Saskatoon Co-operative Association Limited Appellant (Applicant) v. United, 2023 SKCA 72

Court of Appeal for Saskatchewan Docket: CACV3981 Citation: Saskatoon Co-operative Association Limited v United Foodand Commercial Workers, Local 1400, 2023 SKCA 72Date: 2023-06-21Between:Saskatoon Co-operative Association LimitedAppellant (Applicant)AndUnited Food and Commercial Workers, Local 1400Respondent (Respondent)AndSaskatchewan Labour Relations BoardRespondent (Respondent)Before: Schwann, Tholl and Kalmakoff JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Mr. Justice Tholl The Honourable Mr.

Justice KalmakoffOn appeal from: 2022 SKQB 38, SaskatoonAppeal heard: June 7, 2022Counsel: Brent Matkowski and Zoe Johansen-Hill for the Appellant Crystal Norbeck, K.C., for the Respondent No one appearing for the Saskatchewan Labour Relations Board Schwann J.A. I.

INTRODUCTION [1] The United Food and Commercial Workers, Local 1400 [Union] applied to the Saskatchewan Labour Relations Board [Board]for a determination that the Saskatoon Co-operative Association Limited [Co-op] had committed an unfair labour practice by failing toremit union dues and by failing to recognize that the Union represented Co-op’s employees who worked at two of its recently acquiredretail stores. [2] The Board allowed the Union’s application: United Food and Commercial Workers, Local 1400 v Saskatoon Co-operativeAssociation Limited, [Board Decision].

Co-op applied by way of judicial review to quash and set aside the BoardDecision, but a Court of Queen’s Bench Chambers judge concluded that the Board Decision was reasonable and dismissed its application:Saskatoon Co-operative Association Limited v United Food and Commercial Workers, Local 1400, 2022 SKQB 38, 103 CLRBR (3d) 1[QB Decision]. [3] Co-op appeals from the QB Decision. For the reasons expressed below, I would dismiss its appeal. II. BACKGROUND [4] Co-op operates a network of retail stores in and around the City of Saskatoon that sells food, liquor and fuel, as well as homeand agricultural products.

The Union is certified as the bargaining agent for Co-op employees pursuant to an amended certification orderdated November 7, 2002, respecting “all employees employed by Saskatoon Co-operative Association Limited, working in or from itsplaces of business in Saskatchewan” (quoted in the Board Decision at para 58). [5] The last collective bargaining agreement, which expired in 2016, included the following scope clause, which paralleled theterms of the certification order: “This Agreement shall cover all employees of the Saskatoon Co-operative Association Limited working inor from its places of business, in the Province of Saskatchewan” (at para 6). [6] In 2017, Co-op began the negotiation process to amalgamate two existing co-operatives within its retail structure.

TheWatrous Co-op came under its control on August 19, 2018, and the Hepburn Co-op on February 3, 2019 [new locations]. Prior toamalgamation, the new locations were non-unionized workplaces where employment relationships were governed by the terms andconditions of the employees’ individual employment agreements. [7] Co-op and the Union were in the midst of a labour dispute while the amalgamation process was underway. Labour unresteventually led to a strike that commenced on November 1, 2018, and ended in mid April of 2019.

Prior to all Co-op employees returningto work, the parties negotiated a renewed collective bargaining agreement. Pursuant to a memorandum of agreement, the scope clauseincluded one named exception (an employee from a different location) but did not exclude the Watrous or Hepburn employees.

[ 8 ] It was undisputed by the parties that, during the course of the strike, no pickets took place at the new locations. It was also undisputed that the Union never overtly asserted that it represented the new employees or filed a grievance with the Board in connection with Co-op’s failure to fulfill its obligations with respect to these new employees.

Finally, the Union did not include the new employees in the ratification vote for the new collective bargaining agreement. [ 9 ] On May 1, 2019, the Union wrote to Co-op demanding that it provide union cards, dues and payments respecting Co-op’s employees at the Watrous and Hepburn locations.

In advancing its position, the Union, relied on s. 6 - 42 of The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Employment Act ], and sought to enforce the union security clause by asserting that the new employees were swept into and therefore part of the collective bargaining unit. [ 10 ] Co-op refused to comply with the Union’s demands. It took the position that the Union was required to demonstrate majority support of the Watrous and Hepburn employees. Its position was said to be grounded in the so-called accretion principle, triggered when a unionized entity acquires or amalgamates with a non-union entity.

The Union adduced no evidence of majority support before the Board. Co-op also argued that the conduct of the new employees during the strike established that they were not members of the bargaining unit because they had continued to work and did not picket. [ 11 ] The Union applied to the Board for an order pursuant to s. 6-104 of the Employment Act that Co-op had been or was engaging in an unfair labour practice or was in contravention of the Employment Act (or both), within the meaning of s. 6- 62(1) (b), s. 6- 62(1) (d), s. 6- 62(1) (

r) and ss. 6-43(1)–(4). III. BOARD DECISION [ 12 ] The central issue before the Board was whether the employees at the Watrous and Hepburn stores fell within the scope of the province-wide collective bargaining unit that was represented by the Union. [ 13 ] Co-op asked the Board to summarily dismiss the Union’s application pursuant to s. 6-111(3) of the Employment Act by reason of delay and lack of timeliness.

It asserted that, because the Union had brought its application more than 90 days after it knew or ought to have known of the action or the circumstances that had occurred giving rise to the allegations, the Board should exercise its discretion by refusing to hear the unfair labour practice application. In the alternative, Co-op argued that the new employees were not automatically swept into the bargaining unit, as the Union had alleged, and that a representative vote was required.

The Union, on the other hand, took the position that the terms of the certification order included the new employees because the collective bargaining unit was framed broadly to include all employees within Saskatchewan, save for those who were specifically excepted. The final issue put to the Board was whether Co-op had contravened s. 6-43 and s. 6-62 of the Employment Act and had thereby committed an unfair labour practice. [ 14 ] In a comprehensive, 46-page decision, the Board found as follows: (

a) The Union’s unfair labour practice application was brought beyond the 90-day window prescribed by s. 6 - 111(3) of the Employment Act for the Watrous employees but was within time for those employed at the Hepburn location. However, applying the factors relevant to the exercise of its discretion under that provision, the Board declined to summarily dismiss the Union’s application because of delay. (

b) The evidence did not displace the “application of the clear geographical scope of the subsisting and valid certification order”, and the Union was not “seeking to inappropriately extend its rights” over the new employees ( Board Decision at para 180 ). As such, “The Watrous and Hepburn employees are covered by the order and are included in the scope of the bargaining unit” (at para 180). (

c) A vote of the Watrous and Hepburn employees was not required to determine if they wished to have union representation. (

d) Co-op committed an unfair labour practice by failing to recognize the Union as the exclusive bargaining agent for the Watrous and Hepburn employees ( s. 6 - 41 and s. 6 - 62 of the Employment Act ) and by failing to provide the names of those employees who gave their authority to have union dues deducted or to remit union dues (s. 6-43). IV. JUDICIAL REVIEW DECISION [ 15 ] Co-op applied for judicial review of the three core determinations made by the Board.

