A-892-77
Toronto-Dominion Bank (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, May 31 and June 1, 1978.
Judicial review — Labour relations — Certification of
Union as bargaining agent — Whether or not Board must
ascertain whether employees eligible for membership in Union
before deciding to certify the Union, and if so, whether or not
the Board properly considered and construed the Union's
constitution — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
126, 127, 134 Canada Labour Relations Board Regulations,
SOR/73-205, ss. 18, 29 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
decision of the Canada Labour Relations Board certifying the
United Steel Workers of America as bargaining agent for a
unit of employees of the Toronto-Dominion Bank working at a
branch in Saskatoon. Applicant attacks the decision on the
ground that respondent exceeded its jurisdiction by failing to
ascertain whether the employees of the bank were eligible for
membership in the Union. The issue is whether or not respond
ent had a duty to make such an inquiry, and if so, whether or
not the Board properly considered and construed the Union's
constitution.
Held, the application is dismissed. By enacting section 126 in
its present form, Parliament clearly directed that it was un
necessary, in the certification process, for a trade union to
establish membership in the union as a condition of certifica
tion. Neither sections 127(2) nor 134(2) indicate the necessity
of proof of membership in the applicant Union as conditions
precedent to the exercise of the Board's power under section
126 and do not override the mandate of the Board in section
126 to be satisfied that only a majority of employees in the unit
wish the Union to represent them irrespective of membership or
non-membership in the Union. Sections 18 and 29 of the
Regulations cannot override the statutory provisions, and at
best can only assist applicant in its argument respecting the
scheme of the Code an argument already disposed of.
APPLICATION for judicial review.
COUNSEL:
J. C. Murray for applicant.
I. Scott, Q.C. for respondent.
Lorne Ingle for United Steel Workers of
America.
SOLICITORS:
Hicks, Morley, Hamilton, Stewart, Storie,
Toronto, for applicant.
Cameron, Brewin & Scott, Toronto, for
respondent.
MacLean, Chercover, Toronto, for United
Steel Workers of America.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the Canada
Labour Relations Board dated November 22,
1977, certifying the United Steel Workers of
America (hereinafter referred to as "the Union")
as bargaining agent for a unit of employees of the
applicant described as follows:
All employees of the Toronto-Dominion Bank working at the
branch located at 300 Confederation Park Plaza, Saskatoon,
Saskatchewan, excluding manager, administration officer, and
casual part-time employees.
The applicant attacks the decision on the ground
that the respondent, in determining whether the
Union should be certified, exceeded its jurisdiction
by failing to ascertain whether the employees of
the bank were, in fact, eligible for membership in
the Union and were in fact members thereof. To
succeed in this attack, counsel agreed that he
would first have to demonstrate that the respond
ent had a duty to make such an inquiry. If he
succeeded in doing so, he would then have to
persuade the Court that the respondent Board
failed to make any or adequate inquiries because
the Board did not have before it the document
which would enable it to make this determination,
namely the Union's constitution or, if it did, that it
failed properly to construe the constitution.
In seeking to support his contention that the
Board was obliged to determine the eligibility for
membership in the Union of the employees of the
bank and their status as members, counsel argued
that the scheme of the Canada Labour Code pro
vided the statutory requirement and relied on sec
tions 126(c), 127(2), 134(2) and sections 18 and
29 of the Regulations [Canada Labour Relations
Board Regulations, SOR/73-205] as showing the
scheme.
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 appropri
ate 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 bargain
ing unit.
127. (1) The Board may, in any case, for the purpose of
satisfying itself as to whether employees in a unit wish to have
a particular trade union represent them as their bargaining
agent, order that a representation vote be taken among the
employees in the unit.
(2) Where
(a) a trade union applies for certification as the bargaining
agent for a unit in respect of which no other trade union is
the bargaining agent, and
(b) the Board is satisfied that not less than thirty-five per
cent and not more than fifty per cent of the employees in the
unit are members of the trade union,
the Board shall order that a representation vote be taken
among the employees in the unit.
134. ...
(2) Notwithstanding anything in this Part, where the Board
is satisfied that a trade union denies membership in the trade
union to any employee or class of employees in a bargaining
unit by virtue of a policy or practice that the trade union
applies relating to qualifications for membership in the trade
union,
(a) the Board shall not certify the trade union as the bar
gaining agent for the bargaining unit; and
(b) any collective agreement between the trade union and
the employer of the employees in the bargaining unit thà t
applies to the bargaining unit shall be deemed not to be a
collective agreement for the purposes of this Part.
18. An application to the Board by a trade union or employ
ers' organization shall include
(a) a copy of the constitution and by-laws of the union or
organization, and
(b) a statement of the name and address of each of its
officers
unless the constitution and by-laws and the names and
addresses of the officers have previously been filed with the
Board.
29. (1) For the purposes of an application for certification,
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 com
mencing 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 paragraph (a).
(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 accord
ance with the provisions of the union's constitution.
(3) Where an employee objects to an application for certifi
cation 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
(d) the full name and address of his employer.
