A-634-76
CKOY Limited (Applicant)
v.
Ottawa Newspaper Guild, Local 205 of the News
paper Guild, C.L.C., A.F.L.-C.I.O. (Respondent)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, January 21 and February 16, 1977.
Judicial review — Labour relations — Application to set
aside certification by Canada Labour Relations hoard
Whether Board erred in law in making its decision — Whether
employer entitled to attack certification on ground asserted —
Canada Labour Code, R.S.C. 1970, c. L-1 as amended, ss.
124, 126(c) and 127 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
Applicant claims that the Canada Labour Relations Board
misdirected itself in deciding that for the purposes of section
126(c) of the Canada Labour Code the time to decide whether
a majority of employees in a bargaining unit wish to be
represented by the union seeking certification is the time when
the application for certification is made.
Held, the Board erred in law and, therefore, the certification
order is set aside and the matter is referred back to the Board
to be determined on the basis that, pursuant to paragraph
126(c) of the Canada Labour Code, it must be satisfied that a
majority of the employees in the unit wish to be represented by
the union at the time when it makes its decision.
The employer is entitled to attack the certification on the
ground asserted in the present case; it has a legitimate interest,
as a party directly affected, in knowing whether the order was
made in accordance with the law.
Teamsters Local 979 v. Swan River-The Pas Transfer
Ltd. (1974), Decisions-Information, (di 4) Vol. 1, No. 4,
August 1974, p. 10, disagreed with. Moffat Broadcasting
Ltd. v. Attorney General of Canada 11973] F.C. 516,
applied. Re Canada Labour Relations Board v. Transair
Ltd. (1976) 67 D.L.R. (3d) 421, applied and distinguished.
JUDICIAL review.
COUNSEL:
C. McKinnon for applicant.
J. Payne for respondent.
L. M. Huart for intervener Canada Labour
Relations Board.
SOLICITORS:
Green, Poulin, McKinnon & Hebert, Ottawa,
for applicant.
Nelligan, Power, Ottawa, for respondent.
L. M. Huart, Ottawa, for intervener Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an application under section 28
of the Federal Court Act' to review and set aside a
decision of the Canada Labour Relations Board,
dated September 8, 1976, certifying the Ottawa
Newspaper Guild, Local 205 of the Newspaper
Guild, C.L.C., A.F.L.-C.I.O., as the bargaining
agent for a unit, defined in the order, comprising
certain employees of the employer, CKOY Lim
ited. The certification order is in these terms:
CANADA
LABOUR
RELATIONS
BOARD Board File: 555 - 571
IN THE MATTER OF THE
Canada Labour Code
' Subsections 28(1) and (2) of the Federal Court Act
provide:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
decision or order by filing a notice of the application in the
Court within ten days of the time the decision or order was
first communicated to the office of the Deputy Attorney
General of Canada or to that party by the board, commission
or other tribunal, or within such further time as the Court of
Appeal or a judge thereof may, either before or after the
expiry of those ten days, fix or allow.
— and—
Ottawa Newspaper Guild,
Local 205 of the Newspaper Guild,
C.L.C.,
applicant,
— and—
CKOY LTD.,
Ottawa, Ontario,
employer.
WHEREAS an application for certification as bargaining
agent for a unit of employees of CKOY Ltd. has been received
from the applicant by the Canada Labour Relations Board
pursuant to Section 124 of the Canada Labour Code (Part V—
Industrial Relations);
AND WHEREAS, following investigation of the application
and consideration of the submissions of the parties concerned,
the Board has found the applicant to be a trade union within
the meaning of the Code and has determined the unit described
hereunder to be appropriate for collective bargaining and is
satisfied that a majority of the employees of the employer in
the unit wish to have the applicant trade union represent them
as their bargaining agent;
NOW THEREFORE, it is hereby ordered by the Canada
Labour Relations Board that Ottawa Newspaper Guild, Local
205 of the Newspaper Guild, C.L.C., A.F.L.-C.I.O. be, and it is
hereby certified to be, the bargaining agent for a unit
comprising:
"All employees of CKOY Ltd. excluding Managing Direc
tor, Executive Secretary, Comptroller, Chief Engineer,
News Director, Sports Director, AM Programme Director,
FM Programme Director, Sales Manager."
ISSUED at Ottawa this 8th day of September 1976 by the
Canada Labour Relations Board.
(signed) Hélène LeBel
Vice-Chairman
The application by the union for certification as
bargaining agent was dated May 11, 1976. The
description of the proposed bargaining unit, which
the union considered appropriate for collective
bargaining and for certification, was: "All
employees of the employer save and except, the
managing director, the general sales manager, the
executive secretary, the A.M. program director,
the F.M. program director, the chief engineer, the
sports director, the news director and the comp
troller." The application stated that the approxi
mate number of employees in the proposed bar
gaining unit was forty-five.
