Edge Innovations Inc. Applicant And: INTERNATIONAL Association of Bridge, Structural, Ornamental v. Reinforcing Ironworkers, Local Union 764, 2022 NLSC 50

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Edge Innovations Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 764 , 2022 NLSC 50 Date : March 25, 2022 Docket : 202101G0508 Between: Edge Innovations Inc. Applicant And: INTERNATIONAL Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union 764 First Respondent And: Newfoundland and Labrador Labour Relations Board Second Respondent Before: Justice Daniel M.

Boone On Judicial Review From: A Decision of the Labour Relations Board dated the 19th day of January, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 11, 2022

Summary: The Court dismissed an application for judicial review of a decision of the Labour Relations Board to certify a bargaining agent for a unit of nine employees. Only five of the nine employees voted on certification. The employer argued that one of those employees should have been excluded from the bargaining unit because he was management.

The Court found that the employer's position asked the Court to reweigh the evidence considered by the Board, which the Court will notdo on judicial review. Therefore the employer had not demonstrated that the decision of the Board was unreasonable. The Court also dismissed the employer's argument that the Board should have held a hearing on the issue of the scope of the bargainingunit. Appearances: Christopher E. King, Q.C. Appearing on behalf of the Applicant Mark D. Murray Appearing on behalf of the First Respondent Megan S.

Reynolds Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: IABSRI, Local 764 and Edge Innovations Inc., Re, [2021] L.R.B.D. No. 2, 2021 CarswellNfld 131; Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Hibernia Management & Development Co. and F.F.A.W.-C.A.W.,[2001] Nfld. L.R.B.D. No. 3, 68 C.L.R.B.R. (2d) 161; Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC 699; Barry'sLtd. v. Fishermen, Food & Allied Workers' Union (1992), (NL SC), 311 A.P.R. 249, 98 Nfld. & P.E.I.R. 249 (Nfld.S.C.(T.D.)); Eastern Road Builders Ltd. v.

Construction General Labourers, Rock & Tunnel Workers, Local 1208 (1990), (NL SC), 225 Nfld. & P.E.I.R. 113, 672 A.P.R. 113 (Nfld. S.C.(T.D.)); Locke's Electrical Ltd. v. Newfoundland & Labrador(Labour Relations Board), 2010 NLTD 27 STATUTES CONSIDERED: Labour Relations Act, R.S.N.L. 1990, c. L-1 RULES CONSIDERED: Labour Relations Board Rules of Procedure, Nfld. Reg. 745/96; Rules of the Supreme Court, 1986, S.N.L.1986, c. 42, Sch.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is an application for judicial review of a decision of the Labour Relations Board to certify a bargaining unit. [2] Edge Innovations Inc. (Edge) is a construction management company based in Alberta. It specializes in the supply andinstallation of portable fabric structures. In November 2019 Edge was awarded a contract for the supply of a structure to a fish farm inStephenville. It hired nine people to work on the contract and assigned another employee to oversee it remotely.

The constructionportion of that contract is now complete. [3] In June, 2020, the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 764 (theUnion) filed an Application for certification of a bargaining unit to represent the nine Edge employees working on the site inStephenville. [4] The Labour Relations Board (the Board) assigned an investigating officer to investigate the Application and then held arepresentation vote by mail that closed on July 17, 2020. The investigating officer prepared a report for the Board dated November 12,2020.

A panel of the Board reviewed the report and submissions made by Edge and the Union. Edge had argued in its submissions tothe panel that one of the nine, Brian Martin, ought not to have been included in the bargaining unit as he was a management employee. The panel determined that a hearing was not necessary and it found that all nine employees proposed by the Union ought to be includedin the bargaining unit. Edge then requested a reconsideration of the panel decision.

Although both Edge and the Union had originallyrequested a hearing on the issue of the number of employees in the bargaining unit, the union changed its position. The panel determinedthat a hearing was not necessary. On January 7, 2021, it confirmed its first decision and dismissed the request by Edge forreconsideration. Edge requested written reasons for this decision and the panel provided written reasons on January 19, 2021. [5] In a previous decision, I dismissed an application by Edge for a stay of the Board’s order to count the ballots. The ballots,

including Martin’s, were subsequently counted, and all five votes were in favour of the union. The Board therefore ordered that the union was certified as the bargaining agent for Edge employees. [ 6 ] Edge maintains that Martin should not have been included in the bargaining unit as he was a management employee. It asks that the Court review the decision of the Board to include him, and to quash that decision.

If Edge is successful in that application, then the result of the vote will be that only four of eight putative bargaining unit employees would have voted for certification, and the certification application will have failed because it was not supported by a majority. [ 7 ] Edge bases its application on two grounds. First, it says that the decision of the Board that Martin was an employee, and not management, was unreasonable because the result was absurd and the Board could only have come to that conclusion by ignoring evidence before it or misapprehending relevant Board precedent.