(4) Evidence submitted to the Board pursuant to subsection
(1) or (2) shall be for the confidential use of the Board and
shall not be made public.
As we understand his submission, notwithstand
ing the fact the language of section 126(c) seems
clearly to require only that the Board satisfy itself
"that a majority of employees in the unit wish to
have the trade union represent them as their bar
gaining agent", in order to determine whether or
not a representation vote should or should not be
ordered, section 127(2) requires that a determina
tion as to the membership status of the employees
must be made. In order to do that the constitution
of the Union must be examined to ascertain the
eligibility requirements for membership contained
therein. In other words, in counsel's view, a condi
tion precedent to the Board's being satisfied that a
majority of the employees in the unit wish to have
the Union represent them às a bargaining agent in
ascertaining whether those employees are, by the
constitution of the Union, eligible to become mem
bers and are, in fact, members.
Similarly, his submission, as we understand it, is
that section 134(2) requires, as a condition prece
dent, that the Board ensure that the policy and
practice of the Union does not deny membership to
any employees or class of employees. To do so, he
said, necessitates a determination of the eligibility
requirements of the Union as specified in its con
stitution as well as its policies and practices out
side the ambit of the constitution.
He draws support for these views as to the
meaning of sections 127(2) and 134(2) from the
requirements of sections 18 and 29 of the Regula
tions necessitating the filing of the Union's consti
tution and by-laws and evidence of membership in
specified form.
It is important to note, we think, that prior to
the present Canada Labour Code coming into
effect on March 1, 1973, the jurisdiction of the
Board to certify a union as bargaining agent was
dependent on section 115(2) of the Act as it then
read:
115. .. .
(2) When, pursuant to an application for certification under
this Part by a trade union, the Board has determined that a unit
of employees is appropriate for collective bargaining
(a) if the Board is satisfied that the majority of the
employees in the unit are members in good standing of the
trade union, or
(b) if, as a result of a vote of the employees in the unit, the
Board is satisfied that a majority of them have selected the
trade union to be a bargaining agent on their behalf,
the Board may certify the trade union as the bargaining agent
of the employees in the unit.
It will be seen that section 126(c) represents an
important change in the duty of the Board in
determining whether or not to certify a union to be
a bargaining agent for a unit of employees. No
longer is it necessary that the Board satisfy itself
as to the union membership majority; rather, it
must only satisfy itself as to the wishes of the
majority to have the trade union be its bargaining
agent. Thus, authorities which are based on pro
vincial statutes which still found the author
ity of provincial labour boards on such boards
satisfying themselves on the question of union
membership before certification, must be con
sidered with care and with the distinction in the
nature of the duty on the respondent Board pro
vided by the present Canada Labour Code, borne
in mind. In most if not all provincial statutes the
boards governed by these statutes must determine
at least the question of union membership; under
the Canada Labour Code, unless the contentions
of counsel for the applicant are correct, the
respondent does not have to do so.
It is our opinion that section 126 cannot be
interpreted in the manner espoused by the appli
cant. By the enactment of section 126 in its
present form, Parliament clearly directed that it
was unnecessary, in the certification process, for a
trade union to establish membership in the union
as a condition of certification. In our opinion,
neither sections 127(2) nor 134(2) indicate the
necessity for proof of membership in the applicant
Union as conditions precedent to the exercise of
the Board's power under section 126. The purpose
of section 127, as we see it, is (a) to permit the
Board to order a representation vote in a case
where, for any of a number of reasons, it has
doubts as to the true wishes of the employees in
the unit, or (b) to be required to order such a vote
where a union has filed applications for member
ship in accordance with section 29 of the Regula
tions as evidence of the wishes of the employees, in
support of its application for certification, and the
number filed is fewer than 50% of the employees
in the unit but more than 35% thereof, and the
Board, at that stage, is not satisfied under section
126. The section cannot and does not override the
mandate of the Board in section 126 to be satisfied
only that a majority of the employees in the unit
wish the union to represent them irrespective of
membership or non-membership in the union. It
applies only to special situations which may arise
and must be dealt with accordingly, in reaching
that state of satisfaction.
Neither does section 134(2) provide a condition
precedent. In our view, it merely provides that, as
a matter of policy, a union will not be certified by
the Board if it has a policy or practice of dis
criminating against certain employees or classes of
employees. It does not override the mandate of the
Board under section 126.
In so far as the contention that the effect of
sections 18 and 29 of the Regulations is supportive
of the position of the applicant is concerned, we
are of the opinion that they merely specify the
nature and form of evidence which the Board will
consider in carrying out its duty under section 126
and in the determination of the status of the
employees of the unit in the Union, if such a
determination becomes necessary by virtue of
other provisions in the Act. In any event, obvious
ly, the regulations cannot override statutory provi
sions and at best, can only assist the applicant in
his argument respecting the scheme of the Code,
an argument which has already been disposed of.
Because, in our opinion, the Board is not obliged
to satisfy itself on the question of union member
ship, it becomes unnecessary to consider the other
question raised by counsel for the applicant which
would have been necessary if we had reached a
contrary conclusion on his first point.
Accordingly, the section 28 application must 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.