Amalgamated Clothing and Textile Workers Union v. Georgian Industries Inc., 1992 CanLII 6735

[1992] OLRB Rep. April 459

2920-90-R; 3054-90-U; 3420-90-U Amalgamated Clothing and Textile Workers Union, Applicant v. Georgian Industries Inc., Respondent v. Group of Employ­ees, Objectors; Amalgamated Clothing and Textile Workers Union, Complainant v. Georgian Industries Inc., Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members G. O. Shamanski and B. L. Arm­strong.

APPEARANCES: Dave Watson and John Stevens for the applicant/complainant; Alan Whyte and Ben Ball for the respondent; C. J. Abbass and Penny Francis for the objectors.

DECISION OF JANICE JOHNSTON, VICE-CHAIR AND BOARD MEMBER, G. 0. SHAMAN-SKI; April 3, 1992

1. The applicant/complainant, the Amalgamated Clothing and Textile Workers Union (the "union") has requested reconsideration of the Board's decision dated September 5, 1991.

2. This request for reconsideration arises in the following context. The three Board files consist of an Application for Certification and two unfair labour practice complaints filed under section 91 [formerly section 89] of the Labour Relations Act (the "Act"). A petition opposing the certification of the union was filed and there were numerous challenges to the list of employees submitted by the employer to the Board. On the first day of hearing scheduled to deal with these matters, after hearing the submissions of the parties, the Board outlined the manner in which it would proceed to deal with the issues in dispute. We directed that all three matters were to be dealt with together in one proceeding. The Board ruled it would hear evidence concerning the challenges to the list and issue a decision on those challenges, before inquiring into the voluntari­ness of the petition and the section 91 complaints. The parties were directed to call their evidence accordingly. No one objected to this procedure. At the time of the ruling, the applicant was chal­lenging four persons and the objecting employees were challenging seven. In the course of the pro­ceedings the parties were able to reach agreement on all of the challenges save for three. The union still continued to challenge the inclusion on the list of Marlene Valender, Susan Truax and Kathy MacFarlane, all of whom held the position of Bindery Supervisor, on the basis that they exercise managerial functions. The majority of the Board issued its decision on September 5, 1991, after nine days of hearings concerning the challenges, in which it found that these three individuals should be included on the list as they did not exercise managerial functions. Board Member Arm­strong dissented from this decision, as he would have reached the opposite conclusion. It is this decision which is subject to the reconsideration request.

3. In accordance with the procedure outlined on the first day, the Board next turned to hear evidence concerning the voluntariness of the petition and the section 91 complaints. On December 4, 1991, the date the hearing on these issues commenced, the respondent, Georgian Industries Inc. (the "employer" or the "company") called Marlene Valender as a witness in rela­tion to one of the section 91 complaints. The union cross-examined Ms. Valender extensively con­cerning her duties and responsibilities. The union now takes the position in its request for reconsid­eration that this evidence contradicts findings of fact in the September 5, 1991 decision.

4. The applicant/complainant's request for reconsideration reads in part as follows:

5. These Board files comprise an application for certification and complaints under section 89 [now 91J of the Labour Relations Act (hereinafter referred to as the "Act"). A petition has also been filed. All Board files were consolidated. The Board determined at the outset of the hear­ings into these matters that it would deal with the challenges to the list prior to conducting an inquiry into the voluntariness of the petition. However, the Board determined the "[a]ny evi­dence called in relation to any one file or issue would be relevant to and considered by the Board in dealing with the other matters before it" (Decision at paragraph 6).

6. Pursuant to section 106(1) for the Act, the union requests that the Board reconsider and vary the Decision of the Majority. In particular, the union asks that the Board reconsider and vary the Majority's finding that Marlene Valender, Susan Truax and Kathy MacFarlane (the "Bindery Supervisors") did not exercise managerial functions such as to cause their exclusion from the list. The union asks the Board to substitute a finding that the Bindery Supervisors do exercise managerial functions and should be excluded from the list pursuant to section l(3)(b) of the Act.

