Date: 19990111
Docket: A-910-97
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
AMALGAMATED TRANSIT UNION, LOCAL UNION 1624
Applicant
- and -
VERGEL BUGAY and the CANADA LABOUR RELATIONS BOARD
Respondents
- and -
TRENTWAY-WAGAR INC.
Intervener
Heard at Toronto, Ontario, Monday, January 11, 1999
Judgment delivered from the Bench
at Toronto, Ontario on Monday, January 11, 1999
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 19990111
Docket: A-910-97
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
AMALGAMATED TRANSIT UNION, LOCAL UNION 1624
Applicant
- and -
VERGEL BUGAY and the CANADA LABOUR RELATIONS BOARD
Respondents
- and -
TRENTWAY-WAGAR INC.
Intervener
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Monday, January 11, 1999)
STONE J.A.:
[1] This application is to review and set aside a reconsideration decision of the Canada Labour Relations Board (the "Board") of November 18, 1997. By that decision a panel of the Board, which had rendered a decision of September 18, 1997, was required to "examine the facts and circumstances relating to the intermingling of employees and consequent seniority list and to determine the application having regard to sections 18, and to subsections 45(3), and 98(3)1 of the Canada Labour Code (the "Code")." The "application" referred to in the decision of the Board came about when the Board decided to treat the respondent's written complaint as an application to reconsider the decision of September 18, 1997.
[2] In June 1996, Trentway-Wagar Inc. ("Trentway") announced that it would be acquiring certain bus lines and buses of Voyageur Colonial Limited ("Voyageur") in the province of Ontario. The acquisition would result in the transfer of some 42 employees of Voyageur to Trentway. Prior to the acquisition these employees were represented for purposes of collective bargaining by the National Automobile, Aerospace, Transportation and General Workers Union of Canada ("CAW-Canada"). Those of Trentway were represented by the ATU, Local 1624.
[3] In July 1996 CAW-Canada presented an application to the Board pursuant to sections 44 and 45 of the Code in which it sought a declaration that a sale of a business had taken place and that the CAW-Canada collective agreement was binding on Trentway and Voyageur and an order that there be two units appropriate for collective bargaining pursuant to paragraph 45(1)(a) of the Code i.e. the existing unit for which the applicant was the bargaining agent and a new CAW-Canada unit to cover the work arising out of the sale. The applicant took the position that there had not been a sale of business and, in any event, that there had been no intermingling of employees sufficient to invoke the jurisdiction of the Board under subsection 45(1) of the Code.
[4] While this application was pending before the Board, on May 30, 1997 the two unions and Trentway entered into a settlement of matters respecting which collective agreement would apply, which of the unions would be bargaining agent, and also agreed on the merging of seniority of the existing members of ATU, Local 1624 and those former members of the CAW who became members of the ATU, Local 1624 by virtue of the settlement of the sale of business application. The Board's staff assisted the parties in coming to this agreement. The settlement reached by the unions and Trentway was incorporated in the Board's consent order of September 18, 1997. The agreement as to the seniority was not formally approved by the Board. Instead, one of the recitals in the order stated that "the seniority of the ex-Voyageur drivers is established as set out in Schedule "A' hereto.".
[5] The applicant, supported by the intervener, contends that the Board was without jurisdiction to make the order of November 18, 1997 because, in effect, it would open up the agreement as to seniority which was reached on May 30, 1997, despite the fact that the 60-day period specified in subsection 45(3) of the Code had not expired and also because only a "party to a collective agreement" referred to in subsection 45(2) could present an application under subsection 45(3) of the Code.
