A-488-75
Bell Canada (Applicant)
v.
Communications Workers of Canada (Respond-
ent)
and
Canadian Telephone Employees' Association
(Intervener)
Court of Appeal, Jackett C.J., Ryan J. and Kerr
D.J.—Ottawa, November 24 and 25, 1975.
Judicial review—Canada Labour Relations Board finding
applicant had prohibited its employees from participating in
union affairs on company premises during non-working hours
in violation of the Canada Labour Code, and ordering appli
cant to cease and desist—Whether order in breach of natural
justice requirements in that it was made before applicant had
been given adequate opportunity to bring evidence—Canada
Labour Code, R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18, ss.
184, 187, 189—Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1 ,
2.
The Canada Labour Relations Board found that applicant
had enforced a policy which prohibited its employees from
participation in lawful union activities on company premises
during non-working hours, and that its directives violated sec
tion 184(1)(a) and 3(e) of the Canada Labour Code. Applicant
was ordered to cease and desist from prohibiting solicitation of
union membership during non-working hours. At the hearing,
argument centred around whether the facts as placed before the
Board constituted or established breaches of the Code. Counsel
for applicant, however, indicated that what they had had in
mind that they were arguing was whether, assuming certain
facts to be true, there was any breach of the Code, and that
there would be subsequent opportunity to adduce evidence.
Applicant contends that the Board breached requirements of
natural justice in that the order was made before applicant had
been given adequate opportunity to bring evidence as to the
facts.
Held, dismissing the appeal, the rules of natural justice are
flexible, and must be applied according to exigencies of the
particular case, not to defeat a particular statute. There is
evidence of lack of a clear cut concept as to whether the
hearing was (a) merely a determination of the question of law
whether the facts alleged, if true, breached the Code, or (b) a
determination of whether applicant's "present practices", as
evidenced by the directives, were in breach of the Code. How
ever, there is no ground in the rules of natural justice for this
application. Applicant was given full opportunity to state the
facts upon which the decision was based, and applicant's coun
sel was not able to suggest with any cogency any evidence that
had been omitted.
APPLICATION for judicial review.
COUNSEL:
B. A. Roy and S. Potter for applicant.
A. Golden and P. Cavalluzzo for respondent.
Y. A. Hynna for Canada Labour Relations
Board.
SOLICITORS:
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for applicant.
Golden, Levinson, Toronto, for respondent.
Gowling & Henderson, Ottawa, for Canada
Labour Relations Board.
The following , are the reasons for judgment
delivered orally in English by
JACKETT C.J.: "This is a section 28 application to
set aside a "decision and order" rendered by the
Canada Labour Relations Board on August 22,
1975, by which that Board, inter alia,
(a) found that the applicant (hereinafter referred
to as "Bell") had, through various directives,
enforced a policy which prohibited its employees
from participation in lawful trade union activities
on company premises during their non-working
hours and that that policy and those directives
constituted a violation of section 184(1)(a) and
(3)(e) of the Canada Labour Code, which provi
sion, in so far as applicable, reads as follows:
184. (1) No employer and no person acting on behalf of an
employer shall
(a) participate in or interfere with the formation or adminis
tration of a trade union or the representation of employees by
a trade union;
(3) No employer and no person acting on behalf of an
employer shall
(e) seek, by intimidation, threat of dismissal or any other
kind of threat, by the imposition of a pecuniary or other
penalty or by any other means, to compel a person to refrain
from becoming or to cease to be a member, officer or
representative of a trade union or to refrain from
(i) testifying or otherwise participating in a proceeding
under this Part,
(ii) making a disclosure that he may be required to make
in a proceeding under this Part, or
(iii) making an application or filing a complaint under this
Part;
and
(b) pursuant to section 189 of the Canada Labour
Code,' ordered Bell to comply with section 184
and to cease and desist from prohibiting employees
from soliciting other employees to join a trade
union or distributing union literature during the
non-working hours of employees.
On June 20, 1975, the respondent (hereinafter
referred to as "the Union") filed with the Board a
complaint 2 against Bell reading, in part, as
follows:
C. THE NATURE OF THE ALLEGED FAILURE TO COMPLY.
(i) The Respondent 3 has interfered with the representation
Section 189 reads as follows:
189. Where, under section 188, the Board determines that
a party to a complaint has failed to comply with section 148,
184 or 185, the Board may, by order, require the party to
comply with that section and may,
(a) in respect of a failure to comply with paragraph
148(b), by order, require an employer to pay to any
employee compensation not exceeding such sum as, in the
opinion of the Board, is equivalent to the remuneration
that would, but for that failure, have been paid by the
employer to the employee;
(b) in respect of a failure to comply with paragraph
184(3)(a), (c) or (/), by order, require an employer to
(i) reinstate any former employee affected by that fail
ure as an employee of the employer, and
(ii) pay to any employee or former employee affected
by that failure compensation not exceeding such sum as,
in the opinion of the Board, is equivalent to the remu
neration that would, but for that failure, have been paid
by the employer to the employee;
(c) in respect of a failure to comply with paragraph
184(3)(e), by order, require an employer to rescind any
disciplinary action in respect of and pay compensation to
any employee affected by the failure, not exceeding such
sum as, in the opinion of the Board, is equivalent to any
pecuniary or other penalty imposed on the employee by the
employer;
(d) in respect of a failure to comply with paragraph
185(f) or (h), by order, require a trade union to reinstate
or admit an employee as a member of the trade union; and
(e) in respect of a failure to comply with paragraph
185(g), (h) or (i), by order, require a trade union to
rescind any disciplinary action taken in respect of and pay
compensation to any employee affected by the failure, not
exceeding such sum as, in the opinion of the Board, is
equivalent to any pecuniary or other penalty imposed on
the employee by the trade union.
2 See section,187 of the Canada Labour Code.
3 References to the "Respondent" in the complaint and the
reply are, of course, references to Bell.
of employees by a trade union.
(ii) The Respondent has contributed support to the Canadi-
an Telephone Employees' Association in the Complainant's
organizing campaign.
(iii) The Respondent has imposed a condition in the contract
of employment that restrains, or has the effect of restraining,
an employee from exercising rights conferred upon him by
the Canada Labour Code.
