Labour Relations Boards and the Courts

Abstract

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.