A-366-78
Canadian Airline Employees' Association (Appli-
cant)
v.
Eastern Provincial Airways (1963) Limited and
International Association of Machinists and Aero
space Workers (Respondents)
Court of Appeal, Heald and Le Dain JJ. and Kerr
D.J.—Ottawa, November 23, 1979 and January
14, 1980.
Judicial review — Labour relations — Dispute between rival
unions as to which union has jurisdiction over cargo functions
of the Company — Reference to Canada Labour Relations
Board — Whether question came before Board in a proceeding
over which it had jurisdiction — Whether determination of
bargaining unit is a matter of determination of the existence of
a collective agreement or identification of the parties or
employees bound by a collective agreement — Held, the Board
has jurisdiction in the case (Le Dain J. dissenting) — Canada
Labour Code, R.S.C. 1970, c. L-1, s. 158 — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Carl R. Thompson for applicant.
Thomas C. Turner for respondent Eastern
Provincial Airways (1963) Limited.
Raymond J. Halley for respondent Interna
tional Association of Machinists and Aero
space Workers.
Gerald J. McConnell and John MacPherson
for Canada Labour Relations Board.
SOLICITORS:
Martin, Easton, Woolridge & Poole, Corner
Brook, for applicant.
Easton, Facey & Turner, Gander, for
respondent Eastern Provincial Airways
(1963) Limited.
Wells, O'Dea, Halley, Earle, Shortall &
Burke, St. John's, for respondent Internation
al Association of Machinists and Aerospace
Workers.
Kitz, Matheson, Green & MacIsaac, Halifax,
for Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application by
the Canadian Airline Employees' Association
(CALEA) to review and set aside a decision of the
Canada Labour Relations Board dated June 16,
1978. The decision of the Board was on a reference
from an Arbitration Board chaired by R. Hatten-
hauer pursuant to section 158 of the Canada
Labour Code, R.S.C. 1970, c. L-1'. The problem
faced by the Hattenhauer Board which prompted
the reference to the Board was that the employer,
Eastern Provincial Airways (1963) Limited
(E.P.A.) signed collective agreements in which it
recognized both the International Association of
Machinists and Aerospace Workers (IAMAW)
and CALEA as the exclusive bargaining agent for
employees performing certain functions. The perti
nent facts are summarized in the referral letter to
the Board from the Hattenhauer Board and which
reads as follows:
Chairman
Canada Labour Relations Board
Lester B. Pearson Building
4th Floor, Tower "D"
125 Sussex Drive
Ottawa, Ontario
K1A 0X8
Subject: Referral under S. 158(1) of Canada Labour Code,
Part V
Dear Sir:
Following the hearing of a grievance between International
Association of Machinists and Aerospace Workers, Local 1763,
and Eastern Provincial Airways (1963) Limited, the arbitration
' Section 158 of the Canada Labour Code reads as follows:
158. (1) Where any question arises in connection with a
matter that has been referred to an arbitrator or arbitration
board, relating to the existence of a collective agreement or the
identification of the parties or employees bound by a collective
agreement, the arbitrator or arbitration board, the Minister or
any alleged party may refer the question to the Board for
hearing and determination.
(2) The referral of any question to the Board pursuant to
subsection (1) shall not operate to suspend any proceeding
before an arbitrator or arbitration board unless he or it decides
that the nature of the question warrants a suspension of the
proceeding or the Board directs the suspension of the
proceeding.
board appointed to deal with the dispute has determined,
persuant [sic] to S. 158 of the Code, Part V, that a question
relating to the existence of a collective agreement should be
referred to the Board for determination. For your information,
a copy of the award and copies of the evidence requested by the
board—and subsequently submitted by the company—are
included.
The basic facts of the situation are as follows:
1) On October 31, 1963, the Board issued an order (amend-
ed May 4, 1971) certifying the International Association of
Machinists as the bargaining agent for a unit of employees of
Eastern Provincial Airways (1963) Limited, including the job
classification of Cargo Clerk.
2) On March 3, 1964, the Board issued an order certifying
the Maritime Airline Pilots' Association as bargaining agent
for a unit of employees of Eastern Provincial Airways (1963)
Limited, excluding—inter alia—the classification Cargo Clerk.
