A-160-81
Manitoba Pool Elevators (Applicant)
v.
Canada Labour Relations Board, Grain Services
Union (C.L.C.) (Respondents)
Court of Appeal, Thurlow C.J., Heald J. and
Lalande D.J.—Winnipeg, October 22; Ottawa,
November 13, 1981.
Judicial review — Applications to review — Labour rela
tions — Applications to set aside orders of Canada Labour
Relations Board — Board held that applicant employer's offer
of management positions to certain employees was motivated
by a desire to get employees out of respondent Union — S.
184(1)(a) of Canada Labour Code prohibits interference by
employer in representation of employees by bargaining agent
— Board ordered rescission of management contracts ab initio
in so far as they conflicted with collective agreement and terms
and conditions of employment but did not order rescission of
corollary equipment contracts — Determination of whether
employees in question were "employees" within Code defini
tion not condition precedent to Board's jurisdiction to decide
whether an unfair labour practice had been committed —
Whether Board lacked jurisdiction to sever equipment con
tracts from management contracts — Applications dismissed
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 107, 108,
118(p)(i),(ii), 121, 184(1)(a), 187(1)(a), 188, 189.
Applications to review and set aside an order of the Canada
Labour Relations Board amending an earlier order, and the
earlier order. The applicant employer held a meeting of 15
employees, in the absence of a Union representative, who were
members of a bargaining unit for which the respondent Union
was the bargaining agent. The employees were offered and
accepted management contracts. Some of the employees also
entered into contracts for the purchase by the employer of
certain equipment. The Board concluded that the employer was
motivated by a desire to get the elevator managers out of the
Union. It found that this was a prohibited motivation and that
the applicant was in violation of paragraph 184(1)(a) of the
Canada Labour Code which prohibits interference by an
employer in the representation of employees by a bargaining
agent. The Board ordered the employer to recognize the Union
as exclusive bargaining agent and to rescind any action it had
taken to remove the employees in question from the bargaining
unit. It declared that the employees were bound by the most
recent collective agreement and ordered the employer to recog
nize, acknowledge and fulfill its obligations under the agree
ment as if these employees had never been considered by the
employer to be outside the bargaining unit. Finally, the Board
ordered that all individual contracts, except those dealing with
equipment sales, be rescinded ab initio in so far as they
conflicted with the terms of the collective agreement. The
employer submits that the Union was not the bargaining agent
of the employees with respect to the new positions because they
were management positions outside the scope of the bargaining
unit, and that in failing to address and decide whether in such
positions the employees were within the definition of
"employee" in subsection 107(1) of the Code, the Board had
failed to decide a question that was essential to its jurisdiction
to find that the applicant had violated paragraph 184(1)(a) of
the Code. The second submission was that the Board was
without jurisdiction to sever the equipment purchases from the
management contracts.
Held, the applications are dismissed.
Per Thurlow C.J. (Lalande D.J. concurring): These persons
were employees within the meaning of the Act and were
members of the bargaining unit represented by the Union when
the conduct complained of began. They continued to be
employees within the meaning of the Act at least up to the time
the contracts with the applicant were signed. It is the conduct
of the applicant in this period that the Board held was in
violation of paragraph 184(1)(a). The Board therefore had
jurisdiction to decide whether this conduct constituted improp
er interference with the representation of employees by the
Union. It was not essential to determine the employment status
of the individuals after the management contracts were signed.
Having found that the employer had violated paragraph
184(1)(a), the Board had the powers conferred by section 189,
which provides that the Board may order a party to comply
with that section and require the offender to do or refrain from
doing anything that is equitable in order to remedy the situa
tion. What the Board has done is to declare the violation and
then to require the employer to rescind its action that made the
employees managers and restore them to jobs within the bar
gaining unit. This falls within the powers conferred on the
Board by section 189. As to the second issue, the effect of the
order as a whole is to require the employer to agree to
rescission of the management contracts, but at the same time to
make no order with respect to the rights of the employer to
relief from its undertakings to purchase equipment. The order
thus does not require the employer to rescind or to agree to
rescission of the equipment contracts. At the same time the
order does not expressly exclude or interfere with any right the
employer may have had to insist on rescission of the equipment
contract as a term for rescission of the management contract
with the particular individual. Therefore, in its reference to the
rights of the employer with respect to the equipment contracts
arising upon rescission of the management contracts the Board,
having made no order, has not exceeded its jurisdiction.
