Reasons for decision

AJW Technique Workers’ Association (AJWTA),

applicant,

and

AJW Technique Inc.,

employer,

and

International Association of Machinists and Aerospace Workers,

certified bargaining agent.

The Canada Industrial Relations Board (the Board) was composed of Ms. Ginette Brazeau, Chairperson, and Messrs. Richard Brabander and Norman Rivard, Members.

Counsel of Record

Mr. Bruno-Pierre Allard, for AJW Technique Workers’ Association (AJWTA);

Mr. Philippe-André Tessier, for AJW Technique Inc.;

Ms. Amanda Pask, for the International Association of Machinists and Aerospace Workers.

These reasons for decision were written by Ms. Ginette Brazeau, Chairperson.

I. Nature of the Application

[1] On January 12, 2016, AJW Technique Workers’ Association (AJWTA or the applicant) filed an application for certification seeking to be certified as the bargaining agent for a unit of employees at AJW Technique Inc. (AJW or the employer) thereby displacing the International Association of Machinists and Aerospace Workers (IAMAW), the incumbent bargaining agent. 

[2] The IAMAW was certified to represent a unit of technical, maintenance and operational support employees at AJW on March 13, 2014 (Board order no. 10539-U). AJW is a specialist in the maintenance, repair and overhaul of commercial aircraft components. A collective agreement is in place between these two parties for a term beginning on January 14, 2013 and ending on January 14, 2018. 

[3] The Board informed the parties on January 27, 2016, that the application was dismissed. These are the reasons for that decision.

II. Position of the Parties

A. The Incumbent Union (IAMAW)

[4] The IAMAW asks the Board to fully investigate the membership evidence to ascertain its reliability and verify that the applicant has demonstrated the required level of support in order to obtain a representation vote. It argues that the membership evidence submitted in support of the application is not reliable as evidence of the wishes of employees to be represented by the AJWTA.

[5] The IAMAW argues that members were misled concerning the identity of the applicant when they signed cards that were identified with the logo of “JPA Syndicat” and the name of “Jean Poirier & Associés inc.” It states that there is confusion amongst the members as to the identity of the organization that seeks to represent them as bargaining agent since the documentation circulated in the workplace regarding this organizing campaign was communicated under letterhead marked with the “JPA Syndicat” logo. The IAMAW states that cards were left blank without the name of the applicant trade union.

[6] The IAMAW also raises concern with membership cards that may have been signed prior to the AJWTA having been properly constituted as a trade union with a constitution and by-laws. It submits that any membership cards signed prior to the date at which the applicant was created as a trade union are not reliable as evidence of wishes of the employees to be represented by the applicant.

[7] The IAMAW alleges that the AJWTA did not consistently require the payment of the $5.00 membership fee that is required by the Canada Labour Code (Part I–Industrial Relations) (the Code) and the Canada Industrial Relations Board Regulations, 2012 (the Regulations), and asks the Board to verify this through its confidential investigation of the membership evidence.  

B. The Applicant Union (AJWTA)

[8] The applicant union, AJWTA, submits that it met all the requirements prescribed by the legislation and vehemently contests the allegations raised by the IAMAW regarding the reliability of membership evidence. 

[9]  The AJWTA indicates that the name of the trade union was handwritten or printed on the card at the time that an individual signed the card. Accordingly, it states that the employees knew that they were joining the applicant trade union. It also asserts that it collected the $5.00 payment from each employee who signed a card.   

[10] The applicant indicates that several meetings took place in October and November 2015 and that Mr. Jean Poirier of Jean Poirier & Associés inc. was present to explain the process of forming a union. It also explains that it was made clear at these meetings that the intent was to create an autonomous union for employees of AJW. It is the AJWTA’s submission that the constitution and by-laws were discussed and approved by members during meetings and then ratified during the founding meeting in January 2016. 

[11] AJWTA raises allegations of threats or intimidation by the incumbent union and asks that the Board exercise its discretion under section 16(i) of the Code to order a representation vote as the best means to ascertain the wishes of the employees in the unit.   

C. The Employer

[12] The employer provided the Board with the required information regarding the list of affected employees and its position regarding the bargaining unit description. It took no position with respect to the substantive issues raised concerning the membership evidence.

