Judgments

A-327-04

2004 FCA 438

Télé-Mobile Company/Société Télé-Mobile, TM Mobile Inc. and Rosella Tanja Liberati (Applicants)

v.

Telecommunications Workers Union, Syndicat des agents de maîtrise de TELUS, Local 5144 of CUPE, Syndicat québécois des employés de TELUS, Local 5044 of CUPE and TELUS Communications Inc. (Respondents)

Indexed as: Télé-Mobile Co. v. Telecommunications Workers Union (F.C.A.)

Federal Court of Appeal, Linden, Sexton and Evans JJ.A.--Toronto, October 4; Ottawa, December 16, 2004.

Labour Relations -- In a corporate takeover, whether CIRB (Canada Industrial Relations Board) can include acquired employees in bargaining unit to which employees of company which assumed control belong without ascertaining acquired workers' wishes -- Acquisition of Clearnet by TELUS largest in history of Canadian telecommunications industry -- Western regional operator became major national player -- TWU certified for TELUS employees prior to acquisition -- Geographical scope of bargaining unit not determined -- Following takeover, Board took into account TELUS' ongoing expansion, held single bargaining unit should extend beyond Alberta, B.C. -- Wanted to avoid multiplicity of certification applications, promote peaceful bargaining -- Following takeover, TELUS underwent reorganization whereby wireless, landline businesses separated but TWU sought single employer declaration -- Former Clearnet workers non-unionized -- Board having power under Canada Labour Code, s. 35 to declare related businesses "single employer" -- Application granted, Board finding would minimize adverse effects on existing bargaining rights -- Labour boards afforded high degree of deference -- Worker's right to choose whether to join union can be overridden by majority -- Single employer declaration did not enhance TWU's bargaining rights -- Wishes of acquired workers irrelevant if addition not altering bargaining unit's basic character, intended scope -- Cases in which Board took added workers' wishes into account, distinguished -- Board decision not made in excess of jurisdiction based upon unreasonable interpretation of previous decision -- Rational basis for Board decision finding community of interest -- As new workers only 20% of enlarged bargaining unit, no need for vote to ascertain wishes -- Issue as to TWU's fitness to represent Quebec workers moot, their union, CUPE, having settled with TWU, did not participate in judicial review -- Given importance of labour relations language rights, Court not deciding moot issue as heard only arguments of employer, English-speaking union -- Mere inclusion in bargaining unit, compulsory dues payment not engaging Charter, s. 2(d) right to freedom of association.

Telecommunications -- Labour relations -- Clearnet takeover by TELUS largest acquisition in Canadian telecommunications history -- Corporate reorganization separating landline, wireless businesses but Union seeking declaration single employer -- Principal issue whether Canada Industrial Relations Board could add acquired workers to bargaining unit to which takeover company's workers belong without considering acquired workers' wishes.

This was an application for judicial review of decisions of the Canada Industrial Relations Board. The question for determination was: when company A takes over company B, can the Board lawfully include the employees of company B in the bargaining unit to which the employees of A belong, without determining whether the company B employees wish inclusion in this or any other bargaining unit?

TELUS asserted that when it took over Clearnet and two companies within QuébecTel Group, the Board swept 2,000 former employees of those companies into the bargaining unit covering the existing TELUS employees. It was argued that in failing to ascertain the wishes of the new employees, the Board violated the primacy of employee choice as to union representation, a principle enshrined in the Canada Labour Code. Respondent, Telecommunications Workers Union (TWU), which represented 10,000 TELUS employees in B.C. and Alberta prior to the acquisitions, defended the Board's decision as not patently unreasonable. The Union further argued that, since the new workers represented but a small minority of the enlarged bargaining unit, the Board did not have to order a vote by all members to confirm that the Union maintained majority support.

The interests of some 100 former QuébecTel employees had been represented before the Board by their Union, CUPE, which opposed their inclusion in the TWU bargaining unit but reached an agreement with TWU and elected not to join in this judicial review application. CUPE's non-participation could weaken the claim that TELUS represents the interests of the former QuébecTel employees. Indeed, TELUS' concerns were directed primarily at the former Clearnet employees. It could be questioned whether TELUS had standing to rely on the constitutional rights of the former Clearnet employees to resist their inclusion in the bargaining unit.

In 2000 TELUS assumed control over Clearnet in a $6.6 billion deal. It was the largest acquisition in the history of the Canadian telecommunications industry and it saw a regional operator become overnight a major player on the national stage. On the labour relations front, TELUS had previously merged with BC Telecom and workers for the merged company were represented by four different unions and were covered by five collective agreements. In an attempt to rationalize its labour relations, in 1999 TELUS applied to the Board under Code, section 18.1 for a redefinition of the bargaining units. The parties reached an agreement which was ratified by the Board which then ordered a vote to determine which union the employees wished to represent them; TWU won. It was accordingly certified as sole bargaining agent for TELUS employees. The parties failed to resolve the geographical scope of the bargaining unit. Following the Clearnet acquisition, the Board reconvened, conducting hearings to determine whether the single bargaining unit ought extend beyond Alberta and B.C. In its 2001 decision--which had an important bearing on the 2004 decision here under review--the Board took into account TELUS' ongoing expansion and concluded that its failure to incorporate that expansion into the single bargaining unit would result in a multiplicity of certification applications, something that was in the interests of neither party and would run counter to the Board's responsibilities under the Code. It apparently was of the view that restricting the single bargaining unit to Alberta and B.C. would not promote peaceful and harmonious bargaining. But, it qualified the conclusion that in TELUS' eastward march, additional workers should be included in the single bargaining unit, by its statement that acquisitions, "as opposed to business expansions, are a different matter and are to be treated as such. How and whether they become folded into the bargaining unit will depend upon their integration into the corporate operations . . . . Until such time as the Board orders otherwise, such acquisitions are not automatically included in the single bargaining unit . . . ." TELUS had applied for judicial review of the decision but the application was denied.

Following its 2000 acquisitions, TELUS underwent a corporate reorganization whereby TELUS separated its wireless and landline businesses. The wireless component was now styled TELUS Mobility; Alberta and B.C. landline employees worked for TELUS Communications Inc. (TCI). Even so, the previous collective bargaining arrangements remained in place while the former Clearnet workers were still non-unionized. In 2001, TWU wishing to represent all TELUS' wireless employees, sought a declaration that TELUS Mobility and TCI were a single employer and that the new employees be included in a single bargaining unit.

While the parties agreed that a proper appreciation of the 2001 decision was essential to the resolution of the issues dealt with in the Board's 2004 decision, they could not agree on what the earlier decision actually decided. In its 2004 decision, the Board concluded that the fact that TELUS now has a large number of non-unionized mobility employees was no reason to depart from the single bargaining unit and a party wanting to change the existing situation had to discharge the onus of establishing that a review was necessary.

Under Code, section 35 the Board may declare related businesses to be a "single employer" if operated by two or more employers having common control or direction. That was the situation here. The Board next considered whether granting the declaration would serve a labour relations purpose and concluded that it would minimize adverse effects from corporate reorganizations on existing bargaining rights. The Board decided that it would be premature to reconfigure the bargaining unit before the arrangements approved of by the 2001 decision had been given time to work. The Board determined that the new employees were performing the same work as the wireless employees covered by the original certification and found a vote unnecessary. Their inclusion did not constitute a radical change to the unit envisaged by the original certification.

The Board also considered the argument that, as a western-based English speaking union, TWU was not fit to represent former Clearnet employees from Ontario or French-speaking former QuébecTel employees. If a trade union has been chosen by a majority of employees to represent them, its "fitness" was not relevant upon a single employer application or bargaining unit reviews.

The Board rejected the argument that it would breach the new employees' Charter, paragraph 2(d) right to freedom of association if it included the new employees in the existing single bargaining units.

Held, the application should be dismissed.

