Canada Labour Relations Board v. Transair Ltd.

Canada Labour Relations Board v. Transair Ltd.
Collection
Supreme Court Judgments
Date
1976-05-31
Report
[1977] 1 SCR 722
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Beetz, Jean
On appeal from
Federal Court of Appeal
Subjects
Labour law
Decision Content
Supreme Court of Canada
Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722
Date: 1976-05-31
Canada Labour Relations Board Appellant;
and
Transair Limited Respondent;
and
Canadian Association of Industrial, Mechanical and Allied Workers, Local # 3 (Respondent).
1975: December 8, 9; 1976: May 31.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon and Beetz JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour relations—Certification order issued by Canada Labour Relations Board—Order set aside by Federal Court of Appeal and remitted to Board—Appeal by Board—Locus standi—Date for determining appropriateness of unit—Whether Board acted beyond jurisdiction in refusing permission for cross-examination of union witness as to number of employees who were members of union—Whether Board erred in refusing to consider late counter-petition of employees—Personnel records clerk properly included in unit.
The Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 3, filed an application with the Canada Labour Relations Board for certification as bargaining agent for “all office workers of Transair Limited and all related offices, except managerial staff”. At the opening of the certification hearings, the Board advised the parties that the union had satisfied it of its majority membership position in respect of the proposed bargaining unit. Representations were made by the Union and by Transair on the appropriateness of the unit. The union was asked to establish its status as being a “trade union” within the definition in the Canada Labour Code because this was its first involvement in certification proceedings before the Board. Counsel for Transair sought to cross-examine a union officer as to the number of employees within the proposed bargaining unit who were members, but this line of questioning was not permitted by the Board on the ground that such information was already available to the Board and was for its confidential use. The Board made a certification order on April 17, 1974, but before it was issued the Board received notice of a petition of employees of Transair, dated April 16, 1974, objecting to the proposed certification. The Board rejected the petition as untimely.
On appeal, the Federal Court of Appeal set aside the certification order and remitted the case to the Board. Leave to appeal was granted to the Board by this Court on the following questions of law:
1. Did the Federal Court of Appeal err in holding, if it did so hold, that the Canada Labour Relations Board erred in determining the appropriateness of the bargaining unit as of the date of application for certification?
2. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board had wrongly included persons in the bargaining unit who were not employees eligible for inclusion under the Act?
3. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board denied natural justice to the respondent and hence acted beyond its jurisdiction in refusing
(a) to allow it to participate in the investigation of the question whether the applicant union seeking certification had a majority of persons in the bargaining unit as members; or
(b) to allow counsel for the respondent to cross-examine a witness on the question of majority membership?
4. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in refusing to consider a counter-petition of employees presented after the conclusion of its certification hearings but before the making of the certification order?
5. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in not making its determination on the question of majority as of the time of making the certification order?
Held (Martland, Ritchie and Spence JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Judson J.: As to the question of locus standi, it was open to the Board in the present case to assert standing not only as a nominal party, but as one entitled to defend its jurisdiction against attack for want of natural justice. The majority of the questions in the appeal raised questions of law only, but the Board should not be disentitled to make submissions on these questions, especially when they have aspects that bring them into relation to question 3. The Board was properly made a party to the proceedings, with standing at least for the purpose of defending its statutory jurisdiction. The Court could, in its discretion, permit the Board to enlarge the range of its submissions to include questions of law that are important to the discharge of its statutory functions. The present case called for this latitude.
1. The Canada Labour Code makes it clear that what is an appropriate bargaining unit is for the Board to determine. It would have been open to the Board to determine the appropriate bargaining unit as of the date of the application for certification, but in fact it did not do so. There was no substance in question 1 and no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit.
2. The only question remaining to be decided on the scope of the bargaining unit was whether the personnel records clerk should have been excluded. It was for the Board, on the evidence before it, to determine whether this job should be included or excluded, and its decision to include this class of work in the unit was not reviewable.
