Union of Bank Employees (Ontario) Local 2104 v. National Trust, 1987 CanLII 2990

[1987] OLRB Rep. January 108

0414-85-R Union of Bank Employees (Ontario) Local 2104, Canadian Labour Congress, Applicant, v. National Trust, Respondent, v. Group of Employees, Objectors

BEFORE: R. Herman, Vice-Chairman, and Board Members W. G. Donnelly and D. A. Patterson.

APPEARANCES: Steven Barrett for the applicant; Brian Burkett, Sharon Scott and Clare Fitzgerald for the respondent; Jenny Kokkas and Lillian Byrne for the objectors.

DECISION OF THE BOARD; January 7, 1987

1This is an application for certification involving seven of the branch offices of the respondent National Trust in Metropolitan Toronto. The Board has issued two prior decisions in this matter, but the hearings before the present panel were to entertain the submissions of the parties with respect to the Board Officer's report examining numerous "employees" of the respondent, and with respect to whether the original panel of the Board which issued the two prior decisions ought to deal with all outstanding issues.

2In the first decision issued by the Board, differently constituted, on February 28, 1986, [1986] OLRB Rep. Feb. 250, the Board described the structure of the respondent's 37 branch offices across Metropolitan Toronto, and the three-tiered management structure operating throughout that region (cf. paragraphs 1 to 8 of that decision). Paragraph 5 of that decision reads as follows:

The respondent has a three-tiered management structure featuring a Branch, Region, and Head Office level. The agreed statement of facts presented by the parties to the Board notes that:

The term and conditions of employment for the employees are established by Head Office at National Trust and implemented at the branch level by the Branch Manager with the approval of the appropriate Regional Office.

The full-time employees at National Trust in Toronto have common terms and conditions of employment in terms of hours of work, salary levels, fringe benefits, vacation schedules, paid holidays, overtime, leaves of absence, absenteeism, hirings, termina­tions, discipline, transfers, promotions and demotions.

Branch Managers are responsible for the financial administrative and personnel functions at the branch. Branch Managers are responsible for the financial administrative and personnel functions at the branch. Branch Managers are required, as a matter of written policy, to either involve or obtain the approval of Regional Office and/or Head Office with respect to a wide range of employment matters including hours of work, salary levels, fringe benefits, vacation schedules, paid holidays, overtime, leaves of absence, absenteeism, hirings, terminations, discipline, transfers, promo­tions and demotions.

Branch Managers are responsible for the financial administrative and personnel functions at the branch. Branch Managers are required, as a matter of written policy, to either involve or obtain the approval of Regional Office and/or Head Office with respect to a wide range of employment matters including hours of work, salary levels, fringe benefits, vacation schedules, paid holidays, overtime, leaves of absence, absenteeism, hirings, terminations, discipline, transfers, promotions and demotions. In many instances, Branch Managers make effective recommendations to Regional or Head Office with respect to most of the employment matters listed above.

Performance evaluations of employees at National Trust are undertaken at the branch level by the Branch Manager. In many instances, Branch Managers make effective recommendations to the Regional Office with respect to the performance rating of employees in their Branch, Performance evaluations are reviewed at Regional Office and Head Office where responsibility resides for the final performance rating of each employee.

Six of the branches in question here perform National Trust's normal savings and loan function, while the seventh performs a savings function only.

The skills, training and nature of the work of the employees who perform a savings function at National Trust is similar from one location to another.