Considering the Code, section 22 privative clause, it was common ground that the Board decision could be reviewed only under Federal Courts Act, paragraph 18.1(4)(a) and set aside if in excess of jurisdiction. Labour boards are senior administrative tribunals, considered to enjoy broad mandates and to possess labour relations expertise. Courts should afford them a high degree of deference. That being so, there is no necessity to conduct a full pragmatic, functional analysis each time a labour board decision is subjected to judicial review. Labour board decisions based on an interpretation of their constitutive legislation are normally reviewable only for patent unreasonableness, even if the statutory provision also has a more general legal meaning.

The principal question of statutory interpretation was whether the Board was impliedly required by the Code to ascertain and to take into account the wishes of the former Clearnet and QuébecTel employees. The second was whether it had to consider TWU's fitness to represent the new employees. The purposes of sections 18.1 and 35 serve to promote the general purposes of the Code and call for the balancing of interests and labour relations sensitivity to which the Board's expertise is highly relevant.

Corporate mergers and takeovers are not uncommon, but they may have unwelcome consequences for workers such as job loss or relocation. Here, it meant a change from individual contracts of employment to having to belong to a union. And, while the Code is concerned with workers' choices to belong or not belong to a union, the individual's choice can be overridden by the wishes of the majority. The Board had considered the new employees' wishes as relevant to the single employer declaration and its review of the bargaining unit, but only to the extent that their inclusion could cast into doubt whether TWU had the support of a majority of the expanded unit's membership.

Before the Board, applicants made the point that a single employer declaration would enhance TWU's bargaining rights without it having to organize the new employees and obtain their support and thus go beyond merely protecting existing rights. This argument was rejected on two grounds: (1) inclusion of the new employees did not enlarge upon the rights granted the Union by the 2001 decision; (2) the purposes of a declaration under section 35 were broad enough to include, not only protection of existing bargaining rights from a threat of erosion, but also the avoidance of conflicts among employee groups.

Turning to the bargaining unit review, applicants' principal argument was that the new employees' inclusion altered the unit's nature as described in the bargaining certificate. Board case law was said to dictate that, in such circumstances, the new employees' wishes had to be taken into account in determining whether bargaining unit re-configuration was appropriate. A leading Board decision on this issue was Teleglobe Canada (Re), in which the Board stated that failing to include a large number of additional employees in an existing bargaining unit could undermine bargaining rights by allowing the employer to favour the non-unionized employees, diminishing the effectiveness of a union strike threat. Teleglobe stood for the proposition that the wishes of the new workers was irrelevant if their addition did not alter the bargaining unit's "basic character and intended scope".

The third issue was whether the 2004 decision was made in excess of jurisdiction as based upon a patently unreasonable interpretation of the 2001 decision. Board could not be said to have interpreted its earlier decision unreasonably in concluding that it had established the criteria to be applied in the future for determining whether any "acquired" employee groups should become members of the bargaining unit. Nor did the Board err by placing on the new employees the burden of proving why they ought to be excluded. The 2004 decision did not turn on burden of proof: the facts were not in dispute. The Board was simply not prepared to revisit its earlier decision, that there was a community of interest between TELUS' landline and wireless employees.

Another argument advanced by applicants was that the Board had not acted in accordance with the direction, stated in the 2001 decision, to apply the "normal criteria" in deciding whether to add "acquired" employees to the bargaining unit. But, factors such as similarity of work performed, workforce intermingling and the geographically unlimited nature of the bargaining unit constituted a rational basis for the Board's conclusion that there was a community of interest between the new employees and the wireless employees already in the bargaining unit. As for employee wishes, since the new workers amounted to only about 20% of the enlarged bargaining unit, their wishes could not erode majority support for representation by TWU. There was accordingly no need to hold a vote to ascertain the new employees' wishes. Nor did the Board err in concluding that remedial purposes would be served by granting the declaration: protection of bargaining rights from erosion and promotion of sound labour relations. The 2004 decision was not based on a patently unreasonable interpretation of the earlier one.

As to TWU's fitness to represent the former QuébecTel workers, the issue was moot, their former union, CUPE, having arrived at an agreement with TWU and not having participated in this judicial review application. Given the importance of language rights in the Canadian labour relations context, the Court should not exercise its discretion to determine the "fitness" issue when moot and the Court having heard the arguments of only the employer and the English-speaking union. So far as the former Clearnet workers were concerned, the "fitness" of the bargaining agent to represent "added" employees is nowhere mentioned in the case law as among the "normal criteria" in the Board's exercise of its section 18.1 discretion. It was not patently unreasonable for the Board to conclude that it was for a majority of the expanded unit's membership, not for the Board, to decide whether TWU was fit to represent the bargaining unit.

Finally, the applicants' argument based on freedom of association, a right protected by Charter, paragraph 2(d) was rejected. The Advance Cutting & Coring case, upon which they relied, could easily be distinguished on its facts. In the instant case, the new employees are not, under the Rand formula, compelled to join the TWU; in Advance Cutting & Coring, the workers were forced by statute to join one of the designated unions. Mere inclusion in a bargaining unit and compulsory dues payment do not engage Charter, paragraph 2(d), even though unit members who choose not to join the union exclude themselves from having any say in how they are represented.

statutes and regulations judicially

considered

Canada Labour Code, R.S.C., 1985, c. L-2, Preamble, ss. 8 (as am. by S.C. 1999, c. 31, s. 162), 18, 18.1 (as enacted by S.C. 1998, c. 26, s. 7), 22 (as am. by S.C. 1990, c. 8, s. 56; 1998, c. 26, s. 9; 2002, c. 8, s. 182(1)(e)), 35 (as am. by S.C. 1998, c. 26, s. 17), 37.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b),(d).

Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27).

cases judicially considered

applied:

Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565; (2001), 201 D.L.R. (4th) 577; 35 Admin. L.R. (3d) 149; 272 N.R. 201; 2001 SCC 47; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; (2003), 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; 11 B.C.L.R. (4th) 1; 48 Admin. L.R. (3d) 1; 179 B.C.A.C. 170; 302 N.R. 34; 2003 SCC 18; Air Canada (Re), [2000] CIRB No. 78; [2000] C.I.R.B.D. No. 32 (QL).

distinguished:

R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209; (2001), 205 D.L.R. (4th) 385; 87 C.R.R. (2d) 189; 276 N.R. 1; 2001 SCC 70; Autocar Royal (9011-4216 Québec Inc.) (Re), [1999] CIRB No. 42.

considered:

TELUS Advanced Communications et al., [2001] CIRB No. 108; [2001] C.I.R.B.D. No. 5 (QL); Teleglobe Canada (Re) (1979), 32 di 270, 80 CLLC 16,025; [1979] 3 C.L.R.B.R. 86 (C.L.R.B.); British Columbia Telephone Company (1978), 28 di 909; 78 CLLC 16,46; [1978] 2 C.L.R.B.R. 387 (C.L.R.B.); AirBC Limited (1990), 81 di 1; 90 CLLC 16,035 (C.L.R.B.); BCT.Telus et al. (2000), 69 C.L.R.B.R. (2d) 184; [2000] CIRB No. 73.

referred to:

Telus Advanced Communications, a division of Telus Communications Inc. v. Telecommunications Workers Union (2002), 293 N.R. 364; 2002 FCA 310; Certen Inc. (Re), [2003] CIRB No. 233; [2003] C.I.R.B.D. No. 26 (QL); Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; (1991), 3 O.R. (3d) 511; 81 D.L.R. (4th) 545; 91 CLLC 14,029; 4 C.R.R. (2d) 193; 126 N.R. 161; 48 O.A.C. 241; Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722; (1976), 67 D.L.R. (3d) 421; 76 CLLC 14,024; 9 N.R. 181; General Aviation Services Ltd. (1979), 34 di 791; [1979] 2 C.L.R.B.R. 98 (C.L.R.B.); Metroland Printing, Publishing and Distributing Ltd., [2003] O.L.R.D. No. 514 (O.L.R.B.) (QL).

APPLICATION for judicial review of Canada Industrial Relations Board decisions (TELUS Corp. (Re), [2004] CIRB No. 278; [2004] C.I.R.B.D. No. 19 (QL)) raising the question as to whether, in case of a corporate takeover, the Board can include the acquired employees in the bargaining unit to which the workers for the acquiring company belong, without having to ascertain the wishes of the acquired employees. Application dismissed.

appearances:

Roy C. Filion, Q.C. and Sharon L. Chilcott for applicants.

