Reasons for decision

Unifor,

applicant,

and

WestJet, an Alberta Partnership

employer.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Ginette Brazeau, Chairperson, and Mr. Paul Moist and Ms. Elizabeth Cameron, Members, considered the above-noted application.

Parties’ Representatives of Record

Mr. Billy O’Neil, for Unifor;

Mr. Simon Mortimer, for the WesJet, an Alberta Partnership.

[1] These reasons for decision were written by Ms. Elizabeth Cameron, Member.

[2] Section 16.1 of the Canada Labour Code (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 determine this complaint without an oral hearing.

I. Overview and Background

[3] On April 12, 2021, the Board received an application for certification filed pursuant to section 24(1) of the Code by Unifor (the union) respecting a group of approximately 500 unrepresented guest services employees at WestJet, an Alberta Partnership (the employer) working at the terminals of the Vancouver and Calgary international airports.

[4] The parties to the application disagree on several issues, including the appropriateness of the bargaining unit, the inclusion or exclusion of certain positions and the integrity of the membership evidence.

[5] Submissions from both parties were received and thoroughly reviewed. In interim order no. 11610‑U, issued on May 20, 2021, the Board stated that it found the applicant to be a trade union within the meaning of the Code, determined the unit described therein to be appropriate for collective bargaining and was satisfied that a majority of the employees of the employer in the unit wished to have the applicant trade union represent them as their bargaining agent.

[6] Although several issues associated with the inclusion or exclusion of certain positions remained outstanding, the Board concluded that majority support for the applicant would not be affected by its determination with respect to the disputed positions. In its order, the Board certified the union as the bargaining agent for a bargaining unit comprising:

all employees of WestJet, an Alberta partnership, employed in guest services at the Calgary International Airport terminal and at the Vancouver International Airport terminal, excluding managers, persons above the rank of manager, employee support advisors, airport coordinators, administrative office employees and persons covered by an existing certification order.

(Board order no. 11610-U)

[7] The Board requested submissions from the parties with respect to the six disputed coordinator positions. They were received and reviewed by the Board. The Board has concluded that all six positions are to be included in the bargaining unit.

[8] These reasons outline the Board’s rationale for its decision to issue the interim certification order and also set out its decision regarding the disputed coordinator positions.

II. Issues Raised

A. What is the appropriate bargaining unit for collective bargaining purposes?

[9] The union filed its certification application seeking representation rights for a bargaining unit that encompassed the guest services employees at two of the employer’s four Tier 1 hubs—specifically, the terminals at the Vancouver and Calgary international airports. In the alternative, it sought certification orders for separate units at each airport. The employer submitted that the only appropriate bargaining unit would be described as follows:

all employees of WestJet, an Alberta Partnership, employed in guest services at Airport terminals within the territorial limits of Canada, excluding managers, persons above the rank of manager, employee support advisors, airport coordinators, administrative office employees, and persons covered by an existing certification order.

[10] The specific positions taken by the parties are outlined below.

1. The Employer’s Position

[11] The employer opposed the union’s proposed bargaining unit on several counts. In support of its various positions, it submitted a detailed description of its operation, made thorough arguments and cited several of the Board’s previous decisions

[12] The employer described the structure of its operation as a “Hub and Spoke” network, used between 38 airports to deliver its services. Under this structure, the employer established a series of routes to connect to a central hub from which it flies to a network of destinations. The employer has grouped this “Hub and Spoke” network into three tiers. There are four Tier 1 hubs, located in the terminals at the Vancouver, Calgary, Edmonton and Toronto international airports. The essence of this “Hub and Spoke” network is that there is an interdependence amongst the various hubs and spokes for the delivery of service.

[13] The employer submitted that the degree of integration between the guest services employees at all Tier 1 hubs is key to the delivery of a consistent and safe operation on a system-wide basis. It stated that each hub’s demands are directly affected by the operations at the other hubs and that a bargaining unit that divides the guest services group could create misalignment with its operating structure. Further, all Tier 1 hubs have identical structures and operate under company-wide policies, procedures and staffing models. The employer contended that this consistency is necessary to avoid confusion, duplication and missteps in the provision of the WestJet product.