(iv) The Respondent has sought by intimidation and threat
of penalty to compel a person to refrain from becoming or to
cease to be a member of a trade union.
D. THE SECTION OF THE ACT IN RESPECT OF WHICH IT IS
ALLEGED THERE HAS BEEN A FAILURE TO COMPLY.
(i) Section 184(1)(a).
(ii) Section 184(1)(b).
(iii) Section 184(3)(b).
(iv) Section 184(3)(e).
E. THE FACTS UPON WHICH THE COMPLAINANT RELIES AS CON
STITUTING THE ALLEGED FAILURE TO COMPLY.
(i) In or about early June, 1975, at the Respondent's office
on Norelco Drive, Toronto, the Respondent's second level
supervisors spoke to groups of employees. The employees
were told that the distribution of union literature and the
soliciting of union support was prohibited on company prem
ises at any time. Any breaches of this prohibition would be
severely dealt with. The employees were told that the
Canadian Telephone Employees Association could conduct
its normal business on company premises. Some of the
aforementioned supervisors are Clayt French, Harold Faulk-
ner, Andy Anderson and Stan Gancher.
(ii) On or about June 5th, 1975, employees of the Respond
ent at its office at 76 Orenda Road, Brampton, Ontario, were
told by foremen Bill Lowe and Jack Harper that it was
illegal to solicit union support on company premises at any
time.
(iii) In or about early June, 1975, an employee of the
Respondent was distributing union literature of the Complain
ant at the Shaw Street garage of the Respondent in Toronto
before working hours. Mr. Sutherland, a supervisor of the
Respondent admonished the said employee and instructed
him not to engage in such conduct again. The employee was
advised that there was a memorandum from the legal depart
ment of the Respondent which specified that the soliciting of
union support on company premises at any time is illegal.
(iv) On or about June 6th, 1975, Gene Kelly and Norm
Watson, foremen of the Respondent, told employees at the
Respondent's office on Esna Park, Toronto, that soliciting of
union support was prohibited on company premises at any
time.
(v) In or about early June, 1975, a representative of the
Complainant was invited by certain employees of the
Respondent to speak to them during their lunch hour in the
cafeteria of the Respondent at its office at 76 Adelaide
Street West, Toronto. While speaking to the employees
during their lunch break, the said representative was
approached by E. Moody, a foreman of the Respondent and
Al Avis, a district chairman of the Canadian Telephone
Employees' Association. Mr. Moody advised the representa
tive that the distribution of literature of the complainant on
company premises was prohibited at any time. The repre-
sentative was ordered to leave the building by Mr. Moody in
the presence of Mr. Avis.
The Complainant alleges that by prohibiting the solicitation
of union support and the distribution of union literature on
company premises during the non-working hours of its
employees, the Respondent is acting contrary to Sections
184(1)(a), 184(3)(b) and 184(3)(e).
To this complaint, Bell filed a reply reading, in
part, as follows:
3.—As to the allegations contained in sections C and D, the
Respondent denies having failed to comply at any time with
any of the sections of the Act referred to by the Complainant;
4.—As to the allegations contained in section E from (i) to (v)
inclusively, Respondent denies same as ill-founded in fact and
in law;
9.—Furthermore and without prejudice to the foregoing, even
if the facts alleged in Section E were to be taken as granted for
the purposes of discussion, those facts do not constitute a
violation of any disposition of the Canada Labour Code;
On August 8, 1975, the Board sent a "Telex" to
the solicitors for the parties, 4 by which it
(a) indicated that it believed it imperative that at
least some of the issues raised by the complaint be
dealt with promptly,
(b) notified each party that a hearing would take
place on August 22, 1975 "with regard to the
complaint",
(c) quoted paragraph 9 of Bell's reply and indicat
ed that the Board proposed to deal "first" with the
issue of whether the assertion contained therein is
in accordance with the provisions of the Canada
Labour Code, and
(d) requested the parties, in order to facilitate and
expedite "the hearing", to file and serve written
submissions prior to August 16, 1975, and, more
specifically, to provide the following information,
together with substantiating data:
A. WHAT HAS BEEN THE POLICY AND THE PRACTICE OF BELL
CANADA OVER THE LAST FIVE (5) YEARS CONCERNING THE
DISTRIBUTION OF ANY TYPE OF LITERATURE- ON COMPANY
PREMISES?
4 Canadian Telephone Employees' Association intervened in
the matter but I do not find it necessary to refer to their part in
the proceedings to express my conclusion with regard to the
matter.
B. WHAT HAS BEEN THE POLICY AND THE PRACTICE OF BELL
CANADA OVER THE LAST FIVE YEARS WITH REGARD TO THE
SOLICITING OF ITS EMPLOYEES ON COMPANY PREMISES BY VARI
OUS TYPES OF ORGANIZATIONS?
C. WHAT HAS BEEN THE POLICY AND THE PRACTICES OF BELL
CANADA OVER THE LAST FIVE YEARS WITH REGARD TO ACTIVI
TIES TAKING PLACE IN CAFETERIAS LOCATED ON ITS PREMISES
DURING THE LUNCH HOUR OF THE EMPLOYEES?
D. HAS BELL CANADA ENFORCED OVER THE LAST FIVE YEARS
RULES OR REGULATIONS PROHIBITING EMPLOYEES FROM ENGAG
ING IN CERTAIN ACTIVITIES ON COMPANY PREMISES OUTSIDE
THEIR WORKING HOURS? SUBSTANTIATE.
E. CONCERNING THE ABOVE, HAVE NEW DIRECTIVES BEEN
ISSUED ÔR RULES OR REGULATIONS ENACTED SINCE APRIL 1,
1975? IF SO, PROVIDE COPIES.
Bell's solicitor wrote a letter dated August 14,
1975 to the Board in reply to the Telex, reading in
part:
We note in your questions that you have addressed yourself,
for the moment, solely to the statement made by Bell Canada
in paragraph 9 of its Reply. With respect, Madame Vice-Chair-
lady, we submit the following response in support of our Reply
and the whole under reserve of and without prejudice to the
rights of Bell Canada to introduce any and all evidence that
Bell Canada deems necessary in order to defeat the complaints
filed against Bell Canada by the Communications Workers of
Canada (CWC) and to further support all aspects of our Reply.
