FPSLREB Decisions

Application before the Board

1 Under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, the Public Service Staff Relations Board (“the former Board”) certified the United Food and Commercial Workers Union, Local 832 (“the respondent”) as the bargaining agent for the bargaining unit comprised of “… all employees of CANEX employed at C.F.B. 17th Wing, Westwin, Winnipeg, Manitoba …” (“the bargaining unit”): United Food and Commercial Workers Union, Local 832 v. Staff of the Non-Public Funds, Canadian Forces, PSSRB File No. 142-18-316 (19960725).

2 On April 1, 2005, the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed into force. Pursuant to section 48 of the Public Service Modernization Act, the respondent continued to be certified as the bargaining agent for the bargaining unit.

3 On August 20, 2007, the Staff of the Non-Public Funds, Canadian Forces (“the applicant”) applied to the Public Service Labour Relations Board (“the new Board”) for the revocation of the respondent’s certification as the bargaining agent for the bargaining unit.

4 The applicant filed its application under section 99 of the new Act, which reads as follows:

  99. The Board must revoke the certification of an employee organization if the employee organization advises the Board that it wishes to give up or abandon its certification or if the Board, on application by the employer or any employee, determines that the employee organization has ceased to act as bargaining agent.

5 The applicant stated the following reasons for its application:

On or about 3 April 2005, the Employer ceased all CANEX operations at 17 Wing Winnipeg indefinitely and all employees in the bargaining unit were released on an administrative basis in accordance with their Collective Agreement. Since that date, no employee has been employed by the Employer in the certified bargaining unit as described in paragraph 4 of this application.

On 14 August 2007, the Collective Agreement expired and neither party has provided notice to bargain to the other in accordance with section 105 of the Public Service Labour Relations Act (PSLRA).

Given that no employees have been members of the bargaining unit certified since 3 April 2005 and given that the Bargaining Agent has not provided notice to bargain, the Employer submits that the United Food and Commercial Workers Union, Local 832 has ceased to act as bargaining agent for this bargaining unit in accordance with section 99 of the PSLRA. The Employer further submits that the Board may properly consider the lack of notice to bargain as evidence that no interest has been expressed by either party to continue the life of the existing certification and it may use this evidence towards the inference that no public policy purpose would be served by continuing this certification (Hickson, Berthiaume and Berliquette v. Hospitality and Service Trades Union, Local 261, [2007] PSLRB 57 at para. 14).

6 The respondent replied to the application on September 11, 2007. It stated its opposition to the application as follows:

The Respondent does not dispute the fact that there are no employees in the bargaining unit. However, it is the Respondent’s position that the certification should stand in anticipation that operations at the 17^th Wing Winnipeg could reopen in the future and we should maintain bargaining rights for future employees who would be employed by the Employer.

Furthermore, the Respondent has not ceased to act as bargaining agent for the bargaining unit described in the Applicant’s application. It is the Respondent’s position that it has only been approximately one month since the expiry of the Collective Bargaining Agreement and the fact that no notice to bargain has been given by either party is not enough to prove that the Respondent has ceased to be the bargaining agent.

7 The new Board asked the parties whether the matter should be decided based on written submissions. The applicant replied by filing formal written submissions on November 5, 2007. The respondent indicated on November 21, 2007, that it did not object to dealing with the matter by written submissions.

8 On December 3, 2007, the respondent wrote to the new Board and stated that “… after careful review of the Applicant’s submissions, the Union wishes to withdraw its objection to the … application.”

9 The Chairperson of the new Board has appointed me as a panel of the Board to determine this matter.

Summary of the arguments

10 The respondent has indicated that it no longer opposes the application based on its review of the applicant’s written submissions. The following reproduces the substance of the applicant’s arguments:

…

4. At the time [the] certification was granted, the unit comprised approximately thirty (30) employees. The parties bargained collectively for the benefit of these employees and concluded Collective Agreements on four occasions, the most recent of which took effect on 1 December 2004 and expired on 14 August 2007.

5. On 2 April 2005, the Employer ceased all CANEX operations at 17 Wing Winnipeg indefinitely. All employees in the bargaining unit were notified of the deletion of their positions and were administratively released with entitlements as provided under their most recent Collective Agreement.

6. There are no longer any employees in the bargaining unit and the Employer has since made no decisions to reopen CANEX operations at 17 Wing Winnipeg.

   …

7. The Respondent has submitted … that operations could reopen in the future and that the bargaining rights in place should be maintained for future employees who would be employed by the Applicant. The Applicant respectfully submits that the Public Service Labour Relations Act, S.C. 2003, c. 22, s.2 [hereinafter the PSLRA] does not allow for such considerations.