[14] In addition to the concerns on the impact that a fragmentation of the guest services group would have on its operation, the employer argued that anything short of a national certification would also be counter to the objectives of the Code and not in the best interest of the employees. It submitted that, in its view, the union had misled the employees during the organizing campaign into believing that they would be joining a national bargaining unit, not a smaller unit. Further, the employer did not agree that certifying a bargaining unit for a subset of the guest services group was required to give effect to the employees’ constitutionally guaranteed right to freedom of association, amongst those who wished to be represented by the union. It argued that other employee groups in its operations (pilots and cabin crew/flight attendants, for instance) have organized nationally and that the union should be held to the same requirement in this instance.

[15] Beyond the employer’s own experience, it argued that the Board should respect its general policy of favouring broader-based, all-employee units, particularly in the aviation sector. In its view, there are no compelling reasons to justify a departure from this general principle.

[16] Finally, the employer stated that the smaller bargaining unit would cause serious labour relations harm that could disrupt employees, the employer’s operation and the public. The employer submitted that fragmentation of the guest services group could create terms and conditions of work at different hubs that could lead to competing pressures and demands on employees and the employer. Further, labour disruptions at one hub could significantly impact all other locations, creating industrial tension and a negative impact on the public.

2. The Union’s Position

[17] The union submitted that the bargaining unit made up of employees in two of the four Tier 1 hubs is appropriate for collective bargaining.

[18] The union disputed the employer’s claim that a bargaining unit that does not include employees at all Tier 1 hubs would interfere with the employer’s “Hub and Spoke” operating model. Pointing to the recent steps taken by the employer to contract out various roles within the guest services function to outside contractors, including at Tier 1 airports, the union claimed that the employer had abandoned the notion of having a single employee group at all ends of the passenger’s trip. Guest services employees are now employed by nine separate employers in various airports across Canada.

[19] The union also disputed the employer’s claim that employees had been induced to sign membership cards with the promise of a national bargaining unit. While it admitted to initially launching a broad-based organizing campaign, the union explained that it had adapted its efforts to changing circumstances during the course of the organizing campaign. The union submitted that the employees in Vancouver and Calgary wished to belong to the union and had demonstrated their willingness to do so by signing membership cards. According to the union, the employees had full information about its objectives when doing so.

[20] In response to the employer’s argument that only a broad-based, all-employee unit would be appropriate, the union cited previous Board decisions in which applications for national bargaining units had been set aside in favour of smaller units, demonstrating the absence of a mandatory industry standard for company-wide or national bargaining units.

[21] Finally, the union disagreed with the employer’s argument that serious labour relations harm would occur if anything short of a national bargaining unit were certified. It pointed to the fact that some employees in the guest services group have been laid off as a result of contracting out and are in fact employees of different employers across Canada. This fact, according to the union, undermined the employer’s position that only a national unit that includes all guest services employees would provide industrial stability. Further, the union argued that the concerns over industrial stability should not outweigh the opportunity for previously unrepresented employees to have access to collective bargaining.

3. Analysis and Decision

[22] The Board’s authority to determine the appropriate bargaining unit is found in section 27(1) of the Code:

27 (1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining.

[23] In approaching bargaining unit determination, the Board is focused on the objectives of the Code, which were summarized in AirBC Limited (1990), 81 di 1; 13 CLRBR (2d) 276; and 90 CLLC 16,035 (CLRB no. 797), as: (1) the encouragement of free collective bargaining; (2) the fostering of industrial stability; and (3) respect for the wishes of the employees.

[24] The Board also noted the importance of these objectives in Maritime-Ontario, Parcel Division, 2000 CIRB 100, as follows:

[37] If the employees themselves identify a community of interest and describe an identifiable bargaining unit around a clearly identified working condition structure or function, the Board should not deny their application for certification solely on the basis that some larger unit, other grouping of working conditions, structures or functions might allow a more appropriate bargaining structure. In short, the Board should, where reasonable and possible, respect employees’ wishes if their suggested grouping does comprise an appropriate unit, as stated in Alberta Wheat Pool (1991), 86 di 172 (CLRB no. 907):

The Board’s policy regarding the appropriateness of bargaining units in applications like we have here is well settled. Where unorganized employees are exercising their right to participate in collective bargaining, the Board will provide a meaningful opportunity for them to do so and it will not frustrate these fundamental rights by insisting upon artificial or unnecessary bargaining unit configurations. In these situations the Board will accept bargaining units that are somewhat less than the most appropriate unit regardless of whether this might cause administrative inconvenience for the employer. (For an overview of these policies and an example of their practical application see Sedpex Inc. et al. (1985), 63 di 102 (CLRB no. 543), and Purolator Courier Ltd. (1989), 77 di 1 (CLRB no. 730).)

