Date: 19980624
Docket: A-310-97
CORAM: MARCEAU, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
IN THE MATTER OF the Canadian Labour Code (Part I - Industrial Relations) and complaints of unfair labour practices files pursuant to Section 97(1) thereof by Garry Lloyd Ager, complainant; alleging violations of Section 37 of the said Code by International Brotherhood of Locomotive Engineers, and Canadian Council of Railway Operating Unions, respondents; Canadian National Railway Company (CN Rail), employer. Board files: 745-5124, 745-5141, 745-5177, 745-5245 and 745-5507.
BETWEEN:
GARRY LLOYD AGER
Applicant
- and -
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS ET AL
Respondents
- and -
CANADIAN NATIONAL RAILWAY COMPANY (CN RAIL)
Employer
Heard at Vancouver, British Columbia on Tuesday, June 23, 1998
Judgment delivered at Vancouver, British Columbia on Tuesday, June 23, 1998
REASONS FOR JUDGMENT BY: LINDEN J.A.
Date: 19980624
Docket: A-310-97
CORAM: MARCEAU, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
IN THE MATTER OF the Canadian Labour Code (Part I - Industrial Relations) and complaints of unfair labour practices files pursuant to Section 97(1) thereof by Garry Lloyd Ager, complainant; alleging violations of Section 37 of the said Code by International Brotherhood of Locomotive Engineers, and Canadian Council of Railway Operating Unions, respondents; Canadian National Railway Company (CN Rail), employer. Board files: 745-5124, 745-5141, 745-5177, 745-5245 and 745-5507.
BETWEEN:
GARRY LLOYD AGER
Applicant
- and -
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS ET AL
Respondents
- and -
CANADIAN NATIONAL RAILWAY COMPANY (CN RAIL)
Employer
REASONS FOR JUDGMENT
(Delivered orally from the Bench on
June 23, 1998, at Vancouver, BC)
LINDEN, J.A.
1� The first issue in this application is whether the CLRB properly declined jurisdiction to hear a consolidation of five Section 37 complaints concerning the conduct of the Respondent Union in failing to put to a formal ratification vote an amendment on May 19, 1995 to a clause in an agreement reached on May 5, 1995 under the Maintenance of Railways Operations Act of 1995 (the Belt Pack Agreement).
2� The Applicant contends that the union acted arbitrarily contrary to Section 37 in failing to submit these matters, dealing with General Holidays, to a formal ratification vote pursuant to Section 45 of its Rules. Section 37 of the Canada Labour Code 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.
The Board decided that the agreements were not part of the collective agreement; rather, it held that the agreements in question were "arrived at pursuant to the provisions of the Maintenance of Railways Operations Act (1995)." Hence, the issue of whether or not these agreements were ratified appropriately is an internal union matter, not one which relates to the "representation of members with respect to rights contained in the collective agreement." (See Laking [1996] CLRBD No. 10 at 3)
3� We are not persuaded that, on the review standard of correctness, which is applicable to jurisdictional matters, the Board erred in any way that would invite our intervention. The Board was entitled to interpret Section 37 as it did.
4� In any event, the Board expressed the view in obiter that the union "acted fairly in the interest of all its member employees in dealing with the employer", so that, even if the Board had jurisdiction, it would have rejected the complaint.
5� As for the obligation to hold a public hearing on a complaint such as this, the Board is entitled to refuse to do so pursuant to Section 98(2) where "in the opinion of the Board, such a hearing would not be consistent with the objectives of this Part." After reviewing all the documentation and the arguments of the parties, the Board concluded that it was not appropriate to hold a hearing in this case. We can see no basis upon which we can interfere with the exercise of the Board's discretion in this regard. (See Finlay 91 di 213)
6� The application for judicial review should be dismissed.
(Sgd.) "A.M. Linden"
J.A.
Vancouver, British Columbia
June 24, 1998
FEDERAL COURT OF APPEAL
Date: 19980624
Docket: A-310-97
BETWEEN:
GARRY LLOYD AGER
Applicant
- and -
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS ET AL
Respondents
- and -
CANADIAN NATIONAL RAILWAY
COMPANY (CN RAIL)
Employer
REASONS FOR JUDGMENT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: June 24, 1998
COURT NO.: A-310-97
STYLE OF CAUSE: GARRY LLOYD AGER
v.
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS ET AL
v.
CANADIAN NATIONAL RAILWAY
COMPANY (CN RAIL)
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 23, 1998
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN, J.A.
CONCURRED IN BY: MARCEAU, J.A.
ROBERTSON, J.A.
APPEARANCES:
Mr. Garry Lloyd Ager for Applicant
Mr. James L. Shields for Respondents
SOLICITORS OF RECORD:
Shields & Hunt
Ottawa, ON for Respondent