and
Swissport Canada Handling Inc.,
and
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 for it to issue this decision without an oral hearing.
Parties’ Representatives of Record
Mr. Rajendra Lutchman, on his own behalf;
Mr. Louis-Philippe Charland, for Swissport Canada Handling Inc.;
Mr. Stéphane Lacoste, for the Canada Council of Teamsters.
These reasons for decision were written by Ms. Ginette Brazeau, Chairperson.
[1]
The Canada Council of Teamsters (the Teamsters or the union) represents a group of employees of Swissport Canada Handling Inc. (the employer) assigned to ground services at the international airports in Montréal pursuant to order no. 11117‑U issued on March 6, 2017. A collective agreement with a term of three years is in force until February 25, 2018.
I.
Background and Facts
[2]
On September 21, 2017, an employee in the bargaining unit, Ms. Italia Gianciullo, filed an application for revocation of the certification held by the Teamsters (Board file no. 32300-C). The applicant provided a petition supporting her application for revocation but did not provide individual employee statements, as required by the Canada Industrial Relations Board Regulations, 2012 (the Regulations). In Gianciullo, 2017 CIRB LD 3879, issued on October 23, 2017, the Board dismissed the application for revocation because it had not been filed during the open period and because it did not comply with the Regulations.
[3]
On December 8, 2017, another employee in the unit, Mr. Rajendra Lutchman, filed a new application for revocation in respect of the same bargaining unit. Teamsters alleges that the application is untimely and should be rejected without holding a representation vote. The reasons in support of its position are as follows:
[4]
The employer denies the union’s claims of employer influence. However, neither the applicant nor the employer provided comments on the union’s other allegations, including the allegation regarding section 39 of the Regulations.
[5]
The union submits that the French version of section 39 is ambiguous and that the English version better reflects Parliament’s intent because the purpose of this section is to protect the stability of certification from repeated efforts to obtain the revocation of a union certification. According to the union, it is not possible for “any employee” (translation) to file a new application for revocation within six months of the rejection of a previous application for revocation.
[6]
The Board is of the view that section 39 of the Regulations imposes a six‑month waiting period to file a new application for revocation concerning the unit in question. However, in the circumstances of this case, the Board finds that it must exercise its discretion to reduce the six‑month waiting period in order to deal with the application for revocation and further the objectives of the Code.
[7]
For the reasons that follow, the Board finds it appropriate to order a representation vote.
II.
Analysis
[8]
The Board will first deal with the issue of the application of section 39 of the Regulations. Second, the Board will examine the other allegations the union has raised.
A.
Application of Section 39 of the Regulations
[9]
The union raised a possible ambiguity between the French and English versions of section 39 of the Regulations. It is helpful to also examine section 38 of the Regulations, which imposes a six-month waiting period in the context of an application for certification. The two official versions as they are currently worded read as follows:
| 38 A trade union or council of trade unions shall not file a new application for certification in respect of the same or substantially the same bargaining unit until six months have elapsed from the date on which its previous application was rejected.
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[10]
At first glance, the French version of section 39 of the Regulations appears to have a more limited scope than the English version. In fact, the French version contains the words “qui s’est vu refuser,” which do not explicitly appear in the English version. The English version is directed at “any employee” (“tout employé”). According to the English version of this provision, it seems that the waiting period applies to any employee in the unit whereas the French version can reasonably support two interpretations.
1.
Rules of Statutory Interpretation
[11]
The Supreme Court of Canada recently dealt with the rules of interpretation of a bilingual provision. In the Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (the Nadon Reference), the majority of the Court stated the following concerning the common meaning to be given to both versions of a bilingual provision:
[32] We reach the same conclusion by applying the shared meaning rule of bilingual interpretation, which requires that where the words of one version may raise an ambiguity, one should look to the other official language version to determine whether its meaning is plain and unequivocal: Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 99-116; Pierre-André Côté, in collaboration with Stéphane Beaulac and Mathieu Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at pp. 347-49; R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 28. The English version of the text is unambiguous in its inclusion of former advocates for appointment, while the French version is reasonably capable of two interpretations: one which excludes former advocates from appointment, and one which includes them. The meaning common to both versions is only found in the unambiguous English version, which is therefore the meaning we should adopt.
[12]
The Board had to interpret both official versions of a provision in the Code in VIA Rail Canada Inc., 2011 CIRB 569. In that case, there was a possible ambiguity between the two versions of section 49 of the Code with respect to when a notice to bargain may be sent. The Board indicated that it could not give preference to one linguistic version over the other but instead must arrive at a common meaning for both versions:
[35] The English and French versions of the Code are equally authoritative. The Board cannot give preference to one linguistic version over the other, but instead must arrive at an acceptable and common meaning:
The basic rule governing the interpretation of bilingual legislation is known as the shared or the common meaning rule. When there is a discrepancy between the two versions of bilingual legislation, the meaning that is common to both or shared by both ought to be adopted unless that meaning is for some reason unacceptable.