(page 176)

[25] More recently, in Dicom Transportation Group Canada, 2019 CIRB 911, the Board emphasized the significant weight it places on the wishes of the employees, particularly when the employees are seeking to be collectively represented for the first time. It stated the following:

[36] In essence, the determination of an appropriate unit will take into account the objectives of the Code, and, particularly in the case of a first application for certification, the Board will generally favour a bargaining unit description that will promote access to collective representation and to collective bargaining for employees who wish to exercise those rights.

[26] In this case, the unrepresented employees in two of the employer’s four Tier 1 hubs clearly expressed their wishes to be represented by the bargaining agent. While an all-employee unit might have been more appropriate or typical, it is not uncommon for the Board to accept a smaller unit where circumstances warrant it. In United Parcel Service Canada Ltd., 2008 CIRB 433 (United Parcel Service Canada Ltd. 433), a decision referred to in the submissions of both the union and the employer, the Board stated the following:

[21] It is important to note that although the Board generally favours all-employee bargaining units or creating larger bargaining units, it will nevertheless create less than all-encompassing units or fragment an existing unit when there are compelling reasons to do so. The factors that favour smaller units include a lack of community of interest, geographical factors, specific statutory provisions, the likelihood that a larger unit would not be viable, and an interest in enabling employees to obtain representation.

[27] That case was a reconsideration of the Board’s decision in United Parcel Service Canada Ltd., 2008 CIRB LD 1881, in which United Parcel Service Canada Ltd., the employer in that matter, argued that its hub and spoke operating model lent itself to a bargaining unit that would include all employees with a community of interest at all 42 of its locations in Canada. Further, the Board had previously certified a broad-based unit of employees at that employer, reinforcing the employer’s view that only a broad-based bargaining unit for this new group of unrepresented employees would be appropriate. The Board disagreed and determined that the factor of employee access to collective bargaining outweighed the employer’s concerns. While a broader bargaining unit might have been more appropriate, the smaller unit with a more limited geographic scope was deemed appropriate.

[28] As in United Parcel Service Canada Ltd. 433, supra, the Board determined that granting access to collective bargaining for the employees in the present application outweighed the concerns raised by the employer. It balanced the employees’ right to freedom of association with the considerations that the smaller bargaining unit would have on the employer’s hub and spoke network and the employer’s arguments for the importance of consistency. The Board was not persuaded that a certification of only two of four Tier 1 hubs would significantly impede the employer’s operation, as argued in its submission. Given the significant degree of contracting out of guest services functions to other employers, some level of fragmentation of the services exists today. The employer has consciously contemplated the division of this group and has effectively managed and delivered its services.

[29] In further support of its argument that the Board must resolve conflicting factual issues to justify its departure from the all-employee bargaining unit, the employer cited 669779 Ontario Limited O/A CSA Transportation, 2018 CIRB 873. It is important to note that the Board was addressing an application for review of an existing bargaining unit in that decision and that different considerations apply when the Board examines a first-time application for certification. This distinction between a new certification application and an application to review an existing bargaining unit was set out in Quebec North Shore & Labrador Railway Co. (1992), 90 di 110; and 93 CLLC 16,020 (CLRB no. 978):

The tests for determining whether a unit is appropriate for collective bargaining take into account the interests of both the employees and their employer. Without claiming to make an exhaustive list of these factors, we would note, inter alia, the community of interest among the employees, the method of organization and administration of the business, the history of collective bargaining with the employer and in the industry in question, whether the employees are interchangeable and the interests of industrial peace. The tests may have different weight, depending on the individual case, particularly in terms of whether it is an application for certification or an application for review. In the first situation, the Board must allow the employees to have access to collective bargaining. In the second, it must examine the existing bargaining structure in order to make the bargaining process and the application of the collective agreements more effective. However, it must always try to balance what are often divergent interests in determining viable bargaining units and in order to ensure effective bargaining and the most harmonious labour relations possible.

