John Biggins et al. v. U.A.W. Local 673, 1981 CanLII 919

[1981] OLRB Rep. December 1803

1456-81-R John Biggins and a group of employees Applicants, V. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (U.A.W.) Local 673, Respondent

BEFORE: R.O. McDowell, Vice-Chairman, and Board Members O. Hodges and F. W. Murray.

APPEARANCES: David Rubin, Doug Christie, John Biggins, Robert Harvey, Helmut Schwarze, William J. Taylor, Hugh McBryde, David N. Pim and James Greig for the applicants; M. Kenny, C. Aitken, J. O'Neil for the respondent; no one appearing for the DeHavilland Aircraft of Canada Limited.

DECISION OF THE BOARD; December 31, 1981

I

1. This is an application for termination of bargaining rights filed under section 60 of the Labour Relations Act. For ease of reference the respondent will be referred to as "the union", and the applicants' employer, De Havilland Aircraft of Canada Limited, will be referred to as "De Havilland" or "the company".

2. In 1954 the union was certified to represent a bargaining unit of De Havilland's office and clerical" employees. The bargaining unit was described as follows (emphasis added):

all office and clerical employees of De Havilland Aircraft of Canada Limited in its main plant and engine division, Toronto, save and except section heads, persons above the rank of section head, one secretary to each department manager or to a person of higher status, draughtsmen in any department, and persons of higher status than draughtsmen in the engineering departments, registered nurses, buyers, senior cost estimators, technical writers and illustrators, field service representatives, subcontract placement officers, liaison officers, teletype operator, the executive chauffeur, clerks assigned to the confidential payroll composed of persons not employed within the scope of any bargaining unit, and all employees engaged in the industrial relations department including personnel engaged in plant security and protection.

This unit description follows a standard format used by the Board for many years. The certificate refers to a generic group ("all office and clerical employees") with specific exclusions based upon managerial status or community of interest considerations. The unit comprises all existing office and clerical classifications not specifically excluded, as well as any new office and clerical classifications which might be created in the future. Neither the union's status as bargaining agent, nor the scope of its bargaining rights, depends upon the continued employment of the individuals employed at the time of certification, or the continuation of precisely the same jobs or job descriptions. A subsequent enlargement, contraction, or alteration of the bargaining unit does not affect the union's right to represent all office and clerical classifications other than those specifically excluded.

3. For some years this bargaining unit description was reproduced verbatim in the various collective agreements which the union and De Havilland negotiated from time to time. But De Havilland was an expanding high technology enterprise. Technological change and organizational innovation altered the duties and responsibilities of employees in existing classifications, and required the creation of many new ones. By the late 1960's, the union and De Havilland concluded that technology and the market-place were making the bargaining unit definition in the 1954 certificate increasingly obsolete. In 1969. they negotiated the following clause to replace it:

ARTICLE II Scope & Recognition

2.01 The Company and the Union agree with the principle in defining the Bargaining Unit that Clauses 2.02 and 2.03 identifies the jobs that are excluded from the Bargaining Unit and that in future all new office jobs will be included in the Bargaining Unit unless the parties agree to exclude them because the duties and responsibilities of the new job are comparable to those of jobs now excluded. Any dispute of this nature between the parties will be resolved in accordance with Clause 2.04 and

2.05.

2.02 The Company recognizes the Union as the sole and exclusive bargaining agent for all office and clerical employees of the Company in the offices at any of its facilities located within a fifty (50) mile radius of Downsview. The Bargaining Unit does not include persons employed by the Company in a managerial capacity, persons employed in the Personnel and industrial Relations Department, section heads or supervisory, management or professional personnel above the rank of section head; Security and protection personnel; Field Service Representatives; Industrial Engineers, Engineering Technicians, Liaison Engineers, Engineering Loftsmen; draftsmen and one secretary to each department manager or persons of a higher status.

