CIRB Newslink–Summer 2016

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Message from the Chairperson

Ginette Brazeau, Chairperson

I am pleased to share the summer 2016 edition of the Canada Industrial Relations Board (CIRB) Newslink. I take this opportunity to share some information regarding the Board’s performance and activities.

The Board’s overall workload remains high and over the average of just a few years ago. However, the Board’s complement of members has been reduced by half from one year ago due to the expiry of several Board members’ mandates. It is increasingly challenging to schedule hearings of tri-partite panels in a timely fashion and there is a concern that the Board’s processing times will be impacted negatively. We look forward to new appointments to the Board so that we can continue to maintain the rate of disposition and processing times at the successful levels that were achieved in recent years.

Since June 2015, the Board deals with applications for certification and revocation in accordance with the new provisions of the Code and Rules of procedure that the Board adopted on an interim basis. The Board has processed and addressed a number of applications pursuant to the new mandatory vote system and on average, is able to dispose of these applications within 27 days.

The Board is closely monitoring the progress of Bill C-4 as it makes its way through Parliament. If adopted, this Bill will amend the Canada Labour Code to reinstitute the previous provisions related to certification and revocation applications and revert back to a card check system. The Board is considering the best practices learned through its current expedited approach to determine which could be retained in a card check system to ensure a fair and efficient processing of these applications.

The creation and implementation of the Administrative Tribunals Support Service Canada (ATSSC) which was announced in 2014 is now well underway. The Board obtains all its staff, resources and support from that organization in order to deliver on its legislative mandate. And while the ATSSC works toward promoting synergies and achieving efficiencies in the support it provides to 11 very distinct administrative tribunals, the Board’s priority is to ensure that its expertise and approach to resolving labour relations disputes is recognized and remains a constant.

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

Upcoming Event

  • The CIRB is pleased to participate again this year in the planning and organizing of the Association of Labour Relations Agencies’ annual conference. ALRA is a US-Canadian association of provincial and federal labour relations boards, mediation agencies and labour departments. Advocates’ Day is part of ALRA’s annual conference. It is a unique program which brings together labour officials, labour and management representatives, public and private sector managers and labour relations neutrals from across the United States and Canada to hear national and regional speakers discussing key issues of the day.
  • Advocates’ Day will be held on July 18, 2016, at the Westin Nova Scotian in Halifax, N.S. For more information and registration details, visit www.alra.org.

Composition of the Board

Over the past few months a number of Board member’s terms have ended. The Board wishes to recognize the valuable contributions of Graham Clarke and Judith F. MacPherson, Vice-Chairpersons, Robert Monette and Richard Brabander, Members representing employers and Norman Rivard and Daniel Charbonneau, Members representing employees, and part-time members William Terence Lineker and Cynthia Catherine Oliver. The former Vice-Chairpersons and Members will complete their duties related to matters still pending and to which they were assigned as members of the Board.

The Canada Industrial Relations Board is currently composed of Ginette Brazeau, Chairperson; Louise Fecteau, Patric F. Whyte, Allison Smith and Annie G. Berthiaume, Vice-Chairpersons; André Lecavalier, Member representing employers; Gaétan Ménard, Member representing employees. A biography for each Board Member can be found on our Website.

Workload

The nature of the demand for Board services vary from year to year, depending on a number of factors including the state of the economy. The number of incoming applications/complaints in the last two fiscal years has increased to a level significantly higher than the average number of cases in the previous two fiscal years. A total of 715 applications/complaints were received in 2015–16, which is consistent with the number of matters received in 2014–15. This level of cases represents an increase of 30% over the previous two years (2012–13 and 2013–14).

Chart 1 shows that unfair labour practice (ULP) complaints represented just over 36% of incoming matters in 2015–16. Of this number, duty of fair representation complaints (DFR) represented 24.1% of cases and other ULP complaints represented 12.3 % of cases. Applications for certification and reviews also represented a significant portion of incoming matters, at 11.7% and 26% respectively.

Chart 1–Applications/Complaints Received 2015–16

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Chart 2–Average Processing Time

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Recent CIRB Cases–Summary Notes

Westjet, an Alberta Partnership, 2015 CIRB 785

The Board considered the validity and reliability of membership evidence filed in support of a certification application which was collected by way of mailed in cards and payment through an electronic service provider (PayPal). The Board found that the process put in place by the union through its website allowed employees to decide to join the union freely and voluntarily and provided sufficient measures to ensure that the evidence filed met the Board’s requirements. With respect to the use of PayPal, even though a portion of the $5.00 payment went to the service provider, the Board held that the act of making the payment in support of the membership application was sufficient to demonstrate the commitment of the individual to join the union. Although the process used to collect membership evidence was non-traditional, the Board was unable to find evidence of misrepresentation, fraud or irregularities which would render the evidence invalid or unreliable.

N.B. upheld on reconsideration: Westjet, an Alberta Partnership, 2016 CIRB 806.