Second, Edge says that the Board denied Edge procedural fairness because Edge asked for, and should have been granted, a hearing on the question of Martin’s status. [ 8 ] I have decided that Edge has not demonstrated either that the decision of the Board to include Martin in the bargaining unit was unreasonable or that Edge was denied procedural fairness because its request for a hearing was rejected by the Board.

ISSUES [ 9 ] The parties agree that the standard of review of the Board decision to include Martin in the bargaining unit is reasonableness; and that the standard of review on the question of procedural fairness is correctness. Therefore, the issues that I must resolve are as follows: 1. Was the Board decision to include Martin in the bargaining unit unreasonable? 2. Did the decision of the Board to deny Edge’s request for a hearing breach its duty of procedural fairness? ANALYSIS Statutory and Regulatory Regime [ 10 ] The Labour Relations Act, R.S.N.L. 1990, c.

L-1 , governs organized labour relations in this province. The Act and the Labour Relations Board Rules of Procedure , Nfld. Reg. 745/96 , issued under the Act, set out the process for determining whether employees in a workplace will be represented collectively by a union. This process begins the union’s application for certification of a bargaining unit: 36.

Application for certification 36(1) A trade union claiming to have as members in good standing a majority of employees of 1 or more employers in a unit may, subject to the rules of the board and in accordance with this section, make application to the board to be certified as bargaining agent of that unit. 36(2) Where a collective agreement is not in force and a bargaining agent has not been certified under this Act for the unit, the application may be made at any time. [ 11 ] The Act expressly directs how the Board is to decide whether to certify the union as bargaining agent, in essence by requiring that the Board certify a recognized union if the majority of employees in the workplace wish to be represented by the union: 48.

Condition precedent Where a trade union or a council of trade unions, claiming to have as members in good standing a majority of the employees of 2 or more employers in an appropriate unit, applies for certification as the bargaining agent of the employees in that unit, the board shall not certify that union or council as the bargaining agent for the employees, unless (

a) a majority of the employers of those employees consent to the certification; and (

b) the board is satisfied that the applicant might be certified by it under this Act as the bargaining agent of the employees of each employer who are in the unit if separate applications for the purpose were made by the applicant. [ 12 ] There are two questions that must be decided in order to determine whether a majority of employees want union representation: the total number of employees in the proposed bargaining unit; and the number of those employees who wish to be represented by the union. [ 13 ] The Act directs that the second question is to be decided by a vote of the members of the proposed bargaining unit: 47.

Taking of votes and ballot 47(1) Where an application for certification is supported by not less than 40% of the employees in the unit to which the application relates, the board shall take a vote of the employees in the unit to determine their wishes with respect to the certification of the applicant trade union as their bargaining agent. [ 14 ] The priority of the first question is emphasized in both s. 47(6) of the Act and s. 26 of the Regulations : 47(6) Where a vote is taken under subsection (1), the board shall remove and destroy, without counting, the ballots cast by persons who are not employees in the unit to which the application relates.

26(8) All ballots cast in the vote will be held for counting until the board has determined the appropriate bargaining unit and considered other issues which may affect the vote. [ 15 ] The first step in determining the total number of employees in the bargaining unit is imposed on the employer, which is required by s. 26(3) of the Regulations to provide a list of employees and their classifications: “All ballots cast in the vote will be held for counting until the board has determined the appropriate bargaining unit and considered other issues which may affect the vote.” [ 16 ] The Act provides that the Board is not bound by the information provided by the employer, but may examine records and conduct inquiries or hearings: 46.

Examination of records For the purposes of determining whether the majority of the employees in a unit consist of members in good standing of a trade union or whether a majority of them have selected a trade union to be their bargaining agent, the board may make the examination of records or other inquiries that it considers necessary, including the holding of the hearings or the taking of the vote, that it considers expedient, and the board may prescribe the nature of the evidence to be provided to the board. [ 17 ] The Regulations emphasize that the authority to decide the scope of the putative bargaining unit lies with the Board, but may be exercised by the chief executive officer: 50.

