CIRB Newslink–June 2011

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Message from the Chairperson

The Canada Industrial Relations Board has a mandate to support constructive labour management relations in the sectors regulated by the Canada Labour Code. In order to achieve this objective, the Board provides a variety of dispute resolution services. It adjudicates matters where necessary, but it also focuses on providing mediation assistance at all stages of a case, in order to proactively seek a resolution of matters that best meets the needs of the parties. We have been encouraged by the positive results that have been achieved through this approach and intend to continue our efforts to encourage labour and management in improving their workplace relationships.

I also see a role for the Board in supporting labour and management by engaging the industrial relations community in a continuing dialogue on key matters affecting their relationships. I am therefore very pleased to report that the Board has partnered with the Federal Mediation and Conciliation Service to sponsor the 2011 National Industrial Relations Conference. This conference will be held on June 16 and 17, 2011 at the Fairmont Château Laurier Hotel in Ottawa. It will be a unique opportunity for federally-regulated employers and trade unions to participate in discussions regarding the critical issues affecting today's workplaces, and to address tomorrow's challenges.

The Board is very pleased with the response it has received from the labour-management community with respect to the substantive review of the Canada Industrial Relations Board Regulations, 2001. Regional consultations will wrap up at the end of June and the input and feedback that we have received from participants in these sessions will guide our reflections as we develop a package of proposed amendments over the coming months. Further details of the regulatory review initiative are found elsewhere in this issue.

I wish to thank everyone who has participated in our regulatory consultation process thus far, and invite those who have not yet participated to review our consultation document and provide us with their views.

I look forward to seeing you at the 2011 National Industrial Relations Conference later this month.

Changes Made to the Publication of CIRB Decisions

It will now be easier for clients to access and research Board decisions. The CIRB entered into an agreement with Lexum Inc., a legal technologies firm, for the provision of online services which will ensure easier access, management and distribution of decisions issued by the Board.

Decisions will continue to be published in a dedicated section of the Board's Website but the database will be hosted by Lexum Inc. and provide advanced search and navigation functions. Users will be able to find a decision by launching a full-text search or by using a tool to search by the official citation, file number or author of a decision. These new services will be integrated seamlessly for users during the summer 2011.

Statistical Overview

The Board continues its efforts to provide effective and timely case processing. At the conclusion of this last fiscal year (April 2010-March 2011), the number of incoming matters remained stable but the Board disposed of more cases than it received (Chart 1). This has had a positive impact on reducing the number of pending matters. In addition, less than 14% of these matters have been pending for more than two years, which is a significant improvement over previous years.

Chart 1 - Volume of Matters

Regulatory Review

Clear, Modern and Practical Regulations

As we indicated in our December 2010 newsletter, the Board has undertaken a major review of the Canada Industrial Relations Board Regulations, 2001 in order to make them more clear, modern and practical.

The Board has conducted an internal review of the Regulations and is currently consulting with the labour law and labour relations community about which processes work well and which could be improved upon.

The consultations began at the end of April 2011 with the solicitation of stakeholder feedback on the Board's Website. Stakeholders were encouraged to review the Board's consultation document and to provide comments on various options and considerations arising out of the Board's internal regulatory review, either in writing to the Board or in person at one of the national consultation meetings. Stakeholder consultation meetings were held in Ottawa, Montréal, Halifax, Toronto and Vancouver between May 11, 2011 and June 2, 2011.

Further information can be found at: http://www.cirb-ccri.gc.ca/regulations-reglement_eng.asp

The Board is now in the process of compiling the comments and feedback received through the consultation process in order to evaluate all recommendations with a view to determining by the Fall of 2011 what amendments will be made to the Regulations.

Stakeholders who wish to provide written comments on the consultation document (which is available on the Board's Website: http://www.cirb-ccri.gc.ca/regulations-reglement_eng.asp) may send any comments to Ginette Brazeau or by fax at 613-947-3894. Please note that the deadline for written input is June 30, 2011. The Board would like to take this opportunity to thank the labour relations community and the labour law bar for all of the helpful comments we received during the consultation process. Your input will assist in making the amended Regulations more clear, modern and practical.

Practice Note

The Board recognizes that in some cases, a national trade union that has been certified by the Board to represent a group of employees may wish to delegate the responsibility for contract administration and operational matters to a local or a division of the trade union. However, when dealing with a Duty of Fair Representation complaint or other application involving the bargaining agent, the Board will verify and take note of the entity that was duly certified by the Board and will identify the certified bargaining agent as the appropriate respondent. It is the certified bargaining agent that has the ultimate responsibility and accountability for responding to a complaint or an application made against it.

