Cite as: International Union of Electrical Workers (Re), 1970 NSCA 37 CASE NOo VOLUME NO. s. C. Nos. 15304 and 15305 IN THE SUFREME COURT OF NOVA SCOTIA AP:EEAL DIVISION On Motions for certiorari and mandamus of the ImERNATIONAL UNION, UN?fi:D AUTOK:>TIVE 6 AEROSB\CE AND AGRICULTURAL IMPLE?tENT WORKERS OF AJJERICA, (u. A. w.) and BENOIT BEAUDRY r e Order No. 1536 and Order N0. 1537 of the IABOUR REIATIONS BOARD (NOVA SCOTIA)
at Halifax , Nova Scotia, before the Honourable Chief Justice McKinnon, the Honourable Mr. J ustice Coffin and the Honourable Mr. J ustice Cooper of the Appeal Division, June 26, 1970 OPINION September 24, l<.JlO COUNSEL G. R. Matheson , Q.c . Applicant D. M. Nunn .11 Esq. Re spontlent
1970 S. Co Noso 15304 and 15305 IN THE SUmE?tE COURT OF NOVA SCOi'IA APmAL DIVISION On Motions for certiorari and mandamus of the INTERNATIONAL UNION, UNl'TED Atr!'OIDTIVE, AERO-SPACE AND AGRICULTURAL IMPLEJ<f.:NT WORKERS OF AMERICA, (U. A. W.) and BENOIT EE.AUDRY re Order No. 1536 and Order No o 1537 of the IABOUR RELATIONS OOARD (NOVA SCOTIA ) McKINNON, C.J. N.S.: Notices of motion given herein involve two a.pplications: (1) An application for an order for a writ of certiorari to remove into the Supreme Court and to quash a certain order made by the Labour Relations Board (Nova Scot ia) on or about April 23, 1970, bearing Labour Relations Board No. 1536, whereby the Board granted an application made to the Board on or about February 3, 1'7/0, on behalf of International Brotherhood of Electrical Workers, Local 1818.11 and members thereof, for certification of the said International Brotherhood of Electrical Workers as bargaining agent, pursuant to the Trade Union Act , for certain employees of Rhand Electronics , Limited , at Giace Bay~ Nova Scotiao (2) An application for an order for a writ of mandamus commanding the Board and members thereof to exercise the j urisdiction conferred upon them by the Trade Unlon Act in respect of an application made to the said Board on or about March 4, 1970, on behalf of the
International Union, United Automotive, Aerospace and Agricultural Implement Workers of America (UoAoW., ) Local 1467, as the bargaining a.gent pursuant to the Trade Union Act of a bargaining unit consisting of certain employees of Rhand Electronics, Limited, of Glace Bay, Nova Scotia, and co.lllIElnding the said Board and members thereo~ '°i'orthwith to hear and determine the :said application according to l aw a~ o The orders of the Board in question are as follows:
[crest] I.ABOUR REI.ATIONS BOARD NOVA SCOTIA IN THE MATTER of the Trade Union Act of Nova Scotia, and IN THE M\T!l'ER ot International Brotherhood of Electrical Workers, Local Union 18184 Dalhousie Street , New Glasgow, Nova Scotia Applicant - and -Rhand Electronics Limited, 120 Reserve Street, Glace Bay, Nova Scotia Respoooent - and -International Union, UAW, Local 1467, 4001 Metropolitan Blvdo East, Room 100, Montreal 456, Quebec Intervener APPLICATION having been im:tde to the Labour Relations Board (Nova Scotia) on February 4, 1970, for certification of the Applicant as the '.Bargaining Agent pursuant to the Trade Union Act; AND the Application not having been contested by the Respondent; AND the Application having been opposed by the Intervene?';
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AND the Board having considered the Application and the documents filed by the Applicant, Resporxlent and Intervener, and the representations made and evidence presented on behalf of the parties at a Hearing held on March 10, 1970;
AND the Board having satisfied itself that a majority of the employees of the Respondent in the Bargaining Unit are members in good standing of the Applicant in accordance with Regulation .:.3A (1) Governing Proced
ure of the Board;
AND that the Unit requested is an appropriate one for Collective Bargaining purposes;
THEREFORE,, the Labour Relations Board (Nova Scotia) does hereby certify International Bl"otherhood of Electrical Workers, Local Union 1818,, New Glasgow, Nova Scotia as the Bargaining Agent for a Bargg.ining Unit consisting of all employees of the Respondent, but excluding Foremen and those equivalent to the rank of Foreman and above, Office Employees and those excluded by Clauses (i) a:rxl (ii) of Paragraph (j) of Section 1 of the Trade Union Acta
MADE BY THE IABOUR REIATIONS BOARD (NOVA SCOTIA ) AT HALIFAX, THIS TWENTY-SECOND DAY OF AffiIL, lgfO, AND SIGNED ON ITS BEHALF BY THE CHIEF EXECUTIVE OFFICERo uc o A. Crowell u C.. A. CROWELL CHmF EXECUTIVE OFFICER.
