Acquisition of bargaining rights

• Author: Christopher Rootham
• Pages: 117-172

 

ACQUISITION OF

BARGAINING RIGHTS

A. INTRODUCTION

e prevailing pattern of labour relations legislation in Canada is that labour

relations boards determine which organization has the exclusive right to rep-

resent a class or classes of employees in collective bargaining. 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 various issues that arise when employee organ-

izations apply to be certied as the bargaining agent for a particular group of

employees.

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 .



         

B. APPLICATIONS FOR INITIAL CERTIFICATION

) e Applicant for Certication Must be an “Employee

Organization”

e PSLRA den es an “employee organiz ation” as an organi zation, the purp oses

of which include the regulation of relations between the employer and its em-

ployees for the purposes of Parts  and  of the PSLRA. 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 displace 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 argued that the constitution of CATT was “so awed and invalid

that CATT fails to meet the requirements of the denition of ‘employee organ-

ization.’” e Board agreed, stating that CATT “appears to be very autocratic

and does not provide its members with some ba sic rights.” e Board then cited

several specic deciencies with CATT’s constitution, including 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 right

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 organization” based on the third criterion. e

Court took a much more narrow view of the 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 judgment on their democratic avour. ese matters of detail

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 has a written constitution, duly adopted by t he members, which

allows it to operate as a v iable entity and to legally bind the organization and

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 the 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 the organization and its members.” Since a trade union is

an entity governed by contract, and the terms of that contract are set out in t he

union constitution, a union must have a constitution to be a viable organiza-

tion. e Trade Unions Act also requires u nions registering und er its provisions

to le a copy of the “rules of the union,” and this may have inuenced earlier

decisions of labour boards to require employee organizations to have a written

constitution.

Another union that was denied status as an “employee organization” 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 allowed any vote in the aairs of the association. e

Board stated that the employees concer ned must “play a role in the determination

of their conditions of employment,” and that the 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