(pages 123–124; and 14,147–14,148; emphasis added)

[30] It is also important to note that there is no specific presumption in favour of all-employee bargaining units. While there may be cases in which the Board has stated that there is a preference for such a bargaining unit, that statement of preference cannot be equated to a presumption (see Alberta Government Telephones Commission (1989), 76 di 172 (CLRB no. 726), at p. 182).

[31] Finally, in Royal Aviation Inc., 2000 CIRB 69, the Board reviewed appropriate bargaining unit criteria, including industry practice, history of collective bargaining, the employer’s organizational structure as well as the Board’s preference for single, broader-based bargaining units and concluded as follows:

[28] Finally, the determination of the bargaining unit is not a question of law, but rather a question of fact to be decided on the facts and circumstances of each particular case. The Board summed this well when it made the following statement in CFTO-TV Limited (1981), 45 di 306 (CLRB no. 345):

There is nothing that the Board can say in this case regarding appropriate bargaining unit determination that has not already been said in countless decisions emanating from labour relations boards throughout the years. The variety of “criteria” and “considerations” only goes to prove that bargaining unit configurations cannot be “carved in stone.” Standard industry type units can be created that will suit most applications but there will always be the exceptions where circumstances will dictate variations and even inconsistencies. In such cases, bargaining units must reflect the special circumstances and be determined according to the merits of each case. ...

(pages 310–311)

(emphasis added)

[32] The Board acknowledges that national bargaining units are common in the aviation sector, including with the employer’s pilots and cabin crew/flight attendants. However, the circumstances around each application will dictate variation, and each application must be considered based on its own facts. The Board acknowledges that the employer disagreed with the bargaining unit and proposed a larger unit made up of all employees employed in guest services at airport terminals across Canada, which it stated was more viable and appropriate. However, the Board was not persuaded by the employer’s arguments that the smaller unit would create serious labour relations or operational harm and determined that the unit described herein was appropriate for the purposes of collective bargaining.

B. Does the union have majority support in the bargaining unit?

[33] Once the Board has determined the unit that is appropriate for collective bargaining, it must then satisfy itself that a majority of the employees in the defined unit wish to have the applicant represent them. In the present case, the employer raised several concerns over the validity of the membership evidence and requested that the Board order a representation vote.

[34] A general outline of the parties’ submissions and the Board’s decision regarding the membership evidence is outlined below.

1. The Employer’s Position

[35] The employer submitted that the union’s membership evidence may be deficient and had not been sufficiently tested. There were many reasons put forward for this view, including but not limited to concerns that the union’s organizing campaign had been underway for several years and membership cards may be stale dated and that employees’ wishes since signing their cards may have changed given the passage of time. Further, the employer submitted that the significant turnover and disruption it had experienced because of the pandemic could create a situation where membership cards were signed by former employees.

[36] The employer was also concerned with what it believed to be a fundamental change in the union’s intentions to represent the guest services employees. The employer submitted that it believed that employees had signed membership cards expecting to be part of a national bargaining unit. Now faced with something less than a national unit, it was the employer’s view that members may not have the same interest in being represented by the union.

[37] The employer also raised concerns about the union’s ability to establish the authenticity of its membership cards and the potential lack of effective controls over who completed, witnessed or signed the membership cards and who paid or collected the correct membership fees.

[38] The cards themselves were deemed to be problematic by the employer for a variety of reasons, including the union’s use of electronic membership cards and e-signatures. In the employer’s view, the Board’s acceptance of electronic membership cards in this instance may be problematic because the Board has not yet established or communicated a process for the use of electronic membership evidence.

[39] Finally, the employer advised the Board that it had received complaints and comments from guest services employees who had felt pressured to sign cards, often at the workplace and potentially by colleagues who were in positions of authority over them.

[40] The employer requested that the Board order a representation vote to determine the true wishes of employees.

2. The Union’s Position

[41] The union filed a completed application for certification on April 12, 2021, with membership cards and proof of payment of the five-dollar membership fee. Along with the application, the union submitted a signed and completed Certificate of Accuracy form attesting to all requirements set out by the Board in these applications.

[42] The union acknowledged that it was aware of the Board’s process to test and verify the membership evidence it had filed and expected the Board to conduct its tests in this application.