David Stratas, Brian W. Burkett, and Brad Allen Elberg for respondent TELUS Communications Inc.

M. D. Shortt, Q.C. and Patty Dumaresq for respondent Telecommunications Workers Union.

solicitors of record:

Filion Wakely Thorup Angeletti LLP, Toronto, for applicants.

Heenan Blaikie LLP, Toronto, for respondent TELUS Communications Inc.

Shortt, Moore & Arsenault, Vancouver, for respondent Telecommunications Workers Union.

The following are the reasons for judgment rendered in English by

Evans J.A.:

A. INTRODUCTION

[1]This is an application for judicial review of two decisions of the Canada Industrial Relations Board. It raises an important question which, despite the complexity of the facts and the number of issues raised, can be stated quite simply.

[2]When company A takes over company B, can the Board lawfully include the employees of company B in the bargaining unit to which the employees of company A belong, without first ascertaining, and taking into account, whether the employees of company B wish to be included in this or any other bargaining unit?

[3]The applicants (TELUS) say that, following the takeover by TELUS of Clearnet Communications Inc. (Clearnet), and of two companies within QuébecTel Group Inc. (QuébecTel), the Board swept some 2,000 former employees of these companies (the new employees) into the bargaining unit covering existing TELUS employees. The applicants submit that, since the Board did not first ascertain and take into account the wishes of the new employees, its decisions violate the primacy of employee choice in decisions relating to union representation, a fundamental principle of labour relations enshrined in the Canada Labour Code, R.S.C., 1985, c. L-2, an international convention to which Canada is a signatory, and the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

[4]The respondent to the application is the Telecommunications Workers Union (TWU), which represented 10,000 TELUS employees in British Columbia and Alberta immediately before the acquisitions. It says that, when the full range of labour relations considerations are taken into account, the inclusion of the new employees in the bargaining unit is not patently unreasonable. Moreover, since their inclusion does not involve a radical change to the bargaining unit or certification, the Board's decision is consistent with established Board jurisprudence. And, because the new employees comprise a small minority of the enlarged bargaining unit, it was not necessary for the Board to order a vote of all the members to ensure that the TWU maintained majority support. Finally, the inclusion of the new employees in the unit and their representation by the TWU, even if against their wishes, does not violate their Charter rights.

[5]In these reasons, I refer to the applicants collectively, as "TELUS". However, one of the applicants, Rosella Tanja Liberati, is an employee in TELUS' wireless business who started her employment after the Board's hearing had ended, but before it rendered its decision. She is not represented by a union and does not wish to be. None of the former Clearnet employees appeared or was represented at the Board hearings to oppose their inclusion in the bargaining unit.

[6]The interests of the approximately 100 former employees of QuébecTel were represented before the Board by their union, CUPE [Canadian Union of Public Employees], which opposed their inclusion in the TWU bargaining unit. However, after reaching an agreement with the TWU, CUPE decided not to join this application for judicial review of the Board's decision.

[7]The non-participation of CUPE in this application may weaken the claim of TELUS to represent the interests of the former QuébecTel employees. Indeed, it is fair to say that, for the purpose of this application for judicial review, TELUS' concerns were directed primarily at the position of the former Clearnet employees. However, their absence from the proceeding before the Board may put into question whether TELUS had standing to rely on the constitutional rights of the former Clearnet employees in order to resist their inclusion in the bargaining unit.

[8]Nonetheless, having considered the merits of most of the arguments advanced by TELUS, I would dismiss the application for judicial review.

[9]First, I am not persuaded that the decisions under review should be set aside on the ground that the Board exceeded its jurisdiction by rendering decisions that are patently unreasonable because the Board did not first ascertain and consider the wishes of the new employees and the fitness of the TWU to represent them.

[10]Second, in my view, the inclusion of the new employees in the bargaining unit for which the TWU is the sole bargaining agent does not deprive them of the constitutional right of association guaranteed by paragraph 2(d) of the Charter.

[11]This proceeding is the consolidation of separate applications to review two decisions of the Board. The first, CIRB Letter Decision No. 1088, is a summary of the decision subsequently released by the Board on June 24, 2004, as [2004] CIRB No. 278 [TELUS Corp. (Re)]. For all practical purposes, the decision under review is decision 278, which I refer to in these reasons as the 2004 decision, in order to distinguish it from a Board decision in 2001 which looms large in this case.

B. FACTUAL BACKGROUND

[12]The most prominent feature of the factual background from which this application for judicial review emerges is the takeover by TELUS of Clearnet in 2000. Negotiations had begun in July of that year; the $6.6 billion deal was announced in August, and the acquisition of nearly all Clearnet's shares was completed in October 2000. This was the largest acquisition in the history of the telecommunications industry in Canada and, as a result, a company previously active only in British Columbia and Alberta, largely in landline operations, became overnight a major player on the national stage in wireless, or mobile, telecom-munications. The acquisition of Clearnet had been preceded by TELUS' purchase of two landline and wireless subsidiaries of QuébecTel.

[13]In order to provide context to these events, and their labour relations consequences, it is helpful to outline some of the corporate and labour relations history. TELUS had started life as a landline telephone company in Alberta, but with national aspirations. Early in 1999, TELUS merged with BC Telecom Inc.; the merged company was known as BCT.TELUS. Previously, each company had provided regional landline and wireless services through their operating subsidiaries.

[14]Following the merger, the labour relations situation was complex: the employees were represented by four unions, formed five bargaining units and were covered by five collective agreements. In British Columbia, the TWU represented wireless and landline employees in a single bargaining unit; in Alberta, wireless and landline employees were in separate bargaining units and were represented by different bargaining agents. In an attempt to rationalize its labour relations, BCT.TELUS applied to the Board in February 1999 under section 18.1 [as enacted by S.C. 1998, c. 26, s. 7] of the Code for, among other things, a review and redefinition of the bargaining units within BCT.TELUS and its subsidiaries.

[15]The proceedings before the Board were adjourned to allow the parties to reach an agreement, which they did on most issues. The agreement provided for a single bargaining unit covering the wireless and landline employees in Alberta and British Columbia. The Board issued an order giving effect to the agreement and ordered a vote to determine which union the employees wished to represent them. The TWU was the winner and was duly certified by the Board as the sole bargaining agent for the employees of TELUS, as BCT.TELUS had meanwhile become. The Board reserved jurisdiction to reconsider the description of the unit.

[16]For present purposes, the most important issue that the parties could not resolve by agreement was the geographical scope of the bargaining unit. No doubt this was because both sides were aware that TELUS' business was soon likely to expand, in one form or another. The Board reconvened in September, the month following the announcement of TELUS' acquisition of Clearnet; hearings were held to determine, among other things, whether the newly-agreed upon single bargaining unit extended beyond Alberta and British Columbia. The Board released its decision on February 9, 2001, in [2001] CIRB No. 108 [TELUS Advanced Communications et al.], which I refer to in these reasons as the 2001 decision.

[17]The 2001 decision has an important bearing on the 2004 decision under review in this application. In its reasons for the 2001 decision, the Board said (at paragraph 28):

The employer's application was filed at the first available opportunity to ensure that the Board was aware of the state of the employer's ever-changing operations. Given the planned and ongoing expansion of existing operations (e.g. Telus Mobility) east of Alberta, the failure by this Board to incorporate that expansion into the single bargaining unit would lead to a multiplicity of certification and/or review applications. Such is not in the interests of either party and runs counter to the responsibilities placed on the Board by the Code.

[18]"The responsibilities of the Board" would seem to be a reference to the observation by the Board in the previous paragraph that "restricting the single bargaining unit to the geographic regions of the two provinces of Alberta and British Columbia" would not achieve the promotion of the "meaningful, peaceful and harmonious bargaining" which the Code aims to foster.