2.03 The following classifications and employees assigned to these classifications are also excluded from the Bargaining Unit:—

Finance

1. Budget & Forecasts Analyst*

2. Budget & Forecasts Typist*

3. Cashier

4. Teletype Operator

5. E.D.P. Programmers

6. E.D.P. Systems Analyst

Marketing & Product Support

1. Overhaul Coordinator*

2. Warranty Coordinator*

3. Confidential file Clerk (I only)*

Operations

1. Senior cost Estimator

2. Budget Analyst*

3. Forecast & Performance Analyst*

4. Buyer

5. Sub-Contract Placement Officer

6. Executive Chauffeurs

Contracts

1. Contract Administrator

2.04 Before the Company decides to exclude from the Bargaining Unit any newly created job other than covered in 2.02 above it will discuss the new position with the Bargaining Committee and allow the Union to investigate the work performed in the new job. In the event of a dispute concerning the exclusion of the new job, a mutually selected adjudicator will decide whether to include the new position in the Bargaining Unit or whether it is to be added to the lists of exclusions under 2.03 above. Before the dispute goes to the adjudicator, the Company will supply the Union with a written outline of the job and allow the Union to investigate the work performed in the new job.

The Union and the Company will each present their positions and argument in writing to the adjudicator with copies to the other party. The adjudicator in resolving the dispute shall compare the duties and responsibilities of the new position to those of existing classifications included in the Bargaining Unit and those classifications which the parties have agreed to exclude from the Bargaining Unit.

This procedure is not to be considered as part of the normal grievance procedure. The parties however agree that the decision of the adjudicator under this Article will be final and binding upon each party.

2.05 In the event the Company decides to increase the number of employees classified under those positions designated by an asterik in 2.03 above, the duties of the additionally assigned employees will be reviewed with the Bargaining Committee to determine whether they are to be excluded under the title of that classification or whether it is necessary to create a new job under 2.04 above. The agreed list will be supplied to the Union and kept up to date at all times.

Any dispute under this paragraph may be referred to the adjudicator for a decision in accordance with 2.04.

4. This new definition (now, of course, eleven years old) envisages a unit which expands with the exigencies of an evolving business situation; but, unlike its predecessor, it makes it clear that accretions or new classifications will not fall automatically into the unit, but will be the subject of a complex process of discussion and adjudication. Moreover, Article 2.05 recognizes that a job title, in itself, does not define any particular set of job functions, nor is the assignment of a label of job title determinative of an individual's status. On the other hand, in a fluid situation when the duties of employees are changing, it might be a difficult task to distinguish between a redefinition of job functions in an excluded classification, and the creation of a new classification which might be included pursuant to Article 2.04.

5. The new recognition clause preserved some of the named exclusions from the 1954 certificate, but not all of them. The reference to "technical writers" and "illustrators" was dropped implying, prima facie, that these classifications should now be included in the bargaining unit. As it turned out, this was not the position which the company took. Despite the alteration of the scope clause, the company did not apply the agreement to the groups no longer excluded. Many of the applicants in the instant proceedings are employed in these classifications.

6. The new recognition clause did not resolve the differences between the parties, nor did the negotiated adjudication process provide an effective mechanism for settling them. There continued to be a series of demarcation problems concerning the scope and limits of the union's bargaining rights. In the union's view, the company was using the specifically excluded classifications as "umbrellas" to shelter non-bargaining unit personnel involved in work overlaping with, or similar to, that of employees in the bargaining unit, — while from time to time, bargaining unit employees were being laid off for lack of work. The classification "engineering technician", for example, began to appear as a "catchall" for a number of jobs similar to, but excluded from, the bargaining unit. "Junior Cost Estimators" sat side by side and exchanged work with "Senior Cost Estimators". Although there was no significant difference in the character of their work, the former were included in the bargaining unit and the latter were excluded. Eventually, there were thirteen Senior Cost Estimators (excluded) and three Junior Cost Estimators (included) all doing essentially the same work. Similarly, the "data collective clerk" performed similar functions to the "data collection co-ordinator"; but the latter position was considered by the company to be beyond the scope of the collective agreement.

7. The trade union characterized the situation as ''a cat and mouse ~ with the company expanding the number of persons in the excluded classifications or purporting to create new classifications, job titles and position descriptions, while the union scrambled to determine whether the changes were justifiable. In the union's view they often were not, and simply resulted in an erosion of bargaining rights, diminishing the work opportunities available to trade union members.

