A-94-75
Central Broadcasting Company Ltd. (Applicant)
v.
Canada Labour Relations Board and International
Brotherhood of Electrical Workers, Local Union
No. 529 (Respondents)
Court of Appeal, Pratte J., Smith and Maguire
D.JJ.—Saskatoon, May 12-14, 1975.
Judicial review—Canada Labour Relations Board deciding
applicant in violation of Canada Labour Code in dismissing
employees—Canada Labour Code, S.C. 1972, c. 18, s.
184(3)(a)(i).
Applicant applies to set aside a decision of the Canada
Labour Relations Board that the applicant violated section
184(3)(a)(i) of the Canada Labour Code in dismissing 21
employees. Applicant submits: (1) employees were not mem
bers of the union, and could not have been dismissed for that
reason; (2) the decision was based on a report of a Conciliation
Commissioner that was not properly before the Board; (3) the
decision was made on an erroneous finding of fact without
regard to the evidence; (4) the Chairman demonstrated a lack
of objectivity.
Held, the application is dismissed. As to (1), employees, their
employer and a union official all believed that said employees
had joined the union. The fact that, for technical or legal
reasons, they might not have, is irrelevant. As to (2), it cannot
be assumed that the Board ever saw the report. As to (3), the
evidence was such that a reasonable person, properly instruct
ed, would have held applicant in breach of section 184(3)(a)(i).
Under section 28, a decision cannot be set aside simply because
had this Court sat in first instance, it would have held different
ly. As to (4), applicant was given a fair hearing.
JUDICIAL REVIEW.
COUNSEL:
D. K. MacPherson, Q.C., for applicant.
G. Taylor, Q.C., for respondent, Union.
J. Baigent and R. Germaine for respondent,
C.L.R.B.
SOLICITORS:
MacPherson, Leslie and Tyerman, Regina,
for applicant.
Goldenberg, Taylor and Tallis, Saskatoon,
for respondent, Union.
Gibbons, Rosenbloom, Baigent and Ger-
maine, Vancouver, for respondent, C.L.R.B.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act to set aside a decision
of the Canada Labour Relations Board that the
applicant violated section 184(3)(a)(i) of the
Canada Labour Code in dismissing twenty-one of
its employees.
Section 184(3)(a)(i) reads as follows:
184. (3) No employer and no person acting on behalf of an
employer shall
(a) refuse to employ or to continue to employ any person or
otherwise discriminate against any person in regard to
employment or any term or condition of employment,
because the person
(i) is a member of a trade union.
The applicant's first submission was that the
dismissed employees were not, in law, members of
the respondent union and could not, therefore, be
dismissed because they were members of that
union. In order to understand this contention, it is
first necessary to know that the constitution of the
International Brotherhood of Electrical Workers
and the By-laws of the Local Union 529 set forth
certain requirements that must be met in order for
a person to become a member of the union; it is
also necessary to mention that, according to the
evidence adduced at the hearing before the Board,
it may be argued that the dismissed employees
joined the respondent union without complying
with all those requirements.
This first submission must, in our view, be
rejected. The employees here in question had taken
the steps that were, in their opinion, necessary to
become members of the union. The employees
certainly believed that they had become members
of the union; the employer shared that belief and
an official of the union stated that they were
members. In those circumstances, the fact that for
legal and technical reasons the employees might
have not been members of the respondent union is,
in our view, irrelevant in determining whether the
employer, in dismissing them, has violated section
184(3)(a)(i) of the Canada Labour Code.
The second attack made against the decision of
the Board was that it was based on material that
was not properly before the Board, namely a
report of a Conciliation Commissioner. The short
answer to this submission is, in our view, that, in
the light of all the evidence, we cannot assume that
the Board ever considered or even read that report.
Thirdly, the applicant argued that the Board's
decision was bad because it was founded on an
erroneous finding of fact made without regard to
the evidence. In our view, this argument also fails.
There was before the Board evidence on which a
reasonable person, properly instructed as to the
law, could reach the decision that the applicant
had violated section 184(3)(a)(î). Under section
28, we cannot set aside a decision for the sole
reason that, had we sat in first instance, we would
have reached a different result.
Finally, the applicant's last point was that the
attitude of the Chairman of the Board during the
hearing showed a lack of objectivity which vitiated
the ultimate decision of the Board. There is, in our
view, no substance in that contention. Even if
certain remarks that fell from the Board during
the hearing could have been better formulated, a
reading of the whole of the transcript of what
transpired before the Board has convinced us that
the applicant was given the fair hearing to which it
was entitled.
For these reasons, the application will be
dismissed.
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