3As can be seen from the excerpt from that prior decision, each of the seven branches in question before us is managed by a Branch Manager, whom the parties have agreed is excluded on the basis that he or she exercises managerial functions within the meaning of section 1(3)(b) of the Labour Relations Act, and in each of the respective branches the person below the Branch Man­ager on the hierarchy is referred to as either Assistant Branch Manager or Administration Officer. The current composition of the respondent employer reflects a merged entity, as a merger was elected on September 1, 1984 between Victoria & Grey Trust Company, which referred to the second-in-command at each branch as Administration Officer, and National Trust Company, which referred to such individuals as Assistant Branch Managers. For our purposes in this proceed­ing, the two terms are interchangeable, as we are asked to decide whether in our opinion, each of the seven individuals, one in each branch, who are either Administration Officers or Assistant Branch Managers, exercise managerial functions within the meaning of section 1(3)(b) of the Act, and therefore cannot be considered "employees" for purposes of the Act. The applicant contends that all seven of these individuals exercise managerial functions, and therefore ought to be excluded from any bargaining unit(s) subsequently determined to be appropriate (whether one or more bargaining units are appropriate are matters remaining to be canvassed as set out in the Board's decision of February 28, 1986). The applicant specifically withdrew its prior submission tat on community of interest grounds as well, these individuals ought to be excluded from the bar­gaining unit(s). The respondent in turn contends that all seven of the Assistant Branch Managers o~ Administration Officers do not exercise any managerial functions, or if they do they are so inci­dental to their overall duties and responsibilities, that all seven individuals ought to be included within the described bargaining units. Apart from the resolution of the status of the seven individ­ual Assistant Branch Managers (we may refer to them by this generic term for simplicity's sake) there is a group of individuals being trained to become Assistant Branch Managers or Administra­tion Officers, referred to as Administration Officer Trainees, and the applicant contends that this group of individuals ought to be similarly excluded from the unit on section 1(3)(b) grounds, or alternatively, in the case of these trainees, on community of interest grounds. Similarly, the res­pondent submits that regardless of the Board's decision with respect to any or all of the Assistant Branch Managers, the Administration Officer Trainees both share a community of interest with the full-time employees in the bargaining unit and do not exercise any managerial functions and therefore ought to be included within the bargaining units.

4The respondent points to the merger in September of 1984, and notes that Victoria & Grey emerged as the dominant party from that transaction. Victoria & Grey, prior to the merger, had used Administration Officers, individuals who were officers only for administrative purposes and in no way exercised managerial functions, and subsequent to the merger its hierarchical structure and operative methods were gradually permeating throughout the Metropolitan Toronto sys­tem. In the respondent's submission therefore, while certain individuals, either formerly or currently described as Assistant Branch Managers, might have exercised managerial functions, the trend for the imminent future was clearly to reduce any such managerial duties and responsibilities and to move towards the Victoria & Grey "Administration Officer" model. The respondent fur­ther suggests that the evidence shows that by the application date the Victoria & Grey approach had effectively taken over in all branches. In those branches where the Board might find manage­rial responsibility percolates below the level of the Branch Manager, the respondent asserted that any such managerial responsibilities were dispersed throughout many individuals in each branch, and not merely the Assistant Branch Managers, including the exercise of limited managerial responsibilities by, for example, the Administrative Assistant and the Head Teller.

5Before turning to the Board Officer's report, and the review of the evidence and our conclusions, a few preliminary comments are in order. All parties agree that the relevant time that the Board must look to, in order to assess whether the seven individuals in question exercise mana­gerial functions, is the application date, regardless of whether a trend subsequent to that date might change the duties and responsibilities of those individuals. Secondly, the parties agreed that the Board must look at each branch on an individual basis, and each of the Assistant Branch Manager's duties and responsibilities on an individual basis, rather than attempting to assess whether the category of Assistant Branch Manager generally entails individuals exercising managerial duties. It was necessary to look at the individuals for several reasons. Unless parties can agree that an individual examined is representative of the entire category, which the parties specifically dis­pute in this proceeding, the Board must necessarily look at each individual in the category and assess whether that particular individual does in fact exercise managerial functions at the relevant time. At this stage it is not clear which of the seven branches will be included in the bargaining unit to be determined, and it is not therefore clear which of the Assistant Branch Managers might be affected by this application. If only four branches are found to be certifiable and are ultimately included within a bargaining unit, had the Board considered the duties and responsibilities of the Assistant Branch Managers at the other three branches and relied upon that evidence in reaching a conclusion with respect to those individuals at the four branches included within the bargaining unit, the Board would arguably be considering evidence extraneous to and irrelevant to considera­tion of those individuals affected by the bargaining unit determined to be appropriate. Thirdly, the applicant specifically withdrew its argument on the basis of community of interest with respect to the Assistant Branch Managers, an argument which would have caused the Board to look at the entire category. In the face of these factors, the Board considered the evidence with respect to each individual Assistant Branch Manager and has reached a conclusion with respect to each such individual.