8. From the union's point of view the "cat and mouse game" had many anomalous and undesirable results. Groups of employees having similar training, experience, education, and job functions were divided — some being excluded from the bargaining unit and some being included. In an integrated contiguous work group, some employees might be covered by the collective agreement, while others would not be. Work in progress passed from individuals in the bargaining unit, to persons excluded, and back again, and bargaining unit personnel performed co-ordinating functions for both bargaining unit and non-bargaining unit employees. Bargaining unit members could be laid off while non-bargaining unit employees performing similar jobs were retained. In the union's view, the seniority rights and job security of members in the bargaining unit were being undermined, and their right to transfers and promotions was artificially impeded. The situation made it much more difficult to negotiate a rational job structure with wage differentials corresponding to real differences in skill and responsibility.

9. All of these issues surfaced during the negotiation of the 1981 collective agreement. Those negotiations focused on a number of individuals said to be performing bargaining unit work (and, as such members of the bargaining unit to whom the agreement should apply) and a number of designated job classifications which the company treated as excluded from the unit, but which the union argued involved clerical work properly within the scope of the bargaining unit description. The classifications in issue were the following:

1. Logistics Liaison Officer

2. Teletype Operator

3. Technical Writer

4. Technical Illustrator

5. Tool Designer

6. Advertising Officer

7. Sales Promotion Assistant

8. Data Collection Coordinator

9. Forecast and Performance Analyst

10. Senior cost Estimator

10. I will be noted that of these ten classifications, only three, — Teletype Operator, Forecast and Performance analyst, and Senior Cost Estimator — are specifically excluded by Article 2.03 of the agreement. The other seven classifications are not mentioned and prima facie therefore, fall within the unit. However, the company took the opposite view, and over the years since 1969 had never applied the agreement to them. On various occasions the union asserted that these groups should be included in the unit; but it never pressed this position to arbitration. The dispute concerning these classifications was only a part of the much larger unit/description issue, and the union did not believe this problem could be adequately resolved by a series of ad hoc arbitration decisions. In the union s view, the problem was a general one, which could only be dealt with through joint consultation and negotiations with the company. The fact remains, however, that for many years the individuals occupying the above named classifications have been considered beyond the scope of the collective agreement, and have never had either the advantages or disadvantages of trade union representation. Some of these individuals have indicated their interest in being represented by the union. The majority have no such interest.

11. In the most recent round of negotiations the duties of the disputed classifications and individuals were considered at some length. Eventually, the company conceded that the union was right, and that the ten classifications — including the three specifically named in Article 2.03 — should properly be included within the scope of the bargaining unit. But both bargaining parties were sensitive to the wishes of the employees. The union had no desire to "sweep-in" individuals who did not want to be union members. The result was the negotiation of an "opt-in" formula, so that individuals currently in the company’s employ who wished to remain excluded from the unit could elect to do so, and maintain their existing status, wages and benefits. Persons electing to join the unit would carry with them their full years of service (an apparent exception to the usual method of calculating the seniority of employees transferred into the unit); but those who chose not to do so and later changed their minds, would be dealt with in accordance with the existing contractual provisions respecting transfers. The formula to which the company and the union agreed provides:

(a) The work performed by M. J. Yoo, H. Weisenberg. R. Rouse, G. Colm, D. Pim, R. Harder and J. Hale shall be assigned to bargaining unit personnel.

(b) The following job classifications will be covered by the collective agreement subject to the conditions set out in the sub-paragraphs below:

i) Logistics Liaison Officer

ii) Teletype Operator

iii) Technical Writer

iv) Technical Illustrator

v) Tool Designer

vi) Advertising Officer

vii) Sales Promotion Assistant

viii) Data Collection Coordinator

ix) Forecast & Performance Analyst

x) Senior Cost Estimator

(c) Permanent employees in any of the job classifications enumerated in sub-paragraph (b) may elect to remain excluded from the Union and from the application of the collective agreement. The election must be made within sixty (60) days of ratification. If the employee makes such election, the work which he performs shall remain excluded from the bargaining unit and the collective agreement shall have no application to such employee or his work. This exemption shall continue so long as the employee continues to be employed in his current job.