[19]Hence, the Board concluded, as TELUS' business expands eastwards, additional employees are to be included in the single bargaining unit. At this point, however, the Board introduced (at paragraph 30) an important qualification. Since it is central to the applicants' case, I quote it in full:

Acquisitions, as opposed to business expansions, are a different matter and are to be treated as such. How and whether they become folded into the bargaining unit will depend upon their integration into the corporate operations. The more separate they remain, the less appropriate it may be for those operations to be a part of the single bargaining unit. The Board would apply its normal criteria (e.g. community of interest, etc.) in determining whether these employee groups should be included in the new single bargaining unit. The Board was not provided with sufficient evidence to make any determination about recent or planned acquisitions. Until such time as the Board orders otherwise, such acquisitions are not automatically included in the single bargaining unit description adopted and approved by the Board. [Emphasis added.]

[20]TELUS made an application for judicial review to have the 2001 decision set aside, but the application was dismissed: Telus Advanced Communications, a division of Telus Communications Inc. v. Telecommunications Workers Union (2002), 293 N.R. 364 (F.C.A.).

[21]Finally, I should outline the corporate reorganizations that took place within the TELUS group of companies after TELUS' acquisition in 2000 of QuébecTel and Clearnet that have a bearing on the labour relations issues with which this proceeding is concerned.

[22]TELUS divided its wireless business from its landline business. TELUS' entire wireless business, conducted both by the existing operations in Alberta and British Columbia, and by the acquired companies, were placed in a partnership, TELE-MOBILE COMPANY/ SOCIÉTÉ TÉLÉ-MOBILE, which carried on business as TELUS Mobility. I use this latter name in these reasons to refer to the employer of TELUS' wireless employees. TELUS' landline employees in Alberta and British Columbia were assigned to TELUS Communications Inc. (TCI).

[23]However, the employees' assignment to new employers did not disturb their previous employment relationships. In particular, the previous collective bargaining relationships of TELUS' former landline and wireless employees in Alberta and British Columbia remained in place, and those who had been represented by the TWU continued to be. Similarly, the former employees of QuébecTel who had been represented by CUPE still were, while the former Clearnet employees continued to be non-unionized.

[24]In March 2001, the TWU applied to review and modify this labour relations structure in light of the corporate changes which had consolidated TELUS' wireless employees as employees of TELUS Mobility, and its landline employees as employees of TCI. The TWU asked to represent all TELUS' wireless employees, including the new employees. For this purpose, the TWU requested a declaration that TELUS Mobility and TCI were a single employer, and that the new employees be included in a single bargaining unit.

[25]The application was opposed by the companies and by CUPE, who argued that TELUS' labour relations structure should remain essentially unchanged. The companies maintained that the real issue before the Board was the effect of the consolidation of TELUS' wireless business into a single national company, TELUS Mobility.

[26]The Board's disposition of this application in the 2004 Decision is the subject of the present application for judicial review.

C. BOARD DECISION NO. 278 (2004 Decision)

[27]Commencing on August 28, 2001, and ending on May 23, 2003, the Board held hearings on the TWU's application for 33 days. The reasons of the Board, which were released on June 24, 2004, occupy 378 paragraphs. The reasons of the dissenting member are almost as substantial, running to 275 paragraphs. I say this to emphasize the magnitude and complexity of the Board's task, which are fully reflected in two sets of thoughtful and comprehensive reasons.

[28]Fortunately, not all the issues addressed in the 2004 decision are directly relevant to the application for judicial review, nor have the applicants challenged all the Board's adverse findings, although they do not necessarily agree with them. Accordingly, while I shall focus on the four aspects of the Board's reasons that are in issue in the present proceeding, a relatively full account of which will assist an understanding of the issues on which the case turns.

(i) Decision 108 (2001 Decision)

[29]The parties agree that a proper appreciation of the 2001 decision is vital to the resolution of the issues before the Board in the 2004 decision. However, they do not agree on what the 2001 decision decides, or whether it was properly understood by the Board in the 2004 decision. The Board stated in its 2004 decision that its 2001 decision rested on TELUS' agreement that a single bargaining unit for wireless and landline employees was appropriate for collective bargaining purposes, and that in the 2001 decision the Board had approved a single bargaining unit. In the 2004 decision, the Board concluded (at paragraph 189) as follows:

The fact that now part of TELUS's growth includes the acquisition of a large number of non-unionized mobility employees should not be a factor for departing from the established single bargaining unit. A single bargaining unit comprising both the landline and mobility employees is now the existing situation, therefore, a party wanting to change this existing situation, would bear the onus of establishing that a review is necessary.

[30]In its 2004 decision, the Board also observed (at paragraph 185) that in the 2001 decision it had held that, in view of TELUS' intended expansion, the bargaining unit should have no geographical limit so that it would include "the planned expansion with respect to existing operations of TELUS Mobility east of Alberta." Thus, the 2001 decision stated (at paragraph 29):

Accordingly, the bargaining unit description shall not contain any geographic restriction, but shall, by inference, incorporate potentially all of Telus' Canadian operations.

[31]However, in the 2004 decision, the Board noted (at paragraph 186) that the 2001 decision held that the employees of acquired companies, as opposed to additional employees hired by TELUS as its business expanded,

. . . would not automatically be included in the single bargaining unit but rather would become folded into the single bargaining unit depending on their integration into the corporate operations. The Board specified that it would apply its normal criteria in determining whether these employee groups should be included in the single unit. [Emphasis added.]

(ii) single employer declaration

[32]Section 35 [as am. by S.C. 1998, c. 26, s. 17] of the Code provides that the Board may declare associated or related businesses to be "a single employer" when, "in the opinion of the Board", they are "operated by two or more employers having common control or direction". The Board held that TCI and TELUS Mobility were associated or related and were under common control or direction. TELUS does not challenge this finding.

[33]The Board then considered if granting the declaration would serve a labour relations purpose.Referring to principles established in Board jurisprudence, it stated (at paragraph 276) that it would, because a single employer declaration would preserve the existing single bargaining unit structure and minimize

. . . adverse effects from corporate reorganizations or corporate creations on existing bargaining rights. As well, the avoidance of possible transferring of employees from one business concern to another, which are related in direction and activities but nonetheless distinct in the eyes of the law.

The Board concluded that, because of the potentially adverse impact on existing bargaining rights, the fact that a single employer declaration may facilitate the inclusion of new employees in the bargaining unit "who have not been given an opportunity to choose" (at paragraph 280) does not make the declaration "just an attempt to enhance bargaining rights": (at paragraph 281). Granting the declaration thus had a valid labour relations purpose.

(iii) review of the bargaining unit

[34]The Board stated (at paragraph 292) that whether it was appropriate to have a stand-alone bargaining unit for mobility employees was "intimately related" to the declaration that the employers of TELUS' wireless and landline employees (TELUS Mobility and TCI respectively) constituted a single employer.

[35]The Board conducted a section 18.1 review to determine the appropriateness of the existing single bargaining unit, especially in view of the addition of the new employees on the wireless side of TELUS' operations.The Board concluded (at paragraph 304) that it would be premature to reconfigure the bargaining unit before the arrangements approved and determined in the 2001 decision had been given time to work.

[36]Even though the details of TELUS' expansion through the acquisition of Clearnet and QuébecTel were not before the Board when it rendered the 2001 decision, it was aware at the start of the hearing that significant developments in the corporate growth of TELUS made the geographical boundary issue of great importance to the parties. Hence, the Board envisaged that, as TELUS' business expanded east, the single bargaining unit would cover additional employees.

[37]However, in the 2004 decision, the Board also took into account the fact that the 2001 decision did not provide for the automatic inclusion in the bargaining unit of the employees of companies acquired by TELUS. Having considered the new employees' job descriptions and transfer opportunities, the Board concluded in its 2004 decision that they were performing the same work as the wireless employees already covered by the original certification.

[38]The Board rejected the argument that a vote should be held to determine the wishes of the former Clearnet and QuébecTel employees to ensure that they were not swept into the bargaining unit without the support of a majority of the new employees. Relying on its existing jurisprudence, the Board found that an amendment to the certification to include the new employees in the bargaining unit was not a radical change to the unit envisaged by the original certification, because, for example, of the similarity of the work performed and the absence of any geographical restriction of the bargaining unit.

