The Canadian Union of Public Employees v. Metropolitan Separate School Board, 1986 CanLII 1523

[1986] OLRB Rep. December 1733

1635-85-R The Canadian Union of Public Employees, Applicant, v. Metropolitan Separate School Board, Respondent, v. Ontario Public Service Employees Union, Intervener #1 v. Ontario English Catholic Teachers Association, Intervener #2

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. H. Wightman and W. F. Ruth­erford.

DECISION OF THE BOARD; December 1,1986

1. This certification application was filed October 2, 1985. The applicant union sought cer­tification for a bargaining unit limited to "full-time" Heritage Language Instructors. The respon­dent contended that the bargaining unit would not be appropriate unless it consisted of all of its Heritage Language Instructors. On the first day of hearing, we expressed concern whether any unit limited just to Heritage Language Instructors was appropriate. After two subsequent days of hear­ing covering the contentions of the parties about Heritage Language Instructors and, at our request, evidence concerning the respondent's employment relations with all of its other unorganized employees, we reserved our decision on the composition of the appropriate bargaining unit. In a decision dated September 9, 1986 [11986] OLRB Rep. Sept. 1259], we determined that the appropriate bargaining unit in this case is not as originally described in either the union's Appli­cation or the employer's Reply, but would include all instructors (that is, persons who teach but are not teachers as defined by the Education Act) regularly employed for more than ten hours per week.

2. Our finding with respect to the composition of the appropriate bargaining unit - that is, the description of the sorts of employees who are to be included in the unit - was not sufficient to dispose of this application. We still have to determine the identities of all persons who were actually employed in that unit as of the application date in order to then assess, from membership evi­dence filed, whether the percentage of those employees who were members of the applicant at the relevant time is sufficient, having regard to section 7 of the Labour Relations Act, to warrant either a representation vote or outright certification. The lists which had been prepared and filed by the employer and were examined by the union before our hearings began had dealt only with Heritage Language Instructors. As a starting point for identification of the persons employed in the unit we had since found appropriate, we needed new lists from the employer, naming the persons it claims were employed in that unit on the application date. Accordingly, in our decision of September 9th we ordered that the respondent prepare and file such lists prior to the continued hearing date, which was to be set by the Registrar.

3. As the bargaining unit we had found appropriate included persons in a range of job categories whom the union had not sought to organize, we thought it unlikely that the applicant could responsibly determine and state its position with respect to the accuracy of the employer's new lists on the continued hearing date without having some time prior to that date to study the new lists and make any necessary enquiries. Accordingly, in our decision of September 9th we ordered that the respondent deliver copies of these new lists to both the Board and the union within three weeks of that date or at least one week prior to the next hearing date, whichever was the earlier.

4. In the last paragraph of a letter to the Registrar dated October 1, 1986, counsel for the respondent said this:

I also note in paragraph 33 that the Board has directed M.5.5.B. to provide the lists of employ­ees to the applicant trade union. This seems to run counter to the Board's normal practice with respect to employee lists and was not a matter that was raised before the Board during the hear­ing. Before our client is required to comply with that part of the Board's direction, I would appreciate an opportunity to address the Board on this point.

By letter dated October 3,1986, the Registrar responded as follows:

With respect to the last paragraph of your letter, I am directed to ask whether you are request­ing reconsideration of the Board's direction that copies of the lists be provided to the union before hearing. If you are, your attention is directed to Practice Note 17 ([1985] OLRB Reports March) and particularly paragraph 2, and you should file the material required by that para­graph within ten days. I am advised that any submissions with respect to reconsideration of the subject direction should address the Board's decision in McDonnell-Ronald Limousine Service Limited, [1985] OLRB Rep. Jan. 1, Board of Education for the City of York, [19851 OLRB Rep. May 767 and Scarborough Board of Education, [1986] OLRB Rep. Mar. 361 as well as the decision of the Nova 5cotia Supreme Court in Nova Scotia Michelin Employees' Local 1699 of the Canadian Labour Congress v. Nova Scotia Labour Relations Board et at., 86 CLLC ¶14,009.