(d) Persons currently employed in such enumerated job classifications who do not elect to be excluded and all employees hired into those job classifications after ratification shall become members of the Union in accordance with Article XX and their work shall be included in the bargaining unit.

(e) All persons becoming members of the bargaining unit hereunder shall receive full credit for all past service for all purposes of the collective agreement.

(f) All persons becoming members of the bargaining unit hereunder shall be placed in a wage level by the Company subject to review under Schedule B, Article 4.

(g) If the employee makes the election to be excluded from the Bargaining Unit and later decides to enter the Bargaining Unit he shall be free to do so.

The election form given to each of the employees potentially affected reads as follows:

THE DE HA VILLA ND AIRCRAFT OF CANADA, LIMITED EMPLOYEE ELECTION FORM

(This election form is to be used by active employees only during the period up to September 4, 1981. This form is not to be used for employees on Disability Leave, Workman's Compensation Leave, Vacation or on authorized Leave of Absence.

I, Clock # under­stand the options available to me with respect to a letter of Under­standing between the Company and Local 673 U.A.W. on the subject of including my current job under the Scope of Recognition Article of the Collective Agreement.

I, elect to

(a) Remain a Non-Union employee and the Local 673 U.A.W. Collective Agreement will not apply to me.

(b) Become a member of Local 673 U.A.W. and the Collective Agreement will apply to me.

Employee's Signature Witness

Dated Signed Date Signed

Note: If you fail to make an election by September 4, 1981, you will be deemed to have chosen option (B) and you will be a member of Local 673 U.A.W. and the Collective Agreement will apply to you.

Elections must be made and submitted to the Personnel & Industrial Relations Department.

12. The parties recognized that in the short run they would have to cope with an unusual situation in which part of a classification was included in the unit covered by the collective agreement, while part would be excluded. Individuals in the same classification would have different terms and conditions of employment. However, this problem was not so different from what had obtained before, when included and excluded classifications overlapped, and employees performing substantially similar work were on different sides of the unit's dividing line. The administration problems would resolve themselves in the longer run, and, the compromise was regarded as an acceptable balance of the competing interests involved.

13. Part (a) of the agreed formula (concerning Messrs. Yoo, Weisenberg, Rouse, etc.) concerned the union's contention that these named employees were doing work within classifications undisputedly part of the bargaining unit — a situation prohibited by Article XXII of the collective agreement. The union argued that they should either be treated as covered by the agreement (with appropriate wage and benefit payments, dues deductions, and so on), or, alternatively, that the company should assign the work to other members of the bargaining unit. The company agreed that these employees were in fact doing bargaining unit work. Insofar as David Pim is concerned (and he is the only one of the individuals named in sub-clause (a) who is involved in these proceedings) there has been no change in the character of his work. The parties herein are agreed that David Pim is a member of the bargaining unit, described in Article II of the agreement.

14. The new collective agreement was ratified on or about July 5, 1981. The approximately 67 employees in the enumerated classifications thus had until September 4, 1981, to decide whether they wished to become an accretion to the union's bargaining unit. About 20 of them opted to do so, and about 46 chose to remain outside the unit and the collective agreement.

15. In late August 1981, all of the employees potentially affected by the new clause were notified of a meeting to be conducted by the union for the purpose of explaining the clause, and the options open to them. Carole Aitken, the President of the local, testified that at that meeting union officials explained the history of the bargaining, and the background to the unit problem to which the new clause was directed. The union informed the employees that if they chose not to join the unit, their situation would remain the same. They would continue to be treated under the agreement as excluded individuals with whatever wages and benefits the company chose to give them. If they joined the unit they would have the benefits prescribed in the collective agreement. The union advised them that if they opted to join the unit now, they could carry with them as their unit "seniority" their full years of "service"; whereas if they chose to transfer to the unit at some later date, their situation would be no different from that of any other excluded individual transferring into the unit. In that situation their seniority would be determined by Article XVI of the collective agreement. It was the union's view that (with certain exceptions) Article XVI provided that for persons who had never been a member of the bargaining unit, bargaining unit "seniority" would only begin to accumulate on the date of entry into the unit.

