Canadian Union of Public Employees, Airline Division, Canadian Airlines Component v. Canadian Union of Public Employees, Airline Division, Air Canada Component, 2006 FCA 10

Date: 20060110

Docket: A-215-04

Citation: 2006 FCA 10

CORAM:        DÉCARY J.A.

                        SEXTON J.A.                        

                        EVANS J.A.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE DIVISION, CANADIAN AIRLINES COMPONENT (hereinafter "CUPE CAC")

Applicants

and

CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE DIVISION, AIR CANADACOMPONENT and AIR CANADA

Respondents

Heard at Toronto, Ontario, on January 10, 2006.

Judgment delivered from the Bench at Toronto, Ontario on January 10, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                     SEXTON J.A.

Date: 20060110

Docket: A-215-04

Citation: 2006 FCA 10

CORAM:        DÉCARY J.A.

                        SEXTON J.A.                        

                        EVANS J.A.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE DIVISION, CANADIAN AIRLINES COMPONENT (hereinafter "CUPE CAC")

Applicants

and

CANADIAN UNIONOF PUBLIC EMPLOYEES, AIRLINE DIVISION, AIR CANADACOMPONENT and AIR CANADA

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on January 10, 2006).

[1]                This is an application for a judicial review of a decision of the Canada Industrial Relations Board (the "Board") which dismissed an application for reconsideration by the Canadian Union of Public Employees, Airline Division, Canadian Airline Component (CUPE-CAC) who had requested rescission of a Board order dated June 4, 2003. That Order gave effect to the arbitration awards of Arbitrator Kevin Burkett who had determined the seniority integration of all cabin personnel at Air Canada following the Board's determination that a single consolidated cabin personnel unit was the appropriate unit for collective bargaining as a result of the merger of Air Canada and Canadian Airlines International Ltd.

[2]                The Applicants' main argument was that the Board should have intervened because the Arbitrator failed to implement a policy of the Airline Division of CUPE which provided for a seniority list established by date of hire in the event of future airline mergers.

[3]                We agree with the Board when it said that "Arbitrator Burkett took the view that while CUPE's seniority policy created a presumption in favour of a date of hire integration, it also, mandated a fair and equitable result, and that in the circumstances of the facts before him, the policy was at variance with this result. ... The policies of the Airline Division do not bind the Arbitrator and it was within his discretion to consider the policy and reject it based on appropriate labour relations principles".

[4]                The Applicant also argued that the Board erred in finding that it had no jurisdiction to reconsider the arbitration award. Although parts of the reasons for decision unfortunately create the impression that the Board was refusing to reconsider, when the Board's reasons are read in their entirety, it is apparent that the Board did conduct a reconsideration by addressing the arguments raised by the Applicants.

[5]                The Board and the Arbitrator have great expertise in the labour relations area. It is obvious from the thoughtful reasons of the Arbitrator that he carefully considered the submissions of the parties and then crafted an integration policy which he felt was both fair and equitable. We are unable to conclude that the Board erred in declining to interfere with the decision of the Arbitrator.

[6]                It was not patently unreasonable for either the Arbitrator or the Board to conclude on the facts of this dispute that it would be inconsistent with principles of fairness and equity to slavishly apply the policy.

[7]                In light of our conclusion, on the merits, it is not necessary to deal with the Applicants' request for continued dues deductions from CUPE-CAC members.

[8]                In spite of the able submissions for the Applicants the Application shall be dismissed with costs.   

"J. Edgar Sexton"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-215-04

STYLE OF CAUSE:                           CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE DIVISION, CANADIAN AIRLINES COMPONENT (hereinafter "CUPE CAC")

Applicants

and

CANADIAN UNION OF PUBLIC EMPLOYEES, AIRLINE DIVISION, AIR CANADA COMPONENT and AIR CANADA

Respondents

DATE OF HEARING:                       JANUARY 10, 2006

PLACE OF HEARING:                     TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:                       (DÉCARY, SEXTON, EVANS JJ.A.)

DELIVERED FROM THE

BENCH BY:                                     SEXTON J.A.

APPEARANCES:

J. Kenneth McEwan                                          For the Applicants

Beth Symes                                                       For the Respondent Air Canada

Amy Brittan-Cox                                               Component

Douglas Wray                                      For the Respondent Canadian                                                                                                                           Union of Public Employees

SOLICITORS OF RECORD:

Farris, Vaughan, Wills & Murphy LLP For the Applicants

Vancouver, B.C.

Eberts Symes Street, Pinto & Jull                       For the Respondent Air Canada Toronto, Ont.                                                                           Component

Calley Wray                                                      For the Respondent Canadian

Toronto, Ont.                                                    Union of Public Employees

Fasken Martineau                                              For the Respondent Air Canada

Vancouver, B.C.