[6] We are all of the view that the Board exceeded its jurisdiction in referring the respondent's complaint to the original panel of the Board for reconsideration. The provisions of a collective agreement dealing with seniority may be taken account of by the Board pursuant to subsection 45(4) of the Code only after it is presented with an application by a party to a collective agreement under subsection 45(3). However that subsection had not been invoked by a party to a collective agreement. As was stated by Pratte J.A. in Grainworkers' Union v. Prince Rupert Grain Ltd. (1989), 101 N.R. 105 (F.C.A.), at p. 107:
| The applicant's main argument in support of the application is that the Board exceeded its jurisdiction in deciding as it did because s.18 does not confer the power that the Board purported to exercise. |
| This argument is, in my view, well-founded. As stated by Ritchie, J., in Labour Relations Board of British Columbia and British Columbia Interior Fruit and Vegetable Workers' Union, Local 1575 v. Oliver Co-Operative Growers' Exchange, [1963] S.C.R. 7, at 14, s.18 does not "clothe the Board with authority to ignore specific provisions of the Act and to so vary its orders as to achieve by a 'short cut' a result which under the Act can only be achieved by taking certain specified steps". More precisely the Board cannot, under s.18, amend a decision made under another section of the Code so as to transform it into a decision that could not have been made under that other section. |
[7] The applicant and the intervenor concede that nothing in the Code prevents the Board from investigating the respondent's complaint under section 372 of the Code and of fashioning an appropriate remedy if the Board were to find that the provisions of that section had been violated.
[8] The section 28 application will be allowed and the Board's decision of November 18, 1997 set aside.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-910-97
| STYLE OF CAUSE: AMALGAMATED TRANSIT UNION, LOCAL UNION 1624 |
| Applicant |
- and -
| VERGEL BUGAY and the CANADA LABOUR RELATIONS BOARD |
| Respondents |
| - and - |
TRENTWAY-WAGAR INC.
Intervener
DATE OF HEARING: MONDAY, JANUARY 11, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: STONE J.A.
Delivered at Toronto, Ontario
on Monday, January 11, 1999
APPEARANCES: Mr. T. Craig Morrison
| For the Applicant |
Mr. Vergel Bugay
For the Respondent
Vergel Bugay
Mr. Robert Little
For the Intervener
| SOLICITORS OF RECORD: Cynthia D. Watson & Associates |
Barristers & Solicitors
866 The Queensway
Suite 200
Etobicoke, Ontario
M8Z 1N7
| For the Applicant |
Vergel Bugay
79 Thorncliffe Park Drive
Apartment 1709
Toronto, Ontario
M4H 1L5
For the Respondent
Vergel Bugay
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
CLRB
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
30th Floor, TD Bank Tower
Box 371, TD Centre
Toronto, Ontario
M5K 1K8
For the Intervener
| FEDERAL COURT OF APPEAL |
| Date: 19990111 |
| Docket: A-910-97 |
| BETWEEN: |
| AMALGAMATED TRANSIT UNION, LOCAL UNION 1624 |
| Applicant |
| - and - |
| VERGEL BUGAY and the CANADA LABOUR RELATIONS BOARD |
| Respondents |
| - and - |
| TRENTWAY-WAGAR INC. |
| Intervener |
| REASONS FOR JUDGMENT |
| OF THE COURT |
__________________
1 Sections 18 and 45 and subsection 98(3) of the Code read:
18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.
45. (1) Where an employer sells his business and his employees are intermingled with employees of the employer to whom the business is sold, the Board may, on application to it by any trade union affected, (a) determine whether the employees affected by the sale constitute one or more units appropriate for collective bargaining; (b) determine which trade union shall be the bargaining agent for the employees in each such unit; and (c) amend, to the extent the Board considers necessary, any certificate issued to a trade union or the description of a bargaining unit contained in any collective agreement.
(2) Where an employer sells his business and his employees are intermingled with employees of the employer to whom the business is sold, a collective agreement that affects the employees in a unit determined to be appropriate for collective bargaining pursuant to subsection (1) that is binding on the trade union determined by the Board to be the bargaining agent for that bargaining unit continues to be binding on that trade union.
(3) Either party to a collective agreement referred to in subsection (2) may, at any time after the sixtieth day has elapsed from the date on which the Board disposes of an application made to it under subsection (1), apply to the Board for an order granting leave to serve on the other party a notice to bargain collectively.
(4) On application being made to it pursuant to subsection (3), the Board shall take into account the extent to which and the fairness with which the provisions of the collective agreement, particularly those dealing with seniority, have been or could be applied to all the employees to whom the collective agreement is applicable.
98. (3) The Board may refuse to hear and determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.
2 Section 37 reads:
37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.