The Board notified the employer and the union
that a labour relations officer had been appointed
by it to investigate the application. The letters of
notification stated that the employer and the union
were required by the Canada Labour Code to
provide the investigating officer with all the infor
mation required in the course of the investigation.
The employer submitted a reply to the applica
tion. The reply was dated May 21, 1976. It stated
that the bargaining unit for which the union had
applied to be certified was inappropriate for sever
al specified reasons. It also stated that, because of
its submission in relation to the appropriateness of
the bargaining unit, the union's estimate of the
number of employees in the proposed bargaining
unit was too high, and that it was not aware that
the employees of the proposed unit were members
in good standing of the union. The employer stated
in addition that it desired a hearing in order to
present evidence and to make further representa
tions.
The Vice-Chairman of the Board, Hélène
LeBel, sent a letter, dated July 29, 1976, to coun
sel for the union and for the employer. The letter
reads in part:
The employer further contends that the proposed bargaining
unit is not appropriate for collective bargaining.
In addition, a number of employees of CKOY Limited have
written to the Board to oppose the application for certification.
In particular, Mr. William Inglis has written to the Board
claiming that as Assistant F.M. Programme Director, he was
performing management functions and should not be included
in the bargaining unit.
The Board's investigation discloses that the applicant wishes
to represent all the employees of the employer with the excep
tion of the managing director, the executive secretary, the
comptroller, the chief engineer, the news director, the sports
director, the A.M. programme director, the F.M. programme
director and the sales manager. As of May 11, 1976, 45 persons
were employed in the proposed bargaining unit. The Board's
investigation further discloses that a majority of the employees
in the proposed bargaining unit wish to be represented by the
applicant union.
However, the Board notes that there remains a dispute
between the parties as to the scope of the appropriate bargain
ing unit. In particular, the employer argues that the following
classifications should also be excluded from the bargaining
unit: promotion and public relations manager (1), assistant
F.M. program director (1), salesmen (4), chief copy writer (1)
and traffic manager (1). The employer has requested the Board
to convene a hearing. The Board further notes that any decision
it might make with regard to the inclusion in or exclusion from
the bargaining unit of those disputed classifications would not
affect the representative character of the applicant union.
After reviewing the evidence and the submissions of the
parties, the Board feels that it requires further information
from the parties before being in a position to determine whether
a hearing is needed to dispose of the instant application for
certification.
Accordingly, the Board hereby requests the parties to file
submissions on the following issues:
1. From the Employer:
What is the nature of the duties and responsibilities of the
promotion and public relations manager, the assistant F.M.
program director, the chief copy writer and the traffic
manager. Further information should be provided as to the
nature of the work done by these persons and the reasons
why it is felt that they do or do not perform management
functions. If documentary evidence is available to support
these contentions, it should be provided to the Board together
with the submissions.
2. From the Applicant:
What is the nature of the duties and responsibilities of the
salesmen or sales representatives particularly with regard to
the question of whether it is appropriate to include these
persons in the same bargaining unit as other employees of the
station. Particular reference should be made to the working
conditions of these persons and to other criteria relevant to
determining whether there exists a community of interest
between these persons and the persons included in the pro
posed bargaining unit.
You are hereby requested to file your submissions with the
Board on or before August 13, 1976. A copy of your submis
sions should be forwarded to the other party at the same time
as it is filed with the Board. If it is wished to file a reply to
these submissions, such reply should [be] filed on or before
August 23, 1976.
In response to this letter, counsel for the
employer sent the following letter, dated August
13, 1976, to the Board:
This will refer to your letter dated July 29th, 1976 addressed
to ourselves and also addressed to the solicitors for the appli
cant. In accordance with the final paragraph of that letter we
are enclosing herewith on behalf of the employer a memoran
dum in respect of the duties and responsibilities of the Promo
tion and Public Relations Manager, the Assistant FM Program
Director, the Chief Copywriter and the Traffic Manager.
The employer has instructed us to repeat its request for a
hearing and submits that the question of majority or non-
majority would be more appropriately determined according to
the facts which exist at the time of the certification hearing in
order to give effect to any changes in circumstances which may
have occurred between May 11, 1976 (the date of filing of the
application) and the date when such hearing is held. It is
submitted that there may have been sufficient changes in
circumstances to justify this approach in the present case.
In a letter, dated August 23, 1976, to the Board,
counsel for the union wrote in part:
In their covering letter delivered by the solicitors for the
Employer with the Employer's submissions, there is a reference
to a possible change in circumstances since the date of the
application for certification which may have some bearing on
the issue of whether a majority of employees in the proposed
unit wish to have the Applicant represent them as their bar
gaining agent.
The Applicant has established that as of the date of filing its
Application for Certification, 34 of the 45 employees in the
proposed bargaining unit were members of its Union.