[43] Finally, the union denied the employer’s allegations that employees had been faced with pressure to sign cards. It submitted that in the absence of particulars of any alleged impropriety by the union or anyone acting on behalf of the union, the Board ought to dismiss the allegations.

3. Analysis and Decision

[44] The Code provides the Board with broad discretion to determine the manner in which it will satisfy itself that a majority of employees in the defined unit wish to have the union represent them. The Board’s policy and practice is to make the determination of employee wishes on the basis of membership evidence filed; it will only exercise its discretion to order a representation vote pursuant to section 29(1) of the Code in circumstances where it has serious concerns with respect to the reliability of that evidence (see WestJet, an Alberta Partnership, 2019 CIRB 898).

a. The Integrity of the Membership Evidence

[45] The Board’s requirements regarding the evidence of membership in a trade union are set out in section 31(1) of the Canada Industrial Relations Board Regulations, 2012 (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.

[46] The membership evidence on which the Board will rely to make its decision must be accurate and reliable. In validating membership evidence, the Board has consistently maintained a very high standard. The Board restated the importance of these requirements in Garda Security Screening Inc., 2015 CIRB 764:

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

b. The Use of Electronic Membership Cards and Signatures

[47] The union’s membership evidence was provided to the Board in the form of either scanned paper cards or electronic cards, all duly signed and dated by persons proposed for inclusion in the bargaining unit. The signed membership evidence included identically worded cards in both paper and electronic formats that clearly identified the applicant union by name. The electronic cards included an audit report detailing all transactions, such as when the card was completed by the applicant, when the initiation fee was paid, when the card was signed by the employee and when it was signed by the organizer. Both the scanned and electronic cards included signed and dated statements certifying that the member had paid the appropriate fee. Further, the cards included signed statements indicating that the fee had been received by the collector. This information was outlined to the Board through the confidential investigation conducted by its Industrial Relations Officer (IRO).

[48] A detailed overview of the process used by the union to process the electronic membership cards was also revealed through the confidential investigation, as follows:

1. The electronic membership card was created for the union using Adobe Sign software. These cards are identical to the physical membership cards used and contain the same mandatory information fields;

2. Organizers provide applicants with a hyperlink to a blank card through the software which is registered to the union;

3. The applicant opens the hyperlink and fills in the mandatory fields (name, date, email address and electronic signature, using Adobe draw to sign);

4. The applicant pays the five-dollar fee electronically using a secure digital payment service provider, in this case, Braintree by PayPal;

5. Payment is made, processed and assigned a unique transaction ID. This transaction ID is dated and time-stamped at the time of payment. An audit trail tracks the name of the card signer, the IP address and the email address. The transaction is recorded as part of the Adobe Digital Audit Trail for each membership card signed;

6. The applicant receives an email from Adobe requesting that they confirm their email identity and their signature;

7. Once the applicant has confirmed their information with Adobe, the organizer receives an autogenerated email with the signed electronic membership card and a hyperlink to allow the organizer to countersign the card using the same Adobe draw function;

8. Once the card has been signed by both the organizer and the applicant, both parties receive an email with the fully completed and signed electronic membership card;

9. The signed electronic membership card is encrypted and cannot be modified;

10. Adobe Sign generates a unique transaction ID for every card, which provides for a digital certificate of authentication;

11. The organizer also receives an autogenerated email with a history of each completed electronic membership card, which acts as the audit trail. The audit trail provides:

1. The date and time that the card was generated by the union;

2. The date and time that the applicant completed the card, signed it and paid their fee and the IP address of the device that the card was signed on;

3. The date and time that the organizer received the signed membership card from the applicant;

4. The date and time that the organizer countersigned the card and the IP address of the device that the card was co-signed on; and

5. The date and time that the email was automatically sent to both the organizer and applicant with the fully signed membership card.

[49] The union provided the Board with copies of the digital payment service provider transaction record associated with each of the electronic cards filed with the application for certification. The audit trail confirms that payment was made within the six-month period immediately before the date on which the application was filed, April 12, 2021.

[50] The Board notes that section 31 of the Regulations does not exclusively set out what evidence would satisfy or meet the requirements of section 28 of the Code. There is nothing in either the Code or the Regulations that precludes the filing of electronic evidence. The provisions of the Code dealing with membership evidence are broad enough to allow electronic membership evidence, provided that the Board can assess the evidence filed with the application.