In order to answer your questions, it must be stated from a
global point of view that Bell Canada's policy and practice over
the last five years is best illustrated in Bell Canada's General
Circular 106.85 entitled "Emergency Operations Procedures—
Protection of Company Buildings and Property", a copy of
which is annexed hereto as Appendix "A" to form part hereof
as if herein fully recited at length. This General Circular deals
with the use and protection of all Bell Canada buildings and
property and activities therein and thereon.
We draw your attention to Section 1.02 of the General
Circular and in particular the first sentence thereof which
states:
1.02 The provisions of this circular apply to all owned and
leased premises which are occupied or used for Company
purposes....
Section 3.01 sets out the manner in which this policy is
applied. It states:
3.01 Each department has certain responsibilities in protect
ing buildings and specified areas therein. All management
personnel are responsible for the enforcement of procedures
outlined herein as they apply to employees under their
supervision and areas occupied by them. They shall take any
action necessary to secure the cooperation of all concerned.
In effect, each manager has the responsibility to enforce the
procedures and principles set out in Section 3.01 above.
We also point out for your information the provisions of
Sections 4.03, 4.04 and 4.07 which discuss access to Bell
Canada premises. These sections state:
4.03 Access to Company premises other than public areas
shall be permitted only to those who are on Company
business. When necessary, such persons shall be required to
show their credentials. A valid Company identification card
in itself is not sufficient justification for admission and a
valid reason for admission is required.
4.04 Company employees reporting for duty and others, e.g.,
contractors, etc., shall be admitted without formality when
the employee in charge recognizes and knows them to be
employed and to have business in the building. When the
employee in charge does not recognize a person seeking
admission, that person may be vouched for by a Company
employee, preferably a supervisor on the premises.
4.07 Access to restricted areas shall be granted only to those
persons who have legitimate reasons for seeking admission
and they shall be restricted to areas to which they need
access to fulfill the purpose of their visit ....
It is evident from the General Circular, in general, and the
sections thereof cited above, in particular, that Bell Canada has
had a policy on access to Company premises and activities
therein and thereon. You will note that the sheets of the
General Circular bear "Jul 68" and "Jan 69" as being the last
time it was revised. This General Circular replaced General
Circular 304.6 entitled "Admission to Company Buildings and
Property" which was issued in July 1957, a copy of which is
annexed hereto as Appendix "B" to form part hereof as if
herein recited at length.
Bell Canada owns approximately 1,980 buildings in its oper
ating territory and also -leases approximately 390 locations
within that territory. The General Circular is a policy guide to
the various managers in these buildings and locations and such
policy guide is meant to be administered by the local managers
in these buildings and locations.
With reference to the specific questions you have asked, we
make the following observations in the context of the remarks
made above.
Regarding your first question, in principle, the policy and
practice of Bell Canada over the years, including the last five
(5) years, has been not to permit the distribution of any type of
literature on Company premises. Before any type of literature
is distributed on Company premises, permission from local
management has been required. The Company representatives
are expected to use good judgment in deciding whether or not
to permit the distribution of the literature under consideration.
It is the desire of Bell Canada not to allow the distribution of
literature which would, in the opinion of management, be of a
detrimentally controversial nature and/or of a nature which
may prejudice the interests of the Company and/or the rela
tionship between the Company and its employees.
Where the Company does permit the distribution of litera
ture, for example, the posting of notices, it has set out certain
guidelines to be followed. To illustrate this point, Headquarters
Staff—Labour Relations issued a guideline on October 31,
1969 in response to a request by the Canadian Telephone
Employees' Association (C.T.E.A.) to provide a number of
bulletin boards. This guideline is attached hereto as Appendix
"C" to form part hereof, as if herein fully recited at length.
Bell Canada, however, does state that its local managers
have, from time to time, allowed the distribution of literature,
for example in connection with charitable organizations, such
as United or Federated Appeal, Blood Donor Clinics, etc., as
well as organizations of Bell Canada engaged in similar activi
ties, such as Telephone Pioneers, the Mabel Hubbard Club, etc.
It should be stressed, however, that this has been done with Bell
Canada approval.
In response to your second question, as in the response to the
first question, in principle, the policy and practice of Bell
Canada over the years, including the last five (5) years, have
been not to permit the soliciting of employees on Company
premises by various types of organizations, as is evidenced by
the provisions of General Circular 106.85. Before any type of
organization is permitted access to Company premises, for
whatever cause it may support, again, permission from local
management has been required. The same application of good
judgment must be exercised by the Company representatives as
discussed above in treating your first question.
Again, as in the response to the first question, Bell Canada
has, from time to time, following a request which was granted,
permitted the solicitation of employees by canvassers for chari
table organizations. Similarly, Bell Canada managers have
permitted Blood Donor Clinics to be temporarily established on
Company premises.
Dealing with your third question, the policy and practice of
Bell Canada over the years, including the last five (5) years,
with respect to cafeterias and lunch rooms, have been that, in
principle, these locations provide eating and relaxation facilities
for the employees and are to be used as such. Employees of Bell
Canada are not required to eat in these locations except on rare
occasions, for example, when there is twenty-four hour cover
age in certain switching centres, the Company employees work
ing at night are requested to eat in the cafeterias or lunch
rooms in these locations.
Periodically, however, local management, has, upon being
requested to do so, authorized the utilization of the cafeteria or
lunch room in a location to be used for meetings or social
events, such as a retirement party for employees. But, it should
be noted that the use made of these locations has been request
ed and authorized by local management for specific events and
in a manner so as to accommodate some of the employees of
the Company and not to inconvenience, as much as possible,
other employees of the Company.
In treating your fourth question, it is our contention that Bell
Canada has certainly over the last five (5) years applied the
principles of General Circular 106.85 referred to above as it
relates to access to Company premises and activities therein
and thereon, twenty-four (24) hours per day, the whole in
keeping with the best interests of the Company's operations.