5. By letter filed with the Board on October 16, 1986, counsel for the respondent requested that the Board reconsider its direction that the respondent provide copies of its new lists to the union prior to the next hearing date, which had by then been scheduled for October 24th. By decision dated October 17, 1986, we dismissed that request and directed that the Registrar forthwith dispatch to the union and its counsel copies of the new lists which the respondent had filed with the Board on October 8th.

6. The request for reconsideration began with this observation:

My client has, of course, no objection to the applicant examining the employee list at an appro­priate point so that the applicant can determine whether it wishes to make any challenges to the list.

There can be no serious doubt that an applicant trade union has a legal right to examine the list of employees filed by the employer. An employer's contrary argument prompted a thorough examination of that question, and of the Board's practice with respect to disclosure of such lists, in the majority decision in Airline Limousine, [1985] OLRB Rep. Jan. 1 (reported as McDonnell Ronald Limousine Service Limited, at 9 CLRBR (NS) 67 and 85 CLLC ¶16,018), which made the follow­ing observations:

12. On an application for certification, when any issue arises concerning the employee list or the composition of the bargaining unit, the Board's longstanding practice is to determine the bar­gaining unit description, then permit the applicant union to review the list so that it can identify and particularize any challenges. If the union does not request to see the list or question its accuracy, the Board will proceed on the basis of the information contained therein without the necessity of formal proof. But nothing in the Act or the Rules makes that employee list "confi­dential", nor is it easy to see where the Board would get the authority to withhold information upon which it planned to act, and which was so clearly necessary to its determination. The rec­ords of a trade union relating to membership have been accorded specific statutory treatment, as have other documents revealing employee wishes with respect to union representation. (See section 111 of the Act). Section 111 was passed to reverse judicial decisions requiring the prod­uction of such documents revealing employee preferences. (See: Globe Printing Co. v. Toronto Newspaper Guild 1951 CanLII 145 (ON HCJ), [1951] OR. 435; 1952 CanLII 59 (ON CA), [1952] 2 D.L.R. 302; 1953 CanLII 10 (SCC), [1953] 3 D.L.R. 561.) Maintaining the confidentiality of a union's membership records helps to protect employees from unlawful reprisals by those employers who do not accept the legitimacy of their right to join a union or engage in collective bargaining. However, there is no similar provision prohibiting or restricting disclosure of the list of employees said to be. or found to be, in the bargaining unit.

13. It is not difficult to understand why the employee list is revealed. It would be a little curious if a trade union were to be granted a certificate because it had established the requisite level of support in the bargaining unit described generally, but left the hearing without a precise understanding of the basis on which its application succeeded. On a more basic level, when even a simple certification case involves a comparison of the union's membership evidence with a list of employees in the bargaining unit, and there are statutorily prescribed consequences flowing from that calculation (a vote, outright certification, or dismissal), the union must be entitled to the employee list if it is to participate in the hearing in a meaningful way. How else can it prop­erly protect and advance the rights of its members? How else can it determine whether the employee list is accurate and correct or whether through error, inadvertence, or improper intent the list of employees said to be in the bargaining unit is inaccurate? Now, of course, there may not be very many cases where an employer intentionally misrepresents the number of employees in the bargaining unit. But, as we have already noted, the speed with which the employer must respond to the certification application, the potential complexity of the issues, and the inevitable exercise of judgment will often result in the production of a list which, at least arguably, is not sufficient for the purpose of making the determinations required under sections 6 and 7 of the Act.

