A-178-74
Empire Stevedoring Company Ltd. (Applicant)
v.
International Longshoremen's and Warehouse-
men's Union Ship and Dock Foremen, Local 514
(Respondent)
Court of Appeal, Thurlow and Pratte JJ., and
Sheppard D.J.—Vancouver, December 18, 19,
1974.
Judicial review—Certification of union by Canada Labour
Relations Board—Whether bargaining unit composed of per
sons `performing management functions"—Canada Labour
Code, R.S.C. 1970, c. L-1, ss. 107, 118, rep. and sub S.C.
1972, c. 18, s. 1—Federal Court Act, s. 28.
The respondent union was certified by the Canada Labour
Relations Board as bargaining agent for a unit of employees
of the appellant company "classified as foremen including
pier foremen". In a section 28 application to review the
decision, the company contended that the proposed bargain
ing unit, consisting of 114 men, was made up of persons
who performed management functions and consequently
were not "employees" within the meaning of section 107(1)
of the Canada Labour Code.
Held, dismissing the application, since the principles of
natural justice were observed, the Board's proceedings
could not be set aside in a section 28 application, unless it
was apparent that the decision in question could not have
been made by a reasonable Board properly instructed as to
the law. There was no error in the Board's finding that the
supervision of employees was only one among many matters
to be considered in determining whether, in a particular
organization, a person "performs management functions".
In that phrase the words must be given their ordinary
meaning and the meaning of the expression as a whole was
to be governed by the context of the statute in which it was
found.
Labour Relations Board (B.C.) and A.-G. for B.C. v.
Canada Safeway Limited [1953] 2 S.C.R. 46 and Trans-
air Ltd. v. Canadian Association of Independent
Mechanical and Allied Workers, Local No. 3 [1974] 2
F.C. 832, applied.
JUDICIAL review.
COUNSEL:
W. K. Hanlin and D. C. Prowse for
applicant.
R. E. Cocking for respondent.
R. Gallagher, A. McGregor and J. Dudeck
for Canada Labour Relations Board.
SOLICITORS:
Owen, Bird, Vancouver, for applicant.
McTaggart, Ellis & Company, Vancouver,
for respondent.
Gallagher, Chapman, Greenberg, McGregor
& Sheps, Winnipeg, for Canada Labour
Relations Board.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside an order of the Canada
Labour Relations Board, dated June 28, 1974,
certifying the respondent Union as "the bargain
ing agent for a unit of employees of Empire
Stevedoring Company Ltd. classified as fore
man including pier foreman".
Before the Board, the applicant contested the
application for certification made by the
respondent on the main ground that the pro
posed bargaining unit, consisting of some 114
men, was made up of persons who performed
management functions and who, consequently,
were not employees within the meaning of sec
tion 107(1) of the Canada Labour Code. After a
long hearing, at which all interested parties
adduced evidence and made representations
concerning the work and the functions of the
foremen that constituted the proposed bargain
ing unit, the Board rejected the applicant's con
tention and granted the certification. In support
of its order, the Board delivered Reasons for
Judgment in which it made a careful analysis
and discussion of the evidence and the argu
ment. It is the applicant's submission that the
Board should have reached the conclusion that
the proposed bargaining unit was composed of
persons performing management functions.