3. The Federal Court erred in its view as to the obligation of the Board to permit cross‑examination as to numbers and, certainly, as to any further inquiries which could only involve identity. Section 29(4) of the Canada Labour Relations Board Regulations, declaring that evidence submitted to the Board with respect to employee membership in the union was for the confidential use of the Board, is a reinforcement of the policy of the Act with respect to the authority of the Board in the determination of a union’s membership position.
4. If the employee’s counter-petition had been timely the Board would have been obligated to consider it. However, the Board was entitled to act on s. 10(2) of the Regulations and refuse consideration of a petition by late would-be intervenors. The Federal Court of Appeal plainly erred in law in requiring the Board to ignore its valid Regulations. Also, apart entirely from timeliness, the employer cannot invoke what is a jus tertii, especially when those whose position is asserted by the employer are not before the Court. 5. Question 5 was without substance, subject to the effect of the counter-petition.
Per Pigeon and Beetz JJ.: Concurred with Spence J. that the appeal was not properly taken by the Canada Labour Relations Board; would, however, as he does, deal with the questions in issue as if the union instead of the Board had been an appellant before the Court.
Agreed with the Chief Justice that there was no substance in question 1 and that no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit.
Agreed with Spence J.’s disposition of question 2 and with the Chief Justice’s disposition of the remaining questions.
Per Martland, Ritchie and Spence JJ., dissenting: An administrative tribunal has a right of appeal only to defend its jurisdiction. In the present appeal the Board was not appellant solely to protect its jurisdiction, and, therefore, the appeal was not properly taken by the Board. Under the circumstances of the case, however, the issue in the questions as to which leave was granted could be dealt with as if the union instead of the Board had been an appellant before this Court. The important issue was that in reference to the alleged departure by the Board from the principles of natural justice.
Once the Board had determined that there should be a hearing, then it was the essence of the application of the principles of natural justice that the Board should hear all relevant evidence upon the subject of whether or not the union had the necessary majority of members in the proposed unit in favour of certification. Accordingly, the Federal Court of Appeal was correct in finding that the refusal to permit the cross-examination which counsel for the respondent desired to address to the witness for the union was a breach of the principles of natural justice and, therefore, the certification should be quashed.
It was a most deplorable reliance upon technicalities for the Board to have simply returned the employees’ petition as untimely with no investigation by its own officers or examination in the hearing as to the different position which, at any rate, the petition indicated, and such a course following the Board’s refusal to permit the cross-examination was again a breach of the principles of natural justice and justified the decision of the Federal Court of Appeal in quashing the certification order.
The duties of the personnel records clerk were not confidential in reference to industrial relations, only as to personnel relations. Therefore, there was evidence upon which the Board could properly include the personnel records clerk in the appropriate unit and the appeal, considering it as an appeal of the union, should be allowed to the extent that the inclusion of this clerk within the union was appropriate.
APPEAL from a judgment of the Federal Court of Appeal[1], setting aside a certification order. Appeal allowed, Martland, Ritchie and Spence JJ. dissenting.
G.F. Henderson, Q.C., and G. Hynna, for the appellant.
W.R. De Graves, Q.C., and M.J. Phelps, for the respondents.
The judgment of Laskin C.J. and Judson J. was delivered by
THE CHIEF JUSTICE—This appeal by the Canada Labour Relations Board from a unanimous judgment of the Federal Court of Appeal, setting aside a certification order and remitting the case to the Board, is here by leave of this Court on five questions of law which were formulated as follows:
1. Did the Federal Court of Appeal err in holding, if it did so hold, that the Canada Labour Relations Board erred in determining the appropriateness of the bargaining unit as of the date of application for certification?
2. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board had wrongly included persons in the bargaining unit who were not employees eligible for inclusion under the Act?
3. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board denied natural justice to the respondent and hence acted beyond its jurisdiction in refusing
(a) to allow it to participate in the investigation of the question whether the applicant union seeking certification had a majority of persons in the bargaining unit as members; or
(b) to allow counsel for the respondent to cross-examine a witness on the question of majority membership? 4. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in refusing to consider a counter-petition of employees presented after the conclusion of its certification hearings but before the making of the certification order?
5. Did the Federal Court of Appeal err in holding that the Canada Labour Relations Board erred in not making its determination on the question of majority as of the time of making the certification order?
On the hearing of the application for leave, counsel for the respondent Transair Limited raised the question of the locus standi of the Board but no argument on the matter was addressed initially to this Court on respondent’s behalf on the hearing of the appeal. Nonetheless, the matter was raised by the Court and I wish to deal with it before considering the merits of the appeal. There are a number of facets to the question. It is common ground that the Board, although a party to the proceedings herein, should not be permitted to argue on the merits of its decision, and it is equally common ground that, subject to the effect of s. 28 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), the Board is entitled to contest any challenge to its jurisdiction. Since natural justice (and I make here simply a general reference to this concept which has a number of aspects) has been considered as going to jurisdiction in certiorari or comparable proceedings taken to impeach a statutory tribunal’s decision, it would appear to me to be open to the Board in the present case to assert standing not only as a nominal party, but as one entitled to defend its jurisdiction against attack for want of natural justice.
The right of a labour relations board to appeal from an adverse order relating to its jurisdiction and to defend its jurisdiction on the appeal was declared by a unanimous judgment of this Court in Labour Relations Board of Saskatchewan v. Dominion Fire Brick and Clay Products Ltd.[2] Three sets of reasons were delivered in that case, one by Kerwin J., for himself and Rinfret C.J., one by Kellock J., for himself and Rand J. and one by Estey J. Although Kellock J. appears to have taken a broader ground than limiting the Board in that case to questions of jurisdiction, it is clear, as a minimum, from the other two sets of reasons, that the tribunal was entitled to appeal to support its jurisdiction which had been called in question in the proceedings. In International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board[3], the Ontario Court of Appeal took the same view.
What is or is not a question of jurisdiction as opposed to a question of law only, touching the manner in which a statutory tribunal exercises its authority, is a somewhat ambiguous if not also a trammelled question. The language used by the Courts, including this Court, which decided the case of Toronto Newspaper Guild v. Globe Printing Co.[4], indicates an elastic conception of jurisdiction, as including an error of law in the course of proceedings which the tribunal there had undoubted authority to entertain. The defect in the Globe Printing case, which was characterized as a declining of jurisdiction, was, inter alia, a refusal of the tribunal to allow the respondent employer to cross-examine on the question of resignations from union membership when an inquiry to that end had not been made by the tribunal itself. In the present case, question 3 on which leave was granted, also raises an issue of a right to cross‑examine which was urged by the respondent as going to jurisdiction.
Questions 1, 4 and 5 raise, in my view, questions of law only, as does question 2 which proved, however, for reasons set out below, to have little significance for the case as a whole. I am not prepared to hold that the Board in the present case should have been held disentitled to make submissions on these questions, especially when they have aspects that bring them into relation to question 3. The Board was properly made a party to the proceedings that are now before us, with standing at least for the purpose of defending its statutory jurisdiction. In my opinion, the Court could, in its discretion, permit the Board to enlarge the range of its submissions to include questions of law that are important to the discharge of its statutory functions. The present case calls for this latitude.
In instituting the present proceedings under s. 28 of the Federal Court Act to impeach a certification order made by the Board in favour of the Canadian Association of Industrial, Mechanical and Allied Workers, Local No. 3, the respondent Transair served not only the union but the Board, and, as well, the Deputy Attorney General of Canada. Both the union and the Board were represented by counsel before the Federal Court of Appeal and its reasons for judgment contain no indication that any limitation was placed on the range of submissions that the Board was allowed to present or whether in fact the Board did confine itself in the scope of its representations. I assume, from what counsel for the Board said in this Court, that the Board took no position on the merits of the union’s application.
