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A-14-79
Canadian Union of Professional and Technical Employees (Applicant)
v.
The Queen as represented by the Treasury Board (Respondent)
Court of Appeal, Urie, Ryan and Le Dain JJ.— Ottawa, April 10 and 12, 1979.
Judicial review — Public Service — Public Service Staff Relations Board decision holding strike unlawful — Bargain ing agent replaced — Both agents had adopted referral to conciliation board for resolution of disputes — Bargaining unit had completed conciliation process and had the right to legally strike before it changed its bargaining agent — Wheth er or not, where the unit is unchanged, the Board was correct in holding that the applicant and employer must complete the negotiation/conciliation process before the employees could lawfully strike — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 101(2)(b)(i).
This is a section 28 application to review and set aside a decision of the Public Service Staff Relations Board that held that a strike by the Aircraft Operations Group, and authorized by CUPTE, was unlawful. CUPTE replaced PIPS as bargain ing agent for that group and adopted the same process of dispute resolution—referral to a conciliation board. While PIPS represented the group, a conciliation board was estab lished and presented its report; the group's employees were in a lawful position to strike after the lapse of seven days of receipt of the report. CUPTE believed that the employees in the bargaining unit maintained that right to strike despite the change in bargaining agents. The issue is whether or not, in a case where the unit is unchanged from the one represented by the previous agent and which agent was in a position to call a strike, the Public Service Staff Relations Board was correct in holding that the applicant and employer must complete the negotiation/conciliation process before the employees in the bargaining unit can lawfully strike.
Held, the application is dismissed. The condition precedent to a right to strike prescribed by subparagraph 101(2)(b)(i), fulfilled after the expiry of seven days after the filing of the conciliation report, does not continue after the change in agents. The conciliation board made its report to the parties, the employer and PIPS, the then incumbent bargaining agent for the unit. Specifically, in relation to collective bargaining, arbitration or a dispute, parties mean the employer and a bargaining agent. The reference to a dispute in subparagraph 101(2)(b)(i) of the Act, therefore, can only be reasonably interpreted as meaning a dispute between the employer and the incumbent bargaining agent, CUPTE, in respect of the Aircraft Operations Group for which it holds the bargaining rights.
CUPTE and the employer must complete the negotiation/con- ciliation process before there is any possibility of the employees in the bargaining unit being in a position to engage in a lawful strike.
APPLICATION for judicial review. COUNSEL:
Lynn C. Kaye for applicant.
Walter L. Nisbet, Q.C. for respondent.
SOLICITORS:
Lynn C. Kaye, Canadian Union of Profes sional & Technical Employees, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court rendered by
URIE J.: This is a section 28 application to review and set aside a decision of the Public Service Staff Relations Board made on January 6, 1979, for which reasons were delivered on January 12, 1979. By that decision, the Board held that a strike engaged in by the members of the bargain ing unit for the Aircraft Operations Group, and authorized by its agents, the applicant herein, was unlawful. The sole issue in this application is whether or not the Board erred in so holding.
The following excerpts from the reasons for decision of the Board put the factual situation in sufficient perspective for purposes of deciding the issues referred to above.
45. We are in substantial agreement with the submissions advanced by counsel for the Employer. In our view, the whole scheme of the Act envisages that a bargaining agent, which specifies the process for resolution of a dispute to be by the referral of the dispute to a conciliation board, must complete the negotiation/conciliation process provided in the Act before the employees in the bargaining unit, for which it has been certified, are in a position to engage in strike activity which is lawful.
46. In the instant case CUPTE applied under section 27 of the Act to be certified as bargaining agent for all employees in the Aircraft Operations Group. It was successful in its application and on July 25, 1978, this Board issued a certificate to CUPTE certifying it as the bargaining agent for the bargaining unit for which it had applied. The effect of its certification was to displace PIPS as the bargaining agent for that group. PIPS had originally been certified by the Board for the same unit of
employees on February 6, 1968. As is noted in paragraph 6 of this decision, following certification, PIPS and the Employer entered into a number of collective agreements, the most recent of which expired on July 27, 1975. Also as was noted in that paragraph, prior to the giving of notice to bargain and the commencement off the negotiations which led to the last collec tive agreement between the Employer and PIPS, the latter had changed its process of dispute resolution to be by referral to a conciliation board rather than by referral to arbitration as had previously been the case.
