Reasons for decision

Canadian Airport Workers Union,

complainant,

and

International Association of Machinists and Aerospace Workers,

respondent.

Canadian Airport Workers Union,

applicant,

and

Garda Security Screening Inc.,

employer,

and

International Association of Machinists and Aerospace Workers,

certified bargaining agent.

The Canada Industrial Relations Board (the Board) was composed of Ms. Annie G. Berthiaume, Vice-Chairperson, and Messrs. André Lecavalier and Gaétan Ménard, Members.

Parties’ Representatives of Record

Mr. D. Bruce Sevigny, for the Canadian Airport Workers Union;

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

Mr. Asad Niyaz, for Garda Security Screening Inc.

These reasons for decision were written by Ms. Annie G. Berthiaume, Vice-Chairperson.

[1] 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 in the above-noted files, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing.

I. Nature of the Application and the Complaint

[2] On March 14, 2012, the Board, by order no. 10233-U, certified the International Association of Machinists and Aerospace Workers (the IAMAW or the incumbent bargaining agent) as the bargaining agent for a unit of employees of Garda Security Screening Inc. (Garda or the employer) comprising:

all employees of Garda Security Screening Inc. providing pre‑board security screening services under the CATSA contract at the Pearson International Airport, Buttonville Airport and Toronto City Centre Airport, excluding dispatchers, terminal supervisors and those above the rank of terminal supervisors.

[3] The collective agreement in force between the IAMAW and Garda expired on March 31, 2018.

[4] On February 2, 2018, the Canadian Airport Workers Union (the CAWU or the raiding union) filed a timely application for certification seeking to replace the IAMAW as the bargaining agent and to represent all employees “providing pre-board security screening services under the CATSA contract” at the Pearson International Airport, Buttonville Airport and Toronto City Centre Airport (now known as the Billy Bishop Toronto City Airport), including point leaders (Board file no. 32452-C). The CAWU’s application states that there are 1625 members in the unit.

[5] The IAMAW objects to the application for certification on the basis that the CAWU does not have the majority support required from the employees in the bargaining unit in order to obtain a representation vote, and that the Board cannot rely on the membership evidence in its determination as the evidence filed by the CAWU is not reliable. In support of its position, the IAMAW filed evidence of membership revocation with the Board. As such, the IAMAW asks that the Board dismiss the application without a hearing or a vote.

[6] The day before the certification application was filed, the CAWU filed an unfair labour practice (ULP) complaint pursuant to section 97(1) of the Code, alleging violation of section 96 of the Code by the IAMAW (Board file no. 32451-C).

[7] The CAWU submits in its ULP complaint that the IAMAW has attempted to undermine its organizing efforts by “generating documents that purport to be membership revocations.” Reminding the Board of the rivalry that has developed between the IAMAW and the CAWU over the years, the CAWU alleges serious concerns regarding the circumstances under which the IAMAW collected the documents and the validity of such evidence. As remedy, the CAWU asks the Board for the following:

(1) An Order prohibiting the [IAMAW] from relying upon any membership revocation evidence in connection with any displacement application filed by the [CAWU] during the current open period;

(2) An Order directing a representation vote in connection with any displacement application … in which the [CAWU] submits prima facie membership evidence on behalf of a majority of the employees in the bargaining unit; and,

(3) Such further and other relief as the [CAWU] requests, and the Board considers just and appropriate in the circumstances of this case.

[8] Section 20 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations), gives the Board discretion to consolidate two or more proceedings. Generally, the Board will exercise its discretion to consolidate matters when they concern the same parties, are based on a common set of facts, and when the parties would not be prejudiced by the consolidation. In the present instance, the ULP complaint arises from the same set of circumstances as those presented in the application for certification, and in the Board’s view, the parties would not be prejudiced by the consolidation of the cases. Accordingly, the Board has decided to consolidate file nos. 32451-C and 31452-C and address them together in this decision.

[9] After consideration, the Board has decided to dismiss the CAWU’s application for certification and its ULP complaint for the following reasons.

II. Positions of the Parties

A. The IAMAW

[10] Relying on the Board’s established policy and jurisprudence in a raid context, the IAMAW submits that the CAWU does not have the support of a majority of the employees in the bargaining unit, such that it has not met the threshold necessary for the Board to order a representation vote. In addition, the incumbent bargaining agent submits that, given that the membership evidence provided by the CAWU is not reliable, the Board should dismiss the application for certification.