EXHIBIT 0 Iu [crest ] LoR .. B. . Noo 1537 JABOUR REIATI ONS :OOARD NOVA SCOTIA lN THE ~TTER of the Trade Union Act of Nova Scotia, and IN THE ~TT.ER of United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1467, 4001 Metropolitan Blvd.. Ea st, Room 100, Montreal 456, Quebec Applicant - and -Rhand Electronics Limited, 120 Reserve Street, Glace Bay, Nova Scotia Respondent - and -
International Brotherhood of Electrical Workers 9 Local Union 1818.~ Dalhousie street, New Glasgow, Nova Scotia Intervener APPLICATION having been made to the Labour Relations Board (Nova Scotia) on March 6, l<;JTO, for Certification of the Applicant as the Barg~ining Agent pursuant to the Trade Union Act;
AND the Application having been contested by the Respondent; · AND the Application having been opposed by the Intervener; AND ~~ Board having considered the Application and representations made by Solicitors on behalf of the parties on April 14, 1970; AND the Bo&rd havi~g determined that the Intervener, the International Brotherhood of Electrical Workers, Local Union 1818, Dalhousie Street, New Glasgow, Nova Scotia be certified as Bargaining Agent for a unit of employees of the Respondent; THEREFORE, the Labour Relations Board (Nova Scotia) does hereby dismiss the Application for Certification. MADE BY 'ME IABOUR REIATIONS BOARD (NOVA SCOTIA) AT HALIFAX, THIS TWENTY-SECOND DAY OF A:ERIL, 1970, AND SIGNED ON ITS BEHALF BY mE CHlEF EXECUTIVE OFFICER. 91 Co A• Crowell 11 C. A. CROWELL CHIEF EXECU'r!VE OFFICERo 91 The facts involved herein are as followsc On February 3, l<JlO, International Brotherhood of Electrical Workers, Local 1818, hereinafter referred to as 11 loBoEoWo ", made application to the Labour Relations Board~ Nova Scotia, for certification as bargaining agent for certain employees of Rhand Electronics Limited, referred to as the "Company". On February 19, l<;JTO, the International Union, United Aut o-mobile, Aerospace and Agricultural Implement Workers of A~rica, referred to as ''UoAoW .. ", gave the Board a notice of intervention on behalf of Local 1467. 4
On March 4, 19l0, ~he UoAoWo applied to the Board for certification as bargaining agent for certain employees of the Companyo The description of the unit in this application was the same as the bargaining unit in the loBoEoWo applicationo On April 3, 1'1'/0, the Company gave notice to the Board that it wished to contest the UoAoWo applicationo On March 18, 1970, the loBoEoWo gave notice to the Board that it desired to oppose the UoAoWo applicationo On March 10, 1970, the IoBoEoWo application was considered at a hearing of' the Board, referred to as the "first hearing 11 o At this hearing the Chairman of the Board announced that the proposed bargaining unit 6 in respect of which the IoB.EoWo application was ma.de, was appropriate for collective bargaining and that a mijority of employees in the unit were ~mbers in. good standing of the said I.BoEGWo The Board then declared ·that the cutoff date for determination of the membership in the Union in accordance with the regulations was the day on which the application was filed; that it would not admit evidence that the membership had been reduced or increased after that date, but evidence would be admitted to show that in the interval between filing of the application and the hearing employees in the bargaining unit had a change of mind6 and a serious doubt existed that they still wished to be represented by the applicant Uniono At the first meeting referred to, the Board heard evidence from Mrso Ernestine l\?ruiy that she no longer wished to be represented in collective bargaining by the applicant IoB.EoWo, but decided to be represented by the U~AaWo The Board refused to hear the evidence of Mrsa Eunice MacKinnon6 who was not a member of the applicant Union on the date of application and not, I understand
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from the evidence, an employee of the Company on that date.. She was, however, an employee and member of the bargaining unit on the date of the hearingo °!be reason given by the Board was that she would be unable to testify as to a change of mindo At the hearing the Board also heard evidence from Benoit Beaudry, Montreal, Quebec, the organizer for the UoA.Wo, that the employees of the Company wished to be represented in collective bargaining by Local 1467, U.AoWo, and not by I .. B.E.W. At the conclusion of the hearing, the Board did not announce any decision With res:pect to the I.BoEoW• application. On April 14, 1970, the Board held the 0 'second hearing", pursuant to a notice of hearing, convened for the purpose of considering the UoAoWo application for certification. At t he commencement of the hearing, the Board announced that the proposed bargaining unit 9 in respect of which the application was made, was appropriate for collective bargaining "and also there would appear to be a majority"., At this hearing, the Company contended that the application of IoBoEoWo for certification should be decided by the Board before it considered the U.AoWo application. The Company did not further actively participate in the hearing. Following the Company sta.tement 9 the Board heard counsel for the applicant UoAoWo and the intervener IoBoEoWo on how the Board should discharge its responsibility of determining the wi~es of the employees in the proposed bargaining unit with respect to the selection of a bargaining agent to act on their behalfo The Board, without calling on the pll'ties to adduce evidence, retired to consider the representations so made 0 on resuming the hearing, the Chairman announced that the Board 6