7. The basis for the union's request for reconsideration is the evidence given by Marlene Valender on December 4 and 5, 1991.

8. It is the union's position that the facts adduced from this witness contradict findings of fact made by the Majority in its Decision without the benefit of any evidence from a Bindery Super­visor. Furthermore, these now-contradicted findings of fact were central to the ultimate conclu­sion arrived at in the Decision, namely, that the Bindery Supervisors did not exercise manage­rial functions such as to cause their exclusion from the list.

9. In the face of these newly revealed contradictions to previous findings made by the Majority, it is submitted that the Board ought to reconsider and vary its Decision.

10. John Entwistle Construction Limited, [1979] OLRB Rep. No. 1096 is a commonly cited case on the section 106 power:

The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decision and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.

(paragraph 5)

38. It is only in the interests of justice to preserve the finality of a decision if that decision was made on the basis of a true account of the facts.

39. As the majority itself repeatedly noted in its Decision, the picture at the time of rendering the Decision was not a clear one. The Board now has before it a clear picture, and it is one which in the union's submission points to a and it is one which in the union's submission points to a different conclusion. To ignore the facts which have recently come to light would be to remain wilfully blind to the evidence.

40. The Board in the Entwistle case cautions against an inflexible application of the reconsidera­tion power. Having recited the general rules regarding reconsideration requests, the Board in Entwistle goes on to note:

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decision, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise sig­nificant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision.

(paragraphs, emphasis added)

41. The union therefore requests that the Board reconsider and vary its Decision. The union submits that the Board should find on the basis of the evidence which has recently come to light that Bindery Supervisors exercise managerial functions and that the three challenged individuals should be excluded from the list.

In paragraphs 14 to 30 of its request for reconsideration the union sets out excerpts from Ms. Valender's evidence given on December 4 and 5, 1991, which it feels supports the conclusion that she should be excluded from the list pursuant to section 1(3)(b) of the Act.

5. The company filed submissions in response to the request for reconsideration. Counsel for the respondent takes the position that the Board's jurisprudence establishes two main tests which are utilized in addressing a request for reconsideration:

6. Does the request raise significant and important issues of Board policy (John Entwistle Con­struction Limited [1979] OLRB Rep. Nov. 1096).

7. Does the party making the request propose to adduce new evidence which could not have previously been obtained by reasonable diligence and furthermore, is the new evidence such that it would be practically conclusive, or would the granting of the reconsideration request allow a party to make representations or objections not already considered by the Board that he had no opportunity to raise previously (Canadian Union of General Employees [1975] OLRB Rep. Apr. 320).

In this case, there is clearly no significant or important issues of Board policy raised by the Union's request for reconsideration.

The second test is relied on by the Union in this matter, and therefore the application of this test to the facts of this case will be discussed in detail below.

CANADIAN UNION OF GENERAL EMPLOYEES TEST

The portions of the second test referred to above will be considered separately below.

A New Evidence

This portion of the test requires that the party making the request for reconsideration propose to adduce new evidence which could not previously have been obtained by reasonable diligence.

In its submissions, the Union advises that it relies on the evidence given by Marlene Valender in December 1991, after the challenges portion of this hearing was concluded and decided by the Board.

The Respondent submits that the Union could have easily put Mrs. Valender's evidence before the Board during the challenges portion of the hearing. In discussing the procedure to be fol­lowed in this hearing (which called for the determination of the challenges first, followed by the portion of the hearing dealing with the voluntariness of the petition and the Section 89 com­plaints) the Union made it clear that the onus to call evidence to support each party's challenges lay on the party making the challenge. In this case, it was the Union that challenged the three Bindery Supervisors in question, not the group of objecting employees. It was open to the Union to subpoena one of the Bindery Supervisors in question to come to the Board during the challenges portion of the hearing in order to give evidence on the authority of the supervisors in relation to employee evaluations, dispensing of overtime, etc. However, the Union failed to avail itself of this opportunity and therefore cannot now be heard to argue that the evidence before the Board during the challenges portion of the hearing was incomplete.

