A-810-80
Halifax Longshoremen's Association, Local 269
of the International Longshoremen's Association
(Applicant)
v.
David C. Nauss, Peter H. Roberts, Maritime
Employers' Association and Canada Labour Rela
tions Board (Respondents)
and
Deputy Attorney General of Canada
Court of Appeal, Thurlow C.J., Pratte J. and
Lalande D.J.—Halifax, April 29; Ottawa, May
21, 1981.
Judicial review — Labour relations — Application to review
and set aside a decision of the Canada Labour Relations
Board ordering applicant to admit respondent Nauss as one of
its members and to add respondent Roberts to the list of card
men — Applicant is a labour union which supplies longshore
men to stevedoring companies — Respondents are non-mem
bers of the Union — Whether the Board exceeded its jurisdic
tion under the Canada Labour Code in giving the order —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Canada Labour Code, R.S.C. 1970, c.
L-1, as amended, ss. 121, 136.1, 161.1, 185(J), 187, 188, 189.
This is an application to review and set aside a decision of the
Canada Labour Relations Board ordering the applicant to
admit respondent Nauss into its membership and to add
respondent Roberts to the list of its card men. It also ordered
the applicant to prepare and post a set of rules for employment
referral pursuant to section 161.1 of the Canada Labour Code
which, according to the Board, it had contravened. The appli
cant, a labour union, supplies longshoremen to stevedoring
companies. In its operation it gives preference to its members,
then to non-members who are card men. Neither Nauss nor
Roberts was a member but Nauss was a card man. As a result
of applicant's policy, they were denied membership. They filed
complaints with the Board alleging that the applicant contra
vened various sections of the Code. The issue is whether the
Board exceeded its jurisdiction in making the orders relating to
Nauss and Roberts.
Held, the application is allowed. The Board could, under
section 189 of the Canada Labour Code, order the applicant to
comply with section 161.1 and it could require the applicant to
do or refrain from doing anything in order to remedy or
counteract a consequence of the violation of that section. The
orders relating to Nauss and Roberts were not made and could
not have been made for that purpose. The exclusion of Nauss
from the applicant and of Roberts from the ranks of the card
[1981] 2 F.C. at p. 828
men cc The third line from the top of the page is
concern
amended to read: "Also, per Thurlow C.J. and
Also, Lalande D.J.:"
and foil
enact or establish such rules for the Union or to order that
action not in accordance with them be taken. That is not to say
that the Board cannot in a proper case order a union to admit a
member. But the present is not a case of a union applying
established rules in a manner that contravenes paragraph
185(f) of the Code. The order to admit Nauss to membership
appears to have been made to discipline the Union rather than
to remedy or counteract consequences of the only failure to
comply with the law that had been found against it.
APPLICATION for judicial review.
COUNSEL:
Gerald J. McConnell and R. F. Larkin for
applicant.
D. Merlin Nunn, Q.C. and T. Roane for
respondent David C. Nauss.
Yves Raic for respondent Maritime Employ
ers' Association.
E. B. Durnford for respondent Canada
Labour Relations Board.
SOLICITORS:
Kitz, Matheson, Green & MacIsaac, Halifax,
for applicant.
Cox, Downie, Nunn & Goodfellow, Halifax,
for respondent David C. Nauss.
Ogilvy, Renault, Montreal, for respondent
Maritime Employers' Association.
McInnes, Cooper & Robertson, Halifax, for
respondent Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I have had an opportunity to
read the reasons for judgment prepared by Mr.
Justice Pratte and I agree with his conclusion that
the part of the decision of the Canada Labour
Relations Board which was attacked in this pro
ceeding should be set aside. I am also in substan
tial agreement with his reasons for reaching that
conclusion.
The facts have been set out by Mr. Justice
Pratte and I need not repeat them. The issue is
whether the Canada Labour Relations Board
exceeded its jurisdiction under the Canada Labour
Code, R.S.C. 1970, c. L-1, as amended, when it
ordered the applicant Union to accept the respond
ent Nauss into its membership and to add the
respondent Roberts to its list of card men.
