A-111-74
Transair Limited (Applicant)
v.
Canadian Association of Industrial, Mechanical
and Allied Workers, Local # 3 (Respondent)
Court of Appeal, Jackett C.J., Tritschler and
Bastin D.JJ.—Winnipeg, October 31 and
November 13, 1974.
Judicial review—Union certified as bargaining agent—
Order covering ineligible persons as employees—Failure to
consider petition against certification—Order set aside—
Referred back to Canada Labour Relations Board—Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 107, 117, 122, 124,
125, 126, 127, rep. and sub. S.C. 1972, c. 18, s. 1—Canada
Labour Relations Board Regulations, ss. 10, 11, 12, 13, 16,
20, 27, 28, 29—Federal Court Act, ss. 28, 52(d)—Tariff
Board Act, R.S.C. 1970, c. T-1.
Under section 126 of the Canada Labour Code, an order
was made by the Canada Labour Relations Board, certifying
the respondent union as bargaining agent of the applicant's
employees comprising office and clerical employees. A sec
tion 28 application was made to set aside the order. Another
union, which had intervened in the proceedings, made no
application for relief against the Board's decision.
Held, the application is granted and the order is set aside,
and (per Jackett C.J. and Bastin D.J.) the matter is referred
back to the Board.
Per Jackett C.J.: The Board erred in law by including in
the bargaining unit certain company officers excluded by the
definition of "employee" in section 107 of the Canada
Labour Code. The Board should be directed to redefine the
unit, under section 126(b) of the Code.
Per Jackett C.J. and Bastin D.J.: The Board erred in
rejecting what purported to be a petition against certification
from a very substantial portion of the proposed bargaining
unit, and in failing to investigate the petition in accordance
with the principles of natural justice. It should re-investigate
and make a new determination concerning the question
arising as to a "majority" within section 126(c) of the
Canada Labour Code.
Per Tritschler DJ.: The applicant had adequate grounds
for the complaint that it did not have a fair hearing: the
Board failed to observe principles of natural justice; erred in
law in making its decision; and based its decision on errone
ous findings of fact, made in a capricious manner and
without regard to the material before it.
Metropolitan Life Company v. International Union of
Operating Engineers [1970] S.C.R. 425; Toronto News-
paper Guild v. Globe Printing Company [1953] 2 S.C.R.
18; Hoffman-La Roche Limited v. Delmar Chemical
Limited [1965] S.C.R. 575; and Board of Education v.
Rice [1911] A.C. 179, followed. R. v. Westminster
Assessment Committee Ex parte Grosvenor House (Park
Lane) Ltd. [1940] 4 All E.R. 132, agreed with.
APPLICATION for judicial review.
COUNSEL:
W. De Graves, Q.C., and M. E. J. Phelps for
applicant.
S. G. Soronow for respondent.
A. R. McGregor and J. J. Dudeck for
intervener.
SOLICITORS:
Christie, Turner, De Graves, MacKay,
Settle & Kennedy, Winnipeg, for applicant.
Nozick, Akman & Walsh, Winnipeg, for
respondent.
Gallagher, Chapman, Greenberg, McGregor
& Sheps, Winnipeg, for intervener.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application
to set aside an order of the Canada Labour
Relations Board, dated April 17, 1974, certify
ing the respondent as bargaining agent for a unit
of employees of Transair Limited comprising
certain office and clerical employees more par
ticularly defined in the Board's order.
The order attacked was made under section
126 of the Canada Labour Code, as amended
by chapter 18 of the Statutes of 1972. That
section reads as follows:
126. Where the Board
(a) has received from a trade union an application for
certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appro
priate for collective bargaining, and
(c) is satisfied that a majority of employees in the unit
wish to have the trade union represent them as their
bargaining agent,
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the bar
gaining unit.
With this section should be read also the follow
ing provisions of the Code:
107. (1) In this Part,
"employee" means any person employed by an employ
er ... but does not include a person who performs
management functions or is employed in a confidential
capacity in matters relating to industrial relations;
124. (1) A trade union seeking to be certified as the
bargaining agent for a unit that the trade union considers
constitutes a unit appropriate for collective bargaining
may ... apply to the Board for certification as the bargain
ing agent for the unit.
125. (1) Where a trade union applies under section 124
for certification as the bargaining agent for a unit that the
trade union considers appropriate for collective bargaining,
the Board shall determine the unit that, in the opinion of the
Board, is appropriate for collective bargaining.
(2) In determining whether a unit constitutes a unit that is
appropriate for collective bargaining, the Board may include
any employees in or exclude any employees from the unit
proposed by the trade union.
By virtue of section 117 of the Code, the
Board has power, inter cilia, to make regulations
of general application respecting "rules of
procedure for its hearings" and respecting, inter
alia,
(I) the determination of the form in which and the time as
of which evidence as to
(i) the membership of any employees in a trade union,
(ii) any objection by employees to the certification of a
trade union, or
(iii) any signification by employees that they no longer
wish to be represented by a trade union
shall be presented to the Board upon an application made
to it pursuant to section 124 ...;
(m) the circumstances in which evidence referred to in
paragraph (1) may be received by the Board as evidence
that any employees wish or do not wish to have a particu
lar trade union represent them as their bargaining agent,
including the circumstances in which the evidence so
received by the Board may not be made public by the
Board;'
We have not been referred to any regulation made under
this authority to make a regulation of general application
respecting the circumstances in which evidence authorized
pursuant to section 117(1) may be received by the Board as
evidence that any employees "wish or do not wish" to have
a particular union represent them.
We have been supplied with a copy of the
Canada Labour Relations Board Regulations
made by the Board on April 9, 1973. After
providing for a proceeding before the Board
being commenced by an "application in
writing" 2 and for such an application being
brought to the attention of persons affected,
including employees, these Regulations contain
provisions concerning interventions and hear
ings reading, in part, as follows:
10. (1) A person desiring to intervene in an application to
the Board shall
(b) file with the Board a reply to the application within
ten days after the receipt by him of a copy of the
application.
(2) If a person desiring to intervene in an application to
the Board fails to comply with subsection (1), he shall not,
without the consent of the Board, be permitted to make any
representations to the Board in relation to the application;
and the Board may dispose of the application without notice
to that person.
11. (1) A reply filed pursuant to section 10 shall
(a) admit or deny each of the statements made in the
application;
(b) contain a concise statement of the facts upon which
the person desiring to intervene intends to rely; and
(c) state whether or not a hearing before the Board is
requested for the purpose of making oral representations
or presenting evidence in respect of the issues raised in
the reply.
12. Where a reply is filed pursuant to section 10, the
Secretary shall give a copy of the reply to the applicant.
13. An applicant who receives a copy of a reply pursuant
to section 12 shall, within ten days after the receipt by him
of the reply, inform the Board in writing whether or not he
requests a hearing before the Board.
16. The Secretary may, in writing, require a party to
furnish the Board with additional information in such
manner and within such time as the Secretary may specify.
20. (1) The Chairman may, on behalf of the Board, fix
the time, date and place for a hearing in relation to an
application to the Board.
(2) Where the time, date and place for a hearing are fixed
by the Chairman, notice of the hearing shall be given by the
z Both such an application and a "reply" must be signed
by the person concerned or, if a union or corporation, by its
officers or other authorized persons (Regulation 6).
Secretary to all parties to the proceeding not less than ten
days before the date fixed for the hearing.
They also contain the following provision:
27. Unless otherwise stated in a decision of the Board,
the effective date of a decision of the Board is the date on
which the decision is issued by it.
The regulations have special provisions con
cerning applications for certification, of which,
for purposes of the present application, it will
be sufficient to refer to the following:
28. An application to the Board for certification under
section 124 of the Code shall be dated and shall contain the
following:
(a) the full name and address of the applicant;
(b) the full name and address of the employer affected by
the application;
(c) the general nature of the business carried on by the
employer;
(d) a description of and the location of the unit that the
applicant considers is appropriate for collective bargaining
and for which certification is sought;
(e) the approximate number of employees in the proposed
bargaining unit; ... .
29. (1) For the purposes of an application for certifica
tion, evidence that an employee is a member of a trade
union shall be in writing and consist of:
(a) evidence that the employee has, within the period
commencing on the first day of the third month preceding
the calendar month in which the application is made and
ending on the date of the application, joined the trade
union
(i) by signing an application for membership or other
document, acceptable to the Board, and
(ii) by paying on his own behalf at least two dollars as
the union admission fee or as one month's dues within
the aforementioned period; or
(b) evidence that the employee has been a member of
long standing in the trade union and has, on his own
behalf, paid not less than one month's dues in the amount
of at least two dollars within the period set out in para
graph (a). 3
(2) Where an employee has paid the amount referred to in
subsection (1) and that amount is less than the amount
required to be paid by the constitution of the union, the
Board may, if the amount paid is at least two dollars, accept
written evidence that the lesser amount has been authorized
in - accordance with the provisions of the union's
constitution.
The question whether this Regulation creates a situation
to which Metropolitan Life Company v. International Union
of Operating Engineers [1970] S.C.R. 425, does not apply is
not raised by this case.
(3) Where an employee objects to an application for
certification of a trade union or indicates to the Board that
he no longer wishes to be represented by the applicant, he
shall provide the Board with the following information in
writing, signed by him:
(a) his full name, address and occupation;
(b) the date of the application;
(c) the full name and address of the applicant trade union;
and
(cl) the full name and address of his employer.
(4) Evidence submitted to the Board pursuant to subsec
tion (1) or (2) shall be for the confidential use of the Board
and shall not be made public. 4
The application for certifications giving rise
to the present section 28 application bears date
July 19, 1973, and is expressed to be in respect
of a bargaining unit described as "All office
workers of Transair Limited & all related offi
cers, except managerial staff".
By a reply dated August 15, 1973, the appli
cant in this Court (hereinafter sometimes
referred to as "Transair") took the position that
the proposed bargaining unit was not appropri
ate for collective bargaining for the following
reasons:
(a) The statement "All office workers and all related
offices" is deemed to be inadequate, misleading, and not
specific as to intent.
(b) Certain office workers are currently members of
labour groups certified under existing contracts.
(c) Certain office workers are members of professional
societies and are employed in a professional capacity.
4 Whether such a provision is adequate to authorize a
tribunal to act upon evidence that one of the parties, against
whom it is to be used, has had no opportunity to answer is a
question that, in my view, does not require to be answered
in this case. There are ways of complying with Regulation
29(4) without departing from the ordinary rules of natural
justice. A hearing in camera, a vote under section 127, or an
opportunity to answer an adequate summary of the evidence
(omitting confidential details) are some of the ways that
may, at some time, have to be considered. It also need not
be considered at this time whether Regulation 29(4), what
ever it means, falls within the four corners of section 117(m)
of the Code.