Votes of employees 50(1) Where the board has directed that a vote be taken of the employees in a bargaining unit, the chief executive officer is responsible for the taking of the vote and reporting on that vote to the board and, subject to the direction of the board, has authority on behalf of the board to settle all matters pertaining to the taking of the vote and to issue directions considered necessary for the taking of the vote, including authority to (

a) settle the list of employees entitled to vote; [ 18 ] The Act also provides generally for the powers of the Board, and some of those general powers have specific application to the determination of the set of employees to be regarded as the putative bargaining unit: 18. Powers of board In relation to a proceeding before it, or to determine a matter referred to it by the minister or under an application made to it, the board may (

a) examine the evidence that is submitted to it respecting the membership of employees in a trade union seeking certification; (a.1) order pre-hearing procedures, including pre-hearing conferences; (a.2) compel, at any stage of a proceeding, a person to provide information or produce the documents or things that may be relevant to a matter before it, after providing the parties an opportunity to make representations; (a.3) limit the scope of a hearing; (

b) examine documents forming or relating to the constitution or articles of association of (

i) a trade union or council of trade unions that is seeking certification, or (ii) a trade union forming part of a council of trade unions that is seeking certification; (

c) make those investigations, inquiries and examination of records that it considers necessary; (

d) require an employer to post and keep posted in appropriate places a notice that the board considers necessary to bring to the attention of an employee a matter relating to a proceeding; (

e) enter the premises of an employer where work is being or has been done by employees and inspect and view the work, material, machinery, appliances or articles there and interrogate persons respecting a matter that is before the board in a proceeding; (

f) enter upon an employers' premises for the purpose of conducting representation votes during working hours; (

g) authorize a person to do anything that the board may do under paragraphs (c), (

e) and (

f) and to report to the board on them; (

h) adjourn or postpone a proceeding; (

i) shorten or extend the time for instituting a proceeding or for doing

an act, filing a document or presenting evidence in connection with the proceeding; (

j) amend or permit the amendment of a document filed in connection with a proceeding by either party to a proceeding at any stage of the proceeding; (

k) decide a question that may arise in a proceeding, or under an application made to it, or referred to it by the minister, including a question as to whether

(

i) a person is an employer or employee, (ii) a person performs management functions or is employed in a confidential capacity in matters relating to labour relations, (iii) a person is a member in good standing of a trade union, (iv) an organization or association is an employers' organization, a trade union or a council of trade unions, (

v) a group of employees is a unit appropriate for collective bargaining, [ 19 ] As set out in s. 18(

g) of the Act, the Board can delegate to others its powers to determine the number of employees in a putative unit. The Regulations set out the responsibilities of certain officers of the Board in this regard: 20. Responsibilities of chief executive officer and secretary 20(1) The responsibilities of the chief executive officer of the board, subject to the direction of the board, include (

a) the processing of applications made to the board; (

b) the issuing of notices on behalf of the board; (

c) the conduct of investigations for the board in connection with applications or other matters coming before the board; (

d) the preparation and submission of reports to the board concerning the matters mentioned in this section; and (

e) subject to the direction of the chairperson, the issuing of orders giving effect to the decisions of the board. 20(2) Subject to the direction of the chairperson, the chief executive officer may undertake or cause to be undertaken the investigation on the board's behalf as the chief executive officer considers necessary in the circumstances of the case or the chief executive officer may dispense with an investigation. [ 20 ] The Act contains a privative clause: 19.

Effect of decision 19(1) A decision, order, direction, declaration or ruling of the board shall not be questioned or reviewed in a court, and an order shall not be made or process entered or proceedings taken in a court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the board or its proceedings. 19(2) The board may review, rescind, amend, alter or vary an order or decision made by it or by a panel and may rehear an application before making an order in respect of it. 19(3) An application to the board for the review, rescission, amendment, alteration or variation of an order or decision of the board or a panel under subsection (2) shall be made within 6 months of the making of the original order or decision or the longer period the board considers appropriate in the circumstances.

The Decision of the Board [ 21 ] The Board assigned an investigating officer to report on the facts relevant to the certification application. The Board decided not to hold a hearing but it gave each of the union and employer the opportunity to respond in writing to the investigating officer’s report, and to each other’s positions. The Board structured its decision, reported at IABSRI, Local 764 and Edge Innovations Inc., Re, [2021] L.R.B.D. No. 2, 2021 CarswellNfld 131 , by setting out a

summary of the investigating officer’s report (including the statements of Martin and of other employees), and the initial positions of the parties and their replies to the investigating officer’s report. The significant part of the Board decision is as follows: The Appropriate Bargaining Unit 61 The Board has found the following bargaining unit to be appropriate for collective bargaining, which is consistent with the submissions of the parties: All Ironworkers and Ironworker Apprentices in the Province of Newfoundland and Labrador, save and except superintendents and those above the rank of Superintendent.

Inclusion/Exclusion of Mr. Martin from the Bargaining Unit 62 The Board, having considered all of the relevant facts and information, has reached the conclusion that Brian Martin should not be excluded from the bargaining unit based upon a management exemption. 63 The Board has considered the issue of management exclusions in the past.

In particular, this issue was considered in Hibernia Management & Development Co. and F.F.A.W., (2001), 68 CLRBR (2d) 161 at pp. 180-181 . 64 In reaching this conclusion to include Brian Martin in the bargaining unit, the Board notes the following in reference to the management exclusion test: (

i) Mr. Martin had involvement in the hiring process but not to the extent that he made effective recommendations in this regard. Mr.