Two provisions of the Code were invoked as
justifying the order, viz. section 121 and section
189. The former, which is found among provisions
dealing with the general powers of the Board, in
my opinion, is merely an authorization to do what
is necessary or incidental to the effective use of
other powers and adds nothing to what, if any
thing, the Board might properly order r under sec
tion 189. That section provides:
189. Where, under section 188, the Board determines that a
party to a complaint has failed to comply with subsection
124(4) or section 136.1, 148, 161.1, 184, 185 or 186, the Board
may, by order, require the party to comply with that subsection
or section and may
(a) in respect of a failure to comply with section 136.1,
require a trade union to take and carry on on behalf of any
employee affected by the failure or to assist any such
employee to take and carry on such action or proceeding as
the Board considers that the union ought to have taken and
carried on on the employee's behalf or ought to have assisted
the employee to take and carry on;
(a.1) in respect of a failure to comply with subsection 124(4)
or paragraph 148(b), by order, require an employer to pay to
any employee compensation not exceeding such sum as, in
the opinion of the Board, is equivalent to the remuneration
that would, but for that failure, have been paid by the
employer to the employee;
(b) in respect of a failure to comply with paragraph
184(3)(a), (c) or (j), by order, require an employer to
(i) employ, continue to employ or permit to return to the
duties of his employment any employee or other person
whom the employer or any person acting on behalf of the
employer has refused to employ or continue to employ or
has suspended or discharged for a reason that is prohibited
by one of those paragraphs,
(ii) pay to any employee or other person affected by that
failure compensation not exceeding such sum as, in the
opinion of the Board, is equivalent to the remuneration
that would, but for that failure, have been paid by the
employer to that employee or other person, and
(iii) rescind any disciplinary action taken in respect of and
pay compensation to any employee affected by that failure,
not exceeding such sum as, in the opinion of the Board, is
equivalent to any financial or other penalty imposed on the
employee by the employer;
(c) in respect of a failure to comply with paragraph
184(3)(e), by order, require an employer to rescind any
disciplinary action in respect of and pay compensation to any
employee affected by the failure, not exceeding such sum as,
in the opinion of the Board, is equivalent to any pecuniary or
other penalty imposed on the employee by the employer;
(d) in respect of a failure to comply with paragraph 185(/) or
(h), by order, require a trade union to reinstate or admit an
employee as a member of the trade union; and
(e) in respect of a failure to comply with paragraph 185(g),
(h) or (i), by order, require a trade union to rescind any
disciplinary action taken in respect of and pay compensation
to any employee affected by the failure, not exceeding such
sum as, in the opinion of the Board, is equivalent to any
pecuniary or other penalty imposed on the employee by the
trade union,
and, for the purpose of ensuring the fulfilment of the objectives
of this Part, the Board may, in respect of any failure to comply
with any provision to which this section applies and in addition
to or in lieu of any other order that the Board is authorized to
make under this section, by order, require an employer or a
trade union to do or refrain from doing any thing that it is
equitable to require the employer or trade union to do or
refrain from doing in order to remedy or counteract any
consequence of such failure to comply that is adverse to the
fulfilment of those objectives.
It will be observed that this section authorizes
the Board in respect of violations of the provisions
mentioned to:
(1) require a trade union to comply with the
provision that has been violated,
(2) make specific types of orders in respect of
violations of certain particular provisions not
including section 161.1, and
(3) for the purpose of ensuring fulfilment of the
objectives of Part V of the Code in addition to
or in lieu of any other order that the Board is
authorized to make under the section, require a
"union to do ... any thing that it is equitable to
require the ... union to do ... in order to
remedy or counteract any consequence of such
failure to comply that is adverse to the fulfil
ment of the objectives."