5 There was an intervention in this matter by another
union but, in summarizing the proceedings, I propose to
omit unnecessary references to it as it has made no applica
tion to this Court for relief against the Board's decision.
(d) Certain office workers are employed in a confidential
capacity.
(e) Certain office workers are employed in security
services.
(f) The Intervenor also submits with regard to the juris
diction of the Union and the conditions for eligibility of
members as set forth in the Union's constitution, the
Union does not have sufficient members in good standing
to entitle it to apply to be certified as bargaining agent on
behalf of the employees in the proposed unit. In the
Intervenor's opinion, the proposed bargaining unit is not
appropriate for collective bargaining.
(g) The exception as outlined by the Applicant is deemed
by the Intervenor to be inadequate and should, in its
exclusions, include all managerial, all supervisory, and all
personnel exercising duties of this nature, regardless of
their job title.
It also objected to the application because "the
Applicant has not indicated the number and
percentage of employees in the proposed bar
gaining unit who are members in good stand
ing," and said: "The Intervenor is not aware of
any members in good standing in the Appli
cant's Union and cannot determine the percent
age of its employees, if any, who are all alleged
to have membership in this Union." The reply
filed by Transair also requested a "Hearing" by
the concluding part thereof, which reads:
The Intervenor states that a Hearing before the Board is
desired by the Intervenor in order to present evidence and
make further representations in the matter. At the Hearing,
evidence will be given to establish that the Applicant's
Union is not an organization oriented to the needs of the
proposed bargaining unit. Further, that the bargaining unit
proposed by the Applicant is not appropriate.
The Intervenor will, at the said Hearing, supply necessary
information in regard to its employees, the nature of their
duties, the nature and extent of the operations of the Inter-
venor, and any other information requested by the Board.
By a letter dated August 20, 1973, the Secre
tary to the Board wrote to Transair in part as
follows:
The reply of Transair Limited, dated August 15, 1973, to
this application has been received. The reply has stated that
a hearing is desired.
A copy of the reply is being transmitted to the applicant
who is being requested to state whether or not a hearing is
desired.
It is the policy of the Board to schedule a hearing in an
application only on the express request of one or more of
the parties concerned or, in certain cases, where the Board
itself considers a hearing necessary. Where a hearing is
requested and the request is granted or where the Board
itself directs a hearing, notice fixing the time and place of
hearing is given the parties concerned. Where a hearing is
not arranged, the Board will give decision on the basis of the
written representations of the parties and the report of the
officer appointed to investigate the application.
On the same day, a letter had been written on
behalf of the Board to the Union that had
applied for certification (hereinafter referred to
as "the Union") concerning the possibility of a
hearing and its solicitors replied by a letter
dated August 27, 1973, dealing also with Tran-
sair's reply, and reading in part as follows:
We have received from Mr. J. W. Behma your letter of
August 20th, 1973. We may advise that we have perused the
reply on behalf of the employer and our position is as
follows:
1. That the unit applied for is appropriate for collective
bargaining and by way of clarification we would indicate
that the application does not cover any employees pres
ently represented by another certified bargaining agent. It
is our position further that no employees within the unit
applied for are in a confidential capacity nor are any
employed in security services nor are any employees in
the unit members of professional societies employed in a
professional capacity.
2. The application evidences sufficient membership in
good standing to entitle the applicant union to be certified
as bargaining agent on behalf of the employees in the
proposed unit, without a Hearing before the Board.
In the event that the Board should order a Hearing with
respect to this application we would be pleased to attend for
the purpose of making oral representations or presenting
evidence or alternatively submit written representations as
is necessary or required by the Board.
We note the allegations of the employer contained in para
graph 4 (b) (c) (d) and (e) of its return. There is no indication
in the reply as to the particular persons that the company
alleges ought to be excluded and we trust that in the event a
hearing is ordered that we will receive particulars of the
company's allegations.
The solicitor for the Union wrote to the Board
again on September 5, 1973, by a letter reading
in part:
We would again mention that the application evidences
sufficient membership in good standing in the unit applied
for, which unit we suggest is an appropriate unit, to entitle
the applicant union to be certified as bargaining agent on
behalf of the employees in the said unit without a hearing
before the Board.
However, should the Board order a hearing with respect to
this application, we will of course be prepared to present
such evidence and make such oral representations or written
submissions as are necessary or required by the Board.
On October 15, 1973, A. E. Koppel, an inves
tigating officer, apparently acting on behalf of
the Board, wrote inter alia to the solicitors for
Transair and the solicitor for the Union as
follows:
It is a procedure of the Canada Labour Relations Board
that the Investigating Officer in applications for certifica
tion, shall attempt to clarify and reconcile the proposed
bargaining unit (as it is described in the application) with the
payroll classifications of the employees whose names and
job titles appear on the list of employees provided to him by
the employer.
As a result of my discussions with the representatives of
the applicant and the respondent, and upon examination of
the payroll classifications listed by the employer in its
nominal list of employees, it is my understanding that the
bargaining unit which the applicant trade union claims is
appropriate for collective bargaining and for which certifica
tion is desired is composed and located as follows:
A unit of employees of Transair Limited, company,
employed in Manitoba, Ontario, and North-West Territories,
who are classified as:
CONFIDENTIAL STENOGRAPHER, PERSONNEL ASSISTANT, PAY
ROLL CLERK, CONFIDENTIAL TYPIST, MAIL CLERK, SWITCH
BOARD OPERATOR, CLERK CREDIT ACCOUNTS, STATISTICS
CLERK, TYPIST REVENUE ACCOUNTING, CLERK REVENUE
ACCOUNTING, SPECIALIST JOB CO-ORDINATOR, TYPIST
ACCOUNTS PAYABLE, CLERK ACCOUNTS PAYABLE, FILE
CLERK ACCOUNTS PAYABLE, CLERK ACCOUNTS RECEIVABLE,
BUYER, STOCK RECORDS CLERK, PURCHASING CLERK-TYPIST
& RECORDS, GENERAL CLERK, SECRETARY TO EXECUTIVE
VICE-PRESIDENT, RECEPTIONIST & CONFIDENTIAL TYPIST, STE
NOGRAPHER TO CHARTER CO-ORDINATOR, SECRETARY &
ASSISTANT TO TARIFF MANAGER, SECRETARY TO MANAGER-
THUNDER BAY, TECHNICAL RECORDS STATISTICIAN, CONFI
DENTIAL CLERK-TYPIST, MAINTENANCE AFFAIRS, MAINTE
NANCE PLANNER, DRAFTSMAN.
I also understand that the application for certification is
not intended by the applicant to cover employees of the
company classified as:
PRESIDENT, SUPERVISOR OF ADMINISTRATIVE SERVICES,
TORONTO, AND SECRETARY TO THE PRESIDENT, SENIOR VICE-
PRESIDENT, SECRETARY TO SENIOR VICE-PRESIDENT, VICE-
PRESIDENT-EASTERN REGION, VICE-PRESIDENT ADMINISTRA
TION & COMPANY SECRETARY, DIRECTOR OF PUBLIC RELA
TIONS & ASSISTANT TO THE PRESIDENT, PUBLIC RELATIONS
MANAGER, DIRECTOR OF PERSONNEL, SUPERVISOR OF
EMPLOYMENT, SUPERVISOR OF PAYROLL, DIRECTOR OF
BUDGET CONTROL, SUPERVISOR OF PROPERTY & INSURANCE,
SUPERVISOR OF SAFETY & SECURITY, SUPERVISOR OF CLAIMS,
ADMINISTRATIVE ASSISTANT, BUILDING MAINTENANCE
REPAIRMAN, BUILDING MAINTENANCE HELPER, MANAGER OF
DISPATCH, DISPATCHER, COMPTROLLER, ASSISTANT COMP-
TROLLER, ACCOUNTING SUPERVISOR, MANAGER OF GENERAL
LEDGER, CREDIT MANAGER, ACCOUNTS SUPERVISOR CASH
CONTROL, SUPERVISOR OF STATISTICS, SUPERVISOR REVENUE
ACCOUNTING, DIRECTOR OF DATA PLANNING, SUPERVISOR OF
ACCOUNTS PAYABLE, DIRECTOR OF MATERIAL CONTROL,
SENIOR BUYER, MANAGER INVENTORY & STORES, MANAGER
PURCHASING, PURCHASING AGENT, SUPERVISOR OF INVEN
TORY RECORDS, STORES SUPERVISOR, CUSTOMS & TRANSPOR
TATION ASSISTANT, STOREKEEPER, ISSUER, EXECUTIVE VICE-
PRESIDENT, VICE-PRESIDENT SALES & MARKETING, DIRECTOR,
MANAGER, SPECIAL REPRESENTATIVE OTTAWA, DISTRICT REP
RESENTATIVE, MARKET RESEARCH OFFICER, CHARTER CO
ORDINATOR, SUPERVISOR RESERVATIONS, SUPERVISOR RESER
VATIONS, STATION MANAGER, SUPERVISOR OF TRAINING,
PLANNING ASSISTANT, PASSENGER SERVICE AGENT, STATION
SERVICE AGENT, SUPERVISOR, TRAINEE, VICE-PRESIDENT
OPERATIONS, DIRECTOR, CHIEF PILOT, GENERAL MANAGER
HELICOPTERS & AVIONICS, MANAGER, OFFICE MANAGER, SU
PERINTENDENT OF MAINTENANCE, RAMP MANAGER, SUPERVI
SOR, FOREMAN OF SHOPS, FOREMAN, CHIEF INSPECTOR,
FLIGHT ENGINEER GROUND INSTRUCTOR, TECHNICAL
LIBRARIAN, INSPECTOR, DEWLINE CO-ORDINATOR, STEWARD
ESS CREW SCHEDULER, CHIEF STEWARDESS, CAPT., FIRST
OFFICER, CHECK PILOT, INSTRUCTOR, SUPERVISOR CREW
ROUTING, LINK MILES TRAINER INSTRUCTOR, ASSISTANT
CREW SCHEDULER, AZTEC PILOT, UNLICENSED MECHANIC,
LICENSED MECHANIC, LEADHAND LICENSED MECHANIC, COM
MISSARY TRUCK DRIVER, MOTOR GROUND MECHANIC, GRADE
3, LEADHAND ENGINEER, AIRCRAFT CLEANER, JANITOR,
LEARNER, INSTRUCTOR, LINE ENGINEER, LEADHAND ENGI
NEER, RAHP ATTENDANT, LEADHAND MECHANIC, TOOL CRIB
ATTENDANT, BUILDING MAINTENANCE HELPER, COMMISSARY
ATTENDANT, APPRENTICE ENGINEER, ENGINEER, STOREKEEP
ER, PILOT/ENGINEER, RADIO OPERATOR/ CREWMAN, NIGHT
WATCHMAN, STEWARDESS, CASUAL LABOUR, LOADER, RESER
VATIONS AGENT, HELPER.