[51] The acceptance of electronic membership evidence by the Board is the logical next step for the federal labour relations community. The Board continues to use technology to streamline its processes. It now conducts most hearings by way of audio or video teleconferencing to accommodate individuals’ needs, enhance accessibility, achieve efficiency of scheduling or accommodate the impacts of the global pandemic. The Board allows electronic filing of most applications and submissions, which has improved accessibility and efficiency. The Board will accept electronic membership evidence where it can ascertain the reliability of the system used and verify the evidence through rigorous audit trails.

[52] In a recent case before the Ontario Labour Relations Board, Toronto and York Region Labour Council, 2019 CanLII 123094, the subject of the authenticity of electronic membership evidence was reviewed as follows:

14. … these are arguably stronger protections than the traditional membership card in paper form that is usually filed with certification applications. In addition to providing the same information (e.g. name of individual, employer name, date and contact details), the individual is sent an automatic email to verify their identity by clicking on a hyperlink. The organizer is then required to do the same—electronically sign and verify their identity.

15. Importantly, and unlike a paper membership card, the electronic membership card is encrypted and cannot be modified. The software generates a certificate of authenticity. The organizer then receives an email with an “audit trail” containing the dates and times that it was signed and verified by the individual and the organizer.

16. After reviewing the security features of the electronic membership evidence as described by the applicant, the Board is persuaded that the evidence satisfies the requirements of the Act.

[53] In the present matter, the Board was satisfied that the method used to collect electronic membership cards was reliable and verifiable and could be relied upon as a true expression of employee wishes.

c. The Board’s Confidential Investigation

[54] An investigation into the validity of all membership evidence and the manner in which evidence was obtained by the union is undertaken in every application for certification. This is accomplished with confidential interviews conducted by the Board’s IROs, which are then reported to the Board. This approach is well established and has been reviewed in previous Board decisions (see 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).

[55] As a result of concerns expressed by the employer regarding the integrity of the membership evidence in the present application, the Board’s IRO attempted to speak to a majority of the employees who had signed a membership card. The IRO conducted telephone interviews with a significant number of these randomly selected applicants for membership. The results of the investigation did not cause the Board to question the reliability of the membership evidence and confirmed that all payments were received within six months preceding the date of the application.

[56] The Board received submissions from a small number of WestJet employees through its website, through its 1-800 number and by email with queries and information regarding the union’s organizing campaign. The Board took note of these confidential statements and factored them into its investigation. Most individuals who filed a statement had not signed a membership card and the Board remained satisfied that the membership evidence was reliable.

[57] The Board has dealt with concerns in the past regarding the integrity of membership evidence filed by a union. In a case involving this employer, WestJet, an Alberta Partnership, 2015 CIRB 785 (WestJet 785), the Board considered whether membership cards that had been downloaded and mailed with no witness to the signing constituted reliable and valid membership evidence that met the requirements of the Regulations. In that case, the Board stated the following:

[61] The Board is not convinced that the certificate of accuracy filed in this case was falsely completed. Requiring union officials to witness each signature on a membership card and witness the payment of a $5.00 fee would effectively prevent employees spread out across the country and overseas to exercise their right to join a union of their choice. In this case, the union established a process through its website to ensure that employees had the freedom to download, complete and sign a membership card, which was then mailed to the union, and to ensure that employees could make a $5.00 payment through electronic means. These measures were effective in ensuring that the membership evidence filed met the requirements of the Regulations.

[58] As with WestJet 785, supra, the tests used to scrutinize the membership evidence in the present matter allowed the Board to determine that the membership evidence was valid, reliable and sufficient. Further, the Board accepted the Certificate of Accuracy submitted by the union organizer. The Board was convinced that the membership evidence had been collected freely and voluntarily and that it demonstrated majority support for the union, pursuant to section 31(1) of the Regulations.

d. Pressure Tactics and Efforts to Mislead the Membership

[59] The Board’s IRO had full knowledge of the allegations around the membership evidence that were raised by the employer. Consequently, during the confidential interviews, members were thoroughly questioned to determine whether any pressure to sign membership cards had been exerted. Not one member indicated that threats had been made or that any force had been used or threatened by the union or its agents. All members agreed that they had signed the membership card of their own free will and understood the circumstances surrounding the campaign. Accordingly, the employer’s concerns regarding the pressure to sign cards or that employees were in some way misled regarding the intentions behind the scope of the organizing campaign have been dismissed. Further, the Board found that a representation vote to determine the employees’ wishes was unnecessary.