Waycobah First Nation, 2015 CIRB 792

In dismissing the union’s certification application for a unit of employees at Waycobah’s Fishery, the Board concluded that: first, the Fishery was not a federal undertaking in and of itself; second, the Fishery was not vital, essential or integral to Waycobah First Nation as a federal undertaking; and third, the Fishery was not a treaty rights-based fishery.

The United Food and Commercial Workers Canada Union, Local 864, filed a certification application to represent a bargaining unit of employees at Waycobah’s Fishery, a fishery operated by the Waycobah First Nation (Waycobah) on Cape Breton Island in Nova Scotia.

In response, the employer, Waycobah, contested the Board’s jurisdiction on three grounds: i) the Code did not apply to its fishing activities; ii) even if a First Nations Band could be a federal undertaking, Waycobah’s Fishery was neither vital nor essential to it; and iii) Waycobah’s fishing activities had no connection to any of its established treaty rights, which were still being negotiated.

First, the Board applied the functional test as directed by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696. In doing so, it relied on the Fox Lake Cree Nation v. Anderson, 2013 FC 1276 decision of the Federal Court and focussed the functional test on the activity being conducted, rather than on the Band’ Council’s overall operations. After applying the functional test, the Board concluded that the Fishery was not a federal undertaking. It found that the essential operational nature and habitual activities of the Fishery were to fish commercially off the reserve. The employees did not assist the Band in carrying out its general administration or governance functions (distinguishing this case from the Federal Court decision in Canada (Attorney General) v. Munsee-Delaware Nation, 2015 FC 366). The fact that the Fishery did provide the Band with some additional resources to better the lives of its members was not conclusive.

Second, the Board applied the derivative jurisdiction analysis and looked at whether the Fishery was vital, essential or integral to the operations of the federal undertaking. The Board concluded that while Waycobah was a federal undertaking because it was a First Nations Band (as confirmed in Munsee Delaware Nation and Francis v. Canada Labour Relations Board, [1981] 1 F.C. 225), the Fishery’s were not vital or essential to it. It found that contributing to Band revenues was not sufficient to satisfy the derivative jurisdiction test.

The evidence did not indicate that Waycobah could not operate without the continued support of the Fishery.

The Board contrasted this finding with Northern Telecom Canada Limited et al. v. Communication Workers of Canada et al., [1983] 1 S.C.R. 733 and Raytheon Canada Limited, 2015 CIRB 789, which found, respectively, that Bell Canada could not have operated its telecommunications undertaking without Telecom installers’ continuous work, and that the Canadian Forces could not have monitored intrusions into Canadian airspace without the contractor meeting its obligations to keep the NWS radar infrastructure up and running.

Finally, the Board dismissed the argument that Waycobah’s fishing activities were subject to the Code as a result of treaty rights for lack of evidence: both the Crown and the participating First Nations agreed that the transfer of assets from the federal government to create the Fishery were without prejudice to treaty rights; that the Fishery was purely commercial; and that treaty negotiations were continuing in Nova Scotia about many issues, including fishing.

AJW Technique Inc., 2016 CIRB 814

The Association of AJW Technique filed an application for certification to displace the IAMAW as the bargaining agent for a unit of employees at AJW Technique. The Board dismissed the application without holding a vote, due to substantive defects with the membership evidence. In addition to evidence of non-payment of the $5.00 fee, the Board found that a number of employees who signed cards were sufficiently confused about the identity of the applicant trade union to put into question the reliability of those cards. The Board also found that membership cards which were signed before the date of creation of the trade union were not reliable.

Tom Panelli retires after 19 years with the CIRB

Tom Panelli, Regional Director

Tom Panelli recently retired from his position as the Regional Director, Western Region at the Canada Industrial Relations Board. Tom distinguished himself by constructing a career built on trust, confidentiality and long-standing relationships with the Board’s clients.

Tom came to the Board in 1997 and, over the years, worked tirelessly on behalf of the Board to assist clients find labour relations solutions in many complex and lengthy disputes. His skills and abilities to think outside the box, to forge relationships and to establish common ground are some of the characteristics that earned him great respect as a mediator. His practical approach made him highly effective in his dealings with all clients, from the most sophisticated to the self-represented individual who sought help from the Board.

Prior to joining the Board, Tom had been a business manager with the IBEW local 348 in Alberta and represented the workers of Alberta Government Telephone. In this capacity, Tom was intimately involved in litigation that eventually led to the Supreme Court of Canada’s declaration that all provincial telephone companies fell within federal jurisdiction. However, this effectively left the provincial crown corporation in a legal vacuum and prompted the enactment of section 5.1 of the Canada Labour Code which expresses Parliament’s clear intention to apply the Code to provincial crown telecommunications corporations.

Board members and staff recognize Tom for his immeasurable contribution to the success of the Board and wish him well on his well-earned retirement.

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