Per Heald J. dissenting in part: The Board purports to
rescind subject employment contracts ab initio in so far as they
conflict with the provisions of the collective agreement and the
terms and conditions of employment of the employees in the
bargaining unit. The purported partial rescission of the employ
ment contracts is so imprecise and ambiguous as to be mean
ingless. A person against whom an order is made by a Board
having extensive powers of enforcement such as this Board, is
entitled to know, with some precision, exactly what it is being
ordered to do or refrain from doing. Nothing in the Code gives
the Board authority to rescind a contract or a portion thereof
between two parties to a contract without the consent of the
parties. The Board was in error in including the rescission ab
initio paragraph in its order. This paragraph is so patently
unreasonable as to demand intervention by the Court and it
should be set aside.
Service Employees' International Union, Local No. 333 v.
Nipawin District Staff Nurses Association [1975] 1
S.C.R. 382, followed. Canadian Union of Public
Employees Local 963 v. New Brunswick Liquor Corpora
tion [1979] 2 S.C.R. 227, followed.
APPLICATIONS for judicial review.
COUNSEL:
W. D. Hamilton for applicant.
N. W. Sherstobitoff, Q.C. for respondent
Canada Labour Relations Board.
Gwen Gray for respondent Grain Services
Union (C.L.C.).
SOLICITORS:
Thompson, Dorfman, Sweatman, Winnipeg,
for applicant.
Sherstobitoff, Hrabinsky, Stromberg &
Young, Saskatoon, for respondent Canada
Labour Relations Board.
Kuziak & Gray, Regina, for respondent Grain
Services Union (C.L.C.).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside an order
of the Canada Labour Relations Board made on or
about March 6, 1981, on an application for review
of an earlier order made on or about January 13,
1981. There is also before the Court an application
for review of the decision leading to the earlier
order. As the order of March 6, 1981, supplants
the effective paragraphs of the earlier order, only
the later order needs to be considered.
The only grounds on which a review of the order
may be made under section 28 of the Federal
Court Act are those referred to in paragraph
28(1)(a), that is to say, that the Board "failed to
observe a principle of natural justice or otherwise
acted beyond or refused to exercise its jurisdic
tion". Review of orders of the Canada Labour
Relations Board on any of the other grounds men
tioned in subsection 28(1) is precluded by section
122 of the Canada Labour Code, R.S.C. 1970, c.
L-1.
The order in question resulted from complaints
made to the Canada Labour Relations Board by
the respondent Union on October 25, 1979, and
October 31, 1979, alleging that the applicant had
violated paragraph 184(1)(a) and other provisions
of the Canada Labour Code by its action, inter
alia, in convening, in the absence of a representa
tive of the Union and over its objection, a meeting
of 15 employees who, at that time, were members
of a bargaining unit of which the Union was the
certified bargaining agent, in presenting to such
employees a form of contract for their re-engage
ment in positions considered by the applicant to be
outside the scope of the bargaining unit and in
requiring the 15 employees, if they wanted the
positions, to sign management contracts not later
than October 12, 1979, subsequently extended to
October 26, 1979. By the time the complaints had
been heard and decided, all 15 employees had
signed management contracts. Some of the
employees also entered into contracts for the pur
chase by the applicant of equipment used by the
employees in a side operation which they had been
conducting and which was being taken over by the
applicant as part of its scheme for reorganizing its
system for the management of the operations of its
principal country elevators.
After a six-day hearing, the Board, in the course
of reasons covering some 20 pages, said:
The creation and filling of the so-called out-of-scope posi
tions of service centre managers cannot be compared, in our
view, to any normal progression of bargaining unit employees
"through the ranks" to managerial posts. The circumstances
surrounding these appointments lead the Board to conclude
that the respondent was motivated by the desire attributed to it
by the applicant in its submissions, "to get the elevator manag
ers out of the union". We find that this is a prohibited
motivation and that the respondent's implementation of its
re-organization plan during September and October of 1979
amounted to improper interference with the role of the appli
cant as representative of the elevator managers who are mem
bers of the bargaining unit. The respondent is thus in violation
of section 184(1)(a) of the Code which prohibits interference
by an employer in the representation of employees by a bar
gaining agent.