By a certification order of May 13, 1975, the Maritime Airline
Pilots' Association was succeeded by the Canadian Airline
Employees' Association as bargaining agent for essentially the
same unit of employees.
3) Separate collective agreements were negotiated by the
company with the two bargaining agents, and, beginning with
the agreement effective April 1, 1967, job functions which had
traditionally been considered to be part of a Cargo Clerk's job,
but were—with I.A.M. knowledge and consent—in certain
circumstances performed by Traffic Agents, were formally
included in the statement of job duties for Traffic Agents,
included in the MALPA bargaining unit. The respective job
descriptions in the current agreements are attached to the
arbitration award.
4) In this board's opinion, the question of respective work
jurisdictions between the two bargaining agents had been set
tled by the Canada Labour Relations Board's definitions of the
two bargaining units, and the company did originally abide by
those definitions but did, in the 1967 MALPA agreement,
unilaterally extend the scope of the MALPA bargaining unit to
include a function which the Board had excluded and specifi
cally assigned to the unit represented by the I.A.M.
5) Under S.118(p) the Canada Labour Relations Board has
been given the power
to decide for all purposes of this Part any question that may
arise in the proceeding, including, without restricting the
generality of the foregoing, any question as to whether
(v) a group of employees is a unit appropriate for collective
bargaining.
6) The question now has arisen whether the employer has,
de facto, assumed a function which has been set aside as one of
the powers of the Canada Labour Relations Board, by 1)
agreeing in collective bargaining to enlarge the bargaining unit
beyond that which the Board had determined to be appropriate
for MALPA as bargaining agent and 2) by unilaterally detract
ing from the bargaining unit for which the Board had certified
the I.A.M. as bargaining agent. In other words, this board now
refers to the Canada Labour Relations Board for a determina-
tion, firstly, the question whether the company acted ultra vires
by assuming powers which had been reserved for the Board and
by conceding to MALPA a right which it was incapable of
giving because that right had already been assigned to the
I.A.M. as bargaining agent.
7) If either (or both) of the above is correct, then the
question is whether the collective agreements signed with
MALPA—and later with CALEA—or at least those portions
granting the extended jurisdiction, were ever valid and binding.
This board therefore refers to the Canada Labour Relations
Board, secondly, the question whether the CALEA agreement
in its entirety exists, assuming that article 4.02 is invalid and
inseparable from the remainder of the agreement, or—in the
alternative—if article 4.02 is separable, whether that article,
and specifically that portion which duplicates the work jurisdic
tion covered by the I.A.M. agreement, does exist or whether it
is null and void.
Should your Board require any additional information or
explanations, please be assured that this arbitration board will
be happy to provide such, as far as lies within its means. (Case,
Vol. 1, pp. 7-9.)
The Board assumed jurisdiction under section
158(1) of the Canada Labour Code and gave
rather extensive reasons in an attempt to solve the
problem set forth supra. The applicant herein
submits that the Board had no jurisdiction to hear
this reference pursuant to section 158(1), because
firstly, in the submission of the applicant, no ques
tion had arisen as to the existence of a collective
agreement and secondly, the applicant submits
that there was no difficulty as to the identification
of the parties bound by the IAMAW collective
agreement. Furthermore, the applicant submits
that the Hattenhauer Board had no jurisdiction
under section 158 to refer the CALEA agreement
to the Board since the Hattenhauer Board was
concerned only with the IAMAW agreement.
In my view, these arguments are without
substance.
Dealing with the applicant's first submission, it
is my view that when section 158(1) empowers the
Board to determine "... the existence of a collec
tive agreement, ..." it necessarily gives the Board
jurisdiction to determine whether that collective
agreement is legally valid and in the course of
making that determination, it is necessary for the
Board to consider all of the circumstances sur
rounding both the IAMAW agreement and the
CALEA agreement because both agreements pur-
port to give the same rights to both bargaining
agents.
Likewise, I do not agree with the second submis
sion of the applicant. The words used in section
158(1) are "... the identification of the parties or
employees bound by a collective agreement ...".
[Emphasis added.]
