CIRB Newslink–Summer 2013

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Message from the Chairperson

It is hard to believe that we are well into the summer. This mid-year milestone gives me a chance to reflect on the Board’s activities of the past fiscal year and to share our results with you.

The 2012–13 fiscal year brought a decline in the volume of matters filed with the Board, with an approximately 19% reduction in the number of applications filed. This represents not only a decrease from the number of applications filed in the previous fiscal year, but also the lowest number of applications filed in the past five years. A quick glance at the types of matters filed before the Board shows that certification applications and applications for reconsideration have decreased by almost half since the previous year. However, the number of duty of fair representation complaints has largely remained constant over the past year, and now represent a higher proportion of the Board’s overall workload.

This decline in workload has presented an opportunity for the Board to further improve its average processing time, reducing it to 168 days from 220 days in the previous fiscal year. Additionally, this past year proved to be the best since the 2010–11 fiscal year for resolving matters within a one-year period, with 89% of all matters received being processed within one year. The credit for continuing to shorten the time it takes for a dispute to be resolved is to be shared among the Board’s staff, members and vice-chairpersons, all of whom continually strive to find timely solutions that best serve the labour-management relations of the Board’ client community.

In our last issue, I described the expansion of the Board’s mandate to include responsibility for administering and interpreting Part II of the Status of the Artist Act. I am now pleased to announce that we have begun our process of reviewing the Canadian Artists And Producers Professional Relations Tribunal Procedural Regulations and have identified areas where we see opportunities to make these Regulations more clear and practical, as we did with the Canada Industrial Relations Board Regulations, 2012. To that end, we have begun consultations with stakeholders in the artistic community in order to ensure that the regulatory amendment process is transparent, while at the same time offering the community our assurances that a seamless and positive transition is a priority for the Board. A more detailed description of the regulatory review process can be found elsewhere in this issue.

Finally, we continue to strive to offer excellent service to the labour relations community and our latest effort in this regard is our newly redesigned Website and decisions search engine. If you have not already done so, we hope you will take a moment to browse the updated content on the Board’s Website, as well as to take advantage of the options for searching the CIRB’s jurisprudence. As always, we welcome any comments or feedback you may have with regard to the Board’s Website, and any of the resources provided therein.

Please enjoy the updates and case law highlights in this latest issue of the CIRB Newslink. I take this opportunity to wish you all a pleasurable summer.

Elizabeth MacPherson

JOIN US FOR THE 2013 National Industrial Relations Conference

The Canada Industrial Relations Board and the Federal Mediation and Conciliation Service are pleased to invite you to the 2013 National Labour Relations Conference which will be held on September 19 and 20, 2013 at the Château Cartier Hotel in Gatineau, NCR.

The theme of this year's conference is: “Collaborative Relationships in the Modern Workplace”. The Conference offers a unique program which brings together representatives from labour and management from across Canada to discuss key issues of the day. Please visit the Board’s Website (www.cirb-ccri.gc.ca) for a detailed agenda as well as registration information.

Recent Cases–Summary Notes

Federal Court of Appeal Upholds the Board’s Decision Regarding the Integrity of its Electronic Voting Process

On April 17, 2013, the Federal Court of Appeal (FCA) heard the Canadian Airport Workers Union’s (CAWU) application for judicial review of the Canada Industrial Relations Board’s (the Board) reconsideration decision in Garda Security Screening Inc., 2012 CIRB 651 (RD 651).

By way of background, in January 2012, the International Association of Machinists and Aerospace Workers (IAMAW) filed an application to displace the CAWU as the certified bargaining agent for a unit of Garda employees providing pre-board security screening services at certain airports in Ontario. As is the Board’s practice in such applications, a representation vote was ordered. The Board had recently introduced an electronic voting process and this vote was conducted electronically in March 2012. The results of the vote favoured the IAMAW and an order was issued certifying the IAMAW as the bargaining agent for the unit. At various stages of the proceedings before the Board, the CAWU: opposed the original application, challenged the results of the vote, sought information from the Board pertaining to the vote and sought to obtain a list of those who had voted, implying that there had been voter fraud. The Board dealt with these issues in RD 651.

In RD 651, the Board stated that the integrity and credibility of the voting process is of primary importance and that it therefore takes allegations of voting irregularities very seriously. While the CAWU had not provided any specific facts to support its allegations, the Board nonetheless undertook an in-depth review because the electronic voting technology and process had just recently been introduced.

Following the investigation, the Board was satisfied that the electronic voting process presented no greater issues with regard to voter fraud than did a regular mail ballot. The Board was also satisfied that appropriate safeguards were in place to ensure that only eligible voters were provided with the opportunity to vote electronically.

The CAWU brought an application for judicial review of RD 651 on the basis that, inter alia, the Board erred by not disclosing the results of its confidential internal investigation into the electronic voting process.

The main issue for judicial review before the FCA was the Board’s decision not to disclose the full details of its confidential internal investigation into the electronic voting procedures. In a unanimous decision, written by Justice Near, the FCA upheld this decision.

Justice Near found that the Board had disclosed some of the findings from its investigation and that its decision not to provide full details of all of the safeguards that were in place in order to prevent attempts at voter fraud in future electronic votes was squarely within its mandate and expertise and therefore deserved deference from the court. He went on to state that, even on a correctness standard of review, he was not persuaded that the Board had erred in making this decision.