III. Analysis and Decision

[13] Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. In addition, as the Board stated in Coastal Shipping Limited, 2005 CIRB 309, the Board’s practice in certification applications is to make its determination on the basis of the written submissions and not to hold oral hearings except in exceptional circumstances. Having reviewed all the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing.

[14] This application was filed pursuant to the new certification provisions of the Code that came into force on June 16, 2015. In particular, sections 28 and 29 of the Code were modified to require that the Board conduct a representation vote in order to satisfy itself that a majority of employees in a unit wish to be represented by a trade union, provided the required threshold level of support has been met. The amendments removed the Board’s discretion to rely solely on membership evidence when determining whether a majority of employees in the unit wish to be represented by a trade union.

[15] These amendments also had the effect of modifying the Board’s established policy in displacement applications, which required that an applicant demonstrate majority support amongst the employees in the unit in order for the Board to proceed with the application and either certify the applicant or order a representation vote.  

[16] The new provisions governing certification applications are as follows: 

28 (1) If the Board is satisfied on the basis of the results of a secret ballot representation vote that a majority of the employees in a unit who have cast a ballot have voted to have a trade union represent them as their bargaining agent, the Board shall, subject to this Part, certify the trade union as the bargaining agent for the unit.

(2) The Board shall order that a secret ballot representation vote be taken among the employees in a unit if the Board

(a) has received from a trade union an application for certification as the bargaining agent for the unit;

(b) has determined that the unit constitutes a unit appropriate for collective bargaining; and

(c) is satisfied on the basis of evidence of membership in the trade union that, as of the date of the filing of the application, at least 40% of the employees in the unit wish to have the trade union represent them as their bargaining agent.

29 (1) [Repealed, 2014, c. 40, s. 3]

(1.1) Any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given, and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out, is not an employee in the unit.

(2) [Repealed, 2014, c. 40, s. 3]

(3) Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board may disregard those requirements in determining whether a person is a member of a trade union.

[17] In accordance with the new provisions and prior to ordering a vote pursuant to section 28(2) of the Code, the Board must determine that the unit is appropriate for collective bargaining and must be satisfied, based on the membership evidence, that at least 40% of employees in the unit wish to be represented by the trade union. 

[18] The Board recently reaffirmed the importance of scrutinizing the membership evidence to ascertain that the level of support required for a representation vote is met at the time the application is filed. In WestJet, an Alberta Partnership, 2015 CIRB 785, the Board stated the following: 

[42] The Board agrees that despite the change in the legislation that removes the Board’s discretion to certify a union on the basis of the membership evidence submitted at the time of the application, the Act did not amend the Board’s obligation and responsibility to review the membership evidence to satisfy itself that the requisite support of employees in the proposed bargaining unit has been met. The Board therefore concludes that it must rely on its existing policies and practices to assess and scrutinize the membership evidence.

[43] The Board maintains that it is critically important that the membership evidence on which the Board will rely to make its decision be accurate and reliable. In assessing and verifying membership evidence, the Board has consistently maintained a very high standard. The Board recently restated the importance of these requirements in Garda Security Screening Inc., 2015 CIRB 764:

[16] The Board takes the requirements regarding membership evidence seriously and has consistently held that non‑compliance with the requirements of the Code and the Regulations are a substantive deficiency rather than merely a technical breach. This is particularly important because the Board relies on the membership evidence to decide whether to grant a certification or to order a representation vote, thereby giving to the applicant access to fundamental rights and privileges under the Code. This Board and its predecessor, the Canada Labour Relations Board (CLRB), have consistently applied a high standard when scrutinizing the membership evidence submitted by an applicant union.

[19] The Board’s requirement regarding the evidence of membership in a trade union is set out in section 31(1) of the Regulations:

31 (1) In any application relating to bargaining rights, the Board may accept as evidence of membership in a trade union evidence that a person

(a) has signed an application for membership in the trade union; and

(b) has paid at least five dollars to the trade union for or within the six-month period immediately before the date on which the application was filed.

[20] The key question that the Board asked itself in this matter is whether the application is accompanied by sufficient and valid membership evidence, as required by section 31 of the Regulations, to establish that at least 40% of the employees in the unit wish to be represented by the applicant.

