Moffat Broadcasting Ltd. (Applicant)
v.
The Attorney General of Canada and Vancouver-
New Westminster Newspaper Guild (Respond-
ents)
Court of Appeal, Thurlow J., Sheppard and
Bastin D.JJ.—Vancouver, B.C., May 3 and 4,
1973.
Labour relations—Canada Labour Code, s. 115(2)(a) and
(b)—Certification of bargaining unit—Judicial review—Cer-
tification set aside.
Respondent union made application to the Canada Labour
Relations Board to be certified as bargaining agent of a unit
of applicant's employees. There were then seven employees,
of whom six were members of the union but two of these
resigned before the application was heard. At the hearing,
affidavits of three of the remaining employees were given,
alleging that they were not or had ceased to be members of
the union. The Board refused to order a vote of the
employees and certified respondent union as bargaining
agent.
Held, the certification must be set aside. Neither of the
conditions for certification set out in section 115(2)(a) and
(b) of the Canada Labour Code, R.S.C.. 1970, c. L-1 had
been met. No vote had been taken, as required by paragraph
(b); and the Board could not conclude on the material before
it that a majority of the employees in the bargaining unit
were members in good standing of the union, as required by
paragraph (a).
JUDICIAL review.
COUNSEL:
E. A. Alexander, Q.C., for applicant.
N. D. Mullins, Q.C., for Attorney General
of Canada.
W. H. Deverell for Vancouver-New West-
minster Newspaper Guild. ,
SOLICITORS:
Robson, Alexander and Guest, Vancouver,
for applicant.
Deputy Attorney General of Canada for
Attorney General of Canada.
Deverell, Harrop, Morrison, Wood and
Powell, Vancouver, for Vancouver-New
Westminster Newspaper Guild.
THURLOW J. (orally)—This is an application
under section 28 of the Federal Court Act to
review and set aside the certification, granted
on November 28, 1972, by the Canada Labour
Relations Board under the Canada Labour
Code, R.S.C. 1970, c. L-1, of the respondent,
Vancouver-New Westminster Newspaper Guild,
Local 115 of the Newspaper Guild, as the bar
gaining agent of a unit of employees of the
applicant working in the news department of
Station CKLG at Vancouver, excluding the
news director.
On June 21, 1972, when the application for
certification was made the unit in question con
sisted of seven employees of whom six were
members of the respondent union. Two of these
employees had, however, resigned their employ
ment with effect from June 30, 1972, and in
consequence commencing on July 1 the unit
consisted of five employees of whom four or
five were members of the union.
On July 13 the applicant filed a reply to the
application by which it challenged the appropri
ateness of the bargaining unit for certification
and asked for a hearing but it neither admitted
nor denied the union's assertion that a majority
of the employees of the unit were members of
the union. The request for a hearing was subse
quently granted and the hearing was set for
October 24, 1972, at Ottawa.
On October 19, 1972, the applicant advised
the Board by telex of its intention to raise at the
hearing the issue of whether a majority of the
employees in the unit were members in good
standing of the union or wished to have the
applicant selected to be the bargaining agent on
their behalf.
Thereafter at the hearing the applicant intro
duced and the Board ultimately received, sub
ject to objection by the respondent union,
affidavits which had been obtained by the appli
cant from three members of the bargaining unit.
One of these was by an employee named
Vidler who had previously been a production
superintendent in another department of the
applicant's operation and who had been trans
ferred to the news department as a newsman on
October 17, 1972, that is to say, a week before
the date set for the hearing. This affidavit stated
that the deponent had never been a member of
the union and did not wish the union to be
certified as bargaining agent on his behalf. It
also denied that there had been any threat or
intervention by the company to compel him to
refrain from becoming a member of the union.
The second affidavit, made by an employee
named Farr, stated that he had joined the union
in April 1972 and resigned from it in July 1972
and had obtained a refund of about $3.00 of his
union dues. He too said he did not want the
union certified as bargaining agent on his behalf
and that no threat had been made or intimida
tion practised on him by the applicant.
The third affidavit, made by an employee
named Johnson, stated that he had joined the
union in April 1972 and that on October 13,
1972, he had sent to the union a letter of resig
nation of his membership therein.
No evidence was offered by the union to
contradict the fact which appeared from these
affidavits that at the time of the hearing none of
these three employees was a member of the
union.
With respect to these affidavits the Board
found, for carefully considered reasons which it
is unnecessary to relate or to review, that no
weight could be given to their contents as
expressions of the true wishes of the deponents.
The Board did not, however, uphold the
respondent union's objection to their admissibil
ity or reject them as inadmissible. Nor did it
make any finding that these affidavits were
unacceptable as evidence that the three depo-
nents were not members of the union at the time
of the hearing.
The Board next considered and rejected a
request by the present applicant that the Board
order that a vote by secret ballot be taken to
determine the wishes of the employees in the
bargaining unit and went on to conclude
... that in the circumstances the evidence of majority
membership in good standing in the applicant (union) of the
employees in the bargaining unit constitutes acceptable evid
ence of the wishes of the employees in the bargaining unit
which the Board has found appropriate for collective
bargaining.
Accordingly an order will issue certifying the Applicant as
bargaining agent for the unit of employees of the Respond
ent which the Board has found to be appropriate namely a
unit of employees of the Respondent working in the news
department of Station CKLG at Vancouver, B.C. excluding
the news director.
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 com
prised 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 dis
cretionary power vested in it to certify or refuse
to certify an applicant. The jurisdiction of the
Board to cerfify 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 select
ed 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 alter
native 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 hear
ing of a majority of the employees being mem
bers 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 Workers Internation
al 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 certifi
cation granted by it should therefore be set
aside.
* * *
SHEPPARD and BASTIN D.JJ. 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.