It is the Applicant's position that a majority in the proposed
bargaining unit are still members of its Union and wish to be
represented by the Applicant and further that there is sufficient
evidence before the Board to satisfy it in this regard. We
submit, with respect, that if the Employer's remarks with
respect to "any changes in circumstances which may have
occurred" (our emphasis) are to be seriously considered by the
Board, the Employer should be required to provide the Board
and the Applicant with detailed particulars of the alleged
changes.
In a letter, dated August 27, 1976, to the Board,
the employer stated:
In a letter to the Board dated August 23, 1976 from Nelli-
gan/Power, the solicitors for the Applicant, there appeared a
suggestion that the company should provide to the Board
detailed particulars of changes in circumstances which may
have occurred between the date of filing of the Application and
the date of determination by the Board.
Accordingly, on August 30th, 1976, the company will deliver
to your office a list of staff changes which have occurred to the
knowledge of the company which may be material when the
Board considers this matter.
On August 30, 1976, the employer sent to the
Board a memorandum giving the names of seven
persons "... who are no longer employed by the
company or who have submitted resignations". It
also stated that a person who had been hired on
May 31 to work in the Accounting Department
had been released on August 31 during her proba
tionary period. The memorandum further stated:
2. To comply with new CRTC FM regulations, at least three
full-time and one part-time announcers will be added to CKBY
staff between September 1 and September 15, 1976.
3. According to page 2 of the letter dated June 7, 1976 from
the Board to CKOY, there were Objectors who were members
of the Applicant at the time of the Application but who later
changed their minds.
4. The company understands that the Board has received at
least one further resignation from the Applicant Union early in
August.
The union's counsel then wrote a letter, dated
September 1, 1976, the relevant parts of which are
quoted below:
We are in receipt of a copy of the Employer's letter to you
dated August 30th, 1976 enclosing their memorandum of staff
changes between May 11th, 1976 and August 30th, 1976.
We are also unclear as to the present status of this matter. It
was our understanding that the exchange of submissions be
tween the Employer's solicitors and ourselves had been com
pleted in accordance with the Board's letter of July 29th, 1976
and we do not understand the Employer's continued representa
tions to the Board which representations are apparently not
being made through its solicitors.
With respect to the Employer's memorandum of staff changes,
we continue to take the position stated in our letter of August
23rd, 1976 to the Board to the effect that even if there have
been certain changes in the Employer's staff since the filing of
our application, a majority of the Employees in the proposed
bargaining unit are still members of the Applicant and wish to
be represented by it.
We further submit that the Board should not consider the
objections and resignations filed with it unless there is a
hearing and the persons involved lead evidence as to the
voluntariness of their objections and resignations. We are
nevertheless of the view that a hearing is not necessary in view
of the evidence before the Board of membership in the Appli
cant Union.
As indicated at the beginning of these reasons,
the Board certified the union by order dated Sep-
tember 8, 1976.
In a letter sent to counsel for the union and for
the employer, dated September 10, 1976, and
signed by Hélène LeBel, the reasons of the Board
for making the order are stated. This is the letter
(I have underlined the paragraph which has given
rise to the issue in this case):
The Board has reviewed the evidence and the submissions
filed by the parties in connection with the above-mentioned
application for certification. In particular, the Board has noted
the additional submissions filed by the parties at the Board's
request.
The Board notes that the employer requests a hearing.
Neither the Canada Labour Code (Part V—Industrial Rela
tions) nor the Canada Labour Relations Board Regulations
compel the Board to schedule a hearing on an application for
certification whenever the Board is requested to do so. The
Board has consistently followed a practice of scheduling a
hearing only when it considered that such a hearing would be
essential or useful in furthering the Board's investigation of an
application. After reviewing the evidence and the submissions
of the parties in the instant case, the Board does not consider
that a hearing is required in this case.
The employer contends that the promotion and public rela
tions manager, the assistant FM programme director, the chief
copywriter, and the traffic manager are not "employees" within
the meaning of section 107(1) of the Canada Labour Code and
that, accordingly, these classifications should be excluded from
the bargaining unit. The Board finds that the evidence and
information provided by the employer do not support a finding
that these persons perform management functions or are
employed in a confidential capacity in matters relating to
industrial relations. Although some of these persons do perform
some limited supervisory duties, it has been well established in
a number of previous cases that this does not support a finding
that they "perform management functions". In any event, the
Board finds that the creation of a separate bargaining unit
which would include only "supervisory" employees would not
be appropriate in the instant case.
A further question has been raised as to whether it is
appropriate to include the sales representatives or the salesmen
in the bargaining unit for which the applicant seeks to be
certified. There can be no doubt that these persons are
"employees" within the meaning of the Canada Labour Code.
The Board notes that the proposed bargaining unit is an
industrial type unit which includes all employees of the employ
er, whatever the nature of their duties or their working condi
tions. In the instant case, although the duties of the salesmen
and their working conditions are, by the very nature of their
duties to their employer, somewhat different from those of the
other employees of CKOY Ltd., the Board finds it appropriate
to include them in a single unit with the other employees of the
employer.