A Court of Queen’s Bench Chambers judge upheld the Board’s rulings, finding the Board Decision was reasonable within the meaning of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ]. V. STANDARD OF REVIEW [ 16 ] On an appeal from a judicial review of a Board decision, two questions must be addressed – first, whether the reviewing Chambers judge identified the correct standard of review and, second, whether that standard was correctly applied: Dr.

Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226, and Service Employees International Union- West v Saskatchewan Health Authority , 2020 SKCA 113 at para 29 , 454 DLR (4th) 363. [ 17 ] The parties agree that the Chambers judge correctly identified reasonableness as the standard by which he was to review the Board Decision . They differ, however, on whether the Chambers judge applied that standard properly in refusing to set aside the Board Decision .

As such, this Court must step into the shoes of the Chambers judge and conduct its own reasonableness review: see Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at paras 41–42 , 327 LAC (4th) 322. [ 18 ] In broad terms, in determining whether a decision is reasonable, a reviewing court is to ask the following ( Vavilov at para 99 ):

(a) “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility”; and (b) “whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”. VI. ANALYSIS A. Did the Board err in hearing the Union’s unfair labour practice application? [ 19 ] Co-op argues firstly that the Union’s application, which was filed on June 21, 2019, was late and that no countervailing considerations weighed in favour of the Board hearing it. In making this argument, Co-op relies on s. 6-111(3) of the Employment Act , which provides as follows: Powers re hearings and proceedings 6-111

(3) Subject to subsection (4), the board may refuse to hear any allegation of an unfair labour practice that is made more than 90 days after the complainant knew or, in the opinion of the board, ought to have known of the action or circumstances giving rise to the allegation. [ 20 ] Co-op advances two arguments in support of its assertion that the Board’s decision on the timelines’s issue was unreasonable. First, it says the Board made a factual error in determining that the application for the Hepburn location was brought within the required 90 day’s time frame (a point not resolved by the Chambers judge).

Second, Co-op submits that the Board exercised its discretion unreasonably in declining to strike the Union’s application because of delay. [ 21 ] The Chambers judge did not dive deeply into the Board’s reasoning, the specific wording of the operative provision or the related jurisprudence. He focussed instead on the discretionary nature of a determination under s. 6-111(3), noting that a dismissal does not automatically follow where an application is brought outside of the 90-day window. He saw the

section as being permissive in the sense that “[i]t allows the Board not to hear an unfair labour practice if there is unwarranted delay” ( QB Decision at para 23). [ 22 ] In terms of the facts, although the Chambers judge mused that he would have decided the Hepburn issue differently (i.e., that the Union was out of time with respect to that location as well as the Watrous one), he went on to remark that “whether it is right or wrong is not controlling” (at para 25).

As far as the Chambers judge was concerned, the issue before the Board boiled down to the exercise of its discretion to hear the application, notwithstanding any delay; which, in the result, he found to be “completely reasonable” (at para 26). 1.

Alleged error of fact [ 23 ] The Board began its decision by identifying the point at which the 90-day window begins to run as being “when the Union knew or ought to have known that there were employees in the bargaining unit for whom [Co-op] had not made it a condition of their employment to become union members and to pay union dues” ( Board Decision at para 80 ). [ 24 ] Dealing first with the Watrous store, the Board found the time of acquisition – August 19, 2018 – was the date by which the Union ought to have known that Co-op had not made it a condition of employment that the Watrous employees become union members and, thus, required to pay union dues.

Accordingly, the Union’s application, brought on June 21, 2019, was well beyond the 90-day time frame in relation those employees. [ 25 ] The acquisition of the Hepburn store occurred on February 3, 2019, during the midst of the strike. The Board reasoned that, because of the strike, the union security clause was not in force which meant the parties only became bound by it on the date the new collective bargaining agreement was ratified. Although there was some discrepancy as to when ratification occurred, the Board accepted April 14, 2019, as the operative date.

Using that date, the Board found the Union’s application vis-à-vis the Hepburn employees had been brought within the 90-day window. [ 26 ] In reaching its decision, the Board considered but rejected Co-op’s anticipatory breach argument: i.e., that the Union had become aware as early as April of 2018 (being the date of the Co-op’s annual general meeting) that Co-op officials had openly expressed the view that the new employees would not be automatically swept into the Union.

The acquisitions took place months later. [ 27 ] On appeal, Co-op asserts the Board Decision is unreasonable because the Board lost sight of the central issue, which Co-op says is whether the Union had representation rights over the employees, not when union dues were payable. It also repeats its refrain that the Union knew of its position on this issue as early as April of 2018. Second, because the remittance of dues was not the only issue tracked by the Union’s application (it had also alleged a failure to bargain), Co-op argues that the Board erred by tying the dues issue to the date of application.

And third, since the Watrous and Hepburn employees never actually went on strike (in the sense they were not directed to picket or walk out by the Union), Co-op says the Union did not consider those employees as being part of the collective bargaining agreement. [ 28 ] Co-op offers no case law to support its argument that an anticipatory breach was the triggering event for the commencement of the 90-day window.

Respectfully, its position ignores the plain wording of s. 6-111(3), which does not provide that the 90 days begins to run when a union ought to have been aware of the opposing party’s position or stated intention. The awareness referred to in that

section concerns an overt action or circumstance that gives rise to an allegation of a breach. Logically speaking, a breach could only have arisen in this case after the collective bargaining agreement was in place. [ 29 ] In answer to Co-op’s argument regarding dues, although the Board’s reasoning appears to have been focussed on the failure to remit union dues, as is evident from its decision, it understood there were other allegations on the table. For instance, it said this: “The Union’s allegations rest on its assertion that these employees were automatically added to the bargaining unit. The combined breaches of

section 6-43 and 6-62(1)(

r) would not arise in the absence of a [collective bargaining agreement]” (emphasis added, at para 89). [30] The Board also anchored its reasoning around the concept of a continuing breach occurring with respect to Co-op’s obligationto deduct union dues.

Relying on United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and ServiceWorkers International Union Local 1-184 v Premier Horticulture Ltd., (Sask LRB) [Premier Horticulture], it saidthis: “The Employer’s failure to meet the deadline does not mean that it is absolved from remitting dues, or that the obligation to remitdues does not continue to arise on each pay period for employees who are ‘eligible’” (Board Decision at para 91). [31] Co-op offers no response to either of those findings.

