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.
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I concur.
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.