Finally, the employer has submitted that the Board, in
determining the wishes of the employees in the proposed bar
gaining unit, should take into account fluctuations in the size of
the bargaining unit as well as in the wishes of the employees
included in the bargaining unit. After considering the informa
tion provided by the employer, the Board finds that there is no
reason to depart from the general principles outlined in an
earlier decision of this Board in Teamsters, Local 8979, and
Swan River-The Pas Transfer Ltd., (1974) Di 4 P. 10. For your
information, a copy of the Reasons for Judgment of the Board
in this case is appended. Accordingly, the Board has granted
the above application.
You will find enclosed the Order of Certification in the
English language. In order to comply with the language
requirements, the Order of Certification in the French lan
guage will be issued shortly.
The employer, who is the applicant in this
Court, submitted, in effect, that the general princi
ples outlined in Teamsters, Local 979 v. Swan
River-The Pas Transfer Ltd., decided earlier by
the Board and followed in the present case,
involved a holding that, for the purpose of section
126, paragraph (c), of the Canada Labour Code 2 ,
the time as of which the Board is to be satisfied
2 R.S.C. 1970, c. L-1, as amended by S.C. 1972, c. 18.
that a majority of employees in a bargaining unit
wish to have the union represent them as their
bargaining agent is the time the application for
certification is made. It was further submitted that
this was based on a misinterpretation of paragraph
126(c), and that there was no way of knowing
whether the Board would have certified the union
if it had directed its mind to the correct question to
be answered when paragraph 126(c) is properly
understood, that is whether, at the time of certifi
cation, a majority of employees in the unit wished
to have the trade union represent them as their
bargaining agent.
At this point, it may be helpful to quote sections
126 and 127 of the Canada Labour Code:
Certification of Bargaining Agents and Related Matters
126. Where the Board
(a) has received from a trade union an application for
certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropri
ate for collective bargaining, and
(c) is satisfied that a majority of employees in the unit wish
to have the trade union represent them as their bargaining
agent,
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the bargain
ing unit.
127. (1) The Board may, in any case, for the purpose of
satisfying itself as to whether employees in a unit wish to have
a particular trade union represent them as their bargaining
agent, order that a representation vote be taken among the
employees in the unit.
(2) Where
(a) a trade union applies for certification as the bargaining
agent for a unit in respect of which no other trade union is
the bargaining agent, and
(b) the Board is satisfied that not less than thirty-five per
cent and not more than fifty per cent of the employees in the
unit are members of the trade union,
the Board shall order that a representation vote be taken
among the employees in the unit.
The decision of the Canada Labour Relations
Board in the Swan River-The Pas Transfer Ltd.
case is, as the letter containing the reasons of the
Board in this case indicates, reported in the
Canada Labour Relations Board publication
"Decisions-Information", (1974) (di 4) Vol. 1,
No. 4, August 1974, at page 10. I should like to
quote this rather lengthy passage from the reasons
of the Chairman at pages 19, 20 and 21:
In the case under study, the investigation of the Board did
indicate that as at the date of the application, Applicant had a
majority. The Board was made aware of the fact that a group
of employees had eventually filed a letter dated May 10, 1973
(the Application was filed prior to March 16, 1973) which read
as follows:
Until such time as we are advised what the advantages of
joining and the cost to each man involved, the undersigned
are not interested in joining the union at this time.
The Board acknowledged receipt of this letter and advised these
employees that a hearing would be held on the matter at a later
date. When the hearing date was set, they were so advised. Said
employees did not attend the hearing nor were they represented
thereat. Therefore there was no intervention for the Board to
scrutinize nor any evidence of irregularity in the attainment of
the majority. Finally and obviously, section 127(2) does not
apply. The Board is seized of a majority application for certifi
cation where at the time of the application the majority of the
employees in the unit did express the wish to have the Appli
cant union certified. That wish was clearly expressed by signing
cards and the payment of monies by the members according to
the Regulations of the Board.
In view of the passage of time, Respondent, through Counsel,
would like this Board to read in Sections 126 and 127 the
obligation to ascertain the wish of the employees not only at the
time of the application but, in addition, at the time of the
hearing or a subsequent date when a vote would be held. In
other words, the Company takes the position that the wish of
the employees must be a continuing wish that has to be
investigated beyond the date of Application. Upon being que
ried as to when the Board's obligation to test the wish would
cease, when such re-assessment should take place in this per
petual continuum, the Respondent's Counsel was very vague
and admitted that this was a difficult question (see transcript).
As a matter of fact, he even stated:
Where do you draw the line, I just do not know.
On the face of the texts of Sections 126 and 127, Respondent
suggests that the same construction should now be placed on
the law, by this Board, as was placed by the Courts in the
Rotary Pie Service case and the Moffatt Broadcasting case
respectively and Respondent is obviously of the school of
thought that the date of application is not the determining date
in matters of application.