The Board's order, after reciting the proceedings
leading up to it, directed as follows:
(1) The Board declares the employer has contravened section
184(1)(a) of the Canada Labour Code (Part V—Industrial
Relations);
(2) The Board orders that the employer recognize the union as
exclusive bargaining agent for the fifteen individuals;
(3) The employer is ordered to rescind any action it has taken
in its attempt to remove the fifteen individuals from the
bargaining unit for which the union is the certified bargaining
agent;
(4) The Board declares that the fifteen individuals have been
bound by the most recent collective agreement between the
employer and bargaining agent;
(5) The Board orders that the employer recognize, acknowledge
and fulfill its obligations under the most recent collective
agreement with respect to these fifteen members of the bar
gaining unit, as if they were never considered by the employer
to be outside the bargaining unit;
(6) To further ensure fulfilment of the objectives of Part V of
the Canada Labour Code and to specifically counteract the
consequences of the employer's failure to comply with the Code
that are adverse to the fulfilment of those objectives, the Board
orders, in addition to other specified remedies, that all individu
al contracts of employment between the employer and the
fifteen individuals are rescinded ab initio insofar as they con
flict with the provisions of the collective agreement and terms
and conditions of employment of the employees in the bargain
ing unit for which the union is the exclusive bargaining agent;
except, for the sake of clarity, the Board's order does not
rescind nor is it intended to interfere with or affect any
provision of, or transaction as a consequence of, a management
contract between the employer and any of the fifteen individu
als with respect to the sale, transfer or other disposition of
ownership or any legal right or obligation with respect to
equipment.
The principal attack made on the order, and the
only one argued by counsel, was that the Union
was not the bargaining agent of the employees
with respect to the new positions, because they
were management positions outside the scope of
the bargaining unit, and that in failing to address
and decide whether in such positions the
employees were within the definition of
"employee" in subsection 107(1) of the Canada
Labour Code, the Board had failed to decide a
question that was essential to its jurisdiction to
find that the applicant had violated paragraph
184(1)(a) of the Code. These 15 persons, however,
were employees within the meaning of the Act and
were members of the bargaining unit represented
by the Union when the actions complained of and
found by the Board began. They continued to be
employees within the meaning of the Act at least
up to the time the contracts with the applicant
were signed. It is the conduct of the applicant in
this period that the Board held was in violation of
paragraph 184(1)(a). On these facts the question
whether that conduct constituted improper inter
ference with the representation of employees by
the Union was plainly one which the Board had
jurisdiction to decide and it seems to me to be
impossible to say that the Board did not have
jurisdiction to decide the question in the way it
did. In my opinion, it was not' essential to the
reaching of the Board's conclusion that the
employment status of the 15 individuals after sign
ing their management contracts be determined.
Having found that the applicant had violated
paragraph 184(1)(a) by interfering with the
Union's representation of the 15 individuals, the
Board had the powers conferred by section 189.
With respect to such a violation, the section
provides:
189.... the Board may, by order, require the party to
comply with that subsection or section and ...
... for the purpose of ensuring the fulfilment of the objectives
of this Part, the Board may, in respect of any failure to comply
with any provision to which this section applies and in addition
to or in lieu of any other order that the Board is authorized to
make under this section, by order, require an employer or a
trade union to do or refrain from doing any thing that it is
equitable to require the employer or trade union to do or
refrain from doing in order to remedy or counteract any
consequence of such failure to comply that is adverse to the
fulfilment of those objectives.
It appears to me that what the Board has done
by the first 5 paragraphs of its order is first to
declare the violation and then to require the
employer to rescind its action that made the 15
individuals service station managers and restore
them to jobs within the classification of country
elevator managers comprising the bargaining unit
in which they had been members. To do this, as it
seems to me, falls within the powers conferred on
the Board by section 189, and does not require
that any conclusion be reached as to whether as
service station managers the 15 individuals would
have been persons who perform management func
tions within the meaning of the definition of
employee in section 107 of the Canada Labour
Code. The applicant's submission accordingly fails.
A further submission was raised by the appli
cant in its memorandum and, though not argued,
was not abandoned. It was that the Board was
without jurisdiction to sever the equipment pur
chases from the management contracts. This is a
matter dealt with in paragraph 6 of the Board's
order. By that paragraph the Board purports to
rescind the management contracts ab initio "inso-
far as they conflict with the provisions of the
collective agreement and terms and conditions of
employment of the employees in the bargaining
unit for which the union is the exclusive bargain
ing agent" but specifically excepts "for the sake of
clarity" the sales of equipment to the applicant
made in conjunction with the signing of the service
station management contracts.
