Reasons for decision
Leona Genge et al.,
applicants,
and
Public Service Alliance of Canada,
bargaining agent,
and
Aeroguard Inc.,
employer.
CITED AS: Leona Genge et al.
Board File: 26390-C
Decision no. 395
October 31, 2007
Application for revocation filed pursuant to section 38 of the Canada Labour Code, Part I.
Revocation–Section 38–Union claiming protection–Section 39(2)–Meaning of no collective agreement in force–Practice and procedure–Vote–The applicants filed an application for revocation, pursuant to section 38 of the Code, asking the Board to revoke the certification previously issued to the union–The Board considered the application and ordered that a representation vote be held to determine whether the employees in the bargaining unit supported revocation–A bargaining agent can seek the protection under section 39(2) of the Code if (1) it is negotiating a first collective agreement or if the parties have acquired the right to strike or lockout, (2) it has made a reasonable effort to enter into a collective agreement with the employer, and (3) subject to the nuances in the Board’s case law, if it has consulted with and kept members of the bargaining unit informed about the progress of the negotiations–The Board examines the situation as of the date of filing of the revocation application rather than at the date of the Board’s decision, given the parties’ situation could change in the interim–The union’s situation of negotiating a renewal of its collective agreement does not fall within the protection of section 39(2)–The parties had not yet acquired the right to strike or lockout under the Code–Bargaining unit members were thus not prevented by the Code from seeking revocation–The Board dismissed the union’s section 39(2) argument and let the representation vote determine the outcome of this application for revocation.
The Board was composed of Mr. Graham J. Clarke, Vice-Chairperson and Messrs. Norman Rivard and Herman Champagne, Members.
Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient to determine this application without an oral hearing.
Parties Representatives of Record
Ms. Leona Genge, for the applicants;
Mr. Alain Piché, for the Public Service Alliance of Canada;
Mr. Peter Connelly, for Aeroguard Inc.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.
I–Nature of the Application
[1] On July 6, 2007, the applicants filed this revocation application pursuant to section 38 of the Code. The application asks the Board to revoke the certification previously issued to the Public Service Alliance of Canada (PSAC).
[2] The Board considered the application and, by letter dated September 10, 2007, ordered that a representation vote be held to determine whether the employees in the bargaining unit supported revocation.
[3] The Board’s letter also advised the parties that it had dismissed the PSAC’s preliminary objection based on section 39(2) of the Code.
[4] This decision explains why section 39(2) does not apply to the PSAC’s collective bargaining situation in this case.
II–Facts
[5] In 1991, this Board’s predecessor, the Canada Labour Relations Board (CLRB), had amended the PSAC’s existing certification to describe the current bargaining unit (order no. 5876-U):
all employees of Aeroguard (Western) Security Services employed at the Yellowknife, Norman Wells, Fort Smith, Inuvik and Hay River Airports in the Northwest Territories, excluding the site manager, Yellowknife.
[6] All the employees in this bargaining unit currently work at the Yellowknife Airport and provide pre-boarding screening services.
[7] The most recent collective agreement between the PSAC and the employer, Aeroguard Inc. (Aeroguard), had effective dates between April 1, 2004, and March 31, 2007.
[8] There is no dispute that the PSAC and Aeroguard met to review the collective agreement and, in fact, reached a tentative settlement.
[9] However, a majority of the members of the bargaining unit rejected that tentative settlement.
[10] The PSAC and Aeroguard went through conciliation and agreed to extend the time for the conciliation officer to file the conciliation report until October 19, 2007.
[11] The parties had not acquired the right to strike or lockout when certain employees exercised their right under section 38 of the Code to apply to revoke the PSAC’s certification.
III–Analysis
A–Sections 24, 38 and 39 of the Code
[12] For ease of reference, and due to their relevance to the Board’s analysis, portions of sections 24, 38 and 39 will be reproduced below:
24.(1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit.
(2) Subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made
(a) where no collective agreement applicable to the unit is in force and no trade union has been certified under this Part as the bargaining agent for the unit, at any time;
(b) where no collective agreement applicable to the unit is in force but a trade union has been certified under this Part as the bargaining agent for the unit, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at any earlier time;
(c) where a collective agreement applicable to the unit is in force and is for a term of not more than three years, only after the commencement of the last three months of its operation; and
(d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only
(i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and
(ii) after the commencement of the last three months of its operation.
(3) An application for certification under subsection (2) in respect of a unit must not, except with the consent of the Board, be made during a strike or lockout that is not prohibited by this Part and that involves employees in the unit.
...
38.(1) Where a trade union has been certified as the bargaining agent for a bargaining unit, any employee who claims to represent a majority of the employees in the bargaining unit may, subject to subsection (5), apply to the Board for an order revoking the certification of that trade union.
