Date: 20090212
Docket: A-50-09
Citation: 2009 FCA 44
Present: RICHARD
C.J.
BETWEEN:
TEAMSTERS LOCAL UNION 847
Moving Party
(Applicant)
and
CANADIAN AIRPORT WORKERS UNION
Respondent on the Motion
(Respondent)
and
GARDA SECURITY SCREENING INC.
Respondent on the Motion
(Respondent)
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario, on February 12, 2009)
RICHARD C.J.
[1]
Teamsters
Local Union 847 (Teamsters 847) brings this motion to stay the decisions of the
Canada Industrial Relations Board (CIRB or Board) dated January 23 and 30,
2009. In particular, it seeks to stay a CIRB-ordered representation vote until
this Court hears and determines its application for judicial review in this
matter.
[2]
This
motion and judicial review application arise in the context of an application
made in October 2008 by the respondent, Canadian Airport Workers Union (CAWU).
CAWU seeking to displace Teamsters 847 as the bargaining agent for a unit of
employees of Garda Security Screening Inc. (Garda).
[3]
Teamsters
847 represents a bargaining unit of employees employed by the respondent Garda,
who provide security services at airports in the greater Toronto area.
[4]
Teamsters
847 and Garda are parties to a collective agreement effective from April 1, 2004 to March 31, 2009.
[5]
In October
2008, CAWU made an application for certification to represent employees in this
bargaining unit pursuant to section 24 of the Canada Labour Code (Code).
[6]
CAWU had
made a similar application a year earlier, in 2007. Its application was
dismissed by the CIRB on the basis that the CAWU had not demonstrated adequate
support to justify a representation vote.
[7]
Pursuant
to subsection 24(2) of the Code, a union may seek certification of a bargaining
unit represented by another union in which a collective agreement is in place.
However, the union seeking to displace the current union must demonstrate that
a majority of the employees in the bargaining unit wish to have the other union
represent them. It must do so by filing with the CIRB evidence that a majority
of members:
(i)
have
signed an application for membership in the union; and
(ii)
have paid at
least $5 to the other union in the six month period prior to the filing of the
certification application.
[8]
The
responsible union official is also required to sign a statement attesting to
the accuracy of the evidence provided to the Board.
[9]
Pursuant
to subsection 29(1) of the Code, the CIRB may order that a representation vote
be taken among the employees in the bargaining unit. The Board will order a
vote if the union seeking to displace the current one can demonstrate that it
has the support of 50% + 1 of the members of the bargaining unit through the
filing of membership cards and the paying of $5 in dues to the union.
[10]
Teamsters
847 responded to CAWU’s application by seeking an order dismissing the
application without a hearing and without a vote. Teamsters 847 submitted that
the CAWU lacked membership support for the application and that the application
was based on false information and evidence.
[11]
Following
a lengthy investigation by a senior CIRB Officer, the CIRB issued a decision on
January 23, 2009, ordering that, notwithstanding the allegations raised by the Teamsters
847, a representation vote be scheduled in this matter.
[12]
In its January 23, 2009 decision (Document No.:
260598), the Board ruled as follows:
Following
investigation of the above-cited application and consideration of the
submissions of the parties concerned, the Board, composed of Ms. Elizabeth
MacPherson, Chairperson, and Messrs. André Lecavalier and Daniel Charbonneau,
Members, has ordered that a representation vote be taken pursuant to section
29(1) of the Canada Labour Code (Part I – Industrial Relations)
among the employees in the bargaining unit described hereunder in order to
ascertain whether the employees wish to continue to be represented by
Teamsters, Local Union 847, or by the Canadian Airport Workers Union.
The Board
directed that the voting unit comprise:
“All
employees of Garda Security Screening Inc. providing pre-board security
screening services under the CATSA contract at Pearson International Airport,
Buttonville Airport and Toronto City Centre Airport, excluding dispatchers,
terminal supervisors and those above the rank of terminal supervisors.”
Employees
eligible to cast a ballot are those employees employed by the employer as at November
10, 2008, and who remain so employed on the day of the vote. Mr. Peter Suchanek,
Regional Director (Registrar) – Ontario Region, Canada Industrial Relations
Board, has been appointed Returning Officer to supervise the vote. He will
communicate with you in the near future.
[13]
On January
28, Teamsters 847 requested the Board to reconsider its decision of January 23, 2009 that a representation vote be
held.