In its reasons the Board had dealt with the
question in the following passage:
As a preliminary to recognizing the union's authority the
Board orders the employer to do whatever is necessary to
rescind any action it may have taken in its attempt to remove
the station managers from the bargaining unit. This will
include the cancellation of the individual contracts of employ
ment with the station managers which are inconsistent with the
provisions of the collective agreement which are applicable to
them. Insofar as the agreements to purchase and sell applicator
and other equipment between the respondent and the individual
service managers is concerned, the Board is not aware of any
person who wishes us to interfere with those contracts and we
therefore consider that the agreements are not an issue between
the parties and will not interfere with them. No formal order
with specific direction will issue at this time. We will give the
employer an opportunity to act without the imperative of a
formal order. However, we retain jurisdiction to issue such an
order should it be necessary.
Several points with respect to paragraph 6 of the
order should be noted. On the face of it the
paragraph purports to rescind the management
contracts. There is, however, no power conferred
on the Board by section 189 to rescind a contract.
The power conferred is a power to require the
employer or union to do or refrain from doing
anything that it is equitable to require the employ
er or union to do or refrain from doing to remedy
or counteract any consequence of failure to comply
with the Act. It is, I think, possible to construe
paragraph 6 as an order requiring the applicant to
rescind the management contracts though that
seems to make the paragraph redundant as the
power of the Board to require the applicant to
rescind the management contracts and restore the
status quo ante had already been exercised in
paragraphs 3, 4 and 5. Paragraph 6 as a whole
therefore, if it is within the Board's powers, as I
think the Court is bound to interpret it, if possible,
appears to be unnecessary to accomplish what it
orders.
Second, paragraph 6 uses an expression that
seems to contemplate a partial or limited rescission
of the contracts for management services. It is not
difficult to understand a rescission or cancellation
by an authority of a part only of an order that has
been made by it or by some subordinate authority.
But a contract of service is by nature bilateral and,
as it seems to me, rescission must be either total or
not at all. The scope of the earlier paragraphs,
moreover, appear to make clear that what is
intended is complete rescission of the management
contracts and restoration of the employees to the
status quo ante.
Third, the order requiring the applicant to
rescind the management contracts, as it seems to
me, can take effect only in response to the consent
of each of the 15 individuals, as expressed through
their support of the Union as their bargaining
agent, or otherwise, to accept rescission of the
management contracts.
Finally, in my opinion, rescission can be equita
ble only on terms that both parties are restored as
far as possible to their previous positions. Where,
therefore, a part of the consideration for entering
into the management contract consisted of the
applicant's undertaking to purchase equipment,
the applicant would be entitled, as a term for
rescission of the management contract, to relief
from its undertaking to purchase the equipment
and to rescission of that contract as well.
Here what appears to me to be the effect of the
order as a whole is to require the applicant to
agree to rescission of the management contracts
but at the same time to make no order with respect
to the rights of the applicant to relief from its
undertakings to purchase equipment. The order
thus does not require the employer to rescind or to
agree to rescission of the equipment contracts. At
the same time the order does not expressly exclude
or interfere with any right the applicant may have
had to insist on rescission of the equipment con
tract as a term for rescission of the management
contract with the particular individual. As a
matter of interpretation, therefore, I am of the
opinion that in its reference to the rights of the
applicant with respect to the equipment contracts
arising upon rescission of the management con
tracts the Board, having made no order, has not
exceeded its jurisdiction.
I would dismiss the applications.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting in part): These reasons
relate to two section 28 applications. File A-775-
80 seeks to review and set aside a decision of the
respondent Board dated October 22, 1980. File
A-160-81 seeks to review and set aside a decision
of the respondent Board dated March 6, 1981.
Inasmuch as the March 6, 1981 decision amends
the October 22, 1980 decision pursuant to the
power conferred upon the Board to "review,
rescind, amend, alter or vary" any decision or
order made by it, pursuant to section 119 of the
Canada Labour Code, these reasons relate to the
attack on the October 22, 1980 decision as amend
ed by the March 6, 1981 decision.