had decided to reconfirm its decision, previously made, to certify the IoB.EoW. as bargaining agent for the bargaining unit of the respondent Companyo The grounds argued in support of the applications herein are as follows: (1) The Board erred in that it did not take appropriate steps to determine the wishes of the employees in the proposed bargaining unit. (2) The Board erred in that it refused to hear the evidence of Mrso Eunice MacKinnon, a member .of the bargaining unit at the date of the hearingo (3) The Board erred in holding that it was bound by its own practice to determine the wishes of the employees in the unit as of the date of applicationo (4) If the Board was correct in finding that it must consider the bargaining unit as of the date of the application then the result is that it certified a bargaining agent for a bargaining unit consisting of' only one employee. (5) There was a denial of natural justice in refusing to consider the Wishes of the employees in the bargaining unit and in refusing to hear Mrso MacKinnon., (6) The Board acted without jurisdicti on because it was im-pt"operly constituted in that Ao Russell Harrington, a member of' the Boa.rd, who was not present at the First Hearing sat on the Boa.rd at the Second Hearing and for the same reason the Board o.cted contrary to the rules of natural justice.
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(7) The Board acted without jurisdiction and was improperly constituted at the time it decided to grant an order for certification to the IoB.E.W. in that the Board was convened at that time for the express purpose of holding a hearing on the UoAoWo application and not for the purpose of considering or reconsidering t he IoBoEoWo applicationo (8) 1be Board ~cted contrary to section 7 (2) of the Trade Union Act in refusing to hear the UoAoWo application on the ground that the Board was precluded from doing so because 1 t had a prior application for certification before it. Section 7 (2) expressly provides that where no collect! ve agreement j.s in force and no bargaining agent has been certified for the bargaining unitj) the application my be made at any timeo As the first five grounds given in support of the applications herein appear to be interrelated, I propose to consider them togethero In ihe Queen Vo Labour Relations Board (Nova Scotia) , (1961), 29 D.L.R. (2d) 449, at Po 453, MacDonald, Jo, succinctly outlined the function of the ~rd in relation to certification, as follows: "The primary function of the Board relates to the certification of unions as bargaining agents for defined groups or units of employees determined by it to be appropriate for collective bargainingo It is important to note that the Board does not initiate the process leading to certification but that it acts upon an application made to ito Thus the process leading to t he grant of certification is initiated by an application by a trade union under Sa 7 (or where the certification is sought of a craft-group, under Sa 8), and in the form and manner prescribed by the Regulations of the Board o When such an application is received it is the duty of' the Board under Su 9 (1) and So 8 to determine whether the proposed 0 unit 0 is one 0 appropriate for collective bargaining 8 as those terms are defined in Se 2 (2) of the Act; provided there is the necessary 0 community of' interest 0 among the employees of the proposed unit (s .. 9 (5) )o Before mk.ing such a determination °the Board may o a o include additional employees in, or exclude employees fran, the unit 0 (so 9 (1) ) 9 but must be satisfied by vote or examination of records or such enquiries (or hearing) as it deems necessary (s. 9 (2), (4) ) of the wishes of the employees in the 8
unit {so 9 (~) )o It is also provided that questions as to the appropriateness of the unit {and other questions involved in the application such as whether the majority of the employees in the unit are members in good standing of a trade wiion, etco) shall be decided by the Board finally, subject to its C1ifil reconsideration of its decisions thereon." In considering the argument of the applicant, attention should be given to the following provisions of the Act: s. 7 (1) concerning the application for certification; so 9 (1), setting forth the duty of the Board with regard to the application; So 9 (2), which provides that pursuant to a determination by the Board that a unit of employees is appropriate for collective bargaining: "{a) if the Boord is satisfied that the majority of the employees in the unit are members in good standing of the trade union; or (b ) if a vote of the employees in the unit has been taken under the direction of the Board and the Board is satisfied that not less than sixty per cent of such employees have voted and that a majority of such s~ty per cent have selected the trade union to be bargaining agent on their behalf; the Board may certify the trade union as the bargaining agent of the employees in the unit o" Section 9 (4) and section 55 (7) empowering the Board to hold hearings and receive evidence; section 55 (8) , which gives the Board power to determine its own procedure 9 '~ut shall in every case give an opportunity to all interested parties to present evidence and make representation"; section 58, omitting irrelevant parts, as follows: "58 (1) If in any proceeding before the Board a question arises under this Act as to whether (h) a person is a member in good standing of a trade union; the Board shall decide the question and the decision or order