Respondent is of the opinion that the wish of the employees
may change from the moment an application is filed until it is
adjudicated upon and takes the position that this Board is
obligated under the Law and as a basic philosophy to ascertain
this new wish. This Board is of the opinion that the Legislator
has seen fit to modify the text of Section 115(2)(a) and to
substitute for it the text now appearing in Sections 126 and 127
for two basic reasons. First, it wanted to enlarge the possibility
for unions to get certified when their original application was
not on a majority basis but when they at least had 35% of the
employees signed up. In those circumstances, however, the
Legislator makes it obligatory for the Board to order a vote.
The second reason why the text was amended was to reinforce
the basic obligation for the Board to certify unless there are
extremely compelling reasons to the contrary, and for that
purpose the verb "shall" was inserted in Section 126.
It seems to this Board, therefore, that the Legislator estab
lished a clear-cut distinction between the circumstances when
at the date of the Application the union holds a majority status
and the situation where at the same date it does not have
majority status.
In the first instance the Board must certify and in the second
circumstance the Board must order a vote. In both cases the
Board must satisfy itself of the wish of the employees.
In the first instance without a vote: in the second circum
stance by a vote. This is the general rule. The Legislator has
left exceptional circumstance to the discretion of the Board and
one of them is that even if a union has the majority status at
the time of the filing of an application there may be serious
reasons for the Board to order a vote in order to make sure that
the wish as expressed at the time of the application was
regularly, legally and freely arrived at. Upon evidence to the
contrary, the Board may order a vote.
In the present case, as was pointed out above, the Applicant
had a majority of the employees as members at the date of the
application. There has been no evidence of activities vitiating
the arrival at that wish of the majority of the employees.
Looking for a moment at the text of Section 129(3) where a
majority of those voting (when at least 35% of eligible voters
did so vote) is to be considered as the wish of the majority of all
employees in the unit, it would seem paradoxical to this Board,
if the clear wish of a majority of employees as expressed by
cards signed and monies disbursed were to be less consequential
and less significant that the wish of a minority of employees
voting under S. 129(3) who might never have signed a union
membership card, agreed to abide by a constitution or dis
bursed monies.
The unfortunate and uncontrollable lapse of time from the
moment that the application was filed and the hearing date
(due to the Board's back log of work consequent upon setting
itself up) does not in any way detract from the fundamental
and basic concepts just determined. It did happen that in the
meantime there was a turnover of personnel. This, in the view
of this Board, should not be allowed to interfere with its
determination as of the application date and Section 127(1)
does not apply.
One of the purposes of the Act is to maintain industrial peace
and stability and the Board believes that this is best achieved,
in addition to the juridical reasons given above, by adopting a
philosophy of labour relations law consistent with said juridical
texts whereby the application date is the determinant factor in
assessing the wish of the employees as to their selection of the
bargaining agent. The unrest and chaos consequent upon adopt
ing a different school of thought, besides being in our view
inconsistent with the texts of Sections 126 and 127, would be
far more severe.
A careful reading of this passage, and of the
reasons as a whole, leads me to conclude that, in
that case, and accordingly in the present case, the
Board asserted and applied the principle that the
date for determining the majority required under
paragraph 126(c) of the Code, as a condition
precedent to certifying, is the date of filing the
application unless there are circumstances that
would warrant the holding of a representation vote
under subsection 127(1) (circumstances that were,
having in mind the statutory words "in any case",
very narrowly defined 3 ) or would require such a
vote under subsection 127(2).
The decision of this Court in Moffat Broadcast
ing Ltd. v. The Attorney General of Canada and
Vancouver-New Westminster Newspaper Guild 4 is
pertinent. In that case, six of the seven employees
who were in the unit involved when the application
for certification was made on June 21, 1972, were
members of the union. Two of these employees
resigned their employment effective June 30, 1972.
The employer requested and was granted a hearing
which was scheduled for October 24, 1972. On
October 19, the employer informed the Board that
it intended to raise at the hearing the issue wheth
er a majority of the employees in the unit were
members in good standing of the union or wished
to have the union as their bargaining agent.
3 I a passage, not quoted above, from the reasons of the
Board, it was stated at page 16:
Of course there are situations where a Labour Board has
to ascertain the true wish of the employees by a vote. The
obvious one is when it is alleged and eventually proven that
the majority status was reached by illegal methods, threats,
false representations or fraud vis-Ã -vis the employees. Then a
Board might reject the application or order a vote. Or where
new plants are in the process of being staffed a Board may
set down criteria for ascertaining when a plant has really
become operative. This could mean a vote among employees,
including those hired after the date of the application.
However, outside of these circumstances, if the date of
applications is not determinant and all of the above situations
are allowed to develop, a Labour Board might be reduced to
ordering votes in almost all cases.
4 [1973j F.C. 516.