This is undoubtedly a broad power, one that
leaves room for the exercise by the Board of
ingenuity in finding and prescribing remedies that
fit particular situations. But it is not so broad as to
authorize the Board, as the Board held, to "take
such action as we judge necessary or appropriate
to undo what has been done and to achieve objec
tives of the Code". What the Board may order is
limited, as it seems to me, by what "it is equitable
to require" the union to do "in order to remedy or
counteract any consequence of' the "failure to
comply" that is adverse to the fulfilment of the
objectives of Part V. The "failure to comply"
refers to the previous wording "any failure to
comply with any provision to which this section
applies".
The Board's findings appear from the following
passages from its decision:
We find the union has contravened section 161.1 in that it
has not established rules and posted them as required. We find
those rules must necessarily include rules for attaining union
membership and if those rules give priority to card men, which
we think reasonable, they must necessarily contain rules against
which a card man may know how he keeps or establishes his
place on the priority list from time to time. All these rules in
themselves must be fair and non-discriminatory. Section
161.1(1) requires a union, once having established rules, to
apply them fairly and without discrimination. In Keith Sheedy,
supra, we said "Not having any rules it cannot be said they are
applied fairly and without discrimination as required by section
161.1(1)" (pp. 405 and 14,288). The same is true here. We
need not find Nauss was singled out for special treatment. We
must find whether the rules were applied fairly and without
discrimination and that is a continuous process.
After an extensive quotation from its reasons in
the Keith Sheedy case the Board continued:
We find there has been a failure to comply with section
161.1(1).
Because we consider membership rules to be an integral part
of the rules for the referral to employment we do not consider it
necessary to make any finding with respect to section 185(f)
where Nauss was not singled out for any special treatment.
With respect to section 136.1 and the duty of fair representa
tion we do not consider it to be particularly apposite for this
situation. We wish to state we do not find the negotiation of
certain preferential benefits for union members, being those
persons attached to the industry, contrary to this section. Nor
do we find the union breached its duty in any respect other than
where acting contrary to Article 15 (Rules of Dispatch) was the
same activity on which the complaint under section 161.1 was
based. We consider that having made a finding of a contraven
tion of section 161.1 we need not be more specific in consider
ing section 136.1.
It will be observed that while the Board found
that the applicant Union had breached all three
subsections of section 161.1 in failing to establish
and post rules for the making of referrals of per
sons for employment and in failing to apply such
rules without discrimination, the Board did not
find that the Union had breached in any other way
its obligation under section 136.1 to represent,
fairly and without discrimination, all employees in
the bargaining unit. Nor did the Board find that
the Union had violated paragraph 185(f) by deny
ing membership to Nauss or Roberts by applying
to either of them in a discriminatory manner the
membership rules of the Union. The only order
therefore that the Board could properly make
under section 189 (apart from an order to comply
with section 161.1) was an order to the Union to
do any thing that it would be equitable to require
the Union to do to remedy or counteract any
consequence of its failure to establish and post
referral rules and to apply them fairly and without
discrimination.
It is not difficult to conceive of situations in
which an employee may have been unfairly, or
otherwise by reason of discrimination, deprived of
an opportunity, which he might otherwise have
had, to work or to work overtime or to work a
convenient shift. In such situations it may, depend
ing on the circumstances, be equitable to require
the union to make up to the employee the loss he
has suffered by giving him the first opportunities
that arise of the kind he has missed. If that were
done, the effect would be to remedy the conse
quence of the union's failure to comply with sec
tion 161.1. A further order designed to "coun-
teract" any continuing consequence might also be
appropriate. There may be other kinds of remedies
as well, such as an order to pay the employee's
loss, that might not be inappropriate.
But I do not think that, in the situation found by
the Board, it can be said that it was equitable
either to persons who, under such membership
rules as the Union had, would have had priority
over Nauss for admission to membership, or to the
Union itself to order the Union to admit Nauss.