[11] First, the IAMAW states that the employee lists provided by the employer, which demonstrate that there are 2168 employees in the bargaining unit, omit a significant group of employees categorized as “pre-certified screeners,” given Garda’s position that these employees are not part of the bargaining unit.

[12] The IAMAW offered some background on this group of employees which is useful to better understand the parties’ respective positions. The IAMAW explains that in order to work in any position behind security lines at an airport, it is necessary to first obtain a Transport Canada Restricted Area Identification Card (RAIC) or RAIC security clearance, and the certification as a pre-board screening officer from the Canadian Air Transport Security Authority (CATSA). In light of the wait time to obtain the required RAIC, employees are issued a temporary card, with restrictions. The IAMAW recognizes that it is necessary to hold both the RAIC, which is based on security clearance, and the CATSA certification in order to perform the full range of duties of a pre-board screening officer. The IAMAW notes that long-term employees are also required to apply for the renewal of their RAIC once every five years, even if they hold a CATSA certification. In response to a specific challenge from the CAWU, the IAMAW also explained that Garda has a policy under which—provided that an employee applies for a renewed RAIC within six months in advance of expiry—the employee will not be negatively affected if Transport Canada has not processed the application. The IAMAW adds that in such case, the employee performs limited screening duties.

[13] The IAMAW asserts that pending acquisition of full security clearance or while they take training classes towards certification, the pre-certified screeners carry out a limited range of screening duties. This group of employees that is being challenged is a group of newly or recently hired employees who may still have a temporary RAIC and are still in training. While performing limited screening duties, the IAMAW submits that the pre-certified screeners are paid by Garda, and that union dues have been collected and remitted on their behalf. It also adds that these employees enrol in the IAMAW’s pension plan after six months of service. The IAMAW thus takes the position that the pre-certified screeners are part of the bargaining unit as there can be no question that they are employees of Garda providing pre-board security screening services under the CATSA contract. It adds that it had to file a grievance seeking to enforce certain collective agreement rights for this group of employees. The IAMAW argues that it is for the Board to determine the scope of the bargaining unit in the context of this proceeding, should the status of the pre-certified screeners become material to the assessment of majority support for the purpose of this application.

[14] Second, the IAMAW asserts that it provided the Board with a large number of signed cards from members of the bargaining unit predating the instant application and revoking any membership they may have taken out with the CAWU. The IAMAW states that the Board, in assessing whether the CAWU meets the required majority threshold to obtain a vote, can only take into account the membership cards that postdate the revocations provided and that are otherwise valid.

[15] Further, the IAMAW argues that the membership evidence filed by the CAWU is not reliable because signatures were solicited for CAWU membership without obtaining the five‑dollar payment required by section 31(1)(b) of the Regulations. The IAMAW submits that the non-payment of the fee consequently taints all of the membership evidence filed by the CAWU and provides an independent ground to dismiss the application without further process.

[16] The IAMAW addressed the numerous challenges raised by the CAWU for the purposes of calculating whether it has majority support of the employees in the bargaining unit. In response to the CAWU’s submissions that those “inactive” employees who have been absent for more than six months as at the date of the application should not be considered bargaining unit employees as they lose their CATSA certification, the IAMAW submits that the six-month cut-off put forward by the CAWU is completely arbitrary and impermissible in law, and asks that these employees be included on the list of eligible employees. Denying that employees on leave for six months or longer automatically lose their CATSA certification, the IAMAW states that on return from any leave, all employees will be required to take a refresher training of approximately four hours. For lengthier leaves, there may be a requirement to take a one-day test to determine if their knowledge is up to date. For leaves of more than 18 months, it may be deemed necessary to redo the CATSA certification training. However, during this time, in each case, the member remains an employee with an enforceable right, through the grievance process if necessary, to return to active employment and be provided with the necessary training to do so. The IAMAW also explained, in response to one of the CAWU’s specific challenges, that any employee who fails the CATSA recertification following a lengthy illness or leave will have a second chance at passing the examination. During this time, the employee will be placed on a compulsory leave until he or she is able to retake the examination. Therefore, such an employee will also have an enforceable right to return to his or her employment to retake the examination.