14. In our view, there is no sound basis for denying a trade union the opportunity to review the employee list and, in practice, the union has always been given that opportunity. If a question arises concerning the list the union has never been denied an opportunity to review it. Nor is there any good reason why it should not make a copy or take notes, so that it can pursue its inquiries, on its own time. We do not think that it makes sense to draw a distinction between reviewing the list and taking a copy, simply because the latter might assist a union in preparing its case or gathering information which could well result in a withdrawal of a challenge. It would be odd to structure a system in such a way as to reward union officials with a good memory, and multiply the difficulties in large bargaining units where there is the greatest potential for error or misjudgement; and we can only speculate about how a court would respond to this "hide and seek" approach to litigation, in which critical assertions of fact may be revealed or reviewed, but not copied, lest the party asserting those facts lose some tactical advantage attributable to the other's ignorance. Adversarial attitudes are prevalent enough in our collective bargaining sys­tem, without elevating them to the status of principles governing the process by which employ­ees acquire the right to bargain collectively through a union of their choice. If, in the course of a certification application, a union is entitled to review the list - as we find that it is - it is our view that the union should be entitled to make a copy, and, again as a practical matter, a union has always been accorded the right to make a list of all unfamiliar names for the purpose of chal­lenge and investigation.

In short, the Board is obliged by the rules of natural justice to provide an applicant union with access to the information in the employer's lists before it acts on that information in making any determination which affects or determines that union's rights. (See also Extendicare Diagnostic Services, [1981] OLRB Rep. Aug. 1134 at 8 and Nova Scotia Michelin Tires Employees' Local 1699 v. Nova Scotia Labour Relations Board 86 CLLC ¶14,009 (N.S.S.C.) at page 12,053.)

7. Having sensibly conceded the union's right to see the new lists it has filed, the respondent's request for reconsideration goes on:

In my submission, however, such examination should take place in the presence of a Labour Relations Officer for the reasons detailed by Board Member Ronson in his dissenting decision in McDonnell-Ronald Limousine Service Limited 85 CLLC page 14,120. At page 14,126, Mr. Ronson sets out the O.L.R.B.'s general policy, and the reasons therefore, with respect to the examination of employee lists in the following manner:

"1. l disagree with my colleagues. If the applicant wishes to examine lists of employee names then it should be done in the presence of a Labour Relations Officer. That is the only way that abuse of the Board's procedure can be prevented and is the only way that employers can be assured that their lists will not be used by the union for organizing purposes.

2. The reasons for my dissent have been the reasons for the Board's policy concerning these lists since the creation of the Board. They remain as valid now, as they were then."

There have been only a few exceptions to the general policy, those exceptions being set out in the O.L.R.B. decisions mentioned in your letter of 3rd October, 1986.

Counsel goes on to submit that the majority decision in McDonnell-Ronald Limousine Service Limited, supra, which directed that the applicant trade union be given a copy of the lists, "turns very much on its own unique facts." He emphasizes the complexity of the "list" issues in that case by contrast with a "simple certification application", which we take counsel to implicitly suggest that this case is. From these submissions we take it counsel would have us conclude that the major­ity in Airline Limousine would have adopted and approved the approach described in the dissent­ing member's decision had it been a simple case. We think not.

8. Originally, the practice or "policy" referred to in the dissenting opinion in Airline Limousine was related to another early practice, which was that the Board's own forces would always be deployed to investigate the accuracy of an employer's list whenever the union asked that it do so. This investigation was conducted by an "examiner", a position since supplanted by that of a "Labour Relations Officer." The linkage between the union's examination and the examiner s inquiry appears from the following extracts from Gaytown Sportswear, [1965] OLRB Rep. May 118 (in which an inquiry into the accuracy of the lists is referred to as an "inquiry into the composi­tion of the bargaining unit"):

At the hearing of the application on April 23rd, the union challenged the accuracy of the res­pondent's claim that there were 43 persons in the bargaining unit. In this respect the applicant claimed that there were only 31 persons in the unit.