(2) An application for an order pursuant to subsection (1) may be made in respect of a bargaining agent for a bargaining unit,
(a) where a collective agreement applicable to the bargaining unit is in force, only during a period in which an application for certification of a trade union is authorized to be made pursuant to section 24 unless the Board consents to the making of the application for the order at some other time; and
(b) where no collective agreement applicable to the bargaining unit is in force, at any time after a period of one year from the date of certification of the trade union.
...
(5) An application under subsection (1) or (3) must not, except with the consent of the Board, be made in respect of the bargaining agent for employees in a bargaining unit during a strike or lockout of those employees that is not prohibited by this Part.
39.(1) Where, on receipt of an application for an order made under subsection 38(1) or (3) in respect of a bargaining agent for a bargaining unit, and after such inquiry by way of a representation vote or otherwise as the Board considers appropriate in the circumstances, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to have the bargaining agent represent them, the Board shall, subject to subsection (2), by order,
(a) in the case of an application made under subsection 38(1), revoke the certification of the trade union as the bargaining agent for the bargaining unit; or
(b) in the case of an application made under subsection 38(3), declare that the bargaining agent is not entitled to represent the employees in the bargaining unit.
(2) Where no collective agreement applicable to a bargaining unit is in force, no order shall be made pursuant to paragraph (1)(a) in relation to the bargaining agent for the bargaining unit unless the Board is satisfied that the bargaining agent has failed to make a reasonable effort to enter into a collective agreement in relation to the bargaining unit.
(emphasis added)
B–The PSAC’s Section 39(2) Preliminary Objection
[13] The PSAC has argued that section 39(2) of the Code prevents revocation in this case.
[14] At first glance perhaps, this section might suggest that revocation can never take place as long as a bargaining agent has made “a reasonable effort to enter into a collective agreement.”
[15] However, in the circumstances of the instant case, this Board, as well as its predecessor the CLRB, have consistently interpreted section 39(2) as protecting only a certified bargaining agent that has yet to conclude a first collective agreement. Even if a majority of bargaining unit members support revocation, section 39(2) of the Code protects the bargaining agent.
[16] The Board has also determined that section 39(2) can protect a bargaining agent if the parties have acquired the right to strike or lockout under the Code.
[17] The seminal case from the CLRB on section 39(2) (formerly section 138(2)) is J. Phillips et al. (1978), 34 di 603; and [1979] 1 Can LRBR 180 (CLRB no. 168). In J. Phillips et al., supra, the parties had been arguing before the Board that the introductory phrase in former section 138(2), “[w]here no collective agreement is in force that applies to a bargaining unit” had to be interpreted with reference to negotiated clauses found in the collective agreement and/or the Code’s statutory freeze provisions.
[18] The Board decided otherwise in J. Phillips et al., supra, and found that the introductory phrase was intended to focus on the state of the parties’ bargaining relationship as opposed to the legal status of the parties’ collective agreement:
... In argument before the Board on this section the focus has always been on the words “in force” as referring to a legal state of the terms and conditions set out in collective agreements. This focus results in debate over whether continuation clauses in collective agreements, or section 148(b) [now section 50(b)] of the Code, or the scheme of arbitration in section 160(4) [now section 67(4)] preserve a collective agreement “in force”. For reasons that will become apparent we do not interpret these words in this literal, legalistic light. Sound labour relations policy commonly accepted in Canada leads us to conclude that the words “where no collective agreement is in force” are words of art employed by the authors of the Code to describe a state or type of bargaining relationship that can exist under the Code rather than the exact legal obligations of parties. ...
(pages 608; and 184)
[19] The CLRB then examined the different timeliness requirements for section 24 certification applications in order to enumerate the three states of bargaining relationships:
There are three states of bargaining relationships: (1) no union-employer relationship either through a collective agreement or certification order; (2) a union-employer relationship through a certification order but no collective agreement; (3) a union-employer relationship through a collective agreement whether as a result of voluntary recognition or negotiation after the issuance of a certification order. ...
(J. Phillips et al., supra, pages 608; and 184)
[20] The timeliness requirement of section 24(2)(b) applies to a situation where a trade union has been certified but no collective agreement is in force. In other words, it covers a first contract situation. A bargaining agent in these circumstances is protected for 12 months from the date of its certification against a new certification application, unless the Board grants consent for an earlier application. Sections 24(2)(c) and 24(2)(d) create timeliness requirements for a competing certification application in situations where the certified bargaining agent has already negotiated and lived under at least one collective agreement.
[21] The equivalent revocation provision for the situation contemplated by section 24(2)(b) is found at section 38(2)(b). A comparable 12-month protection against revocation exists for the bargaining agent following certification. However, the Board does not have a discretion, unlike for a certification application subject to section 24(2)(b), to abridge this 12-month protective period.