The Union is entitled to establish and follow its
own membership rules. It is not for the Board to
enact or establish such rules for the Union or to
order that action not in accordance with them be
taken. That is not to say that the Board cannot in
a proper case order a union to admit a member.
But the present is not a case of a union applying
established rules in a manner that contravenes
paragraph 185(f).
Nor do I think that the order for the admission
of Nauss to membership in the Union can be
regarded as an apt or appropriate measure to
remedy or counteract any consequence that had
resulted to Nauss or to anyone else by reason of
the Union's failure to establish and post referral
rules and to apply them fairly and without dis
crimination. The finding of failure to comply with
section 161.1 is couched in the most general of
terms and there is no finding that Nauss suffered
any specific consequence or loss by reason of such
failure. In this situation to order the Union to
admit him to membership does not appear either
to be related to the violation of section 161.1 or to
be a remedy for any consequence that resulted to
Nauss from the violation. Moreover, in a passage
which immediately precedes the direction to admit
Nauss, the Board said:
In this case it is necessary to bring home to the union and
those using its employment referral system the seriousness of its
task and the shoddy manner in which it has been conducting its
affairs. We propose to do this by directing the following:
In the circumstances the order to admit Nauss to
membership appears to have been made to disci
pline the Union rather than to remedy or coun
teract consequences of the only failure to comply
with the law that had been found against it.
I am accordingly of the view that the Board
exceeded its jurisdiction in ordering the applicant
Union to admit Nauss into its membership. For
the like reasons I am of the opinion that the Board
also exceeded its jurisdiction in requiring the
applicant Union to add Roberts to its list of card
men. Those portions of the Board's decision should
accordingly be set aside.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside a decision of
the Canada Labour Relations Board.
The applicant is a labour union representing
longshoremen working in the Port of Halifax. It
entered into a collective agreement with the Mari
time Employers' Association, one of the respond
ents, which represents the various companies
employing stevedores in that Port. Under the
agreement, the applicant has the responsibility of
operating a hiring hall through which longshore
men are supplied to the various companies that
need their services. In the operation of that hiring
hall, the applicant gives the preference to its own
members; when union members are not available
to meet the requirements of the stevedoring com
panies, the work is offered to non-union men, and,
among them, priority is given to a group of men
designated as "card men" because they have
bought from the applicant Union a card identify
ing them as regular part-time longshoremen.
Early in 1980, the respondents Nauss and Rob-
erts filed complaints with the Board alleging that
the applicant had contravened various sections of
the Canada Labour Code. Both were non-union
longshoremen who wanted to become members of
the applicant; Nauss was a card man while Rob-
erts did not even hold a card. They were the
victims of the policy of the applicant to admit very
few new members and to restrict the number of
card men. They alleged that the applicant had
breached sections 136.1, 161.1 and paragraph
185(f) of the Code.'
' Those provisions read as follows:
136.1 Where a trade union is the bargaining agent for a
bargaining unit, the trade union and every representative of
the trade union shall represent, fairly and without discrimi
nation, all employees in the bargaining unit.
161.1 (1) Where, pursuant to a collective agreement, a
trade union is engaged in the referral of persons to employ
ment, it shall apply, fairly and without discrimination, rules
established by the trade union for the purpose of making the
referral.
(2) Rules applied by a trade union pursuant to subsection
(1) shall be kept posted in a conspicuous place in every area
After a lengthy hearing of those complaints, the
Board issued a written decision in which it found
A. that the applicant had contravened section
161.1 by failing to establish and post rules gov
erning the referral of longshoremen to employ
ment;
B. that it was unnecessary to make any finding
with respect to paragraph 185(f) since there was
no evidence that Nauss and Roberts had been
singled out for special treatment; and
C. that section 136.1 was not "particularly
apposite for this situation" and that, in view of
the finding that section 161.1 had been
breached, there was no need to' be more specific
in considering section 136.1.