It has for some time past been the practice of this Board in such cases as the present, to author­ize the examiner to inquire into the composition of the bargaining unit and not to impose any limitations on his authority in that respect. Moreover, the Board has not required the union to particularize its challenges at the hearing before it. The main reason for this practice is that the union usually does not have access to the employer's list of employees and is, therefore, not in a position to know or to particularize its challenges until it is made aware of the names and job classifications of the employees on the list at the examiner's hearing. Depending upon the nature of the challenges then made, many different issues of fact and law can and do arise, e.g., whether a certain employee was employed on the date of the application, his terms of absence and recall, whether he worked for the respondent employer or some other employer, whether he was a person exercising managerial functions, whether he worked in a particular location and thereby fell within the description of the unit, whether his duties and responsibilities were such as to bring him within an excluded category etc. Often, of course, new issues also arise during the course of the inquiry before the examiner from the answers given by the witnesses. It is obvious that any inquiry into the composition of a bargaining unit resulting from a challenge to the list is in many respects essentially of an exploratory nature from the point of view of the union.

The linkage is revealed again in Livingston Wood Manufacturing Limited, [19671 OLRB Rep. Feb. 877:

3. The applicant has referred to an alleged refusal by the respondent to provide it with a list of employees coming within the proposed bargaining unit. The Board's policy in this regard has been that during the course of the hearing before the examiner on the matter of the list of persons within the bargaining unit the representative of the applicant is to be permitted to examine the examiner's list containing the names of the employees of the respondent within the proposed bargaining unit. At the conclusion of the hearing the list is to be retained by the examiner.

These decisions suggest that the Board normally withheld the lists from the union's scrutiny until after the union had challenged the list and requested that an examiner inquire into its accuracy. The "normal" approach was described differently, however, in Dependable Caterers Limited, [1961] OLRB March 457 at 459:

While normally, the applicant union does not obtain a copy of the respondent's list of employ­ees, the Board's practice does afford an opportunity to a union which challenges it to check the list in the presence of the employer and a representative of the Board. If the applicant union is not satisfied with the contents of the list, it is entitled to make representations to the Board and to ask that an examiner be appointed to enquire into the composition of the bargaining unit or the duties and responsibilities of particular employees.

9. In any event, at a time when any list controversy invariably became the subject of an examiner's inquiry, the union's examination of the lists when the inquiry began was seen as the point at which the issues to be dealt with by the examiner were first delineated. The following pas­sages from Sudbury Memorial Hospital, [1974] OLRB Rep. Dec. 871 illustrate that point:

10. On September 12th, 1974, the Board appointed an examiner to inquire into the composition of the bargaining unit and the lists of employees thereon. In due course the examiner convened a meeting of the parties and at the first meeting of the parties commenced the proceedings by showing the applicant the lists of employees in Schedules A, B, and D, filed by the respondent. The respondent objected to this manner of proceeding. That objection was overruled by the Examiner and the inquiry continued. Before dealing with the Report of the Examiner herein, we propose to comment on the objection by the respondent to that manner of proceeding. The actual objection of the respondent is that the examiner "without consultation with or agreement from the respondent and without specific instructions from the Board gave copies of Schedule A, B and D to the applicant union for their perusal and verification."

11. We fail to see why the procedure adopted by the Examiner in this matter is contrary to either established practices or contrary to the Act as suggested by the respondent. Indeed, the proce­dure adopted by the Examiner has been used for many years by the Board's examiners when certain areas of the lists of employees are in dispute. It is, of course, necessary for both sides to know the position of the other side before the actual issues in dispute before the Examiner can be delineated. Thus, when the examiner shows the lists of employees in the various schedules to an applicant trade union, this is simply a method of conveying the respondent's position on the list of employees to the applicant trade union. To suggest that this can be done in some other way is simply not practical. The objection of the respondent to the procedure adopted by the examiner is therefore denied.

[emphasis added]

10. Although the language of the dissenting opinion in Airline Limousine implies that the policy it refers to has been invariable in both content and application, that is not so. As appears from the decisions quoted above, older cases are not consistent about the precise stage of the proceedings at which the applicant was ordinarily given access to the information in the lists. While the decision in Dependable Caterers Limited, supra, said that the union would check the list in the presence of the employer's representative, the Board's later decision in Extendicare Diagnostic Services, supra, held that the union could review the lists in the absence of any employer represent­ative. There is at least one reported decision from the 1960's in which, in circumstances different from those of this case, the Board directed that copies of employee lists be sent to an applicant union by mail together with a request that the union advise the Board whether it challenged the lists: Paul Girard Co. Ltd., [1966] OLRB Rep. Sept. 411.