[17] Relying on the Board’s jurisprudence in this regard, the IAMAW asserts that employees on personal or medical leave, work-related injury leave, maternity and parental leave and union leave thus continue to be employees within the meaning of the Code, and are therefore entitled to participate in a representation vote. The IAMAW submits that the Board’s approach is to include not only those persons recognized in law as employees, but also any person who has a reasonable expectation of returning to work. Further, the IAMAW adds that the list of employees provided confirms its position, in that specific return dates have been provided for the allegedly “inactive” employees on personal, medical, maternity and parental leave. The IAMAW contends that the CAWU seeks to improperly exclude individuals who are “employees” who not only can reasonably be expected to return to work, but who also have an enforceable legal right to do so under the collective agreement, the Code or human rights legislation. The IAMAW asserts that the CAWU’s position is not only contrary to the Board’s jurisprudence but to the legal and human rights of the members of the unit it seeks to represent.

[18] Further, the IAMAW submits that dismissed employees who are the subject of grievances that have been filed by the IAMAW and that are still outstanding should be included on the list of eligible employees, as they have a sufficient interest in the bargaining unit.

[19] Lastly, in response to the CAWU’s requests for the production of the CATSA lists, the IAMAW submits that it is unaware of the lists sought by the CAWU. However, it submits that there is no basis for the CAWU’s request as the lists provided by Garda are accurate, subject to the IAMAW’s position on the group of pre-certified screeners.

[20] The IAMAW therefore submits that the above-noted evidence precludes the ordering of a vote and asks that the instant application be dismissed without a hearing or a vote.

B. Garda

[21] The employer takes no position with respect to the certification application. However, it filed submissions regarding the ongoing dispute between the IAMAW and Garda with respect to whether pre-certified screeners are covered by the collective agreement. The employer submits that the scope clause of the collective agreement states that the IAMAW will be the exclusive bargaining agent for “all the employees of the Company providing pre-board security screening services under the CATSA contract” at the Pearson International Airport, Buttonville Airport and Toronto City Centre Airport, including point leaders. Consequently, the employer opposes the IAMAW’s position that the pre-certified screeners should be included in the lists of employees it provided as they are not members of the bargaining unit. The employer explains that the hiring of this group of employees was the result of ongoing resource deployment challenges faced by Garda at the Pearson International Airport and CATSA’s authorization to use pre-certified screeners. Garda asserts that these employees do not meet the requirements or have yet to obtain the required security clearance to become eligible screening officers. Consequently, their role is limited since they cannot provide the full range of pre-board security screening services as contemplated under the CATSA contract. Garda however confirms that union dues have been paid and remitted to the IAMAW for those employees since the beginning of the “Pre-Cert program.”

[22] In Garda’s view, the IAMAW is improperly seeking to expand the scope of the bargaining unit and sweep in a group of employees who have always been excluded. As this issue is scheduled to proceed to arbitration, the employer submits that any determination by the Board on this issue would be prejudicial to one of the parties, depending on the outcome. For these reasons, Garda requests an oral hearing on the merits of this issue should the Board wish to make a decision on the pre-certified screeners’ eligibility on the employee lists and to vote.

C. The CAWU

[23] The CAWU asks that an in-person, secret ballot representation vote be conducted at the earliest opportunity and states that it has clearly submitted evidence establishing the majority support required from the employees in the bargaining unit. However, the CAWU also suggests that the employee lists provided by the employer to date “could be misstating the size of the bargaining unit – potentially by hundreds of purported ‘employees.’”

[24] The CAWU first agrees with Garda that the pre-certified screeners should not be included on the employee lists, as the scope of the bargaining unit description includes only employees who provide pre-board security screening services under the CATSA contract. As these employees do not have clearance or certification, they cannot perform screening services.

[25] The CAWU submits that the list of eligible bargaining unit employees should only include employees who are “active” and on current seniority lists, as they are the only employees who are permitted to bid to perform work under the CATSA contract. The CAWU states that any employee that has not worked for six months—which is the time by which it alleges an employee will lose his or her CATSA certification to perform screening services pursuant to the CATSA contract—should not be considered as a bargaining unit employee. For the purposes of determining whether it has majority support, the CAWU thus challenges the inclusion of employees who may have been absent from work for six months or more as at the date of the application for medical reasons, maternity/parental leave, leaves of absence for various reasons, union leave or work-related injury leave. The CAWU also submits that certain employees who have been dismissed and who have had grievances filed on their behalf should also not appear on the list of eligible employees.