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of the Board shall be :f'inal and conclusive and not open to question, or review, but the Board rray, if it considers it advisible so to do, reconsider any decision or order made by it under this Act, and rray vary or revoke any decision or order made by it under this Acta" regulation 3A (1): "3A (1) A nember in good standing of' a trade unio11 shall be deened by the Board to be a person who, in the opinion of the Board, has at the date of application for certification:-(a) Signed an application for membership in that trade union; and
(b) on his own behalf, pa.id at least $2 .. 00 as union dues for or within the period comnencing on the first day of' the third month preceding the calendar month in which the application is made and ending upon the date of' application; or (c) Where he has joined the union within the period mentioned in sub-paragraph (b), has on his own behalf pa.id at least $2.00 as union due so" and regulation 4 (3): 11 4 (3) Within seven (7) days of' the receipt of the Notice of' Filing, the employer shall file with the Board a certified list of' his employees as of the date on which the application was filed, excluding foremen, those equivalent to foreman and above that rank., He shall list the employees in the alphabetical order of their surnames showing the occupational classification of each employee and the number of hours each employee normlly works during a. week. The employer shall verify the list of his employees by statutory declarationo" As pointed out by MacDonald, J. , in The Queen v. Labour Relations Board (Nova Scotia), supra, whether the application for certification is (1) a trade union, (2) whether it includes in its membership in good standing employees in the group for which it seeks certification, and (3) whether such mamber~mployees constitute the requisite majority are all questions which the Board must determine in respect of every application, by way of prelude to the determination of the appropriateness
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of the group as a unit for collective bargaining (so 7(1), So 9 and So 58(l)a Moreoever, they are questions which are not collateral or prerequisite to jurisdiction but constitute integral parts of the exercise of jurisdiction and are not open to judicial reviewo Labour Relations Board and Attorney-General for British Columbia et ala v .. Traders 0 service Ltd.,$ (1959), 15 DoLoRo (2d) 305, at 320, 3211 [1959] SoCoRo 672, per Judson, J.: ''My opinion is that no question of jurisdiction arose for the Court 0 s consideration in this caseo What the Board did was to DBke a finding of fact and, indeed, oIE that wa~ very simple and obviously correct, that these six employees were employed by the respond.ento By So 65 [our present So 58 ] of the Act the Board is required to determine whether a person is an employer or employee and this decision is to be final and concl usive.. What is there 0 collateral 9 or outside the main issue in the determination here that a particular person is an employee of a particular employer? • • • That is the very subject ..t ter of the adjudi-cation,, It was for the Board and the Board alone to make the finding oti the one issue and this finding is not open to review by the Court." Hughes, J., in Banks et al" v" Canada Labour Relations Board et al., (1959), 19 DoLeR• (2d) .764, at 768, referring to the powers of the Board under So 9 (4) [also our present So 9 (4) and s .. 54 (7 ) ] : "It is not for me, however, to consider whether the findings of the Board in this matter were justified by the evidence gf~en at the hearing and indeed if no evidence had been given at the hearing and the 0 Boe.rd relied on what I have called extracurial inquiries, I would still have no jurisdiction to consider the merits of the applications before ito" and at pages 769, TIO: ''Rule 15 [our present regulation 3A (1) ] provides that for the purpose of this section a member of a trade union in good standing shall be deened by the Board to be a person who, in the opinion of the Boaxd, is at the date of the application for certification, a member of the union and has, on his own behalf paid at least one month us union dues subject to certain limitations as t o time set forth in the Ruleo 11
Then it is said that the transcript discloses that the Brotherhood could only establish a membership of less than half of the members of the proposed bargaining unito No doubt if the Board had been satisfied of the najority position of the Brotherhood in the proposed bargaining unit, it would never have ordered a representation vote but the size and nembership of the proposed unit also fell to be determined at the Board 9 s hearing of the application and, in my . ..• . view, the determination of these matters is for the Board aloneo" [ emi;tiasis added ]
In ~khill Bedding & Furniture Ltd ., Vo Internatd:onal Molders & Foundry Workers Union of North America,Local 174 and Manitoba Labour Board, {1961), 26 D.LoRo (2d) 589, at 593, :per Freedman, JoAo, referring to sections 59 {l) {c) and 18 (1) (c) of the Manitoba Labour Relations Act: ''Was this latter question, in the circumstances of this case, one that could properly be classified as preliminary or collateral, in the sense in which those terms are used in certiorari matters? or was it part of the nain issue which the Board had to decide? If it was the latter, then clearly the Board had exclusive jurisdiction to deal With it, and its decision woul d not be subject to review a" It would seem to be clear that in considering the application for certification herein, the questions before the Board were: (a ) was the applicant a trade union? {b) did the applicant include in its membership in gocxl standing employees in the group for which it sought certification? and {c) did such m?mber-employees constitute the requisite 1.111jority? All of these questions were not collateral matters on which the Board us jurisdiction to certify the Union depended. As stated by MacDonald 1' J ., in '!he Queen v. Labour Relations Board (Nova ScotiaLat page 456, they 11 constitute integral pu'ts d the exercise of jurisdiction and are not open to judicial review". Roach,, J oA., speaking for the Court in Bradley et alo v o canadian General Electric Co. Ltd., {1957), 8 D.L.R. (2d) 65, at 75, quotes