The Respondent reminds the Board that during the course of the challenges portion of the hear­ing, counsel for the Respondent inquired of the Board directly as to whether or not the Board wished to hear from the employees occupying the positions in question. The Board indicated that it was up to the parties to call whatever evidence was felt to be appropriate.

In these circumstances, the Respondent submits that there was no obligation, legal or otherwise, for the Respondent to have called any of the Bindery Supervisors as witnesses during the chal­lenges portion of the hearing.

Having not called all of the evidence available to it, the Union cannot now seek to re-open the challenges portion of the hearing when that part of the case is now decided, and the focus of the Board's inquiry is entirely different (as it was at the time of Mrs. Valender's evidence being given in December 1991).

6. Counsel then goes on to outline what he refers to as the second part of the "new evi­dence" test. In his submission, the new evidence must be practically conclusive or so strong and convincing that it would cause the Board to reverse its previous decision. In his opinion, the evi­dence heard by the Board on December 4 and 5, 1991 from Ms. Valender does not meet this test.

7. In response to the union's argument concerning the effect of consolidating the files, the company responds as follows:

The Union refers to the Board's Decision that "any evidence called in relation to any one file or issue would be relevant to and considered by the Board in dealing with the other matters before it.''

The Board also determined that it would decide the question of the challenges prior to deter­mining the voluntariness of the petition and ruling on the Section 89 complaints. Accordingly, it was clear to all concerned (the Board, the Union, the Respondent and the objecting employees) that there were two discreet portions of the hearing; the first to deal with the challenges; the second to deal with the petition and the Section 89 complaints.

In the Respondent's submission, the quote set out above does not mean that a party to these proceedings can attempt to re-open decisions made by the Board in previous portions of the hearing (which is what the Union now seeks to do). The above mentioned quote does mean, for example, that the Board can consider evidence heard during the challenges portion of the hear­ing (for example, the evidence of Maryanne Reid) in considering the Section 89 complaint which involves Ms. Reid.

The company then goes on to respond to specific arguments raised by the union concerning Ms. Valender's evidence and its effect on the Board's decision.

7. Counsel for the objecting employees also filed submissions in response to the union's request for reconsideration. They read as follows:

On behalf of the Group of Objecting Employees, it is submitted that this request should be denied for the following reasons:

1. The union wishes to adduce evidence which could previously have been obtained by reasonable diligence.

Ms. Valender could have been called by the union to give evidence as a witness for the union. The only limitation which the union have faced is that they would not have been able to cross examine their own witness without first having her declared a hos­tile witness.

2. The evidence which the union wishes to adduce would not be conclusive.

3. The union had full opportunity to make and did make representation prior to the Board rendering its decision. This application raises no new issues or arguments.

4. The Board has not made an obvious error in its decision.

5. This request does not raise significant and important issues of Board policy.

In order to avoid abuse of the reconsideration provisions and to bring some finality to its adjudi­cated decisions, this Board ought not to accede to the union's request for reconsideration.

9. In reply, counsel for the applicant made the following final submissions:

10. The Board has the power to exercise its reconsideration power "if it considers it advisable to do so" (section 108(1) Labour Relations Act). The Board's power to reconsider is not fettered by the tests described by counsel for the company at pages 3-5 of the company's submissions. Indeed, in Coons Heating and Sheet Metal Limited, [1978] OLRB Rep. June 525, the Board acceded to an employee's request for recon­sideration of a decision to certify a trade union despite the fact that the evidence relied on in support of the reconsideration request could have been raised in a timely fashion prior to certification.