6It must be remembered that the parties have agreed that within each branch managerial authority does reside, for they have agreed that Branch Managers are excluded on the ground that they exercise managerial functions. When viewing the evidence the Board must remain cognizant of this factor, and submissions suggesting that little to no managerial authority remains at the branch level, given the supervising and co-ordinating function of Regional Office, must be assessed in light of the parties' agreement that there is managerial authority exercised within each branch. Collective bargaining and other concepts dealt with by the Labour Relations Act are relatively new presence in the banking or trust company industry, and the Board must take account of the particular contexts and factors at play therein in assessing whether individuals exercise managerial functions. More particularly, the evidence strongly suggested that, at least in certain branches, the Branch Manager and Assistant Branch Manager ran the branch together, and could be accurately described as a "management team". Where the evidence established such a team approach, and given the parties' agreement that the Branch Manager exercised managerial functions, the only reasonable inference was that the Assistant Branch Manager similarly exercised such functions. To conclude otherwise, in appropriate circumstances, would be to cut against the very rationale for excluding such individuals in the first place (see for example Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84). With these observations in mind we turn to the evidence and to consideration of whether the individual Assistant Branch Managers exercise managerial functions within the mean­ing of section 1(3)(b) of the Act.

7As of the application date, Anna Micieli had been an Administration Officer for approximately twelve years. In the Board's opinion any managerial functions Micieli exercises are clearly incidental to her general duties and responsibilities and are not such as ought to justify her exclusion from the bargaining unit. Although she described herself as responsible for the entire office, she also indicated she operated under the Manager's direct supervision, and never does any­thing involving managerial duties unless referring such to the Manager. Her role could accurately be described as involving almost entirely administrative supervision and organization, rather than managerial. Although she prepares the work schedules for the other employees in the branch, with the assistance of the Savings Supervisor, they are prepared subject to the Manager's subsequent approval. She has no involvement in hiring, or disciplinary matters, nor does she make effective recommendations with respect to either type of decision. All managerial aspects of her job are done on the clear understanding that the Manager's approval is necessary and on the basis that such approval is in fact sought. She did indicate that she has limited input with respect to evalua­tions of fellow employees, but is not involved in the actual decision making, nor does she make effective recommendations. Only two aspects of her job suggest attributes of managerial responsi­bility. First, in appropriate circumstances she can and does on her own initiative give an employee a short period of time off in order to, for example, go to the airport to pick up a relative. Such duties are in the Board's opinion incidental to the general nature of her job functions. Secondly, the branch in question operates on a six-day work week, and because of the staggered work sched­ules of the Branch Manager and Micieli, she is the senior employee in charge of the branch one day every week. Parenthetically we note such is also true of the Assistant Branch Managers of the other six branches in question. If the evidence established that during that "sixth-day" when Micieli is in charge of the branch, she exercises such managerial functions as the Branch Manager exercises when present, one could readily infer that the branch is managed by a team consisting of the Assistant Branch Manager and Branch Manager, and that the Assistant Branch Manager exer­cises managerial functions. However, the evidence concerning Micieli suggested the precise oppo­site. Anything that occurs on the sixth day when the Manager is not present, is either referred to Regional Office by Micieli for their resolution, or alternatively, she in effect "babysits" the prob­1dm until the Manager returns on the following work day in order for the Manager to handle it her­s4lf. Other aspects of Micieli's duties and responsibilities, while they might speak of managerial functions in an industrial setting, suggest in this context the expected sorts of interaction one finds in professional or semi-professional settings. Just as registered nurses or R.N.A.'s are expected to help train and monitor other employees, without attracting managerial responsibility, similarly one finds that all Assistant Branch Managers help train and monitor employees below them in the hier­archy, and similarly without in the Board's opinion attracting managerial attributes.