[21] In its review of the materials and through its investigation of the application, the Board found substantive defects with the membership evidence submitted with the application. First, the investigation revealed evidence of non-payment of the minimum $5.00 membership fee that is required by the Board and its regulations. Secondly, there was sufficient confusion about the identity of the trade union amongst a number of employees who signed cards to put into question the reliability of those cards as an expression of true wishes to join the applicant trade union. Thirdly, a large proportion of cards were signed and dated prior to the date on which the employee organization was formed as a trade union.

A. Payment of Membership Fee

[22] In order to satisfy itself, pursuant to section 28(2)(c) of the Code, that the applicant has met the threshold required for a representation vote, the Board has in place a process by which it delegates its investigation powers to the Board’s Industrial Relation Officers (IRO) so they may verify and test the membership evidence that is submitted in support of a certification application.

[23] The IRO investigates the membership evidence by way of confidential interviews with individual employees, taking into consideration all the information submitted by either party to the application. The IRO reports the findings of the investigation to the Board through a confidential report in order to protect the confidentiality of the employee wishes in accordance with section 35 of the Regulations. This process is well established and has been reviewed in previous decisions of the Board (see IMS Marine Surveyors Ltd., 2001 CIRB 135 at paragraph 16; TD Canada Trust in the City of Greater Sudbury, Ontario, 2006 CIRB 363; and upheld on judicial review: TD Canada Trust v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, 2007 FCA 285).

[24] In addition, the courts have consistently protected this process and the need to keep the results of the investigation confidential given the sensitive nature of employee wishes as per section 35 of the Regulations (see Maritime-Ontario Freight Lines Ltd. v. Teamsters Local Union 938, 2001 FCA 252).

[25] As part of his investigation in this application, the IRO contacted a significant number of employees who had signed membership cards. A large proportion of employees who were interviewed by the IRO and who had submitted signed membership cards stated that they had not paid the minimum $5.00 fee set out at section 31(1)(b) of the Regulations. The cards include a pre-printed statement indicating: “I have paid the minimal dues prescribed by the Labour Code or the Canada Labour Code”. However, there is no signed receipt or any other indication on the cards or otherwise on which the Board could rely to verify and ascertain payment.    

[26] The Board finds, on the basis of the results of the investigation by the IRO into the membership evidence that there were improprieties in the membership evidence filed in support of the certification application. The Board finds that a large proportion of employees interviewed by the IRO confirmed that they had not personally paid the fee set out at section 31(1)(b) of the Regulations.

[27]  It is important to note that the Certificate of Accuracy signed by the applicant and submitted to the Board affirms that the amounts shown to have been paid as union membership fees have indeed been paid by the signatory employees themselves, on their own behalf. Paragraph 4 of the Certificate of Accuracy signed by the applicant on January 11, 2016, states as follows:

I, XXX, do hereby report and certify to the Canada Industrial Relations Board (the Board) as follows:

...

4. The amounts shown as having been paid as union dues and/or initiation fees were actually paid by the employees concerned on their own behalf and on the dates indicated. 

[28] Contrary to the statement contained in the certificate, the Board did find that there were a large number of instances of non payment of the membership fee, which amounts to a substantive defect in the membership evidence submitted in support of the application.

B. Identity of Trade Union

[29] The membership forms submitted with the application all had a logo marked with “JPA Syndicat” located at the top center of the form. Beside the logo, the following name in large print appears: “JEAN POIRIER & ASSOCIÉS–L’AVENIR DE TOUT SYNDICAT”. The membership forms distributed in this case included a blank line on which individuals were asked to fill in the name of the union or association that they sought to join.

[30] A majority of the cards have the name of “AJW Technique Workers’ Association” (translation) handwritten on this line. One card has the name “Jean Poirier Associés” handwritten in this space. Accordingly, the Board cannot rely on this card as evidence of the employee’s desire to be represented by the AJWTA.

[31] In addition, during his investigation, the IRO found that a majority of employees who were questioned about the membership card they had signed indicated that the union they wished to join was “JPA Syndicat”. Accordingly, the results of the investigation demonstrate that there was significant confusion about the identity of the trade union and that a majority of the employees interviewed were unclear as to the name of the trade union seeking to represent them. In the Board’s view, a reasonable person would be confused or mistaken about the identity of the union.