Having made those findings, the Board directed
1. that Nauss be admitted as a member of the
applicant and that Roberts be added to the list
of card men; and
2. that, in order to achieve compliance with
section 161.1 for the future, the applicant Union
prepare and post, before March 1, 1981, a set of
rules for employment referral, including rules
governing admittance to union membership and
issuance of cards.
That is the decision against which this section
28 application is directed.
The applicant's only ground of attack is that the
Board exceeded its jurisdiction in ordering that the
of premises occupied by the trade union in which persons
seeking referral normally gather.
(3) Where a trade union to which subsection (1) applies
has not established, before the coming into force of this
section, rules for the purpose of making the referral referred
to in that subsection, the trade union shall establish rules for
that purpose forthwith after the coming into force of this
section.
(4) In this section, "referral" includes assignment, desig
nation, dispatching, scheduling and selection.
185. No trade union and no person acting on behalf of a
trade union shall
(f) expel or suspend an employee from membership in the
trade union or deny membership in the trade union to an
employee by applying to him in a discriminatory manner
the membership rules of the trade union;
respondent Nauss be admitted as one of its mem
bers and that the name of the respondent Roberts
be added to the list of card men. Those were not,
says the applicant, orders that the Board was
authorized to make under the Code.
It is common ground that the complaints of the
respondents Nauss and Roberts were made under
section 187 of the Code. The Board had the duty,
pursuant to section 188, to hear and determine
them and was empowered to make the orders
specified in section 189. That section reads in part
as follows:
189. Where, under section 188, the Board determines that a
party to a complaint has failed to comply with ... section 136.1
... 161.1 ... 185 ... the Board may, by order, require the
party to comply with that ... section .. .
and, for the purpose of ensuring the fulfilment of the objectives
of this Part, the Board may, in respect of any failure to comply
with any provision to which this section applies and in addition
to or in lieu of any other order that the Board is authorized to
make under this section, by order, require an employer or a
trade union to do or refrain from doing any thing that it is
equitable to require the employer or trade union to do or
refrain from doing in order to remedy or counteract any
consequence of such failure to comply that is adverse to the
fulfilment of those objectives.
In this case, the Board determined that the
applicant had contravened section 161.1 by failing
to establish and post rules of referral; the Board
did not determine that the applicant had contra
vened any other provision of the Code. It followed
that, under section 189, the Board could order the
applicant to comply with section 161.1 and that it
could, in addition, require the applicant to do or
refrain from doing any thing in order to remedy or
counteract a consequence of the violation of that
section. It also followed that the Board could make
no other order than those.
As the Board's directives relating to the
respondents Nauss and Roberts obviously did not
order compliance with section 161.1, the sole ques
tion to be answered is whether those directives
required the applicant to do or refrain from doing
something in order to remedy or counteract a
consequence of the violation of that section. I am
of the view that those orders were not made and
could not have been made for that purpose. The
exclusion of Nauss from the applicant and of
Roberts from the ranks of the card men could not
conceivably flow from the absence of rules con
cerning referral to employment. Moreover, the
Board did not purport to make those directives in
order to remedy or counteract a consequence of
the violation of section 161.1; the Board made
those directives for the avowed purpose of bringing
home "to the union ... the seriousness of its task
and the shoddy manner in which it has been
conducting its affairs" on the assumption, which
was expressly stated in the decision under attack,
that the Board could, under sections 121 and 189,
pronounce any order that it considered appropriate
to achieve the objectives of the Code. I have
already indicated that I take a narrower view of
the Board's powers under section 189; I am also of
opinion that section 121 does not add anything
substantial to those powers.
For those reasons, I am of the view that the
Board exceeded its jurisdiction when it issued
directives relating to the respondents Nauss and
Roberts. I would, therefore, allow the application
and set aside those parts of the decision under
attack.
* * *
LALANDE D.J. concurred.
Page 837
•
The concurrence of Lalande D.J. is deleted from
the end of the case and inserted at the bottom of
page 833 following the reasons for judgment of
Thurlow C.J.
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.