At the hearing, the employer tendered and the
Board received affidavits from three members of
the bargaining unit. One of these affidavits was by
an employee who had been transferred into the
unit on October 17, 1972; the deponent stated that
he had never been a member of the union and did
not wish the union to be certified as his bargaining
agent. The two other deponents stated that they
had resigned from the union.
In his reasons, Mr. Justice Thurlow, as he then
was, said at pages 519 and 520:
Earlier in its reasons the Board had found that at the time of
the filing of the application for certification the bargaining unit
consisted of seven employees of whom six were members of the
union, as to which there is no question, but nowhere in the
reasons did it make any finding that a majority of the
employees were members of the union at the time of the
hearing. Nor was there evidence that could sustain a finding
that more than three of the six employees who comprised the
unit at that time were then members of the union. Moreover,
the affidavits show that three of the six were then
non-members.
The Board's certificate, however, recites inter alia that the
Board "has satisfied itself that a majority of employees of the
said employer comprising such unit are members in good
standing of the applicant trade union."
I turn now to the statute. By section 115(1) the Board is
directed to take such steps as it deems appropriate to determine
the wishes of the employees in the unit as to the selection of a
bargaining agent to act on their behalf and such wishes are
undoubtedly relevant facts to be considered by the Board in
exercising any discretionary power vested in it to certify or
refuse to certify an applicant. The jurisdiction of the Board to
certify is, however, dependent on the express terms of section
115(2) which reads:
115. (1) ...
(2) When, pursuant to an application for certification
under this Part by a trade union, the Board has determined
that a unit of employees is appropriate for collective
bargaining
(a) if the Board is satisfied that the majority of the
employees in the unit are members in good standing of the
trade union, or
(b) if, as a result of a vote of the employees in the unit, the
Board is satisfied that a majority of them have selected the
trade union to be a bargaining agent on their behalf,
the Board may certify the trade union as the bargaining
agent of the employees in the unit.
Under this section, as I read it, there are alternative bases upon
which an applicant may be certified. Under (b) the Board may
certify an applicant on the basis of the wishes of the majority of
the employees of a bargaining unit, whether the majority are
members of the union or not, if, but only if, a vote has been
taken and as a result thereof the Board is satisfied that a
majority of the employees in the unit have selected the union to
be a bargaining agent on their behalf. As no vote was taken this
basis cannot serve in the present case to support the certificate.
The only other possible basis for certification arises when the
Board is satisfied as provided in (a), that a majority of the
employees in the bargaining unit are members in good standing
of the applicant union. In the present case the certificate recites
that the Board is satisfied on that point but the material before
the Board in my opinion was insufficient in point of law to
sustain such a conclusion as of the time of the hearing or
subsequently. That the situation with respect to the existence at
the time of the hearing of a majority of the employees being
members of the union is relevant and essential to the authority
of the Board to certify under section 115(2)(a) is I think
established by the wording of that provision which uses the
present tense of the verb "to be" and by the jurisprudence to be
found in Toronto Newspaper Guild v. Globe Printing Company
[1953] 2 S.C.R. 18, and Re Bakery and Confectionary Work
ers International Union of America and Rotary Pie Service
Ltd. (1962) 32 D.L.R. (2d) 576.
As the certification thus rests on a finding that could not
lawfully be made on the material before it the Board, in my
opinion, erred in law within the meaning of section 28 of the
Federal Court Act in making its decision and the certification
granted by it should therefore be set aside.
There are, of course, obvious and important
differences between paragraph 126(c) and section
127 of the present Code on the one hand and
former section 115 on the other, the section that
was before Mr. Justice Thurlow. For our present
purpose, however, that is, for the purpose of deter
mining whether paragraph 126(c) stipulates deter
mination of the majority required as of the date of
certification, I find the reasoning of Mr. Justice
Thurlow relevant and compelling 5 .
I would observe that, in the Moffat case, there
was a hearing and Mr. Justice Thurlow referred to
the time of the hearing as the relevant time for
determining the majority. But the result in the
case would have been the same whether the critical
date had been held to be the date of the hearing or
the date of certification. In the present case there
was no hearing 6 so that, strictly speaking, it is not
necessary to decide the point. I am, however, of
the view that, under the wording of paragraph
126(c), the required date for determination of the
majority is the date the decision to certify is made.
5 See also Maradana Mosque Trustees v. Mahmud [1967] 1
A.C. 13, at page 25.
6 Actually, there had been a hearing in relation to a charge of
an unfair labour practice.