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with approval the opinion of Doull, Jo, in Re Application of Lunenbu.1'g Sea P.r.-oducts; Re Zwicker, [1947] 3 DoLoR• 195, page 202, and 21 M. . PoRo 305, at 321: "In the iassages which I have quoted from Mr. Justice Doull ~s reasons, it seems to me that he has said plainly enough that, given the general relationship of employer-employee, the Board had final and exclusive jurisdiction to determine whether any group of persons within that relationship were or were not employees for the special purposes of the Regulations ., " . and at page 81: ''Where the matter is not collateral but constitutes part or the whole of the llJlin issue which the inferior tribunal had to decide, the Court is limited to examining the record to determine whether there was any evidence before the inferior tribunalo I hasten to add, however, that the Court can do that only in the absence of a privative clause. If there is a privative clause in the Act creating the tribunal, the Court cannot do that. 0 It is the contention of the applicant that the Board erred in holding that it was bound by its own regulations to determine the wishes of the employees as of the date of applicationo This question was also examined by MacDonald, J., in The Queen v. Labour Relations Boo.rd (Nova Scotia}., He is reported as follows at :pa.gm 456, 457 o ''n'le'.· Board is authorized to determine its own procedure, and by So 57 may make Regulations governing its procedure and 9 !ll9.y •• • • prescribe what evidence shall constitute proof that a person is a rrember in good standing of a trade union u; and pursuant to that latter provision it passed Regulation 3A whereby such a nember was deemed to be one answering to defined descriptions 0 as at the date of tb'<{ a~l:iaatfan, fc:q:_ certification °. , ··· I cannot agree that this Regulation was beyond the power of the Board to enacto In the nature of things an application far certification must be processed by the administrative officers of the Board and natters done and determined as of certain dates, ~ the determination of the wishes of the employees TtJJ.Y have to be taken by a vote and that requires determination of the persons entitled to vote t hereat which in turn requires 13
scrutiny of payrolls as of a certain date» etc., All that can be expected of a Board is that it prescribe, and hold to, a known technique in arriving at the facts relative to the matters it has to determineo One of the elements in such a technique is necessarily the date as of which such t'acts must be found to exist or not to existu Nornally there will be little time lag between such a date aI¥i the date of the ultimate determination to certify and develo::i;:ments in that interim Will be known to the
Board 0 s officers. I cannot subscribe to the notion that as matter of l aw a Board is required to base its decisions uoon the :f'e.cts existent as of that day or the day before o If sur:h were the law .11 1 t would prove a great source of delay; and in the case of a group of employees of constantly fluctuating personnel would operate frequently to debar any successfUl attempt by unions to secure
certification at all .. "
M:LcDonald, J., in the above deci sion, expressed his disagreenmt With the decision in Re Universal Constructors & Engineers Ltd. Vo Labour Relations Board of New Brunswick, (1961), 26 DoL.Ro {2d) 423, where ~t was found that a Board bef ore making a certification order must as a matter of law carry i t s scrutiny of' the bargaining unit down to the time of the bearingo He did note, however, that the regulation invoked in that case was less specific than our regulation 3A, referred to aboveo In Underwater Gas Developers Ltd., v. Ontario Labour Relations Board et al .. , (1960), 21 D.LoRo (2d) 345, at pages 352, 353, it was contended that there was no evidence before the Boai.·d that on August 6, 1959, more than 50 percent were members of t he Union a s set out in the certificate a According to the affidavit of the President of t he applicant Company at the time of the issuing of the certif'icate by the Board, only 9 of the original 39 employees employed by the applicant at the time thnt the respondent Union°s application was comnenced were still employed by the applicant notwithstanding that the applicant ns working force was at full strengtho
