A-907-96
MONTRÉAL, QUEBEC, THE 15TH DAY OF SEPTEMBER, 1997
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: QUÉBEC-TÉLÉPHONE, |
Applicant
| SYNDICAT DES AGENTS DE MAÎTRISE DE QUÉBEC-TÉLÉPHONE, |
Respondent
J U D G M E N T
| The application for judicial review is dismissed. |
Certified true translation
Christiane Delon
A-17-97
MONTRÉAL, QUEBEC, THE 15TH DAY OF SEPTEMBER, 1997
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
| BETWEEN: QUÉBEC-TÉLÉPHONE, |
Applicant
| SYNDICAT DES AGENTS DE MAÎTRISE DE QUÉBEC-TÉLÉPHONE, |
Respondent
J U D G M E N T
| The application for judicial review is dismissed. |
Certified true translation
Christiane Delon
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
A-907-96
QUÉBEC-TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
____________________________________________________________
A-17-97
BETWEEN:
QUÉBEC TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
Hearing held in Montréal, Quebec, Monday, September 15, 1997.
Judgment rendered at the hearing, Monday, September 15, 1997.
REASONS FOR JUDGMENT OF THE COURT BY: MARCEAU J.A.
| CORAM: THE HONOURABLE MR. JUSTICE MARCEAU |
| THE HONOURABLE MR. JUSTICE MacGUIGAN |
| THE HONOURABLE MADAM JUSTICE DESJARDINS |
A-907-96
QUÉBEC-TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
____________________________________________________________
A-17-97
BETWEEN:
QUÉBEC TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal, Quebec,
Monday, September 15, 1997)
MARCEAU J.A.
We think it is unnecessary to continue further with the hearing of this application for judicial review. These two decisions rendered by the Canada Labour Relations Board on the application for certification of the respondent Union, covering certain employees of the applicant telephone company, are now immune from any possible criticism by this Court, in our opinion.
Neither the initial decision of October 24, 1996 (No. 1186) which, rendered under the Canada Labour Code, combined within a single bargaining unit to be represented by the respondent the 305 first-line supervisors and 84 first-line managers, excluding however the second-line managers, nor the second decision, which dismissed an application for review filed under section 18 of the Code, are in our opinion tainted by any error that might go to the jurisdiction of the Board or involve some principle of natural justice or procedural fairness, as required under the privative clause in section 22 of the Code.
Indeed, we have come to the conclusion that, considered and analyzed through the opaque prism imposed by the standard of review of decisions of the Board, as defined by a consistent line of cases,1 that is, in practice, a virtual absence of rationality, none of the applicant"s arguments in opposition to the two decisions is convincing to us.
The applicant argues in opposition to the first decision that, by combining within a single bargaining unit the first-line managers and the first-line supervisors, without ascertaining that a majority of the managers wanted this, the Board acted, first, in disregard of the history of employer-union relations between the parties, second, in violation of its own case law with respect to dual majorities when combining one group of employees with another, and, third, without regard for the risk that the presence among the managers of eight supervisors of the front-line supervisors might present to industrial peace.
None of these criticisms is sufficient or even substantiated, in our opinion. It is true that the respondent union had, since 1970, represented only the first-line supervisors, the inclusion of the first- and second-line managers having been denied them. But that was under the authority of the Quebec Labour Code, prior to the Supreme Court of Canada decision in Téléphone Guèvremont Inc. v. Quebec (Régie des télécommunications)2 forced a realignment in regard to jurisdictional authority. The federal legislation under which the Board acted is much less restrictive than the Quebec legislation in regard to the possibility of combining managers with subordinates in so far as all are recognized as employees and there is a sufficient community of interest among them.3 Past practice was no guide.
It is true as well that the Board has developed a dual-majority policy as a precondition to combining on its own authority one group of employees with another, in order to prevent a union from thereby contravening the certification process and the principle that representation rights must not be obtained to the detriment of the employees" wishes.4 But this rule of practice operates in the context of an application under section 18 of the Code, when the issue is one of revising the parameters of an existing unit, and not in the case of a first application for certification, which is the case here since the Board is exercising its jurisdiction for the first time.5 These are the governing principles in deciding on the creation and composition of bargaining units as is, of course, the duty to confirm the agreement of the overall majority, which is not at issue in the case at bar.