It is my further understanding that the respondent com
pany is objecting to all of the classifications listed, being
included in a proposed bargaining unit.
Full information regarding these contested classifications
is included in my report to the Canada Labour Relations
Board.
In the event, that my understanding of the situation as set
out above, does not coincide with the understanding of the
parties affected, I request that the party which finds itself
unable to agree with the foregoing should communicate with
me by return mail or telegram.
On October 22, 1973, the solicitors for Tran-
sair wrote to Mr. Koppel as follows:
Further to our several conversations and your letter of the
15th of October, 1973 this letter is to confirm the issues we,
as counsel for Transair Limited, wish to confirm:
1. The application for certification was submitted by
C.C.U. for "all office workers of Transair Limited and all
related offices except managerial staff". Taking it at its
plain meaning "all office workers" would comprise
approximately 203 office workers who are covered by
this broad categorization. This position was earlier stated
in Transair Limited's reply dated the 15th of August,
1973.
2. We would refer you again to the C.C.U. application,
and more particularly paragraphs 8 and 9 thereof, the
answers to which with respect are incorrect because:
a) There are already existing "trade unions claiming to
represent for collective bargaining purposes in or all of
the employees affected by this application".
b) That there is already an existing collective
agreement.
c) Transair Limited's letter of September 7th, 1973 in
response to your letter of August 1st, 1973 explained
and underlined inter alia that there were already 134
"office workers" already represented by bargaining
units and there was in existence a collective bargaining
agreement affecting these employees.
3. Transair Limited's position is that prima facie the
application for certification must be rejected.
4. The "unit of employees of Transair Limited" described
in page 1 of your letter of the 15th of October, 1973 does
in our respectful view:
a) Represent a substantial change in the application and
cannot and should not be proceeded with.
b) These employees are all employed in management
functions involving company confidential matters relat
ing inter alia to industrial relations.
c) This position has always been maintained by Tran-
sair Limited and we would refer you to its letter of the
15th of August, 1973.
d) The Board has already adjudicated in this matter and
we would respectfully refer you to the certificate of the
23rd of June, 1958 granted to the International Associa
tion of Machinists and Aerospace Workers where it
specifically excludes "head office administration
employees ...".
For these reasons we must respectfully decline completing
the information forms or circulars you earlier requested
being completed by Transair Limited.
We repeat that Transair Limited is prepared to allow you to
visit the administration offices to conduct your own exami
nation at any reasonable time.
On November 1, 1973, the Board received a
document signed by a union official and wit
nessed by Mr. Koppel that bears date August
15, 1973, and reads as follows:
CANADA LABOUR RELATIONS BOARD
IN THE MATTER OF an application for certification of CANADI-
AN ASSOCIATION OF INDUSTRIAL, MECHANICAL AND ALLIED
WORKERS, LOCAL #3, 272 MAIN STREET, WINNIPEG, MANITO-
BA. R3C 1A9.
(name of trade union)
as bargaining agent for a unit of employees of TRANSAIR
LIMITED, WINNIPEG INTERNATIONAL AIRPORT, ST. JAMES,
MANITOBA.
(name of employer)
comprising ALL OFFICE WORKERS OF TRANSAIR LIMITED & ALL
RELATED OFFICES, EXCEPT MANAGERIAL STAFF.
(description of bargaining unit)
I, JOSEPH W. BEHMA STAFF REPRESENTATIVE [signed]
C.A.I.M.A.W.
(name of union officer and office held)
of the applicant union, do hereby report and certify to the
Canada Labour Relations Board as follows:
1. That I have custody of and am fully familiar with the
membership records of the aforesaid union;
2. That I have as of this date produced to Mr. A. B. KOPPEL,
investigating officer of the Canada Labour Relations Board,
for the purposes of the Board, the full and complete mem
bership records of the said union as affecting all employees
in the above described bargaining unit whom the union
claims to be members of the union, including:
(a) a complete and accurate record of applications for
union membership, and of union dues and application fees
paid, by such employees for or within the period com
mencing on the first day of the third month preceding the
calendar month in which the application is made and
ending upon the date of the application; and
(b) the production of all requests for or notices of resig
nations or withdrawals from membership in the union
received by the union or any of its officers from any such
employees within the period commencing on the first day
of the third month preceding the calendar month in which
the application is made and ending upon the date of the
application.
3. That all union dues and application fees recorded as
received from or paid by any such employees for or within
the period commencing on the first day of the third month
preceding the calendar month in which the application is
made and ending upon the date of the application, as shown
on the union records, have been actually made and paid to
the union by the said person on his own behalf or on his
order; and that all such employees have been accepted as
members in good standing of this trade union prior to or as
of the date of the subject application for certification;
4. That, where the documentary evidence consists of signed
applications for membership and/or receipts or other per
sonal acknowledgments of payment on account of dues or
initiation fees, I have personal knowledge (or—I have made
diligent inquiries) concerning the collection of such dues or
fees, and on the basis - of such knowledge (inquiries), I have
satisfied myself that the persons signing cards as applicants
for membership, and the persons whose names appear on
receipts as payees, have actually paid on their ,own behalf
the membership dues or initiation fees attested to by the
documents as having been received from them.
5. That the records of the union aforesaid as produced to
the investigating officer are complete, up to date and accu
rate in every respect; and that the information which has
been furnished to the investigating officer by me on behalf
of the union in the course of his investigation is true and
correct to the best of my knowledge and belief.
It would further appear that, on November 1,
1973, the Board received a letter from the
solicitors for Transair bearing date September 7,
1973, addressed to Mr. Koppel and reading as
follows:
Thank you for your letter file C-90 dated August 1, 1973.
Attached are three copies of a master payroll list of all
employees of the Company as at July 19, 1973.
One casual employee is listed on page 4 of the master
payroll list and had in the 30 days previous to July 19, 1973
worked 15 hours. Other casual employees are listed on page
21 who, as permanent employees, would be eligible as
members of other bargaining units.
In answer to paragraph four of your letter and as stated in
paragraph 4(a) of the reply submitted by Transair as the
intervenor to the Secretary, Canadian Labour Relations
Board, the statement "All office workers and all related
offices" is deemed to be inadequate, misleading and not
specific to intent. One hundred and thirty-four employees
who can be included in the applicant's terminology of
"office workers" are already represented by bargaining
units. It is the opinion of the Company that there are no
employees entitled to comprise the proposed bargaining
unit.
The attached copies of the master list of employees of the
Company are divided into three major divisions—Adminis-
tration, Marketing and Operations.
Within each of the major divisions there is representation by
bargaining units—
Administration—International Association of Machinists
and Aerospace Workers, Canadian Air
line Dispatchers Association.
Marketing —International Association of Machinists
and Aerospace Workers.
Operations —Canadian Airline Pilots Association,
International Association of Machinists
and Aerospace Workers, Canadian Air
line Flight Attendants Association.
In the Administrative division there are 112 employees, 38
hold supervisory or management positions, 48 hold positions
which assist in the administrative function and are con
sidered to be confidential and privileged, 25 are members of
bargaining units, 1 is a part time employee.
In the Marketing division there are 160 employees, 35 hold
supervisory or management positions, 11 hold positions
which assist in the administrative function and are con
sidered to be confidential and privileged, 114 are members
of bargaining units.
In the Operations division there are 387 employees, 38 hold
supervisory or management positions, 9 hold positions
which assist in the administrative function and are con
sidered to be confidential and privileged, 331 are members
of other bargaining units and engaged in the flying function,
9 are part-time employees.
Looking at the total operation all divisions combined, it will
be seen that 111 employees are management of which
approximately 3 hold dormant union status, 203 are engaged
in office occupations of which 134 are represented by
bargaining units, 336 are flying and ground operational
personnel.
To simplify the situation with regard to the bargaining units
at Transair Limited, the Canadian Airline Pilots Association
and the Canadian Airline Flight Attendants Association
represents the flying activities, the Canadian Airline Dis
patchers Association and the International Association of
Machinists and Aerospace Workers represents ground
activities.
It is perhaps pertinent to draw your attention to the certifi
cation of the International Association of Machinists and
Aerospace Workers dated 23rd day of June 1958 by the
Canada Labour Relations Board. One of the exclusions
listed in the certification is "Head Office Administration
Employees".
Copies of all certifications are attached.
In the job description or classification of an employee on
the attached listings certain specific terms are used which
denotes that the employee is a professional, also the word
"Assistant" should be read to be equivalent to Supervisor.
On the same day, it appears that the Board
received a letter bearing date October 16, 1973,
from two persons describing themselves as
being of the "Personnel Department" and read
ing as follows:
We, the undersigned, would like to withdraw our names
from the list held by the Canadian Association of Industrial,
Mechanical and Allied Workers, Local No. 3.
The reason for the withdrawal is that at the time of
signing we were under the impression that if a particular job
classification was excluded, the person doing that job would
automatically be excluded. We have since learned that this
is not necessarily the case and as we do not want to be in a
position whereby our jobs are excluded and we are members
of a union, we would like our request to be complied with.
On November 26, 1973, the Board received a
further letter from the solicitors for the Union
concerning particulars of Transair's allegations
in its reply and, on November 27, 1973, the
Board wrote to Transair as follows:
The Board has taken note of your letter of October 22,
1973 to Mr. A. E. Koppel, Industrial Relations Officer
relating to the above mentioned application, and particularly
of page two (2), item four (4) of your letter, wherein you say
(inter alia):
For these reasons we must respectfully decline complet
ing the information forms or circulars you earlier request
ed being completed by Transair Limited.
The questionnaires you have declined to have your client
complete are essential to the proper examination of particu
lars pertinent to the question of excluding certain persons or
classifications from a collective bargaining unit. Therefore
your client is hereby required to submit therewith completed
questionnaires as previously provided by Mr. Koppel. An
earlier response will be expected.
Also please take notice that the Board will hear the parties
concerned in the above mentioned application on December
13, 1973 at 2:00 p.m. central standard time in room 400,
Federal Grain Commission Building, 303 Main Street, Win-
nipeg, Manitoba and continuing on the following day,
December 14 if necessary. Will you please inform the
undersigned as soon as possible of the names of those who
will represent Transair Limited at the hearing before the
Board.
While there are references in this material and
in the Board's subsequent reasons for judgment
to a "report" made or to be made by Mr.