Neither do I understand Co-op to offer any legal basis to suggest that theBoard’s ruling on the anticipatory breach issue was wrong in law, beyond reiterating the argument it had advanced before the Board. Nor,for that matter, did Co-op offer any law to rebut the proposition that a collective bargaining agreement is not in effect during a strike.

Incontrast, the Union drew upon this Court’s decision in Westfair Foods Ltd. v United Food and Commercial Workers, Local 1400, 2004SKCA 119, 244 DLR (4th) 726, leave to appeal to SCC refused, 275 Sask R 138 (note), as support for its position that “the collectivebargaining agreement cannot remain in effect after the commencement of a lawful strike” (at para 32). 2. Alleged improper exercise of discretion [32] The Board went on to consider the question of whether it should hear the Union’s application regarding the Watrousemployees, even though it was seven months late.

It began its analysis by identifying Premier Horticulture as standing for the propositionthat s. 6-111(3) starts with the premise that the application should be heard, even though filed late. [33] The Board next determined the framework for assessing whether it should exercise its discretion to refuse to hear the Union’sapplication by reference to Saskatchewan Polytechnic Faculty Association v Saskatchewan Polytechnic, (Sask LRB),and Toppin v United Association of Journeyman and Apprentices of the Plumbing and Pipeline Industry of the United States and Canada,Local Union No. 488 (2006), 123 CLRBR (2d) 253 (Alta LRB).

It meticulously addressed each factor set out in those decisions, findingthat, on the whole, they were evenly balanced as between the parties. That left the last factor – the rights at stake – which led the Board toconsider the importance of the parties’ respective rights. [34] On this issue, the Board said as follows: “For the Board to exercise its discretion to refuse to hear this application due to theUnion’s delay would have the effect of denying bargaining rights which the Union asserts arise automatically” (Board Decision atpara 109).

Next, it contemplated the apparent strength of the Union’s complaint, as well as Co-op’s admission that it “did not providemaintenance of membership” (at para 111).

All things considered, the Board determined that it would not exercise its discretion in favourof dismissing the Union’s application because of delay. [35] As noted above, the Chambers judge did not undertake a deep analysis of the Board Decision on this point, other than to statethat, given the discretionary nature of s. 6-111(3), “the Board’s decision to hear the unfair labour practice complaints was completelyreasonable” (QB Decision at para 26). [36] On appeal, Co-op asserts that the Board’s flawed reasoning led to an unreasonable result.

In its written argument, it says theBoard failed to adequately consider the full extent of the labour relations prejudice insofar as the parties’ ongoing relationship wasconcerned.

While the Board seemingly recognized how the Union’s delay in commencing the application was “corrosive to labourrelations between the parties”, and an impediment to the parties’ ability to move past a divisive strike, Co-op claims that when “the Boardheld that this harm was mitigated by the desirability of having the Watrous Co-op unfair labour practice allegation be decided alongsidethe Hepburn Co-op unfair labour practice allegation”, it improperly linked the Watrous employees to those at the Hepburn store. This, itsays, caused the Board to attenuate the prejudice to the Watrous employees.

Put another way, Co-op argues that the fact the Hepburnapplication was brought within time should not have factored into the Board’s determination of labour relations prejudice at the Watrouslocation. [37] Much of Co-op’s argument hinges on its assertion that the Board erred in concluding the Hepburn application was timely. Itbuilds on that premise by asserting that the Board too readily relied on its so-called incorrect determination to attenuate employerprejudice at the Watrous store.

Having found the Board’s decision regarding Hepburn was reasonable, Co-op’s first argument loses muchof its steam. [38] That aside, I am satisfied that the Board took labour relations prejudice into account. It engaged in an extensive discussion ofthat very issue in paragraphs 102–107 of its decision, largely agreeing “that the delay in labour relations litigation is presumptivelyprejudicial and corrosive to the relationship between the parties” (Board Decision at para 106).

However, as the Board went on to observe,that corrosive effect was mitigated not because the Hepburn application was brought in time but because it raised the “same or similarissues with respect to both locations” and that there were “good labour relations justifications (consistency, harmony) for addressing bothmatters in the context of this one application” (at para 106). I do not understand Co-op to take issue with this part of its analysis. 3. Conclusion on the timeliness issue [39] To conclude, I see no basis to find the Board’s decision was unreasonable on the timeliness issue.

The Chambers judgecorrectly pointed to the obvious fact that this was a discretionary decision that necessarily engaged a balancing of relevant considerations.The Board’s determinations that the breach was of a continuing nature, that Co-op was not prejudiced in defending its position and thatfailure to decide the application may have deprived the new employees of bargaining rights that ought to have arisen automatically, arereasonable and justifiable conclusions in light of the circumstances of this case. [40] The Board provided a thorough, well thought out decision, which put its reasoning process on full display.

I am satisfied that itidentified the correct test, applied the appropriate factors, made a decision regarding the weight to be attached to each, carefullyconsidered the facts before it, thoughtfully responded to the submissions of the parties, and took into account the potential impact itsdecision would have on both sides. In short, this was a classic illustration of the exercise of discretion, bearing all the hallmarks of areasonable decision. The fact that the Board did not agree with Co-op’s submissions does not make it unreasonable.

[41] In

summary, I conclude that the Board’s decision was reasonable, and the Chambers judge did not err in failing to intervene. B. Was a vote required? [42] Another issue before the Board was whether the Union could rely on the existing certification order to automatically sweep theWatrous and Hepburn employees into the bargaining unit, absent evidence of employee support.

In addressing this issue, the Board drewfrom its earlier decision in Wascana Rehabilitation Centre (Re), [1993] SLRBD No 12 (QL) (Sask LRB) [Wascana Rehabilitation], whereit had identified three ways in which individual employees or groups of employees can be added to an existing bargaining unit: The first method of adding employees to an existing unit is through the union security clause in a collective agreement.

Once a trade unionhas been certified to represent the employees in a bargaining unit which is defined, the resulting collective agreement typically requiresthat employees who are added to the workforce in the unit must obtain membership in the union as a condition of employment.

Thoughthe majority of bargaining units are defined in terms of one workplace, there are bargaining units which have a wider geographical scope,covering a municipal area or even the province as a whole; in these cases, if the employer, for example, opens a new outlet into which thekinds of employees described in the certification order are hired, those employees will be added to the existing bargaining unit. The second method by which employees are added to an existing unit is through bargaining between a trade union and an employerconcerning the scope of the bargaining unit.