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Smiley$ Jo, who gave judgment in the Court below, said: ''The implication is that conditions at the actual time of issuing the certificate, apart from the time of the application to the Board in the first instance and the hearings or hearing thereon$ is the basis for the determination of the number of Union members in the bargaining unit and, unless a certificate is issued immed-iately, the Boa.rd should make a f urther examination in this respect. Is it practical that the Board should be required to make a second examination at the actual t ime of miking the certificate, if the certificate is not issued immediately or promptly following the first examination? If there is a second examination and a further delay for the Board to give the matter its consideration, must there be still another examination? Would there b'e any finality to the natter? The length of time elapsing between the first examination. and the issuing of the certificate might, ot course, have some ~ar ing, but who is to say what that time should be? If it were thought desirable to require a second or further examination after a certain length of time had elapsed and if there were no oth~r remedy provided by the Act » is that not a natter for the -1'.J!gislature and not the Court? • • • • In any event» if the applicant considered it desirable that the Board should make a re-examination to determine the number of union members in the bargaining unit, it could have applied to the Board for a reconsideration of its decision in this respect under the provisions of s. 68(1) of the Labour Relations Act, ... . which provides that the Board ney at any time, if it considers it advisable to do so, reconsider any decision, or,der, direction, declaration or ruling o • • • • This same section provides that the decis ion of the Board on any question arising in any proceeding as to whether a group of employees constitute a bargaining unit shall be finalj and the Court, of course, cannot entertain anything in the nature of an appeal from such a decision of the Boardo I do not think the Court on an application such as this should express an opinion as to what should be done in such a situationa rt is sufficient to point out or mention ltfhat may be done 91 o Referring to the above decision of Smiley, Jo, MacDonald, Jo , in The Queen v~ Labour Relations Board (Nova Scotia}, noted [458-9]: ''The Act contemplated that even a determination made in an order of final and conclusive effect nay prove to be wrong, and to require reconsideration and consequent variation or revocation under So 58(1); and the Nova Scotia Board has provided for that in Regulation 140 Failing such resort, I do not think a Court sho11ld be astute to fi nd reasons tor upholding such a contention by an applicant for remedy by .:cer±iorario 91 15 :
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The applicant contended that the Board erred in that i t did not take affirnative steps to determine the wishes of the employees as of t he date of the hearingo 'nle record discloses that ~ the date of application by the I.BoE.Wo t here were two employees in the unit, both of whom were members of the applicant Uniono The purpose of the first hearing, as stated by the Chairman of the Board, was to receive evidence 01 as to change of mind on the part of the employees in the bar@'J!ining unit as to their desire to be represented by the UnionR 1 ., The Board at this hearing heard the evi dence of Benoit Beaudry, organizer for the intervening UoAoWo, and Mrsa Penny, one of the two employees who had been a member of the applicant IoB.E.Wo at the time of applicationo The Boe.rd ruled that the evidence of Mrs. Eunice Mac Kinnon, who was not a member of 'the wii t at the tim? of application but was such a member at the date of hearings was not relevant to the question of change of mind 9 and refused to hear hero Although it would have been preferable, in my opinion, for the Board to have allowed the evidence of Mrso MacKinnon, as she could be described as an interested party, refusal to so hear her because her evidence was not within the scope of the Boardus inquiry, does not constitute a denial of natuxal justic<:. As indicated by the authorities cited herein~ it was the duty of the Board to determine the wishes of employeesn Having embarked on a hearing, and the record disclosing no refusal to hear material and relevant evidence, the Board 0 s determination, even if incorrect in our opinionp does not constitute an error of law on the face of the record and cannot b~ reviewed under certiorari.
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In Toronto News;paper Guild Vo Globe P.rinting Co a, (1953), lo6 CoCoCo 225, the words of Kellock$ Jo, discloses how that case is distinguished from the application hereo At page 244, he said: "In the case at bar it was impossible for the Board to de termine whether any one of the persons alleged to be members ot the appellant was in fact a member in good standing if the Board refused to enter upon the question as to whether or not, assuming irEmbership to have originally existed, it had continuedo This was the very obligation placed upon the Board by the statute o By refusing to enter upon it, the Board in tact declined jurisdiction." · In referring to the opinion of Kellock, Jo, above, it should be pointed out that the Court did not appear to have before it a provision similar to our regulation 3A o Here, the Board did enter upon the question of whether nembership originally existing, at the time of application, had continued , and this, according to the statement of the Chairman, was the purpose of the first hearingo Therefore, there was not, in my opinion, a ''manifest defect of jurisdiction" to make the order of the Board subject to the supervising jurisdiction of the Courts exerc:isable by way of certiorari on this groundo The applicant also contends that the Board was iinproperly constituted ... and th:us without jurisdiction, because a member of the Bol.ird, who was not present at the first hearingj sat on the Board at the second hearing. According to the transcript of evidence taken by the Board at the first hearing on March lOP 1910, the name of A. Russell Harrington is listed as a member of the Board present~ Other material in the record before· us, however, indicates that he was not present at this hearing.