[22] In J. Phillips et al., supra, the CLRB concluded that section 39(2) applied to the very same bargaining state as did sections 24(2)(b) and 38(2)(b):
The result of this interpretive approach is that section 138(2) [now section 39(2)] applies where there has been certification but no collective agreement negotiated, but not where there is a collective agreement that shapes the relationship. ...
(pages 610; and 186)
[23] The CLRB also found that section 39(2) applied to any revocation application filed once the parties had acquired the right to strike or lockout, which is not the situation before us in this case. The Board explained why Parliament would want to restrict employee freedom of choice in the area of revocation:
Why would Parliament restrict employee freedom of choice under the Code to revoke a bargaining agent’s certification in these two circumstances: namely, when a bargaining agent has been certified but not concluded a collective agreement and when a lawful strike or lockout is permitted? These two times are times of greatest tension for both the employees and the bargaining agent. The bond of trust between the employees and the bargaining agent is either in the early stages of its development or under the strain of impending or actual work stoppage. Employees can be stampeded into decisions at these times and the employer who may stand to benefit the most can often cause these decisions by his posture at the bargaining table or his unwillingness to recognize the bargaining agent. Section 138(2) [now section 39(2)] is a disincentive to employers to hope for, promote or catalyze a revocation application in these two crucial circumstances. ...
(J. Phillips et al., supra, pages 612; and 187)
[24] Given the CLRB’s interpretation of the Code, it had no choice in J. Phillips et al., supra, but to reject the trade union’s argument that section 39(2) applied to any bargaining situation, as long as a bargaining agent had made a reasonable effort to conclude a collective agreement:
The union argues for an interpretation of “in force” that would give it application in all states of union-employer relationship, even where there has been a long bargaining relationship, successive collective agreements and the employees have had the experience of the collective bargaining regime and their bargaining agent. It submits the intent is to encourage collective bargaining and to achieve this intent section 138(2) [now section 39(2)] restricts employee freedom to revoke certification but section 124(2) [now section 24(2)] allows for change of bargaining agents. The mischief perceived by the union is too wide. There is a sound experiential base for section 138(2) [now section 39(2)] applying in the two situations we have concluded it was intended to apply. We can see no sound policy reason for Parliament to restrict employee freedom to the extent advocated by the union in its interpretation. ...
(J. Phillips et al., supra, pages 613; and 188)
[25] If section 39(2) does apply to a particular case, then J. Phillips et al., supra, and subsequent Board decisions have held that a bargaining agent will be protected as long as it demonstrates that it has negotiated with the employer and consulted/ communicated with members of the bargaining unit.
[26] In short, the CLRB, in J. Phillips et al., supra, was not prepared to limit employee freedom of choice so that a reasonable effort by the bargaining agent to conclude a collective agreement would prevent any revocation application. Rather, by interpreting the Code and the different states of the bargaining relationship between employers and trade unions, the CLRB concluded that Parliament intended section 39(2) to apply only to a bargaining agent that was certified but had yet to conclude a collective agreement or when the parties had acquired the right to strike or lockout.
[27] The CLRB, in J. Phillips et al., supra, also determined that the Board examines the situation as of the date of the filing of the revocation application rather than at the date of the Board’s decision, given that the parties’ situation could change in the interim.
[28] This Board has accepted and applied this longstanding interpretation of section 39(2) in similar situations (see Les Meszaros et al., [2002] CIRB no. 188; and 95 CLRBR (2d) 124).
[29] In summary, a bargaining agent can seek the protection available under section 39(2) of the Code if:
- it is negotiating a first collective agreement or if the parties have acquired the right to strike or lockout;
- it has made a reasonable effort to enter into a collective agreement with the employer; and
- subject to the nuances in the Board’s case law, it has consulted with and kept members of the bargaining unit informed about the progress of the negotiations.
IV–Conclusion
[30] In its July 24, 2007 submission to the Board, the PSAC highlighted the various steps it had taken to negotiate a renewal of the collective agreement for the bargaining unit. It is clear on the facts that if the PSAC had been certified, and had been attempting to negotiate a first collective agreement, then it would have fallen within the intended protections found at section 39(2).
[31] However, the Board’s longstanding jurisprudence demonstrates that the PSAC’s situation of negotiating a renewal of its collective agreement does not fall within the protections of section 39(2). Similarly, the parties had not yet acquired the right to strike or lockout under the Code. Bargaining unit members were thus not prevented by the Code from seeking revocation under section 38.
[32] As a result, the Board had no option but to dismiss the PSAC’s section 39(2) argument and to let the representation vote determine the outcome of this revocation application.