In these cases, which often involve questions of whether newly created positions will beexcluded from the unit, the parties may agree that the description of the unit should be amended, and apply to the Board to have thisamendment recorded in the certification order. … The third way by which a trade union may ask to have employees added to the bargaining unit is by bringing an application to have thedescription of the bargaining unit altered to reflect the inclusion of these employees.

The circumstances under which this may be done,and the criteria which the Board will use in determining whether to allow such an amendment, have not been fully articulated, but it ispossible to discern from previous Board and judicial statements on this issue some principles which should be applied in a case such asthis. (Emphasis added) [43] Focussing on the third category of Wascana Rehabilitation, the Board framed the analysis as a question of whether thebargaining unit needed to be redefined in order to accommodate the addition of the new employees, stating as follows: “a union can rely ona valid and subsisting certification order as proof of majority support in an existing unit, but should produce evidence of majority supportfor a group of employees being added to the unit ‘before the unit can be reshaped to include them’” (emphasis added, Board Decision atpara 117, quoting Wascana Rehabilitation).

As the Board went on to note, reshaping provides “an appropriate balance between the secureand stable status for a trade union, and the entitlement of employees to express their wishes …” (Wascana Rehabilitation). [44] The Board acknowledged that it is not always easy to determine whether the question posed is resolvable by the simpleapplication of the union security provision or if the circumstances represent a “redefinition or reshaping of the bargaining unit” (BoardDecision at para 169).

However, it went on to hold that, “unlike in Wascana Rehabilitation Centre, in the current case there is no explicitexclusion of the employees said to be ‘added’ to the bargaining unit” or that the bargaining unit needed to be reshaped (at para 122). TheBoard found the wording of the existing certification order and collective bargaining agreement clear and unambiguous in setting out aprovince-wide, all inclusive certification order: “The certification order sets out a bargaining unit that includes all employees, other thanlisted exceptions, within the Province of Saskatchewan.

This is an all-employee bargaining unit with a provincial scope” (at para 113). [45] Co-op challenges the Board’s decision by advancing two lines of arguments on appeal. First, it asserts the Board eitheroverstated or ignored its previous jurisprudence that, it says, stands for the proposition that evidence of support from a new or accretivegroup of employees is necessary before the employees can be added to the bargaining unit.

In its second argument, Co-op submits thatsweeping the new employees into the Union, without affording them an opportunity to choose whether they want union representation,ignores the concept of employee choice, said to be a bedrock principle reflected in the Employment Act and in the jurisprudence. Co-opargues the Board erred by failing to direct its mind to this underlying and important principle. 1.

Misinterpretation of the case law [46] Co-op begins its examination of the case authority said to have been overlooked or misinterpreted by the Board with theSupreme Court’s decision in University of Saskatchewan v Canadian Union of Public Employees Local Union, Local 1975, (SCC), [1978] 2 SCR 834 [U of S]. There, the Board consolidated seven bargaining units into a single unit and deleted the exclusionof another group of employees.

The union sought to alter the existing certification order by both amending the order and including asignificant number of employees within scope who were represented previously by an employees’ association. In U of S, the Boardacceded to the Union’s request under s. 5(

b) of The Trade Union Act, 1972, SS 1972, c 137. [47] The Board’s decision came before this Court in University of Saskatchewan v C.U.P.E., Local 1975, [1977] SJ No 361 (QL)(Sask CA), where the majority concluded there was no requirement for the Union to adduce evidence of majority support. Chief JusticeBayda, writing in dissent, held that employee support is required when dealing with an amendment to a certification order that involves anew description of a bargaining unit. He interpreted and applied s. 3 and 5(

b) of The Trade Union Act, 1972, to mean that “where a newbargaining unit is established the employees in that unit have the right to choose the union they wish to represent them and the wishes ofthe majority of the employees in that unit shall prevail” (emphasis added, at para 24). The Supreme Court upheld the dissenting opinion ofBayda C.J.S. [48] The present situation is dissimilar from the facts in U of S.

Since the position endorsed by the Supreme Court was largelypremised on the specific provisions of the statute then in force, together with the obvious fact that one union (Canadian Union of PublicEmployees Local Union 1975) was trying to displace other representative associations, U of S is clearly distinguishable on the basis thatthere was a new description of the bargaining unit.

[49] Co-op next refers to Wascana Rehabilitation, asserting that, contrary to what the Board found, that decision lends support to itsposition about the need for a vote. It says that a distinction must be drawn between situations where an employer opens a new facilitywithin the geographic limits of the certification order and one where it acquires an existing business with employees whose terms andconditions of employment are governed by other non-unionized employment arrangements.

Such was the case here because the Watrousand Hepburn employees were not new hires but were employees in existing, non-unionized businesses. Thus, says Co-op, they fit squarelyin the third Wascana Rehabilitation category. [50] The Union posits, and I agree, that Co-op’s argument overlooks the wording embedded in that category, which is repeated forease of reference (Wascana Rehabilitation): The third way by which a trade union may ask to have employees added to the bargaining unit is by bringing an application to have thedescription of the bargaining unit altered to reflect the inclusion of these employees.

The circumstances under which this may be done,and the criteria which the Board will use in determining whether to allow such an amendment, have not been fully articulated, but it ispossible to discern from previous Board and judicial statements on this issue some principles which should be applied in a case such asthis. (Emphasis added) [51] The emphasized words offer support for the Union’s contention that the third category – which speaks to circumstances wherea vote is required – is limited to situations where the description of the bargaining unit needs to be altered or reshaped so as to include thenew employees.

In other words, it is only where reshaping is necessary that employee support comes into play under the third prong ofWascana Rehabilitation; but this was not a reshaping situation. As the Union points out, the bargaining unit was already stated to be aprovince-wide, all-employee unit, which meant the scope automatically drew in the employees at the new locations. Moreover, Co-opdoes not suggest that the existing bargaining unit needed to be redefined or reshaped in any way.

Further support for the Union’s argumentcan be found in the following: United Food and Commercial Workers, Local 1400 v Westfair Foods Ltd., at para 45(Sask LRB), aff’d 2008 SKCA 117 [Westfair Foods]; CUPE, Local 88 v St. Elizabeth’s Hospital, [1995] SLRBD No 55 (QL) at paras 98and 99 (Sask LRB), aff’d (SK KB), [1996] 7 WWR 248 [St.

Elizabeth’s]; and CUPE, Local 1975 v University ofSaskatchewan, [2000] Sask LRBR 207, No 297-99. [52] Next, Co-op asserts that the Board erred by reading down its earlier decision in Canadian Association of Fire Bomber Pilots vSaskatchewan, [1993] SLRBD No 17 (QL) (Sask) [Bomber Pilots], which it suggests is parallel to the situation at hand.

