Walker v. Manitoba Labour Board, [1976] 2 SCR 78

Supreme Court of Canada

Walker v. Manitoba Labour Board, [1976] 2 S.C.R. 78

Date: 1975-05-20

Hugh Phillip Walker, on his own behalf and on behalf of a group of Objecting Employees Appellants;

and

The Manitoba Labour Board Respondent.

1975: February 4; 1975: May 20.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon and Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Labour relations—Application for certification as bargaining agent for certain employees of three companies having common ownership—Employees of one company excluded from bargaining unit but permitted to vote on selection of bargaining agent for employees of other two companies—Whether Board exceeded jurisdiction—The Labour Relations Act, 1972 (Man.), c. 75, (Continuing Consolidation, c. L10), s. 30.

A union local filed an application with the respondent Board for certification as bargaining agent for certain employees of three companies which had a common ownership. Objections to the certification were filed by the appellant, representing 37 employees of the three companies, and by W, representing 45 employees of these companies. Hearings were held by the Board and a determination was made of the appropriate bargaining unit. Employees of one of the companies named in the union’s application for certification (BP Ltd.) were not included in the bargaining unit.

After determining the appropriate unit, the Board ordered a representation vote to determine the wishes of the employees with respect to the application for certification. The Board further ordered that the employees of B P Ltd. would be included in the voting constituency, even though they would not be included in the appropriate bargaining unit. These employees were used from time to time by both the other companies for some of their work.

The vote was held. There were 10 employees of B P Ltd., but only five voted. In all, 187 were eligible to vote and 123 voted. Sixty-two voted in favour of the certification, 57 voted against, and four ballots were not counted. Thus, the votes of the five employees of B P Ltd. could have made the difference between the union’s application succeeding and not succeeding.

A certificate certifying the union as the properly chosen bargaining agent for the unit was issued by the

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Board. Shortly thereafter, the appellant filed an originating notice of motion in the Court of Queen’s Bench seeking to have the ruling of the Board quashed. This motion was refused. The majority of the Court of Appeal upheld this decision. With leave, an appeal was then brought to this Court.

Held: The appeal should be allowed.

The Board could not rely upon the broad discretionary powers given to it by s. 29(2)(e) of The Labour Relations Act, 1972 (Man.), c. 75, i.e., to “take such steps as it deems appropriate to determine the wishes of the employees in the unit, or any other related unit, as to the selection of a bargaining agent to act on their behalf”. The opening words of s. 29(2) read “In determining whether a unit constitutes a unit that is appropriate for collective bargaining the board, if it deems it appropriate to do so, may”, and the subsection then goes on to list, in five paragraphs, of which para. (e) is one, what the Board may do in order to make that determination. In this case, the determination of the appropriate bargaining unit having been made, the provisions of para. (e) had no further application.

It is s. 30 of the Act which applies once the Board has determined the appropriate unit for collective bargaining. Paragraphs (a) and (b) of subs. (1) of that section deal with the taking of a vote of the employees in that unit. Each of these paragraphs speaks of “a vote to be taken to determine the wishes of the employees in the unit as to the selection of a bargaining agent for them”. (Emphasis added.) These words do not permit employees outside the unit to vote to select a bargaining agent for the employees in the unit.

APPEAL from a judgment of the Court of Appeal for Manitoba dismissing an appeal from a judgment of Tritschler C.J.Q.B. Appeal allowed.

W.L. Ritchie, Q.C., and A.L. Clearwater, for the appellants.

C.T. Birt, for the respondent.

A.R.M. McGregor and L.C. Greenberg, for General Drivers, Warehousemen and Helpers, Local 979.

The judgment of the Court was delivered by

MARTLAND J.—This appeal is from a judgment of the Court of Appeal for Manitoba, which, by a majority of two to one, rejected the appeal of the present appellant from a judgment which had

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rejected the appellant’s application, made on his own behalf and on behalf of a group of objecting employees, for an order of certiorari to quash the certification by The Manitoba Labour Board, hereinafter referred to as “the Board”, of General Drivers, Warehousemen and Helpers, Local 979, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as “the Union”, as bargaining agent for a bargaining unit described as: “all drivers, helpers and warehousemen employed by Jessiman Bros. Cartage Ltd., and Bison Transport Services Limited, except maintenance staff (Mechanics), janitors, dispatchers, foremen, supervisors, office staff and those excluded by the Act”.