Your fifth and final question refers to directives or rules or
regulations and you ask if any have been enacted since April 1,
1975. We are not aware of any.
We should, however, point out to you that a memorandum
relating to Trade Unions Activities was issued on December 5,
1974 by Headquarters Staff—Labour Relations and forwarded
to each of Bell Canada's three regions, Eastern, Western and
CCNS, a copy of which is attached hereto as Appendix "D" to
form part hereof, as if herein fully recited at length. This was
meant to be a guideline and interpretation of existing policy
and practice. A copy of this memorandum was provided to Mr.
N. Wilson, Labour Relations Officer of your Board's office in
Toronto, on July 30, 1975.
For the Board's information, we wish to point out that
similar guidelines have been followed over the years and to
illustrate this point, a set of guidelines was issued in December
1964, a copy of which is attached hereto as Appendix "E" to
form part hereof, as if herein fully recited at length.
In addition to Appendix "D", as further clarification of
existing policy and practice, a memorandum was issued by
Headquarters Staff—Labour Relations dated June 5, 1975,
and by Western Region Staff—Labour Relations dated June
11, 1975, attached hereto as Appendices "F" and "G", respec
tively, to form part hereof, as if herein fully recited at length.
In addition to the foregoing, with respect to the remarks
initially set out in this letter and with reference to the remarks
specifically addressed to your questions, please find attached
herewith Bell Canada's Code of Business Ethics, the latest
edition being that of April 1973, as Appendix "H", to form
part hereof, as if herein fully recited at length. The previous
edition was dated May 1966 and essentially contains the same
information and guidelines for employees of Bell Canada as the
1973 edition. This document should be read in conjunction with
General Circular 106.85 as being part and parcel of Bell
Canada's general policy and practice over the years.
The June 5, 1975 memorandum referred to by Bell
in its letter to the Board reads:
This is further to my letter of December 5, 1974 on the
subject of Trade Union activities. The memorandum attached
thereto said in part:
It is, of course, a fundamental right of all employees to
discuss and exchange ideas or solicit signatures as long as
such activities are not conducted during working hours. On
the other hand, employees are not permitted to hold "meet-
ings", defined as "an assembly of people gathered together
for a specific purpose", on Company premises for Union
activities except as provided for by a Collective Agreement or
by permission of management.
It is the responsibility of supervisors to make sure that the
Act and the Collective Agreements are adhered to by:
(1) Denying access to Company property to other than bona
fide employees or such other persons approved by
management.
(2) Preventing Union activities not authorized by the Collec
tive Agreement from being conducted during working hours.
(3) Prohibiting the unauthorized placing or posting of print
ed or other material anywhere on Company property, or the
use of other Company facilities for this purpose.
(4) Ensuring that Company property is not used for activi
ties other than for the purpose intended, without manage
ment permission, and that the rights of individual employees
making use of such facilities are protected. For example,
lunchrooms are only intended to be used for eating and
relaxation, and signs to this effect can be posted at the doors
of lunchrooms where local circumstances make this
desirable.
(5) Refraining from comments on the Association, its
administration and operation.
We are advised that Union organizing activities have recent
ly intensified, and that recruitment is now taking place on
Company premises, and our guidance has been sought as to the
correct interpretation of (4) above in such circumstances.
Where such activity is underway, managers should advise the
Union organizers, politely but firmly, that no permission has
been given for the use of Company property for this purpose
and instruct them to confine their activities to off premises
locations.
and the June 11, 1975 memorandum referred to
therein reads:
We have been advised by managers in several locations that
C.W.C. union organizing activities have recently intensified
and that active recruitment is now taking place on Company
premises. If such situations come to the attention of local
managers we offer the following guidelines for management:
I) Ensure that Company buildings and/or property are not
used for any activities other than for the purpose intended,
unless management permission to do so has been granted.
2) It is a fundamental right of all employees to discuss and
exchange ideas without management interference as long as
this does not interfere with work operations and is confined
to discussion. Employees however, are not permitted to hold
"meetings" defined as "an assembly of people gathered
together for a specific purpose" on Company premises to
conduct union activities except as provided for by specific
permission of management.
3) If a C.W.C. organizer engages in the activity of signing
up Bell employees as C.W.C. members, this may be inter
preted as a "meeting" between employees. When the activity
is clearly observed, managers should deny the use of Com
pany premises for this purpose.
4) Where such activity is underway, managers should advise
the C.W.C. organizers, politely but firmly, that no permis
sion has been given for the use of Company property for this
purpose and instruct them to confine their activities to
off-premises locations. (The fact that the C.W.C. Organizers
are off duty does not mean that this activity may be conduct
ed by these employees on Company premises.)
On August 15, 1975, there was filed, by the Union
with the Board, a submission reading, in part:
2. Specifically, in response to the questions posed in the
Board's telegram of August 11th, 1975:
(a) There appears to have been no policy or practice of the
respondent restricting the distribution of literature on its
premises before early June, 1975. In November, 1974, a
group of employees organized into a body called "Exodus"
with the purpose of withdrawing from the intervenant union.
This group of employees was permitted to use the cafeteria of
some offices of the respondent to distribute literature and
solicit support during lunch hours of the employees. These
activities were not restricted until the group had publicized
that it had opted for the complainant union. Various posters
are posted on bulletin boards throughout the plant, some of
which are enclosed.
(b) There has clearly been no policy or practice of the
respondent prohibiting or restricting the soliciting of
employees on company premises by various organizations.
Many organizations are allowed on the respondent premises
to solicit its employees. These include some of the following:
(i) Firefighters selling tickets;
(ii) T.T.C. employees selling public transit tickets;
(iii) Kneller phone shirts are sold on premises;
(iv) Girl Guides selling cookies;
(v) Employees selling tickets for Olympic Lottery, Win-
tario, other lotteries, sports pools, charitable tickets, etc.
(vi) Pioneer group sell tickets and other items at the
working place and during working hours;
(vii) United Appeal solicits support;
(viii) Red Cross solicits support;
(ix) Various other similar activities are carried on without
restriction.
(c) There appears to have been no restriction on activities in
the lunchroom during the lunch hours before early June,
1975. In Kingston a book to order Avon products is in the
cafeteria. As well "womens rights" meetings ("brown bag
lunches") have been held in the cafeteria in Kingston.
(d) Until early June, 1975, the respondent has not enforced
rules or regulations prohibiting employees from engaging in
certain activities on company premises outside their working
hours.