Since BomberPilots is directly on point, Co-op says the Board erred in skating past the ratio of that case and by distinguishing it in a somewhatdisingenuous way – i.e., by reasoning that “the pilots had an ongoing relationship with the government that predated the acquisition”(Board Decision at para 126). [53] There is some merit to Co-op’s argument in the sense that the distinction drawn by the Board between Bomber Pilots and thepresent case is somewhat of a stretch insofar as the same scenario could be said to exist here; that is to say, the employees at the newlocations were subject to a direct (non-union) relationship with their previous employer, and the locations at which they worked wereindependent from the existing Saskatoon Co-op locations. [54] That said, the undercurrent of Co-op’s argument rests on the notion that Bomber Pilots is a binding decision on the issue ofwhether a vote is required.

Respectfully, I do not share Co-op’s assessment of the strength of Bomber Pilots for three principal reasons. [55] First, the passages that Co-op relies on to make its argument are obiter dicta. The only issue before the Board in Bomber Pilotswas whether it had jurisdiction over the employees (the pilots) or if they fell under federal authority as a matter of aeronautics.

Havingdetermined that it had jurisdiction, the Board was careful to note that its conclusion on that issue did not automatically mean theemployees were part of the bargaining group and said further discussion on that question was required before they were included in thebargaining unit.

To that end, it was prepared to “entertain a timely application”. [56] Second, as mentioned above, Bomber Pilots explicitly acknowledged the third category in Wascana Rehabilitation to be anexpression of what it termed a Board policy. [57] Third, the Board understood that, like in Bomber Pilots, the issue in the present matter was complex and not clean cut, statingas follows: “It is not always a straightforward matter to determine whether the existing circumstances justify the simple application of theunion security provisions or whether the circumstances represent a redefinition or reshaping of the bargaining unit” (Board Decision atpara 169).

And, as the Board went on to say, there was a balance to be struck between the “interest of a trade union in consolidating itsposition as a bargaining unit” and that of new employees “being able to voice their wishes with respect to representation”. [58] Finally, contrary to Co-op’s argument, in the present matter the Board was not blind to the parallelism with Bomber Pilots: The change in [the pilots’] relationship with the Government which took place approximately two years ago was analogous to theacquisition of a business by the Government which already had a cohesive group of employees who were used to having their terms andconditions of employment determined in a different way.

This “acquisition” places these employees in a different position than employeeswho are hired into a bargaining unit in which they clearly belong.

However, in the within matter, the Board went so far as to recognize that the aforesaid statement “might be taken to imply thatcircumstances involving ‘acquisitions’ are distinct from the circumstances described in the excerpts of Wascana Rehabilitation Centre thatdeal with the three methods” (Board Decision at para 128). [59] Co-op next argues that the Board erred in its application of the accretion principle by failing to distinguish between the firstWascana Rehabilitation scenario – opening a new operation – and the third option – the acquisition of an existing, non-union operation.

Itsays the more recent jurisprudence builds around the third category and clearly holds that previously unrepresented employees cannot beadded into a bargaining unit without evidence of their support. [60] The Board considered the following authorities, which Co-op relied on, to support the proposition that the third Wascana

Rehabilitation category has been expanded to hold that previously unrepresented employees cannot simply be added to an existingbargaining unit without proof of employee support: Canadian Union of Public Employees, Local 4799 v Horizon School Division No. 205, (Sask LRB) [Horizon]; Canadian Union of Public Employees, Local 5506 v Prairie South School Division No. 210, (Sask LRB) [LRB-Prairie South], aff’d 2011 SKCA 54, 371 Sask R 224 [CA-Prairie South]; Communications Energyand Paperworkers Union v Saskatchewan, (Sask LRB) [Paperworkers Union]; and Westfair Foods. [61] With respect, the Board carefully analyzed each of those decisions but found them distinguishable on their facts. [62] Horizon was about the compulsory, general restructuring of public boards of education and their school divisions where thegovernment had amalgamated six boards of education and their school divisions.

The union, which was created by the merger of severalpredecessor unions, sought an order pursuant to s. 37(2) of The Trade Union Act, RSS 1978, c T-17, that all non-teaching staff, includingthose not previously covered by a certification order, were included in the bargaining unit. Placed in raw numbers, it sought to sweep in155 non-union employees (approximately 30% of the total number of employees) into the bargaining unit. Horizon can be read as standingfor the proposition that the wishes of non-unionized employees must be considered in determining an appropriate bargaining unit as pers. 37(2)(

b) of The Trade Union Act, where the union seeks to add “a significant number of employees to existing bargaining units”(Horizon at para 108). This was not the case in the matter at hand. Another important feature of the Horizon decision was the fact that theunion had requested an order to amend the certification orders and the collective bargaining agreements. [63] LRB-Prairie South is another decision concerning the amalgamation of school divisions.

The union applied for an all-employeebargaining unit under the successorship provisions of The Trade Union Act and had provided evidence of employee support from theexisting group of represented employees as well as some of the new employees. It had not, however, filed evidence of majority supportfrom the previously unrepresented employees. The Board concluded majority support from those new employees was required before itwould declare a bargaining unit that included them. The union’s application for judicial review was unsuccessful, which was subsequentlyupheld by this Court in CA-Prairie South.

In assessing the reasonableness of the Board’s decision, Jackson J.A. noted how, generallyspeaking, the Board is called upon to “engage in ‘polycentric’ decision-making” that involves a number of competing interests andconsiderations (at para 28, quoting Voice Construction Ltd. v Construction & General Workers’ Union, Local 92, 2004 SCC 23 at para 28,[2004] 1 SCR 609).

She went on to remark that where there is no clear answer in the jurisprudence, the Board must “bring to bear itsexpertise in labour relations matters in weighing the evidence and deciding the particular issue before it” (CA-Prairie South at para 25). [64] The final decision Co-op referred to is Paperworkers Union. That was a successorship case that I do not find particularlyinstructive to the issue at hand. [65] After reviewing those decisions and others, the Board turned its attention to Energy and Chemical Workers’ Union, Local 911 vBrown, 1992 CarswellSask 768 (WL) (Sask LRB) [Micro-Data].

In Micro-Data, the Board set out three scenarios that might arise where aunion-certified business acquires an uncertified business. It found the third scenario apropos to the situation at hand: [24] The third possibility is that, after the sale, the MSL employees were employed by Westbridge in classifications that brought themwithin the bargaining unit for which the applicant union is certified.

In this situation, the principles are straightforward: if an employerbrings non-unionized new employees into its unionized business and their functions include them within the scope of the bargaining unit,the employer must recognize the union as their lawful representative.

In such circumstances, it matters not how the new employees cometo the employer: whether they are hired in one’s and two’s off the street; whether they come in large numbers because of a majorexpansion; or, because the employer purchased a large competitor, the result is the same. (Emphasis added) [66] This passage appears to also describe the circumstances of the present case: Co-op acquired new locations and became theemployer to an existing group of employees at those locations.