In its decision, the Board determines the param
eters of each collective agreement and thereby
determines which individual employees of E.P.A.
are in fact "bound" by each of those agreements.
In my view, such a finding is clearly contemplated
by section 158(1).
Similarly, I am not prepared to accede to the
applicant's third argument since for it to succeed,
section 158(1) must necessarily be read as though
the reference to "a collective agreement" was, in
reality, "the collective agreement." The use of the
words "a collective agreement" clearly give the
Board power to look at any and all collective
agreements which are relevant in deciding the
identification of the parties bound by a collective
agreement and in considering both agreements in
this case, it was acting within its jurisdiction.
For the above reasons, I have concluded that the
Canada Labour Relations Board had jurisdiction
pursuant to section 158 of the Code to act in this
case. Accordingly I would dismiss the section 28
application.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting): I have had the advan
tage of reading the reasons of my brother Heald
but I regret that I am unable to agree that the
Canada Labour Relations Board ("CLRB") had
the jurisdiction under section 158 of the Canada
Labour Code to make the decision that it did in
the present case.
The CLRB has jurisdiction under that section
when a question relating to the existence of a
collective agreement or the identification of the
parties or employees bound by a collective agree-
ment arises in connection with a matter that has
been referred to an arbitrator or arbitration board,
and the question is referred to the CLRB for
hearing and determination. In order for the CLRB
to have jurisdiction the question must be truly one
of the kind specified in section 158 and not one
that has been formulated as such in order to
support jurisdiction.
The issue that gave rise to the referral in this
case was a work assignment dispute arising out of
the conflicting provisions in the collective agree
ments which the Company ("Eastern Provincial")
has with the International Association of Ma
chinists and Aerospace Workers ("IAMAW") and
the Canadian Airline Employees' Association
("CALEA"). The issue is whether employees in
the IAMAW unit or employees in the CALEA
unit are to be assigned the waybilling function in
connection with the cargo handling operations of
Eastern Provincial.
In order to place this issue in proper perspective
it is essential in my view to set out the background
in some detail. IAMAW was certified to represent
a bargaining unit including, among others, the
employees classified as "cargo clerks" and "load-
masters", whose duties, as defined in the IAMAW
collective agreement with Eastern Provincial,
cover the waybilling function. Maritime Airline
Pilots' Association ("MALPA") was certified to
represent a bargaining unit which included, among
others, employees classified as "agent", but
expressly excluded the classifications of "cargo
clerk" and "loadmaster". CALEA was certified as
the successor of MALPA to represent a bargaining
unit which included, among others, employees
classified as "traffic agent". In the course of time
the definition of the duties of "traffic agent" in the
MALPA/CALEA agreement was expanded to
include the waybilling function, and IAMAW
agreed with the Company that the waybilling
function could be performed by employees outside
the IAMAW unit where the volume of cargo was
not sufficient to warrant full-time cargo personnel.
The reference to the waybilling function in the
definition of "traffic agent" in the CALEA agree
ment did not, however, reflect this limitation or
qualification, and the conflict arose when CALEA
asserted the right to perform the waybilling func-
tion without regard to the volume of traffic
involved. In both collective agreements there are
exclusive recognition clauses covering the classifi
cations specified therein, and provisions that the
work covered by these classifications will be
assigned to employees in the respective units.
The conflict has given rise to three arbitrations.
The three arbitration boards may be referred to
briefly, after the names of their respective chair
men, as the Woolridge, Thistle and Hattenhauer
Boards. The Woolridge Board heard a policy
grievance by IAMAW that ticket agents in the
CALEA unit were doing the work of IAMAW
cargo clerks at the Moncton and Halifax bases of
Eastern Provincial. The board, after observing that
a similar grievance had been filed by CALEA
claiming jurisdiction over cargo operations in
Moncton, and that "the real issue here is a juris
dictional dispute between the Union and CALEA
as to which Union has jurisdiction over cargo
functions of the Company", suspended the pro
ceeding pending the outcome of a referral of the
dispute by Eastern Provincial to the CLRB under
section 158. In fact, the referral was not made
pursuant to the decision of the Woolridge Board.