[26] Further, the CAWU submits that the Board should not give any weight to the alleged membership revocation evidence that was submitted by the IAMAW. The CAWU contends that the IAMAW has attempted to undermine its organizing efforts by “generating documents that purport to be membership revocations.” The CAWU submits that it has received a significant number of cards from the IAMAW that were signed before the corresponding CAWU membership cards. It also highlights that several bargaining unit employees have confirmed that they never signed any revocation of membership documents. Therefore, the CAWU states that only a portion of the documents that purport to represent membership revocations could consequently be considered legitimate. In light of these significant irregularities, which the CAWU states should satisfy the Board that the evidence was collected under circumstances that involved “deception, coercion, misunderstanding and/or misrepresentation,” it asks the Board in its ULP complaint in file no. 32451-C to issue an order prohibiting the IAMAW from relying upon any membership revocations in connection with the instant application. The CAWU also seeks an order that a representation vote be held if it has prima facie membership evidence of majority support.

[27] It is the applicant’s further position that an in-person, secret ballot representation vote is necessary given the allegations raised in its ULP complaint. It submits that the serious allegations contained in the ULP complaint should raise concerns about the potential inaccurate results of any alternative form of vote that would not allow the parties to properly scrutinize the conduct of the representation vote.

[28] The CAWU has made several production requests as part of the proceedings in the application for certification. It asks that the employer be ordered to produce copies of the most recent seniority lists, summer shift bid schedules in respect of screeners employed at the Pearson International Airport, and the winter shift bid schedules in respect of screeners employed at Billy Bishop Toronto City Airport. The CAWU takes the position that these documents “should contain extremely relevant information in relation to the determination of employee status.”

[29] Further, the CAWU states that in addition to the pre-certified screeners, any employee who does not have the required security clearance or certification to perform screening services under the CATSA contract should not be considered part of the bargaining unit. Since the employer has a contractual obligation to supply CATSA with a list of employees on a regular basis, the applicant believes that the most recent version of this list will demonstrate who has the necessary clearance and establish that the bargaining unit is in fact composed of fewer than 2000 employees. The CAWU thus objects to the inclusion of any employee who appears on the employee lists but does not appear on the lists sent to CATSA, in the 12 months preceding the filing of the application.

[30] In addition, the CAWU raises concerns regarding the accuracy of the information supplied by Garda, alleging that the employer “is purposely providing false information to the Board, in an attempt to frustrate the lawful wishes of the bargaining unit employees,” and states that the production of the CATSA lists is therefore the only method of determining the size and accuracy of the bargaining unit. As such, the CAWU asks that the employer be ordered to produce any such list that has been provided to CATSA in the last 18 months and states that additional challenges are possible once it completes a review of those lists.

III. Analysis and Decision

A. The Application for Certification

[31] Section 28 of the Code dictates the basis on which applications for certification are determined by the Board:

28 The Board shall, subject to this Part, certify a trade union as the bargaining agent for a bargaining unit if the Board

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

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

(c) is satisfied that, as of the date of the filing of the application or of any other date that the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent.

(emphasis added)

[32] In the context of a displacement application, the Board will, in almost every case, order a vote if such majority support is established. The issue for the Board to determine in the instant application is thus whether the CAWU’s application was accompanied by sufficient and valid membership evidence on the date it was filed to establish that a majority of the group represented by the IAMAW wishes to be represented by the applicant.

[33] This is not the first time that the Board has had to deal with this issue between the parties. In Garda Security Screening Inc., 2015 CIRB 764 (RD 764), the Board was seized with a previous application for certification filed by the CAWU, attempting to displace the IAMAW. It is useful, for the purposes of the Board’s analysis in the instant application, to reproduce the Board’s detailed explanation in RD 764 of the requirements of the Code in a displacement application as well as its longstanding policy:

[7] It is a well established policy that in displacement applications, the Board will require that the applicant demonstrate majority support amongst the employees in the unit. If the applicant meets this threshold, the Board will, in almost every case, order a representation vote. The basis of this policy is based on the premise that once the Board has certified a trade union to represent the employees of a bargaining unit, it is presumed to have the continuing support of a majority of employees in the unit until this presumption is displaced by evidence to the contrary. The Board is also concerned with preserving industrial peace and, by adopting a policy requiring that the union seeking to displace another demonstrate support of 50% + 1, it ensures that the employees are serious about wanting a change of bargaining agent before the Board orders a vote (Canadian Pacific Express and Transport (1988), 73 di 183 (CLRB no. 682); and Canadian Broadcasting Corporation (1993), 91 di 165 (CLRB no. 1004) see page 172).

[8] The Board relies on membership evidence to establish the wishes of the employees in the proposed unit. This is set out in section 30 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations):

30. In any application relating to the certification of a bargaining agent

(a) the membership of an employee in a trade union is evidence that the employee wishes to be represented by the trade union as that employee’s bargaining agent; and

(b) the membership in a trade union of a majority of employees in a unit appropriate for collective bargaining is evidence that the majority of the employees in the bargaining unit wish to be represented by the trade union as their bargaining agent.