Koppel to the Board, no copy of such a report is
among the papers put before this Court pursu
ant to Rule 1402, which reads, in part, as
follows:
Rule 1402. (3) Unless the Court otherwise directs, of its own
motion or upon the application of an interested person, the
Deputy Attorney General of Canada or counsel specially
appointed to apply on behalf of the tribunal, the tribunal
shall, forthwith after receipt of the section 28 originating
notice, either
(a) send to the Registry of the Court all the material in the
case as defined by paragraph (1), or, if some part thereof
is not in its possession or control, the part thereof that is
in its possession or control together with a statement of
the part of the case not in its possession or control, or
(b) prepare copies of the material referred to in subpara-
graph (a) that is in its possession or control, except the
physical exhibits, duly arranged in sets and duly certified
by an appropriate officer to be correct, and send 4 copies
of each set to the Registry of the Court together with the
physical exhibits if any and a statement of the part of the
case not in its possession or control, and send one copy of
the copies and such statement to each of the interested
persons.
Furthermore, it would seem clear from the argu
ment in this Court that neither that report nor
any indication as to the "facts" reported there
by was communicated to Transair either before
or during the Board's hearing concerning the
application for certification.
Another fact to be noted is that there does not
appear to have been any explicit notice to the
parties that the Board's hearing was to be in any
way limited to some only of the questions raised
by Transair's "reply" to the application by the
Union for certification.
At the opening of the Board's hearing of the
Union's application for certification, after intro
ductory remarks, the Chairman made the fol
lowing preliminary remarks:
MR. CHAIRMAN: Thank you. As preliminary remarks in this
file, the following should be recorded:
1. This is an application for certification. The name of the
Applicant is Canadian Association of Industrial, Mechani
cal and Allied Workers, Local No. 3.
2. The Applicant proposes as an appropriate bargaining
unit, which it did originally describe as follows:
all office workers of Transair Ltd., and related offices
except managerial staff.
Our investigating officer reports to us that this application
purports to cover the following classifications:
Confidential stenographer, Personnel Assistant, Payroll
Clerk, Confidential Typist, Mail Clerk, Switchboard
Operator, Clerk Credit Accounts, Statistics Clerk,
Typist Revenue Accounting, Clerk Revenue Account
ing, Specialist Job Co-ordinator, Typist Accounts Pay
able, Clerk Accounts Payable, File Clerk Accounts Pay
able, Clerk Accounts Receivable, Buyer, Stock Records
Clerk, Purchasing Clerk-Typist & Records, General
Clerk, Secretary to Executive Vice-President, Recep
tionist & Confidential Typist, Stenographer to Charter-
Co-ordinator, Secretary & Assistant to Tariff Manager,
Secretary to Manager—Thunder Bay, Technical
Records Statistician, Confidential Clerk-Typist, Mainte
nance Affairs, Maintenance Planner, and Draftsman.
3. The employer's name and address are:
Transair Limited.
The address is International Airport, Winnipeg, Manitoba.
The nature and the employer's business is air transporta
tion of passengers and cargo on Provincial, Interprovincial
and International basis.
4. The position of the employer, vis-Ã -vis the application,
is as follows, or could be defined as follows: the employer
takes the position that the employees concerned exercise
managerial functions and are employed in a confidential
capacity in matters relating to industrial relations.
5. Our reports indicate that the number of employees in
the proposed bargaining unit is defined and described by
the Applicant as 66.
6. The Board informs the parties that on the basis of the
proposed bargaining unit, the Applicant has established
the absolute majority character.
7. There is an intervener, The International Association
of Machinists and Aerospace Workers, and the basis of
the interventions or grounds for it are that the I.A.M. is
the certified bargaining agent for a unit of employees that
can be described as follows:
traffic and/or reservations clerk and agents.
We understand the the Respondent has deposited with the
Board and with the interested parties questionnaires deal
ing with management functions and confidentiality. The
Board also wishes to indicate to the parties that in circum
stances like this one the Respondent, having raised the
grounds that it did raise, that normally we ask the
Respondent to make its case and we always at the end
reserve time—I shouldn't say at the end, but somewhere
along the line—reserve time to deal with the intervener's
position, but at this stage we shall entertain open state
ments by all the parties.
Counsel for the Union then made an opening
statement in which he, inter alia, indicated that
the unit proposed by the Union should include,
in addition to those positions mentioned by the
Chairman as having been reported by the inves
tigating officer, the position of "Personnel
Records Clerk" and also those of "Secretary to
the Senior Vice-President", the "Technical
Librarian", the "Assistant Crew Scheduler" and
the "Stewardess Crew Scheduler", and the
Chairman indicated that such additions would
not "affect the majority character of the Appli
cant". Counsel for Transair then made a state
ment reading:
May it please you, Mr. Chairman, I think that the position
taken by my learned friend is, with respect, somewhat
simplistic. I don't think that the issue is simply one of
whether these various employees do exercise functions of
management or functions of a confidential nature with
respect to labour relations. The Board has a larger duty and
larger function and that is to determine whether this is an
appropriate unit. Dealing with this particular majority, the
Applicant has applied to represent a bargaining unit which,
if it is to be certified, may be representing the same category
of employees as being presently represented by the I.A.M.,
who has or which has, in fact, intervened. But the basis of
the intervention is, interestingly enough, set forth in their
notice of intervention. Perhaps it is wise to alert the Board
to what the issue that I.A.M. feels it is. I.A.M. state that in
its answer in response to the application, that it denies
statements made in section 4 and 5 of the application. 4 and
5, as you know, Mr. Chairman, relate to (a) whether all
office workers of Transair Limited do, in fact, represent a
bargaining unit which is appropriate for collective bargain
ing. That position I.A.M. maintains, is not true. It also
maintains that the number of employees in the bargaining
unit comprise some 60 members.
I think that you can understand the confusion and the
concern of both I.A.M. and the employer in this situation
because the original application made—and whether this
was in the nature of a fishing expedition or was in the nature
of using the Canada Labour Relations Board to determine
what office workers there were and what categories they
occupied, but this simply says all office workers of Transair
Limited and all related offices except managerial staff. The
Applicant has shifted its position since the time of the
application on several occasions and now we have before
the Board here today a further shifting of opinion and
further shifting of the application to include five categories
that we have never considered and this is the first notice
that we have had that we are to be concerned now with the
Technical Librarian, Assistant Crew Scheduler, Stewardess
Crew Scheduler and the Secretary to the Vice-President.
The Board will recall that it has granted certification to the
I.A.M. earlier. The first of which that is germane to this
particular issue, was June 3, 1958 where it was stated that
all head office administration employees were to be exclud
ed. We propose to lead evidence as to the history of that
particular exclusion.
Then there was a subsequent certificate granted to the
I.A.M. That is dated the 14th of April, 1967, where the
certificate carefully delineates and describes the employees.
They do not include, again, head office administration. Now,
with the utmost respect to the Applicant, it would seem that
it is attempting to obtain certification in an area which, if
certification was to be granted, and we submit that no
certification could be granted, but if it is to be granted it
would seem that the logical person would be the existing
union which is already representing employees of Transair
who occupy clerical capacities—simply clerical functions—
because it has to be remembered that we are now dealing
with already four unions, the Pilots, the Flight attendants,
the Dispatchers, I.A.M. in two capacities, one of which is in
ground maintenance,—is that right, Mr. Sinnott—and the
other is in line of traffic.
THE CHAIRMAN: Would you repeat those, ground mainte
nance—
MR. De GRAVES: Ground maintenance and traffic, traffic
and administration of traffic, so, in effect, we have five
unions although one union occupies two capacities and two
roles.
Now, if the Board comes to the conclusion that the
employer's submission is not tenable, that is, that the people
for whom certification is sought do not, in fact, occupy
management positions nor are they engaged in a confidential
capacity in respect of industrial relations, then the Board is
faced with the decision that you have to determine that they
are, in effect, doing clerical functions of a nature, descrip
tion and type which employees are doing now for Transair
that already certified—already certified as a bargaining unit
and represented by I.A.M. If that is the situation, then the
Applicant does not have a majority of a bargaining unit
which is appropriate for collective bargaining. So, faced
with that particular problem, I am submitting, Mr. Chairman,
although I recognize what you have earlier said about what
the Respondent should meet, I don't think it is up to the
company to try to sort out for the Applicant or for I.A.M. as
to who, in fact, has the majority because there is no differ
ence, if the Applicant's submission is to be sustained, in the
character or function of what the Applicant union is propos
ing to do and what the I.A.M. is presently doing. My
submission is that on that ground, both the Applicant union
and I.A.M. should lead, because the Respondent has to be,
that is, the company must be—in fairness to the company—
at least persuaded as to what sort of case it is to meet. I say
this with respect to your earlier suggestion, Mr. Chairman,
that the Respondent was to lead evidence and you felt a
prima facie case is made out. Our submission is that it has
not been made out.
Finally, getting to the final merits of it, Mr. Chairman, it is
my, that is, the company's submission that all of these
functions as described in the questionnaire either occupy
management functions, or directly related to management
functions, and they are all interstitially related so that the
entire group should be excluded as the Board has earlier
done and finally, further, I should say, that they do, that
these employees do occupy positions of confidence as they
related to industrial relations.
MR. BROWN: I am sorry. I missed that.
MR. De GRAVES: The two aspects, management functions,
Mr. Brown, and the second of which these employees are, in
fact, occupying positions of confidence as they relate to
industrial relations.
MR. BROWN: Relate.
MR. DE GRAVES: And I have in mind, of course, the
definition of "employees" under the Act. And then, in any
event,—in any event, the determination must be made as to
whether even if they do somehow incidentally do not
occupy these two positions, as to whether it is a unit
appropriate for bargaining.
Mr. Chairman, with the utmost respect, as I indicated
earlier, to the suggestion that the Respondent proceed first, I
think that the Applicant union and the I.A.M. should per
haps proceed with their case and we are prepared to not
only lead evidence but to answer their respective positions
but I think, in summation, that the company should after all
be persuaded as to what sort of case it has to meet and in
this situation I don't think that we can.
After other preliminary matters (relating chiefly
to the character of the positions held by the
various members of the proposed unit from the
point of view of "management" or "confidential
... in matters relating to industrial relations")
had been dealt with in what the Chairman
referred to as "the informative stage", the
Chairman indicated that, as it was the first time
that the Union had been before the Board, the
Board desired the Union "to establish its sta
tus" and that it could do so by introducing its
constitution and other relevant documents "by a
witness". For that purpose, counsel for the
Union called one, Pat McEvoy, as a witness.
After his evidence in chief, counsel for Transair
cross-examined him and the interchanges repre
sented by the transcript of the first part of that
cross-examination give rise to one of the
grounds for this section 28 application. That
part of the transcript reads as follows:
CROSS-EXAMINATION BY MR. De GRAVES:
Q. Mr. McEvoy, did you have anything to do with the
organization of the preliminary steps involved?
A. Yes, I did.
Q. Were you in attendance at the time of the initial
meetings?
A. I was.
Q. And would you mind telling me and the Board as to
what numbers that you did, in fact, obtain?
MR. BROWN: A little louder, if you please.
MR. De GRAVES: I am Sorry.
THE WITNESS: I can't reveal that.
THE CHAIRMAN: I want to get the full question.