Section 28(1) of the Federal Court Act reads as follows:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasijudicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. I do not find anything in this provision to alter my view that the Board was entitled to make submissions as a party on any question going to its jurisdiction, including a question of natural justice under s. 28(1)(a), and that it was open to the Federal Court of Appeal, as it is open to this Court, to permit it to make submissions on questions of law arising under s. 28(1)(b). Although the union was before the Federal Court of Appeal, it decided (as appeared from a letter addressed to the Registrar of this Court) that it would not file a factum or appear by counsel here but would content itself with supporting the position of the Board. In the circumstances, the latter should not be charged with any impropriety in making representations on questions of law that have not heretofore come before this Court in respect of the Board’s powers under the Canada Labour Code.
I do not regard the Board’s participation as making it an adversary party as if there was a lis between it and the respondent Transair. Its counsel properly submitted to this Court that the Board was seeking an elucidation of the scope of its authority under its constituent statute, and it was to be expected that counsel would have to take a position on the questions at issue if he was to be of any help to the Court.
I turn now to the merits of the issues arising under the questions on which leave to appeal was granted. I can best approach them by a chronology of the events out of which they were said to arise. On July 19, 1973, the union filed with the Board an application for certification as bargaining agent of employees of Transair within a proposed bargaining unit. That unit was described generally in the application as follows:
All office workers of Transair Limited and all related offices, except managerial staff.
The union stated also that there were approximately sixty employees in its proposed bargaining unit. The application was communicated to Transair which was required to post notices thereof at its premises in Winnipeg, Sault Ste. Marie, Thunder Bay and Churchill Falls and did so on August 7 and 8, 1973. Transair, by a reply dated August 15, 1973, pursuant to Regulations of the Board, contested the application on two grounds, namely, that the proposed bargaining unit was not appropriate and that the union did not have majority membership support of the employees in the proposed unit. Transair also took the position that the number and percentage of employees within the proposed bargaining unit should be indicated by the union and it asked for a hearing to enable it to adduce evidence and make representations.
The Board assigned an investigating officer to report on the application and he obtained from the union its membership records to check against Transair’s roster of employees within the proposed bargaining unit. The investigation extended over a period of several months during which letters passed between the union and the Board and between Transair and the Board (or from them to the Board’s investigating officer). The Board received a report from this officer and directed a hearing on the certification application. Hearings were held on December 13 and 14, 1973, and were adjourned to January 23, 1974, and completed on January 24, 1974. At the opening of the hearings, the chairman of the Board referred to the proposed bargaining unit, to the number of employees therein and to the investigating officer’s report and announced that the union had established an absolute majority membership position in respect of the number in the proposed bargaining unit. Representations were made by the union and by Transair on the appropriateness of the unit. The union was asked to establish its status as being a “trade union” within the definition in the Labour Code because this was its first involvement in certification proceedings before the Board. It accordingly offered one MacEvoy as a witness, and counsel for Transair sought to cross-examine him as to the number (not the names) of employees within the proposed bargaining unit who were members, but this line of questioning was not permitted by the Board on the ground that such information was already available to the Board and was for its confidential use.