16. The language of Article XVI is not as clear as it might be, but the union's interpretation is not an unreasonable one. Consequently, it was clear, (or should have been clear,) to the employees that if they did not exercise their option to join the unit now, they might face real disadvantages if they decided to do so later. In effect, the union was prepared to waive the application of Article XVI to persons transferring into the unit pursuant to the new clause, but made no undertaking to do so at some later time.

17. At the meeting, some of the employees expressed concern about the effect of a lay­off on persons who chose to remain outside the unit. The union advised them that it had no way of foreseeing such matters, although it was to be expected that it would be primarily concerned to safeguard the jobs of its members. Again, it should have been clear to the employees that by opting to remain outside the bargaining unit in a regime of individual bargaining, they were foregoing certain obvious benefits and protections and might find themselves at a disadvantage at some time in the future vis-a-vis employees who had those rights. It must be repeated however, that this too, is not much different from the situation prevailing before 1981.

II

18. Section 60 of the Labour Relations Act provides as follows:

60.-(l) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition as provided for in subsection 3 of section 15, the Board may. upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection 1, the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection 1, the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection 1, the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

(Emphasis added)

19. As we have already noted, all of the individuals bringing this application (with the exception of David Pim) are employees who have opted to remain excluded from the bargaining unit pursuant to the "opt-in" formula set out above. These employees contend that the ten classifications potentially affected by the arrangement the union and company have concluded, cannot be added to the existing bargaining unit, in whole or in part, because the proposed unit is "inappropriate", and not such as this Board would certify; moreover, in respect of three classifications, at least, it is reversing a situation which has existed since the Board's certificate in 1954. The applicants argue that the union has never been certified to represent either the accretion, or the "new unit" which arguably results when the accretion is added to the existing bargaining unit configuration. In the alternative, the applicants contend that if it is legally possible for the parties to negotiate the above-mentioned amendment to the bargaining unit, it can only be maintained if the majority of the employees in the subject classifications support the union — which is not the case here. The applicants submit that the Board should set aside the agreement insofar as it purports to affect any of the employees in the ten classifications potentially affected. In the applicant's submission, the (approximately) twenty employees who opted to join the bargaining unit have no right to do so unless the majority of their co-workers are in favour, and in consequence, the Board should declare that the agreement has no application even to those who have voluntarily chosen to be covered by it.

20. The union argues that it has been certified to represent a unit of employees although perhaps not the unit which appears in the current collective agreement (or any agreement since 1969 for that matter). To permit an attack on jointly negotiated accretions to the bargaining unit would frustrate the parties' attempts to redraw the bargaining unit in light of current collective bargaining realities. The union argues that for the purpose of section 60, there is only one "defined bargaining unit in the collective agreement" [see section 60(4)], and that is the unit as a whole including the added classification. The phrase "bargaining unit" means precisely the same in section 60 as it does in the companion termination provision section 57; namely, the whole or combined unit as defined in this collective agreement. There is no doubt about the union's right to represent the majority of the employees in that unit. The accretion does not stand by itself as a separate unit within which the union must demonstrate majority support. So long as the "added — on portion" of the unit does not dilute the union's overall majority status in the combined group — as it could not if the accretion was relatively small and the existing unit did not contain a large group of non-members, — the agreement is beyond challenge. In this respect, the union argues, the situation is no different from any other voluntary recognition arrangement which embraces employees or classifications of employees who do not wish to be represented. In the ordinary course, the minority wishes are always subordinated to those of the majority. The only difference in this case is that instead of relying upon membership cards, the union relies upon the membership support established by its existing collective agreement.

21. On this branch of its argument the union relies on Metcalfe Realty Limited[1965] OLRB Rep. Sept. 385. In that case, as in the present one, a union and employer negotiated an addition to the recognition clause of a collective agreement so as to add certain classifications that had previously been excluded. The Board set out the standard of representation which the union must meet in these circumstances as follows:

"Since the employees for whom the applicant is seeking certification were included in the bargaining unit for the first time in the current collective agreement, and the applicant has challenged the validity of their inclusion, the onus rests on the respondent and the intervener to satisfy the Board that at the time they entered into the agreement the intervener represented a majority of the employees in the bargaining unit. This means the parties must establish that on the relevant date the intervener represented a majority of the employees in the overall bargaining unit covered by the current collective agreement. It is not necessary, however, for the intervener to establish that it represented a majority of the employees in the job classifications that were included in the bargaining unit for the first time in the existing agreement."