BY MR. De GRAVES:
Q. Could you let me and the Board know as to the
numbers you had at the actual signing of this particular
alleged unit?
A. I think it is confidential.
MR. SORONOW: I object.
THE CHAIRMAN: The question is not allowed.
BY MR. De GRAVES:
Q. How many meetings did you have, did the Applicant
have?
A. During the organization drive, we have two or three
meetings.
Q. And when did they take plaçe?
A. Well, I don't know if—
MR. SORONOW: Mr. Chairman, I question the relevance of
the present line of questioning. I don't know that out of all
the issues we have before us this is an area upon which we
need enter upon or ought to be entering upon.
THE CHAIRMAN: That is possible. I will ask you to establish
the relevance of this questioning.
MR. De GRAVES: It was introduced in evidence, Mr. Chair
man and members of the Board, the Constitution.
MR. CHAIRMAN: M-hmm.
MR. De GRAVES: And in view of that introduction, I think I
am entitled to ask questions concerning it, especially as it
pertains to the membership in respect of the number of
employees who joined with the Applicant or who joined in
the application, which I think is relevant to the issue. And
how many of these employees have maintained their mem
bership in this particular union pending application for
certification.
THE CHAIRMAN: I will just allow* all these questions on
one basis or two bases. The first basis is it would be
confidential information regarding membership status, and
the second reason that I would disallow these questions is
that it is already information which is available to the Board.
It is part and parcel of our investigation to ascertain many of
these things you wish to raise at this stage. I shall allow any
questions, however, directed at this Witness that would
establish that they have not the proper characteristic of a
union such as defined under the Labour Code.
MR. De GRAVES: I recognize your ruling, Mr. Chairman,
and, recognizing it, I wish to complete the record and make
the company's position abundantly clear. It is my respectful
submission that the questions that I have put to this Witness
are, indeed, admissible and relevant to the issue. I think the
question of membership, of course, is always germane to
whether the Applicant union has, in fact, established the
majority membership as is required. I recognize that the
Board has already gone into its investigation but that does
not preclude the company from challenging that. In any
event—
THE CHAIRMAN: The challenge will serve one purpose. If
the challenge you are raising now inclined the Board to
reverify its investigation, we will do so, and then it serves
that purpose but, as to the questions, themselves, we won't
allow you in that respect.
MR. De GRAVES: To once more make the company's posi
tion clear, this Witness then is only being called to establish
the status of the union and that is going to be the limitation
of the examination and cross-examination.
THE CHAIRMAN: That is correct. Any further questions?
The hearing proceeded without further relevant
reference to the question of whether a majority
of the proposed unit were members of the
Union and, after an adjournment, was conclud
ed on January 24, 1974.
From the material put before this Court by
the Board pursuant to the Rules of Court, there
* It is common ground that "just allow" should read
"disallow".
is indication that, on April 17, 1974, the Board
received a telex from one Dorothy Angus,
reading:
PETITION RE TRANSAIR OFFICE EMPLOYEE ARRIVING TO-DAY
FLIGHT 210 ON AIR CANADA EXPRESS WAYBILL NUMBER
286695
and that, on April 24, 1974, the Secretary to the
Board wrote to Mrs. Angus a letter reading:
The identical submissions which you made under cover of
your letters of April 16 and 17, 1974, which you sent by
mail and air express, respectively, are not receivable
because they are untimely.
Accordingly, all the papers you submitted are returned
herewith.
No copy of the petition was put before this
Court by the Board but a copy was added,
without prejudice to its relevance, to the case in
this Court by an order of this Court. That peti
tion purports to be signed by 36 members of the
proposed unit and reads:
We, the Undersigned, being Clerical Staff of
Transair Limited
Winnipeg, Manitoba
Do hereby request that the current Certification Proceed
ings, for a Bargaining Unit, cease forthwith.
We, the undersigned, being a majority of the said Clerical
Staff Employees, do hereby nominate:
To present this petition to the parties representing the
Bargaining Unit, the Canada Labour Board and Transair
Limited.
By letters bearing date April 19, 1974, the
Board advised each of the parties as follows:
Please take notice that the Board, following investigation
of this application and consideration of the submissions of
the parties concerned, has granted the application and has
issued reasons for judgement, a copy of which is enclosed.
A copy of the formal Order of Certification issued by the
Board is enclosed.
In order to comply with the language requirements copies
of the reasons for judgement and the Order of Certification
in French will be transmitted to you in due course.
The order in question is signed by the Chairman
of the Board and reads as follows:
WHEREAS an application for certification as bargaining
agent for a unit of employees of Transair Limited, has been
received from the Applicant by the Canada Labour Rela-
tions Board under Part V of the Canada Labour Code
(Industrial Relations);
AND WHEREAS, following investigation of the application
and consideration of the submissions of the parties con
cerned, the Board:
(a) Found the Applicant to be a trade union within the
meaning of the said Code;
(b) Found the persons in the proposed bargaining unit,
with certain exceptions, to be employees within the mean
ing of the Code;
(c) Determined the unit described hereunder to be appro
priate for collective bargaining; and
(d) Is satisfied that a majority of the employees of the
Respondent in the said unit wish to have the Applicant
trade union represent them as their bargaining agent;
NOW, THEREFORE, it is hereby ordered by the Canada
Labour Relations Board that Canadian Association of Indus
trial, Mechanical and Allied Workers, Local # 3, be and it
is hereby certified to be the bargaining agent for a unit of
employees of Transair Limited, comprising all office and
clerical employees of Transair Limited including the plan
ning clerk, the technical records statistician, and the techni
cal librarian, but excluding the president, executive vice-
president, senior vice-presidents, comptroller, assistant
comptroller, directors, general manager, managers, supervi
sors, charter co-ordinator, administration assistant, district
representative, personnel assistant, secretary to the presi
dent, secretary to the executive vice-president, secretaries
to the senior-vice-presidents, confidential stenographer to
the comptroller, confidential stenographer to the vice-presi
dent of administration, confidential stenographer to the
director of personnel, maintenance planner, draftsman, and
those employees covered under subsisting collective agree
ments held by the International Association of Machinists
and Aerospace Workers, Canadian Air Line Pilots Associa
tion, Canadian Air Line Flight Attendants' Association, and
Canadian Air Line Dispatchers Association.
ISSUED at Ottawa this 17th day of April, 1974, by the
Canada Labour Relations Board.
By its "Reasons for Judgment" the Board, in
the process of summarizing the grounds upon
which Transair contested the application, men
tioned as one of such grounds "the proposed
unit is not appropriate for collective bargaining"
but omitted to mention that one of the "rea-
sons" given in support of this ground by the
"Reply" of Transair was that " ... the Union
does not have sufficient members in good stand
ing to entitle it to apply to be certified as bar
gaining agent on behalf of the employees in the
proposed unit." Among the facts set out in its
"Reasons" as "known to the Board prior to
hearing" are
8. The Investigation Officer of the Board reports that the
employees sought by the Applicant are not represented by
any other union.
9. The Investigation Officer of the Board reports that the
union application cards, receipts and other records are in
order.
10. The number of employees in the proposed bargaining
unit was 66 and the Applicant has a majority of them as
members.
and among the facts set out therein as "adduced
at the hearing" are:
5. The Applicant was required to reconcile the discrepancy
between this schedule and the joint letter of the Investiga
tion Officer of the Board purporting to list the classifica
tions sought by the Applicant. It became apparent that the
Applicant was adding a few classifications: crew scheduler,
assistant crew scheduler, technical librarian, and secretary
to senior vice-president. It also stated that it wished to
include the classification of personnel records clerk, which
had been omitted inadvertently.
6. These additions brought the number of employees in the
applicant's proposed bargaining unit to 73 but had no ma
terial effect on its membership majority.
7. Respondent was requested to refine the reasons for its
contestation and proceeded to do so by adducing evidence
of a general nature and centering upon job descriptions
produced at a second session of the hearing rendered neces
sary by the length of the evidence.
By its memorandum filed pursuant to the
Rules of this Court, Transair summarized its
attack on the Board's decision as follows:
I The Board erred in not allowing cross-examination on the
vital question of a majority and which amounted to a denial
of natural justice and the Board accordingly exceeded or
lost its jurisdiction.
II The Board erred in determining that the proposed unit
was appropriate for collective bargaining and in determining
that the employees were not to be excluded on the grounds
that they were management or employed in a confidential
capacity in matters relating to industrial relations or a com
bination of those factors.
III The Board erred in refusing to consider the Petition of a
majority of the employees, of which Petition the Board had
notice prior to the rendering of its formal decision.
In the first place, I wish to say that, while I do
not disagree with my brother Tritschler that
some of the remarks that fell from the Board
during the course of the hearing and in its
reasons are unfortunately worded, as counsel
for Transair, during the course of the hearing in
this Court, disavowed any bias on the part of
the Board, I do not consider that such remarks
are pertinent to the issues that have to be decid
ed by this Court.
Secondly, I am of opinion that the certifica
tion order made by the Board, even if it could
otherwise stand, would have to be clarified to
make it clear that the bargaining unit does not
include the secretary and vice-president, the
vice-president of sales arid marketing, the vice-
president for the Eastern Region or the vice-
president of operations. In my opinion, no
Board properly instructed as to the law could
properly regard such persons as being within the
definition of "employee", which I have already
quoted, in the absence of evidence of functions
other than those indicated by the position titles,
which evidence is not present here. (Indeed, no
submission to the contrary was made by any
party on this point.) I am also of the view that
any employee whose duties required that he or
she participate in, or be privy in any way to, the
discussions of management officials when they
are engaged in working out policy concerning
collective bargaining could not reasonably be
regarded as falling outside the words "per-
sons ... employed in a confidential capacity in
matters relating to industrial relations". This is
clearly the position taken by the Board in its
"Reasons" as appears from the following por
tion thereof:
b "... in matters relating to industrial relations." means
having access to information relating to such matters as
contract negotiations: for example, the persons that sit
together to establish, on behalf of management, the range
of salary increase that the bargaining team will be mandat
ed to operate within at forthcoming negotiations; or to
such matters as the proceedings before a Board like this
one: for example, the persons that sit together and plan
the strategy which the employer will use as well as the
tactics used in the pursuance of its legitimate interest
before a Labour Board; or to such matters as the disposi
tion of grievances: for example the persons who plan or
who know what compromise will be offered to a grievor.
c the access to this information must not be incidental or
accidental. It must be part of an employee's regular
duties. If the main function of the employee is not related
to matters relating to industrial relations, that employee
cannot be excluded.
Therein lies a serious matter of judgment and fairness
on the part of employers. If management chooses to
openly hold discussions in matters related to industrial
relations where they could be easily overheard or if
management keeps documents of the same nature, in a
place where an unauthorized person may inspect them at
will, this is no cause for excluding these persons. As an
example, if management decides to give keys to files in
the personnel department containing data on forthcoming
negotiations to all of its clerical employees, this would not
make all of them confidential employees in matters relat
ing to industrial relations.