The Board issued a certification order on April 17, 1974. I set the order out in full:
WHEREAS an application for certification as bargaining agent for a unit of employees of Transair Limited, has been received from the Applicant by the Canada Labour Relations Board under Part V of the Canada Labour Code (Industrial Relations);
AND WHEREAS, following investigation of the application and consideration of the submissions of the parties concerned, the Board:
(a) Found the Applicant to be a trade union within the meaning of the said Code;
(b) Found the persons in the proposed bargaining unit, with certain exceptions, to be employees within the meaning of the Code;
(c) Determined the unit described hereunder to be appropriate for collective bargaining; and
(d) Is satisfied that a majority of the employees of the Respondent in the said unit wish to have the applicant trade union represent them as their bargaining agent;
NOW, THEREFORE, it is hereby ordered by the Canada Labour Relations Board that Canadian Association of Industrial, Mechanical and Allied Workers, Local #3, be and it is hereby certified to be the bargaining agent for a unit of employees of Transair Limited, comprising all office and clerical employees of Transair Limited including the planning clerk, the technical records statistician, and the technical librarian, but excluding the president, executive vice-president, senior vice-presidents, comptroller, assistant comptroller, directors, general manager, managers, supervisors, charter co-ordinator, administration assistant, district representative, personnel assistant, secretary to the president, secretary to the executive vice-president, secretaries to the senior vice-presidents, confidential stenographer to the comptroller, confidential stenographer to the vice-president of administration, confidential stenographer to the director of personnel, maintenance planner, draftsman, and those employees covered under subsisting collective agreements held by the International Association of Machinists and Aerospace Workers, Canadian Air Line Pilots Association, Canadian Air Line Flight Attendants’ Association, and Canadian Air Line Dispatchers Association. It should be noted that the bargaining unit is described in the Board’s order in some detail. This was obviously the result of what went on at the hearings, and I wish to refer to them in this connection. Although the union’s proposed bargaining unit might have given the impression that the union was seeking to represent a very sizable body of employees, its reference to the number of employees whom it was seeking to represent made it very evident that it was a limited unit that it had in mind. Transair was in no way misled because in its reply to the union’s application, after pointing out that it had ongoing collective bargaining relations with other unions and that it sought other exclusions of managerial employees and of some others (including those employed in a confidential capacity in matters relating to industrial relations), it affirmed from its own standpoint the correctness of the union’s estimate that sixty employees were affected by its application.
When the Board announced at the opening of the hearings that, with respect to the number of employees in the proposed bargaining unit, the union had satisfied the Board of its majority membership position, the Board had in hand the report of its investigating officer in which the particular classifications of the employees sought to be covered by the union were enumerated and, further, the number of those employees was found to be sixty-six. Transair, in addition to its reply already referred to, had supplied the Board before the hearing with a “master payroll listing” of all its employees, and the Board also had before it other material relating to existing collective bargaining relations between Transair and other unions.
The Board could have been a little more precise in the way it advised the parties at the hearing that the union had satisfied it of its majority membership position in respect of the unit for which certification was sought. That unit had been assessed by the investigating officer according to job classifications and the parties were aware of this when the Board declared its finding of majority membership position. As I have already noted, no one, certainly not the parties, could have been in any doubt as to the body of employees with which the Board was dealing and, indeed, the Board indicated that even if the number were increased to seventy-three, the union’s majority membership position would not have been affected.
What remained at issue was a consideration of exclusions of managerial employees and employees in a confidential capacity in matters relating to labour relations. Beyond this, there was little room left to quarrel about the definition of the bargaining unit; there was only the question of nomemclature in describing the included and excluded classifications, and this the Board did in its formal certification order, having had the benefit of the investigating officer’s report on classifications and Transair’s master payroll listing of its employees. I should add that it was also supplied at the hearing with a chart of Transair’s structure and the functions of its employees and as well with the classifications of those employees who were covered under collective agreements with other unions.
It appeared later that the Board had inadvertently failed to exclude (and it was common ground that they should have been excluded) the secretary and vice-president of administration, the vice-president of sales and marketing, the vice-president of the Eastern Region and the vice-president of operations. When the case was before the Federal Court of Appeal this error was disclosed, and the only remaining question on the scope of the bargaining unit was whether the personnel records clerk should have been excluded. The Federal Court of Appeal directed this exclusion on what appears to have been a mistaken appreciation on its part of the evidence touching the functions of this employee. I find it unnecessary to dwell at any length on this matter, and it is enough to say that it was for the Board, on the evidence before it, to determine whether this job should be included or excluded, and its decision to include this class of work in the unit is not reviewable. This disposes of question 2 which, in relation to the job of personnel records clerk, must be answered in the affirmative.