[14]
Teamsters
847 alleged that in over 50 cases, members of the bargaining unit who signed a
membership application with the CAWU were not asked to pay a membership fee.
[15]
In its January 30, 2009 decision (CIRB Letter
Decision No. 2055), the Board ruled as follows:
The Canada
Industrial Relations Board (the Board), composed of Ms. Elizabeth MacPherson,
Chairperson, and Messrs. Daniel Charbonneau and André Lecavalier, Members, has
considered the above-noted application.
The Teamsters
Local Union 847 (Teamsters 847) is the incumbent bargaining agent for a
bargaining unit of employees of Garda Security Screening Inc. (Garda or the
employer) who provide pre-board security screening services under the Canadian
Air Transportation Security Agency (CATSA) contract at the Lester B. Pearson
International Airport, Buttonville Airport and Toronto City Centre Airport. On
November 10, 2008, the Canadian Airport Workers Union (CAWU) filed a timely
application for certification to replace Teamsters 847 as the bargaining agent
for this unit.
On January
23, 2009, the Board ordered that a vote be conducted to determine whether the
employees in the unit wish to continue to be represented by Teamsters 847, or
by the CAWU.
On January
28, 2009, Teamsters 847 filed an application under section 18 of the Canada Labour Code
(Part I – Industrial Relations) (the Code), requesting that the
Board reconsider its decision to order a representation vote. In support of
this request, Teamsters 847 alleged that the membership evidence relied upon by
the CAWU was fraudulent, and referred to the evidence of some fifty-two members
of the bargaining unit that had been supplied to the Board. The union relied on
Board jurisprudence which it claims stands for the proposition that any
evidence of fraud is sufficient grounds for dismissal of an application for
certification.
The Board
recently had occasion to canvass the extent of its powers and obligations with
respect to membership evidence in certification applications in Canada Post
Corporation, (2009), as yet unreported CIRB decision no. 438. Section 28 of
the Code directs the Board to satisfy itself that a majority of
employees in the unit wish to have the trade union represent them as their
bargaining agent. The Board is given wide latitude in determining how it will
satisfy itself of this fact. When the Board proposes to certify a bargaining
agent on the basis of signed membership cards, it is critically important that
the membership evidence be accurate and reliable. The standard required for
membership evidence in such cases is an extremely high one.
However, the
Board is also entitled to satisfy itself as to the employees’ wishes on the
basis of a representation vote. It has been the Board’s practice to order
representation votes in almost all cases in which one bargaining agent seeks to
displace another. In order to persuade the Board to order a representation vote
in a displacement situation, the applicant must demonstrate to the Board that
it has the support of more than 50% of the members of the bargaining unit. An
applicant may meet this requirement by submitting a sufficient number of signed
membership cards, and evidence of the payment by the individual of at least
$5.00 in union dues within the previous six months.
In the
instant case, despite discounting all of the membership cards disputed by
Teamsters 847, the applicant still has demonstrated to the Board’s
satisfaction that it has sufficient support to warrant providing the members of
the bargaining unit with an opportunity to express their wishes by means of a
representation vote.
Accordingly,
the application by Teamsters 847 under section 18 of the Code is denied
and the returning officer is directed to proceed with the representation vote
that was ordered on January 23, 2009 without further delay.
[16]
As a
result, the Board has determined that a representation vote will be held on
February 15, 16, 17, 18 and 19, 2009.
[17]
The
employees in the bargaining unit have been informed that the representation
vote will take place beginning on February 15, 2009.
[18]
By notice
of application dated February 2, 2009, Teamsters 847 applied for judicial
review in respect of the decisions of the Board dated January 30, 2009 and
January 23, 2009 alleging an error of law and a denial of natural justice.
[19]
In
bringing this motion, Teamsters 847 wishes to stay the decisions of the Board
dated January 23 and 30, 2009 until the disposition of the application for
judicial review.
[20]
The
Supreme Court of Canada has established a three part test to determine whether
a stay should be granted in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311. The applicants must show: 1) that there is a serious
question to be tried; 2) that irreparable harm will be suffered by the
applicants if the stay is not granted; and 3) that the balance of inconvenience
favours the granting of a stay.
[21]
Each stage
of this test must be satisfied by Teamsters 847, and the analysis must occur in
proper sequence. Thus, Teamsters 847 must first show a serious question to be
tried. Teamsters 847 must then show irreparable harm. It is only after having
satisfied the first two stages that the analysis moves to the balance of
convenience.