22. On this test, the union argues, the parties could have "negotiated in" all ten classifications without reference to the employees at all. Indeed, seven of those classifications, including Technical Writers and Illustrators — have properly been part of the unit since at least 1969. The company's failure to apply the agreement to them cannot alter its terms. The only true "accretion" is the inclusion of those classifications (Teletype Operator, Senior Cost Estimator) which have previously been expressly excluded. Finally, the union points out that it did not ignore the wishes of the employees. The only persons who have been added to the unit are those who actually wished to be represented by the union. This group is the only real "accretion" to the unit, and each and every member of that group has indicated his desire to be represented by the union.

23. With respect to David Pim, the union argues that he is not a member of any of the added classifications, but of the "main unit", so that even if the accretion theory is accepted, his situation is not different from that of any other employee hired, transferred or demoted into the unit. Section 60 is not available to him or, if available at all depends upon a definition of the term "bargaining unit" appearing in section 60, in which the union's majority representation is beyond question.

III

24. It will be convenient to deal first with David Pim. He is not a member of the accretion, however one defines it. If one accepts the applicants' submission that the term "bargaining unit" in section 60 refers to the accretion or voluntarily recognized portion of the unit, then Pim is not an employee in that group. In order for Pim to have status to bring this application, one would have to say that the term "bargaining unit" refers to the "combined unit" (i.e. old unit plus accretion). There is no doubt about the union s right to represent the vast majority of the employees in that grouping. The applicants do not challenge this proposition. In other words, for Pim to have status to bring this application, one must ascribe a meaning to the term "bargaining unit" which results in a situation fully in accord with the majority representation principle embodied in the Act, and, in our view applicable to section 60. If Pim were the only applicant then, this application would have to be dismissed.

25. The short answer to the rest of the applicants is that none of them are "employees in the bargaining unit", however, it is defined. They have opted out. The collective agreement does not apply to them. They have no status under section 60 to challenge the choice of their co-workers.

26. The recognition clause of the collective agreement in this case is somewhat unusual.

It is not framed solely with reference to "generic" groups of employees (production, office and clerical, etc.), nor is it framed solely with respect to specific classifications which are to be included or excluded. In addition to these familiar ways of describing a bargaining unit, the employer in this case has agreed to voluntarily recognize the union's bargaining rights for certain individuals when (and only when) those individuals indicate their desire for trade union representation. No one can be swept in against his wishes, and, in this sense, the standard of "representativeness" constructed by the parties to this agreement is much more stringent than the ordinary majority principle recognized throughout the Labour Relations Act. It is difficult to characterize this as a "sweetheart arrangement" falling within the mischief to which section 60 is directed. The necessary condition for inclusion in the unit is a voluntary signification that each individual wishes to be represented.

27. Strictly speaking, since none of the applicants (except Pim who we have already dealt with) is an employee in the bargaining unit, this application must be dismissed on that ground alone, and it is unnecessary to consider the general effect of the parties' amended recognition clause, or the possible application of section 60 had this proceeding been brought by an individual with status to do so. We might note however, that at the time the collective agreement was actually extended to the employees in the accretion, each and every one of them had opted for trade union representation. The effective date of the voluntary recognition —that is, the date on which the employee exercised his option. It is a little difficult to see how it could be said that, at that time, the trade union did not represent them within the meaning of section 60(3) of the Act. Finally, if the Board were to apply Metcalfe Realty, the only decision precisely on point, the union's majority status would be affirmed. As we have already noted, unless one takes the term bargaining unit to mean "the accretion" — a position rejected in Metcalfe Realty and different from the meaning ascribed to the term in section 57, — then the union has more than enough support among the employees. Accordingly, even if this application had been brought by individuals having status to do so, it is doubtful whether we would have reached a different conclusion.

28. For the foregoing reasons, the application must be dismissed. We do not wish to leave this matter however, without expressing our appreciation to counsel for the parties for the able submissions which they both made on all aspects of the case.