Notwithstanding the views so expressed, how
ever, the Board has included in the bargaining
unit a person whose position is described as
"Personnel Record Clerk", who is one of four
persons working under the Director of Person
nel and one of whose duties is described, with
out challenge, as "... is present at all labour
management meetings and prepares for distribu
tion the minutes taken at those meetings".
Prima facie, as it seems to me, such a person
must, as a practical matter, in a company such
as Transair, be privy to management policy dis
cussions concerning collective bargaining strate
gy. Nevertheless, the position in question has
been included in the bargaining unit without any
special discussion of the reasons therefor or any
findings of fact inconsistent with the apparent
sensitivity of the position in relation to industri
al relations. While I wish to make it clear that,
in my opinion, it is no part of this Court's
function under section 28 to act as a Court of
Appeal from decisions made by the Board as to
whether specific positions should be included in
a bargaining unit, I am of opinion that, in the
absence of findings of fact or evidence altering
the picture as I have outlined it, to none of
which has our attention been drawn, no reason
able board properly instructed as to the law
could have included this position in the bargain
ing unit and the Board should therefore be
directed to revise its definition of the bargaining
unit to exclude this position.
With reference to the appropriateness of the
bargaining unit, counsel for Transair made a
further submission that, in my view, must be
, rejected. This submission was, as I understood
it, that the inclusion of the four vice-presidents
and of the Personnel Records Clerk manifested
such a disregard for the principles laid down by
the law concerning appropriate bargaining units
as to establish a refusal of jurisdiction and that,
in consequence, the whole bargaining unit
should be set aside. In my view, if it were not
for the results that flow with regard to the
problem that arises under section 126(c), I
would merely come to the conclusion that the
matter must be referred back to the Board for
the specific exclusion of the positions men
tioned from the bargaining unit as this would, in
my view, in such event, be the duty imposed on
this Court by section 52(d) of the Federal Court
Act, which reads as follows:
52. The Court of Appeal may
(d) in the case of an application to review and set aside a
decision of a federal board, commission or other tribunal,
either dismiss the application, set aside the decision, or set
aside the decision and refer the matter back to the Board,
commission or other tribunal for determination in accord
ance with such directions as it considers to be
appropriate.
Having expressed my views on those two
matters, I turn to the two grounds of attack that,
in my view, raise the question whether the Board
departed from the standards of natural justice.
Both of these grounds turn on the requirement
in section 126, 6 which makes it a condition
precedent to a certification under section 126
that the Board "is satisfied that a majority of
employees in the unit wish to have the trade
union represent them as their bargaining
agent".'
Ordinarily, where an order that affects a
person is being considered, that person is en
titled to know the allegations of fact upon which
it is proposed to make the order in such detail
that he is in a position' to answer them. Certain
6 I do not overlook the fact that, as expressed, these
attacks are based on a refusal, in the one case, to allow
cross-examination, and, in the other case, to look at evi
dence. In my view, however, cases such as the Globe
Printing Company case, [1953] 2 S.C.R. 18, turn on the
question as to whether the particular issue should have been
investigated and, if so, how.
Note that this condition is expressed in the present while
the other two conditions in section 126 are expressed in the
past.
ly, in this case, the application before the Board
affected Transair and turned inter alia upon the
question whether certain of its employees
wished the applicant trade union to represent
them.
Furthermore, while, in the absence of some
special statutory requirement, it is not necessary
that a tribunal hold an oral hearing of the parties
before making an order having statutory effect
provided that it otherwise complies with the
requirements of natural justice,' where it does
order such a hearing, it is not unnatural for the
parties, in the absence of some indication to the
contrary, to anticipate that all relevant questions
will be dealt with at the hearing.
However, subject to express mandatory statu
tory requirements, there is, in my view, no
specific requirement that has universal applica
tion in all cases where statutory orders or deci
sions must be made on a judicial or quasi-judi
cial basis; and, indeed, it is common ground
among the parties to this case that, vis-Ã -vis the
employer, the identity of its employees who are
members of the applicant union is a confidential
matter. It may be therefore (although I express
no concluded opinion on the question) that the
circumstances of the case warrant an investiga
tion of this question in the absence of the
employer. As it seems to me, however, where
the circumstances of a particular class of matter
are such as to demand or justify the application
of special "ground rules", it follows
(a) that such ground rules must be such as to
be fair and just to all persons who will be
affected by the order or decision, and
(b) that such ground rules must be clearly
communicated to all parties at an early stage
so that they can conduct themselves
accordingly.
As it seems to me, on a study of the proceed
ings in this case, Transair and the Board were at
cross-purposes owing to the fact that there was
no clear statement by the Board, prior to or at
the opening of the hearing, that investigation as
8 Compare Hoffman-La Roche Limited v. Delmar Chemi
cal Limited, [1965] S.C.R. 575.
to a "majority" was a matter from which the
employer was entirely excluded. 9 As far as the
Board was concerned, when the hearing opened,
"the applicant" union had, prior to the hearing,
"established the absolute majority character"
on the basis "of the proposed bargaining unit"
and that question was a matter for investigation
by the Board without any participation by Tran-
sair as employer although the Board subse
quently, through the Chairman, did say, with
reference to a challenge by the employer on the
question of "majority membership" that "If the
challenge you are raising now inclined the
Board to reverify its investigation, we will do
so ...". On the other hand Transair, through its
counsel, took the position that it was entitled to
challenge "numbers" although, as he explained
his position before us, he did not claim the right
to ascertain "names". (The feasibility or useful
ness of this is something that, for the moment,
escapes me; but I have no doubt as to the
sincerity of counsel for Transair in making the
distinction.)
At the hearing, we indicated that we did not
require to hear counsel for Transair in reply on
the question as to whether the Board erred in
refusing to consider the petition that purported
to come, albeit somewhat belatedly, from a
majority of the employees. My reason for such
conclusion is as follows: assuming, as the par
ties in this case do, that the identity of the
members of the unit who are members of the
Union is a matter that must be kept confidential
in so far as the employer is concerned, and,
assuming that, for that reason, it is fair and just
that the Board investigate the question of mem
bership without making the employer a party to
that investigation, in my view, any such excep
t My first reaction was that the Chairman's preliminary
remarks at the hearing and the omission of counsel for
Transair to emphasize, as much as he might have, the
"majority" question in his opening statement were sufficient
to show a common understanding that that question was one
that had been left by the employer to the Board. I am
satisfied, however, that such a conclusion would be unfair to
Transair owing to what, I am assured by the other members
of this Court, is a lack of any practice in Manitoba for
counsel to make opening statements at trials or, therefore, to
come prepared to make such statements.
tion to the ordinary rules of natural justice
throws on the tribunal that undertakes such an
investigation a duty to take special care to
ensure that it safeguards the position of those
who are excluded from the investigation; and I
do not think that a tribunal in such a position
can hide behind technical rules of procedure as
a justification for not pursuing any line of inves
tigation called for by the circumstances. I am,
therefore, in this matter, of opinion that, when
the Board received what purported to be a peti
tion against certification from a very substantial
portion of the proposed bargaining unit, such
petition should have been investigated and not
merely rejected as being "untimely", which I
take to mean outside the delays allowed by the
Board's Rules. 10 Had the certification order
already been issued, the situation would have
been different; but it seems clear to me that, if
that had been the situation, the letter of rejec
tion would have said so and the fact would have
been made clear by the Board to this Court.
My conclusion on the latter point leads me to
the conclusion that the certification order must
be set aside and referred back to the Board for
re-investigation and re-consideration of its con
clusion under section 126(c) of the Code. I do
not propose that this Court should tell the Board
how it should, in the circumstances, carry out
that duty. Having regard to how these proceed
ings developed, there is a very nice question as
to what cross-examination, if any, Transair is
entitled to have the hearing re-opened for and,
notwithstanding arguments that have been put
forward to the contrary, it is difficult to escape
the conclusion that section 126(c) requires the
Board to reach a conclusion concerning
"Majority" as of the time of making its certifi-
10 I do not read the Board's Rules as requiring an inter
vention for employees to register an objection (Rule 29(3)).
If there are time limits they can always be extended and,
while the Board has a wide discretion as to its procedure, it
must exercise it so as to be fair and just. In the case of such
a Board, as in the case of a court such as the Federal Court,
it is sometimes necessary to explain to persons affected
what they must do to have their position considered.
cation order." I merely content myself, there
fore, with noting that such problems might be
avoided in this case if the Board were to con
clude that, having regard to the petition and
other circumstances, this is a proper case for a
vote under section 127 of the Code.
The judgment that I propose is, therefore,
that the section 28 application be allowed, that
the certification order be set aside and that the
matter be referred back to the Board with
directions
(a) that it re-define the unit under section
126(b) to make it clear that the four Vice-
Presidents and the Personnel Records Clerk
are not included; and
(b) that it re-investigate and make a new
determination concerning the question that
arises in this case under section 126(c) of the
Canada Labour Code.
APPENDIX
In my view it is important, for the purpose of
avoiding confusion, to separate out the various
quite different problems concerning majority
representation, which issue is at the heart of this
case.
In the first place, there is the question as to
whether the Board may treat as members of a
union, for purposes of representation, persons
who do not comply with the requirements of the
union's own constitution. Compare Metropoli
tan Life Insurance Company v. International
Union of Operating Engineers.' 2 Section 117(1)
and (m) of the Code and Regulation 29 seem to
have been directed toward this problem but
whether an authority to make regulations con
cerning evidence and the particular regulation
adopted are sufficient for the purpose are dif
ficult questions which remain to be faced in
" In my view, it is not necessary for this Court to decide
these difficult questions on this application and we should
not go further than we have to go. I realize that this exposes
the parties to the possibility of having to come back to this
Court if the Board, on its further investigation, does not do
so in a manner that both parties find satisfactory.
12 [1970] S.C.R. 425.
another case.
In the second place, there is the question as to
whether persons who were members or support
ers of an applicant union can be treated as
continuing to be so even though they change
their minds after the application for certification
has been filed. Compare the Globe Printing
Company case. 13 It does not seem, although I
express no concluded opinion on the matter,
that the new Code and the regulations made
thereunder resulted in the question of the
"time" for the "count" being some time prior to
the making of the certification order.
Finally, there is the question of the applica
tion of the rules of natural justice to the deter
mination of the question of a majority, which is
a question that also has to be faced in this case,
at least in part.
To what extent any or all of these problems
can be avoided, in particular cases,
(a) by working out some arrangement in the
particular case acceptable to all the parties, or
(b) by holding a vote under section 127,
is a question that remains to be seen. I must say
that the avoidance by administrative tribunals of
confrontations leading to authoritative decisions
in most cases involving business secrets, wheth
er or not there have been any applicable statu
tory provisions such as in the Tariff Board Act,
is, in my view, a tribute to such tribunals and to
the persons who have been appearing before
them.