11. The dissenting opinion in Airline Limousine stated that an applicant's examination of the employee lists must take place in the presence of a Labour Relations Officer because this will prevent abuse of the Board's process and assure employers that their lists will not be used by the union for organizing purposes. The majority decision in that case addressed those points this way:

12. It might be said that providing the union with a list of employees gives it an advantage not only in the particular application under review, but also in some later application. It might be said that a union should not have the "tactical advantage" of knowing the parameters of the bar­gaining unit, or the identity of the employees in it, for the purposes of approaching them at some later time to see whether or not they wish to be represented by a trade union. The list might be "abused"; moreover, a calculating union might apply for certification simply to obtain the list for a future campaign. If an employer knew that a union would receive a copy of the employee list, the employer might be tempted not to respond to the certification application, or to make an incomplete response. Finally, it might be said that it is "unfair" that a union be per­mitted to know who the employees are, and the employer is not permitted to know precisely which of those employees have opted to support the union.

13. No doubt there is some basis for these concerns, but in our view they are overstated. First, from a practical point of view, some two-thirds of all bargaining units have less than forty employees so that a mere perusal will be sufficient to generate an accurate list. It is only in larger bargaining units where a copy of the list gives the union the opportunity for future advan­tage, but is is precisely in those larger bargaining units that there is greater margin for error by one party or both, and a greater need for a list to identify and investigate the areas of dispute. Employers who believe they may benefit from filing an inaccurate or incomplete reply can do so now, and that fact in itself suggests that a union should have a copy of the list so it can evaluate its position. But the fact is that employers do not usually certify as accurate what they know is not, and unions do not usually file frivolous applications merely for discovery purposes. What does happen quite frequently are innocent errors by the employer, or an innocent miscalculation by the union as to the contours of the bargaining unit and the number of employees in it. Should the Board's process be abused, it has ample authority to deal with the problem.

We agree that the Board has ample authority to deal with any abuse of its process. Abuse of process can be prevented by making it clear that such authority will be exercised in an appropriate case. Hence, the presence of the Labour Relations Officer is not the only means of preventing abuse of a process which gives the union access to the employer's lists only for the purposes of the certification application in respect of which they are filed. Indeed, we are unable to understand or explain how the mere presence of a Labour Relations Officer during an examination of the lists could itself restrict the use thereafter made of the information thereby acquired. The presence of the Labour Relations Officer is not the only way to prevent abuse. Furthermore, it does not seem a particularly effective way to prevent abuse at all.

12. As we have already noted, the practice of having the union examine the lists in the pres­ence of an examiner was a concomitant of the practice of invariably appointing an examiner to inquire generally into the accuracy of the list whenever the union asked that that be done, without having the union first identify its challenges or the basis for them. This approach created its own potential for abuse - one which the Board once treated as the inevitable consequence of its policy, as the follow passage from Vail's Systems Company Limited, [1966] OLRB Rep. Aug. 308 illus­trates:

13. . . .a number of meetings were convened by the Examiner and certain investigations carried out by him. The applicant has alleged that certain persons ought not to be included in the list of employees furnished by the respondent. The respondent now requests the Board to rule that the applicant must give particulars of these allegations.

14. In its application, the applicant stated that there were approximately 40 persons in the bar­gaining unit which it proposed. The respondent in the schedules to its reply listed the names of some 65 persons. The respondent has advised the Board that of 50 persons still employed by it in the bargaining unit, the union has challenged 43. The applicant, we are advised, alleges that 20 of these persons exercise supervisory functions, that 17 were not in the employ of the respon­dent at the time of the application for certification, and that 6 do not perform work within the bargaining unit. It may be observed that by this reckoning the applicant's own estimate of the number of persons in the bargaining unit was grossly in error.

