Supreme Court of Canada
Cunningham Drug Stores Ltd. v. Labour Relations Board and Attorney General for British Columbia et al., [1973] S.C.R. 256
Date: 1972-11-22
Cunningham Drug Stores Ltd. Appellant;
and
Labour Relations Board and Attorney-General for the Province of British Columbia Respondents,
and
The Retail Clerks Union Local 1518 Respondent.
1972: October 12, 13; 1972: November 22.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
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Labour relations—Five applications for certification as bargaining agent for employees of appellant employed in five of its drug stores—Amalgamation of original five suggested units into one unit proposed by Labour Relations Board—No objection by union—Certification granted for consolidated unit—Jurisdiction of Board—Labour Relations Act, R.S.B.C. 1960, c. 205, ss. 10(1), 12(1), (2), (4), 62(8).
The respondent union made five applications for certification as the bargaining agent for the employees of the appellant, except pharmacists, employed in five of its 74 drug stores in British Columbia. The appellant opposed the applications on the ground that the units applied for were not appropriate for collective bargaining. It was submitted that a more appropriate unit would be one consisting of all the employees in all the appellant’s stores. The Labour Relations Board advised that it would be prepared to order certification of the union for employees of the appellant in a unit comprising all five of the stores. The union had no objection to this proposal, but, in the submission of the appellant, the Board had no jurisdiction to grant certification for such a unit.
Subsequently, certification for the unit comprising the five stores was given and thereafter an application by the appellant for a writ of certiorari to quash the Board’s decision and the certification of the union was granted. The Court held that the Board acted without jurisdiction, there being no application before it for the unit certified. On appeal to the Court of Appeal, this judgment was reversed by a majority of two to one. With leave, the employer then appealed to this Court.
Held (Spence J. dissenting): The appeal should be dismissed.
Under the Labour Relations Act, R.S.B.C. 1960, c. 205, if a union has a majority of the employees in a unit for which it seeks certification as the bargaining agent, and which the Board considers appropriate, as members in good standing, it can require certification.
In the present case, the union had no objection to the unit suggested by the Board as being appropriate. It must have had a majority of the employees in that unit, as members in good standing, in order to obtain certification. The Board had required notice to be given to the employees affected, ad-
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vising that the union had applied to be certified as their bargaining agent. No objection had been taken by any employee. The employees must be taken to have acquiesced in the union’s representing them as bargaining agent in a unit which would include all employees except pharmacists.
In view of these circumstances, it could not be contended, successfully, that, because the employees did not have a further notice as to the proposed amalgamation of the original five suggested units into one unit, the Board had failed, contrary to s. 62(8) of the Act, to give an opportunity to all interested parties to be heard.
Per Spence J., dissenting: the appeal should be allowed for the dissenting reasons delivered in the Court of Appeal by Robertson J.A.
[La Commission des Relations de Travail du Québec v. Cimon Limitée, [1971] S.C.R. 981, referred to.]
APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Dohm J. Appeal dismissed, Spence J. dissenting.
J.L. Farris, Q.C. and I.G. Nathanson, for the appellant.
J.N. Laxton, for the respondent, The Retail Clerks Union Local 1518.
G.S. Cumming, Q.C., for the respondents, Labour Relations Board and Attorney-General of British Columbia.
The judgment of Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Pigeon and Laskin JJ. was delivered by
MARTLAND J.—This is an appeal from the judgment of the Court of Appeal for British Columbia, which, as a result of a majority decision, allowed the present respondents’ appeal from a judgment which had quashed a decision of the respondent Labour Relations Board (hereinafter referred to as “the Board”) certifying the respondent Retail Clerks Union Local 1518 (hereinafter referred to as “the Union”) as the bargaining agent for a unit of employees of the appellant.
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The facts which gave rise to these proceedings are not in dispute. The Union, early in 1971, made five applications for certification as the bargaining agent for the employees of the appellant, except pharmacists, employed in five of its 74 drug stores in British Columbia, two of which were located in Chilliwack, and the others in Langley, Mission and Powell River. Notices of these applications were given by the Board to the appellant, which was required to post a notice, for five consecutive working days, in each of the establishments in a conspicuous place where it might be seen by the employees affected. The notice, in each case, was a notice of the Union’s application to be certified for a unit consisting of the employees, except pharmacists, at the particular drug store and advising that written submissions concerning the application would be considered by the Board if received within ten days of the date of the notice.
Each notice to the appellant likewise advised that written submissions concerning the application would be considered by the Board if received within ten days of the date of the notice.
Four of the notices from the Board to the appellant were dated February 1, 1971. The fifth, relating to the store at Powell River, was dated February 16, 1971.