8Contrasting with the situation of Micieli, Franca Fata, an Administration Officer of approximately three years' duration, does exercise managerial duties and responsibilities in the Board's opinion. In her branch the Branch Manager and she together and jointly both run the branch and exercise managerial responsibilities. One day a week Fata is not only the senior employee present, due to the Manager's absence according to the established schedules, but she is "in charge", in the sense that she steps into the shoes of the Manager and deals with problems as the Manager would have had the Manager been present. Fata sends monthly reports to Regional Office, without necessarily showing the reports to the Manager for his prior approval. Even when the Manager is present, she conducts weekly staff meetings, and together with the Manager deals with employee staffing and labour relations problems, and attempts to solve them. With respect to hiring, approximately 90 percent of the interviewing is done by Fata herself, without the Manager present. It can only be inferred that she has effective recommendation power with respect to the hiring of such employees. Fata has access to all personnel records of the employees in her branch, and reviews these personnel records when necessary or appropriate, presumably in order to deal with personnel problems. Fata is responsible for performance and evaluation reviews of the other employees in the branch, and she testified that her Manager generally accepts her evaluation reviews. As she described it, her Manager prefers as a general proposition that she run the branch, with input to him where necessary. In the Board's opinion Fata exercises managerial functions, both during those times when the Manager is present and on the sixth day when she runs the branch alone, and is therefore excluded from the bargaining unit.

9Nasim Murji has been an Administration Officer for approximately a five-year period. Unlike Fata, Murji does not in effect "run the branch" on the sixth day when the Manager is not present. To the contrary Murji deals with matters arising on that sixth day as Micieli did in her respective branch. Murji either refers matters needing managerial treatment to Regional Office for its consideration and response, or alternatively tries to defer consideration of such matters until the Manager returns. Although Murji felt that she had the authority to discipline employees, the evi­dence suggests she exercised such authority by reporting disciplinary problems to the Manager and keeping the Manager informed, rather than dealing with the disciplinary matters herself. Other supervisors in her branch had similar authority to inform the Manager and to control and monitor the work place. She has some input into appraisals of other employees, but so do all supervisors in the branch, as one expects in a banking or trust company setting. Any managerial attributes exer­cised by Murji are in the Board's opinion quite incidental to her job and we find that Murji is an employee for purposes of the Act and is included within the bargaining unit.

10Christine Magnifico has been an Administration Officer for approximately four years. Without reviewing the evidence in any detail, the Board concludes that Magnifico does not exercise managerial functions and accordingly she is included within the bargaining unit. None of her duties appear to involve her exercising any independent decision-making authority, nor does she make effective recommendations with respect to any of the duties or responsibilities normally asso­ciated with management. She is more accurately described as her title suggests, an Administration Officer, and any actual decision-making affecting the employment relationships of fellow employ­ees is referred to the Manager or Regional Office.

11Carole McMahon does exercise effective recommendation power, and additionally, is part of the management team, along with her Manager, that jointly runs the branch. She regularly discusses problems with employees, and attempts independently to try to resolve such problems. Such problem solving may well involve discussions with the Manager over the appropriate disposi­tion, but she and her Manager both deal with the problem. In regularly evaluating fellow employ­ees, she and the Manager on occasion jointly interview the employee being evaluated, and she is sometimes asked to do a written evaluation, which the Manager relies upon in reaching a final evaluation. On balance the Board is satisfied that during the sixth day when the Manager is not present, McMahon effectively runs the branch and makes managerial decisions should the occasion demand. Such decision-making may well involve contacting Regional Office, as the Manager would in similar circumstances, but the evidence demonstrates that such contact with Regional Office is more a question of informing Regional Office rather than requesting that it deal with the problem. Accordingly, the Board concludes that McMahon exercises managerial responsibilities and she is excluded from the bargaining unit.