[39]In addition, the Board explained (at paragraph 339) why it was not necessary to conduct a vote of the members of the expanded unit:

In cases of bargaining unit reviews, if the employees to be added constitute a very small number and support for the bargaining agent within the unit is clear, no vote is necessary. If the employees to be added constitute such a large proportion of the unit that majority support for the bargaining agent is questionable, a vote may be ordered (see decision no. 94).

The former Clearnet and QuébecTel employees would constitute a relatively small minority if added to the existing TWU bargaining unit.

(iv) fitness of the TWU to represent the new employees

[40]The Board considered the argument that the new employees should not be included in the bargaining unit because, as a western-based, anglophone union, the TWU was not fit to represent either the former Clearnet employees, most of whom were in Ontario, or the francophone former employees of QuébecTel in Quebec.

[41]Again, relying on its established jurisprudence, the Board stated in its 2004 decision that, once a bargaining agent met the statutory definition of a trade union (as, the parties agreed, the TWU did) and it had been chosen by a majority of the employees to represent them, its "fitness" was not relevant in either single employer applications or bargaining unit reviews (at paragraph 321). Employees' dissatisfaction with a union may be remedied by a majority's seeking a revocation of the certification and the replacement of the bargaining agent by another (at paragraph 328).

(v) paragraph 2(d) of the Charter

[42]The Board rejected the argument that it would breach the new employees' right to freedom of association guaranteed by paragraph 2(d) of the Charter if the Board included the new employees in the existing single bargaining unit, without having regard to their wishes in the exercise of its discretion under section 18.1 to review the structure of the bargaining unit.

[43]The Board noted that, by a 5-4 majority, the Supreme Court of Canada had held in R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, that the Charter did not invalidate the provincial legislation in issue in that case, which required employees to join one of five designated union groups. The Board was not asked to consider, in the alternative, whether including the new employees in the single bargaining unit would violate their right to freedom of expression under paragraph 2(b). Although this issue was raised in the application for judicial review, I would decline to decide it in the absence of a record established by the Board (especially on section 1), and without the benefit of reasons from the Board.

D. THE LEGISLATIVE FRAMEWORK

Federal Courts Act [R.S.C., 1985, c. F-7, ss.1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27)]

18.1 . . .

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

Canada Labour Code [s. 8 (as am. by S.C. 1999, c. 31, s. 162)]

And Whereas Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;

And Whereas the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard;

. . .

8. (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.

(2) Every employer is free to join the employers' organization of their choice and to participate in its lawful activities.

18.1 (1) On application by the employer or a bargaining agent, the Board may review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining.

. . .

35. (1) Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may, by order, declare that for all purposes of this Part the employers and the federal works, undertakings and businesses operated by them that are specified in the order are, respectively, a single employer and a single federal work, undertaking or business. Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

(2) The Board may, in making a declaration under subsection (1), determine whether the employees affected constitute one or more units appropriate for collective bargaining.

Canadian Charter of Rights and Freedoms

2. Everyone has the following fundamental freedoms:

. . .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

. . .

(d) freedom of association.

E. ISSUES AND ANALYSIS

Issue 1: Standard of Review

[44]It is agreed between the parties that, because of the powerful privative clause in section 22 [as am. by S.C. 1990, c. 8, s. 56; 1998, c. 26, s. 9; 2002, c. 8, s. 182(1)(e)] of the Code, the 2004 decision can only be reviewed under paragraph 18.1(4)(a) of the Federal Courts Act, and may be set aside if it was in excess of the Board's jurisdiction.

[45]The first step in determining if the Board exceeded its jurisdiction is to decide the standard of review that Parliament impliedly intended the courts to apply to the decision under review. Parliament's intention is determined by a pragmatic and functional analysis that is designed to find the optimal allocation of responsibility between agency and reviewing court for deciding the issue in dispute between the parties.

[46]Labour boards in Canada are among the most senior of our administrative tribunals, and are regarded as possessing a broad mandate and matching expertise in the regulation of labour relations. The strong preclusive clauses typically found in their enabling legislation further indicate a legislative intention that in judicial review proceedings courts should afford labour board decisions a high degree of deference. These observations apply fully to the Canada Industrial Relations Board.

[47]It is unnecessary to conduct a full pragmatic and functional analysis each time a labour board decision comes for judicial review: there is a broad consensus about the status of labour boards, the scope of their mandate and expertise, and the general purposes of the Code. In addition, strong privative clauses are typically included in their enabling legislation. The inquiry can thus focus principally on the nature of the question in dispute and whether it is within the scope of the Board's expertise. Here, too, settled jurisprudence avoids the need for reviewing courts constantly to reinvent the wheel: labour boards' decisions based on an interpretation of their constitutive, and closely related, legislation are normally reviewable only for patent unreasonableness, even when the statutory provision in dispute also has a more general legal meaning: Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565.

[48]The applicants allege that the Board erred in its determination of four discrete legal questions. Two involve the Board's interpretation of sections 18.1 and 35 of the Canada Labour Code and hence are presumptively reviewable only for patent unreasonableness.

[49]The first, and principal, question of statutory interpretation is whether, in exercising its discretion under sections 18.1 and 35 to reconsider the appropriateness of bargaining units and to issue a single employer declaration, the Board was impliedly required by the Code to ascertain, and to take into account, the wishes of the former Clearnet and QuébecTel employees before including them in the single bargaining unit. The second question is whether, in reviewing the bargaining units, the Board was required to consider the fitness of the TWU to represent the new employees.

[50]I see no reason for denying the Board's determination of these questions the maximum curial deference generally afforded to labour boards' interpretation of their enabling legislation. It is also relevant that the Board has developed jurisprudence on these questions, which reflects the Board's accumulated institutional experience in reaching a solution that balances the aims of harmonious and stable labour relations, the protection of existing bargaining rights, and employee wishes. Of course, if the applicants establish that the Board's 2004 decision was rationally insupportable in light of the objectives of the Code, the Court will be obliged to intervene, Board jurisprudence to the contrary notwithstanding.

[51]Finally, I would note as part of the pragmatic and functional analysis that the purposes underlying sections 18.1 and 35, as well as the general purposes of the Code, also suggest deference. The general purposes of the Code were succinctly articulated by Arbour J. in Ivanhoe (at paragraph 26) as being:

. . . "promote collective bargaining as a better means of guaranteeing industrial peace and of establishing equitable relations between employers and employees". . . . The legislature believed that to attain this objective, a specialized tribunal that would allow for the speedy and final resolution of disputes was needed.

[52]The purposes of section 18.1 are to review bargaining units to ensure their continuing effectiveness for collective bargaining purposes, while the purposes of section 35 are to treat two entities as one when required for the protection of existing bargaining rights and to ensure the rationalization of bargaining units in the interests of sound labour relations. The specific purposes of these provisions thus serve to promote the general purposes of the Code, and call for the kind of balancing of interests and labour relations sensitivity to which the Board's expertise is highly relevant.

[53]Counsel for the applicants appeared to be tempting the Court to stray from the straight and narrow path of the pragmatic and functional approach to the standard of review when he characterized as jurisdictional error the Board's alleged failure to take into account relevant considerations, namely the wishes of the new employees and the fitness of the TWU to represent them. In my view, however, when, as in this case, the issue in dispute is an administrative agency's interpretation of its enabling legislation, this older mode of analysis does more to obscure than to illuminate the true nature of the problem at hand. This is why it has been eclipsed by the pragmatic and functional approach.

[54]Thus, in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 22, writing for the Court, McLachlin C.J. said that, in determining the appropriate standard of review, a reviewing court should not

. . . merely to identify a categorical or nominate error, such as bad faith, error on collateral or preliminary matters, ulterior or improper purpose, no evidence, or the consideration of an irrelevant factor. [Emphasis added.]