11. In any event, the evidence at issue in these proceedings has already been heard. It is irrelevant who led that evidence or at what stage of the proceedings the evidence was led. If the mandate of a quasi-judicial tribunal is to render a decision based on a true account of the facts, the tribunal cannot ignore evidence simply because it was elicited at one stage of the proceedings rather than another. This is especially true in this case, where the issues at the various stages of the proceedings are intertwined. For exam­ple, the status of the challenged individuals is important to the Board's determination of the voluntariness of the petition. The evidence of Mrs. Valender calls into serious doubt the earlier evidence relating to the duties and responsibilities of the challenged individuals and cannot be ignored as it relates to any one phase of the hearing.

12. The union reasserts that the evidence of Mrs. Valender of itself demonstrates conclu­sively that Bindery Supervisors exercise essentially discretionary functions which affect the employment status of bargaining unit employees.

13. In the alternative, the evidence of Mrs. Valender casts sufficient doubt on the reliabil­ity of the evidence on which the Board based its Decision so as to cause the Board to reopen the issue of the status of the Bindery Supervisors.

14. Under section 108 [formerly section 106] of the Act the Board has the discretion to reconsider any decision it has made. Section 108(1) reads as follows:

108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

11. Practice Note No. 17 and the Board's jurisprudence set out the basis upon which the Board exercises its discretion. Practice Note No: 17 states in part:

12. The Board has stated in K-Mart Canada Limited (Peterborough), [19811 O.L.R.B. Rep. Feb.

185, at ¶4:

'To avoid abuse of the reconsideration provision and bring some finality to its adjudi­cated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited, 119661 OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132, (Ont. Div. Ct.)."

5. The Board has also stated in John Entwistle Construction Limited, [1979] OLRB Rep. Nov.

1096 at ¶5:

"The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

"Generally, the Board will not reconsider a decision unless a party pro­poses to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make repre­sentations or objections not already considered by the Board that he had no opportunity to raise previously."

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise sig­nificant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision."

12. None of the parties are questioning that on the first day of hearing, after hearing sub­missions from the parties, the Board outlined the manner in which it would proceed to deal with the matters in dispute between the parties. It was then agreed that the union would proceed first with its evidence concerning its challenges, followed by the evidence of the objecting employees, with the evidence of the respondent being adduced last. Counsel for the respondent indicates cor­rectly in his submissions that during the course of the challenges portion of the hearing "...counsel for the respondent inquired of the Board directly as to whether or not the Board wished to hear from the employees occupying the positions in question. The Board indicated that it was up to the parties to call whatever evidence was felt to be appropriate." Counsel for the union took the posi­tion that the decision to call evidence to prove its position, rested with the party putting forward the challenge.

13. It was clear that the hearing would essentially be divided into two segments. After hav­ing given all of the parties an opportunity to call evidence and make submissions on the issue of the challenges to the list, the Board rendered a written decision. The union, was aware that each party was to call the evidence it felt was appropriate on the issue of whether the incumbents in the posi­tion of Bindery Supervisor exercised managerial functions and should therefore be excluded from the list of employees. None of the incumbents in the Bindery Supervisor position were called to testify. There is no suggestion that they could not have been called. It was the union's decision not to call one of the incumbents in the Bindery Supervisor position. The Board did not therefore have the benefit of that evidence at the appropriate time, when that issue was being litigated and when the Board had to make its decision on that issue. A final decision based on the extensive evidence before us, was given after having given all parties the full opportunity to present their case.

14. Before a party can put new evidence before the Board as part of a request for reconsid­eration, it must establish that this new evidence "was not previously available to them by the exer­cise of due diligence". If it were otherwise, there would be no finality or end to Board proceedings. The union has not met that test in this case. The evidence it seeks to have the Board consider was readily available at the time the issue was being litigated. There is no reason why the union could not have called that evidence at the appropriate time. Counsel for the union takes the position that "... the picture at the time of rendering the decision was not a clear one. The Board now has before it a clear picture, and it is one which in the union's submission points to a different conclu­sion. To ignore the facts which have recently come to light would be to remain wilfully blind to the evidence". With respect, whether or not the evidence may point to a different conclusion (we are not necessarily convinced it does) is not the real issue. The union could have called this evidence at the appropriate time and chose not to. The Board's jurisprudence makes it clear that it will not undermine the finality of its decisions except in limited circumstances. In this case, it would be prejudicial to the other parties to accede to the union's request and would undermine the Board's process. At the outset, all the parties were clear that the Board would hear evidence and submis­sions and render a final decision on the challenges to the list before turning to the petition and sec­tion 91 complaint. The union now seeks to get around this. The union is asking the Board to recon­sider its decision based on evidence which came out subsequent to that decision which was readily available and could have been called by the union, but was not.

