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CERTIFICATION - Application - Displacement applications

Wednesday, December 04, 2019 @ 7:59 AM  

Application by the Canadian Airport Workers Union for judicial review of a decision of the Canada Industrial Relations Board dismissing the applicant’s application to displace the respondent as the bargaining agent for airport security personnel. The Board found that the applicant’s membership information was unreliable and that its membership evidence fell short of showing that it had the support of the majority of the employees in the bargaining unit. The Board delegated its investigation powers to several Industrial Relations Officers to verify and test the membership information submitted by the applicant and the revocation information submitted by the respondent. The Officers’ investigation disclosed that a significant number of employees who signed membership applications did not pay the required fee and, in at least one instance, it found that payment had in fact been made on behalf of the employee by someone else. The Board had consistently held that the payment of the membership fee by an employee was a substantive requirement and not a mere technicality. The Board concluded that the number of irregular membership cards was sufficient to raise serious concerns and doubts as to whether any of the applicant’s evidence filed reflected the employees’ true intentions and that the irregular membership evidence tainted the entirety of the applicant’s membership evidence. In determining the applicant’s level of support, the Board excluded only those membership applications that it believed were not accompanied by the payment of the fee and the pre-certification screeners whose inclusion was challenged by the applicant and groups of absent employees such as those on medical leaves of absence, work-related injury leave, or those on miscellaneous leaves of absence. The applicant argued that the Board denied it procedural fairness when it decided its certification application based on the confidential investigation reports, thereby denying it the fundamental right of knowing the case it had to meet and allowing it to be heard. The applicant also argued the Board erred in failing to order the production of additional employee lists to clarify the number of employees in the bargaining unit and in failing to order a representation vote given the history of divided loyalties in the bargaining unit.

HELD: Application dismissed. The confidentiality of evidence of membership support protected employees from potential reprisals for their support for a union or for one union over another. The applicant knew or should have known the issues that the Relations Officers were investigating. The respondent’s reply to the applicant’s application for certification specifically put evidence of membership support in issue. The Board’s jurisprudence on this issue was explicit, consistent and longstanding. The applicant’s right to know the case it had to meet and its ability to respond might have been constrained by considerations that were specific to labour law, including the overriding need to protect the confidentiality of employee wishes, but these constraints were well known and were endorsed by the Courts. In the circumstances, the applicant’s right to procedural fairness was not breached. The Board’s failure to order production of employee lists did not impair the applicant’s ability to make its case on the issue of the size of the bargaining unit. The Board’s position was that the production of additional lists would not have assisted it in determining who should be included in the bargaining unit. It was not unreasonable for the Board not to order a representation vote. By adopting the 50 per cent plus one policy, the Board ensured that the bulk of the employees were serious about changing bargaining agents and that they expressed their sincerity by joining the union seeking to take over the bargaining rights. Given the Board’s specialized knowledge in labour relations and given that the Board had come to know these parties through their frequent appearances before it, there was a compelling case for deference to the Board’s exercise of its discretion not to order a representation vote.

Canadian Airport Workers Union v. International Association of Machinists and Aerospace Workers, [2019] F.C.J. No. 1208, Federal Court of Appeal, J.D.D. Pelletier J.A. and J.M. Woods A.C.J. and J.B. Laskin J.A., October 22, 2019. Digest No. TLD-December22019009