On the day that the Board made the certification order but before it was issued, notice was received by the Board of a petition of employees of Transair, dated April 16, 1974, objecting to the proposed certification. The entitling of the petition as one for decertification is of no moment; the thrust of the petition and the number of signatures make it clear that if it had been taken into consideration, or should have been considered by the Board as a matter of law, the certification order could not properly have been made on April 17, 1974. The Board rejected the petition as untimely and returned it (there were in fact two petitions with a minor variation between them) to the moving party by letter dated April 24, 1974. Reasons for the Board’s certification order were mailed to the parties on April 19, 1974, and the certification order was also mailed on that day. Because of an air strike the order was sent to the parties by telex on April 25, 1974.
So much for the history of the certification application and its eventual termination in a certification order. Transair brought its s. 28 application on May 2, 1974, and it raised as one of its grounds of challenge of the Board’s order the Board’s failure to consider the petition above mentioned. By an order of October 31, 1974, the Federal Court of Appeal directed that the petition be added to the record of the case forwarded by the Board pursuant to Federal Court Rules. The right of Transair to seek the intervention of the Federal Court of Appeal is given by s. 122(1) of the Canada Labour Code which provides that: “Subject to this Part [Part V], every order or decision of the Board is final and shall not be questioned or reviewed in any Court except in accordance with s. 28 of the Federal Court Act.”
The wide powers of the Canada Labour Relations Board in respect of certification of trade unions for collective bargaining are evident from Part V of the Canada Labour Code, and are supported by Regulations made thereunder. Since like powers are found in provincial labour relations legislation with which this Court has had extensive experience, it is unnecessary to expound afresh the statutory policy that underlies such legislation, and it will be sufficient, for present purposes, to refer only to a few key provisions of the Canada Labour Code, namely, s. 126 and s. 118(a)(c)(f)(k) and (p). They read as follows:
126. Where the Board
(a) has received from a trade union an application for certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and
(c) is satisfied that a majority of employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.
118. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
…
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion the Board sees fit, whether admissible in a court of law or not,
…
(f) to make such examination of records and such inquiries as it deems necessary;
…
(k) to authorize any person to do anything that the Board may do under paragraphs (b) to (h) or paragraph (j) and to report to the Board thereon;
…
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether
(i) a person is an employer or employee,
(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers’ organization, a trade union or a council of trade unions, (v) a group of employees is a unit appropriate for collective bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a collective agreement, and
(viii) a collective agreement is in operation.
It is common ground that the Board may deal with a certification application without holding a hearing. In addition to its power to certify a union under s. 126, the Board is authorized under s. 127 to order a representation vote to satisfy itself of the wishes of the employees, even though the union may have provided evidence of majority membership; and it is required to direct such a vote if the applicant union’s membership support is under 50 per cent but is not less than 35 per cent of the employees in an appropriate bargaining unit. In the present case the Board, being satisfied of the applicant union’s majority membership position as announced by it at the hearing, chose to certify without ordering a representation vote. It is the contention of Transair that once the Board agreed to hold a hearing, it was obliged to permit cross-examination of witnesses, certainly to the limited extent sought by the respondent, and further that full inquiry had to be permitted as in any adversary proceeding. I shall return to this issue after making reference to the Regulations relevant to the present proceedings.
I need refer only to s. 10 and s. 29(1), (3) and (4) of the Regulations which are in the following terms:
10. (1) A person desiring to intervene in an application to the Board shall
(a) if he has not already received a copy of the application, request the Board to provide him with a copy of the application; and
(b) file with the Board a reply to the application within ten days after the receipt by him of a copy of the application.