15. While it is accurate to state that the Board consolidated the three files and indicated that "any evidence called in relation to any one file or issue would be relevant to and considered by the Board in dealing with the other matters before it", this does not mean that after an issue has been decided, it can be re-opened continually. It means rather, that any evidence adduced in the early stages of the hearing with respect to the issues then being litigated, could be considered, if relevant, to other issues which are the subject of subsequent parts of the proceeding. The parties are not therefore required to recall evidence relevant to more than one of the issues. This proce­dure is not intended to create an opportunity to re-open issues the Board has already finally ruled upon or issued a decision on.

16. Counsel for the union referred the Board to Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525 and argued that the Board in that case acceded to a request for recon­sideration despite the fact that the evidence in support of the reconsideration request could have been raised in a timely fashion prior to the original decision. The Coons case dealt with an applica­tion for certification in the construction industry. As permitted by the Act, section 104(4) [formerly section 102(14)], the Board in that case issued a certificate without a hearing. Subsequently the Board learned of employer participation in the selection of the union which caused it to revoke the certificate. While an employee of the company was aware of the employer interference he did not raise it with the Board prior to the initial issuance of the certificate. It was this evidence which caused the Board to reconsider its decision. In reaching this conclusion the Board stated:

17. It was contended by both counsel for CLAC and counsel for the respondent that any employer support of CLAC had been known all along to Mr. Richardson, and that it had been incumbent upon him to raise the matters he now complains of in timely fashion prior to the issu­ance of the certificate. The Board's general practice is, in fact, not to reconsider a decision or to entertain new evidence unless a party proposes to adduce evidence which it could not previously have obtained by the exercise of reasonable diligence. However, having regard to the strict pro­hibition contained in section 12 of the Act against certifying trade unions which have received employer support, and to the particular circumstances of this case - including the fact that Mr. Richardson was an employee acting at the relevant time at the behest of his employer - the Board is satisfied that it should exercise its discretion and reconsider its decision to certify CLAC.

[emphasis added]

17. The circumstances of the case before us bear little resemblance to the Coons case. In Coons, no hearing had been held whereas in our situation we rendered our decision after having afforded the parties, who are all represented by counsel, full opportunity to call evidence and make submissions to the Board. The Coons case is readily distinguishable from the case before us.

18. In T. Eaton Company Limited, [1985] OLRB Rep. Nov. 1683 the Board stated:

A proper response to the respondents' requests for reconsideration requires a brief review of the basis upon which the Board has always considered it appropriate to exercise the power granted it under section 106(1) to "reconsider any decision, order, direction, or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling". That power must be read against the normal expectation in law, specifically included in the words of section 106(1) itself, that once a tribunal has reached and issued a decision on a matter that has been fully litigated before it, that decision is "final and conclusive" (subject, of course, to whatever avenues of review may properly lie to the Courts). Apart from wishing to exhaust section 106(1) as a preliminary to moving in the Courts, any party in receipt of a decision it deems unfavour­able may feel perplexed by it, and may well experience an urge to re-state its case to the tribunal in the hope that the tribunal may yet "see the light", from the party's point of view. A party on either side of any decision may also see in it language that it wished had been expressed otherwise, either to make the decision perhaps a little more favourable to it, or to enable it to better judge for the future what the law, as expressed in the decision requires its conduct to be. But if one party's "success" in litigation is to be fairly protected, and a reasonable expectation of final­ity to decisions is to be fostered in the community, a tribunal must resist, except on the most exceptional of grounds, an invitation to re-state, explain, or otherwise attempt to improve the language it has ultimately settled upon in issuing its final decision. As the Board stated in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 at 5:

"The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

'Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.'