As noted in Micro-Data, it matters not whether the new employees at thenew locations were hired individually or if they automatically become employees by way of acquisition: the issue is whether they arecaptured by the scope of an existing bargaining unit – in which case, they became members of the union. [67] While Co-op concedes that Micro-Data supports the Union’s position and the Board’s ruling, it maintains that decision isanomalous, or an outlier, and that subsequent Board jurisprudence supports the position that employee choice is the paramountconsideration.

The Board disagreed with this argument, pointing to the following decisions that adopted and applied Micro-Data: WestfairFoods; Inner-Tec Security Consultants Ltd. (Re), [1994] SLRBD No 67 (QL) (Sask LRB); and Saskatchewan Joint Board, Retail,Wholesale and Department Store Union v Saskatoon Co-operative Association Limited and United Food and Commercial Workers, Local1400, (Sask LRB) [Union Successorship]. [68] Another such decision, United Food and Commercial Workers Union, Local No. 832 v Red River Co-operative Ltd., (Man LRB) [Red River], is of particular interest.

The respondent in that case was a unionized employer. The collectivebargaining agreement recognized the union as the exclusive bargaining agent for employees working in stores it owned on a province-widebasis. When the employer acquired a rural store in Manitoba, where the employees were not previously unionized, like here, the employerresisted union representation, absent evidence of employee support. In Red River, the Manitoba Labour Relations Board adopted andapplied the third category of Micro-Data: 67.

Clearly, the present case falls within the third category identified in Microdata Consulting Services, supra. The Respondent is aunionized employer which entered into a collective agreement with the Applicant which recognizes it as the exclusive bargaining agent foremployees working at stores which it owns or operates in the Province of Manitoba. When the Respondent acquired the store in Stonewall,Manitoba, it was required to recognize the Applicant as the exclusive bargaining agent for the employees of that store as they fall withinthe scope of

Article 1.01 of the collective agreement. [69] This decision is also important for its express rejection of the employer’s argument about employee choice (Red River): 68. The Respondent submits that the Board should take into consideration the fact that the employees of the Stonewall store have notelected to have the Applicant represent them. This, it was argued, is a particularly important consideration in light to the purpose of [The

Labour Relations Act, CCSM c L10] which contemplates that unions are the freely designated representatives of employees in collectivebargaining. The Board has seriously considered this argument. However, the parties have defined the contours of the bargaining unit inArticle 1.01 of the collective agreement. The employees in question are clearly employed at stores owned or operated by the Respondentwithin the geographic boundaries of Manitoba and fall within the recognition clause forged by the parties in collective bargaining.

As theSaskatchewan Board noted at paragraph 35 of [Micro-Data], supra, “[e]mployee support is not necessary from new employees that arehired into the bargaining unit and compelled to join the unit by virtue of the union security provisions”. [70] Returning to the matter at hand, I have considered Co-op’s argument that the Board misinterpreted the existing jurisprudenceand that a more recent line of case authority supports its position. In paragraphs 114 to 168 of its decision, the Board extensivelycanvassed the jurisprudence Co-op had relied on.

It recognized there was some authority that supported the idea that a vote was required,but ultimately approached the issue by asking itself if the bargaining unit in the present case was new. I am fully satisfied the Boardgrasped Co-op’s argument but found that none of the authorities upon which it had relied were dispositive of the issue.

In contrast, it foundthe line of cases urged upon it by the Union reflected a more accurate statement of the law and Board practice. [71] While it may indeed be the case that the specifics of the present situation do not fit perfectly within the confines of the threecategories outlined in Wascana Rehabilitation, the Board also had the benefit of its previous jurisprudence in Micro-Data and the case lawthat followed it. [72] Bearing in mind the reasonableness standard of review, I see no lack of rationality in the Board’s reasoning process and find itjustified in light of the legal and factual constraints that bore on that decision. 2.

Employee choice issue [73] As mentioned, Co-op argues that sweeping the new employees into the Union, without affording them an opportunity to choosewhether they want union representation, fundamentally ignored the underlying principle of employee choice.

It contends the Board’sfailure to direct its mind to this foundational, yet important, principle made its decision unreasonable. [74] Co-op asserts that, in circumstances where a Board has the option of two methods – one that gives employees a voicerespecting representation and one that does not – as a matter of overarching principle, it should prefer the former.

It says that not only doesthe result in this case (i.e., the absence of employee choice) make the Board’s decision unreasonable, it also represents a fundamentaldeparture from s. 6-4(1) of the Employment Act (the successor to s. 3 of The Trade Union Act) and what the Board has held in its priorjurisprudence such as Sunnyland Poultry Products Ltd. (Re), [1993] SLRBD No 43 (QL) [Sunnyland], Horizon at paras 107–108 andLRB-Prairie South at para 43. [75] The Board considered but rejected this argument. I see nothing unreasonable in the Board’s decision not to follow Sunnyland inthe circumstances of the present case.

Sunnyland was an application to amend an existing certification order to cover groups of employeeswho had previously been unrepresented. The proposed amendment was significant because it involved a change to the geographic scopeof the bargaining unit from being limited to the Town of Wynyard to becoming a province-wide unit. At issue was whether the union wasrequired to demonstrate majority support amongst the new group of employees or if majority support overall in the post-amendmentbargaining unit was required. That is not the situation in the matter at hand.

Neither should the Board’s statements in Sunnyland beinterpreted as extending the principle beyond the four corners of that application. As mentioned, the facts in Sunnyland are distinguishableon several levels, not the least of which being that it involved the addition of a significant number of employees to existing bargainingunits. [76] Co-op expands on its employee choice argument by positing that sweeping non-unionized employees into a bargaining unitwithout evidence of support constitutes a violation of s. 2(

d) Charter rights, as recognized by the Supreme Court in Mounted PoliceAssociation of Ontario v Canada (Attorney General), 2015 SCC 1, [2015] 1 SCR 3 [RCMP]. In that case, the Supreme Court clarified therights that lie at the heart of s. 2(

d) in a labour law context: [66] In

summary, s. 2(d), viewed purposively, protects three classes of activities: (1) the right to join with others and form associations; (2)the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal termsthe power and strength of other groups or entities. [77] Regarding the principle of employee choice, McLachlin C.J. and Lebel J. said as follows: [85] The function of collective bargaining is not served by a process which undermines employees’ rights to choose what is in theirinterest and how they should pursue those interests.