The Thistle Board considered a policy grievance
by CALEA which alleged a violation of the
CALEA agreement by the assignment of cargo
functions at Moncton to employees in the
IAMAW unit. The Thistle Board refused to adopt
the course that had been followed by the Wool-
ridge Board and to suspend the proceeding pend
ing a reference under section 158. It based its
conclusion, at least in part, on an unofficial expres
sion of opinion by the Vice-Chairman of the
CLRB that section 158 did not appear to apply to
the resolution of a dispute of this kind. The Thistle
Board found that Eastern Provincial had violated
the provisions of the CALEA agreement and
ordered the Company "to cease and desist from
employing persons covered by the IAMAW Agree
ment from doing work assigned to persons under
this Agreement." The Hattenhauer Board heard a
grievance by IAMAW that Eastern Provincial was
violating the terms of its agreement by assigning
work that belonged to the cargo clerks in its unit to
employees in the CALEA unit. In effect, this
grievance was a response to the Company's com
pliance with the Thistle award. The Hattenhauer
Board decided that the Company had violated the
provisions of the IAMAW agreement and ordered
it "to cease and desist from assigning persons
excepted from the I.A.M. bargaining unit to per
form work covered by this collective agreement, in
particular the functions of a cargo clerk performed
at Moncton." The Board then suspended the im
plementation of its order "until one month follow
ing the decision by the Canada Labour Relations
Board of the matter referred to it, or its ruling that
the matter is not a proper item for referral under
S. 158 of the Code." The Hattenhauer Board then
made the referral to the CLRB under section 158
which is set out at length in the reasons of my
brother Heald.
In ruling on the Company's request that the
proceeding be suspended and the dispute referred
to the CLRB under section 158, the Hattenhauer
Board had said in its decision:
Lastly, by the Company's own submission, the problem in
this dispute is not that either the existence of a collective
agreement or the identities of the parties to that agreement are
in question. But those are the matters which, under S. 158(1),
are proper matters for a referral to the Canada Labour Rela
tions Board. Thus, on the face of it, there is no issue which that
Board could consider, and, in addition, this board also has
before it the opinion given by the Vice-Chairman of the
Canada Labour Relations Board. That letter is, admittedly
only a statement of opinion and subject to confirmation or
contradiction by the Board, following a hearing, but to ignore
what must surely be accepted to be an authoritative opinion,
would be nothing less than an act of bad judgment on the part
of this board. If a decision is to be sought from the Canada
Labour Relations Board, then the matter ought to be referred
to that Board, with both cases having been heard, rather than
only one or the other.
In its referral to the CLRB the Hattenhauer
Board presented the question as relating to the
existence of the CALEA agreement, or a part
thereof, in so far as it involved a question of the
validity of article 4.02 of that agreement, which
described the work performed by a "traffic agent"
as including the waybilling function.
In its decision the CLRB expressed the opinion
that the issue that had been referred to it did not
relate to the existence of a collective agreement.
The way the Board viewed the issue in relation to
the requirements for jurisdiction under section 158
is, expressed in the following passage from its
decision [30 di 82] at page 87:
There is obviously no problem here concerning the existence of
a collective agreement. The issue here is whether the problem
involved in this case can be viewed as a problem of the
"identification of the employees bound by a collective agree
ment". The type of analysis which this question invites is of the
following variety. We are invited to examine what it is that
certain employees actually do. Then having ascertained what it
is that those certain employees do, we inquire whether they are
covered by the provisions of a collective agreement. The trouble
with applying that analysis in this case is that this Board will
prima facie get no further than the two conflicting arbitral
awards. We will ascertain that certain employees perform the
waybilling function and then conclude that those employees are
bound by the I.A.M.A.W. and the C.A.L.E.A. collective agree
ments. That is the prima facie result and it adds nothing to the
solution of the problem presented in this case. In order to
resolve the problem this Board would have to go a step further
and make a declaration about which collective agreement is to
prevail in certain circumstances. Mr. Hattenhauer's board real
ized this and in the reference they have presented to this Board
they ask this Board to determine whether the C.A.L.E.A.
collective agreement is a valid one.