Justice Near concluded that the Board’s decision was reasonable because it fell within the range of acceptable outcomes based on the facts and the law and dismissed the application with costs.

The Duty to Bargain in Good Faith

In a recent decision, Intek Communications Inc., 2013 CIRB 683, the Board reviewed the framework for collective bargaining under the Canada Labour Code ( Part I–Industrial Relations) (the Code) and the implications that it has for remedial orders for a violation of the duty to bargain in good faith under section 50(a) of the Code (the Duty).

The decision arose out of numerous unfair labour practice (ULP) complaints filed with the Board by the Communications, Energy and Paperworkers Union of Canada (CEP) during its organizing drive at Intek Communications Inc. (Intek), as well as subsequent collective bargaining post-certification. The complaints included allegations of reprisals against inside union organizers, improper employer communications with members of the bargaining unit and bad faith bargaining on the part of Intek.

The CEP asked the Board to examine the totality of its complaints when considering whether Intek had engaged in bad faith bargaining in violation of section 50(a) of the Code. It further asked the Board to grant a binding remedy pursuant to its powers under section 99(1)(b.1) of the Code to settle the first collective agreement.

In analyzing the complaints, the Board found that ULP complaints regarding pre-certification actions could not form part of the bad faith bargaining complaint, since the duty to bargain in good faith under section 50(a) arose only once notice to bargain had been given.

While the analysis of all of the ULP complaints are of interest in this decision, what is particularly significant is the Board’s analysis of the Duty as well as the scope of its powers under section 99(1)(b.1), particularly in the context of a first collective agreement situation.

In analyzing the Duty, the Board accepted that bad faith bargaining could be demonstrated through a series of actions after notice to bargain had been given. In this case, the Board found that Intek’s refusal to produce relevant documents, its refusal to continue to meet and bargain with the CEP after the commencement of the strike, its misrepresentation of CEP’s bargaining positions at captive audience meetings and its failure to make reasonable efforts to enter into a collective agreement, as evidenced by certain bargaining proposals, demonstrated that it had not met its Duty. Having found such a violation, the Board went on to consider granting a remedy of binding arbitration to settle the first collective agreement pursuant to its powers under section 99(1)(b.1). After careful analysis, the Board concluded that such a remedy, while available under the Code, was reserved for exceptional situations, and was not appropriate given the facts before it.

In arriving at its conclusion, the Board reviewed the framework for collective bargaining under the Code, which includes a provision for the Minister of Labour to direct the Board to inquire into a dispute and if the Board considers it advisable to settle the first collective agreement between the parties (section 80(1)). The analysis of section 99(1)(b.1)’s place in this framework highlighted that, while the Board may order binding arbitration for a violation of section 50(a), it will not do so lightly in first collective agreement situations given the explicit role of the Minister of Labour under the Code.

Ultimately, the Board focused its remedy on the fact that section 99(1)(b.1) gives the Board power to direct certain “terms” of a collective agreement and crafted a remedy to that end. In the interest of respecting free collective bargaining under the framework of the Code, the Board ordered the parties to return to the bargaining table to attempt to conclude a first collective agreement within 30 days and then set out the specific terms that it would order for such an agreement should they not be able to reach a freely negotiated agreement within that time frame.

In conclusion, the Intek decision provides parties with a useful explanation of the intricacies of remedying bad faith bargaining in first collective agreement situations.

Comings and Goings

Appointments

Judith MacPherson
Ms. Judith MacPherson, Q.C., has been reappointed as a full-time Vice-Chairperson of the CIRB for a three-year term, effective April 25, 2013. Ms. MacPherson had been a Vice-Chairperson of the CIRB since 2007 and previously served in the same role on the New Brunswick Labour and Employment Board from 2000–06. The CIRB congratulates Ms. MacPherson on her reappointment.

Richard Brabander, Member

Richard Brabander
The Minister of Labour announced the appointment of Mr. Richard Brabander as a full-time member representing employers for a three-year term, effective May 6, 2013. Mr. Brabander has over 30 years of experience as a prominent labour and employment lawyer. Prior to his appointment to the CIRB, Mr. Brabander had been a partner at Heenan Blaikie LLP for 10 years, after serving as the Assistant General Counsel at Bell Canada for 21 years.

The CIRB welcomes Mr. Brabander and looks forward to working with him.

Review of Status of the Artist Act procedural Regulations

The Canada Industrial Relations Board is currently developing proposals to modify the Canadian Artists and Producers Professional Relations Tribunal Procedural Regulations to ensure better alignment of the policies, procedures and practices under the Status of the Artist Act with the CIRB’s current practices, while taking into account the unique circumstances of the cultural sector. The CIRB has prepared a consultation chart with proposed amendments to the Regulations which is available on its Website.

The CIRB is seeking comments from the client community on the proposed amendments and invites artists, artists’ association, producers and other stakeholders to provide their views. Consultation sessions were held in Toronto, Ottawa and Montréal in June 2013. A consultation session will also be held in Vancouver on September 6, 2013. Please consult the CIRB’s Website (www.cirb-ccri.gc.ca) if you wish further information regarding this initiative.

The CIRB will also accept written comments on the proposed changes until September 10, 2013.

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