C. Which positions should be included in or excluded from the bargaining unit?

[60] The Code grants the Board the discretion to include employees in or exclude employees from the bargaining unit as follows:

27 (2) In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the Board may include any employees in or exclude any employees from the unit proposed by the trade union.

[61] This question is different from the question of whether someone performs management functions or is employed in a confidential capacity and is therefore excluded from holding employee status under the Code.

[62] Discussions took place between the Board’s Regional Director and the parties in an effort to narrow the issues in dispute, including on the outstanding inclusions in and exclusions from the proposed bargaining unit. The Board’s policy requires an investigating officer to prepare a letter accurately setting out the Board’s understanding of the proposed bargaining unit. Following a May 5, 2021, teleconference between the parties and the Board’s Regional Director, such a letter was sent to the parties for review. The inclusions and exclusions were clearly set out, and the parties were given 24 hours to submit any questions or concerns. The letter specified the understanding that the quality advisor role was to be included in the bargaining unit, that the airport coordinator role was to be excluded from the bargaining unit and that six specific coordinator roles (daily duty, workforce, irregular operations (IROP), turnaround and both airport learning coordinator roles) remained in dispute. On May 6, 2021, both parties confirmed their agreement with the Board’s letter of understanding.

[63] In short, the only coordinator position that the parties agreed was “excluded” was the airport coordinator position. The bargaining unit description that the Board used to issue the interim order was based on this May 5, 2021, letter issued by the Regional Director and the understanding by all parties that the excluded coordinators were distinct from the other disputed coordinator positions.

[64] The employer’s June 3, 2021, submission incorrectly concluded that all coordinators would be excluded from the bargaining unit by definition. This is not the case. The Board captured the parties’ agreement to exclude only the three incumbents in the single airport coordinator position that had been identified in the exclusion table outlined in the Regional Director’s letter of understanding. The remaining 37 employees working in the positions of airport learning coordinator, daily duty coordinator, workforce coordinator, IROP coordinator, turnaround coordinator and coordinator airport learning remained in dispute and required additional submissions from the parties before a final determination would be made by the Board on the final description of the bargaining unit.

[65] Having reviewed the parties’ submissions on these disputed positions, the Board will outline its decision for each position and, in some cases, will group similar positions where its analysis is applicable to more than one position.

1. Airport Learning Coordinator and Coordinator Airport Learning

[66] The employer did not argue that these coordinator positions are managerial in nature or that they should be excluded from the bargaining unit because the incumbents perform managerial functions. The employer also did not argue that the positions involve acting in a confidential capacity in matters relating to industrial relations. It is thus not disputed that the employees holding these positions are “employees” within the meaning of the Code.

[67] The employer submitted that these positions are not engaged in direct frontline service to guests but rather are responsible for the coordination of annual training requirements for employees and the facilitation of on-the-job training. The employer noted that the positions report to the Learning and Development leadership team. In the employer’s view, these positions should also be excluded by definition given that they are either an administrative or employee support role.

[68] The union submitted that these coordinator positions have an integral relationship with other employees working in guest services and noted that they are typically filled by former customer service agents (CSAs) who are promoted from within the group and have demonstrated the ability to provide a high standard of service to guests. Further, the excerpts from the job description that were provided by the union confirm that the incumbents provide regular on-the-job training for guest services employees to ensure standardized frontline support.

[69] The union also provided the Board with a copy of the Terms of Reference for the Airport Employees Association (AEA). The Board notes that the airport learning coordinator and the coordinator airport learning were previously part of the AEA, along with other guest services employees who are now included in the bargaining unit. The Terms of Reference stipulate that the membership of the AEA would work collaboratively with the employer to advocate for matters affecting compensation, scheduling, benefits, policies or working conditions.

[70] The Board is persuaded that these coordinators share a community of interest with the other members of the bargaining unit and have interrelated roles with the guest services group. Although these coordinator positions may not perform frontline duties, the incumbents work in support of the employees in the bargaining unit who do perform such duties. Further, the fact that these positions were included in the AEA demonstrates to the Board that they are governed by similar terms and conditions of employment.