The CLRB resolved the problem that was pre
sented to it by a definition of the bargaining
authority of IAMAW and CALEA with respect to
the waybilling function. In doing so—and I say
this with the greatest respect—it made a resource
ful effort to adapt section 158 to the settlement of
a jurisdictional dispute concerning work assign
ment. But however desirable it may be that the
Board should have the power to resolve a dispute
of this kind in my opinion section 158 was not
designed for that purpose. It puts too great a strain
on the language of the section to adapt it to that
purpose.
The determination of the issue that was put
before the Hattenhauer Board—whether the Com
pany had violated the provisions of its collective
agreement with IAMAW concerning work assign-
ment—did not raise a question as to the existence
of that collective agreement or the identification of
the employees bound by it. Indeed, the Hattenhau-
er Board was able to, and did, rule on the griev
ance without a consideration of these questions.
The problem that the Hattenhauer Board referred
to the CLRB was the problem created by the two
conflicting arbitration awards arising out of con
flicting recognition and work assignment provi
sions in the two collective agreements. The prob
lem, as the CLRB said in the passage of its
decision that has been quoted above, is which
agreement is to prevail. That is not an issue as to
the existence of a collective agreement, nor an
issue as to the identification of the employees
bound by a collective agreement, since there is no
question that the employees performing the way-
billing function at the stations of Eastern Provin
cial are bound by their respective collective agree
ments. It is an issue that the CLRB sought to
resolve by a declaration of the bargaining author
ity of the two unions with respect to the waybilling
function in the light of their certificates of recogni
tion and the abandonment by the IAMAW of
some of its jurisdiction with respect to cargo func
tions in certain locations. This was the true ques
tion that was put to the Board and the question
that was answered by it. It did not purport to
answer a question as to the existence of a particu
lar collective agreement or as to the employees
bound by a collective agreement. The effect of the
Board's decision is that the collective agreements
and the arbitration awards based on them are to be
interpreted and applied in the light of the Board's
definition of the bargaining authority. This is clear
from the concluding paragraph of the Board's
decision [at page 93]:
The reference from Mr. Hattenhauer's arbitration board asked
two specific questions. We do not find it necessary to answer
those specifically. The statement above concerning the extent of
each union's bargaining authority dissolves the problem at the
heart of this conflict. The collective agreements and hence the
arbitration awards must be read subject to this decision. This
means that the Hattenhauer award is operable in so far as it
applies to Halifax and the Thistle award concerning Moncton is
operable as well.
What the precise effect of the Board's determina
tion might be on the extent to which particular
employees in particular situations might be bound
by either agreement is not clear and did not have
to be determined by the Board.
Reference was made in argument to the author
ity conferred on the Board by the provisions of
section 118 (p)(v),(vi),(vii) and (viii) of the
Canada Labour Code which are as follows:
118. The Board has, in relation to any proceeding before it,
power
(p) to decide for all purposes of this Part any question that
may arise in the proceeding, including, without restricting
the generality of the foregoing, any question as to whether
(v) a group of employees is a unit appropriate for collec
tive bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a
collective agreement, and
(viii) a collective agreement is in operation.
It was argued that the Board had authority to
make the determination it did in virtue of these
provisions, particularly subparagraph (v) thereof.
Assuming that the determination by the Board
may be assimilated to an exercise of the power to
determine the appropriateness of a bargaining
unit, the issue is whether the question came before
the Board in a proceeding over which it had juris
diction. For the reasons I have indicated I am of
the view that the Board did not have jurisdiction
under section 158. A comparison of the terms of
section 158 and section 118(p) tends to confirm,
moreover, that a determination of the bargaining
unit is not what is understood by a determination
of the existence of a collective agreement or the
parties or employees bound by a collective agree
ment. It is necessary not to confuse the nature of
the question that is determined with the nature of
what may be consequential effects of that
determination.
For these reasons I would allow the section 28
application and set aside the decision of the Board.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: The complexities of the situation
considered by the Canada Labour Relations Board
are made apparent in the reasons of Heald J. and
Le Dain J. It appears to me that the Board was
exercising a function given to it by section 158 of
the Canada Labour Code and had jurisdiction to
do so, and accordingly, I would dismiss this
application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.