Recent CIRB Cases–Summary Notes

Beaulieu (Alain), 2011 CIRB 570

Impartiality of Board Members–Past Employment With one of the Parties

The CIRB was seized with an application for reconsideration of a decision regarding the union's duty of fair representation. The decision under review disposed of some 250 complaints alleging that the International Association of Machinists and Aerospace Workers (IAMAW) had breached its duty of fair representation by concluding a Memorandum of Agreement with Air Canada (the employer). This agreement addressed the transition of employment of certain Air Canada employees to Aveos Fleet Performance Inc. (Aveos). The transition resulted from the sale of Air Canada Technical Services to Aveos. The Board dismissed all of the complaints and found no evidence that the union acted in a manner that was arbitrary, discriminatory or in bad faith.

The applicant was one of the complainants and was unsatisfied with the Board's initial decision. In his application for reconsideration, he raised different allegations including an allegation that there was a perceived conflict of interest on the part of two members of the first panel. More specifically, the applicant alleged that two of the decision-makers held past positions with either the IAMAW or the employer.

In its reconsideration decision, the Board held that allegations of this nature are serious and cannot be taken lightly, as they call into question not only the personal integrity of the individuals, but also the integrity of the Board. The decision explained that the Canada Labour Code expressly provides that tripartite Board panels will have an employer and an employee representative. These representative members are appointed precisely because of their past experience and expertise in labour relations. Nevertheless, to avoid any apprehension of bias, representative members are normally not appointed to hear any case involving a former employer for a period of at least two years from the date on which they join the Board. The Board also explained that representative members are not appointed to any matter in which they have had a direct interest at any time in the past.

In this case, the Board concluded that the length of time that had passed since either of the two members worked for the IAMAW (more than ten years for the first member) or Air Canada (more than five years for the other member) was sufficient to overcome any concern regarding a possible apprehension of bias. The Board also concluded that the applicant did not provide any specific example of a fact or circumstance casting doubt on the objectivity of the two members in question.

The application for reconsideration was dismissed.

Bell Mobility Inc., 2011 CIRB 579

Unfair Labour Practice Complaint–Membership Evidence–$5.00 Fee–Certification Drive

In this case, an unfair labour practice complaint was filed by Bell Mobility Inc. (the employer) against the Communications, Energy and Paperworkers Union of Canada (CEP). The employer alleged that at least ten employees signed membership cards without paying the required $5.00 membership fee to the CEP.

The Board concluded that, even assuming the employer's allegations to be true, the facts as alleged did not constitute an unfair labour practice. The panel was of the view that the dispute had more to do with alleged irregularities in membership evidence, as opposed to a situation involving intimidation or coercion. There was no specific allegation that an employee might have been misled during the organizing campaign. The Board nonetheless ensured that an Industrial Relations Officer considered those concerns when conducting the required confidential investigation into membership evidence in a related certification application.

In its decision, the Board explained that unlike in several Canadian provinces, the Canada Labour Code does not require a mandatory vote for all certifications. Provided there is majority support, the Board will usually certify a bargaining agent based on membership evidence alone. The Board nevertheless retains the discretion to hold a vote in situations where it deems it necessary. This demonstrates the importance for the Board and its personnel of ensuring the veracity of card-based membership evidence. In situations where membership evidence is greater than 35%, but less than 50% in the appropriate bargaining unit, the Board must hold a vote.

The complaint was dismissed. However, the Board indicated it would consider the parties' submissions in this file when deciding the CEP's certification application.

John Vines Retiring After 36 Years of Service With the Board!

John Vines

John Vines recently retired as Regional Director of the Canada Industrial Relations Board after a distinguished 36-year career with the CIRB. He is well known among the industrial relations community and has developed a long standing relationship earning respect with all of the practioners in the community.

At the time of his retirement on January 28, 2011, John was the longest serving Regional Director with the Board and has played a large part in the development of industrial relations in the Atlantic Region. Through his guidance, advice and mediation skills, John impacted the evolution of industrial relations from the hiring halls of the unions to the boardrooms of national corporations. He brought conflicting parties together in a way that commanded the respect of everyone he talked with, and there is not an industry in the federal sector in the Atlantic Region that doesn't have his thumb print on it.

John joined the (then) Canada Labour Relations Board on September 9, 1974, as an Industrial Relations Investigation Officer, and opened the Dartmouth office. He was the only Board officer based in the Atlantic Region for 9 years, providing an outstanding service and essentially becoming the face of the federal Labour Board in the region. In 1983, John was appointed Regional Director, and in 1992 advanced to the executive level within the Board. He actively participated in the evolution and shaping of the Board's policies and procedures, and led the Board's efforts at streamlining the certification process. His relentless work resulted in significant improvements and concrete results for the Board's client community.

Prior to joining the Canada Labour Relations Board, John graduated from St. Mary's University in 1972, with a Bachelor of Commerce degree, and was a full time union representative with the Canadian Food and Allied Workers Union.

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