FPSLREB Decisions

Application before the Board

1 On December 17, 2013, counsel for the Communications, Energy and Paperworkers Union of Canada (CEP) and Unifor applied to the Public Service Labour Relations Board ("the Board") for a review of an order pursuant to sections 17 and 36 of the Parliamentary Employment and Staff Relations Act ("the Act"). In accordance with section 17 of the Act, the Board may "… review, rescind, amend, alter or vary any decision or order made by it, or may re-hear any application before making an order in respect thereof." As for section 36 of the Act, it deals with successor rights and obligations.

2 In its application, counsel for the applicant requested that the Board review and amend its certificate dated March 24, 1987 and amended on August 14, 1995 in Board File No. 442-HC-1, declare that Unifor is the successor of CEP by reason of a merger, and declare that Unifor has acquired all of the rights, privileges and duties of CEP, including all rights, privileges and duties set out in the certificate and in the collective agreement between the CEP and the House of Commons, effective from June 14, 2012, to March 31, 2014.

3 At this point, a brief review of the factual background involved in this application is in order.

4 The CEP is, pursuant to the Act, the certified bargaining agent for the bargaining unit composed of all employees of the House of Commons in the Technical Group. This bargaining unit has, since March 24, 1987, been continuously represented by the CEP and its predecessors, when a certificate was issued to the National Association of Broadcast Employees and Technicians (NABET) by the predecessor to this Board, the Public Service Staff Relations Board (PSSRB) in PSSRB File No. 442-HC-1.

5 A new certificate was issued by the PSSRB on August 14, 1995 on the grounds that the bargaining agent's name had been changed and was now CEP.

6 The Board then issued a new certificate confirming that CEP was the bargaining agent for all employees of the employer in the Technical Group. CEP and the House of Commons have bargained collectively and have entered into collective agreements, the most recent of which expires on March 31, 2014.

7 Unifor is a newly established trade union formed by the merger, in the late summer of 2013, of two predecessor trade unions, one of which is the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada). The second of these predecessor trade unions was the Communications, Energy and Paperworkers Union of Canada (CEP).

8 The two trade unions engaged in preliminary discussions in late 2011 and early 2012 with respect to joining together to form a new Canadian union. The first two-day leadership meeting occurred in November 2011, and it was agreed that the informal discussions should serve as the springboard for a discussion paper, which paper was published in December 2011 and was entitled: "A Moment of Truth for Canadian Unions". This discussion paper generated significant media coverage and debate.

9 In January 2012, a second, larger union leadership meeting was held by CAW-Canada, and a firm plan to move the initiative forward was determined. These steps led to the National Executive Board of each union unanimously approving a process to continue the discussions in greater depth.

10 On January 26, 2012, CEP and CAW-Canada issued correspondence to each of their respective local unions, announcing the decision to engage in these discussions. The correspondence included a protocol agreement and timetable documents which would govern the future discussions. A media release was also jointly distributed by CEP and CAW-Canada which announced the following:

Under the process protocol, a representative committee will work over the coming months to investigate specific issues related to a new union (including dues and finances, representative structures and regional issues). It will issue a report on whether a new union is feasible and desirable in time for the upcoming convention of both unions … Both unions pledge a high degree of transparency concerning the work of the process committee, including the establishment of a joint website devoted to the project.

The CAW/CEP Proposal Committee was struck as contemplated by the Protocol Agreement. The members of the Committee consisted of senior leadership from both organizations.

11 The purposes of the Proposal Committee were to discuss the issues relating to the establishment of a new Canadian union and to make proposals regarding its main principles and structures.

12 On February 25, 2012, the first meeting of the Proposal Committee assembled in Toronto. The Committee prepared a report of its activities over the last days of February 2012, and this first report was delivered by email or mail to all CAW-Canada locals and was released to the media for broader public distribution. Also, the report was published on a temporary web page accessible through the CAW-Canada and CEP's websites.

13 In April 2012, approximately 700 democratically elected delegates attended a meeting of the CAW-Canada Council, and a resolution was unanimously approved, endorsing the discussions undertaken with CEP with respect to the formation of a new union. On August 1, 2012, the leadership of CAW-Canada and CEP jointly released the Proposal Committee's final report, entitled "Towards a New Union," encapsulating the work of the Committee.

14 That same day, on August 1, 2012, the leadership of both CEP and CAW-Canada jointly released the Proposal Committee's final report, referred to above, at a live-streamed press conference. The final report established a detailed template for the desired new union. It recommended the terms of a preamble, statement of principles, formal structure and system of governance, including details with respect to the makeup, role and proceedings of a union convention, national executive board, and regional, Quebec, Canada and industry councils.

