A-191-91
A-607-91
Canadian Association of Trades and Technicians
(C.A.T.T.) (Applicant)
v.
Treasury Board and Federal Government
Dockyard Trades and Labour Council East
(Respondents)
INDEXED AS: CANADIAN ASSN. OF TRADES AND TECHNICIANS
V. CANADA (TREASURY BOARD) (CA.)
Court of Appeal, Marceau, Stone and Linden JJ.A.—
Halifax, February 18 and 19, 1992.
Public Service — Labour relations — PSSRB rejecting certi
fication application on ground applicant not "employee organ
ization" within PSSRA, s. 2 — Case law requiring "employee
organization" be viable entity for collective bargaining pur
poses — Board holding not viable entity based on inadequate
constitution, citing specific deficiencies — Erred in law as to
meaning of "employee organization" and exceeded jurisdic
tion in attempting to impose more democratic constitution —
Employee organization cannot be deprived of prima facie right
to certification except by express provision of Act forbidding
certification or conferring upon Board discretionary power to
refuse it — Act not giving Board express, general power to
supervise in detail quality of constitutional structure of
employee organizations — Determination of viability limited to
deciding if organization has written constitution, duly adopted
by members, allowing it to operate as viable entity and to
legally bind organization and members — Constitutional
details for unions and members to decide.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
ss. 2, 35, 36, 40.
CASES JUDICIALLY CONSIDERED
APPLIED:
New Brunswick Teachers' Federation—La Fédération des
Enseignants du Nouveau-Brunswick v. Province of New
Brunswick and Canadian Union of Public Employees, et
al (1970), 3 N.B.R. 189; 17 D.L.R. (3d) 72 (C.A.); Re
SAO National (Inc.) and Oakville Trafalgar Memorial
Hospital Association, [1972] 2 O.R. 498; (1972), 26
D.L.R. (3d) 163; 72 CLLC 495 (C.A.).
REFERRED TO:
Capital Coach Lines Ltd. (Travelways) and Canadian
Brotherhood of Railway, Transport and General Workers
and Travelways Maple Leaf Garage Employees' Associa
tion, [1980] 2 Can LRBR 407.
AUTHORS CITED
Robert, Henry Martyn Roberts' Rules of Order, Missis-
sauga, Ont.: Fenn Publishing Co. Ltd., 1987.
APPLICATION to set aside PSSRB rejection of
application for certification on the ground that
C.A.T.T. was not an "employee organization" as
defined in PSSRA.
COUNSEL:
Susan D. Coen for applicant.
James L. Shields for respondent Federal Gov
ernment Dockyard Trades and Labour Council
East.
Harvey A. Newman for respondent Treasury
Board.
John E. McCormick for intervenor Public Ser
vice Staff Relations Board.
SOLICITORS:
MacDonald, Hannem & Coen, Halifax, Nova
Scotia, for applicant.
Soloway, Wright, Ottawa, for respondent Federal
Government Dockyard Trades and Labour
Council East.
Deputy Attorney General of Canada for respon
dent Treasury Board.
Public Service Staff Relations Board for inter-
venor Public Service Staff Relations Board.
The following are the reasons for judgment of the
Court delivered orally in English by
LINDEN J.A.: The matter raised in this appeal is the
role of the Public Service Staff Relations Board in
supervising the quality of the constitutional structure
of employee organizations. The Board rejected the
application for certification of the applicant C.A.T.T.
on February 20, 1991, on the ground that it was not
an "employee organization" as defined in section 2 of
the Public Service Staff Relations Act, R.S.C., 1985,
c. P-35, as amended, which reads:
2....
"employee organization" means any organization of employ
ees the purposes of which include the regulation of
relations between the employer and its employees
for the purposes of this Act ....
By this section 28 [Federal Court Act, R.S.C., 1985,
c. F-7] application, the union attacks that decision on
the basis that it was wrong in law, was beyond the
jurisdiction of the Board and was based on erroneous
findings of fact made in a perverse or capricious
manner or without regard for the material before it.
The bargaining unit of employees of the Treasury
Board has been represented since 1976 by the respon
dent, Federal Government Dockyard Trades and
Labour Council East, which intervened in the appli
cation before the Board and also opposed this section
28 application. The Treasury Board did not object to
C.A.T.T.'s application before the Board and,
although it was represented in this section 28 applica
tion, it did not take any position.