[22]
For the
following reasons, I have concluded that Teamsters 847 have not satisfied the
three part test to determine whether a stay or interim relief should be
granted.
[23]
As a
preliminary matter, I would note that the CIRB decisions at issue in the
underlying judicial review application are not final rulings on the merits of
the CAWU’s application for certification. Rather, they are interlocutory
decisions within an application for certification. An order for a
representation vote cannot finally dispose of a successful certification
application, as the Code mandates certification through an order of the CIRB.
Similarly, should a certification application be found to be unsuccessful, the
CIRB issues a final decision to this effect, dismissing the application. The
unfair labour practice complaint made by Teamsters 847 remains outstanding and
will also require adjudication by the CIRB.
[24]
Furthermore,
the decisions under review in the instant application are within the statutory
jurisdiction of the CIRB. The CIRB enjoys the express statutory authority,
under subparagraph 16(i) of the Canada Labour Code, to order a representation
vote at any time prior to the final disposition of the proceeding. Also,
section 16.1 of the Code specifically empowers the Board to decide any
matter before it without holding an oral hearing.
[25]
The
threshold to be met in order to satisfy the test of a serious question to be
tried is a low one. Therefore, I will proceed on the basis that the grounds
raised by Teamsters 847 are not vexatious or frivolous. However, I express no
opinion on their likelihood of success.
[26]
Accordingly,
I will proceed to consider the second and third parts of the test.
[27]
The second
stage of the test is irreparable harm. At this stage of the analysis, the only
issue to be decided is whether a refusal to grant relief could so adversely
affect Teamsters 847’s own interests that the harm could not be remedied if the
eventual decision on the merits does not accord with the result of the
interlocutory application (RJR-MacDonald Inc., supra at para. 58).
[28]
Further, Teamsters
847 must prove that actual harm will be suffered if the stay is not granted. It
is not sufficient for Teamsters 847 to allege hypothetical or speculative harm.
[29]
The need
for an applicant to conclusively prove irreparable harm that is not
speculative, but “will occur”, was clearly confirmed by this Court in Canada (Attorney General) v. Canada
(Information Commissioner),
2001 FCA 25, when it held (at para. 12):
… the fact
that irreparable harm may arguably arise does not establish
irreparable harm. What the respondents had to prove, on a balance of
probabilities, is that irreparable harm would result from compliance
with the subpoena issued on behalf of the Commissioner (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79
(S.C.C.), [1987] 1 S.C.R. 110 at para. 35). The alleged harm may not be
speculative or hypothetical (Imperial Chemical Industries PLC v. Apotex
Inc., [1990] 1 F.C. 211 (C.A.)) [emphasis added].
[30]
Teamsters 847
has not produced sufficient evidence of irreparable harm. The evidence before
the Court is opinion evidence of an individual outside the bargaining unit
speculating as to how certain actions have and will be perceived within the
bargaining unit.
[31]
The
availability of ongoing remedies to Teamsters 847, through the CIRB, for any
harm suffered due to intimidation or fraud is a factor which precludes any
finding of irreparable harm. Teamsters 847 continues to seek relief from the
CIRB. As recently as February 6, 2009, Teamsters 847 has sought
to file additional unfair labour practice allegations for which the CIRB may grant
a remedy.
[32]
Teamsters 847
asserts that there may be confusion by certain members of the bargaining unit
should the CIRB process continue and this would constitute irreparable harm.
This assertion is wholly speculative. Parliament has enacted a system of labour
relations whereby a democratic process, a secret representation vote, can be
utilized in order to clarify the wishes of members of a bargaining unit.
[33]
It is
clear from the Board’s unanimous decision that it wishes to provide the members
of the bargaining unit with an opportunity to express their wishes by means of
a representation vote.
[34]
The third
test to be applied in an application for interlocutory relief is a
determination of which of the two parties will suffer the greater inconvenience
from the granting or refusal of the stay pending a decision on the merits.
[35]
A strong
public interest exists in having CIRB proceedings go forward as expeditiously
as possible. This interest outweighs Teamsters 847’s interest in having the
matter stayed. The CIRB has ordered an election scheduled to proceed between
February 15 and 19, 2009. This election has been scheduled according to the
CIRB’s normal practices and procedures. All bargaining unit members have been
advised of the dates and locations for balloting by the CIRB.
[36]
In my
view, the balance of inconvenience does not favour a stay.
[37]
Accordingly,
the motion for a stay will be dismissed with costs.
“J. Richard”
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