During the relevant period (August 1, 1978 to
July 31, 1980), there was in force between the
respondent Union and the applicant, a collective
agreement covering all employees of the applicant
employed at its country elevators in Manitoba who
were classified as country elevator managers and
country elevator managers' assistants, excluding
casual helpers. By letter dated September 17,
1979, the applicant notified the respondent Union
of its plans for the reorganization of its manner of
conducting business at its 15 largest country eleva
tors in Manitoba. This reorganization involved the
creation of "Service Centres" and also the creation
of a new out-of-scope position known as "Service
Centre Manager". The applicant indicated that
those new positions would first be offered to the
elevator managers then employed at those 15 sta
tions. The said 15 elevator managers were all
within the scope of the collective agreement. Prior
to the proposed change, the elevator manager was
the senior employee at each of these stations. The
proposed reorganization contemplated that the
Service Centre Manager was to be employed under
a formal contract with the applicant. The func
tions of the Service Centre Manager were different
and broader in a number of ways than those of an
elevator manager. Despite objections raised by the
Union, the applicant held a meeting with subject
15 elevator managers on September 20, 1979,
where certain materials were presented to the
elevator managers including a draft management
contract. The elevator managers were advised that
they would have the first opportunity to apply for
these positions and that they would be required to
enter into a management contract with the com
pany. All 15 of the elevator managers did enter
into a management contract for the position of
Service Centre Manager. Clause 7 of the manage
ment contract reads as follows (see Case, Vol. II,
page 235):
7. The Company will furnish the Manager with the facilities
and equipment which, in its judgment, are required to carry out
the operations of the service centre. Where the Manager
already owns (or is purchasing) equipment which is deemed to
be necessary at the centre, a separate agreement will be
appended to this contract setting out the terms of the eventual
disposition of this equipment.
After entering into this contract, the Manager will not pur
chase for himself any equipment for use in service centre
operations.
Pursuant to said clause 7, those managers who
already owned or were purchasing equipment
deemed to be necessary for the operation of the
centre sold this equipment to the applicant. An
example of this type of separate agreement is to be
found at pages 231 and 234 inclusive, Case, Vol.
II.
On October 25, 1979, the Union .filed an unfair
labour practice complaint with the Board alleging
that the applicant had violated sections 136(1)(a),
184(1)(a), 184(3)(b), 184(3)(e) and 186 of the
Canada Labour Code.
After hearings on these charges, the Board
decided that the company had violated paragraph
184(1)(a) of the Canada Labour Code'. After
discussing the factual situation in detail, the Board
concluded as follows (see Case, Vol. V, page 705):
The creation and filling of the so-called out-of-scope posi
tions of service centre managers cannot be compared, in our
view, to any normal progression of bargaining unit employees
"through the ranks" to managerial posts. The circumstances
surrounding these appointments lead the Board to conclude
that the respondent was motivated by the desire attributed to it
by the applicant in its submissions, "to get the elevator manag
ers out of the union". We find that this is a prohibited
motivation and that the respondent's implementation of its
re-organization plan during September and October of 1979
amounted to improper interference with the role of the appli
cant as representative of the elevator managers who are mem
bers of the bargaining unit. The respondent is thus in violation
of section 184(1)(a) of the Code which prohibits interference
by an employer in the representation of employees by a bar
gaining agent.
The applicant alleges, initially, that the Board
exceeded its jurisdiction by refusing to address a
question essential to its jurisdiction, this question
being whether the Service Centre Managers in this
case were "employees" within the meaning of Part
V of the Code. In support of this submission, the
applicant relies on that portion of the Board's
reasons which reads as follows (see Case, Vol. V,
pages 706-707):
While the Board orders the recission (sic) of the individual
employment contracts as a step to ensure compliance with
clause 184(1)(a) of the Code it does not feel it is necessary to
' Said paragraph 184(1)(a) 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
administration of a trade union or the representation of
employees by a trade union; ...
render any finding as to whether or not the respondent was
successful in its attempt, through those employment contracts,
to remove the employees from the bargaining unit through their
having become, by its efforts, persons performing managerial
functions. In our view the steps taken by the respondent in
making the attempt to destroy the integrity of the bargaining
unit were themselves breaches of clause 184(1)(a) whether
successful or not. Having found that a violation of the statute
existed and by its orders providing a remedy for that violation
the Board finds it is unnecessary for it to determine whether or
not the employees became persons performing managerial
functions.
Applicant's submission was then developed in the
following manner: section 108 of the Code pre
scribes the application of Part V of the Code (the
Part devoted to Industrial Relations) as being,
inter alga, "in respect of employees who are
employed upon or in connection with the operation
of any federal work, undertaking or business".