(2) if a person desiring to intervene in an application to the Board fails to comply with subsection (1), he shall not, without the consent of the Board, be permitted to make any representations to the Board in relation to the application; and the Board may dispose of the application without notice to that person. …
29. (1) For the purposes of an application for certification, evidence that an employee is a member of a trade union shall be in writing and consist of:
(a) evidence that the employee has, within the period commencing on the first day of the third month preceding the calendar month in which the application is made and ending on the date of the application, joined the trade union
(i) by signing an application for membership or other document, acceptable to the Board, and (ii) by paying on his own behalf at least two dollars as the union admission fee or as one month’s dues within the aforementioned period; or
(b) evidence that the employee has been a member of long standing in the trade union and has, on his own behalf, paid not less than one month’s dues in the amount of at least two dollars within the period set out in paragraph (a).
…
(3) Where an employee objects to an application for certification of a trade union or indicates to the Board that he no longer wishes to be represented by the applicant, he shall provide the Board with the following information in writing, signed by him:
(a) his full name, address and occupation;
(b) the date of the application;
(c) the full name and address of the applicant trade union; and
(d) the full name and address of his employer.
(4) Evidence submitted to the Board pursuant to subsection (1) or (2) shall be for the confidential use of the Board and shall not be made public.
In its formal order on the s. 28 application, the Federal Court of Appeal set aside the Board’s certification order and directed the Board to reconsider the application for certification by “reinvestigating and making a new determination concerning the question that arises with reference to the application for certification under paragraph (c) of section 126 of the Canada Labour Code”. The formal order also directed the Board to re-define the bargaining unit to make it clear that it does not include the four vice-presidents (whose exclusion has been agreed upon by the parties, as already noted) and the personnel records clerk, whom I have already dealt with. There is no other formal direction with respect to the bargaining unit, but the Federal Court of Appeal’s reasons for remitting the case to the Board (and which must be scrutinized to understand the basis of the remittance directed in the formal order) indicate that another point, that raised in question 1, was material in relation to the bargaining unit and supported the Court’s direction.
The statute makes it clear that what is an appropriate bargaining unit is for the Board to determine. I have no doubt that it would have been open to the Board to determine the appropriate bargaining unit as of the date of the application for certification, but in fact it did not do so. Since the parties were more or less agreed on the number of employees intended to be covered, it was only the classifications to be included and those to be excluded that had to be determined as a basis for assessing the majority membership position among such employees. That was worked out, contingently it seems to me, by the report of the investigating officer; and it was at the hearing that the Board, in the light of the report, was able to speak, with more definiteness than the union’s specification permitted, of the bargaining unit within which the majority membership position had to be established to its satisfaction. In short, I do not agree that the Board determined the bargaining unit as of the date of the application. Indeed, the number in the unit upon which the Board assessed the union’s membership strength was announced at the hearing as sixty-six and not sixty as originally stated by the union and supported by Transair. The determination was either at the date of the hearing or at the date of the certification order, and there is nothing to suggest that anything that happened in the interval, if that is in any way a relevant consideration, had any bearing on the scope of the unit in respect of which the union’s majority membership position was to be assessed by the Board.
There is, accordingly, no substance in question 1 and no reversible error was committed by the Board in respect of the time of its determination of the appropriateness of the bargaining unit. Ques- tion 5 is, in the light of the foregoing, equally without substance, subject to the effect of the counter-petition which is raised by question 4.
Questions 3 and 4 relate to the principal grounds upon which the Federal Court of Appeal proceeded in setting aside the certification order. What is in issue in question 3 is not a refusal by the Board to hear evidence tendered by Transair on the question of majority membership (it did not tender any), but a refusal to permit counsel for Transair to inquire into the number of employees who were members of the applicant union through cross‑examination of a union witness called, upon invitation of the Board, to establish the status of the union as a qualified bargaining agent. Chief Justice Jackett in his reasons in the Federal Court of Appeal noted that “it is common ground among the parties to this case that vis-à-vis the employer, the identity of its employees who are members of the applicant union is a confidential matter”. Counsel for Transair reaffirmed in this Court that he did not seek to have the identity of those employees disclosed. I may observe that this position is not consistent with his general allegation that the hearing wa