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The transcript of evidence taken at the second hearing on April 148 l<;!lO, listing the members of the Board presentJ) includes the name of A,. Russell Harrington .. A similar problem was considered by both the High Court [ (1960), 21 DoLoR. (2d) 345 ] and the Court of Appeal in. Ontario [ (1960) Jl 24 D.L .. R .. (2d) 673 ] in Underwater Gas Developers Ltd., Vo Ontario Labolll' Relations Board et alo In that cases three members of the Board were present at the first hearing, and on the second date of hearing, two additional members were presento It was contended that by reason of the presence at the second hearing ot these two additional members of the Board, the Board was illegally constitutedJ) had lost its jurisdiction and 9 in effect, there was a denial of natural justice to the appellant~
"I do not think effect can be given to this submission., There is no evidence that the two additional members took any psrt either in the proceedings on the secorid hearing or in the deliberations of the three members of the Board present on both occasions-or in the decision • • • • No objection as to the presence of the two additional members on the second occasion was I!llde at any time before the Boe.rd by counsel for the appellantso" In the case at bar, there is no evidence that Ao Russell Harrington took any part either in the proceedings on the second hearing or in the deliberations of the other members of the Board present on both occasions or in any decision of the Boardo Furthermore, no objection was made by counsel for the u.A .. W.. to the presence of Harrington as a member of the Board at the second hearingo A further reason for dismissing this contention is that the actual decision on the application of the IoB~E.Wo for certification
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was made at the close of the first hearing on March 10, 1970, when, I think it is agreed, Harrington was not presenta This is indicated by a statement of the Chairman of the Board at the conclusion of the second meeting on April 14, as follows: "Gentlemen, at the close of the Hearing that was held in the application of the Electrical Workers for certification, the Board reached the decision and the decision was that the Electrical Union should be certified as the bargaining agent for the bargaining unit for the Respondent Companya" If the above statement is correct, and there is nothing in the record to contradict it, then we are left with the conclusion that Ao Russell Harrington was not present when the decision on the application of the laB.EaW. was reached. The contention that the Board was illegally constituted should be dismissed. A word should be added here concerning the applicantns argument that the Chairma.nes statement at the conclusion of the second heartng indicated that there had then been a reconsideration of the decision to certify the I.B~E.Wo, and that Harrington had been present. I do not believe that a fair consideration of the Chairman us statement supports this interpretation.. The Chairman said: "To go on with the Hearing today3 • • • would really amount to a reconsideration of the decision that was made in the previous ••• application°. He then read rule 15 of the regulations» which provides that certain elements must be present before the Board could reconsider the decision or order l!Rde by it under the Acto He then said» ''We have heard nothing in the argument tcday that would lea~ us to reconsider our decision in the previous casee · Therefore, we really re~onfirm the decision that we ma.de in the previous case but had not yet been published up until today"" 19
I think the Chairman 9 s words should be interpreted to mean that as certain conditions precedent were not present, the Board was unable to reconsider the decision previously made and the finding arrived at after the first hearing could not be disturbedo I believe that this is all we can read into the Chairnan°s words 11 1 therefore, we really re-confirm the decision". The appellant 0 s fourth ground presents a problem ot' some difficultyo It is that the Board acted without jurisdiction and was iDI].roperly constituted at the time it decided to grant an order for certification to the I.BoE.W. in that the Boa.rd was convened for the express purpose of holding a hearing on the UoA ... W. application and not for the purpose of reconsiderationo The record herein includes a notice of hearing$ issued by the Board on April 7, 1970, in the matter of the application for certification by U.AoWo_, Local 1467 o Rhand Electronics Limited is named as respondent 9 and International Brotherhood of Electrical Workers as intervener o The notice set the time and place for the hearing of the a ppli cation and stated that the purpose of the hearing was to hear oral evidence and argt.UJent of the applicant in support of the application, and for hearing oral evidence and argument of the respondent s.nd intervene:r against granting the applicationu At the opening of the hearing o& April 14, the CJm,irman announced that on the basis of the application and the supporting exhibits, there appeared to be an appropriate bargaining unit requested~ and also that theJ!e appeared to be a majoritya The Chairman further stated: 20
" ••• this is an unique situation • • • • The application in this particular case was made after an applicatioll for the sane employee a, the same unit, and the same Respondent, bad been filed and there seems to be nothing in the Trade union Act or any procedure of the Board covering a situation of that kindo However, the application in this case was made before the Hearing in the previous case o Though the Board has taken the position that t he Hearing should go forward in this case; then, after having heard this case, the Board will have to rmke its decision - of course , and we want to hear a complete Hearingo " There is no doubt, therefore , that the Board issued a notice to all parties concerned that a hearing would be held on the application . for certification by UoA.w .. , Local 1467, a complete hearing would be held and would go forlntrd to a decisiono It is apparent ,, however, that the Board did not fulfill the announced purpose as stated in the notice for