Date: 20100120
Dockets: A-579-08
A-110-09
Citation: 2010 FCA 19
CORAM: BLAIS
C.J.
LÉTOURNEAU
J.A.
NOËL
J.A.
BETWEEN:
CANADA POST CORPORATION
Applicant
and
CANADIAN UNION OF POSTAL WORKERS
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on January 20, 2010.)
NOËL J.A.
[1]
These are
two applications for judicial review in respect of a decision dated October 21,
2008 of the Canada Industrial Relations Board (the Board) certifying the
Canadian Union of Postal Workers (the respondent union) as a bargaining agent
for a unit comprising “all employees of Canada Post Corporation exercising the
function of delivery of mail on rural and suburban services routes, excluding
supervisors and those above”.
[2]
On
January 29, 2009, the Board issued Reasons for Order (the Reasons) at the
request of the Canada Post Corporation (the applicant) wherein the Board
explained that membership cards signed many years before the date of the
application for certification and the consistent payment of union dues by
employees under a voluntarily recognized collective agreement satisfied the
provisions of sections 30 and 31 of the Canada Industrial Relations Board
Regulations, 2001, SOR/2001-520 (the Regulations) and constitute
valid evidence that the employees wished to have the respondent union represent
them. The Board also dismissed the applicant’s application for reconsideration
of the order and declined to amend the bargaining unit description to reflect
the agreement reached by the parties in 2003 as to the scope of the appropriate
bargaining unit.
[3]
The first
judicial review application was brought against the original decision granting,
without reasons, the application for certification brought by the respondent
union (A-579-08). The second judicial review application was brought against
the decision of January 29, 2009, wherein the Board declined to reconsider its
earlier decision, and provided reasons for allowing the respondent’s
application (A-110-09).
[4]
By order
dated April 23, 2009, the two judicial review applications were consolidated,
file A-579-08 being designated as the lead file. In conformity with this order,
these reasons dispose of both applications, the original being filed in
A-579-08 and a copy thereof in file A-110-09.
[5]
As a
preliminary matter, the
respondent submits that pursuant to subsection 22(1) of the Canada Labour
Code, R.S.C. 1985, c. L-2 (the Code) and subsection 18.1(4) of the Federal
Courts Act, R.S.C. 1985, c. F-7, judicial review of the Board’s decision
does not extend to errors of law. In light of the fact that the errors alleged
by the applicant in the respective Notices of Application constitute errors of
law, the respondent submits that the judicial review applications should be
summarily dismissed on this basis.
[6]
It is not
necessary to address this issue because even if the errors alleged to have been
committed are properly subject to review, it has not been shown that our
intervention would be warranted.
[7]
The
attack against the decision of the Board boils down to this: it was not
reasonable for the Board to rely on union membership cards signed many months,
even years, before the date of the application to establish the employees’
wishes to adhere to the respondent union. In the same vein, it was not
reasonable for the Board to rely on the payment of union dues since the
employees were bound to make such payment regardless of their wish to adhere or
not to adhere to the respondent union. The applicant argues that is
particularly so when regard is had to section 31 of the Regulations.
[8]
As to the
first argument, paragraph 28(c) of the Code provides the Board with the
discretion to determine the employees’ wish to have the trade union represent
them “as of the date of filing of the application, or as of such other date as
the Board considers appropriate …”. It follows that there is no temporal
limitation imposed on the Board in assessing the intention of the employees. In
this respect the Board said (Reasons, para. 26):
With respect to the age of some of the membership cards,
the Board determined that the wording of section 31(1)(a) of the Regulations
does not impose a temporal limitation on the validity of membership
applications, as does section 31(1)(b). Accordingly, the Board found that there
is no constraint on its ability to accept the membership applications submitted
by the union. While the Board would ordinarily prefer that membership
applications be relatively recent, in the exceptional circumstances of this
case, where the union organized the mail contractors, filed an application with
the Board and then reached an agreement with the employer for voluntary
recognition, the Board is prepared to find that the membership applications
submitted by the union are still valid and may be used as evidence to
demonstrate employees’ wishes for the purpose of section 28 of the Code. The
fact that the employer confirmed in 2003 that CUPW had satisfied it that the
union had majority support, coupled with the fact that the Board received no
representations whatsoever from any of the members of the proposed bargaining
unit, despite the fact that notice of the application was posted in each
workplace for the requisite period of time, supports the Board’s conclusion
that the employees continue to wish to be represented by the union.
[9]
This
conclusion has not been shown to be unreasonable.
[10]
As to the
second argument, the Board noted that the types of admissible evidence, as to
the wish of employees to join a particular trade union, set out in article 31
of the Regulations, are not exhaustive. According to the Board they do not
limit the evidence that the Board may consider in assessing the wishes of the
employees (Reasons, para. 28):
The Board is given considerable latitude as to how it
determines employee wishes, and the provisions of section 31 of the Regulations,
while providing examples of acceptable evidence, do not limit the Board’s
latitude in this regard. In St. Croix Stevedores and Affiliates, supra,
the Board conducted an extensive analysis of its discretion with respect to
determining employee wishes and indicated that the evidence of ongoing
membership and continuous payment of membership dues by means of dues check-off
can be appropriate evidence of employee wishes.
[11]
The Board
went on to hold (Reasons, para. 29):
Given the exceptional circumstances of this case, including
the fact that the union had already demonstrated that a majority of employees
in the bargaining unit wished to be represented by the union in 2003, withdrew
its original certification application after concluding a voluntary recognition
agreement with the employer and entered into a collective agreement that was
ratified by the employees, the Board was satisfied that, in this case, the
evidence of the payment to the union by means of a check-off provision in the
collective agreement was acceptable as membership evidence. The Board therefore
determined that the membership evidence demonstrated that a majority of the
employees in the bargaining unit wish to be represented by the union.
[12]
Again,
this conclusion has not been shown to be unreasonable.
[13]
Finally, with respect
to the Board’s refusal to describe the bargaining unit by reference to the
agreement reached in 2003, the Board properly notes that it is not limited by
the description of the proposed unit contained in a union’s application for
certification nor is it bound by any agreement between the parties (Reasons,
para. 20). The Board has explained extensively why it chose not to reproduce
the wording of the agreement in certifying the bargaining unit (Reasons, paras.
21 to 24). We can detect no error in this regard.
[14]
Both
judicial review applications will be dismissed with one set of costs in file
A-579-08.
“Marc
Noël”
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