It takes no great leap of legal imagination to suppose that the Chief Justice would include in this non-exhaustive catalogue of "categorical" errors, an allegation that a tribunal had exceeded its jurisdiction by failing to take into account a relevant factor.

[55]Third, in addition to these issues of statutory interpretation, the applicants also argue that the 2004 decision is in excess of the Board's jurisdiction because it relies too heavily on the 2001 decision and is not consistent with earlier Board jurisprudence. They concede that, to succeed on this ground, they must establish that the Board's interpretation of the 2001 decision, and of other relevant Board decisions, was patently unreasonable.

[56]Fourth, the applicants submit that the Board's 2004 decision denies the new employees' right to freedom of association guaranteed by the Charter. It is agreed that this is a question of constitutional law, for which correctness is the applicable standard of review. If the Board was wrong to conclude that the new employees' Charter rights were not infringed, the 2004 decision was made in excess of its jurisdiction.

Issue 2:     Should the Board have ascertained the new employees' wishes?

(a) the general argument

[57]The principal point made on behalf of TELUS was that the Board was obliged to ascertain the wishes of the former employees of Clearnet and QuébecTel so that it could take them into consideration before rendering the 2004 decision. I did not understand counsel for TELUS to go so far as to say that the new employees' wishes were necessarily determinative of the outcome. However, counsel said, if the Board added the new employees to the bargaining unit after discovering that this was not the wish of a majority, it would have to demonstrate clearly in its reasons that it had attached appropriate weight to the new employees' wishes, and to explain why their choice not to be included was outweighed by countervailing considerations, such as the need to protect existing bargaining rights, and to ensure stable and harmonious labour relations.

[58]Further, counsel submitted, because the Code attaches great importance to employees' right to freedom of association, the Board was legally obliged to assign considerable weight to the wishes of the new employees before deciding the issues before it. He pointed out that the new employees in this case were in a different position from employees who join TELUS as a result of an expansion of its business.

[59]This is because, when the former Clearnet employees started working for Clearnet, they did so in the knowledge that there was no union, and that they would only become members of a bargaining unit if a majority of co-employees so wished. In contrast, when employees are hired by TELUS to fill new positions created as operations expand, they know that they will be members of an existing bargaining unit.

[60]I would only add that corporate mergers and takeovers are not unfamiliar business phenomena; a unilateral change of employer can have many unwelcome consequences for employees, including job losses, employment restructuring, and relocation. In this case, the former employees of the companies acquired by TELUS also face a unilateral potential change from either individual contracts of employment to a collective bargaining regime, or representation by one bargaining to representation by another. While these consequences of TELUS' takeover are not insignificant for the employees concerned, they need also to be seen in perspective.

[61]As for the argument that the Code attaches great weight to employees' freedom of choice in matters of representation, I accept that the Code is as concerned with employees' choice not to be represented by a union, as it is with employees' choice to belong to a union. However, it is also clear that an individual employee's wishes can be overridden by the contrary wishes of a majority of other employees.

[62]Further, in making its decisions, the Board is also required to take into account the various statutory objectives set out in the Preamble to the Code, including the promotion of good industrial relations and constructive collective bargaining practices. The resulting decision should be the product of a balancing of these interests, values, and objectives in a specific factual context.

[63]Perhaps mindful of these considerations, counsel for the applicants did not argue that TELUS' new employees had the same right to have their wishes respected as if the TWU were seeking a first certification. To equate the present case with a first-time certification would ignore the potentially adverse impact on existing bargaining rights, and labour relations friction, if the new employees were excluded from the bargaining unit because a majority of them did not wish to be represented by the TWU.

[64]Counsel's attack on the 2004 decision thus appears to have been directed more at the Board's decision-making process than at the substantive outcome. That is, he characterized the Board's fatal error as its failure to assemble and, consequently, to weigh appropriately, all the relevant data that it required in order to exercise its discretion lawfully. Hence, he did not commit himself unequivocally to the further proposition that the Board could not lawfully include the new employees in the single bargaining unit against their wishes.

[65]In my view, it is clear from its reasons that the Board regarded the wishes of the new employees as relevant to the single employer declaration and to its review of the bargaining unit, but only to the extent that the new employees' inclusion in the single bargaining unit could throw into doubt the continuing support for the TWU by a majority of the members of the expanded unit. In any organization in which the wishes of the majority prevail, the wishes of the minority are, in a sense, discounted. In other words, the Board had regard to the wishes of the new employees, but only as part of the larger group of employees comprising the expanded bargaining unit.

(b) Board jurisprudence

[66]Moving from the general to the particular, counsel for the applicants argued that, by not consulting the wishes of the new employees, the Board's decision was so at odds with its own jurisprudence as to be patently unreasonable. Thus, it is argued, in deciding whether to issue a single employer certificate under section 35, the Board must determine, among other things, whether a declaration to this effect would serve a labour relations purpose, which includes a consideration of the employees' wishes.

[67]As for the section 18.1 review of the bargaining units, counsel said that the 2001 decision required the Board in the 2004 decision to consider "the normal criteria", which include, not only the degree to which the new employees were integrated into TELUS' business and the similarity of their work to that of existing bargaining unit members, but also whether the new employees wished to be in the bargaining unit.

[68]The dissenting member of the Board suggested (at paragraphs 548-550) that, as a result of the Charter's protection of the right of association, it might be appropriate to revisit the Board's case law with a view to giving more prominence to the wishes of individual employees. Whatever the merit of this suggestion, it is for the Board, not the Court, to modify or reverse the Board's jurisprudence, provided, of course, that it does not produce decisions that are patently unreasonable.

(i) section 35: "a labour relations purpose"

[69]In the 2004 decision, the Board noted the applicants' argument that a single employer declaration would enhance the TWU's bargaining rights without the union's having to organize the new employees and obtain their support. Thus, it was said, the effect of the declaration went beyond merely protecting existing rights. The Board also observed (at paragraph 280) that, according to the applicants, a single employer declaration "has the potential result of imposing a collective bargaining regime on employees who have been given no opportunity to choose."

[70]The Board rejected these arguments on two grounds. First, the inclusion of the new employees would not enhance the TWU's bargaining rights: in its 2001 decision, the Board had approved the parties' agreement that there should be a single bargaining unit for landline and wireless employees, decided that there should be no geographical limitations on the unit, and provided for the inclusion of additional employees.

[71]Second, there was evidence of interchange and co-operation between landline and wireless employees, and of the transfer of some wireless work from west to east. The Board noted that the purposes served by a declaration under section 35 are now regarded as broad enough to include, not only the protection of existing bargaining rights from a demonstrable threat of erosion, but also the avoidance of conflicts among employee groups: see Certen Inc. (Re), [2003] CIRB No. 233; Air Canada (Re), [2000] CIRB No. 78.

[72]The applicants provided no authority for the proposition that employee wishes had to be considered by the Board when determining whether there was a valid labour relations purpose for issuing a single employer declaration. I see nothing patently unreasonable in the Board's reasoning, especially since the effect of the declaration on the new employees is simply to open the door to their potential inclusion in the bargaining unit. The Board's review of the bargaining unit under section 18.1 is of more significance.

(ii) section 18.1 and the bargaining unit review

[73]In a nutshell, the applicants' principal argument is that the inclusion of the new employees in the bargaining unit changes the nature of the unit as described in the bargaining certificate. In these circumstances, Board jurisprudence requires it to consider the wishes of the new employees before deciding whether bargaining unit re-configuration is appropriate. The applicants further submit that the wishes of the new employees are among the "normal criteria" that the 2001 decision required a future panel of the Board to consider when deciding whether new employees should be included in the single bargaining unit.

[74]There is substantial Board case law on this issue. The leading authority is generally regarded as Teleglobe Canada (1979), 32 di 270 (C.L.R.B.), a bargaining unit review case, in which the Board stated that not including a large number of additional employees in an existing bargaining unit could undermine bargaining rights by allowing the employer to "fish in troubled waters" and to favour the "non-certified" employees, and, ultimately, by diminishing the effectiveness of the threat of a strike by the union. As for the wishes of the employees, the Board in Teleglobe said (at page 332):

. . . this Board will take into account only the overall majority status of the applicant union following an application for revision which does not affect the nature of an existing bargaining unit but we will require proof of majority support among the employees added when the application for revision would radically change the bargaining unit.