Finally, it is true that a number of the assistant supervisors have a relatively direct authority over the agents" operations. But the Board"s attention was drawn to this matter and it resolved it with all due caution. In its opinion, the role of these supervisors is not one of management within the meaning of the Code, and there is no reason to anticipate possible conflicts resulting from the exercise of their authority that might give rise to disciplinary grievances. In the last analysis, what is at issue is the Board"s jurisdiction to determine an appropriate bargaining unit, and this jurisdiction has consistently been regarded as virtually sacrosanct by the Supreme Court.6
In opposition to the second decision, by which the Board expresses, through the voice of its Registrar, its refusal to contemplate any reconsideration of the decision in plenary session, the applicant argues that the reason given, namely, that the alleged errors of law should have been raised at first instance, is so unacceptable that it can be inferred as an outright refusal to exercise its jurisdiction. In the first place, this is not an imposed jurisdiction but a discretionary authority, for the exercise of which the Board has adopted a firm policy. Secondly, while the reason given by the Registrar is expressed somewhat equivocally, this cannot be the basis for judicial review. The points of law relied on in support of the application for review were related, we were told, to a lack of respect for the background, a failure to consult the supervisors, the danger to industrial peace. Those are issues that were clearly before the Board at first instance. The Board members who heard and considered the application for review were fully entitled to think that the requisite conditions for the exercise of this power of review, an exceptional power which, absent any allegation of new facts, ought to be exercised with care and for cause, did not exist. If there is any area in which the Board"s discretion must remain impervious to the intervention of this Court, it is that.
The two applications for judicial review will therefore be dismissed.
Certified true translation
Christiane Delon
FEDERAL COURT OF APPEAL
A-907-96
QUÉBEC-TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
_________________________________________
A-17-97
BETWEEN:
QUÉBEC TÉLÉPHONE,
Applicant
- and -
SYNDICAT DES AGENTS DE MAÎTRISE
DE QUÉBEC-TÉLÉPHONE,
Respondent
REASONS FOR JUDGMENT
OF THE COURT
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
|
| STYLE:Québec-Téléphone v. Syndicat des agents de maîtrise |
|
| PLACE OF HEARING:Montréal, Quebec |
|
| DATE OF HEARING:September 15, 1997 |
|
| REASONS FOR JUDGMENT OF THE COURT: (Marceau, MacGuigan & Desjardins, JJ.A.) |
|
| RENDERED AT THE HEARING BY: Marceau J.A. |
|
| Jean-François DolbecFOR THE APPLICANT |
|
| Yves MorinFOR THE RESPONDENT |
|
| Maryse TremblayFOR THE INTERVENOR |
|
| Rimouski, QuebecFOR THE APPLICANT |
|
| Lamoureux, Morin, Lamoureux |
|
| Longueuil, QuebecFOR THE RESPONDENT |
|
| Canada Labour Relations Board |
|
| Ottawa, OntarioFOR THE INTERVENOR |
|
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
|
| STYLE:Québec-Téléphone v. Syndicat des agents de maîtrise |
|
| PLACE OF HEARING:Montréal, Quebec |
|
| DATE OF HEARING:September 15, 1997 |
|
| REASONS FOR JUDGMENT OF THE COURT: (Marceau, MacGuigan & Desjardins, JJ.A.) |
|
| RENDERED AT THE HEARING BY: Marceau J.A. |
|
| Jean-François DolbecFOR THE APPLICANT |
|
| Yves MorinFOR THE RESPONDENT |
|
| Maryse TremblayFOR THE INTERVENOR |
|
| Rimouski, QuebecFOR THE APPLICANT |
|
| Lamoureux, Morin, Lamoureux |
|
| Longueuil, QuebecFOR THE RESPONDENT |
|
| Canada Labour Relations Board |
|
| Ottawa, OntarioFOR THE INTERVENOR |
|
__________________
1 See in particular [1977] 1 S.C.R. 722">Re C.L.R.B. and Transair Limited, [1977] 1 S.C.R. 722; International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; Royal Oak Mines Inc. v. Canada, [1996] 1 S.C.R. 369; Canadian Broadcasting Corporation v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941.
2 [1994] 1 S.C.R. 878.
3 See the comments by Gagnon, Le Bel and Verge on this point in Droit du travail (Québec: Presses de l"Université Laval, 1991), at p. 410.
4 See New Brunswick Broadcasting Co. Limited (1988), 75 DI 101 (CLRB No. 711).
5 See the Board"s notes in its decision, Canadian Overseas Telecommunications Union and Teleglobe Canada et al. (1979), 32 DI 270. See also Sunwapta Broadcasting Ltd. (1981), 43 DI 218 (CLRB No. 309); AGT Limited (1992), 90 DI 195 (CLRB No. 984); Claude Latrémouille v. Canada Labour Relations Board et al. (F.C.A.), unreported decision of Pratte J.A., January 22, 1985, file numbers A-445-82, A-467-82 and A-725-82.
6 See, more recently, the judgment in International Longshoremen"s and Warehousemen"s Union Local 514 v. Prince Rupert Grain Ltd., supra.
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