[32] The Board concludes that the results of the investigation, combined with the prominent display of a logo and a name on the membership cards that differs from the name of the trade union seeking to represent the employees, puts into question the reliability of the membership evidence submitted with the application.

[33] The Board requires clear and unequivocal evidence of membership in the trade union as the Board relies on this evidence to satisfy itself of the true wishes of employees to be represented or not by a trade union. It is only once this threshold is met that it will order a vote pursuant to section 28(2) of the Code.  

[34] When the membership evidence leaves doubt as to the identity of the trade union the employees wish to join, as in this case, the Board cannot rely on this evidence as an indication of the employees’ desire for representation by the union filing the application. 

C. Date of Signature of Membership Cards

[35] This is the first time that the AJWTA files an application for certification with this Board. In accordance with its policies and procedures, the AJWTA was asked to submit its founding documents, including its Constitution and By-laws to establish its status as a trade union. It is clear from the documents submitted by the applicant that the AJWTA was founded on January 4, 2016, the date on which it duly adopted a written constitution and by-laws which allows it to operate as a viable entity. 

[36] The membership evidence submitted in support of the application for certification includes a large majority of cards that were signed two and three months prior to the creation of the trade union and adoption of a constitution and by-laws. 

[37] The Regulations require that the membership evidence demonstrate that persons have applied for membership in a trade union. In section 3 of the Code, a trade union is defined as “any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees”.

[38] The former Canada Labour Relations Board (CLRB) examined the issue of status of a trade union in Capital Coach Lines Ltd. (Travelways) (1980), 40 di 5; [1980] 2 Can LRBR 407; and 80 CLLC 16,011 (CLRB no. 233):

The employer has pleaded that the definition of the Canada Labour Code is different than the one found in Ontario and B.C. inasmuch as the Canada Labour Code’s definition relates to any organization of employees and not to an organization of employees, which is the case in the Ontario and B.C. legislations. It argued that the word “any” refers to any form of organization and does not require a constitution. We disagree with this interpretation as we are of the opinion that the word “any” refers to different forms of organization such as one constituted more formally in accordance with a Societies’ Act, for example, and those which are constituted without the formality required by societies or professional union acts. The definition of section 107(1) still refers to “organization of employees” and if such an organization is to exist, it must have minimum requirements, such as a constitution, to give it sufficient status to operate as a viable entity and to legally bind the organization and its members. The Board is not formalistic and it does not intend to deprive employees of the right to negotiate a collective agreement because of technical defects. Whenever possible, the Board will give the parties concerned the opportunity to correct any defects. This does not mean that there are no requirements at all. We believe that the strict minimum for an organization to be viable is that it is bound by a constitution.

(pages 8–9;410; and 484; emphasis added)

[39] The CLRB also reviewed various provincial labour boards approach to the issue of status of union and membership in Air West Airlines Ltd. (Air West Operations Ltd.) (1980), 39 di 56; and [1980] 2 Can LRBR 197 (CLRB no. 231):

In fact, all provincial labour relations boards recognize that the minimal requirement for recognizing an organization as a trade union is that it be bound by a valid constitution. The rationale for such a minimal requirement is illustrated from this excerpt from an Ontario decision: United Electrical, Radio and Machine Workers of America (ve) v. Tridon Limited [1974] 1 Can LRBR 44:

A superficial glance at the situation reveals what appears to be a super-structure of officers who carry out functions normally performed by officers of a trade union. It is, however, the question of the existence of a proper substratum that causes difficulty in finding a ready answer to the question before the Board. That is whether there can be said to be an organization in the absence of formal membership requirements and formal mutual obligations between the employees concerned because of which they may be identifiable as members of an organization.