[9] The Board’s requirement regarding the evidence of membership in a trade union is codified 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.

[10] When seized with any application for certification, the Board must first determine if the applicant has valid and sufficient membership evidence to support its application. Where the Board proposes to certify a bargaining agent on the basis of signed membership cards, or before it will order a representation vote, it is critically important that the membership evidence on which the Board will rely to make its decision be accurate and reliable. The standard that the Board applies in the verification of the membership evidence submitted in support of a certification application is very high.

[11] The key question for the Board in this matter is whether the application is accompanied by sufficient and valid membership evidence, as required by sections 30 and 31 of the Regulations, to establish that a majority of the employees in the unit wish to be represented by the applicant.

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

[13] When allegations are made as to the validity of the membership evidence filed by an applicant, the IRO will investigate those allegations 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).

[14] 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 protected by section 35 of the Regulations (see Maritime-Ontario Freight Lines Ltd. v. Teamsters Local Union 938, 2001 FCA 252).

(emphasis added)

[34] As will be further explained below, the Board is not satisfied that the CAWU’s membership evidence complied with the Regulations. The Board is of the view that the irregularities identified by the Industrial Relations Officers (IROs) as part of the investigation are sufficiently serious to taint the entirety of the membership evidence.

[35] Even if the Board had accepted the CAWU’s evidence, discounting the irregular membership cards and without considering the IAMAW’s revocation evidence, the Board is satisfied, for the reasons explained below, that the CAWU would not have the support of a majority of employees in the unit, even if the pre-certified screeners were excluded from the bargaining unit, which the Board is not prepared to determine at this stage.

1. The Reliability of the Membership Evidence

[36] As the CAWU’s position on the various challenges has somewhat evolved as part of the proceedings, the Board’s analysis will be based on the most recent position and challenges of the raiding union.

[37] The Board notes that each union questioned the reliability of the evidence presented to the Board in support of the other union’s position.

[38] The IAMAW submitted that members had failed to pay the required five-dollar fee in support of their membership with the CAWU, and that as a result, the Board has a sufficient ground to dismiss the application.

[39] The CAWU submitted in turn that there were significant irregularities with the IAMAW’s membership revocation cards, such that the Board should completely disregard the revocation evidence filed by the IAMAW. These irregularities and the context in which the revocation evidence was obtained by the IAMAW are the subject of the ULP complaint in Board file no. 32451-C.

[40] When seized with an application for certification, the Board’s role is to ascertain the true wishes of the employees in the bargaining unit as at the date of the application and ensure that the objectives of the Code are met. For this purpose, as explained in the above case law, the Board has a process by which it delegates its investigation powers to the IROs, in order to verify and test the membership evidence submitted in the context of an application for certification.

[41] As part of the Board’s investigation in this application, and in light of the size of the bargaining unit, several IROs were assigned to investigate this matter and contacted a significant number of employees. As part of these interviews, the IROs tested the information contained on the membership and revocation cards through a series of questions to ensure that the evidence was reliable and was a true indication of employees’ wishes. It should be noted that the IROs conducted confidential in-person as well as telephone interviews. In the instant case, the Board notes that the confidential report revealed significant irregularities affecting the CAWU’s evidence.

[42] It should be noted that in support of its application for certification, the CAWU had to submit a Certificate of Accuracy, which was signed by its representative on February 1, 2018, declaring that “[t]he amounts shown as having been paid as union dues and/or membership fees were actually paid by the employees concerned on their own behalf and on the dates indicated.” The IROs confirmed in the confidential report submitted to the Board that, contrary to the CAWU’s declaration in its certificate, a significant number of employees confirmed that they had not paid the required five-dollar fee as set out in section 31(1)(b) of the Regulations and that, in at least one instance, it was identified that payment had in fact been made on behalf of the employee applying for CAWU membership by someone other than the employee. The Board therefore finds, based on the results of the investigation, that there were significant irregularities in the membership evidence filed in support of the CAWU’s application, and that these irregularities amounted to a substantive defect.

[43] As such, the Board is not satisfied that it can rely on the evidence filed by the CAWU in support of its application.