8. In accordance with section 99 of the PSLRA, the Board must revoke the certification of the bargaining agent if it finds that “the employee organization has ceased to act as bargaining agent.”

8. [sic] The Applicant respectfully submits that this Application should be granted having regard to subsection 2(1) of the PSLRA, which includes the following definition of a “bargaining unit”:

   “bargaining unit” means a group of two or more employees that is determined by the Board to constitute a unit of employees appropriate for collective bargaining.”

   With no employees remaining in the bargaining unit previously certified, the Applicant submits that there can be no bargaining unit for which the United Food and Commercial [sic]Union, Local 832 can act as bargaining agent.

   This reasoning has been adopted by the Public Service Staff Relations Board on numerous occasions using a substantially similar definition of “bargaining unit” under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35:

   Canada (Canadian Forces, Staff of the Non-Public Funds) and Public Service Alliance of Canada, [1996] C.P.S.S.R.B. No. 87 (QL); Canada (Canadian Forces - Staff of the Non-Public Funds) and Public Service Alliance of Canada, [1996] C.P.S.S.R.B. No. 98 (QL); Canada (Canadian Forces - Staff of the Non-Public Funds) and Public Service Alliance of Canada, [1996] C.P.S.S.R.B. No. 99 (QL); Canada (Canadian Forces, Staff of the Non-Public Funds) and United Food and Commercial Workers Union, Local 864, [1997] C.P.S.S.R.B. No. 27 (QL); Canada (Canadian Forces, Staff of the Non-Public Funds) and United Food and Commercial Workers Union, Local 864, [1997] C.P.S.S.R.B. No. 28 (QL); National Research Council and Research Council Employees’ Assn., [1997] C.P.S.S.R.B. No. 37 (QL); and Canada (Canadian Forces, Staff of the Non-Public Funds) and Public Service Alliance of Canada, [1997] C.P.S.S.R.B. No. 38 (QL) … .

   …

9. In the alternative, the Applicant submits that no public policy reason exists to continue this certification.

10. In its reply to the Application, the Respondent contended that it should not be considered to have ceased to act as bargaining agent by virtue of neither party having filed notice to bargain prior to the expiry of the most recent Collective Agreement alone. The Applicant admits that the failure to file notice to bargain within a month of the agreement’s expiry may not suffice alone to persuade this Board to revoke a certification, but submits that this failure to act must be read in the context of the relationship as a whole in which:

    1. the bargaining agent has failed to provide notice to bargain prior to the expiry of the most recent Collective Agreement between the parties and has still not filed notice to bargain to date;

    2. the Employer has failed to provide notice to bargain prior to the expiry of the most recent Collective Agreement between the parties and has still not filed notice to bargain to date;

    3. despite the argument of the Respondent, neither party has yet submitted evidence to the other of an intention to file notice to bargain;

    4. neither party has discussed the continued existence of the bargaining unit with the other since the closure of CANEX operations at 17 Wing Winnipeg between April 2005 and the time of this Application;

    5. no employees remain in the previously certified bargaining unit; and

    6. section 99 of the PSLRA requires that a bargaining agent never cease to act as bargaining agent or the Board must revoke its certification.

    With regard to these facts taken as a whole, the Applicant submits that the bargaining agent has ceased to act as the bargaining agent for this bargaining unit and that the Board may properly draw the inference that no public policy purpose is served by continuing the certification:

    Hickson, Berthiaume and Berlinguette v. Hospitality and Service Trades Union, Local 261, [2007] P.S.L.R.B. 57 … .

    …

 

Reasons

11 This application for revocation of certification is unopposed.

12 Decisions of the former Board that interpreted a statutory provision for revocation of certification substantially similar to section 99 of the new Act, as well as a definition of “bargaining unit” substantially similar to that found in subsection 2(1) of the new Act, granted applications for the revocation of certification where there were no longer any employees in the bargaining unit. These decisions found that since there were no employees, there could be no bargaining unit for which a bargaining agent could act: Staff of the Non-Public Funds, Canadian Forces v. United Food and Commercial Workers Union, Local 864, PSSRB File No. 150-18-39 (19970327); and Staff of the Non-Public Funds, Canadian Forces v. United Food and Commercial Workers Union, Local 864, PSSRB File No. 150-18-40 (19970327).

13 It is uncontested that no employees remain in the bargaining unit.

14 I am satisfied that the rationale for granting revocation of certification expressed in the decisions cited at paragraph 12 applies equally in this matter.

15 For all the above reasons, the Board makes the following order:

Order

16 The application is granted. The respondent’s certification as the bargaining agent for the bargaining unit is revoked. The certificate issued by the former Board on August 14, 1996, in PSSRB File No. 142-18-316 is also revoked.

January 4, 2008.

Dan Butler,
Board Member