The degree of choice required by the Charter is one that enables employees to haveeffective input into the selection of their collective goals. This right to participate in the collective is crucial to preserve employees’ abilityto advance their own interests, particularly in schemes which involve trade-offs of individual rights to gain collective strength (J.E.Dorsey, “Individuals and Internal Union Affairs: The Right to Participate”, in K. P. Swan and K. E.

Swinton, eds., Studies in Labour Law(1983), 193). [86] Hallmarks of employee choice in this context include the ability to form and join new associations, to change representatives, to setand change collective workplace goals, and to dissolve existing associations.

Employee choice may lead to a diversity of associationalstructures and to competition between associations, but it is a form of exercise of freedom of association that is essential to the existence ofemployee organizations and to the maintenance of the confidence of members in them (PIPSC, [ (SCC), [1990] 2 SCR367] at p. 380, per Cory J., in dissent; P. Davies and M.

Freedland, Kahn-Freund’s Labour and the Law (3rd ed. 1983), at p. 200). … [101] So stated, the notions of choice and independence, on the one hand, and representativeness, on the other, overlap considerably.However, we consider choice and independence best suited for the constitutional analysis at issue. If employees cannot choose the voicethat speaks on their behalf, that voice is unlikely to speak up for their interests. It is precisely employee choice of representative thatguarantees a representative voice. Similarly, if employees must “have confidence in their spokespersons” (Rothstein J.’s reasons, at

para. 219 [later in dissent]), the way to ensure such confidence is through a sufficient degree of employee choice in the selection ofrepresentatives. [78] I note here that Co-op’s argument is advanced in the absence of a formal Charter challenge. The Board did not commentnegatively on the absence of an application and recognized that the principle of employee choice is a factor that “is not to be overlooked”in its decision-making process (at para 156).

The Board’s observation is consistent, in that respect, with its earlier decision in UnionSuccessorship, where it endorsed the concept of employee choice as expressed in RCMP as a relevant factor and explicitly recognized thatadministrative bodies should consider Charter values even where not directly implicated by a formal application. [79] Although the Board acknowledged the principle of employee choice, it was not inclined to apply it in the circumstances at handwhere it would “defeat the existing scope of a valid and subsisting certification order.

If the scope is clear, to inquire post facto into thewishes of the employees can have the effect of abridging the Union’s rights and destabilizing the labour relations environment” (emphasisadded, Board Decision at para 157). [80] As I see it, there are two other fundamental problems with this aspect of Co-op’s argument. First, in general terms, the rightsspoken of in s. 2(

d) of the Charter accrue to the employees and not the employer; Co-op’s argument is built on the premise that it is arights’ holder by some unexplained extension of the employees’ s. 2(

d) rights. No case authority was cited in support of this implicitposition nor did Co-op expand upon this argument in any meaningful way. [81] Second, Co-op’s argument is really about an asserted freedom from association. Freedom of association in a labour law contextis said to arise from the power imbalance between employees and employers. The broader purpose underlying s. 2(

d) is understood to bethe protection of “the right of employees to associate for the purpose of advancing workplace goals through a process of collectivebargaining” (Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 at para 87, [2007] 2SCR 391): see also RCMP at para 80. Co-op did not explain how this historical principle, which underpins s. 2(

d) and has beenconsistently reaffirmed by the jurisprudence, meshed with its argument. [82] In closing on this point, in the absence of a successful Charter challenge, the Board was not obliged to conclude that only adirect a vote was required. It understood that the principle of employee choice factored into its decision-making, but in its overallbalancing of considerations – none of which were challenged by Co-op on appeal – the Board declined to prioritize that principle. Allthings considered, its decision on this point was reasonable. 3.

Conclusion on the requirement for a vote [83] The standard of review is, as it must be, at the forefront of my consideration of this appeal. In assessing the Board’s decisionthrough the reasonableness lens, I have focussed on the reasons and whether they bear the hallmarks of reasonableness: justification,transparency and intelligibility or, as framed in Vavilov, whether they exhibit “a failure of rationality internal to the reasoning process” (atpara 101).

In evaluating the reasonableness of the Board’s reasons, and in keeping with Vavilov, I must also ask myself whether the BoardDecision is based on an internally coherent and rational chain of reasoning.

As the majority in Vavilov put it, “the reviewing court must beable to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic” (at para 102) and with theconcurring minority stating, “[t]he reviewing court must remain focussed on the reasonableness of the decision viewed as a whole, in lightof the record, and with attention to the materiality of any alleged errors to the decision-maker’s reasoning process” (at para 313). [84] In very concise terms, I would observe that the reasons given by the Board demonstrate that it understood the issue and thearguments presented to it by the parties.

The Board (implicitly at least) also understood that the issue posed (i.e., whether a vote wasrequired) involved a question of mixed fact and law. The Board canvassed the full range of case authorities the parties had brought to itsattention and, in the course of a comprehensive decision, found that no authority definitively stood for the proposition that evidence ofemployee support is required when an employer acquires a new store with a non-unionized workforce that would otherwise becomesubsumed within a province-wide, all inclusive bargaining unit.

Viewed in this way, it is difficult to see how the Board’s decision lacksthe hallmarks of reasonableness. [85] Moreover, I do not take Co-op to meaningfully challenge the Board’s observation that “it is not always a straightforward matterto determine whether the existing circumstances justify the simple application of the union security provisions or whether thecircumstances represent a redefinition or reshaping of the bargaining unit” (Board Decision at para 169).

In CA-Prairie South, albeit in apre-Vavilov successorship case, this Court made the follow important observation about a reasonableness assessment and the need forreviewing courts to respect the Board’s expertise in labour relations matters in its decision-making process: [25] In assessing the reasonableness of this outcome, however, it is important to remember the nature of the question considered by theBoard. Whether majority support is required before determining the appropriate bargaining unit is a question of law, but it is a questionheavily influenced by policy concerns and the evidence.

No direct legislative provision or controlling authority of this Court or the Boardgoverns the question. The Union relies heavily on Noranda [ (SCC), [1969] SCR 898] and University of Saskatchewan[U of S], but these decisions are not determinative of what constitutes an appropriate bargaining unit … [T]he Board had to bring to bearits expertise in labour relations matters in weighing the evidence and deciding the particular issue before it.

The nature of the question,which directs one to apply the standard of deference in this case, influences the reasonableness of the outcome. … [28] The opposing submissions required the Board to determine which option most closely fulfilled the object and purpose of [The TradeUnion Act] and promoted stability. This type of balancing is precisely the function of the Board. As the Supreme Court of Canada said inVoice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23 at para. 28, [2004] 1 S.C.R. 609, labourboards are required to engage in “polycentric” decision-making.