[36] In the Board’s view, the common meaning for section 49(1) specifies when a notice may be given in order to impose the obligation to bargain collectively. The Board notes that the heading immediately preceding sections 48–50 of the Code is “Obligation to Bargain Collectively”.
[13]
In La Coopérative de transport maritime et aérien, 2014 CIRB 731, the Board also had to apply the rules of interpretation of bilingual statutes. In that case, the Board considered the interpretation of section 44(3)(c), which contained an ambiguity between the two official versions. Adopting the same rules of interpretation of bilingual statutes cited in the Nadon Reference, supra, the Board gave a common meaning to both versions of section 44(3)(c) of the Code, as follows:
[27] The proper approach to statutory interpretation has been articulated repeatedly and is now well entrenched. The goal is to determine the intention of Parliament by reading the words of the provision, in context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act and the object of the statute. …
[68] On the face of it, the French version of section 44(3)(c) seems to have a broader scope than the English version. Indeed, the English version contains the words “to decide the matter,” which are not explicitly used in the French version. Thus, according to the English version, it would seem that only proceedings before an authority that, under the laws of the province, is competent to decide the matter are recognized under the Code.
… Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained.
[70] In the matter before it, the Board considers that there is not necessarily any contradiction between the two versions of the Code. There may indeed be some ambiguity in the French version, but based on the foregoing principles of interpretation, the Board is of the opinion that it is possible to educe a meaning common to both versions of section 44(3)(c) of the Code. To that end, it is important to consider the actual purpose of section 44(3) of the Code.
2.
Ordinary and Grammatical Sense
[16]
Although the words “qui s’est vu refuser” may be restrictive, the provision in question applies to “[t]out employé qui s’est vu refuser,” contrary to section 38 of the Regulations, which applies to “[l]e syndicat ou regroupement de syndicats qui s’est vu refuser.” Among the possible definitions of “tout” (any), the following definition appears in Paul Robert, Dictionnaire Le nouveau Petit Robert of the French language, Bureau Van DIJK Electronic Publishing, new edition, 2010:
B. In the singular Any (followed by a noun without the article)
1. Anyone; an individual taken randomly among the totality of similar individuals. “Any French citizen will have civil rights.” (Civil Code). Any person. → Proverb. No good deed goes unpunished. Any manner of...
· (With a preposition.) At any age. At any time. In any case.* Under any pressure.* Against all odds.*
· Anyway.* In any case.* In any event: in any situation.
· Before anything else, on anything: first, more than anything (first, preferably).
(translation; emphasis added)
[17]
The use of the expression “tout employé” suggests a broader application of section 39 of the Regulations, especially considering the fact that an application for revocation concerns all employees in the unit. This interpretation of the French version gives a common meaning to both versions.
[18]
Although section 39 can reasonably support two different interpretations in French, that is not the case in English. It is not possible to interpret the English version of section 39 so as to limit the waiting period to the one employee who filed the previous application for revocation. Indeed, the use of the expression “any employee” and, further on, “a previous application was rejected” in the English version of section 39 indicates that this section applies to any employee. The choice of the words “a trade union or council of trade unions,” and, further on, “its previous application was rejected” in section 38 of the Regulations shows that this section only applies to the union that filed a previous application for certification.
[19]
Accordingly, in the English version of the Regulations, there is a clear difference between the application of the waiting period in the context of a revocation and the application of the period in the context of a certification. The difference is more ambiguous in the French versions of these sections. The only difference between the French versions of sections 38 and 39, in terms of grammatical structure, is the use of the expression “tout employé” (any employee) rather than “l’employé” (the employee). Therefore, it is important to give meaning to this word. By replacing “tout employé” with a synonymous expression such as “n’importe quel employé,” the French version is closer to the English. In this case, the applicant is part of the group of employees concerned by the application for revocation whose application for revocation was rejected. This interpretation gives a common meaning to both official versions. In addition, as we will see below, this interpretation is consistent with the Board’s intent when it adopted the Regulations.
3.
Scheme and Purpose of the Provision in its Context
[20]
To better understand the scheme and purpose of section 39 of the Regulations, it is helpful to reproduce the excerpts of the previous version of sections 38 and 39, as found in section 31 of the Regulations Relating to the Canada Labour Relations Board, 1992. Section 31 then read as follows:
31.(1) Lorsque le Conseil a rejeté la demande d’accréditation d’un syndicat ou d’un regroupement de syndicats, il ne peut prendre en considération aucune nouvelle demande d’accréditation de ceux-ci à l’égard de la même unité de négociation, ou de ce que le Conseil considère être sensiblement la même unité de négociation, avant l’expiration d’un délai de six mois suivant la date du rejet.
