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A-99-78
Canadian Union of Postal Workers (Applicant) v.
Public Service Staff Relations Board (Respond- ent)
and
Pierre P. Montreuil and the Queen for the Trea sury Board (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, June 8 and 9; Ottawa, June 21, 1978.
Judicial review — Public Service — Union approval required to present grievance related to interpretation of col lective agreement — Public Service Staff Relations Board finding union refused to consider grievance solely because grievor a casual employee — Whether or not a breach of s. 8(2)(6), or (c) occurred so as to give Board jurisdiction — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 8(2)(6),(c), 90(2).
This section 28 application seeks to set aside a decision of the Public Service Staff Relations Board on the ground that the Board did not have jurisdiction to hear the case. Complainant, Montreuil, a casual worker represented by applicant, wanted to present a grievance regarding the application to him of the collective agreement covering his conditions of employment, which he could not do without the approval of applicant. Complainant charged that the union had refused to consider his grievance solely on the ground that he was a casual employee rather than a permanent or part-time employee. The Board concluded that there was merit in this complaint. The only question is whether Mr. Montreuil's complaint relates to a breach of either section 8(2)(b) or (c) of the Public Service Staff Relations Act. The Board's jurisdiction in the case is dependent on such breach.
Held, the application is allowed. There is no merit in the Board's decision. It is impossible to argue that conditions were imposed "in a contract of employment" or "on the appoint ment". Even if the complaint is given the Board's interpreta- tion—that the union sought to impose conditions of that sort— it cannot be contended that the complaint related to a breach of section 8(2)(b). The complaint that the union tried to deprive complainant of the right to remain a casual employee does not relate to a breach of section 8(2)(c). Even if the union were guilty of such machinations, it would not have infringed that section since that right is not one under the Public Service Staff Relations Act. The complaint that the union, by refusing to consider the grievance, was seeking to deprive complainant of the right to present a grievance is not related to a breach of section 8(2)(c). By refusing to approve the grievance, the union did not use any means to restrain complainant from exercising a right; it simply acted as if such a right did not exist.
APPLICATION for judicial review.
COUNSEL:
P. Lesage for applicant.
No one appeared for respondent.
P. Montreuil for mis -en-cause on his own behalf.
No one appeared for mis -en-cause the Queen for the Treasury Board.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage & Cleary, Montreal, for applicant.
Public Service Staff Relations Board, Ottawa, for respondent.
Pierre Montreuil, Quebec, for mis -en-cause on his own behalf.
Deputy Attorney General of Canada for mis - en-cause the Queen for the Treasury Board.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: The applicant disputes the validity of a decision of the Public Service Staff Relations Board on a complaint made by a Mr. Montreuil.
Complainant Montreuil said that he was an employee of the Post Office Department and was a member of the bargaining unit for which applicant union was the certified bargaining agent. He stated that he wanted to present a grievance regarding the application to him of the collective agreement governing his conditions of employ-
ment, which he could not do without the approval of applicant union.' He charged that the union had refused to consider his grievance solely on the ground that he was a casual employee rather than a permanent or part-time employee. The Board concluded that there was merit in this complaint. The terms of the decision read as follows:
Consequently the Board finds that the respondent has failed in its obligation to provide fair representation for the complainant. The Board orders the respondent to consider the complainant's grievance dated February 16, 1976 and to exercise its discre tionary power in that regard consistent with the legal principles of fair representation.
It is this decision that applicant union is disput ing on the ground that the Board did not have jurisdiction in this case.
The Board held that it was competent to hear the complaint under section 20(1)(a) of the Act [R.S.C. 1970, c. P-35]. Under this provision, the Board shall inquire into any complaint that "an employee association ... has failed to observe any prohibition contained in section 8, 9 or 10 ...." According to the Board, Mr. Montreuil's com plaint related to a breach of section 8(2)(b). On the other hand, Mr. Montreuil contended at the hearing that his complaint related to a breach of section 8(2) (c).
It is not disputed that pursuant to section 20(1), the Board has jurisdiction to hear a complaint relating to a breach of the prohibitions contained in paragraphs (b) and (c) of section 8(2). The only question is whether Mr. Montreuil's complaint related to a breach of either of these provisions. If not, it should be concluded that the Board did not have jurisdiction since, to my knowledge, there are no other provisions likely to give it jurisdiction in the case at bar.
' Section 90(2) of the Public Service Staff Relations Act reads as follows:
90. ...
(2) An employee is not entitled to present any grievance relating to the interpretation or application in respect of him of a provision of a collective agreement or an arbitral award unless he has the approval of and is represented by the bargaining agent for the bargaining unit to which the collec tive agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 112.
Section 8(2)(b) reads as follows:
8. ...
(2) No person shall
(b) impose any condition on an appointment or in a contract of employment or propose the imposition of any condition on an appointment or in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercis ing any right under this Act;
According to the Board's decision, Mr. Mon- treuil complained that applicant union had refused to approve his grievance as long as he remained a casual employee and did not become a full-time or part-time employee. Still according to the Board, the complaint therefore charged that the union had infringed section 8(2)(b) by seeking to impose on an employee a condition (that of becoming a permanent or part-time employee) that is likely to restrain him from exercising a right under the Act (that of presenting a grievance).
In my view, there is no merit in that part of the Board's decision. Section 8(2)(b) merely prohibits the imposition "on an appointment or in a contract of employment" of any condition that seeks to restrain an employee from exercising a right under the Act. Even if it were assumed that the Board was correct in saying that the complaint charged that the union had sought to impose conditions of that sort, it is impossible to argue that those conditions were imposed "in a contract of employ ment" or "on an appointment". Even if Mr. Mon- treuil's complaint is given the interpretation that the Board gives it, it cannot be contended that the complaint related to a breach of section 8(2)(b).
However, did the complaint relate to a breach of section 8(2)(c) as Mr. Montreuil claimed?
Section 8(2)(c) reads in part as follows:
8. ...
(2) No person shall
(c) seek by intimidation, by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee
to refrain from exercising any other right under this Act;
Mr. Montreuil contended first of all that his complaint related to a breach of section 8(2)(c) because it was to be interpreted as charging the union with having sought, by refusing to approve his grievance, to induce him to waive his right to remain a casual employee. This contention must be rejected. Even if the union were guilty of such machinations, it would not have infringed section 8(2)(c) since Mr. Montreuil's right to remain a casual employee is not a right under the Public Service Staff Relations Act.
Mr. Montreuil then contended that his com plaint was to be interpreted as charging the union, by refusing to consider his grievance, with seeking to deprive him of the right to present a grievance. If the complaint were to be so construed, it could not be concluded, as Mr. Montreuil did, that, it related to a breach of section 8(2)(c). This provi sion prohibits anyone from putting pressure on an employee in order to induce him not to exercise a right under the Act. This is not the charge made against the union by the complaint. According to section 90(2), the complainant had the right to present his grievance only if he had obtained the union's prior approval. The complainant's right to present a grievance was conditional; its existence depended on the union's approval. By refusing to approve the grievance, the union did not use any means to restrain the complainant from exercising a right; it simply acted as if such a right did not exist.
Actually, Mr. Montreuil's charge against the union was simply that it had failed in its obliga tions toward the employees it was supposed to represent. Perhaps there is merit to this complaint, but it is not one that the Board had the power to examine.
For these reasons I would allow the application and set aside the decision a quo.
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LE DAIN J.: I concur.
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HYDE D.J.: I concur.
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