Acquisition of bargaining rights

AuthorChristopher Rootham
 
e prevailing patter n of labour relations legislation i n Canada is that labour
relations boards determine wh ich organization has the e xclusive right to rep-
resent a class or classes of employees i n collective bargai ning. Labour boards
allow employees to chose which organ ization will acquire thi s exclusive right of
representation through a proce ss known as “certication.”
e Public Service Labour Relati ons Act is no dierent from other Canadian
labour relations statutes in t his respect. e only dierence is t hat certication is
the sole process by which an employee orga nization can earn the exclusive rig ht
to represent members in collective ba rgaining in the federa l public service. In the
private sector, some labour relations statutes permit “voluntary recognition” of
bargaining agents . e PSLRA does not permit voluntary recog nition: the den-
ition of a “ba rgaining agent ” is “an employee organi zation that is cer tied by the
Board.” As Finkelman a nd Goldenberg explain, “by t his means the employer (the
government) thus relieves itself of any possible charge that it might be showing
favouritism if it recogn ized one employee organization rather than a nother.
is chapter explores the v arious issues that a rise when employee organ-
izations apply to be cert ied as the bargai ning agent for a particul ar group of
Jacob Finkelman & Shirley Goldenberg,Jacob Finkelma n & Shirley Goldenberg, Col lective Bargaining in the Public S ervice: e
Federal Experience in Canada (Montreal: I nstitute for Research on Publ ic Policy, )
at .
Public Serv ice Labour Relations Act , S.C. , c. , s.  [PSLRA].
Finkelman&Goldenberg,abovenoteat.Finkelma n & Goldenberg, above note  at .
           
) e Applicant for Certication Must be an “Employee
e PSLRA den es an “employee organiz ation” as an organi zation, the purp oses
of which include the regu lation of relations between the employer and its em-
ployees for the purposes of Pa rts  and  of the PSLR A. e Board has seldom
examined the bona des of an employee orga nization apply ing for certi cation in
great detail, and when t he Board has done so, it has been rebuked by the Federal
Court of Appeal .
e leading case concer ning whether an organi zation is an “employee organ-
ization” is the decision of the Federa l Court of Appeal in Canadian Association of
Trades and Technicians v. Canada (Treasury Board). In that case, the Canadian
Association of Trades and Technicians (CATT) applied to displ ace the Federal
Government Dockyard Trades and Labour Counci l East as the bargaining agent
for the Operational Category — E ast Coast bargaining un it. e incumbent bar-
gaining agent arg ued that the constitut ion of CATT was “so awed and invalid
that CATT fails to mee t the requirements of the den ition of ‘employee organ-
ization.’” e Board agreed , stating that CATT “appear s to be very autocratic
and does not provide its members with some ba sic rights.” e Board then cited
several specic dec iencies with CATT’s constitution, includi ng the failure to
name an ocer responsible for signing t he collective agreement, the absence of
members’ rights to ratif y the collective agreement, and the absence of any ri ght
of members to be represented in grieva nces.
e Federal Court of Appe al quashed the Board ’s decision. e Court set out
the three general criteria to be an “employee organization”: it must be an organ-
ization of employees; it must be formed for labour relations pu rposes; and it must
be a viable entity for collect ive bargaining purposes.
e Board had also set out those t hree criteria, and had refused to acknow-
ledge CATT as an “employee organizat ion” based on the third criterion. e
Court took a much more narrow view of t he circumstances i n which an organ-
ization is not a viable entity for col lective bargaining purpose s. e Court stated
PSLRA, above note , s.  (): “employee organi zation.” e denition is uncha nged from
the old Public Ser vice Sta Relations Ac t, S.C. –, c. ; Public Service Sta Rela-
tions Act, R. S., , c. P- [PSSRA].
[] F.C.  (C.A.) [Trades and Technicians].
Board decision i n ibid., [] C.P.S.S.R .B. No.  at .
Ibid. at .
Trades and Technicians, above note  at pa ra. .
Chapter Five: Acquisit ion of Bargaining Rights
that “some substantial g round must be shown to deprive an employee organ iza-
tion of its prima facie right to cer tication.” As a result,
[i]n order to decide if an organizat ion is a viable union, therefore, the B oard is
not entitled to examine in minute detail each of the provisions of the constitu-
tion and pass judg ment on their democrat ic avour. ese matters of deta il
are for the unions a nd their members to decide, not for the Board , unless it is
given express st atutory authority. e Board must li mit itself to deciding if t he
organization h as a written cons titution, duly adopted by t he members, which
allows it to operate as a v iable entity and to legally bind t he organization a nd
its members.
e Court did not expla in why it felt it necessary for an “employee organiz a-
tion” to have a written constitution, duly adopted by t he members. In Capital
Coach Lines Ltd. (Travelways) and Canadian Brotherhood of Railway, Transport
and General Workers and Travelways Maple Leaf Garage Employees’ Association,
the Canada Labour Rel ations Board concluded that the fact of a written const itu-
tion gave an employee organization “suc ient status to operate as a viable entity
and to legally bind t he organization and its member s.” Since a trade union is
an entity governed by contract, a nd the terms of that contract are set out in t he
union constitution, a union must have a constitution to be a viable orga niza-
tion. e Trade Unions Act also requires u nions registering und er its provisions
to le a copy of the “rules of the u nion,” and this may have inuenced earlier
decisions of labour boards to requ ire employee organizations to have a wr itten
Another union that wa s denied status as an “employee organ ization” was
the Canadia n Air Line Pilots Association. W hen they applied in , pilots em-
ployed in the federal public ser vice were only entitled to “Associate Membership”
in the association, by which they were not entitled to “general representation
services,” nor were they a llowed any vote in the aa irs of the associat ion. e
Board stated that the employees concer ned must “play a role in the determination
of their conditions of employment,” and that t he Board would not certif y “what
are commonly known as ‘paper lo cals.’” In light of the Federal Court of Appea l’s
Ibid. at para . , citing New Brunsw ick Teachers’ Federation v. Province of Ne w Brunswick
(),  N.B.R. (d)  (C.A.).
 Trades and Technicians, ibid. at par a. .
 (),  di .
 Berry v. Pulley, [] S.C .R. .
 R.S.C. , c. T-, s. . Register ing under the Trades Union Act is sucient to g uaran-
tee immunit y from prosecution for crim inal conspiracy si mply for being a trade union:
s. .
 Canadian Air Line Pi lots Association and C anada (Treasury Board) (Aircra Operation s
Group — Technical Category), [] C.P.S.S.R. B. No.  at para.  [Canadian Air Line

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