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board."

And as the Board has also stated, most recently, as the complainant notes, in Sears Canada Limited, OLRB File #1305-84-R, unreported, June 25, 1985 at para. 8:

"The Board will not permit its authority to reconsider decisions to become a forum for rearguing the merits or submissions on matters already dealt with by the Board."

19. For the reasons expressed, we do not feel it is appropriate to exercise our discretion to reconsider. The request for reconsideration is accordingly dismissed.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG; April 3,1992

1. The respondent in this application for reconsideration argues that the evidence the applicant is relying on was available at the time the original decision was made. The respondent argues that the failure to adduce that evidence lies with the applicant. The respondent states that at the time the lists were in dispute it requested of the Board whether it wanted to hear from the three individuals in dispute. The Board at the time indicated that it was up to the parties to adduce the evidence they felt was appropriate. The respondents position is that the applicant could have adduced the evidence it purports to rely on at that time and the applicant cannot now use that evi­dence to support an application for reconsideration as it is not "new" evidence.

2. My response is two-fold. First I would refer to my original dissent at the risk of being heard to say "I told you so". I do this not meaning to spite my colleagues but merely to emphasize that haste makes waste. This leads to my second and somewhat more considered response of a panel dealing with another matter and had to respond to a complainant's request that the Board had an obligation to bring forward all the witnesses this complaint wanted to call, ie. subpoena and pay the conduct money. This request was turned down but in the course of arguing the complain­ant relied on the Board's practice of paying the conduct or attendance money to witnesses with respect to determining the appropriate bargaining unit. The difference between the two situations is that in a complaint under section 91(4) [previously section 89(4)] the Board has broad remedial powers which it may exercise or not at its discretion. Section 91(5) [previously section 89(5)] assign the burden of proof. The relevance of this to the case before this panel is that section 6(1) of the Act does not grant a discretionary power to the Board but rather assigns a positive, statutory obli­gation. In the words of the section "subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining. Wit­nesses in a certification application are in effect the Board's own witnesses relevant to the determi­nation the Legislature has directed be made by the Board. That was why in those cases the Board pays the conduct or appearance money.

3. As was the case here, on a certification application as part of its determination as to the appropriateness of the bargaining unit the Board as a preliminary step must arrive at a list of employees. The Board's process encourages the agreement of the parties on this issue but as is the case here disputes often arise. One of the sources of these disputes is section 1(3)(b) of the Act which excludes a person "who in the opinion of the Board, exercises managerial functions..." from the definition of employee. This section 'grants the discretion to the Board to determine whether a person is managerially excluded or not. The determination when made in the context of a certifica­tion application is part of the positive statutory obligation imposed upon the Board to fashion an appropriate bargaining unit. A bargaining unit that includes persons who in fact perform a mana­gerial function cannot be appropriate by virtue of section 1(3)(b).

4. If there was a failure to adduce appropriate evidence at the stage of determining the employee lists it was as a result of the Board failing to inquire sufficiently as to the functions and responsibilities of the person in dispute. This failure is very much inadvertent but nevertheless a failure by the Board to determine an appropriate bargaining unit as directed by the Legislature. Where evidence subsequently comes before the Board which would lead the Board to the opinion that a person or persons previously included in a bargaining unit in fact exercises managerial func­tions then the failure to adduce that evidence cannot be laid at the feet of any of the parties so as to create a bar to an application for reconsideration. Once the evidence is before the Board, no mat­ter when or by whom, the Board must reconsider its decision with respect to the employee lists as part of its positive statutory obligation to determine an appropriate bargaining unit.