We were advised by counsel for the Board that no submissions were received by the Board from any of the employees of the appellant affected by the applications. The appellant’s solicitors wrote to the Board on February 19 opposing the applications on the ground that the units applied for were not appropriate for collective bargaining. It was pointed out that the appellant operated 74 retail stores in British Columbia, eight in Alberta and one in the Yukon Territory. It was contended that an individual retail store was not an appropriate unit for collective bargaining and it was submitted that a more appropriate unit would be one consisting of all the employees in all of the appellant’s stores. A copy of this letter was sent by the Board to the Union, whose solicitors replied to the appellant’s submission by a letter to the Board dated March 15.
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On March 17 the Board wrote to the appellant’s solicitors advising that the Board deemed it advisable to postpone consideration of the five applications for certification, and also advising that the Board would be prepared to order certification of the Union for employees of the appellant in a unit comprising all five of the stores. The letter stated that written submissions would be considered if received before March 24. This date was extended, at the appellant’s request, until March 31.
The Union advised the Board, by letter dated March 19, that it had no objection to this proposal.
The appellant’s solicitors replied to the Board’s letter on March 30 and stated:
In our Submission the Board has no jurisdiction to grant Certification of the Union for the employees in such a Unit.
Certification for the unit comprising the five stores was given on April 6, 1971.
The appellant’s solicitors, by notice of motion dated April 16, 1971, directed to the Board, the Attorney-General for British Columbia and the Union, gave notice of an application for a writ of certiorari to quash the Board’s decision and the certification of the Union on the ground that:
1. The Labour Relations Board acted without jurisdiction in that it has purported to issue the aforesaid Certificate of Bargaining Authority without any application having been made therefor under the Labour Relations Act 1960 R.S.B.C. Chapter 205.
2. In the alternative, if an application was made for the aforesaid Certificate of Bargaining Authority, then the Labour Relations Board acted without jurisdiction as well as contrary to established principles of natural justice, and therefore in abuse and in excess of its jurisdiction in that it has purported to issue the aforesaid Certificate of Bargaining Authority without fair and adequate notification to the Prosecutor herein of the said Application, and in any event without notification of the said Application to the Prosecutor herein in the manner and way prescribed by the Labour Relations Act regulations as is required by the Labour Relations Act 1960 R.S.B.C. Chapter 205.
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This application was granted. The Court accepted the first submission and held that the Board acted without jurisdiction, there being no application before it for the unit certified.
On appeal to the Court of Appeal, this judgment was reversed by a majority of two to one.
Dealing with the first point raised by the appellant, Chief Justice Davey, who delivered the majority reasons, said this:
The material parts of the Labour Relations Act, R.S.B.C. 1960, Cap. 205, dealing with applications for certification read as follows:
“10. (1) A trade-union claiming to have as members in good standing a majority of employees in a unit that is appropriate for collective bargaining may, subject to the regulations, apply to the Board to be certified for the unit in any of the following cases:”
“12. (1) Where a trade-union applies for certification for a unit, the Board shall determine whether the unit is appropriate for collective bargaining, and the Board may, before certification, include additional employees in, or exclude employees from, the unit.”
“62. (8) The Board shall determine its own procedure, but shall in every case give an opportunity to all interested parties to present evidence and make representation,”
“65. (1) If a question arises under this Act as to whether
…
(i) a group of employees is a unit appropriate for collective bargaining;
…
the Board shall decide the question, and its decision shall be final and conclusive.”
“70. No proceeding under this Act shall be deemed invalid by reason of any defect in form or any technical irregularity.”
I take it to be clear that the Board may under section 12(1) augment or reduce the unit in respect of which certification is sought, at least so long as it does not change the essential character of the unit specified in the trade union’s application.
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Under the five separate applications the Board had acquired jurisdiction piecemeal over the components of the unit for which certification was ultimately granted. It could therefore add to or subtract from each of the components. Having jurisdiction over the several components of the larger unit, the Board, being the master of its own procedure, in my opinion, had the right to consolidate the five separate applications into an application for certification in respect of one unit consisting of the several units applied for, instead of dismissing the five applications and compelling the union to submit a new application for certification in respect of the consolidated unit.
He disposed of the second point in the following passage of his reasons:
Respondent supports the judgment upon another ground taken, but not decided, below, namely that the Board did not, as required by section 62(8), give it an opportunity to present evidence and make representations. That submission is based on the fact that the Board sent to the Union a copy of the respondent’s representations dated February 19, 1971, concerning an appropriate form of the bargaining unit, and received a detailed answer from the union’s solicitors dated March 15, 1971, but did riot disclose it to respondent. Also, that the Board did not disclose to the respondent that the union had by letter dated March 19th, 1971, said that it had no objection to the Board’s proposal of March 17th, 1971, for the larger unit.
