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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.