12Barbara Vogel had been an Assistant Branch Manager for approximately fifteen months at the time of the application. The evidence established that the operation in Vogel's branch is essentially the same as in McMahon's branch; that is, the Manager and Vogel together jointly run and manage the branch, both exercise managerial functions, and both are seen by other employees as management. As Vogel explained it, both the Manager and she need approval from Regional Office for the implementation of certain decisions, but the process is more accurately described as one of informing Regional Office, since it usually follows their recommendations, rather than referring the problem to Regional Office for it to handle. Vogel has the authority to discipline employees and has done so in at least one instance. Such disciplinary authority goes beyond verbally warning employees and monitoring their performance. Vogel writes evaluations of the full-time employees, subsequently discusses them with her Manager, and her evaluations are generally followed by the Manager. Following the written evaluations~ she, rather than the Manag­er, generally interviews the employee in question. With respect to the hiring of new employees, the Manager and she together decide who ought to get interviews and who ought to subsequently be hired. Although managerial functions she performs may encompass only twenty percent of her time, the nature of those duties must render her managerial.

13George Gusman is the Assistant Branch Manager at the seventh branch in question. Most of the interviewing of prospective employees is done by Gusman himself, and he recommends to the Manager and discusses with the Manager who ought to be hired. As the Manager relies on Gusman's interview and recommendation, we conclude that Gusman effectively recom­mends who ought to be hired. Although Gusman does not feel he disciplines employees, he does discuss problems with them. He completes written evaluations with respect to all employees, and subsequently discusses these evaluations with the Manager, and together they try to reach agree­ment on the evaluations. When the Manager is away the evaluation may be done entirely by Gus-man. These evaluations have direct ramifications for promotions and salary increases. Again, as with the other branches, the Manager is not present at least one day every week and Gusman is the senior person in charge during that day. Although the evidence is not unequivocal, on balance the board is satisfied that Gusman does step into the shoes of his Manager when his Manager is away on that sixth day, and exercises the managerial functions his Manager would. As Gusman indicat­ed, he has regular interaction with Regional Office, including suggesting to it appropriate disci­pline. Since Regional Office only has the information and recommendation Gusman gives them, Gusman effectively recommends with respect to disciplinary matters. We are satisfied that Gusman and his manager run this branch on a joint managerial basis and accordingly we conclude that Gus­man is not an employee for purposes of the Act and is excluded from the bargaining unit.

14In summary therefore, Micieli, Murji and Magnifico are included within the bargaining unit, and Fata, McMahon, Vogel, and Gusman are excluded from the bargaining unit. We turn now to considering whether Administration Officer Trainees are included or excluded either from overage under the Act (on section 1(3)(b) grounds), or from this particular bargaining unit, on community of interest grounds.

15One trainee was examined, Darjo Carpino, and the parties agreed that his evidence was representative of all the trainees in question. The trainees are involved in a programme which involves rotating through many branches, not only the seven branches subject to this application, staying at a given branch anywhere from two months to twelve months, and learning the duties and responsibilities of all departments within a branch. Regional Office dictates when a particular trainee will rotate to a new branch, and how long he or she will remain in that branch. The immediate supervisor of each trainee in a particular branch is the Manager of that branch, however the trainees report to Regional Office. There is no expectation that the trainees will remain for any lengthy and predetermined period of time at any one branch, and accordingly the trainees do not attend general branch meetings of all employees. They are not considered by other staff as part of the regular staff within the branch, a reasonable perception given that they do not attend branch staff meetings, but do attend Regional Office seminars.