[44] As it explained in RD 764, 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.” In RD 764, the Board went on to cite the decision of its predecessor, the Canada Labour Relations Board, in American Airlines Incorporated (1981), 43 di 114; and [1981] 3 Can LRBR 90 (CLRB no. 301), regarding the consequences of failing to respect the requirements imposed by the Regulations:

The Board again wishes to stress, as referred to in City and Country Radio Ltd., supra, and Canadian Imperial Bank of Commerce, Sioux Lookout, Ontario, supra, that, in dealing with certification, it has developed a procedure to impress on the employee signing a card and on the union applying for certification the importance of their action. Concurrently with the important changes enacted by Parliament in 1978, which clearly indicated its preference in establishing the union’s majority by documentary evidence, the Board raised from $2 to $5 the minimum required fee for an employee to join a union. We feel that an employee who has to disburse $5 to join a union will consider the seriousness of his action before disbursing the money. The union must then certify to the Board that the money was personally paid by the employee who signed a membership card. If there is any impropriety in these procedures, the Board will dismiss the application for certification on that sole basis. …

(pages 129–130; and 102; emphasis added)

[45] In Transport Jean-Marie Bernier Inc., 2009 CIRB 462, the Board dismissed a displacement application because the investigation had revealed that the five-dollar membership fee had been returned to some workers. In so finding, the Board summarized its case law on this issue, as follows:

[22] The Board must very carefully consider the requirements regarding membership evidence set out in the Regulations, including the requirement for payment of a minimum of five dollars as a membership fee in the prescribed period.

[23] Non-compliance with the requirements under the Code and Regulations is usually viewed by the Board as a substantive deficiency rather than a technical breach and the Board will apply the standard rigorously when scrutinizing membership evidence submitted by the applicant union.

[24] In Hudson Bay Mining and Smelting Co., Limited (1993), 91 di 130; and 93 CLLC 16,023 (CLRB no. 999), the Board indicated the following:

There can be no doubt that if a union organizer were simply to make a “gift” of five dollars to an employee, and were the employee then to hand that money back as a membership fee along with the signed application, that would not satisfy the Board’s requirements. The employees must actually pay the money themselves (American Airlines Incorporated (1981), 43 di 114; and [1981] 3 Can LRBR 90 (CLRB no. 301)).

(pages 133; and 14,157)

[25] In S.G.T. 2000 Inc., 1999 CIRB 9, the Board stated the following:

[40] The Board has ruled on numerous occasions on the strict application of this essential requirement that the union must meet as part of an application for certification. (See Hudson Bay Mining and Smelting Co., Limited (1993), 91 di 130; and 93 CLLC 16,023 (CLRB no. 999); Radio CHNC Limitée, New Carlisle, Quebec (1985), 63 di 26; 12 CLRBR (NS) 112; and 86 CLLC 16,009 (CLRB no. 537); and Air West Airlines Ltd. (Air West Operations Ltd.) (1980), 39 di 56; and [1980] 2 Can LRBR 197 (CLRB no. 231).)

[46] Given the importance of the quality and validity of the membership evidence, when signing the Certificate of Accuracy, the applicant also certifies its understanding that “any misrepresentation or irregularities in the membership evidence provided to the Board could result in the rejection of all or part of the evidence submitted and the dismissal of the application.”

[47] Having carefully considered the results of the investigation by the IROs, the Board is of the view that the number of irregular CAWU membership cards is sufficient to raise serious concerns and doubts as to whether any of the evidence filed reflects the employees’ true intentions. As a result, the irregular membership evidence taints the entirety of the CAWU’s membership evidence. Therefore, the Board is not prepared to rely on the CAWU’s evidence to determine whether it will order a representation vote. The Board dismisses the application for certification on that sole basis.

[48] The Board wishes to note that the investigation also revealed some concerns surrounding the IAMAW’s membership revocation evidence. However, it is not necessary to determine whether these issues would have had an effect on the validity of the IAMAW’s membership revocation evidence in the circumstances of this case, given that the Board did not need to consider this evidence in deciding the application for certification.

2. The Sufficiency of the CAWU’s Membership Evidence

[49] While the Board has decided to dismiss the CAWU’s application on the basis that the membership evidence is not reliable, had the Board decided to only discount the irregular CAWU membership cards, it would have dismissed the application on the basis that the CAWU did not have the majority support required to obtain a representation vote, and that is, as previously mentioned, without factoring in any of the IAMAW’s revocation evidence or the group of pre-certified screeners.