(e) There appears to have been a new directive circulated in
early June, 1975. A copy is enclosed.
II. ISSUE
3. Do the facts in Section E of the complaint dated June
20th, 1975 in addition to any other facts submitted subse
quent to the said complaint, constitute violations of Sections
184(1)(a), 184(1)(b), 184(3)(b) and 184(3)(e) of the
Canada Labour Code?
III. ARGUMENT
4. By section 110(1) of the Canada Labour Code, every
employee is granted the right and freedom to join the trade
union of his choice and to participate in its lawful activities.
5. It is submitted that from Section 110(1) flows the right to
solicit membership in a trade union and the right to distrib
ute trade union literature. As well, Section 110(1) confers
upon the employee the right to be asked to join a trade union
and the right of access to any information or data distributed
by a trade union.
6. By Sections 184(1)(a), 184(1)(b), 184(3)(b) and
184(3)(e) of the Code, an employer is obliged to refrain from
any activity which would interfere with or restrain the said
rights and freedoms.
7. By Section 185(d) a trade union or person acting on its
behalf is prohibited from attempting to persuade the
employee to become, to refrain from becoming or to cease to
be a member of a trade union at an employee's place of
employment during his working hours without the consent of
the employer.
8. By the direction of certain of its officers, the respondent
has prohibited its employees from soliciting trade union
membership or distributing trade union literature during the
non-working hours of its employees at their place of
employment.
9. It is submitted that by the wording of Section 185(d) it
can reasonably be inferred that employees are not prohibited
from participating in the prescribed conduct therein referring
during their non-working hours at their place of employment.
10. It is submitted that Parliament has in Section 185(d)
balanced the interests of employees and the interests of the
employer. In its wisdom, Parliament has decided that the
interests of the employer outweigh those of the employees
during their working hours. By necessary implication, Parlia
ment has decided that the employees' interests outweigh
those of the employer during their non-working hours.
13. It is submitted that in interpreting the Code, the Board
must do so in light of the Canadian Bill of Rights. It is
submitted that the Board must construe and apply Sections
184(î)(a), 184(1)(b), 184(3)(b), 184(3)(e) and 185(d) of
the Code as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of the
freedom of speech and the freedom of assembly and associa
tion of the employees of the respondent.
The Canadian Bill of Rights, 8-9 Elizabeth II, ss. 1, 2.
14. It is submitted that by its actions the respondent has
violated the Canada Labour Code in the following ways:
(a) S. 184(1)(a)—it has interfered with the representation
of its employees by the complainant trade union;
(b) S. 184(1)(b)—it has contributed support to the
intervenant trade union by interfering with the representa
tion of its employees by the complainant trade union;
(c) S. 184(3)(b)—it has imposed a condition in the con
tracts of employment of its employees that has the effect
of restraining its employees from exercising any right
conferred by Part V of the Code; and
(d) S. 184(3)(e)—it has sought by threat to compel a
person to refrain from becoming or cease to be a member,
officer or representative of the complainant trade union.
On August 22, 1975, the Board had a hearing in
connection with the matter. After preliminaries,
the Chairman opened the matter with a statement
that is reflected in the transcript as follows:
CHAIRMAN: As is customary in proceedings before this Board,
the parties will be given an opportunity of making a prelim
inary statement if they so wish, but before doing that I think it
might be appropriate to sum up the file so as to clarify where
we are at. The Board is in receipt of a complaint of unfair
labour practice filed pursuant to Section 187 Paragraph 1 of
the Canada Labour Code Part V—Industrial Relations. The
complaint is dated June 20, 1975, and alleges that Bell Canada
has failed to comply with the provisions of Section 184(1)(a),
184(1)(b), 184(3)(b), but Mr. Cavalluzzo, I believe that has
been later corrected as a typing mistake. The Section would be
184(2)(b) am I correct? instead of (3)(b)?
MR. CAVALLUZZO: Yes that is correct.
CHAIRMAN: And Section 184(3)(e) of the Code. In its reply,
Bell Canada has, and their reply is dated July 10, 1975, Bell
Canada has, generally, denied the allegations, the factual alle
gations contained in the complaint, made a number of prelim
inary objections on which I will come back, later, and it has
further stated in Paragraph 9, furthermore, and without preju
dice to the foregoing, even if the facts alleged in Section (e)
which contains the factual allegation of the complaint were to
be taken as granted for the purposes of discussion, those facts
do not constitute a violation of any disposition of the Canada
Labour Code.
The Board is aware, of course, as is probably the rest of
Canada, the rest of Eastern Canada, that labour-relation-wise
certain events are taking place amongst the various groups of
employees of Bell Canada.
The Board has noted that both from the complaint, well maybe
I should deal with the preliminary issue first. The respondent
employer has raised in its reply, two preliminary objections.
I have referred you, earlier, to Section 187 Paragraph 1 of the
Code, and the Board wishes to make it clear that the require
ment set forth in its regulations, although they should be
complied with inasmuch as possible, are not meant to prevent
parties to file complaints before the Board, or to impose upon
them the burden of being assisted by Counsel or seeking expert
advice to do so, but in order to facilitate the processing of
applications. So, in the circumstances, the Board will accept the
complaint as is, subject of course to the onus on the complain
ant to eventually prove the facts on which it relies and the
preliminary objections founded on Section 48 of the Board's
regulations are dismissed. Before proceeding however, it is
necessary to clarify, further, the rather special circumstances in
which this complaint, this hearing was called. Upon receipt of
the complaint and subsequent additions to the complaint in the
nature of more specific or additional allegations of fact and of
the reply by the employer, this is not really covered by the
intervention of the intervener. The Board noted that the instant
case appears to raise two issues which are, of course, closely
related but which may be separated. The first one is whether, in
law, the restrictions imposed by Bell Canada through its regu
lations or other statements of policy, restrictions upon certain
types of activities which may be engaged in on company
premises, are in conformity with the provisions of the Canada
Labour Code. The complainant has asserted that they were not.
Bell Canada has asserted that they were. This Board has not
had an opportunity to pass on such an issue and on its possible
relevance to determination of violations of Section 184 of the
Code.