Paragraph 184(1) (a), being also contained in Part
V of the Code, makes it an offence to participate
or interfere, inter alla, with the "representation of
employees by a trade union ...". Subsection
107(1) of the Code which defines "employee" for
the purposes of Part V specifically excludes, inter
alia, "a person who performs management func
tions ...". Subparagraphs 118(p)(i) and (ii)
empower the Board, in relation to any proceeding
before it, to decide, inter alla, any question as to
whether a person is an employee or any question as
to whether a person performs management func
tions. Accordingly, having regard to the above
statutory provisions, and, since the Board had the
power to decide whether subject Service Centre
Managers came within the Code definition of
"employee" or whether they were otherwise
excluded because they performed "management
functions", it is the applicant's submission that it
was necessary for the Board to answer that ques
tion as a condition precedent to the Board having
the jurisdictional basis to proceed and determine
whether or not an unfair labour practice had been
committed by Manitoba Pool and that since the
Board had not answered that question affirmative
ly, the condition precedent to its jurisdiction had
not been satisfied, thus depriving it of jurisdiction
to proceed. I do not agree with this submission.
The Union, in its complaint of unfair labour
practices against the applicant, alleged, inter alia,
a violation of paragraph 184(1)(a) of the Canada
Labour Code. Such a complaint is permitted and
contemplated by paragraph 187(1)(a) of the Code.
The Board had the duty, pursuant to section 188
to hear and determine the complaint. The Union
and the applicant employer were proper parties to
the investigation of the complaint. The general
subject-matter of the complaint, that is, the
alleged interference by the applicant in representa
tion of employees by a duly certified bargaining
agent union, is clearly encompassed by the terms
of the Code and more specifically by paragraph
184(1)(a) thereof. Furthermore, this subject-
matter is one in respect of which the Board is
permitted to enter upon an inquiry. I have thus
concluded that the Board, in this case, had "juris-
diction in the narrow sense of authority to enter
upon an inquiry" 2 or, in the language of Dickson
J. in the New Brunswick Liquor 3 case:
... the Board decided a matter which was plainly confided to
it, for it alone to decide within its jurisdiction.
In my view, the Board, having jurisdiction to
decide a matter plainly confided to it, was not
required, as a condition precedent to its jurisdic
tion to answer the question as to whether the 15
Service Centre Managers were "employees"
within the Code definitions enumerated supra. The
Board's finding that "... the steps taken by the
respondent in making the attempt to destroy the
integrity of the bargaining unit were themselves
breaches of clause 184(1)(a) whether successful or
not" was, in my opinion, reasonably open to it on
the evidence before it and in so concluding, the
Board committed no error of law or jurisdiction.
The applicant agrees that the 15 Service Centre
Managers had been elevator managers covered by
the Board's certification order and would continue
to have that status until the management contracts
were entered into. The management contracts in
question were finalized in October and November
of 1979. The activities of the company set out in
the Union's complaint occurred between Septem-
ber 17, 1979 and the time when the management
contracts were completed. It is these steps which
the Board found constituted interference with the
2 See Service Employees' International Union, Local No. 333
v. Nipawin District Staff Nurses Association [1975] 1 S.C.R.
382 at 389.
3 Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation [ 1979] 2 S.C.R. 227 at 237.
Union's representation of employees contrary to
paragraph 184(1)(a). During that time frame, it
could not possibly be argued that they were not
"employees" since any possible change in their
status would not occur until after the execution by
both parties of the management contract. Accord
ingly, and for the foregoing reasons, I would reject
the applicant's initial submission that the Board
exceeded its jurisdiction.
The applicant's further challenge to the Board's
decision is to the effect that the Board was without
jurisdiction to sever the equipment purchases from
the management contracts. In its reasons, after
finding that the applicant had violated the provi
sions of paragraph 184(1)(a) of the Code, the
Board then directed itself to the question of the
remedy in respect of this violation. At pages 705
and 706 of the Case, Vol. V, it stated:
All that remains is for the Board to fashion a remedy to
rectify the effects of this plain violation of a fundamental right
of a union to represent the employees for which it has been
certified by this Board. In this case the Board will use its
remedial authority contained in sections 189 and 121 of the
Code to restore to the union its exclusive bargaining and
representational rights which the respondent actively interfered
with.
The employer is ordered to recognize the applicant as the
lawful bargaining agent for the employees in the bargaining
unit established by the Board in 1973 including the fifteen,
so-called, station managers. The respondent will thus be
required, in any contract negotiations with respect to the
bargaining unit, to bargain the terms and conditions of employ
ment of all employees in the bargaining unit including the
fifteen station managers with the applicant.