47. As is related in paragraph 7 of this decision, PIPS gave notice to the Employer on June 10, 1975 to commence bargain ing for the renewal of the collective agreement which was due to expire on July 28, 1975. Following negotiations between the two parties, PIPS requested the establishment of a conciliation board for the investigation and conciliation of a dispute that existed between it and the Employer. A conciliation board was established for that purpose by the Chairman of this Board on October 1, 1975. The conciliation board submitted its report to the Chairman on January 15, 1976. Pursuant to the provisions of paragraph 101(2)(a)(i), on January 23, 1976, upon the elapsing of seven days from the receipt by the Chairman of the report of the conciliation board, the employees in the Aircraft Operations Group were in a position to participate in a lawful strike.
48. Upon its certification, Mr. Coupland, the General Manag er of CUPTE, in prescribed form specified the process for resolution of a dispute in respect of the Aircraft Operations Group bargaining unit to be referral of the dispute to a conciliation board. Mr. Coupland testified that while he believed the employees in the unit still maintained the right to strike which they had acquired while PIPS was their bargaining agent, he had made the specification because off the mandatory requirement in subsection 36(1). It seems to us, however, that the very fact that a newly certified bargaining agent is required to specify one of the two processes made available in the Act for the resolution of a dispute is, at the least, an indication that it was intended by the legislation that a new bargaining agent be required to go through the negotiation/conciliation process (if that was the process specified) before the employees in the unit concerned could be in a position to engage in a lawful strike. Moreover, if it were true, as Mr. Coupland testified he believed, that the employees in the Aircraft Operations Group bargaining unit were irrevocably on the conciliation board route for dispute settlement, the option provided in subsection 36(1) would seem to be meaningless.
It is, in our view, important to note the following:
(1) that counsel for the applicant conceded that if the applicant, following its certification as bargaining agent, had, pursuant to section 36(1), specified arbitration as the process for resolution of a dispute rather than a conciliation board as it did, then the right to strike would have been, in any event, lost;
(2) that it is the duty of the Board on any application for certification to determine the composition of the appropriate bargaining unit, a determination that it must have made when the applicant applied for certification although, in the event, the unit was identical to the unit described in the previous certification; and
(3) that counsel for the applicant also conceded that had there been any variation whatsoever in the composition of the unit found to be appro priate for bargaining for the new agent all rights to strike by virtue of the bargaining by the previous agent would have been lost.
As a result, clearly the issue is narrowed then to a determination of whether, on the facts of this case where the unit remained unchanged from that represented by the previous agent and which agent was in a position to declare and authorize a strike, the Board was correct in holding that the applicant and the employer must complete the negotiation/ conciliation process before there is any possibility of the employees in the bargaining unit being in a position to engage in a lawful strike.
We are all of the view that the Board did not err in so holding and substantially agree with their reasons for their conclusions. At pages 25 and following, of its reasons, the Board stated:
50. By paragraph 40(1)(a) of the Act, when CUPTE was certified as bargaining agent for the Aircraft Operations bar gaining unit, it acquired the exclusive right to bargain collec tively with the Employer on behalf of the employees in the unit and to enter into a collective agreement with the Employer, the terms and conditions of which would be binding upon them. CUPTE also acquired the right to represent the employees in the unit on the presentation or reference to adjudication of grievances relating to the interpretation or application of a collective agreement or an arbitral award. However, paragraph 40(1)(a) did not confer on CUPTE the right to step into the shoes of its predecessor PIPS and thereby acquire the entitle ment which the latter had secured through the negotiation/con- ciliation process on behalf of the employees in the unit, i.e., the right to take strike action.