[75]The question is, therefore, whether the inclusion of TELUS' new employees would "affect the nature of an existing bargaining unit" or "would radically change" it. The fact that the inclusion of the former Clearnet and QuébecTel employees in the bargaining unit was not automatic means that an amendment to the certification will be required. However, this modification will not require the Board to take into account the views of the new employees if the addition of the new employees to the bargaining unit does not change its "basic character and intended scope" (Teleglobe at page 332).

[76]In my opinion, it was not patently unreasonable for the Board to conclude, on the basis of its jurisprudence and the facts before it, that the inclusion of the new employees would not involve such change. The cases to which we were referred where the Board had taken the wishes of added employees into account involved a change in the job descriptions covered by the bargaining certificate. Accordingly, Teleglobe does not assist the applicants.

[77]The applicants relied heavily on British Columbia Telephone Company (1978), 28 di 909 (C.L.R.B.), a pre-Teleglobe bargaining unit review case, where the union sought to expand the scope of the bargaining unit by re-including certain employees who had been excluded as a result of an agreement between the union and the employer. The certificate had originally extended to "all employees" of the company, but the parties subsequently agreed to limit the scope of the collective agreement to listed job classifications. Relying on the certification order, the union asked the Board to declare that a collective agreement applied to employees who had been excluded from the scope of the original bargaining unit by the parties' later agreement.

[78]The Board declined, saying (at pages 917-918) that the inclusion of previously excluded employees, without reference to their wishes, was likely to lead to strains in labour relations and to conflicts between the added employees and other members of the bargaining unit, as well as to a decline in the public perception of the fairness of the collective bargaining system. Further, the Board said (at page 919), to grant the union's application would

. . . ignore the interests of employees who have grown to accept and expect that their employment relationship is regulated in a manner other than by representation by the applicant union.

[79]In my view, the British Columbia Telephone case can reasonably be distinguished on its facts. First, the employees whom the union sought to add were in job classifications which the parties' agreement had carved out of the "all employees" certificate. In contrast, the job descriptions of the former Clearnet and QuébecTel employees are similar to those of the wireless employees already in the single bargaining unit.

[80]Second, it is a questionable characterization of the 2001 decision to say that it excluded from the bargaining certificate former employees of companies acquired by TELUS. In my view, it is at least as plausible to say that, since there were no geographical limits on the certificate, the new employees were neither excluded, nor included. I infer from the 2001 decision that their inclusion in the bargaining unit and the certificate was contemplated, if the "normal criteria" were satisfied. In contrast, the parties' agreement in British Columbia Telephone that the collective agreement only extended to certain job descriptions seems to have been intended to exclude other employees covered by the terms of the certificate.

[81]The applicants also relied on AirBC Limited (1990), 81 di 1 (C.L.R.B.), as authority for the proposition that the Board ought to have taken into account the wishes of the new employees when exercising its discretion to review the bargaining unit pursuant to section 18.1. That case concerned applications made for separate representation on behalf of certain employee groups within the airline's workforce. Although these applications would, if successful, result in the fragmentation of the workforce, the Board agreed to the creation of separate bargaining units for pilots, flight attendants and dispatchers. The case is relevant because the wishes of these employees were taken into consideration by the Board when deciding whether to accede to the unions' applications to be the sole bargaining agents for these employee groups.

[82]However, in my opinion, AirBC does not establish that the 2004 decision was patently unreasonable. The AirBC case arose in a very different labour relations context: a "raid" by unions to represent, in separate bargaining units, certain employee groups who had belonged for some time to a larger unit whose members performed a variety of different jobs. Unlike the present TELUS case, there was no ready possibility of job transfers between members of the three employee groups on the one hand, and the employees who remained in the original bargaining unit on the other.

[83]Given these differences, it cannot be said that the 2004 decision was patently unreasonable in applying the more relevant Board jurisprudence dealing with accretions to a bargaining unit. However, the AirBC case might well be relevant to the Board's determination of a section 18 or 18.1 application, if, when the present arrangements have been in place for some time, a majority of TELUS' wireless employees should think it not in their interests to remain in the TWU bargaining unit because a large majority of the members are employed in TELUS' landline operations.

[84]For these reasons, I am not persuaded that the 2004 decision so misinterpreted the Board's jurisprudence as to render it patently unreasonable for the Board to exercise its discretion under section 18.1 without first ascertaining the wishes of the new employees. The inclusion of the new employees did not involve a radical change to the geographically unrestricted bargaining unit or the certification.

Issue 3:     Was the 2004 decision in excess of the Board's jurisdiction because it was based on a patently unreasonable interpretation of its 2001 decision?

[85]It will be recalled that the 2001 decision concluded that, despite the absence of geographical restrictions on the single bargaining unit, employees of companies acquired by TELUS were not automatically members of the bargaining unit, unlike employees hired by TELUS as it expanded its business. Whether the "acquired" employees became members of the unit would depend, the Board said in the 2001 decision (at paragraph 30), on the degree of "integration into the corporate operations", and the application by the Board of "its normal criteria (e.g. community of interest, etc.) in determining whether these employee groups should be included in the new single bargaining unit."

[86]In the absence of detailed information about TELUS' planned or recent acquisitions (including presumably, the takeover of Clearnet), the Board was not in a position when it rendered its 2001 decision to make any determinations of the status of particular groups of "acquired" employees. Accordingly, the Board concluded,

Until such time as the Board orders otherwise, such acquisitions are not automatically included in the single bargaining unit description adopted and approved by the Board.

[87]The applicants allege that the Board made three errors in the 2004 decision with respect to the 2001 decision. First, the Board committed a reviewable error by regarding the 2001 decision as determinative of the issues that it had to decide in the 2004 decision. The complaint is unfounded in so far as it alleges that the 2004 decision simply overlooked the fact that the 2001 decision distinguished between employees hired as a result of TELUS' expansion of its existing operations, and employees of acquired companies. As I indicated earlier in these reasons (at paragraph 19), when making its 2004 decision the Board was very alive to this distinction: see, for example, paragraphs 186-188 and 313 of the reasons for the 2004 decision.

[88]It is true that the 2001 decision did not purport to determine whether the former Clearnet and QuébecTel employees should be included in the single bargaining unit. However, in making the 2004 decision, the Board cannot be said, in my view, to have interpreted the 2001 decision unreasonably by regarding it as establishing the criteria to be applied in the future for determining whether any given "acquired" employee groups should become members of the bargaining unit.

[89]Second, the applicants say that the 2004 decision is erroneous because the Board placed on those opposing the new employees' inclusion the burden of proving why they should be excluded from the single bargaining unit. I do not agree.

[90]Reading the reasons as a whole, I am not satisfied that this is what the Board did. In my view, the 2004 decision did not turn on the burden of proof: the primary facts and factual inferences were not in dispute. It is true, however, that the Board approached the issue of the inclusion of the new employees against the background of the 2001 decision, in which the Board approved a labour relations structure for TELUS consisting of a single bargaining unit, without geographical restrictions, for both landline and wireless employees.

[91]Thus, in its 2004 decision (at paragraphs 304-305), the Board was not prepared to revisit the conclusion in the 2001 decision that there was a community of interest between TELUS' landline and wireless employees. As for the new employees, community of interest with existing wireless employees was established on the bases of, for example, similarity of job descriptions and transferability of work. In addition, the Board accepted the basis for determining the tests for the inclusion of the new employees established by the Board in its 2001 decision. In neither respect, can it be said that the Board committed any reviewable error.

[92]Third, the applicants say that, in failing to ascertain the wishes of the new employees, the 2004 decision ignored the direction in the 2001 decision that the "normal criteria (community of interest etc.)" be applied before "acquired" employees are added to the bargaining unit. In this context, counsel said, the "normal criteria" include the wishes of the new employees.