hearing, nor did it follow the procedure set forth by the Chairman of the Boardo No evidence was tendered by any party at the second hearing but there was extensive and lengthy argUUJ?nt by counse 1 for the .U o A a Wc and the IoBoEsW. Following a recess taken at the conclusion of argument, the Chairman ruled as follows: "Gentlemen, at the close of the Hearing that was held in the application of the Electrical Workers fox certification, the Board reached the decision • • • that the Electrical Union should be certified as the bargaining agent for the bargaining unit for the Respondent Companyo The Board is firmly of the view that it is contrary to the policy of the Trade Union Act, regardless of how you might interpr~t sone of the language, to pennit one union to apply for certification when there is already pending before the · Board an application for certification by another uniono" The Chairman then cited rule 15 of t he regulations, and concluded: ''We have heard nothing in the arglll!2ent today that would lead us to reconsider our decision in the previous caseo" : 21
The above ruling by the Board at the conclusion of the second hearing indicates that whil e the Board was convened for the express purpose of conducting a hearing into the U.AoW. application.., it did not proceed to consider and determine the natter of that applicationo By its notice of heaJ::ing and opening statement, the Board led the parties to believe that tu.11 inquiry would be made into the merits of the UoA.WB application, but before any evidence could be adduced by either party, the Board concluded. the hearing with the statement of the Chairman.11 noted aboveo A study of the text of that statement can only lead to the conclusion that the Board did not enter into the natter of the UaA.Wo application at a l l. It should be remembered that 'While it is undoubtedly true that the Board members, between themselves, decided to grant the I.B.E.W. application after the first hearing, such certification did not take place until the order was issued on April 'Z{ .11 19700 Thus, on the date of the U..AoW .. application, Mirch 4, and the second hearing, April 14, there was no bargaining agent in existenceB It follows that the U.A .. W. application was properly before the Board, for section 7 (2) of the Act provides that where no collective agreement is in farce and no bargaining agent has been certified under the Act, the application mav be mde at any time ..
Section 9 (1) provides that where a Union makes application under the Act, "the Board shall [ emphasis added ] determine whether the unit in respect of which the application is made is appropriate for collective bargaining • • • ". It is apparent that the Boa.rd was under a statutory duty (section 9 (1) ) to proceed and determine whether the UoA~W@, in respect
:
22
of which application had been ma.de~ was appropriate for collective bar-~ining, and if it so decided and was satisfied that a najority of the employees had selected the U.AaWo to be the bargaining agent on their behalf, then the Board could certify such Union,, In my opinion, the Board failed to carry out this statutory duty .. The problem arises as to whether or not a nari..datary order rm.y issue directing the Board to consider the application for certification of one Union without quashing a pr-evious order certifying another Union .. This question was considered by Wells, J .. , as he then was, in Thibault et al.. v" Canada Labour Relations Board et aL._, (1958), 12 D.L.Ro (2d) 150, at 159-9: ''It was urged on me that I could not make this mandatory order without quashing the order certifying the United Steelworkers of Anerica which the Board made on August 19tho However, in my view this is covered by So 10 of the statute which provides in pu-t as
follows:
0 10.. Where a trade union is certified under this Act as the bargaining agent of the employees in a unit
(a) the trade union shall immediately replace any other bargaining agent of employees in the unit and shall have exclusive authority to bargain collectively an behalf of employees in the unit and to bind them by a collective agreement unt.il the
certification of the trade union in respect of exnployees in the unit is revoked,
(b) if another trade union had previously been certified as bargaining agent in respect of employees in the unit, the
certification of the last 2ntioned trade union shall be deemed to be revoked in respect ·of such employeesaQ
If the Board after it has carried out its statutory duties, should come to the conclusion that the application of the Mine, Mill and Smelter Workers Union should be acceded toJ) any order which they may then nake will have the effect, it appears to me, of vacating their previous order of August 9th .. tt · 23 ..
The sections of the Industrial Relations and Disputes Investigation Act quoted by Wells, J,., above, are identical in wording to section 10 {a) and (b) of the Trade lhion Act of Nova Scotia.. I agree with the observations of Wells, J .. , as to the application of this section, and it follows that should the Board, in this instance, come to the conclusion that the application of the U...AoW. should be granted, any order which it llllY then make in pursuance thereof will have the ef'fect of \re.ca.ting the previous order of April 22, lgfO, certifying the IoB .. E .. W.. , and quashing of the pl."evious order by certiorari is not requiredo I can understand the reason which nay have actuated the Board in following the course it did in this instancea There was evidence before it f'rom which it could infer that one Union had practiced "raiding" on the other 9 and the purpose of the !£!. is to maintain stability in labour relations.. Nevertheless, it seems to me that there was a statutory duty on the Board which it failed to discharge .. I find that the application for a writ of certiorari should be dismissed and, that the applicati on for a writ of mandamus should be allowed.. The applicant will have costs against the respondent and intervener,. It is directed that a writ of mandamus do issue directing the Board to consider the application of the U@A~Wo, Local 1467, as of Mll'ch 4, lgfO, pursuant to the Trade Union Act of Nova Scotia.
C. J. N. . S .. Halifax, Nova Scotia September 24, lg{O 24 ..