The second issue, of course, does not ... , may arise whatever
the determination on the, on the first issue but it could well be
that even if the policies and regulations and directives of Bell
Canada are perfectly valid under the Code, it could be, that as
the complainant alleges, the manner in which they have been
implemented or applied might lead to a finding that the
provisions of Section 184 have been violated. You are all aware
that this is August, and I think you are all aware because this is
unfortunately becoming too well known, it has had repercus
sions on many people that this Board has a very heavy work
load. This is the vacation season, which makes it worse from
our point of view. And it was not possible for us to schedule a
lengthy hearing on this complaint. However, because of the
issues raised by it appear to be of special importance appear to
be of to some extent of some urgency, since the finding by the
Board in six months or a year would not obviously be very
useful in remedying a situation which exists now and might
continue to be particularly acute in the next few months. The
Board has called this hearing, with a special purpose in mind,
and this has been indicated to you in various telexes, which you
have received. The Board would like to undertake today an
inquiry on what I had described as the first issue, that is, aside
from the manner in which they might have been implemented
or [are] 5 Bell Canada's directives or practices in violation of
the provisions of Section 184 of the Code or are they perfectly
valid and legal. I have emphasized our scheduling problem, we
had to cancel a hearing that was scheduled for today in order to
be here. We cannot, at this stage, envisage adjourning this
hearing to next week, for example. We convene you this
morning at 9:30, we are prepared to sit as late as will be
necessary, if necessary we will sit tomorrow. But we think it is
important for all the parties, here, that a determination of the
first point be arrived at. We believe that this is possible with
the cooperation of the parties since the issue as defined here is a
legal one which does not entail or should not entail submission
of evidence. In this respect, when the Board forwarded its telex
convening you to this hearing and asking for submissions, the
Board relied on the statement, in the employer's reply, that
even if the facts alleged in the complaint were true, they
disclose no violation of the Code. The submissions received
from the various parties have further elicited, as the Board
requested, the practices and policies of Bell Canada. And the
Board is even willing to go one step further. Mr. Gulden has, in
a quite detailed submission dated August 14, explained what
was the existing situation, what were the rules, what were the
directives. It has given some information as to the manner in
which they have been implemented and this information
appears to be consistent with the submissions of the complain
ant in its, in a document which is dated August 15, 1975, that
is that, in fact, some solicitation by various organizations has
been permitted. But according to Bell Canada this is in con
formity with directives that require, that prohibit also ... such
solicitation and distribution unless expressly authorized by local
managers. It appears to be accepted that, on occasion, local
managers have granted said permissions to various groups and
organizations, some of which are named in the complainant's
complaint, United Way, Red Cross. It is, thus, possible to
clarify the issue one step further. And we would suggest that
the point might properly be defined as follows: If the facts
stated in Bell Canada's submission of August 14, 1975, as
clarified by the complainant's submission of August 15 where
that submission does not contradict the submissions of the
5 The word "or" here is obviously a stenographic mistake for
"are".
employer is the present practices of Bell Canada as evidence(
by various directives consistent with the provisions of th(
Canada Labour Code, Part 5, Industrial Relations.
Counsel for the respondent made an opening state.
ment, reading in part:
MR. CAVALLUZZO: Madam Chairman, my preliminary state
ment will be very brief. I totally agree with the Board':
approach in this problem. It is the most expedient procedure al
this time. I appreciate the difficulties that the Board is havinl
with respect to the hearing of these complaints. However, a:
you will appreciate as Members of the Board, the complainant
is now in the midst of an organizing campaign. And the issue:
now before the Board are very, very important to it. Anc
therefore, I agree that these issues should be resolved as quickly
as possible. Now, I am totally agreeable with the Board':
approach that we can accept the evidence as filed today by all
the parties to this hearing, as agreed, in that all parties will
have the opportunity to make legal representations upon that
evidence to determine whether such activities, on the part of
this employer, are in contravèntion of the Canada Labour
Code. And, finally, I agree with the issue, as framed by the
Board.
Counsel for the applicant made an opening state
ment, reading:
MR. GULDEN: Madam President and Members of the Board.
We, too, agree that the issues are to be isolated and we are
prepared to answer the questions that were raised in the
telegram that was sent to Bell Canada and to direct our
attention strictly to the issues that were raised and support the,
the responses in the submission by way of evidence if the Board
so desires and to argue on the points raised in law. I should also
point out to the Board that we are dealing today with a
hypothetical issue in the sense that we are taking the facts as if
they were produced as evidence. We are not admitting these
facts and we will make a representation on that basis.
After such opening statements, the parties pro
ceeded, at the hearing that was held by the Board
on August 22, 1975, to argument, but, before the
argument commenced there were further
exchanges of a preliminary nature that are reflect
ed by the transcript as follows:
CHAIRMAN: Before going further, there is one point we had
referred them, parties have been agreeable to the procedure
which we have suggested, which would be to take the facts
elicited by the submissions as such for the purpose of argu
ments in. law. There appears to be only one possibly important
discrepancy between the submission of the Communication
Workers of Canada and Bell Canada, it might be cleared up at
this stage. As we read the facts outlined in Paragraph 2 of the
Submission of the Complainant, they appear to state there has
been no policy or practice of the respondent restricting distribu
tion of literature on its premises before early June 1975. And
this is repeated further. Mr. Gulden's submission refers to
directives or general circulars as they are known at Bell, and
pretty shortly the Board will, should have a fairly complete
collection of the general circulars presently in effect at Bell.
Mr. Cavalluzzo, does the complainer recognize, and I'm not
asking you, obviously, to comment on their application or
relevancy or whether they have in fact been implemented, but
does the complainant recognize these general circulars that
have been filed in Appendix A and Appendix B, I guess, as
being general circulars in effect at Bell Canada?
MR. CAVALLUZZO: Well, the position of the complainant on that
point, Madam Chairwoman, is 1) We do recognize that there
are the circulars, 2) In argument, we will dispute their rele
vance to the facts before the Board at this time and 3) We
certainly do not admit that the circulars have been uniformly
enforced. Now that third point is minor in the sense that, as I
said before, we feel that the circular has no relevance to the
facts before the Board at this time.