The Board concluded that, even though the mem
bers of C.A.T.T. were employees and even though
proper steps were taken in organizing the union,
C.A.T.T. appeared to be "very autocratic" and did not
provide its members with some basic rights. Accord
ing to the Board, its constitution lacked material that
was required for it to be considered to be an
employee organization. Among the items missing
from the constitution of C.A.T.T., the Board found,
were: it did not provide for the calling of membership
meetings; it did not have a properly established con
stitution committee; it did not set out sufficient guide
lines for the bargaining committee; it contained no
provision concerning the ratification of collective
agreements; it did not deal with representation rights
in grievance procedures; and other, less important,
matters. The Board held that these defects, "taken
together" were "fatal" and could not be remedied by
later amendment.
We are of the view that the Board erred in law and
exceeded its jurisdiction in coming to this conclusion.
It should be pointed out that no express, general
power is conferred on the Board to supervise in detail
the quality of the constitutional structure that is pro
vided for in union constitutions. Subsection 36(1) of
the Public Service Staff Relations Act does allow the
Board to review the constitution of the union to sat
isfy itself that the organization enjoys the support of
the majority of the employees and that its representa
tives are duly authorized to apply for certification
(see paragraphs 35(c) and (d)). Section 40 does pro
hibit certification of unions which have been tainted
by employer participation (subsection (1)), contribu
tions to political parties (subsection (2)), or discrimi
nation against any employee "because of sex, race,
national origin, colour or religion" (subsection (3)).
But, other than that, no specific power to ensure
union democracy or a particular type of structure is
bestowed on the Board by the statute.
A limited power to supervise union constitutions
has also evolved through labour board decisions,
which have been adopted by the Courts. It is built
upon the requirement that, in order to be qualified for
certification, an applicant must, along with other
things, be an "employee organization" (section 35).
Since the definition of employee organization in the
statute (see above) is rather skeletal, the labour law
jurisprudence has sought to flesh it out to some
extent.
The Board correctly outlined the established gen
eral criteria for an "employee organization", that is
(1) it must be an organization of employees, (2) it
must be formed for labour relations purposes and (3)
it must be a viable entity for collective bargaining
purposes. The Board decided that the first two
requirements had been met, but not the third one—
viability. It went on, however, to improperly expand
on the content of the third requirement, thereby
exceeding its jurisdiction and making serious errors
in law as to the meaning of "employee organization."
It must be recalled that, as Mr. Justice Hughes said
[at pages 197-198] in the context of a similar provin
cial statute, in New Brunswick Teachers' Federation
—La Federation des Enseignants du Nouveau Bruns-
wick v. Province of New Brunswick and Canadian
Union of Public Employees, et al (1970), 3 N.B.R.
189 (C.A.), an employee organization which satisfies
the conditions set out in the statute has a "prima facie
right to be certified" in accordance with the statute
and it cannot be deprived of that right "except by
some provision of the Act expressly forbidding certi
fication or conferring upon the Board some discre
tionary power to refuse it." Since the object of the
Act is to promote collective bargaining by democrati
cally chosen bargaining agents, "some substantial
ground must be shown to deprive an employee organ
ization of its prima facie right to certification".
The New Brunswick Court of Appeal concluded
that the Board erred in denying certification to the
employee organization because certain members
were not eligible to be elected as officers. Mr. Justice
Hughes explained that it was improper to deny a
union certification because of any limitation on the
rights of its members. The Court referred to the prin
ciple expressio unius, in support of its reasoning,
pointing to a similar provision to the one in this case,
forbidding certification to organizations that discrim
inate on a series of grounds, hut not including "the
right of any member to hold office" (at page 202). In
concluding, Mr. Justice Hughes reminded us that
union elections are matters of "domestic concern to
the membership; that the legislatures and courts have
traditionally kept their distance from such matters"
[at page 203].
These principles were adopted by the Ontario
Court of Appeal in Re CSAO National (Inc.) and
Oakville Trafalgar Memorial Hospital Association,
[1972], 2 O.R. 498, where certification had been
denied by the Ontario Labour Relations Board on the
ground that provisional members of a union were
kept from holding elected office. In setting aside that
decision, Jessup J.A. agreed [at page 501] that such a
factor could not be added to the "determination of
whether a union is an organization" under the Onta-
rio statute. He too relied on the fact that, since certain
practices such as discrimination may prevent a union
from receiving certification, other undemocratic prac
tices are not meant to be a ground for denying certifi
cation. Mr. Justice Arnup agreed, saying that the
Board, in so doing, had given itself "an enlarged
jurisdiction not warranted by the Act" (at page 505).