As a preliminary to recognizing the union's authority the
Board orders the employer to do whatever is necessary to
rescind any action it may have taken in its attempt to remove
the station managers from the bargaining unit. This will
include the cancellation of the individual contracts of employ
ment with the station managers which are inconsistent with the
provisions of the collective agreement which are applicable to
them. Insofar as the agreements to purchase and sell applicator
and other equipment between the respondent and the individual
service managers is concerned, the Board is not aware of any
person who wishes us to interfere with those contracts and we
therefore consider that the agreements are not an issue between
the parties and will not interfere with them. No formal order
with specific direction will issue at this time. We will give the
employer an opportunity to act without the imperative of a
formal order. However, we retain jurisdiction to issue such an
order should it be necessary.
Subsequently, the Board's amended formal order
dated March 6, 1981 (the subject-matter of the
section 28 application in file A-160-81) was issued
and reads as follows (Case, pages 46 and 47):
WHEREAS the Canada Labour Relations Board received
from the Grain Services Union (C.L.C.), a complaint filed
pursuant to Section 187(1) of the Canada Labour Code (Part
V—Industrial Relations) alleging that Manitoba Pool Eleva
tors failed to comply with Sections 136, 184 and 186 of the
Code;
AND WHEREAS, the Board, following investigation of the
complaint and consideration of the written and oral submissions
of the parties, issued its decision, with Reasons, finding that the
employer had contravened Section 184(1)(a) of the Code;
AND WHEREAS, although the Board made no formal order at
that time, affording the employer the opportunity to act with
out the imperative of a formal order, it retained its jurisdiction
to issue such an order should it become necessary;
AND WHEREAS the Board's remedy is intended to restore the
union's right as exclusive bargaining agent for the bargaining
unit for which it was certified, including therein the fifteen
country elevator managers whose positions were unilaterally
redesigned by the employer as positions of service centre
managers outside the scope of the bargaining unit in a manner
contrary to section 184(1)(a) of the Code;
AND WHEREAS, the Board has determined in this case that,
in the exercise of its discretionary remedial authority, it does
not wish to interfere with transactions between the employer
and the fifteen individuals with respect to equipment because,
among other reasons, the commercial and proprietary interests
of unidentified third persons may be affected and neither the
complainant nor respondent requested the Board to take action
with respect to these transactions;
AND WHEREAS, at the request of the employer, and with the
concurrence of the union, the Board subsequently issued a
formal Order on January 13, 1981;
AND WHEREAS, the Canada Labour Relations Board has
received from Manitoba Pool Elevators, an application for
review pursuant to Section 119 of the Canada Labour Code
(Part V—Industrial Relations) seeking clarification of certain
terms of the Board's Order;
AND WHEREAS, the text of the Board's Order may not have
accurately reflected the Board's intention;
AND WHEREAS, the Board considers it appropriate in the
interests of clarity to substitute the following terms for those of
the Order of January 13, 1981;
NOW, THEREFORE:
(1) The Board declares the employer has contravened section
184(1)(a) of the Canada Labour Code (Part V—Industrial
Relations);
(2) The Board orders that the employer recognize the union as
exclusive bargaining agent for the fifteen individuals;
(3) The employer is ordered to rescind any action it has taken
in its attempt to remove the fifteen individuals from the
bargaining unit for which the union is the certified bargaining
agent;
(4) The Board declares that the fifteen individuals have been
bound by the most recent collective agreement between the
employer and bargaining agent;
(5) The Board orders that the employer recognize, acknowledge
and fulfill its obligations under the most recent collective
agreement with respect to these fifteen members of the bar
gaining unit, as if they were never considered by the employer
to be outside the bargaining unit;
(6) To further ensure fulfilment of the objectives of Part V of
the Canada Labour Code and to specifically counteract the
consequences of the employer's failure to comply with the Code
that are adverse to the fulfilment of those objectives, the Board
orders, in addition to other specified remedies, that all individu
al contracts of employment between the employer and the
fifteen individuals are rescinded ab initio insofar as they con
flict with the provisions of the collective agreement and terms
and conditions of employment of the employees in the bargain
ing unit for which the union is the exclusive bargaining agent;
except, for the sake of clarity, the Board's order does not
rescind nor is it intended to interfere with or affect any
provision of, or transaction as a consequence of, a management
contract between the employer and any of the fifteen individu
als with respect to the sale, transfer or other disposition of
ownership or any legal right or obligation with respect to
equipment.