On January 24, 1973, the Union filed its application with the Board for certification as bargaining agent for the following unit:

All drivers employed by Jessiman Bros. Cartage Ltd. and/or Bison Transport Services Limited and/or Bison Transport Personnel Services Ltd., regardless of which company their pay cheques are issued by. Excluding Warehousemen, Helpers, Maintenance Staff (Mechanics), Janitors, Dispatchers, Foremen, Supervisors and all office staff, including Management and those excluded by the Act.

Objections to the certification were filed by the appellant, representing 37 employees of the three companies, and by Wayne Wheeler, representing 45 employees of these companies. Hearings were held by the Board which, on April 3, 1973, determined the appropriate bargaining unit to be that which is described in the certificate referred to above. Employees of Bison Transport Personnel Services Ltd., hereinafter referred to as “Bison Personnel”, were not included in the unit. All three companies included in the Union’s application for certification had common ownership, and the same office, office manager and senior officer.

The Board ordered a representation vote to determine the wishes of the employees with respect to the application for certification. The Board

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further ordered that the employees of Bison Personnel would be included in the voting constituency, even though they would not be included in the appropriate bargaining unit. These employees were used from time to time by both the other companies for some of their work.

On April 4, 1973, a planning meeting was held and the proposed voting method and voting constituency were discussed. The matter of including the employees of Bison Personnel in the voting constituency was discussed. No objection was raised at that time by the appellant or his solicitor.

The vote was held. There were 10 employees of Bison Personnel, but only five voted. In all, 187 were eligible to vote and 123 voted. Sixty-two voted in favour of the certification, 57 voted against, and four ballots were not counted. Thus, the votes of the five employees of Bison Personnel could have made the difference between the Union’s application succeeding and not succeeding.

The appellant signed a fair vote certification along with the representatives of the Union and of the employers.

The Board was subject to the following provisions of The Labour Relations Act, 1972 (Man.), c. 75, in determining the appropriate bargaining unit and in holding the vote:

25 (1) Subject as hereinafter provided and to the rules of the board, a union claiming to have as members in good standing at least thirty-five per cent of the employees of one or more employers in a unit that is appropriate for collective bargaining may apply to the board to be certified as bargaining agent for employees in the unit.

29 (1) Where a union applies to be certified as bargaining agent for the employees in a unit, if the board is satisfied upon a preliminary examination of the material filed and a review of other available facts that the matters stated in support of the application are substantially true, it shall determine whether the unit in respect of which the application is made is appropriate for collective bargaining.

29 (2) In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the board, if it deems it appropriate to do so, may

(a) alter the description of the unit; or

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(b) include additional classes of employees in the unit; or

(c) exclude classes of employees from the unit; or

(d) separate the unit into two or more units appropriate for collective bargaining; or

(e) take such steps as it deems appropriate to determine the wishes of the employees in the unit, or any other related unit, as to the selection of a bargaining agent to act on their behalf;

or do any two or more of those things.

30 (1) Where a union applies to be certified as bargaining agent for employees in a unit, and the board has determined that a unit of employees is appropriate for collective bargaining,

(a) if the board is satisfied that, at the date of filing of the application, more than fifty per cent of the employees in the unit were members in good standing of the union, the board may order a vote to be taken to determine the wishes of the employees in the unit as to the selection of a bargaining agent for them;

(b) if the board is satisfied that, at the date of filing of the application, thirty-five per cent or more but not more than fifty per cent of the employees in the unit were members in good standing of the union, the board shall order a vote to be taken to determine the wishes of the employees in the unit as to the selection of a bargaining agent for them; and

(c) if the board is satisfied that, at the date of filing of the application, less than thirty-five per cent of the employees in the unit were members in good standing of the unit, the board shall dismiss the application and refuse to certify the union.

30 (2) Where the board orders a vote under subsection (1), a majority of those voting shall determine the issue.

32 Where a union applying to be certified as bargaining agent for employees in a unit claims to have as members in good standing at least thirty-five per cent of the employees in the unit and that the unit is appropriate for collective bargaining, if the unit includes employees of two or more employers, the board shall not certify the union as the bargaining agent of the employees in the unit unless the board is satisfied that the union might be certified by it under this Act as the bargaining agent for those employees in the unit who are employees of each of the employers if a separate application for that purpose were made by the union in respect of the employees of each of the employers.

On April 17, 1973, the Board issued certificate No. 2527 certifying the Union as the properly chosen bargaining agent for the unit.

