Northern+Telecom

**Facts:** Communication Workers of Canada applied to the Canada Labour Relations Board (the Board) for certification of a unit of some 148 employees of Northern Telecom. The proposed bargaining unit comprised “all employees of Northern Telecom working in its Western Region Installation Department as supervisors”. Communication Workers of Canada were already voluntarily recognized by Telecom to represent the installers. Telecom opposed the Union’s application on the grounds that the proposed bargaining unit was not an appropriate unit for the purposes of collective bargaining and that supervisors performed managerial functions and were not employees within the meaning of the //Canada Labour Code//. The Board held against Telecom on all counts: they found that the supervisors were employees within the //Canada Labour Code//, the proposed unit fit for collective bargaining and that the majority of employees wished to have the union represent them. The Union was certified as the bargaining agent for the employees in the unit. -Telecom brought a s.28 application before the Federal Court of Appeal to set aside the order of the Canada Labour Relations Board but the Court dismissed the application. **The Issue before the SCC:** Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board had jurisdiction to deal with an application for certification on behalf of the concerned employees in respect of the question as to whether they are employed in the operation of any federal work, undertaking or business? -Refer to s. 108 of the //Canada Labour Code// and s.2 which provides definitions of federal work, undertaking or business (in many ways based on s. 91(10) of the BNA. -In its purely administrative aspects, the Board’s decision was not challenged (subject matter of dispute) but rather the constitutional issue is the subject of dispute  -Telecom argues there is a “double presumption” against the Board’s jurisdiction – the Board is an inferior tribunal and labour relations are within provincial jurisdiction--- consequently, the burden of proof should lie with Union  -Union argues that a question of jurisdictional fact arises and as such, the Board should be allowed a degree of latitude in its jurisdictional findings- the burden of proof should lie with Telecom  -What is in question is whether the jurisdiction given by Parliament to the Board via s.108 of the Code extends to the labour relations of the employees engaged in the work. -Laskin’s //Canadian Constitutional Law// : division of fed-prov authority in the field of labour relations is based on an initial conclusion that they are within prov competence -Beetz in //Construction Montcalm// ventured that 1. Parliament has no authority over labour relations or the terms of a contract of employment 2. By way of exception Parliament can assert exclusive jurisdiction over the matters if it is shown that it is an integral part of its primary competence over some federal subject. 3. Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence… 5. Determining whether an undertaking is a federal one depends on the nature of its operation. 6. To determine the nature one must look at the habitual activities of the business, whether it is a “going concern” -In instant case, the first step is to determine whether a core federal undertaking is present and its extent. Then, one looks at subsidiary operation (ie the installation department of Telecom, to examine the habitual activities of that department as a “going concern” and the functional relationship of those activities to the core federal undertaking. 1. general nature of Teelcom’s operations as a going concern and in particular, the role of the installation department (sells communication equipment in Canada and elsewhere in the world)  2. the nature of the corporate relationship between Telecom and the companies it serves, notably Bell (no evidence)  3. the importance of the work done by the installation department of Telecom for Bell as compared with other customers (no evidence)  4. the physical and operational connection between the installation department and the core federal undertaking within the telephone system (limited evidence)  -There is an absence of material “constitutional facts” upon which to decide the question of constitutional jurisdiction over the labour relations of the employees involved in the installation department of Telecom -As Telecom made no challenge to the Board’s jurisdiction, neither Telecom nor the Union adduced constitutional facts and jurisdiction was not argued before the Board -There is always the overriding concern that the constitution be applied with some degree of certainty and continuity and not wholly subject to the vagaries of the constitutional process. **Appeal dismissed** Type in the content of your page here.
 * Northern Telecom Ltd. v Communication Workers of Canada** *1979 SCC
 * Positions of the Parties before the Board: **
 * The Decision of the Board **
 * The Federal Court of Appeal **
 * Reasoning: (Dickson J) **
 * Constitutional Principles **