MR. RENAULT: [for Bell] Mrs. Chairman, I had understood that
Mr. Cavalluzzo had accepted the evidence at first in the
statement, so I wanted to make sure now that where we are as
far as Bell is concerned, it is accepted as for the benefit of
discussion or it's not accepted. So I feel that this should be
clear.
CHAIRMAN: Well, as I understand from the statement of Mr.
Cavalluzzo, it answers our question that the general circulars
are in existence, whether they are applicable or not to the
situation under discussion in the instant cases, I think, properly
a matter for argument, and we have expressly stated that we
would not attempt to get today and the question of whether the
manner in which the directives have been implemented might
possibly, separately, from the validity of the practices or regula
tions involve a violation of the Code. So as I understand it, it is
accepted that these circulars are in existence and, obviously,
Mr., I understand Mr. Cavalluzzo to reserve his right to argue
on their relevancy, which, I think, in the circumstances, is
understandable. Is that clear enough? Is that what you stated
Mr. Cavalluzzo?
MR. RENAULT: I'm sorry, Mrs. Chairman, I provided, it's made
clear to us that really the third point is not that he has
submitted now, I took as granted at first the first statement at
the opening statement after you talked that he had said that the
evidence was accepted. And now of course if this third thing
that he does not admit, that they have been uniformly enforced
is not going to come in the picture today. In other words, only
the relevancy and that the, all the circulars are recognized, so
we then put back at the same, original statement that he has
made that the evidence was accepted. So that's ...
CHAIRMAN: Yes, it is accepted for the purpose of the discussion.
MR. RENAULT: I understand. Only for the purpose of the
discussion, or the discussion as a point of law.
CHAIRMAN: Is that a fair statement, Mr. Cavalluzzo?
MR. CAVALLUZZO: Yes it is.
MR. CAVALLUZZO: Yes, Madam Chairman. Madam Chairwom
an and Members of the Board: At this time, I would like to
advise the Board that I'm restricting my argument to the
question of whether Bell Telephone can restrict its own
employees from the solicitation of union membership and from
the distribution of literature on its premises, during the non-
working hours of these employees.
MR. GULDEN: Madam Chairwoman, if I may interject here for
one moment before we proceed with the formal argument, f
would, I'd like to state Bell Canada's objection on the proceed
ings, strictly on a procedural matter. We object to the filing,
No. 1) of the letter of August 5th that Mr. Cavalluzzo filed.
We feel that No. 1, in some of the answers or some of the
paragraphs in the letter, he has changed the nature of the
complaint and I'm referring, in one particular instance on page
2 of his letter where he refers to paragraph 7, he has changed
the section numbers. If we are to respond today, I think we
would be in a pretty difficult position to try to argue the point.
We are proceeding, it is Bell Canada's intention to proceed of
course today, but we are proceeding on them, on the basis to
facilitate the Board's understanding of the issues but no way
does Bell Canada wish to waive any of its rights, procedurally
or on substantive matters. And it's on this basis that we agree
to appear before the Board today. We have also considered the
hearing today to really be a preliminary hearing in this sense
that, again, for the Board to understand the nature of the issues
and for the Board to decide whether or not a further hearing is
to be had on the merits or the allegations in the complaint and
to- then hear evidence whether or not the allegations are
founded.
Thereafter, counsel for Bell and the Union
argued at length; and, generally speaking, it is fair
to say, I think, that the argument revolved around
the question whether the facts as placed before the
Board by Bell's letter of August 14, 1975, and the
enclosures attached thereto constituted or estab
lished breaches of the relevant provisions of the
Canada Labour Code. On the other hand, counsel
for Bell did, from time to time, indicate that they
had in mind that what they were arguing was the
question whether, assuming certain facts were
true, there was any breach of the Canada Labour
Code and that there would be a subsequent oppor
tunity to adduce evidence.
On August 22, 1975 (the day of the hearing),
the Vice-Chairman who presided at the hearing
wrote to the solicitors for the parties as follows:
The Board has reviewed the written and oral submissions of
the parties and studied the documents tendered by Bell Canada
as embodying its policy and directives with regard to trade
union activities on company premises. The Board has noted
particularly the directives contained in two documents:
1) a letter from Mr. L. C. Godden, Assistant-Vice-Presi-
dent-Labour Relations dated June 5, 1975, and addressed to
various assistant vice-presidents and general supervisors;
2) a letter from Mr. J. Jacobs, Staff Supervisor-CTEA
Labour Relations, Western Region, to all Ill Level Manage
ment Western Region which is dated June 11, 1975.
In its telex to the parties, the Board had advised them that it
intended at the hearing to deal with an issue raised in the
respondent's reply to the complaint namely that even if all the
factual allegations of the complaint were true, they disclosed no
violation of the Canada Labour Code. The Board finds that this
contention of the respondent must be dismissed.
The Board finds that the crucial issue in the instant case is
whether Bell Canada can prevent its employees from soliciting
membership in a trade union and distributing union literature
on company premises by making such behaviour subject to
disciplinary action, when these activities take place outside the
working hours of the employees involved. The Board finds that
Bell Canada may not do so without violating the provisions of
the Canada Labour Code (Part V—Industrial Relations), and
particularly the provisions of Sections 184(1)(a) and 184(3)(b)
of the Code.
Section 110(1) of the Canada Labour Code guarantees to
employees the right to join the trade union of their choice and
"to participate in its lawful activities". The basic freedoms thus
protected include the right to distribute or otherwise dissemi
nate and receive information about a trade union and its
activities and the right to sign a membership card, provided
these activities do not take place during the working hours of
the employees involved. An employer may not without compel
ling business reasons, prohibit employees from exercising these
rights on company premises. To do so amounts to behaviour
that is prohibited by the provisions of Sections 184(1)(a) and
I 84(3)(b) of the Canada Labour Code (Part V—Industrial
Relations).
The Board further finds that the property rights of the
employer must be exercised in a manner that is consistent with
the basic freedoms guaranteed to employees by the Code. Of
course, the employer has the right to maintain production, to
enforce discipline and to safeguard the safety and security of its
property and premises. Nevertheless, it may not, without com
pelling reasons, attempt to do so by prohibiting employee
activities that are expressly protected by the Code. In the
instant case, there is no reason to believe that these basic
interests of Bell Canada cannot be protected by resort to
customary disciplinary sanctions.