(2) Lorsque le Conseil a rejeté la demande de révocation d'accréditation de l’employé, il ne peut prendre en considération aucune nouvelle demande de révocation à l’égard de la même unité de négociation, ou de ce que le Conseil considère être sensiblement la même unité de négociation, avant l’expiration d'un délai de six mois suivant la date du rejet.
[21]
The contrast between section 31(1), which deals with applications for certification and section 31(2), which deals with applications for revocation, was clearer at the time. Section 31(1) stated that the Board would not accept a new application for certification “de ceux‑ci,” that is, from a trade union or council of trade unions, whereas section 31(2) did not contain such a provision for a new application for revocation and therefore had a broader scope. The English version contained the same difference between sections 31(1) and 31(2):
(emphasis added)
[22]
When the Regulations were amended in 2001, the wording of the section was amended, and two sections were created, one dealing with applications for certification (section 38) and the other with applications for revocation (section 39). When the Board presented the amendments to its clientele, it stated that the amendments to these sections were not substantive. Moreover, the Board did not change its policy on the application of the waiting period in its case law. In fact, in Ferguson, 2008 CIRB 427; and Brunet, 2011 CIRB 560, the Board indicated, without conducting an extensive analysis, that the six‑month period is a period during which “a new application for revocation” may not be filed for the same unit.
[23]
When the Regulations were amended in 2012, the purpose of the amendments to the French version of sections 38 and 39 was simply to replace the words “six mois avant de présenter une nouvelle demande” (six months before filing a new application (translation)) by “six mois suivant la date du rejet avant de présenter une nouvelle demande” (six months after the date on which a previous application was rejected before filing a new application (translation)).
[24]
This situation is somewhat similar to the situation that occurred in the Nadon Reference, supra, regarding section 5 of the Supreme Court Act. Section 5 was not ambiguous in English, but the French version gave rise to ambiguities that were created by a review of the Act in 1985. The majority of the Court examined the scope of the section as it was worded at the time and stated that the amendment in question had not changed the scope. As a result, both versions had the same scope, and the common meaning in the two versions was unequivocally in the English version.
[25]
The wording of section 31(2) of the 1992 Regulations as well as the unambiguous English version of section 39 are persuasive; the intent of this provision was to impose a waiting period on any employee who files a new application for revocation after a previous application for revocation was rejected. This interpretation also better reflects the overall objective of this provision, which is to ensure a period of stability and industrial peace. Accordingly, section 39 of the Regulations must be interpreted as imposing a six‑month waiting period for any application for revocation in respect of the same unit.
4.
Board’s Discretion and Objectives of the Code
[26]
In Zubic, 2014 CIRB 732, the Board applied the six‑month waiting period and rejected a second application for revocation filed shortly before the first. However, neither application had complied with section 36 of the Regulations concerning the evidence needed to support an application for revocation. Therefore, the Board did not address the purpose of the six‑month waiting period. Accordingly, to better understand the purpose of the waiting period in the context of an application for revocation, the Board’s case law on the six‑month waiting period should be reviewed.
[27]
In Bell Canada (1979), 30 di 104; and [1979] 2 Can LRBR 429 (CLRB no. 191), the Board’s predecessor, the Canada Labour Relations Board (CLRB), as it then was, examined the purpose of imposing the six‑month waiting period in the context of an application for certification. It stated the following:
... The purpose of this six-month limitation is to prevent applications from being filed in too close succession, the effect of which would be to perpetuate a period of insecurity and unrest in relations between the employer, the employees and the union(s) concerned. It also ensures a period of stability and peace thereby allowing as the case may be, the employer and the incumbent union to negotiate the renewal of their collective agreement.
(pages 106; and 431)
[28]
Thus, the six‑month waiting period should not be punitive. Rather, it is meant to promote industrial peace by minimizing disruptions to existing collective bargaining relationships. In Dynamex Canada Inc. (1998), 52 CLRBR (2d) 274 (CLRB LD 1802), the CLRB exercised its discretion that was then set out at section 31(3) of the Regulations to abridge the six‑month period, thereby permitting the same union to file a new application for certification three months after the date its previous application was rejected. In that case, there was no incumbent bargaining agent and no collective bargaining relationship with respect to the employees concerned. Consequently, the CLRB was of the view that there was no risk of disrupting labour relations. In Dynamex Canada Inc. v. Canadian Union of Postal Workers, [1999] 3 F.C. 349 (C.A.), the majority of the Federal Court of Appeal affirmed the CLRB’s decision and the exercise of the Board’s discretion to abridge the six‑month period.