16The Board concludes that the trainees do not independently exercise managerial functions within the meaning of section 1(3)(b) of the Act. Trainees are being trained for the Assistant Branch Manager or the Administration Officer position, positions which we have found are mana­gerial in four branches but which are not managerial in the other three branches. Cases referred to by the applicant (Zeller's Limited, [1960] OLRB Rep. March. 1283 and Nashua Canada Limited, [1979] OLRB Rep. December 921) are of limited assistance when they suggest that where a spe­cific training programme exists, trainees ought to be treated as the Board treats the position for which they are being trained. In the instant case, the Board cannot conclude they are being trained for either an excluded or included position. Rather, they are being trained to perform duties which in some branches are managerial yet which in others are not managerial. On 1(3)(b) grounds we therefore decline to exclude the trainees.

17However, we have concluded that on community of interest grounds all the trainees ought to be excluded from this bargaining unit (see Usarco Limited, [1967] OLRB Rep. Sept. 526 for a consideration of factors relevant to community of interest). The trainees have no definite attachment to any of the branches, as each is engaged on a continuing rotation through several branches. Within each branch, the duration of their stay remains uncertain, and they continue to take overall direction from Regional Office rather than Branch Manager. That they are more closely allied with Regional Office or with their fellow trainees is evidenced by the fact that they do not attend branch meetings, but do attend meetings or seminars conducted by and at Regional Office. The attachment and interest that full-time employees in the bargaining unit would have to their branch or the bargaining unit in question, would have only fleeting meaning for trainees. The trainees will not necessarily end up in any of the seven branches before the Board in this appli­cation. Indeed, given that National Trust has 37 branches across Metropolitan Toronto, and 143 branches across Canada, the averages suggest that trainees will not end up in any of the seven branches. As noted, employees in the branches consider trainees as associated with Regional Office, and the employees would clearly perceive the trainees' community of interest as falling with Regional Office. Accordingly, on community of interest grounds the Administration Officer Train­ees are excluded from the bargaining unit(s) in this proceeding. Our decision with respect to train­ees does not deprive them of collective bargaining, should they have an appetite for it, but stands for the proposition that the Board will not group the trainees into the same bargaining unit(s) as are before us in this application.

18After hearing the submissions of the parties on the Board Officer's report, as discussed above, the Board entertained the parties' submissions with respect to the jurisdiction of a panel other than the original panel of the Board to consider further matters in this proceeding. The Board ruled unanimously at the hearing that the original panel was not seized with and need not hear any remaining aspects of this matter. We confirm that oral ruling.

19In the second decision issued in this proceeding, dated August 27, 1986, [1986] OLRB Rep. Aug. 1115, the Board, differently constituted, noted as follows:

13. In the event that this application was to proceed further, the parties agreed to present oral argument with respect to the officer's report on September 15, 1986, to a panel of the Board however constituted, so that the Board could proceed to determine the appropriate exclusions from the branch units, and thus the numerical relevance of the employee statements in opposi­tion. The parties undertook as well to confer as quickly as possible and, with the assistance of a Board officer, finalize the lists of employees applicable to each branch (subject to the Board's ultimate determination of the exclusions). The Board now confirms all of those arrangements in light of the present decision.

20In the applicant's submission, notwithstanding the excerpt from the Board's decision set out immediately above, with respect to the question of interim certificates and all other outstand­ing matters, there was no legal basis for restricting the consideration of those matters to the panel that issued the above decision. Given the extreme difficulty in reconstituting that panel, as one member of it is no longer a Board Member and another member of that panel is out of the country for approximately four months, the applicant asserted that the Board as a discretionary matter ought not to defer further consideration of this application until that panel could be reconstituted. In support of his position, counsel for the applicant referred to Fuller's Restaurant, [1980] OLRB Rep. June 828 and Yesteryear Grocers Inc., ]1982] OLRB Rep. Dec. 1975. and suggested that there are three questions that the Board must consider in deciding whether a prior panel is seized. First, is there any prejudice to any of the parties in a differently constituted panel considering an issue; second, does fairness demand that the original panel be seized; and as a corollary of the first two points, was there any evidence called on any issue before the prior panel which would not be available to a subsequent, differently constituted, panel. In the instant proceeding, applicant coun­sel noted that the prior panel had not heard any evidence remaining relevant, as evidence had been given on agreement of the parties directly to the panel and accordingly, there was no bar to a dif­ferently constituted panel having carriage of the remaining issues in dispute.