The Board's decision will be further explained in reasons for
judgment which will be issued and communicated to the parties
at a later date.
Because of the special circumstances of the instant case, the
Board believes that it is desirable that its decision be issued
promptly. Accordingly, you will find enclosed a copy of the
Board's order. Because of time constraints, it has not been
possible to issue this order in both official languages• However,
a French version of the order will be made available shortly.
On the same day, the formal order of the Board
that is the subject of this section 28 application
was issued. It reads as follows:
WHEREAS, a complaint pursuant to Section 187 of the
Canada Labour Code (Part V—Industrial Relations) dated
June 20th, 1975 was filed with the Canada Labour Relations
Board on behalf of the Communications Workers of Canada
alleging inter alia failure by Bell Canada to comply with the
provisions of Section 184(1)(a) and Section 184(3)(e) of the
said Code; and
WHEREAS, the Board has requested and received evidence and
submissions from the parties concerning the policy and direc
tives of the Respondent prohibiting or restricting union activi
ties on company premises; and
WHEREAS, the Board has reviewed the evidence submitted by
the respondent and the written and oral submissions of the
parties.
NOW, THEREFORE, the Board finds that the Respondent,
through various directives, has enforced a policy which prohib
its its employees from participation in lawful trade union
activities on company premises during their non-working hours
and that this policy and those directives constitute a violation of
the provisions of Section 184(1)(a) and 184(3)(e) of the
Canada Labour Code (Part V—Industrial Relations).
NOW, THEREFORE, the Canada Labour Relations Board, pur
suant to Section 189 of the Canada Labour Code, orders. the
Respondent to comply with the provisions of Section 184 of the
Code and to cease and desist from prohibiting employees
soliciting other employees to join a trade union or distributing
union literature during the non-working hours of employees.
FURTHER, the Board orders the Respondent to transmit a
copy of the instant order to all the persons in the employ of the
Respondent who are known to have received copies of the
directives on trade union activities which were issued by Mr. L.
C. Godden on June 5, 1975 and by Mr. J. Jacobs on June 1 I,
1975.
This section 28 application is to have that order
set aside and, it was made clear, by counsel for
Bell during the argument in this Court, that this
application is based solely on the contention that
the Board made its order in breach of the require
ments of natural justice in that it was made before
Bell had been given adequate opportunity to bring
evidence as to the facts relating to the order. It is
clear that Bell did not, in this Court, attack the
interpretation put by the Board on the unfair
labour practice provisions of the Canada Labour
Code and that this Court does not, in this case,
have to take any position with regard thereto.
It is not unimportant to keep in mind in a case
such as this that the so-called rules of natural
justice are a means devised by the courts to inter
pret and apply statutory law in such a way as to
avoid unjust results in particular cases. They are
not rigid but flexible. They must be applied
according to the exigencies of the particular case
and they are not to be used as an instrumentality
to defeat the achievement of the objectives of the
particular statute. On the other hand, they are to
be applied, inter alia, to remedy any real possibili-
ty of injustice through failure to afford any party a
reasonable opportunity to meet what is being said
against him.
With regard to the natural justice point in this
case, as I understand it, Bell's position is that its
representatives went to the August 22nd hearing
on the understanding that the question to be heard
that day, and the sole question to be heard that
day, was the question of law whether, assuming
the facts alleged in the complaint were correct,
they constituted a violation of the Canada Labour
Code, and that, in consequence, they were not
given the opportunity required by natural justice
to meet the allegations of fact by whatever evi
dence would have been available to them if they
had been given due notice of a hearing on the
facts. The alternative view, as I understand it, was
that the parties were duly notified that some, but
probably not all, of the issues raised by the com
plaint (of which the question of law would be the
"first") would be dealt with at the hearing, that, at
the outset, before argument, the "issue" to be dealt
with was defined and accepted by the parties and
that that issue was the question whether Bell's
practices, as evidenced by various directives put
before the Board by Bell, were in breach of the
Canada Labour Code. Indeed, as I view it, there is
no possibility of any middle room. I find it difficult
to believe that any of the experienced lawyers
involved understood that the hearing of August 22
was anything other than either
(a) merely a determination of the question of law
whether the facts alleged by the complaint, if true,
were a breach of the Canada Labour Code, or
(b) a determination of the question whether Bell's
"present practices" as evidenced by the various
directives were in breach of the Canada Labour
Code.
On the other hand, there is evidence, when one
reads, and re-reads, the transcript carefully, that
there was a lack of a clear cut concept pervading
the hearing from beginning to end as to which of
these kinds of hearings was being held.
After giving the matter the best consideration
that I can, I have concluded that there was no
miscarriage of justice here. The first fact to be
noted is that Bell, at the request of the Board, put
a complete statement of facts before the Board
upon the basis of which argument took place and
the order attacked was made. As any experienced
lawyer would have appreciated, those facts would
not have been relevant to the question of law as to
whether what was alleged by the complaint was
illegal. Secondly, the Vice-chairman re-stated the
question in terms of "the present practices of Bell
Canada as evidenced by various directives"
immediately before counsel made their statements
and her statement thereof was not challenged at
any time. Thirdly, although this causes me more
difficulty, various statements by Bell's counsel
which seemed to contemplate a future hearing for
the taking of evidence could have been made with
reference to the issues that were deliberately left
for future action by the Chairman's opening state
ment. Finally, there is the fact that notwithstand
ing the course of discussion throughout the hear
ing, very experienced counsel for Bell at no time
took objection to argument on the actual facts, as
opposed to the alleged facts, but, indeed, par
ticipated in such argument.
With hesitation, I have concluded that there is
no ground in the rules of natural justice for this
section 28 application. I come to that conclusion
with hesitation but, having regard to the fact that
Bell was given full opportunity to state the facts
that were the basis of the decision attacked and
that counsel for Bell was not able to suggest in this
Court with any cogency any evidence that had
been omitted, I am less concerned about the con
clusion that I have reached than I would otherwise
be.
In my view, the section 28 application should be
dismissed.
* *
RYAN J. concurred.
* * *
KERR D.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.