51. The effect of paragraph 40(1)(b) in the instant case was that upon the certification of CUPTE as bargaining agent for the Aircraft Operations Group, the certification of PIPS, which had been the previous incumbent bargaining agent for the same bargaining unit, was automatically revoked. That being the case, it is difficult to accept that such a provision could have been intended to permit the employees in the bargaining unit to maintain a right to strike which had been secured for them by PIPS only after it, in conjunction with the Employer, had
complied with the negotiation/conciliation process which is the precondition to any strike action.
52. The only obligation which CUPTE was required to assume upon certification for the Aircraft Operations Group is set out in paragraph 40(1)(c). By that paragraph CUPTE automati cally became a party to any collective agreement or arbitral award which was binding on the employees in the bargaining unit. In the instant case these conditions did not exist.
Following certification of the applicant and the designation by it of the process for resolution of a dispute to be referral of the dispute to a concilia tion board as required by section 36(1) 1 , it was open to either party, by virtue of section 49(1) 2 , to serve notice on the other to require the commence ment of bargaining. The applicant did not do so. Some negotiations took place and after about four months the respondent served notice to bargain on December 1, 1978. We agree with the Board that the respondent was not estopped by its prior con duct from so doing.
Counsel for the applicant submitted that the condition precedent to a right to strike prescribed by section 101(2)(b)(i) had been fulfilled after the expiry of seven days after the filing of the report of the conciliation board on January 15, 1976 and that right continued notwithstanding the change in agents. Section 101(2)(b)(i) reads as follows:
...
(2) No employee who is not an employee described in sub section (1) shall participate in a strike
' 36. (1) Subject to subsection 37(2), every bargaining agent for a bargaining unit shall, in such manner as may be pre scribed, specify which of either of the processes described in the definition "process for resolution of a dispute" in section 2 shall be the process for resolution of any dispute to which it may be a party in respect of that bargaining unit.
2 49. (1) Where the Board has certified an employee organi zation as bargaining agent for a bargaining unit and the process for resolution of a dispute applicable to that bargaining unit has been specified as provided in subsection 36(1),
(a) the bargaining agent may, on behalf of the employees in the bargaining unit, by notice in writing require the employer to commence bargaining collectively, or
(b) the employer may by notice in writing require the bar gaining agent to commence bargaining collectively,
with a view to the conclusion, renewal or revision of a collective agreement.
(b) where no collective agreement applying to the bargaining unit in which he is included is in force, unless
(i) a conciliation board for the investigation and concilia tion of a dispute in respect of that bargaining unit has been established and seven days have elapsed from the receipt by the Chairman of the report of the conciliation board,
The Board dealt with this submission at page 29 of its reasons, as follows:
57. Finally, we would deal with the argument of counsel for CUPTE as it relates to her interpretation of subsection 101(2). In our view, subsection 101(2) cannot be read in isolation but rather must be read in the context of the Act as a whole. We would first refer to section 87 of the Act which provides inter alia that on receipt of the report of a conciliation board, the Chairman shall forthwith cause a copy thereof to be sent to the parties. The parties to the dispute involving the Aircraft Opera tions Group bargaining unit, in respect of which the Chairman of this Board established a conciliation board on October 1, 1975 and with respect to which that conciliation board made its report dated January 15, 1976, clearly were the Employer and PIPS, the then incumbent bargaining agent for the unit.
58. Of even greater significance, however, is the definition of "parties" in section 2 of the Act. Specifically, in relation to collective bargaining, arbitration or a dispute, "parties" mean the employer and a bargaining agent. On the basis of that definition, the reference to "a dispute" in paragraph 101(2)(b)(i) of the Act, in the context of the instant applica tion, can only reasonably be interpreted as meaning a dispute between the Employer and the incumbent bargaining agent, CUPTE, in respect of the Aircraft Operations Group for which it holds the bargaining rights.
59. Accordingly, we reject the submission of counsel for CUPTE as it relates to the above provision of the Act. In the result, this means that CUPTE and the Employer must com plete the negotiation/conciliation process before there is any possibility of the employees in the Aircraft Operations Group bargaining unit being in a position to engage in a lawful strike. The fact of the added time delay involved in this process is not a consideration that this Board can properly take into account in making a declaration under subsection 103(1) of the Act.
We all agree with this interpretation of the section and accordingly, the section 28 application will be dismissed.
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