In support of my view as to the critical date for
determining the majority for the purpose of para
graph 126(c) of the Code, I would refer to a
passage in the judgment of Chief Justice Laskin in
Re Canada Labour Relations Board v. Transair
Ltd.' One of the points in that case involved the
question whether the Canada Labour Relations
Board erred in refusing to consider a counter-peti
tion of a group of employees, a petition signed by a
sufficient number of employees to destroy the
union's claim of majority support. Chief Justice
Laskin said at pages 436 and 437:
There remains for consideration Q. 4 touching the Board's
refusal to consider the counter-petition of employees, a petition
signed by a large enough number as to destroy the union's
claim of majority support. Two things are clear. The Board
could, without investigating the genuineness of this eleventh
hour petition, have directed a representation vote to satisfy
itself of the union's continued majority support. It was, how
ever, for the Board to decide whether to do this and not for the
Court to direct it. Second, the Board could have launched an
investigation into the bona fides of the petition and into the
genuineness of the signatures thereto and could have been
guided by the result of the investigation in dealing with the
certification application. If the petition had been timely, the
Board would have been obligated to consider it, whatever be the
weight which it might have attached to it in the light of such
consideration. The petition was, however, untimely under the
Board's Regulations, and the question is whether the Board
could in law reject it accordingly.
I have underlined the words in this passage
which appear to me to be supportive of the view
that it is not enough for the Board to be satisfied
that a majority of the employees in the unit,
ultimately determined to be appropriate, were
members of the union at the date the application
for certification was submitted by the union.
It was argued before us that in the present case
the Board did in fact consider the submission made
to it by the employer and that, although the Board
in its reasons indicated that it was following the
general principles laid down in the Swan River-
The Pas Transfer Ltd. case, it did not necessarily
follow that the Board was applying the specific
principle that, in the circumstances of the case, the
critical date for determining the majority under
paragraph 126(c) of the Code was the date of the
'(1976) 67 D.L.R. (3d) 421.
union application for certification. I do not so read
the reasons of the Board. It seems to me clear that
the Board misdirected itself on an important ques
tion of law, and there is no way of knowing what
the Board would have decided to do had it asked
itself the right question. So far as can be deter
mined, the Board, because of its mistake in law,
did not seek to satisfy itself as to the requisite
majority at the appropriate time, and thus was not
in a position to certify. By virtue of paragraph
28(1)(b) of the Federal Court Act, this is a suffi
cient ground for setting aside the order.
A final problem remains.
In the course of argument, we raised the ques
tion whether the employer had the right to attack
the certification on the ground asserted. Our con
cern arose from this passage in the reasons of
Chief Justice Laskin in the Transair case at pages
437 and 438:
There is another ground upon which, apart entirely from
untimeliness, the Federal Court and this Court may properly
refuse to entertain Transair's attack upon the certification
order when based on the Board's refusal to consider the
employee petition. This ground is indicated in the judgment of
this Court in Cunningham Drug Stores Ltd. v. B.C. Labour
Relations Board et al. (1972), 31 D.L.R. (3d) 459, [1973]
S.C.R. 256, [1973] 2 W.W.R. 215, where Martland, J., speak
ing for all but one member of the Full Court, said this (at pp.
464-5 D.L.R., pp. 264-5 S.C.R.):
There is a further question which arises in respect of the
issue now raised by the appellant, and that is as to its right to
seek to set aside the Board's decision because it alleges that
the rights of other parties were not observed. In Quebec
Labour Relations Board v. Cimon Ltée (1971), 21 D.L.R.
(3d) 506, [1971] S.C.R. 981, the employer company sought
the rescission by the Quebec Labour Relations Board of its
order directing a vote on the application of a trade union for
certification on the ground that notice of the petition for
certification had not been given to another union, whose
earlier petition for certification had been rejected following
an employees' vote. The company contended that the unsuc
cessful union was successor to former unions which had been
certified, whose certification had not been cancelled, and that
it was therefore entitled to such notice.
The Board ruled that the company was unlawfully plead
ing on another's behalf an objection in which it had no legal
interest. This position was sustained in this Court, which held
that the company was not entitled to invoke the rights of
another party before the Board.
True, the issue in the Cunningham case was a different one
from that presented here, but only in the fact that the employer
there objected to the failure to give employees further notice
where a radical change in the bargaining unit was proposed by
the Board (they had notice of the original application for
certification and no employee had objected) while here the
objection of the employer was to the failure to consider a
petition of employees who did not themselves in any representa
tive or other capacity seek to intervene in the proceedings.
Transair did not make the dissident employees parties to its s.
28 application, nor did it seek to have them joined when the
Federal Court of Appeal directed by an order of November 1,
1974, that the petition should be made part of the record
"without prejudice as to the rights of the parties as to its
relevancy". If there is any policy in the Canada Labour Code
and comparable provincial legislation which is pre-eminent it is
that it is the wishes of the employees, without intercession of
the employer (apart from fraud), that are alone to be con
sidered vis-Ã -vis a bargaining agent that seeks to represent
them. The employer cannot invoke what is a jus tertii, especial
ly when those whose position is asserted by the employer are
not before the Court.
After giving the question careful consideration,
I have concluded that this case is distinguishable
from Transair in respect of the right asserted by
the employer to challenge the certification order.