15. The Board is concerned that its processes and the rights of all parties not be abused by the making of allegations without foundation. Where, however, a claim is made that the list of employees is not correct, the Board has no alternative but to conduct its usual inquiry through an Examiner as has been done in the instant case. Where the Examiner has, as in the instant case, investigated the records of the employer, the applicant should be entitled to present evidence to contradict that which the Examiner has examined. In the instant case the Board directs that the Examiner call for examination those persons whose names appear on the list of employees fur­nished by the respondent and who the applicant claims were not in the employ of the respon­dent on the date of the making of the application. In these proceedings, examination and cross-examination shall be limited to the issue whether these persons were in the employ of the res­pondent on the date of the making of the application.

[emphasis added]

It must be observed that the practice described in Gaytown Sportswear, supra, and other decisions encouraged the making of allegations without regard to the firmness of their foundations, because it was only by making unparticularized challenges to the employer's position on this relevant issue that the union could get particulars of the employer's position.

13. Practices and policies of the Board have changed since the creation of the Board. The position of examiner has evolved into that of the Labour Relations Officer, which has a greatly expanded role in promoting of settlement of matters before the Board, including matters arising in the many new areas of jurisdiction which have been conferred on the Board since the 1960's. While an examiner's report on an inquiry once consisted of the examiner's personal summary of the viva voce evidence heard, a Labour Relations Officer's report on an inquiry now includes a full tran­script of all viva voce evidence received on the matters in dispute, without comment or summary by the officer. To that extent, at least, the inquiry process has become more cumbersome and less expeditious. The Board's approach to the processing of certification applications has also changed. The Board's attempts to resolve an application now commence before any formal hearing begins. If an application is not disposed of through the new (relative to the date of the Board's creation) pre-hearing "waiver program" described in the Board's Practice Note No. 12, then (ordinarily) a Labour Relations Officer is assigned to and does meet with the parties on the morning of the scheduled hearing date, without there having been any formal Board order authorizing the officer to make any particular inquiry and before any formal hearing begins. The officer's role at this stage is purely consultative and mediative. If the parties reach agreement on a description of the appro­priate bargaining unit, as they often do, the officer then permits the union to review the employee lists. By contrast with the Board's earlier practice, the union is then expected to be ready to partic­ularize its challenges and articulate the basis for them as best it can when the matter proceeds to hearing, which will ordinarily occur, if at all, later that same day. Similarly, the employer is then expected to articulate the basis for its position on those aspects of the list which have been identi­fied as contentious during this pre-hearing meeting with the officer. When the matter does come on for hearing later in the day, the Board may call on a party to justify any request that an officer be appointed to conduct an inquiry by articulating the facts which the party says would be revealed by such an inquiry. When an officer is to be appointed, the Board has been increasingly concerned that the subject matter and scope of the inquiry be defined and delineated as far in advance as pos­sible and with all possible particularity. Indeed, the Board has the same concern about the issues which may remain to be dealt with in its own hearings.

14. There are always limitations on the extent to which issues in a certification application can be defined in advance of hearing. In the case of disputes over the identify of persons employed in the appropriate unit at the relevant time, the possibility of defining or even ascertaining the positions of the parties on the hearing date is greatly limited by the fact that the union ordinarily has no notice of the employer's position before the hearing date. There is only so much an appli­cant union can do to define and narrow the issues in a matter of minutes after learning what they are. Even if the union comes fully prepared for any eventuality — able to particularize its chal­lenges and even address then with evidence available to be called that day — proceedings may still be delayed by the employer's inability to respond to challenges asserted at hearing. That problem occurred in Martin Muhr Investments Inc., (Board File No. 0236-86-R, unreported decision dated May 16, 1986), for example, where a union's detailed challenges to a list it first saw that day could not be dealt with because counsel for the employer was not prepared to do so and was unable to contact anyone who could instruct him on the employer's answer to the union's allegations. There the Board noted:

In his own defense, counsel [for the respondent] observed that he had not known before the date of the hearing that there was any challenge to the list. While we do not accede to the appli­cant's request that we make a critical note about the respondent's inability to get instructions with respect to the applicant's challenges, we do note (as we did in the course of the hearing) that this difficulty would have been avoided had the respondent's lists been provided to the applicant in advance of the hearing, so that it could, in turn, review those lists and give the res­pondent advance notice of the challenges it proposed to make.