[93]In order to establish what the Board meant in decision 2001 by the "normal criteria", counsel for the applicants relied on the following passage from the Board's decision in BCT.Telus et al. (2000), 69 C.L.R.B.R. (2d) 184, at paragraph 17:

The Board has developed well-established principles and criteria that it will consider when determining the appropriateness of a bargaining unit or when reviewing and reconfiguring existing bargaining units. In making such a determination, the Board will weigh and consider a number of factors, including the following: community of interest; viability of the unit; employee wishes; industry practice or pattern; the history of collective bargaining with the employer; the organizational structure of the employer; and the Board's general preference for broader-based bargaining units, for reasons such as administrative efficiency and convenience in bargaining, lateral mobility of employees, common framework of employment conditions and industrial stability . . . [Underlining added.]

(i) community of interest

[94]The "normal criteria" to be applied by the Board when determining whether "acquired" employees should be swept into the single bargaining unit include a consideration of whether they share a "community of interest" with existing members of the existing unit. In this context, it is important to remember that the single bargaining unit, which was approved by the Board following the agreement between the TELUS and the TWU prior to the proceeding that culminated in the 2001 decision, included TELUS' landline and wireless employees.

[95]It cannot be said, therefore, that the 2004 decision swept the new employees into a bargaining unit, none of whose members were employed on the wireless side of TELUS' operations. The fact that, even after the takeovers, TELUS' wireless employees would represent less than one-third of the whole bargaining unit may provide part of the basis of a future section 18.1 application to the Board. However, it was rationally open to the Board to conclude in the 2004 decision that a re-configuration of this kind was premature.

[96]Factors such as the similarity of the work performed, the intermingling of the workforce, and the geographically unlimited nature of the bargaining unit, provide a rational basis for the Board's decision that there was a community of interest between the new employees and the wireless employees already in the bargaining unit.

(ii) employee wishes

[97]In view of both the facts of the present case and the Board's previous decision in Teleglobe, the reference in BCT.Telus to "employee wishes" means that the Board had to consider the wishes of the new employees, not as members of a distinct group, but as members of the entire employee group. In the 2004 decision, the Board did just that and concluded that, because the new employees would constitute only about 20% of the enlarged bargaining unit, their wishes could not erode the support of the majority of the unit for representation by the TWU. Hence, there was no point in ascertaining the wishes of the new employees either by conducting a vote of all the members of the enlarged bargaining unit, or by other means.

[98]The wishes of new employees will also be canvassed, and a double majority required, when their inclusion would constitute a radical change to the bargaining unit or certification. For reasons already canvassed, it was not patently unreasonable for the Board to have concluded in the 2004 decision that the facts before it did not constitute such a change.

[99]The applicants also relied on cases dealing, not with the relevance of employee wishes, but with single employer applications where there was no remedial purpose to justify a declaration: see, for example, Air Canada et al. (1989), 79 di 98 (C.L.R.B.); Autocar Royal (9011-4216 Québec Inc.) (Re), [1999] CIRB No. 42. In the present case, however, the Board found that there were remedial purposes: a section 35 declaration would protect existing bargaining rights from probable erosion and promote sound labour relations. In making this finding, the Board relied on the similarity of the job descriptions and on the existence of opportunities for employee transfers. The Board's finding of fact was not patently unreasonable in light of the evidence before it.

[100]In short, I conclude that the Board did take into account the wishes of the employees as one of the "normal criteria" to be considered in a section 18.1 review. On the basis of the Board's jurisprudence, it was not patently unreasonable for the Board in the 2004 decision to find that this criterion was satisfied because the inclusion of the new employees would not erode the support for representation by the TWU by a majority of the entire group of employees in the single bargaining unit. Hence, the 2004 decision is not based on a patently unreasonable interpretation of the 2001 decision.

Issue 4:     Did the Board exceed its jurisdiction under section 18.1 by patently unreasonably failing to consider the fitness of the TWU to represent the new employees?

[101]This question has an air of unreality as far as the former QuébecTel employees are concerned. Having reached an agreement with the TWU, CUPE, the union that had represented them at QuébecTel, has not participated in this judicial review application. For all intents and purposes, the issue is moot.

[102]Nor do I think it appropriate that the Court should exercise its discretion to decide the "fitness" issue as far as it concerns the former QuébecTel employees. Language rights are of great importance in Canada, including in matters of labour relations. In my view, it would be unwise to pronounce on such an issue when moot (namely, the relevance of the "fitness" of an anglophone union to represent francophone employees) on the basis only of arguments advanced on behalf of the employer and the anglophone union.

[103]Consequently, I shall confine my analysis to the question of whether the fitness of the TWU to represent the former Clearnet employees was a factor that the Board was required to take into account in the 2004 decision in the course of determining the applications under sections 18.1 and 35.

[104]The applicants argued that the former employees of Clearnet should not be swept into the single bargaining unit because the sole bargaining agent for the unit could not adequately represent their interests. The TWU is a western-based union with no experience outside British Columbia and Alberta, where, for most part, it represents landline, not wireless employees. In the 2004 decision, the Board said (at paragraph 320) that, since the TWU is a "trade union" for the purpose of the Code, its fitness to represent the former Clearnet employees was not a relevant factor in deciding the applications before it.

[105]The applicants cited no authorities to support their position on this particular issue. They relied, instead, on the notion that "added" employees should not be included in a bargaining unit whose bargaining agent was not in a position to adequately represent their interests. In addition, the applicants found support for their position in the general statement in the AirBC case (at page 4) to the effect that, when approaching a question concerning the appropriateness of a bargaining unit, the Board "must respect the right of employees to freely join the trade union of their choice."

[106]In my view, there is no merit in these contentions. The "fitness" of the bargaining agent to represent "added" employees is not mentioned in the jurisprudence as one of the "normal criteria" that the Board must consider when exercising its discretion under section 18.1 to review bargaining units.

[107]On the basis of the case law relied upon by the Board in the 2004 decision (at paragraphs 323-325), it was not patently unreasonable for it to conclude that the suitability of the TWU to represent the bargaining unit is a question to be decided, not by the Board, but by a majority of the members of the expanded unit: on the pre-eminence of the majority's choice of union, see also Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722, at pages 744-745; General Aviation Services Ltd. (1979), 34 di 791 (C.L.R.B.), at pages 797-798.

[108]Finally, I should note that, even if a majority of a bargaining unit remains satisfied with their bargaining agent, the Code provides a measure of protection from a union's egregiously inadequate representation of members' interests. Thus, section 37 provides as follows:

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.

In addition, as previously mentioned, if a majority of TELUS' wireless employees (of whom the new employees comprise the majority) are dissatisfied with the present arrangements, an application may be made to the Board on their behalf under section 18 or 18.1.

Issue 5:     Paragraph 2(d) of the Charter

[109]The applicants say that the 2004 decision is in excess of the Board's jurisdiction because the inclusion of the new employees in the bargaining unit without considering their wishes violates their paragraph 2(d) right to freedom of association. They rely on Advance Cutting & Coring, as authority for the proposition that paragraph 2(d) protects employees' wishes not to belong to a trade union.

[110]In my view, there is a short answer to this argument. While there was a majority in Advance Cutting & Coring for the proposition that paragraph 2(d) includes a right of non-association, the facts are easily distinguished from those in the present case. In particular, by reason of the Rand formula, the new employees are not required to join the TWU; in Advance Cutting & Coring, the Rand formula did not apply, and the employees were statutorily required to belong to one of the designated unions: see paragraph 32, per Bastarache J.

[111]Mere inclusion in a bargaining unit and the compulsory payment of dues do not engage paragraph 2(d), even though members of the bargaining unit who decide not to belong to the union thereby exclude themselves from having any say in the manner in which it represents them: Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211. Consequently, I agree with the conclusion to this effect in Metroland Printing, Publishing and Distributing Ltd., [2003] O.L.R.D. No. 514 (O.L.R.B.) (QL).

F. CONCLUSIONS

[112]For these reasons, I would dismiss the application for judicial review with costs.

Linden J.A.: I agree.

Sexton J.A.: I agree.