15 The final report also proposed a resolution to be adopted by the CAW-Canada and CEP at their respective conventions in August and October 2012. The resolution put forward stated as follows:

Whereas the report of the Proposal Committee of the new union project has fulfilled the mandate set out in the joint protocol of the CAW and CEP Executive Boards, and

Whereas the report of the Proposal Committee describes the purposes, goals and objectives, structure, finances and other main operating principles of a new union,

Therefore be it resolved that the (CAW Convention) (CEP Convention) accepts the recommendation of the Proposal Committee to cooperatively create a new Canadian union based on the proposals set out in the report, and

Be it further resolved that the Executive Board of each union establish working groups to prepare the constitution and other founding documents and to organizing [sic] a Founding Convention of the new union in 2013.

16 On August 20-24, 2012, CAW-Canada held a CAW Constitutional and Collective Bargaining Convention, at which nearly 1000 democratically elected delegates voted unanimously in favour of the resolution to create a new union in concert with CEP, pursuant to and in conformity with the contents of the Proposal Committee's final report.

17 On October 14, 2012, the Constitutional Convention of CEP was held, and the resolution expressed in the Proposal Committee's final report was put to the delegates, with over 90% of those in attendance voting in favour of the resolution calling for the creation of a new union in concert with CAW-Canada.

18 The proposed draft constitution of the new union, proposed merger agreement and supporting policies were considered by the CAW-Canada's National Executive Board and approximately two dozen senior staff members on March 18-21, 2013, and with certain minor amendments to the constitution, it approved a slightly revised version of the documents as the basis for the path forward. Likewise, the same foundation material was placed before CEP's National Executive Board in the course of meetings on March 27-28 and April 9, 2013, and with minor changes proposed, it also voted to support the foundation documents as the way forward for the new union.

19 Based on the feedback received, certain changes and clarifications were made to the draft constitution, and on May 27, 2013, the Proposal Committee came together for a final meeting to review the draft constitution. On May 28, 2013, it was then put before the CAW-Canada's National Executive Board and was approved as the foundation document to be submitted to the Founding Convention. Also, the National Executive Board unanimously approved a resolution to call a special CAW convention, commencing August 30, 2013, in Toronto.

20 At meetings held on May 28-29, 2013, the CEP National Executive Board resolved to call an "Article 18" Convention, and it unanimously decided to submit the proposed merger agreement and draft new union constitution to the CEP Article 18 Special Convention and the new union convention. The CEP National Executive Board also endorsed a resolution approving the proposed merger agreement and draft constitution.

21 On June 18, 2013, a call letter for the Special Convention and Founding Convention was issued to all CAW-Canada local unions and subordinate bodies. Article 9, section 16, of the CAW-Canada's constitution permits the CAW-Canada National President to call a special convention. Included in the special convention call was a copy of the proposed constitution of Unifor and a copy of the proposed merger agreement between CAW-Canada and Unifor, as well as a proposed constitutional amendment to article 8, section 1, of the CAW-Canada constitution, to allow a majority of the National Executive Board to approve a merger with another trade union.

22 Every CAW-Canada local union president was mailed a copy of the call letter and supporting materials, and every CAW-Canada local union recording secretary and financial secretary received a copy of the call letter. The materials were mailed on June 19-20, 2013, well in advance of the special convention.

23 The CEP's constitution also provided for the assembly of a special convention when such was authorized by members of its National Executive Board and established a procedure by which the CEP could merge with another union. At meetings held on May 28-29, 2013, the CEP National Executive Board also endorsed a resolution approving the proposed merger and draft constitution and called a special convention. On June 7, 2013, the CEP delivered to each of its local unions a copy of the call letter specifying the time and location of the special CEP convention and the ensuing founding convention of Unifor. On June 18, 2013, approximately two weeks after sending the call letter, copies of the proposed constitution of Unifor and the proposed merger agreement between CEP and Unifor were delivered to all CEP local unions.

24 The CAW-Canada Special Convention was held on August 30, 2013, and the resolution to amend the CAW-Canada constitution, described in paragraph 17, was unanimously adopted by the delegates in attendance. As a result, article 8 of section 1 of the constitution now provided that if a majority of the National Executive Board members agreed, the Board could approve a merger with another trade union or bring another trade union into CAW-Canada.