In the case of Orchard et al v. Tunney (1957), 8 D.L.R. 2d) 273, at pp. 281 and 282, the Court, in dealing with the nature of a union stated: “Apart then, from statute, that a union is held together by contractual bonds seems obvious; each member commits himself to a group on a foundation of specific terms governing individual and collective action, a commitment today almost obligatory, and made on both sides with the intent that the rules shall bind them in their relations to each other. That means that each is bound to all the others jointly. The terms allow for the change of those within that relation by withdrawal from or new entrance into membership. Underlying this is the assumption that the members are creating a body of which they are members and that it is as members only that they have accepted obligations; that the body as such is that to which the responsibilities for action taken as of the group are to be related”.

Evans J.A., in the course of his majority judgment in the Ontario Court of Appeal in Astgen et al v. Smith et al (1969), 7 D.L.R. (3d) 657, at p. 661, in dealing with the question of the legal status of a trade union stated “I concede at the outset that a labour union under the Labour Relations Act, R.S.O. 1960, c. 202, and allied legislation has a ‘status’ conferred by such legislation which makes it somewhat different from a fraternal organization or an athletic club but apart from such statutes a labour union is essentially a club, a voluntary association which has no existence apart from its members, recognized by law. A club is basically a group of people who have joined together for the promotion of certain objects and whose conduct in relation to one another is regulated in accordance with the constitution, by-laws, rules and regulations to which they have subscribed”.

In British Columbia, the decision Rempel Bros. Concrete Ltd., unreported70/76, cited to us by the union states at page 6:

The Constitution is all important because it sets the rules under which the organization will operate; it is a form of agreement between the organization and its membership which governs the rights and duties of its members and its officers in their relation to the organization.

...

We agree with the interpretation given by the provincial labour boards, that an organization in order to be recognized as a trade union must be regulated by a constitution and by-laws, even though provincial legislation does not define “trade union” in exactly the same terms as does the Canada Labour Code.

(pages 79–80 and 81–82; and 216–217 and 218)

[40] When seeking membership in a trade union, the individual is entering in a contractual relationship with that union on the basis of the terms contained in the constitution and the by‑laws. The Board has difficulty accepting that employees in this case, could become members of a trade union long before it came into existence as a viable entity. As indicated above, the AJWTA was founded on January 4, 2016 and therefore was not in existence and had no constitution or by-laws in place before that date, yet a large majority of individuals signed a card and joined as members before January 4, 2016. 

[41] This discrepancy between the dates of signature on the cards and the date of the creation of the trade union combined with the Board’s conclusion with respect to the identity of the organization seeking to represent the employees, results in evidence that the Board concludes is not reliable as an indication of applications for membership in a trade union that meet the requirements of section 31 of the Regulations.

IV. Conclusion

[42] The Board holds the AJWTA responsible for full compliance with the requirements of the Code and the Regulations.

[43] In its review of the membership evidence submitted with an application for certification, the Board’s objective is to ascertain the wishes of the employees as of the date of filing the application. 

[44] When reviewing the membership evidence, the Board wants to ensure that it can rely on the evidence submitted as a true reflection of the wishes of employees. The Board evaluates the circumstances of each case and the evidence submitted to determine whether it is satisfied that the membership evidence was collected freely and voluntarily and represents a true reflection of the employee wishes to be represented by the trade union seeking certification.

[45] In the present matter, the Board finds, on the basis of the results of the investigation by the IRO, and on its review of the membership evidence, that there were significant defects and improprieties in the membership evidence filed in support of the certification application. In the Board’s view, the nature and the extent of the irregularities found have the effect of putting into question the reliability of all the membership evidence submitted in support of the application such that the Board is not prepared to accept its veracity and to rely on it to order a representation vote. 

[46] The AJWTA asked the Board to exercise its discretion pursuant to section 16(i) of the Code to order that a representation vote held in this case. In support of its request, the applicant alleges that the incumbent union intimidated the employees in the bargaining unit during the organizing campaign. The Board notes that the evidence submitted by the AJWTA and the results of the Board’s investigation did not support these allegations of intimidation. In light of all the circumstances in this case, the Board finds no reason to exercise its discretion under section 16(i) of the Code to order that a representation vote be taken. 

[47] The Board therefore dismisses the application.

[48] Further, the Board communicated its decision to dismiss the application in a bottom line decision. Consequently, the bar imposed by section 38 of the Regulations runs from January 27, 2016, the date on which the Board first informed the parties of its decision.

[49] This is a unanimous decision of the Board.