The Supreme Court described this decision-making as involving “anumber of competing interests and considerations, and calls for solutions that balance benefits and costs among various constituencies”. [86] To be clear, this decision should not be taken as an endorsement of a broad principle that all employees of newly acquiredlocations are automatically swept into an existing bargaining unit. Nor would such a definitive conclusion be required to uphold the

Board’s decision as being reasonable because the question before it was not one that permits only one answer. Each case of this sort will be decided on its own facts. For example, one could foresee a situation where the large number of newly added employees change the support dynamics such as where the number of employees who have not been canvassed for their union support surpasses the number of current employees who are part of the existing bargaining unit. But that was not the situation facing the Board in the present matter. C.

Was there an unfair labour practice? [ 87 ] As an alternative argument, Co-op asserts the Board erred in concluding that it had committed an unfair labour practice by failing to remit union dues. It relies on the specific wording contained in s. 6-43(1) of the Employment Act , which imposes an obligation on employers to deduct union dues “on the request in writing of an employee and on the request of a union or union local representing the employees in the bargaining unit”. [ 88 ] It was common ground in the hearing before the Board that the employees in question never provided the required authorizations.

However, it was also common ground that Co-op refused to provide the names of those employees who had given their authority to have dues paid to the Union. [ 89 ] The Board considered but rejected Co-op’s argument principally because its position was narrowly confined to one subsection without regard for the entire provision. After considering s. 6-43 in its entirety, the Board reached this conclusion ( Board Decision ): [189] In our view, to dismiss the Union’s application for the reasons as stated by the Employer would be to adopt an unduly technical approach.

The absence of written authorizations is not the fault of the Union, but the fault of the Employer for not ensuring that the employees sign union security cards. The Employer has clearly refused to provide any maintenance of membership because it believed that the subject employees were not employees in the bargaining unit. [ 90 ] The full text of s. 6-43 provides as follows: Employer to deduct dues 6-43

(1) On the request in writing of an employee and on the request of a union or union local representing the employees in the bargaining unit, the employer shall deduct and pay in periodic payments out of the wages due to the employee the union dues, assessments and initiation fees of the employee.

(2) The employer shall pay the dues, assessments and initiation fees mentioned in subsection (1) to the union or union local representing the employee.

(3) The employer shall provide to the union or union local the names of the employees who have given their authority to have the dues, assessments and initiation fees mentioned in subsection (1) paid to the union or union local.

(4) Failure to make payments or provide information required by this

section is an unfair labour practice. [ 91 ] Co-op says the Board’s decision was unreasonable for the following reasons: (

a) it ignored the clear wording of s. 6-43(1); (

b) its decision was anchored on the fault of the employer, said to be irrelevant to the application of that subsection; and (

c) it ignored its previous decision in St. Elizabeth’s . [ 92 ] While the phrase unduly technical approach and the word fault were perhaps not the best choice of words to express its conclusion, I understand the Board’s reasoning to have been more nuanced than that. I say this for two reasons. [ 93 ] First, in considering whether Co-op had breached that provision, the Board can be taken to have reasoned that s. 6-43 must be considered in its entirety.

In this regard, the Board assessed the alleged breach through the lens of the provision read as a whole, implicitly concluding that the notification prerequisites enshrined in s. 6-43(1) only make sense if an employer also complies with its obligations under s. 6-43(3): i.e., by providing a union with the names of the employees who have given their authority “to have the dues, assessments and initiation fees … paid to the union”.

The Board can also be taken to have considered Co-op’s argument in the broader context of the union security clause and the employer’s obligations enshrined in s. 6-42 of the Employment Act . Given the modern approach to statutory

interpretation, it is hard to see how the Board went astray. [ 94 ] Second, the Board also took a holistic view of the Union’s unfair labour practice application. It noted how s. 6-62(1)(

r) makes it an unfair labour practice for an employer “to contravene an obligation, prohibition or other provision” in

Part VI of the Employment Act . It also identified s. 6- 41 as being relevant to the issue. That provision obliges parties who are bound by a collective bargaining agreement to do everything required to be done pursuant to its terms. Here, the collective bargaining agreement had a scope clause that recognized the Union as the sole bargaining agent for the employees and which covered “all employees of the [Co-op] working in or from its place of business, in the Province of Saskatchewan”. The union security clause also obliged Co-op to provide union security cards to its employees.

On the evidence before it, the Board made this finding: “The Union has made clear that it has requested the union security cards and the Employer has refused” ( Board Decision at para 186 ). [ 95 ] Simply put, to permit Co-op to avoid liability on the footing that the Union had not made a request in writing, when the reason it had failed to do so was because Co-op had contravened its own obligations under s. 6-43, would effectively turn a blind eye to the legislative intent of the Employment Act concerning union security.

Put another way, the Board’s allegedly overly technical comment was directed at Co-op’s narrow focus on the wording of one subsection, without regard for the remainder of the Employment Act , its corresponding obligations, and the illogical result Co-op’s position would yield.

[ 96 ] I also disagree with Co-op’s submission that the Board ignored its earlier decision in St. Elizabeth’s . The Board squarely addressed and distinguished that case in its reasons. It found St. Elizabeth’s largely unhelpful to Co-op’s position because the unfair labour practice allegation in that case was based solely on s. 32 of The Trade Union Act . (Much like s. 6-43(1), s. 32 imposed an obligation on employers to deduct union dues and forward them to the union.) Further, the Board in St.

Elizabeth’s had identified what it called a legislative gap in the linkage between the union security provisions and the employer’s duty to remit dues. In the matter at hand, the Board addressed the multifaceted nature of the Union’s application in this way ( Board Decision ): [185] The Union has filed the application pursuant to sections 6-43 and 6-62(1)(

r) of the Act .

Section 6-62(1)(

r) states that it is an unfair labour practice for an employer “to contravene an obligation, a prohibition or other provision of [Part VI] imposed on or applicable to an employer”.

Section 6-41 of the Act states that a person bound by a collective agreement must in accordance with the provisions of the collective agreement do everything the person is required to do. The Union relies on

section 6-41 in its argument. [186]

Article 5 of the [collective bargaining agreement] sets out the scope clause. The Employer shall recognize the Union as the sole collective bargaining agent for the employees set out in the scope clause.

Article 6 sets out the union security provisions which include an obligation on the Employer to provide the union security card. In its application, the Union has made clear that it has requested the union security cards and the Employer has refused. [ 97 ] Accordingly, applying the Vavilov framework, there is, in my view, a line of analysis in the Board’s reasoning that allowed it to reach the conclusion that it did on the unfair labour practice allegation. It considered the statutory scheme and previous Board decisions and understood the import of Co-op’s position in reaching its conclusion.

In short, the Board’s decision on the s. 6-43 issue bears all the hallmarks of a reasonable decision. VII. CONCLUSION [ 98 ] The appeal is dismissed with costs to the Union in the usual way. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.