[50] First, the Board notes that the CAWU made several requests for the production of employee lists, asking that the Board order Garda to produce the lists of employees sent to CATSA in order to determine the employees who have the necessary clearance to perform pre‑board security screening. The CAWU submitted that these lists would accurately reveal who should be considered part of the bargaining unit, suggesting that the employee lists already provided by the employer in the context of the certification application could have misstated the size of the bargaining unit. In addition, the Board notes that the CAWU also asked for other lists, namely seniority and shift bid schedules, on the basis that these lists “should contain extremely relevant information in relation to the determination of employee status.” Had the Board not dismissed the application on the basis of unreliable membership evidence, it would not have granted the CAWU’s requests for production orders, for the following reasons.

[51] In this particular case, the employer provided lists confirming all employees in the unit on the date of the application who, in the opinion of the employer, performed pre-board security screening services. The employer, given its position on the pre-certified screeners, had thus already excluded from the lists of employees this group which the IAMAW sought to include, providing the Board with a separate list for the pre-certified screeners. The incumbent bargaining agent also confirmed the accuracy of the employee lists provided by the employer, confirming that the information provided accurately described the group it represents, subject to its position on the group of pre‑certified screeners.

[52] The Board is of the view that there is no basis in policy or law in support of the CAWU’s requests to obtain the CATSA lists or any other lists of employees. The employee lists already provided demonstrate the employees who have been identified as performing pre-board screening duties and who are in the bargaining unit. As a result, the lists requested would be of no further assistance in determining who should be included in the bargaining unit. Consequently, the Board’s analysis will be based on the lists of employees already provided by Garda in these proceedings and recognized as accurate by the incumbent bargaining agent.

[53] Second, as indicated at the outset, when seized with a displacement application, it is the Board’s longstanding policy and practice to order a representation vote if the applicant has demonstrated that it has the support of a majority (50% + 1) of the employees in the bargaining unit (see Canadian Pacific Express and Transport (1988), 73 di 183 (CLRB no. 682)).

[54] The CAWU has raised numerous challenges to the status of bargaining unit employees for the purposes of determining whether it has majority support from the employees in the bargaining unit. More specifically, the CAWU has submitted that the list of bargaining unit employees should only include employees it believes are “active.” According to the CAWU’s position, any employee who may have been absent from work for medical reasons, maternity/parental leave, leaves of absence for various reasons, union leave or work-related injury leave for six months or more as at the date of the application should thus be excluded. The CAWU’s position is based on its understanding that such employees will automatically lose, after six months of absence, the required certification to perform pre-board security screening duties. It is worth noting that the employer indicated on the employee lists the last day of work and the expected return date, when known, for all individuals who were on leaves of absence.

[55] In addition to objecting to the inclusion of a number of “inactive” employees, the CAWU stated that the group of pre-certified screeners should also be excluded, as they cannot perform pre-board screening duties. Lastly, the CAWU also disputed the inclusion of certain employees who have been dismissed and who have had grievances filed on their behalf which remain outstanding.

[56] The Board has carefully reviewed the list of “inactive” employees challenged by the CAWU, as well as those employees the CAWU did not challenge. The Board finds it necessary to point out that, attempting to apply the CAWU’s rationale behind the exclusion of inactive employees, i.e., those that have been absent for six months or more as at the date of the application, it is unable to establish any consistency in the applicant’s approach. More specifically, the Board has identified that the CAWU has not objected to the inclusion of several “inactive” employees who were on either maternity/parental or medical leaves of absence, and for a duration of more than six months, while it has challenged the inclusion of others. Regardless of these discrepancies, the Board will continue its analysis on the basis of the CAWU’s position, as it was presented to the Board.

[57] The Board disagrees with the CAWU’s position regarding the exclusion of a number of “inactive” employees from the list of employees in the bargaining unit as at the date of the application. When it comes to determining whether an employee who has been absent from work should be considered part of the bargaining unit, the Board’s consistent approach has been to include any person who has been absent, regardless of the reason for the leave, and who has a reasonable expectation of returning to work, by virtue of certain rights whether established by a collective agreement or by legislation (see VIA Rail Canada Inc. (1997), 104 di 67; and 38 CLRBR (2d) 124 (CLRB no. 1206); IMS Marine Surveyors Ltd., 2001 CIRB 135; and Algoma Central Marine, a Division of Algoma Central Corporation, 2009 CIRB 469). The rationale for this approach is that these individuals are generally considered to retain a sufficient continuing interest in the bargaining unit to warrant considering their wishes with respect to union membership.