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On May 3, 1973, the appellant filed an originating notice of motion in the Court of Queen’s Bench seeking to have the ruling of the Board quashed. This motion was refused. The majority of the Court of Appeal upheld this decision.

The judgment on the motion held that the Board had not exceeded its jurisdiction by permitting the employees of Bison Personnel to vote. It was said that the taking of a vote was discretionary under s. 30(1)(a) of the Act because the Board’s return to the Court showed more than fifty per cent of the employees in the unit of both Jessiman Bros. Cartage Ltd., hereinafter referred to as “Jessiman”, and Bison Transport Services Limited, hereinafter referred to as “Bison Services”, to be members in good standing of the Union.

It was also stated that the circumstances of the case were unique, in view of the special interrelationship of the three companies and their employees. The employees of Bison Personnel would be affected by the certification and so should be included in the voting constituency.

Emphasis was laid upon the appellant’s failure to object to the inclusion in the voting constituency of the employees of Bison Personnel at the time of the planning meeting, before the vote was held.

The judgment then went on to say:

In the special circumstances of this case the Board was acting within its jurisdiction in settling the voters’ list as it did. If it was wrong—and I do not think it was—it had the right to be wrong. Its decision is not reviewable on certiorari.

The majority of the Court of Appeal supported these reasons. Monnin J.A., who dissented, said:

If the employees of Bison Transport Personnel Services Ltd. were not appropriate for the purpose of constituting the bargaining unit, they have no business being called in for the purpose of establishing by a vote the wishes of those who had been selected to constitute the unit. Only those who will be called upon to form a unit should be allowed to cast their ballots.

While it is true that the Board had a discretion as to the calling of a vote if it was satisfied that more than fifty per cent of the employees in the

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unit of both Jessiman and Bison Services were members of the Union in good standing, the fact is that it exercised its discretion in favour of ordering that a vote be taken. There having been a vote ordered, s. 30(2) applies, and the issue is then determined by a majority of those voting.

The issue then is as to whether, when a vote is held under s. 30, the Board has the power to permit anyone to vote who is not an employee in the unit which is sought to be certified.

The judgment at trial laid stress upon the unique circumstances in the matter before the Board. Reference was made to the close interrelationship existing among the three companies and their employees. This, it was suggested, was a basis upon which the Board could exercise a discretion to give the direction as to the voting constituency which it did. This view, however, overlooks the all important fact that the Board itself had not accepted as a proper bargaining unit that which was described in the Union’s application for certification. It was the Board which had decided to exclude from the bargaining unit the employees of Bison Personnel.

While it was unfortunate that objection to the defined voting constituency was not made by the appellant at the planning meeting, the failure to object could not give to the Board the power to do what it did if that power was not conferred on it by the Act.

The Board’s powers must be considered in the light of the statutory provisions previously cited. The Board relies upon the broad discretionary powers given to it by s. 29(2)(e) of the Act, i.e., to “take such steps as it deems appropriate to determine the wishes of the employees in the unit, or any other related unit, as to the selection of a bargaining agent to act on their behalf”. If these words stood alone they would furnish substantial support for this argument, but they do not stand alone. They define a power of the Board to assist it in making a decision as to what constitutes an appropriate unit for collective bargaining. The opening words of s. 29(2) read as follows:

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In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the board, if it deems it appropriate to do so, may

The subsection then goes on to list, in five paragraphs, of which para. (e) is one, what the Board may do in order to make that determination. In this case, the determination of the appropriate bargaining unit having been made, the provisions of para. (e) had no further application.

It is s. 30 of the Act which applies once the Board has determined the appropriate unit for collective bargaining. Paragraphs (a) and (b) of subs. (1) of that section deal with the taking of a vote of the employees in that unit. Each of these paragraphs speaks of “a vote to be taken to determine the wishes of the employees in the unit as to the selection of a bargaining agent for them”. (The emphasis is my own.) These words do not permit employees outside the unit to vote to select a bargaining agent for the employees in the unit.

In my opinion, when the Board permitted employees of Bison Personnel to vote on the selection of a bargaining agent to represent the employees of the other two companies it acted in a manner for which it had no legal authority.

I would allow the appeal and set aside the judgments in the Courts below. I would quash Certificate No. MLB-2527 granted by the Board. The appellant should be entitled to his costs in this Court and in the Courts below.

Appeal allowed with costs.

Solicitors for the appellants: Thompson, Dorfman, Sweatman, Winnipeg.

Solicitor for the respondent: Attorney-General for Manitoba.