* * *
The following are the reasons for judgment
delivered orally in English by
TRITSCHLER D. J.: Application by Transair to
review and set aside the decision or order of the
Canada Labour Relations Board (Board) gran
ting the application for certification made by the
respondent (Union) as bargaining agent for a
unit of office and clerical workers of Transair.
13 [1953] 2 S.C.R. 18.
I concur with all that has been said by the
Chief Justice and by my brother Bastin about
the unsatisfactory nature of the proceedings. I
agree that the application should be allowed and
the certification order set aside but I would not
have referred the matter back to the Board.
A review of the record forces me to the
conclusion that Transair has adequate grounds
for the complaint that it did not have a fair
hearing—that the Board failed to observe princi
ples of natural justice, erred in law in making its
decision or order and based its decision on
erroneous findings of fact made in a capricious
manner and without regard for the material
before it.
During the hearings and in its reasons for
judgment the Board displayed a critical attitude
toward Transair which was unwarranted by the
evidence. To give some examples:
The Reasons—Case Book No. 1 (C.B.1)—p.
187, state:
4. The Investigation Officer, upon instruction from the
Board then required that the Employer complete the Man
agement Functions Questionnaire and the Confidential
Duties Questionnaire of the Board for all the classifications
in contest. The Company did not comply immediately and
this created delays.
The Investigation Officer appointed to inves
tigate the Union's application for certification as
bargaining agent had been in communication
with the parties and their solicitors for over two
months. On , October 15, 1973, he wrote the
solicitors for the parties (C.B.1, p. 41) with his
resumé of the issues as he saW them and
requested the parties' confirmation or otherwise
of his resumé. The letter does not mention the
matter of questionnaires.
On October 22, 1973 (C.B.1, p. 44) Transair's
solicitors responded appropriately. This letter
concluded by giving reasons for which the
solicitors did "respectfully decline completing
the information forms or circulars you earlier
requested being completed by Transair
Limited".
Neither the Investigation Officer nor the
Board acknowledged or took exception to this
refusal and Transair's solicitors might reason
ably have assumed that the position taken by
them was acceptable.
On November 22, 1973, the Union's solicitors
wrote the Board (C.B.1, p. 80) complaining that
it had not received copies of completed ques
tionnaires. It was only then that the Board, on
November 27, 1973 (C.B.1, p. 82) "took note"
of Transair's solicitors' letter of October 22,
1973, and formally required completion of the
questionnaires. Unfortunately, the Board, by
the same letter, fixed December 13, 1973, for
the hearing.
On December 11, 1973 (C.B.1, p. 101) Tran-
sair's solicitors sent/to the Investigation Officer
sixteen completed Questionnaires Concerning
Confidential Duties Relating to Labour Rela
tions. Considering the work involved the delay
between the receipt of the Board's letter of
November 27, 1973, and the transmission of the
questionnaires was not unreasonable. The hear
ing date was fixed by the Board with the knowl
edge that the questionnaires had yet to be com
pleted. The Investigation Officer was aware of
the information given by Transair on December
11, 1973, and made no demand for further
particulars. The Board has some responsibility
for seeing that cases are ripe for hearing. In the
circumstances here present the complaint with
which the Reasons commence should not in
fairness have been made against Transair.
In addition to the questionnaires there were
also required job descriptions or management
questionnaires.
The Reasons state:
After stern warning by the Board, job descriptions were
produced by the Respondent (Transair) for every classifica
tion sought by the Applicant (Union)—(C.B.1, p. 189).
This unfairly puts Transair in a bad light. The
correspondence and the evidence, to which ref
erence will be made, shows that there was no
need for nor was there a stern, or any warning.
Of these job descriptions the Reasons say:
... It turned out that these descriptions had in fact not been
prepared with the incumbents or after consultation with
them, had never been shown to the incumbents and had
never been formalized verbally or otherwise within the
Company. They had in fact been prepared for the specific
purpose of the hearing before this Board.—(C.B.1, p. 192).
This was a statement with innuendo of grave
character. It implied that Transair had attempt
ed to deceive the Board and had been
unmasked. Nothing "turned out". The Board
and everyone concerned knew that the prepara
tion of the job descriptions would take some
time and that they would be prepared precisely
"for the specific purpose of the hearing before
[the] Board".
Consider these extracts from the record.
Transcript (December 14, 1973):
MR. De GRAVES: Mr. Sinnott, the Board may have certain
questions of you before—Mr. Chairman, in respect of the—
if I may put it—the managerial questionnaire, when would
you want those filed? It would take some time. Following
the hearing?
THE CHAIRMAN: Yes. (p. 129).
THE CHAIRMAN: . . . it Seems to us that the management
questionnaire, if answered and according to our new proce
dure, if answered and commented upon by the union when
they get copies of the answers would tremendously reduce
the process that we are going through this morning. So,
therefore, the Board concludes that it will interrupt at this
stage the hearing completely.... We will be back sometime
in January. In the meantime the company will give the
questionnaires. You will get copies of them. You will make
comments on them... .
There is no blame to be taken by anyone. It is an unfortu
nate situation we are caught in at this moment.... (pp. 167
and 168). [Emphasis added.]
MR. De GRAVES: There are two questions I have to ask the
Board before it adjourns, the first of which is Mr. Sinnott is
a very, very vital person in these questionnaires. The caveat
that you imposed on me—not imposed but suggested—to me
yesterday cannot be observed.
THE CHAIRMAN: Not as far as the questionnaires are con
cerned. I realize that.
MR. De GRAVES: I am afraid they do range over the entire
area because there is no distinct (inaudible) between man
agement—
THE CHAIRMAN: That is all right. In sitting down and prepar
ing, possibly that will solve some of the problems.
MR. SORONOw: And we would appreciate if those could be
received sooner than the day before the hearing.
THE CHAIRMAN: They will have to be. (p. 176).
On January 3, 1974, the solicitors for the
Union wrote to the Board:
When the hearing of the above matter adjourned on Decem-
ber 14th, 1973 the Chairman Mr. Lapointe directed the
Company to complete and file with the Board certain ques
tionnaires dealing with the Company's allegation that all or
some of the employees fulfil a management function. The
Company undertook to prepare the said questionnaires as
soon as possible in order that same would be available to the
parties well in advance of the hearing.
To the date hereof we have not received the said question
naires and we trust that we can look forward the early
receipt of same. (C.B.1, p. 120).
On January 8, 1974, the Secretary of the
Board wrote counsel for Transair, in part:
At the adjournment of this hearing on December 14,
1973, you, as counsel for Transair Limited, at the request of
the Board, undertook to complete the Management Func
tions Questionnaires for those employees and classifications
which the employer contends should be excluded because
they perform management functions.
As these questionnaires have not yet been received, the
Board has directed that you be requested to arrange for their
submission forthwith, but in any event not later than Janu-
ary 14, 1974. (C.B.1, p. 121).
On January 11, 1974, counsel for Transair
wrote to the Secretary of the Board:
Further to your letter of the 8th instant which we received
today, we are enclosing herewith 5 copies of the job
descriptions.
We might point out that immediately following the
adjourned hearing we proceeded to prepare and compile the
job descriptions requested, but in view of the magnitude of
the undertaking we only recently completed it. (C.B.1, p.
122).
Considering the work involved and the inter
vention of the Christmas holidays and the fact
that due to a breakdown of confidentiality in
Transair's office the typing had to be done in
the office of the company's solicitors, this was
an acceptable explanation of the delay.
During the hearing the Board displayed a
strange attitude about the management ques
tionnaire (which is Exhibit E-10). Transcript
(January 23, 1974):
THE CHAIRMAN:
Q. My next question to you is this. When was Exhibit
E-10 prepared; was it prepared by you?
A. On my instructions.
Q. It was prepared since the last hearing?
A. Yes. (p. 393).
The questioner already knew that the material
was to be prepared after and had been prepared
since the last hearing. Counsel for the Union
understood. He said:
... in Exhibit E-10, which as we all know was prepared in
contemplation of this application, ... (p. 396).
Later counsel for the Union, urging the Board
to require production of an ealier manual for
comparison with Exhibit E-10, remarked:
I think it is especially important in view of the fact that the
manual of job descriptions that we have here was prepared
in contemplation of this litigation.
To which the following comment was made:
THE CHAIRMAN: It would now appear quite clearly that that
seems to be the situation. (p. 399). [Emphasis added.]
No one had ever tried to make it appear and it
had never appeared otherwise and it did not
"seem to be" but was in fact the known
situation.
As has been seen this unwarranted view of
the job descriptions was carried into the Board's
Reasons.
The Reasons state (C.B.1, p. 195):
The Board was considerably annoyed by the attitude of
Respondent in refusing or delaying to produce answers to
the Questionnaires on Management functions and Confiden
tial duties.
The foregoing extracts from the record show
that Transair's solicitors on October 22, 1973,
gave reasons for respectfully declining to com
plete the information forms or circulars request
ed by the Investigation Officer. Neither he nor
the Board reacted or responded until November
27, 1973, when the Board, formally requesting
completion of the questionnaires, gave notice of
the hearing on December 13, 1973. Following
receipt of this letter Transair's solicitors acted
with reasonable dispatch. The Investigation
Officer and the Board might at least have
shared the blame for the delay. The delay in
preparing the job specifications has been dealt
with.
The Board showed that it was "considerably
annoyed" with Sinnott, Transair's principal wit
ness: e.g., Transcript (January 23, 1974):
Q. ... I would like you to turn now to Page 31, the
position of buyers. I believe there was filed with
respect to this position one of the questionnaires. I
read the description there:
The buyers are concerned with the direct ordering of
materials of a minor nature, usually not exceeding
more than $1,000. They operate in this capacity in
their own right without reference to the manager of
purchasing.
Can you tell me whether the objection is on the basis
of confidentiality or management?
A. Management.
Q. What function is there? I look at that description and I
have a tough time picking out what management func
tion there would be. Can you tell me what management
function these persons are fulfilling such as to make
them objectionable?
A. I think I would be correct in saying if he was empow
ered to spend money on behalf of the Company,
empowered to commit the Company up to $1,000 on
any occasion, is that person not considered as
management?
THE CHAIRMAN: Do not ask questions, you are here to
answer questions. (p. 316, 317)
Q. Let us turn to the next page, confidential clerk typist—
maintenance affairs. Again you show that she has full
access to the following, including wage change
schedules. What are you talking about there?
A. Again any particular change in wages. Mr. Soronow,
please, surely we cannot be that naïve.
THE CHAIRMAN: As a witness, Mr. Sinnott, you do not
argue with counsel, you just answer the questions.