[71] Accordingly, it is the Board’s decision that the positions of airport learning coordinator and coordinator airport learning are to be included in the bargaining unit.

2. Daily Duty Coordinators, IROP Coordinator and Workforce Coordinators

[72] The employer did not argue that these coordinator positions perform managerial duties or that they should be excluded from the bargaining unit. The employer also did not argue that these positions involve acting in a confidential capacity in matters relating to industrial relations. It is thus not disputed that the employees holding these positions are “employees” within the meaning of the Code.

[73] The employer submitted that the daily duty coordinators engage in assigning daily duties for members of guest services (the CSAs). The IROP coordinators are responsible for responding to irregular operational activity and in doing so must advise guest services lead staff of contingency plans for the delivery of service. The workforce coordinators reconcile work schedules at the end of averaging periods to oversee and coordinate overtime scheduling.

[74] The employer submitted that the daily duty, IROP and workforce coordinator positions are not roles that require employees to engage in frontline guest services support. Further, the employer submitted that all three coordinator positions are considered to be either administrative or employee support functions. For these reasons, the employer argues that the positions should be excluded from the bargaining unit.

[75] The union submitted that these three coordinator positions have an integral relationship with employees in guest services who are members of the bargaining unit. It noted that the positions are typically filled by former CSAs who have knowledge of the role, and all were part of the AEA.

[76] The Board is persuaded that these three coordinator positions share a community of interest with the other members of the bargaining unit. The daily duty coordinator’s responsibility to assign duties is essentially a scheduling function and, in this instance, is performed in support of the employees in the bargaining unit. The IROP coordinator’s role as a technical expert regarding specific partner airline agreements and active assistance to the frontline employees with escalated technical assistance, guidance and support is a demonstration of the interrelationship of this position with guest services employees. The workforce coordinator’s role in creating, adjusting and reconciling work schedules for frontline staff to ensure that the staffing needs of the guest services employees are met is also an integrated and supportive function to those employees covered by the bargaining unit.

3. Turnaround Coordinator

[77] The employer submitted that these coordinators have managerial responsibilities and should primarily be excluded from the bargaining unit on that basis. It stated that the position supports other managers, called zone managers, by managing “flight turns” and, in doing so, must coordinate resources in both the “above the wing” and “below the wing” roles. Further, the employer emphasizes that incumbents in this role are not directly involved in guest services and do not provide frontline guest services support.

[78] The employer submitted that the position should also be excluded because, in addition to its managerial role, it is considered an administrative or employee support function.

[79] The union noted that there is integration between these coordinators and all operational partners, including guest services, for issues arising when an aircraft is offloaded and boarded while at the airport for turnaround.

[80] The basis of the exclusion of management persons from a bargaining unit is the avoidance of conflicts of interest for those persons with the employer and the union. The conflict of interest arises given management’s authority to dismiss or discipline fellow employees. It is for this reason that managers are denied collective bargaining rights granted to other employees. In order for an employee to be a considered a manager and to therefore be excluded from employee status under the Code, they must have real or final decision-making powers impacting the employment of other employees (see Island Telephone Company Limited (1990), 81 di 126 (CLRB no. 811)).

[81] In this case, the employer has not submitted any evidence to demonstrate that the incumbents in the turnaround coordinator position exercise any authority over hiring, discipline or termination or any broader operational or strategic responsibilities that would necessitate their exclusion based on managerial status. Further, like the other coordinators discussed in this decision, these coordinators were also included in the AEA. The Board is persuaded that these coordinators also have a community of interest with the other employees in the bargaining unit given their interrelated roles with guest services.

[82] Accordingly, it is the Board’s decision that the turnaround coordinators are to be included in the bargaining unit.

III. Conclusion

[83] For all of the above reasons, the Board determined that the union had satisfied the statutory requirements under section 28 of the Code and that it therefore had no discretion but to certify the applicant union as the bargaining agent of the employees in the unit described herein.

[84] The final certification order, which reflects this decision, is attached.

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

	____________________ Ginette Brazeau Chairperson
____________________ Elizabeth Cameron Member		____________________ Paul Moist Member