In Transair, the submission of the employer was
that the Board had failed to receive a petition from
a group of employees who opposed the granting of
certification. In the present case, the employer, by
virtue of its counsel's letter of August 13 and its
own letters of August 27 and August 30, together
with the memorandum enclosed with the latter,
raised the question whether, at the relevant time,
the requirement of paragraph 126(c) of the Code
had been met. The Board received and considered
the submission, but in its reasons for decision
indicated that the relevant time for determining
whether the requirement of paragraph 126(c) had
been met was, for the purpose of this certification,
the date of the application for certification.
The employer is not, in this case, it seems to me,
relying on the right, of a third party. The employer
is not asserting that a third party, an employee for
example, was not heard on a question relevant to
the certification of the union. The employer is
asserting that the certification order was apparent
ly made on the basis of an answer to the wrong
question on an important matter. The consequence
was that, so far as can be determined from the
case material, the Board did not even seek to
satisfy itself of a matter essential to its statutory
right and duty to certify. And, after all, a certifica
tion order does impose serious duties on an
employer. The employer thus has a legitimate
interest in knowing whether the order was made in
accordance with the law. In my view, by virtue of
section 28 of the Federal Court Act, the employer
has the right, as a party directly affected, to apply
to this Court for review of a decision that he
claims was made under an error in the applicable
law, particularly where the meaning of a critical
provision of the governing legislation is involved'.
I would observe, before concluding these rea
sons, that I have not meant to suggest that para
graph 126(c) of the Canada Labour Code requires
that the Board must, by a representation vote or
otherwise, test the wishes of employees in a bar
gaining unit immediately before certifying. The
Board is, of course, entitled to take note of the
common experience of mankind that something
that exists is likely to continue to exist at least for
a while. It might not be inappropriate to quote this
passage from Cross on Evidence (4th ed., 1974) at
pages 32 and 33:
If the speed at which someone was driving at a particular
time is in issue, evidence of the rate at which he was travelling
a few moments earlier is admissible; in cases turning on the
existence of a partnership, evidence of its existence at a time
earlier than that with which the court is concerned is likewise
admissible. Evidence has been received of a person's theological
opinions four years before the time at which their nature was in
issue; while the fact that someone was alive at an antecedent
date may support an inference that he was alive at a subsequent
date. Evidence of this sort is given so frequently that it is
sometimes said that continuance in general, and the continu
ance of life in particular, is the subject of a rebuttable presump
tion of law; but the question is simply one of relevance,
depending on the common experience of mankind, and it would
be best to avoid the use of the word "presumption" altogether
in this context, or, if that term must be employed, it should be
qualified by the use of some such expression as a "presumption
of fact" or a "provisional presumption".
It is important to remember that there are degrees of rele
vancy when this kind of evidence is being considered. Proof of
the theological beliefs entertained by a man thirty years earlier,
would not support a reasonable inference concerning his beliefs
at the time which the court was examining, and neither law nor
logic can specify the stage at which such evidence ceases to be
of any weight—everything depends upon the facts of the par
ticular case. If it were proved that a husband was in good
health the day before his wife married someone else:
the inference would be strong, almost irresistible, that he was
living on the latter day, and the jury would in all probability
find that he was so. If, on the other hand, it were proved that
he was then in a dying condition, and nothing else was
proved, they would probably decline to draw the inference.
$ In respect of the status of an employer to seek review of a
certification order, I would refer generally to Toronto Newspa
per Guild, Local 87, American Newspaper Guild v. Globe
Printing Company [1953] 2 S.C.R. 18.
Whether, at the time of certification, a majority
of employees in a unit wish to have the applicant
trade union represent them as their bargaining
agent is a fact of which the Board must be satis
fied. It is for the Board to make up its mind on the
material properly before it. That the material may
have been placed before it well in advance of the
time of decision would not necessarily be a reason
for saying that the Board would be mistaken in
law to consider it as being relevant and persuasive,
or would act perversely or capriciously in so doing.
The fatal error in this case is that the Board, in
seeking to satisfy itself under paragraph 126(c),
considered that the relevant time for making the
majority determination was the date of the union
application, and not the date of its decision to
certify.
The applicant raised other points in its memo
randum of fact and law, but counsel assured us in
his oral argument that he was relying solely on his
submission that the Board had erred in law in its
construction of paragraph 126(c) of the Canada
Labour Code.
I would grant the application, set aside the
decision of the Board and the certification order in
question, and refer the matter back to the Canada
Labour Relations Board to be determined on the
basis that, pursuant to section 126, paragraph (c)
of the Canada Labour Code, the Board, in order to
certify the union as the bargaining agent for the
bargaining unit, must be satisfied, when it makes
its decision to certify, that a majority of employees
in the unit wish to have the trade union represent
them as the bargaining agent for the bargaining
unit.
* * *
JACKETT C.J. concurred.
* * *
URIE J. concurred.
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.