Under section 118 of the Code,
118. The Board has, in relation to any proceeding before
it, power
(p) to decide for all purposes of this Part any question
that may arise in the proceeding, including, without
restricting the generality of the foregoing, any question as
to whether
(ii) a person performs management functions or is
employed in a confidential capacity in matters relating
to industrial relations,
Some of the remarks made by Rand J. in
Labour Relations Board (B.C.) v. Canada Safe-
way Ltd. [1953] 2 S.C.R. 46 at page 54 with
respect to the power of the Labour Relations
Board of British Columbia to decide whether a
person is employed in a confidential capacity,
can be applied to the power of the Canada
Labour Relations Board to determine whether a
person performs management functions. Such a
determination, in most cases, is "a matter of
judgment to be formed by weighing all the cir
cumstances". The task of evaluating those cir
cumstances "has been committed by the Legis
lature to the Board; and so long as its judgment
can be said to be consonant with a rational
appreciation of the situation presented, the
Court is without power to modify or set it
aside". That was said before the enactment of
section 28 of the Federal Court Act, under
which the grounds on which judicial review may
proceed are somewhat broader than in certiorari
proceedings; but where, as in the present case,
the principles of natural justice have been
observed, the decision of the Board, that certain
persons do or do not perform management func
tions, cannot be set aside by this Court on a
section 28 application unless it be apparent that
the decision in question could not have been
made by a "reasonable Board properly instruct
ed as to the law" (see Transair Ltd. v. Canadian
Association of Independent Mechanical & Allied
Workers, Local No. 3, per Jackett C.J.—p. 832
infra). It is in the light of these principles that
the various contentions of the applicant must be
considered.
The applicant's first attack on the Board's
order was that the Board erred in law in holding
that the amendments to the Canada Labour
Code made by Statutes of Canada, 1972, c. 18,
by which Part V of the Code was repealed and
the present Part V substituted therefor, have
modified the law so that supervision and control
of employees is no longer to be considered as a
significant indication of management functions.
The Board did indeed use such language, but, in
our view, it is apparent from the Board's
lengthy Reasons that what it meant and applied
was that supervision and control of employees
is not per se the performance of management
functions within the meaning of the definition of
employee but is only one amongst many matters
to be considered in determining whether in a
particular organization or set up a person per
forms management functions. The expression
"performs management functions" is not a term
of art and does not express a legal concept. If
anything, it appears to express a social or eco
nomic concept. It has no precise meaning by
itself and while the words must be given their
ordinary meaning, the meaning of the expres
sion as a whole is governed by the context of
the statute in which it is found. One of the
features of this statute is that the Board is
authorized by subsection 125(4) to include in
bargaining units personnel whose duties include
the supervision of other employees.
Counsel for the applicant pointed to the fact
that such personnel must themselves be
employees as defined, that is to say, persons
other than those who perform management
functions, but even if that be accepted, it seems
to us that the fact that a person whose duties
include the supervision of other employees can,
under the statute, be an employee within the
meaning of the definition plainly entails the
conclusion that the supervision of the
employees is not per se the performing of man
agement functions within the purport of the
definition.
It follows that the duty to supervise other
employees is but a factor for consideration
along with others in the particular case bearing
on the question of whether the person con
cerned performs management functions and the
weight to be given to it, as well as the conclu
sion to be drawn from it and the other factors,
are matters for the judgment of the Board. The
applicant's submission, in our opinion, there
fore, fails.
The applicant's second submission was that
the Board erred in not applying what counsel
referred to as "all the criteria of management
functions", and in particular, directing and con
trolling, which he submitted were primary, clas
sical management functions.
It is apparent from the Board's Reasons that
it gave detailed consideration to the sort of
criteria which it considered to be relevant and
persuasive as well as to the particular facts and
the many facets of the duties and activities of
the foremen in question. It was for the Board to
decide what matters were persuasive, one way
or another, as well as the respective weight to
be given to them in reaching its conclusion; and
unless that conclusion was based on some mis
interpretation of the statute or other error of
law, there is no justification for interference
with it by the Court. In our opinion it has not
been established that the Board's conclusion is
based on any such misinterpretation of the stat
ute or other error of law.
The applicant's third submission was that the
Board erred in law or based its conclusion on an
erroneous finding of fact which it made in a
perverse or capricious manner or without regard
for the material before it. The error of law was
said to lie in the Board having downgraded the
so-called authority of the foremen to effectively
recommend disciplinary action against steve
dores as a criterion for determining whether the
foremen performed management functions. The
finding of fact which was said to be erroneous
consisted in the Board having said that the
foremen in question have only a relatively insig
nificant authority in matters of discipline. This
is not a finding of fact but an expression of an
opinion on the undisputed facts and in our view
it cannot be said to be erroneous.
There is in our opinion no merit or substance
in either contention.
The application will therefore be dismissed.
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.