In my view, the provisions of section 189 of the
Code clearly provide the necessary authority for
the Board to make the orders set forth in para
graphs 1 to 5 inclusive of the March 6, 1981 order
supra. The Board, in its reasons, also relied on
section 121 of the Code. However, section 121
deals with the general powers of the Board and is
merely authorization to do what is necessary or
incidental to the effective use of other powers
specifically given elsewhere in the Code to the
Board. In my view, it confers no powers additional
to those expressly given to the Board under section
189 4 .
4 The portions of said section 189 relevant to the facts of this
case read as follows:
189. Where under section 188, the Board determines that
a party to a complaint has failed to comply with ... section
... 184, ... the Board may, by order, require the party to
comply with that subsection or section ...
and, for the purpose of ensuring the fulfilment of the objec
tives of this Part, the Board may, in respect of any failure to
comply with any provision to which this section applies and
in addition to or in lieu of any other order that the Board is
authorized to make under this section, by order, require an
employer or a trade union to do or refrain from doing any
thing that it is equitable to require the employer or trade
union to do or refrain from doing in order to remedy or
counteract any consequence of such failure to comply that is
adverse to the fulfilment of those objectives.
I have thus concluded that the Board acted
within its jurisdiction in respect of paragraphs 1 to
5 inclusive of the March 6, 1981 order.
However, in my opinion, the authority of the
Board with respect to paragraph 6 of the order
requires closer examination.
In paragraph 6, the Board purports to rescind
subject 15 employment contracts ab initio in so far
as they conflict with the provisions of the collective
agreement and the terms and conditions of
employment of the employees in the bargaining
unit. However, paragraph 3 of the order rescinds
the employer's attempt to remove the 15
employees from the bargaining unit, paragraph 4
declares that they are bound by the collective
agreement and paragraph 5 orders the employer to
"recognize, acknowledge and fulfill" its obligations
under the collective agreement with respect to said
15 members as if they had never been considered
by the employer to be outside the bargaining unit.
Accordingly, my first concern with paragraph 6 of
the order is that the ab initio rescission order
therein appears to be repetitious and superfluous
in that it purports to grant relief already given by
paragraphs 3, 4 and 5 of the order.
My second concern is that the purported partial
rescission of the employment contracts between
the employer and employee is so imprecise and
ambiguous as to be meaningless. It purports to
rescind that portion of the employment contract
which conflicts with: (a) the terms of the collective
agreement, and (b) any other terms and conditions
of employment which may be in existence. A
person against whom an order is made by a Board
having extensive powers of enforcement such as
this Board is entitled to know, with some precision,
just exactly what it is being ordered to do or to
refrain from doing. In my view, it would be impos
sible for this applicant to know, with any degree of
certainty, exactly which provisions of the manage
ment contracts are rescinded and which remain in
full force and effect. Likewise, I fail to appreciate
how the Board could possibly enforce the terms of
paragraph 6 because of its ambiguity.
My third concern is that I can find nothing in
the language of sections 121, 189 or anywhere else
in the Code, which gives the Board authority to
rescind a contract or a portion thereof between two
parties to a contract without the consent of those
parties to that contract.
Having concluded for the foregoing reasons that
the Board was in error in enacting paragraph 6 of
its order of March 6, 1981, the remaining question
to be answered in respect of paragraph 6 is wheth
er the Board's interpretation of the powers given to
it under the Canada Labour Code was "so patently
unreasonable that its construction cannot be
rationally supported by the relevant legislation and
demands intervention by the court upon review" 5 .
Section 189 empowers the Board to order this
employer to do anything that it is equitable to
require it to do to remedy the complaint in ques
tion or to counteract any consequence of the
employer's failure to comply with paragraph
184(1)(a). In my view, for the three reasons set
forth supra, it would not be equitable to require
this employer to comply with paragraph 6 of sub
ject order. Paragraph 6 is, in my view, so patently
unreasonable as to demand intervention by the
Court upon review. I would therefore set aside
paragraph 6 of the Board's order of March 6,
1981. In all other respects, I would dismiss both
section 28 applications.
* * *
The following are the reasons for judgment
rendered in English by
LALANDE D.J.: I agree with the Chief Justice
that the applications should be dismissed and for
the reasons he has expressed except that I do not
share his concern concerning paragraph 6 of the
Board's order.
The Board "rescinded" the management con
tracts in order to accomplish a limited purpose
within its jurisdiction under the Canada Labour
Code. It did not unmake the contracts except to
that extent and strictly speaking the Board did not
rescind them but rather made them ineffective in
so far as the Labour Code was concerned.
5 Canadian Union of Public Employees Local 963 v. New
Brunswick Liquor Corporation, supra.
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.