[29]
On the one hand, the objective sought by imposing the six‑month period set out in the Regulations is to ensure a period of stability so that the incumbent union can negotiate the renewal of the collective agreement without having to repeatedly deal with a vote in the unit it represents. On the other hand, the employees who are represented by a bargaining agent have a very specific period in which they can make their voices heard and signal their desire to no longer be represented by a union. This “open” period is clearly defined in sections 24 and 38 of the Code, and the employees in a bargaining unit may only make an application to revoke the union’s bargaining rights or change unions within the time periods provided in the Code.
[30]
In the present matter, an employee in the unit filed an application for revocation on September 21, 2017. The Board summarily rejected this application on October 23, 2017, because it had been filed outside the last three months of the operation of the collective agreement, which expires on February 25, 2018. The Board did not address the merits of the application and did not assess the employees’ wishes.
[31]
In the case at hand, the employees did not have the opportunity to express their wishes because the merits of the first application for revocation were not examined; the application was rejected because of the timeliness issue. The Board did not hold a vote to assess the employees’ wishes in the context of the first application for revocation. Imposing the six‑month waiting period in this case would remove the period provided in the Code to file an application for revocation and infringe the employees’ right to exercise their right to choose to be represented by the incumbent union during the open period. This is not the objective sought by imposing the six‑month waiting period after an application for revocation is rejected. The waiting period seeks to avoid repetitive applications where the employees would be required to express whether or not they wish to be represented by the incumbent union and avoids placing the workplace in a perpetual representation campaign. The six‑month waiting period therefore offers a period of stability to allow the union and the employer to negotiate the renewal of the collective agreement.
[32]
Given the objectives of the Code and the Regulations, the Board finds that it is appropriate in the circumstances of this case to exercise its power under section 46 of the Regulations to modify the six‑month period. This will allow the Board to reconcile both objectives while examining the merits of the application for revocation.
5.
Other Grounds Raised by the Bargaining Agent
[35]
First, Teamsters submits that on its face the application concerns a Teamsters Québec local and not the certified bargaining agent, the Canada Council of Teamsters. In addition, it argues that the employer influenced the application for revocation and that, although indirectly, it supported the application. Lastly, Teamsters alleges that the signatures were obtained under false pretences, with promises of better working conditions or to change the union.
[36]
In the Board’s view, the name on the application and on the employees’ statements is a technical defect rather than a substantive error. Unlike the facts in AJW Technique Inc., 2016 CIRB 814, the Board cannot find in this case that the employees were confused about the identity of the bargaining agent that represents them in collective bargaining with the employer.
[37]
With respect to the allegations of employer influence, the union filed copies of pages from two websites of a third party, “labourwatch.com” and “infotravail.ca,” stating that this organization is well known for representing employers and opposing unions generally. The union submits that the law firm of Lavery deBilly provides advice on the content of those sites and that the same law firm usually represents the employer, which the employer denies. The union also argues that the persons responsible for the revocation campaign collected signatures at the work site and during work hours. The employer states that when it became aware of what was happening at the work site, it immediately informed the individuals involved that campaigning during work hours or at the work site is prohibited. The Board notes that it has not received a separate unfair labour practice complaint concerning the employer’s actions. The Board has not been persuaded that the employer interfered with the application for revocation that was filed with the Board. The information contained on a third party’s websites cannot, in itself, establish employer influence. Moreover, the Board is satisfied with the employer’s explanations regarding the activities that occurred at the work site and during work hours.
[38]
In addition, the Board investigates the evidence filed in support of applications for certification or revocation. Industrial relations officers randomly verify statements filed by employees through telephone calls to some employees. A confidential report of this investigation is filed with the Board setting out any irregularities or questioning in relation to the evidence submitted with the application. This procedure is well established and has been described in a number of decisions on applications for certification (see IMS Marine Surveyors Ltd., 2001 CIRB 135, at paragraph 16; and TD Canada Trust in the City of Greater Sudbury, Ontario, 2006 CIRB 363; upheld by the Federal Court of Appeal in TD Canada Trust v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, 2007 FCA 285; (2007), 370 N.R. 267).
[39]
In this case, the Board reviewed the officer’s confidential report relating to his investigation. Considering the foregoing, the Board is satisfied that there was no employer influence and accepts the confidential statements filed in support of the application for revocation as reflecting the employees’ wishes on the date of filing.
III.
Conclusion
[41]
This is a unanimous decision of the Board.
Translation
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