In order to decide if an organization is a viable
union, therefore, the Board is not entitled to examine
in minute detail each of the provisions of the consti
tution and pass judgment on their democratic flavour.
These matters of detail are for the unions and their
members to decide, not for the Board, unless it is
given express statutory authority. The Board must
limit itself to deciding if the organization has a writ
ten constitution, duly adopted by the members, which
allows it to operate as a viable entity and to legally
bind the organization and its members. (See Capital
Coach Lines Ltd. (Travelways) and Canadian Broth
erhood of Railway, Transport and General Workers
and Travelways Maple Leaf Garage Employees'
Association, [1980] 2 Can LRBR 407, at page 410).
In this case, there can be no doubt that there was a
written constitution consisting of some 12 pages and
37 articles covering most of the matters that union
constitutions usually cover, including a general com
mitment to democracy which reads: "Each member
shall be entitled to a full share in union self-govern
ment. Each member shall have full freedom of speech
and the right to participate in the democratic deci
sions of the union" (IV (g)). In addition, there can be
no uncertainty about the capacity of the organization
to legally bind itself and its members. There is provi-
sion for an elected Executive Board which is to meet
"at least once a month" and which shall be the "gov-
erning body of the union", which may "take such
action and render such decisions as may be necessary
to carry out fully the decisions and instructions of the
union meetings and to enforce the provisions con
tained in this constitution." Given these provisions
and the evidence adduced, the Board was obligated to
decide that the employee organization, given its
prima facie right to seek certification, was a viable
one.
The criticism expressed by the Board as to the
quality of the democracy established in the constitu
tion was not within its jurisdiction. Certainly there
were gaps in the constitution which it would he desir
able to fill. Certainly, there were matters which it
might be better to eliminate. But it is not the business
of the Board to impose a more democratic constitu
tion on the union; that is the responsibility of the
union and its members. In seeking to impose those
preferable provisions, the Board erred in law and
exceeded its jurisdiction.
In addition, there were serious errors made by the
Board in its reading of the constitution. While it is
true that there was no express provision requiring the
calling of monthly or special meetings of the mem
bers, regular monthly meetings were certainly con
templated in the document, where it was stipulated
that the Secretary-Treasurer had to report in writing
every month at a regular meeting of the union (XV).
While there was no express requirement dealing with
notices of meetings, it was understood that they
would be given, where it is stipulated that the
Recording-Secretary "shall post notices of all meet
ings" (XIII). (There was also a provision made for a
newsletter, which would undoubtedly contain notices
of any meetings.) While there were no specific guide
lines as to the ratification of collective agreements by
the members, there were terms concerning the setting
up of a negotiating committee and the need for it to
gather proposals from the members and to obtain
their "final mandate" (XXIV). Any Executive Board
or Negotiating Committee which did not put a pro
posed collective agreement before the regular
monthly meeting (or call one for the specific pur-
pose), especially if it were outside the mandate,
whether or not a clause required this, would certainly
find itself out of office at the next union election and
perhaps even decertified. Whereas the Board thought
there was no constitution committee, nor any guide
lines for one, there was provision for such a commit
tee, for the election of its members, and some general
guidance was offered to it (XXXIV). To cover certain
procedural omissions, there was also a provision that
Roberts' Rules of Order were to apply, unless other
wise provided (XXXVII (aa)). An added safeguard
for democracy in the union constitution was a refer
endum procedure which could be triggered by ordi
nary members who wished to vote on decisions, poli
cies and constitutional changes on matters that
pertain to the business of the union. Another demo
cratic provision in the document was a recall clause
(XXII). There are certainly gaps and deficiencies in
this constitution which would deny it the description
of an "ideal " or "perfect" constitution; it is clearly
not a model constitution to be praised or emulated.
But, neither is it a constitution that would permit the
Board to decide that this employee organization is
not a viable one, so as to deny it certification.
This section 28 application will be allowed. The
decision of the Board will be set aside and the matter
referred back to the Board to continue with the certi
fication process on the basis that this union is a
legally constituted employee organization.
As for the second application (Court number
A-607-91), given the decision in the first application,
the matter is moot and, hence, the section 28 applica
tion 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.