25 On August 29, 2013, the day prior to the CEP Special Convention, the CEP's National Executive Board met and unanimously adopted a resolution which specifically called for the CEP Special Convention to approve the merger with Unifor. The CEP Special Convention was convened on August 30, 2013, and the resolution calling for the Special Convention to approve the merger with Unifor was approved, with 79.74% of votes cast in favour of the resolution. The CEP delegates to the Special Convention were duly authorized and empowered to approve the resolution effecting the merger of CEP with Unifor and the transition of bargaining rights, assets and property to Unifor. This decision was reaffirmed on August 31, 2013, once Unifor was created.

26 Unifor's Founding Convention took place on August 31 and September 1, 2013. A total of 1600 persons registered as delegates or participants. Of these 1600 delegates, 681 persons were CAW-Canada delegates, all of whom were delegates to the CAW-Canada Special Convention. Further, 919 persons were registered as delegates on behalf of CEP, all of whom had been delegates at the CEP Special Convention.

27 Of a total of 1516 electronic ballots cast, 1418 were cast in favour of adopting the proposed constitution for the new union. If assessed on a weighted scale depicting the number of members from CAW-Canada and CEP represented by delegates, the constitution was adopted by a weighted vote of 248,800 members/ballots versus 11,611.

28 Elections of the first National Executive Board of Unifor were held, and its members were either elected or acclaimed. A motion was then made to approve the merger agreements between CEP and Unifor and CAW-Canada and Unifor. The CAW-Canada and CEP delegates voted separately using an electronic secret ballot and secure voting system, which segregated the CAW-Canada votes from the CEP votes. Of the 448 ballots cast by CAW-Canada delegates, 444 voted in favour of the merger. Of the 669 CEP ballots cast, 638 voted in favour of approving the merger agreement.

29 The merger of CAW-Canada with Unifor and of CEP with Unifor was effected principally, but not exclusively, by paragraphs 1 and 2 of the respective merger agreements. Paragraphs 1 and 2 of the CAW-Canada merger agreement state as follows:

1. Unifor and CAW-Canada agree to merge pursuant to the terms of this merger agreement … upon ratification by both parties thereof … Accordingly, it is agreed that Unifor is the successor to the CAW-Canada, and that Unifor shall acquire the rights, privileges and duties of the CAW-Canada as of the Effective Date. All CAW-Canada Local Unions shall upon the merger, become Local Unions of Unifor….

2. Unifor shall forthwith … issue Unifor Charters to each CAW Local Union, and each of the Unifor Locals so continued … shall … become the successors to the said CAW Local Unions; and each Unifor Local shall retain and acquire the rights, privileges and duties of the respective CAW Local Union to which it has succeeded….

30 Paragraphs 1 and 2 of the CEP and Unifor merger agreement provided that each CEP local union automatically becomes a Unifor local union and provided for the issuance by Unifor of a new local union charter to each successor local union. Those paragraphs are reproduced below and state:

1. Unifor and CEP agree to merge pursuant to the terms of this merger agreement … upon ratification by both parties thereof … Accordingly, it is agreed that Unifor is the successor to the CEP, and that Unifor shall acquire the rights, privileges and duties of the CEP as of the Effective Date. All CEP Local Unions shall upon the merger, become Local Unions of Unifor….

2. Unifor shall forthwith … issue Unifor Charters to each CEP Local Union, and each of the Unifor Locals so continued … shall … become the successors to the said CEP Local Unions; and each Unifor Local shall retain and acquire the rights, privileges and duties of the respective CEP Local Union to which it has succeeded….

31 As regards the collective bargaining rights of the predecessor unions, the operative terms of the CAW-Canada and CEP merger agreements with Unifor were similar. Paragraphs 12 to 14 of the merger agreements provided the following:

12. Any and all collective bargaining rights of (CAW or CEP) acquired by certification, recognition, the provisions of a collective agreement or by any other means, together with all rights and privileges of (CAW or CEP) under any applicable statute, collective agreement or law, shall be automatically transferred to Unifor on the Effective Date.

13. Any and all collective bargaining rights of any (CAW Local Union or CEP Local Union), acquired by certification, recognition, the provisions of a collective agreement, or by any other means, on the Effective Date shall be automatically transferred to its successor Unifor Local Union together with all rights, and privileges of each such (CAW Local Union or CEP Local Union) under any collective agreement, statute or law.

14. As of the Effective Date of the merger, Unifor and /or its Locals shall assume all collective bargaining and representation rights and responsibilities previously held by (the CAW and/or its Locals and the CEP and/or its Locals).