This was by no means the first time that the Board has commented on the adverse effect on the Board's processes of the current delays in informing an applicant union of the employer's position on the list; for another example, see Qaklands Regional Centre, [1984] OLRB Rep. June 855 at 10.

15. While the four cases referred to in the Registrar's letter may or may not be the only recent reported decisions in which list disclosure was a point of contention, they are certainly not the only ones in which a trade union has been given a copy of an employee list or seen one in the absence of a Labour Relations Officer. Employers and employer counsel unfamiliar with Board practices often seem surprised when a Labour Relations Officer offers or is offered to supervise the union s review of what could only be described in any other forum as a pleading. Counsel and employers familiar with the historic practice have dispensed with it when its observance would delay matters.

16. Because applicant unions (and interested employees) do not ordinarily see the respondent employer's lists before the first hearing date, scheduled hearing time and the time of other parties and potential witnesses is regularly and systematically wasted on the first scheduled hearing date, while the union and anyone else with an interest in the issue do what they could have done more effectively before the hearing: review the list and make whatever inquiries are necessary to take a considered position on the accuracy of the list. Often there is not time to make the necessary inquiries, so the union simply challenges every name about which it is uncertain; the hearing is then adjourned and a fresh hearing date is set or an officer is appointed to make inquiries, in either event introducing delays and adding cost which might both have been reduced or eliminated had the union been given both the opportunity and the obligation to review the lists in advance of the scheduled hearing date. When a panel has become seized, the inability to make effective use of scheduled hearing time is even more critical, because of the increased difficulty of rescheduling a hearing before any particular panel at an early date.

17. Both before and since the creation of this Board, the general trend in the courts and other adjudicative tribunals has been toward adopting practices and procedures which encourage or force early and complete pre-hearing disclosure of each party's case to the opposite parties, so as to promote the settlement or narrowing of the issues to be tried, to enhance the quality of preparation and, hence, presentation of the evidence and argument on issues which remain to be tried and to achieve, by these and other means, a more efficient and effective use of the public resources devoted to dispute resolution. It should come as no surprise to anyone that the same trends should occur in the evolution of this Board's practices and policies. Those practices and pol­icies are subject to critical examination from time to time, as they must be, in light of experience, the level of the Board's resources and the competing demands made on those resources. Any change in or departure from existing practice which would facilitate and encourage a narrowing of issues and better preparation for hearing by the parties without any significant increase in demand on Board resources is a change or departure which will attract the Board's serious consideration. Any contention that such a change should not be made for fear that the new procedure may be abused must be closely scrutinized, along with the implicit notion that the current procedure effec­tively prevents otherwise likely abuses and does not itself harbour the potential for abuse.

18. We need not decide in this case whether this Board should adopt, as several other Canadian jurisdictions have, the practice of sending copies, or requiring the employer send copies, of employee lists to the union prior to the first scheduled hearing date. The considerations which might support such a change have been recited here to show why a simple invocation of Board practice without reference to any concerns grounded in the particular circumstances of this case was not found a compelling reason to delay giving notice to the union of the case to which it must respond until a Board employee is available to supervise the reading of something the union is entitled by law to read. In any event, there can be no doubt after Airline Limousine Service Limited, supra, that the proper approach to the timing and manner of disclosure of employee lists is open to consideration on a case by case basis. We were of the view when we gave our direction that it was appropriate for the reasons noted in paragraph 3 hereof. We remained of that view after considering the respondent's reconsideration request. Accordingly, we dismissed the respondent's application for reconsideration as we have noted in paragraph 5 hereof. As will be apparent, we made that decision in the interest of expediting these proceedings, having concluded it was unnec­essary to direct that a Labour Relations Officer participate in the union's review of the new lists before the scheduled continuation date.