[58] Accordingly, based on its established policy and jurisprudence, the Board would have included all employees on maternity/parental leave. These individuals are still “employees” as defined by section 3 of the Code, who not only have a statutory right to reinstatement but who are also reasonably expected to return to work (see Canadian Imperial Bank of Commerce (Alness Branch Downsview) (1978), 28 di 921; [1978] 2 Can LRBR 361; and 78 CLLC 16,145 (CLRB no. 141); and Atomic Energy of Canada Limited, 2004 CIRB 269).

[59] Turning to the CAWU’s objection regarding the inclusion of certain dismissed employees on the list of eligible voters, section 3(2) of the Code specifically provides that “[n]o person ceases to be an employee within the meaning of this Part by reason only of their ceasing to work as the result of a lockout or strike or by reason only of their dismissal contrary to this Part.” Additionally, the Board has permitted employees who have been dismissed and for whom a grievance has been filed to vote. In Claude H. Foisy et al., Canada Labour Relations Board Policies and Procedures (Toronto: Butterworths, 1986), the authors described the eligibility of certain dismissed employees to vote, as follows:

Employees who have been dismissed, but who have filed unfair labour practice complaints and grievances contesting their dismissal are permitted to vote in accordance with s. 107(2).

(page 106)

[60] Consequently, the Board would have included those employees who have been dismissed but who have had grievances filed contesting their dismissal.

[61] Finally, based on the Board’s general policy outlined above, the Board would have also been required to include the employees on approved union leaves of absence pursuant to the collective agreement as a result of holding positions with the IAMAW, given that these individuals have a reasonable expectation of returning to their duties should they no longer hold their union position.

[62] The Board notes that the IAMAW provided documents in support of its position that employees on union leave have continuing rights and interests. More particularly, the collective agreement between Garda and the IAMAW contains a Letter of Understanding, which provides that employees carrying out the role of chief shop steward are funded directly by the employer for purposes of remuneration and benefits and are given clearance for union business. In addition, the parties to the collective agreement entered into a Memorandum of Understanding, which provides that anyone elected to the position of business agent/general chairperson for the IAMAW shall retain and accumulate seniority as per article 9.2 of the collective agreement.

[63] The Board is thus satisfied, on the basis of the evidence revealed in the confidential report, that by only discounting the irregular membership cards and taking these three categories of inclusions into consideration, the CAWU’s support falls below the threshold required to order a vote. It should also be emphasized that this analysis does not factor in the disputed group of pre‑certified screeners, or any further challenges raised by the CAWU, such as those employees on medical leaves of absence, work-related injury leave as well as employees on miscellaneous leaves of absence.

[64] Had the Board continued its analysis, it would have, in accordance with its established case law, also included such employees who were reasonably expected to return to work. By including a portion or all of these individuals on the list of employees, the CAWU’s support would be further diminished and would fall significantly further below the majority threshold required.

[65] In light of the above, the CAWU has not succeeded at establishing that it has the support of a majority of the employees in the bargaining unit. Therefore, the Board would have declined to order a representation vote even if the membership irregularities had not tainted all of the CAWU’s membership evidence.

B. The CAWU’s ULP Complaint

[66] The ULP complaint filed by the CAWU asks the Board to disregard the IAMAW’s membership revocation evidence and to order a representation vote. Given the dismissal of the application for certification without considering the IAMAW’s membership revocation evidence, the Board is of the view that no labour relations purpose would be served by dealing with the merits of the ULP complaint. In addition, the Board declines to order a representation vote given that the CAWU has not provided “prima facie membership evidence on behalf of a majority of the employees in the bargaining unit.” As such, the Board dismisses the ULP complaint as the issues raised therein are now moot.

IV. Conclusion

[67] The Board finds that the irregularities found in the course of its investigation into the membership evidence filed by the CAWU are sufficient to put into question the reliability of all the membership evidence submitted in support of the application for certification, such that the Board is not prepared to rely on it to order a representation vote. Accordingly, the Board has decided to dismiss the CAWU’s application for certification.

[68] Furthermore, and for the reasons outlined above, had the Board decided to discount only the CAWU’s irregular membership evidence, it would have dismissed the application for failing to establish the majority threshold required to order a vote, and this is without factoring in the IAMAW’s membership revocation evidence or making any determination on the group of pre-certified screeners.

[69] The Board also dismisses the ULP complaint filed by the CAWU in Board file no. 32451-C, as it has not considered the IAMAW’s membership revocation evidence in the context of this application for certification. Therefore, the Board finds that no labour relations purpose would be served by addressing the merits of the complaint.

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

 

	____________________ Annie G. Berthiaume Vice-Chairperson
____________________ André Lecavalier Member		____________________ Gaétan Ménard Member