32 The present application states that Unifor is an employee organization within the meaning of subsection 2(1) of the Act, and by virtue of a merger agreement between Unifor and CEP and by virtue of the constitutions of both organizations, Unifor is therefore the successor of CEP. The application carefully set out 18 pages of facts in support of its contention that the constitutional rules of each of the predecessor organizations were adhered to in creating Unifor and its contention that Unifor has the status of a trade union in law and is an employee organization for the purposes of the Act. Appended to the application were several documents in support of the application, including the Unifor constitution and the merger agreements.

33 Following receipt of the present application, the Board acknowledged receipt of the application by letter addressed to both the Unifor National Office and the Manager of Labour Relations at the House of Commons, a respondent to this application. On January 17, 2014, the respondent replied to the Board's letter, advising that it took no position on the application, subject to two points. The first point reminded the Board that the application had been made under the Parliamentary Employment and Staff Relations Act. The second proviso stated as follows:

The second point is that the Applicant asks for a Declaration "that Unifor has acquired all of the rights, privileges and duties set out in the certificate … and a collective agreement between CEP and the House of Commons, effective from June 14, 2012 to March 31, 2014." It is noted that the Applicant only addresses its "rights, privileges and duties" under the certificate and the collective agreement. The employer would ask that if such a declaration is made that the Board also require Unifor to respect any obligations, commitments and undertakings made by the CEP in its dealings with the employer under the Act. These can included statements and positions taken through, and pending in, grievances and complaints that may have their genesis in not only the collective agreement but also under the Act.

The Board acknowledged receipt of the above response on January 20, 2014, and advised the parties that the file would be referred to the Board.

34 Subsection 17(1) and section 36 of the Act read as follows:

  17. (1) Subject to subsection (2), the Board may review, rescind, amend, alter or vary any decision or order made by it, or may re-hear any application before making an order in respect thereof.

…

  36. Where, on a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations otherwise than as a result of revocation of certification, any question arises concerning the rights, privileges and duties of an employee organization under this Part or under a collective agreement or arbitral award in respect of a bargaining unit or an employee therein, the Board, on application to it by any employee organization affected, shall examine the question and may, in accordance with any regulations made by it in respect thereof, declare or determine what rights, privileges and duties, if any, have been acquired or are retained, as the case may be, by that employee organization.

Reasons

35 On the basis of the file before me, the Board recognizes thatthe CEP and CAW-Canada have merged from Unifor and that Unifor is now the successor organization and has acquired all the rights, privileges and duties of the former CEP, including all the rights, privileges and duties set out in the Act, its certificate and the collective agreement effective from June 14, 2012, to March 31, 2014 with respect to the Technical Group. Moreover, the Board agrees that Unifor is an employee organization within the meaning of section 3 of the Act.

36 Unifor has shown that the merger was effected in accordance with the constitutions of each of the two former trade unions, and in particular that of CEP, and that the merger was approved not only by a strong majority of those to whom such decisions belong, in accordance with the constitutions of both constituent organizations, but also by the union's delegates.

37 The merger agreement between CEP and Unifor indicates that Unifor is the successor organization to CEP and as such acquires "the rights, privileges and duties" of the organization to which it has succeeded.

38 Lastly, I must address the employer's request that the Board issue an order requiring Unifor to respect any obligations, commitments and undertakings made by CEP under the Act, "… including statements and positions taken through and pending in grievances and complaints that had their genesis in not only the collective agreement but also in the Act." Given that I have held that Unifor is the successor organization to CEP and has acquired all of the rights, privileges and duties of the CEP, I consider that the first part of counsel's request has been addressed and is supported by the wording of the Act. As for the request that I require Unifor to respect "… statements and positions taken through and pending in grievances and complaints," I decline to do so. In his letter to the Board, counsel simply made the request but did not provide either authority or jurisprudence for it. Also, given that Unifor is now the successor organization to the CEP, the House of Commons has the ability to raise issues such as those outlined above by way of the usual methods available to it under the Act in the event that it is of the opinion that Unifor has violated any of its obligations towards the employer.

39 For all of the above reasons, the Board makes the following order:

Order

40 The application is allowed, and Unifor is certified as the bargaining agent for the bargaining unit comprised of "All employees of the Employer in the Technical Group." The certificate will be amended accordingly.

February 5, 2014.

Renaud Paquet,
a panel of the Public Service
Labour Relations Board