21In reply, counsel for the respondent noted that the instant panel of the Board was considering this issue only because the respondent had agreed to expedite matters, and more partic­ularly had agreed, as reflected in the excerpt from that decision of August 27, 1986, that the within panel could hear the matter of the Officer's report. The respondent had not agreed that this panel was to deal with any matters other than as specifically remitted to it in the decision referred to above (except for the issue we now discuss, which the respondent agreed could be entertained by this panel). If another panel were to assume carriage of these proceedings, and all outstanding issues, then the agreement entered into by the respondent in order to expedite this matter would be abused. Counsel further asserted that the dominant issue before the original panel was the ques­t4on of bargaining and the bargaining unit, and a remaining issue, whether interim certificates should issue, similarly involved considerations revolving around bargaining, the very matters before the original panel. Both as a legal matter, whether another panel had jurisdiction to con­sider the interim certificates, and as a discretionary matter, the respondent submitted that it was inappropriate for any panel other than the original to deal with the issue of interim certificates. In addition on to Yesteryear Grocers Inc., supra, respondent counsel referred to Canron, [1977] OLRB Rep. June 336.

22In the Board's opinion, the panel which issued the decisions of February 28 and August 27, 1986, is not seized with the remaining issues in this proceeding. There was no suggestion that prior panel had heard any evidence relevant in any way to the remaining issues, which was not before this panel or which could not be placed before any subsequent, differently constituted panel. All evidence led to date has been written evidence, either by way of an agreed statement of facts and exhibits submitted to the original panel, which remain in the file and available, and which in large part are reflected in the decisions of the original panel, or alternatively by way of the Offi­cer's report which also remains in the file and available to any subsequent panel. The only viva voce evidence led in these proceedings concerned the allegation of non-pay or drop off with respect to the solicitation of the membership evidence, as dealt with in the Board's decision of August 27. It is clear that that evidence was and is relevant only to the issue that was finally determined in that Board decision of August 27, 1986. Indeed, no party has suggested that any viva voce evidence already given was in any way relevant to any of the remaining issues in this proceeding.

23It therefore appeared to the Board that there was no prejudice whatsoever to any of the parties should a different panel consider any of the subsequent matters. Any arguments that could have been made to the original panel could equally be made to the freshly constituted panel, and all evidence in these proceedings that remains relevant to any outstanding issue, is in the form of written submissions or evidence and therefore would necessarily be available to any subsequent panel. However, should any of the parties feel that a panel does not have before it evidence relevant to the issue then before that panel, they shall be free to lead such evidence in front of that panel, provided it is relevant and provided they do not attempt to lead evidence relevant only to issues already determined by the Board in any of its prior decisions. Put differently, if the parties feel that evidence has been led by way of viva voce evidence that has not been reflected in any of the prior written decisions of the Board, and such evidence remains relevant to an outstanding issue, then they shall be free to lead such evidence. Matters already determined by the Board how­ever, shall not be the subject of further evidence. In light of the Board's view of the jurisdiction of any panel to consider outstanding issues, and in view of the long-standing practice of the Board in certification applications to not saddle a particular panel with carriage of the entire case unless they are legally seized with remaining issues, and in view of the delay that would be occasioned by scheduling the original panel, the Board directs that this matter be relisted before a panel of the Board, however constituted, to deal with all outstanding matters.

24The composition of any subsequent panel is the prerogative of the Chairman, and we do not propose to comment in that regard. The Registrar is directed to relist this matter to hear all outstanding matters. Although the record suggests that a Board Officer has been appointed to con­fer with the parties with respect to the lists, for the sake of certainty, we hereby appoint Alex Vigar, Labour Relations Officer, for this purpose and direct that the parties meet with him forthwith to this end. Mr. Vigar is further authorized to disclose the count to the parties, unless all par­ties agree otherwise.

25This panel is not seized.