The respondent submits that it did not know of those two letters and had no opportunity of answering them.
But there is a decisive answer to that submission. The Board’s proposal that the bargaining unit be the employees of the five stores was obviously the outcome of the respondent’s objection to the units proposed in the applications, and the union’s answers thereto. The Board had invited submissions on that proposal. That was the respondent’s opportunity to answer the Board’s proposal on its merits. What had occurred before was crystallized in the Board’s proposal, and that proposal now required an answer, but respondent chose to confine its answer to one of lack of jurisdiction. I cannot see that the union’s bare acquiescence in that proposal introduced any new element that entitled the respondent to reply
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to it. In my opinion the judgment below cannot be supported on that ground.
I agree with these reasons in respect of both these matters.
Before this Court, counsel for the appellant, for the first time, raised an additional issue. It was contended that the Board had acted in breach of s. 62(8) of the Act, cited above, by failing to give to the appellant’s employees, affected by the certification of the Union, who were interested parties, an opportunity to present evidence and make representation regarding the bargaining unit approved by the Board. It may be noted that none of the employees was joined as a party in the present proceedings.
Section 10(1) of the Act provides that a trade union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining may, subject to the regulations, apply to be certified for the unit where no collective agreement is in force and no trade union has been certified for the unit. The regulations prescribe the form of the application, which requires a description of the proposed unit, and a statement of the number of employees in the unit and the number of those employees who are members in good standing of the applicant union.
The regulations require the Registrar of the Board to seek information from the employer of the employees in the unit, from the trade union which applies, and such other persons as the Board may direct in a specific case.
The regulations also provide that the Board may require the employer to post, for five consecutive working days, in a conspicuous place or places in his establishment, the form of notice, which the appellant was required to post in this case.
Section 12(1) leaves it to the Board to determine whether the unit is appropriate for collective bargaining and enables it to include additional employees in, or to exclude employees from, the unit. Subsection (2) requires the Board to make
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or cause to be made such examination of records and other inquiries as it deems necessary to determine the merits of the application for certification. Under subs. (4), if the Board is satisfied that a majority of the employees in the unit were, at the date of the application, members in good standing of the union, it is required to certify the union as the bargaining agent for the employees in that unit.
In summary, if a union has a majority of the employees in a unit for which it seeks certification as the bargaining agent, and which the Board considers appropriate, as members in good standing, it can require certification.
In the present case, the Union had no objection to the unit suggested by the Board as being appropriate. It must have had a majority of the employees in that unit, as members in good standing, in order to obtain certification. The Board had required notice to be given to the employees affected, advising that the Union had applied to be certified as their bargaining agent. No objection had been taken by any employee. The employees must be taken to have acquiesced in the Union’s representing them as bargaining agent in a unit which would include all employees except pharmacists.
In view of these circumstances, it cannot be contended, successfully, that, because the employees did not have a further notice as to the proposed amalgamation of the original five suggested units into one unit, the Board had failed to give an opportunity to all interested parties to be heard. Moreover, when the Union acquiesced in the proposed amalgamation of units, we know that it spoke for a majority of the employees affected, and there is nothing in the record to show that it did not speak for all of them.
There is a further question which arises in respect of the issue now raised by the appellant, and that is as to its right to seek to set aside the Board’s decision because it alleges that the rights of other parties were not observed. In La Commission des Relations de Travail du Québec v. Cimon Limitée[2], the employer company sought
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the rescission by the Quebec Labour Relations Board of its order directing a vote on the application of a trade union for certification on the ground that notice of the petition for certification had not been given to another union, whose earlier petition for certification had been rejected following an employees’ vote. The company contended that the unsuccessful union was successor to former unions which had been certified, whose certification had not been cancelled, and that it was therefore entitled to such notice.
The Board ruled that the company was unlawfully pleading on another’s behalf an objection in which it had no legal interest. This position was sustained in this Court, which held that the company was not entitled to invoke the rights of another party before the Board.
I would dismiss this appeal, with costs.
SPENCE J. (dissenting)—I have had the opportunity of perusing the reasons circulated by Mr. Justice Martland and, with regret, I cannot agree therewith. On the other hand, I am in complete accord with the dissenting reasons delivered in the Court of Appeal for British Columbia by Mr. Justice Bruce Robertson and I would allow the appeal with costs.
Appeal dismissed with costs, SPENCE J. dissenting.
Solicitors for the appellant: Farris, Farris, Vaughan, Willis & Murphy, Vancouver.
Solicitors for the respondents, Labour Relations Board and Attorney-General of British Columbia: Fulton, Gumming & Co., Vancouver.
Solicitors for the respondent, The Retail Clerks Union Local 1518: Shulman, Tupper & Co., Vancouver.