of the

def‌inition of ‘employee organization.’”6 The Board agreed, stating that

CATT “appears to be very autocratic and does not provide its mem-

bers with some basic rights.”7 The Board then cited several specif‌ic

def‌iciencies with CATT’s constitution, including the failure to name an

ocer responsible for signing the collective agreement, the absence of

3 Finkelman & Goldenberg, above note 1 at 85.

4 Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2, s 2(1), “employee

organization” [FPSLRA]. The def‌inition is unchanged from the old Public Service

Sta Relations Act (PSSRA).

5 Canadian Association of Trades and Technicians v Canada (Treasury Board),

[1992] 2 FC 533 (CA) [CATT v Treasury Board].

6 Board decision in Canadian Association of Trades and Technicians v Canada

(Treasury Board), [1991] CPSSRB No 42 at 4.

7 Ibid at 5.

154 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE

members’ rights to ratify the collective agreement, and the absence of

any right of members to be represented in grievances.

The Federal Court of Appeal quashed the Board’s decision. The

Court set out the three general criteria to be an “employee organization”:

• it must be an organization of employees;

• it must be formed for labour relations purposes; and

• it must be a viable entity for collective bargaining purposes.8

The Board had also set out those three criteria and had refused to

acknowledge CATT as an “employee organization” based on the third

criterion. The Court took a much more narrow view of the circum-

stances in which an organization is not a viable entity for collective

bargaining purposes. The Court stated that “some substantial ground

must be shown to deprive an employee organization of its prima facie

right to certif‌ication.”9 As a result:

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 provi-

sions of the constitution 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 written

constitution, duly adopted by the members, which allows it to operate

as a viable entity and to legally bind the organization and its members.10

The Court did not explain why it felt it necessary for an employee organ-

ization to have a written constitution, duly adopted by the members.

In Capital Coach Lines Ltd (Travelways) and Canadian Brotherhood

of Railway, Transport and General Workers and Travelways Maple

Leaf Garage Employees’ Association,11 the Canada Labour Relations

Board concluded that the existence of a written constitution gave an

employee organization “sucient status to operate as a viable entity and

to legally bind the organization and its members.” Since a trade union

8 CATT v Treasury Board, above note 5 at para 7.

9 Ibid at para 8, citing New Brunswick Teachers’ Federation v Province of New

Brunswick (1970), 3 NBR (2d) 189 (CA).

10 Ibid at para 11.

11 Capital Coach Lines Ltd (Travelways) and Canadian Brotherhood of Railway,

Transport and General Workers and Travelways Maple Leaf Garage Employees’

Association, (1980) 40 di 5.