THE WITNESS: I am going to answer the question, Mr.
Chairman.
BY THE CHAIRMAN:
Q. Do that then, and let us refrain from making any
remarks.
A. I answered the question by stating if there was going
to be any wage changes or any scheduling of wage
changes, it was not done as a shot-gun approach. I
think those were my words.
Q. Then you are repeating your answer.
A. That might involve a schedule for changes. (pp. 325,
326)
THE CHAIRMAN:... Is there anybody in the Company who
can tell us Yes or •No there was a job description manual
that went out of existence two years ago.
BY MR. De GRAVES:
Q. Mr. Sinnott?
A. I think possibly Mr. Chairman, with all due respect—
BY THE CHAIRMAN:
Q. That is a very perilous way to answer, to start off like
that. (p. 401).
The Reasons state:
A few days prior to the hearing, the Board noticed that its
Secretariat had received from the Respondent completed
Confidential Duties Questionnaires but no Management
Functions Questionnaires. (C.B.1, p. 188).
This is incorrect. On December 13, 1973, at
the opening of the hearing the Chairman stated:
We understand that the Respondent (Transair) has deposited
with the Board and with the interested parties question
naires dealing with management functions and confidential
ity. (Transcript p. 6).
It was counsel for the Union who then point
ed out to the Board that the questionnaires
related only to confidential capacity and not
managerial function. (Transcript p. 7).
On April 17, 1974, the Board received a
"Petition" signed by some thirty-eight
employees of Transair requesting that the pend
ing certification proceedings be dropped. The
Board, April 24, 1974, rejected the petition as
"untimely" (C.B.1, p. 229) but does not mention
the receipt of the petition in the Reasons. The
number of employees in the proposed bargain
ing unit was sixty-six at the time of the Investi
gation Officer's "painstaking investigation"
(C.B.1, p. 186) and the Union then had "a
majority of them as members" (C.B.1, p. 188).
If the "Petition" were bona fide (no one ques
tions that) it was at once apparent to the Board
with its intimate knowledge of the earlier views
of all members of the proposed bargaining unit
that the Union no longer had a majority as
members. Yet the Board proceeded to find in its
Reasons that "A majority of the employees of
the Respondent comprising the said unit wish to
have the Applicant trade union represent them
as their bargaining agent." (C.B.1, p. 203). Note
that the Reasons speak in the present tense (as
does section 126(c) of the Act). On the balance
of probabilities this was an erroneous finding of
fact resulting from a failure to consider the
petition.
The Reasons and Order are dated April 17,
1974. The letters sending out the same are dated
April 19, 1974. The telegram advising the par
ties of the decision is dated April 25, 1974.
(C.B.1, p. 230).
The situation thus appearing on the record it
is not necessary to labour the other points urged
by Transair's counsel. These are in my view
well taken.
The Board erred in refusing to consider the
petition of what was a majority of the
employees of which petition the Board had
notice prior to the rendering of its decision. To
impose a fifth union and a sixth bargaining unit
on a relatively small and dispersed industry in
favour of a union which (if it ever had one) has
lost its mandate from employees is to act in a
perverse or capricious manner and a failure to
observe principles of natural justice.
A fairly disposed Board would at least have
made some inquiries, perhaps have conducted a
vote, perhaps have resumed hearings. The peti
tion seems not to have aroused the curiosity of
the Board.
Whether the Union had a majority of the
employees in the proposed unit was in issue. A
Union officer gave evidence. Counsel for Tran-
sair sought to question him as to the number of
employees who had joined the Union and were
still maintaining membership in the Union. The
Board refused to permit any inquiry on the
ground that it was "confidential information
regarding membership status, and ... that it is
already information which is available to the
Board" (Transcript pp. 53, 54). The Board per
sisted in its view despite counsel's statement
that "I think the question of membership, of
course, is always germane to whether the Appli
cant union has, in fact, established the majority
membership as is required. I recognize that the
Board has already gone into its investigation but
that does not preclude the company from chal
lenging that." (Transcript p. 54).
The right of the employer to question union
support despite "prior ascertainment of facts"
by the Board has been exhaustively dealt with
in Toronto Newspaper Guild, Local 87, Ameri-
can Newspaper Guild v. Globe Printing Com
pany [1953] 2 S.C.R. 18 and the great number
of cases which have followed it. I will not add
to the jurisprudence on that subject beyond
stating that nothing in the cases, the Canada
Labour Code or the Regulations made there-
under justified the Board in the circumstances
of this case cutting off Transair at the very
inception of its attempt to question the status of
the Union. The petition against certification to
which reference has been made was a confirma
tion that Transair's concern and suspicion about
the Union's status were well founded. The
Board's refusal to permit Transair to cross-
examine on this vital question of majority was a
denial of natural justice.
Transair presented the only evidence with
respect to job descriptions and the functions of
employees as they relate to management and
confidentiality as related to industrial relations.
Sinnott, the Director of Personnel, made out at
least a prima facie case that some employees in
the proposed unit were either managerial, confi
dential as they related to industrial relations, or
a combination of both. Employees of Transair
were present at the hearings to advise and assist
the Union. Indeed, one was at the counsel table.
These employees could have given evidence at
least as to their own job specifications and no
doubt as to the job specifications of their close
colleagues if they disagreed with the descrip
tions given by Transair and the detailed asser
tions of Sinnott. The Union declined to present
any rebuttal.
The Board's indifference to the Union's fail
ure to call any of the available witnesses is
difficult to understand.
In my view the record shows that the Board
was in error in determining that the proposed
unit was appropriate for collective bargaining
and in including some employees who clearly
ought to have been excluded on the ground that
they were an extension of management or
employed in a confidential capacity in matters
relating to industrial relations or a combination
of those factors.
The right of the Board to weigh evidence and
to find facts is common ground. That these
erroneous findings of fact were arrived at in a
capricious or arbitrary manner is apparent in the
record but, having regard to the fundamentally
unfair and unsatisfactory nature of the proceed
ings which has earlier been described, it is not,
in my view, necessary to enlarge these reasons
with an exhaustive analysis of the record and
evidence.
I would have set aside the decision or order
of the Board.
The following are the reasons for judgment
delivered orally in English by
BASTIN D.J.: I agree with the disposition of
this matter proposed by the Chief Justice. I
should like to add, in my own words, my rea
sons for the principal conclusion.
It is the duty of the Canada Labour Relations
Board to develop good industrial relations by
exercising the powers conferred on it and dis
charging the duties imposed on it by the Canada
Labour Code. Its duty in an application such as
this is set out in section 126 of the Code:
126. Where the Board
(a) has received from a trade union an application for
certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appro
priate for collective bargaining, and
(e) is satisfied that a majority of employees in the unit
wish to have the trade union represent them as their
bargaining agent,
the Board shall, subject to this Part, certify the trade union
making the application as the bargaining agent for the bar
gaining unit.
The Board has judicial or quasi-judicial func
tions and is bound to carry them out in accord
ance with the rules of natural justice. One ele
mentary principle was expressed by Lord
Loreburn in Board of Education v. Rice [1911]
A.C. 179 at 182 when he said that such a Board
must always give "a fair opportunity to those
who are parties in the controversy for correct
ing or contradicting any relevant statement pre
judicial to their view". This implies that a party
must be fully informed of the case against him.
Another principle is that a party is entitled to
test the evidence of an opposing witness by
cross-examination. See Toronto Newspaper
Guild v. Globe Printing Company [1953] 2
S.C.R. 18.
The Code has expressly imposed on the
Board the duty of complying with these rules by
section 122 which makes any decision or order
of the Board subject to review under section 28
of the Federal Court Act. The proceedings
before the Board are thereby designated judicial,
or quasi-judicial since the power to review and
set aside is limited by section 28 to a decision or
order to be made on a judicial or quasi-judicial
basis. The grounds for setting aside a decision
or order are as follows; that the tribunal _
(a) failed to observe a principle of natural
justice or otherwise acted beyond or refused
to exercise its jurisdiction;
(b) erred in law in making its decision or
order, whether or not the error appears on the
face of the record; or
(c) based its decision or order on an errone
ous finding of fact that it made in a perverse
or capricious manner or without regard for
the material before it.
At the opening of the hearing the Chairman of
the Board made a statement which included the
following:
6. The Board informs the parties that on the basis of the
proposed bargaining unit, the Applicant has established the
absolute majority character.
This statement amounted to a finding by the
Board on one of the main issues, namely that a
majority of the employees were in favour of
certification of the Union on the strength of
evidence supplied by the applicant Union which
was not presented at the hearing or made avail
able to the employer. This contravenes a princi
ple applied in the case of R. v. Westminster
Assessment Committee, Ex parte Grosvenor
House (Park Lane) Ltd. [1940] 4 All E.R. 132.
In that case the committee had acted on ma
terial in a report the contents of which had not
been communicated to the parties to the hear
ing. On that ground their Lordships quashed the
decree of the committee.
Mr. Patrick McEvoy, the regional Vice-Presi
dent of the Union gave evidence limited to
proving the status of the union. Counsel for the
employer attempted to cross-examine him on
other matters but was not permitted to do so by
the Chairman. The Chairman's reasons are as
follows, p. 53:
I will disallow all these questions on one basis or two bases.
The first basis is it would be confidential information
regarding membership status, and the second reason that I
would disallow these questions is that it is already informa
tion which is available to the Board. It is part and parcel of
our investigation to ascertain many of these things you wish
to raise at this stage. I shall allow any questions, however,
directed at this witness that would establish that they have
not the proper characteristic of a union such as defined
under the Labour Code.
In my opinion neither reason given by the
Chairman for refusing to permit counsel for the
employer to cross-examine Mr. McEvoy was
valid. While the names of employees who were
members of the Union or who supported the
certification would be confidential, this would
not apply to the numbers of employees in each
category. Without disclosure of the identity of
individuals, counsel should have been permitted
to obtain information as to the Union's support
among the head office employees. It is possible
that a cross-examination of Mr. McEvoy might
have revealed circumstances which would have
foreshadowed the appeal by a majority of the
employees to the Board to refuse certification.
His second reason for refusing to permit cross-
examination on matters other than the status of
the Union appears to show a deliberate inten
tion to withhold from the employer the facts on
which the Board proposed to act. It implies that
the employer was not entitled to know the facts
alleged against his contention which contra
venes a basic principle of natural justice.
It is impossible to justify the rejection by the
Board without further inquiry of the petition
signed by a majority of the head office
employees on the ground that it was received
out of time. The decision of the Board that one
of the elements essential for certification,
namely, the majority support of the employees
had been satisfied, was based, according to the
Chairman in his opening statement, on evidence
produced by the applicant Union. This petition
raised sufficient doubt as to the validity of this
evidence to call for an inquiry. This could have
been undertaken even if the decision had
already been made since it had not been
promulgated.
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.