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Labour Relations Boards and the Courts*

Published online by Cambridge University Press:  07 November 2014

W. B. Cunningham
W. B. Cunningham*
Affiliation:
Mount Allison University
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Extract

There are three types of boards for making Canadian labour relations policy effective: conciliation boards; arbitration boards; and labour relations boards. The conciliation and arbitration boards are ad hoc bodies appointed to deal with particular disputes. The labour relations boards (or LRB's) are permanent bodies, some of which sit continuously and deal with hundreds of disputes a year. Of the three types the LRB's are the most important. It is surprising that so little has been written about them.

This paper deals with one part of our experience with LRB's—the fate of their decisions when these are challenged in the law courts. Towards the end of the paper I comment briefly on the general problem of government policy and judicial review—a topic of importance to anyone concerned about the effectiveness of government policy, the containment of power, and the question of justice for the individual. In this larger perspective the LRB experience may be viewed as something of an illustrative case study.

Since 1944 a corner-stone of Canadian labour relations policy has been the certification of unions as exclusive bargaining agents for a defined unit of employees. An employer cannot legally refuse to bargain with a properly certified union; thus the policy is properly called compulsory collective bargaining. To receive certification a union usually has to have as members a majority of the employees in the appropriate bargaining unit; alternatively, a majority of the employees in the unit must have indicated by secret ballot that they wish the union to be their bargaining agent. For this policy to be applied two primary questions must be answered: (a) What unit of employees is appropriate for collective bargaining? (b) What union, if any, do a majority of the employees in that unit wish to have as their bargaining representative? The principal task of a labour relations board is to provide answers to these questions.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 30 , Issue 4 , November 1964 , pp. 499 - 511
Copyright
Copyright © Canadian Political Science Association 1964

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Footnotes

*

This paper was presented at the annual meeting of the Canadian Political Science Association in Charlottetown, June 12, 1964. I am indebted to the Institute for Economic Research, Queen's University, and to the Canada Council for supporting the study of this topic in the summer of 1963.

References

1 It is questionable whether the common label, “quasi-judicial,” has any useful meaning. See Robson, W. A., Justice and Administrative Law, 3rd ed. (London, 1951), 494 f.Google Scholar

2 Dominion Fire Brick and Clay Products v. LRB (1946), 4 DLR 574 (Sask. CA); (1947), 3 DLR 1 (SC Canada).

3 LRB of Saskatchewan v. John East Iron Works Ltd. (1948), 1 DLR 652 (Sask. CA); (1948), 4 DLR 673 (JCPC).

4 A related question is whether counsel for a board should argue the merits of a board decision in cases in which counsel for the contending parties are fully prepared to argue the case. Some courts see this practice as a threat to the appearance of a board's impartiality. See Genaire Ltd. v. International Association of Machinists et al. (1958), 14 DLR 201 (Ont. HC); (1959), 18 DLR 588 (Ont. CA); and Regina v. Labour Relations Board, (NB), ex parte Eastern Bakeries Ltd. (1960), 23 DLR (2nd), 635 (SCNB Appeal Div.).

5 RSC 1952, c. 152.

6 RSO 1960, c. 202.

7 RSS 1953, c. 259, s. 17.

8 Willis, J., “Administrative Law in Canada” (1961), 39 Can. Bar Rev., 258.Google Scholar

9 Industrial Relations Act, SPEI 1962, c. 18; 1963, c. 20 sec. 12 (1) (h).

10 See Laskin, B., “Certiorari to Labour Boards: The Apparent Futility of Privative Clauses” (1952), 30 Can. Bar Rev., 986.Google Scholar

11 Ontario Food Terminal Board and International Brotherhood of Teamsters, et al. (1963), 38 DLR 530. For a commentary by ProfessorLaskin, , see (1963), 41 Can. Bar Rev., 446.Google Scholar

12 “Armstrong Transport and International Brotherhood of Teamsters et al., Local 938” (11 30, 1963), CCH Canadian Labour Law Reporter, 12, 804.Google Scholar For a discussion of precedents, see the decision by McRuer, CJHC, in United Steelworkers of America v. International Nickel Company of Canada et al. (1964), 41 DLR 456.

13 R. v. LRB (NS) and International Brotherhood of Boilermakers, ex Bel. Ocean Steel and Construction Ltd. (1961), 2 DLR 449 (SCNS).

14 RSNS 1954, c. 295.

15 Re Lunenberg Sea Products Ltd., Re Zwicker (1947), 3 DLR 195 (SCNS).

16 Re LRB (NS), International Union of Operating Engineers, Local No. 721 v. Municipal Spraying and Contracting Ltd. (1955), 1 DLR 353 (SCNS).

17 The Queen (ex parte Municipal Spraying and Contracting Ltd.) and Labour Relations Board (NS) et al. (1955), 2 DLR 681 (SCNS in Appeal).

18 Re Certification of District No. 26, United Mine Workers of America (1960), 44 MPR 270 (SCNS in banco).

19 LRB of Sask. v. Speers and Regina Undertakers Employees' Federal Union (1948), 1 DLR 340, affirming Re Speers and Labour Relations Board of Sask. etc. (1947), 2 DLR 835.

20 Board of Prince Albert School Unit No. 46, Prince Albert, Sask. NUPE Local Union No. 832 (1962), 35 DLR (2nd), 361 (Sask. CA).

21 Rex v. Labour Relations Board, Ex parte Gorton—Pew (New Rrunswick) Limited (1952), 2 DLR 621.

22 Re McCord and Co. and Ontario LRB et al. (1956), 4 DLR 455.

23 Supra, note 18.

24 The Labour Relations Board (BC) et al. v. Canada Safeway Limited (1953), 3 DLR 561 (SC Can.).

25 Toronto Newspaper Guild v. Globe Printing Co. (1953), 3 DLR 561 (SC Can.), at pp. 572–3.

26 Labour Relations Board et al. v. Traders' Service Limited (1958), 11 DLR 364, affirming Re Traders Service Limited (1957), 23 WWR 67. For the Supreme Court, Canada, decision: CCH, Can. Lab. Law Rep., 11, 585.

27 Labour Relations Board of B.C. et al. v. Oliver Co-operative Growers Exchange (1962), 40 WWR 333 (SC Can.); in appeal from Oliver Co-operative Growers Exchange v. Labour Relations Board (1962), 32 DLR 440 (BCCA).

28 Jarvis (Barbara) v. Assoc. Medical Service Ltd. et al., CCH Can. Lab. Law Rep., 12, 879 (SC Can.); affirming Associated Medical Services Inc. v. Ont. LRB et al. (1962), OR 1093 (Ont. CA).

29 Millward, P. J., “Judicial Review of Administrative Authorities in Canada” (1961), 39 Can. Bar Rev., 393.Google Scholar

30 Corry, J. A., Law and Policy, The W. W. Martin Lectures, 1957, at the College of Law, University of Saskatchewan (Toronto, 1959), 44.Google Scholar

31 Ibid., 50. Quoting from SirPollock, Frederick, Essays in Jurisprudence and Ethics (London, 1882), 85.Google Scholar

32 Law and Policy, 44.

33 See McAllister, G. A., “Administrative Law,” Canadian Bar Journal, vol. 6, no. 6 (11 1963), 439–40.Google Scholar

34 SPEI, 1962, c. 18,1963, c. 20 sec. 12 (1).

35 Journal Publishing Company Limited v. Charlottetown Typographical Union Local 963, CCH Can. Lab. Law Rep., 12, 923 (PEISC) (Mar. 24, 1964).