Martin did recommend individuals for hiring but that was the extent of his involvement. The process and decision to hire was then carried out by management with the Employer; (ii) Mr. Martin, other than communicating discipline from the Employer to employees, did not have effective involvement in the disciplinary process. Mr. Martin was potentially able to dismiss employees on the spot from the worksite for serious safety infractions, but that related to his supervisory role. The decision to discipline employees came from management personnel; (iii) Mr.

Martin had no effective involvement in the evaluation of performance of employees, nor was he involved in providing effective recommendations concerning salary increases, promotion, training opportunities or other advancement opportunities; (iv) Mr. Martin was involved in receiving sick leave requests from employees, but did not exercise effective control over other leave requests in general; (

v) Mr. Martin had no involvement in promotions or transfers; (vi) Mr. Martin did not authorize overtime or direct employees to work outside of regular hours of work, although he did have involvement in presenting the employees' request for a change in their hours of work to management; (vii) Mr. Martin did direct employees in the manner of performance of their duties, although he did so in a supervisory capacity; and (viii) Mr. Martin did assign job duties to employees under the direction of management. 65 Overall, and looking at the context of Mr.

Martin's employment, it cannot be said that he provided effective recommendations in areas that materially affected the economic lives of employees. Similarly, Mr. Martin did not exercise independence of decision making in significant policy areas or have management authority in his role. 66 Mr. Martin supervised employees in their roles, and acted on behalf of management to a limited extent, but he did not exercise sufficient management functions such that he should be excluded from the bargaining unit. 67 For the foregoing reasons the Board has decided to include Mr.

Martin in the bargaining unit. [ 22 ] The Board went on to deny a request by Edge for reconsideration. It also addressed the request by Edge for a hearing: 80 The Board recognizes that both the Union and the Employer initially requested a hearing before the Board. The Union later clarified that a hearing was not necessary in its Reply to the request for Reconsideration. 81 The Board has the discretion to order a hearing in matters such as these.

In the Application for certification and the request for Reconsideration the Board was not presented with conflicting information of such a nature that necessitates a hearing. If the Employer had further "examples" to support its position, as alleged in its request for Reconsideration, then the Employer should have put those forward in its written submissions. [emphasis original] Issue 1: The Inclusion of Mr. Martin in the Bargaining Unit [ 23 ] As noted, the parties agree that the Court should apply a standard of reasonableness in reviewing the Board decision that Mr.

Martin was included in the bargaining unit. [ 24 ] As described by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 85 : “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.

The reasonableness standard requires that a reviewing court defer to such a decision.” [ 25 ] The factual constraints on a decision-maker are those facts contained within the record; the legal constraints include the governing or other applicable statutes or regulations, and relevant precedents from the courts and the administrative body. [ 26 ] The burden is on the party challenging a decision to demonstrate unreasonableness. [ 27 ] Edge says that the Board decision means that all of its employees at the Stephenville work site were non-management employees and that result is absurd, and can only have been reached by ignoring or misapplying the evidence within the matrix of the Hibernia Management & Development Co. and F.F.A.W.-C.A.W. , [2001] Nfld.

L.R.B.D. No. 3 , 68 C.L.R.B.R. (2d) 161 decision, which both sides accept as the leading Board authority on the issue of the scope of a bargaining unit. The Argument by Edge that the Board Decision Results in Absurdity [ 28 ] Edge says that it is completely untenable in the context of construction labour relations to have a situation where management has no representative on a job site. Including Martin in the union created this situation at the Stephenville construction site. [ 29 ] This argument focuses on the result instead of the reasons offered for it.

It asks that the Court consider whether the decision falls within a range of reasonable outcomes. This type of analysis is no longer valid following the decision in Vavilov : 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome. The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the "range" of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the "correct" solution to the problem.

[ 30 ] Edge did not demonstrate that anything in either the factual record or in the legal context supports its argument that at least one employee on every construction site must be functioning as a management employee. Its position was based on the suggestion that this is inherent in the field of construction labour relations, but it did not point to anything specific to the purposes or practical realities of the labour law regime as authority for this proposition.

Edge did not even make this argument to the Board either in its initial reply to the certification application or in its response to the investigating officer’s report. [ 31 ] The Board was aware that the effect of its decision was that all of the Edge employees at the Stephenville site would be included in the bargaining unit. It also noted that both union and employer stated that if not for the pandemic then there would have been a management representative on site more frequently.

But the Board, with its expertise in labour relations, did not raise an issue with the notion that all employees on the site would be within the bargaining unit.

The Argument by Edge that the Board Ignored Relevant Facts [ 32 ] In its decision, the Board specifically considered eight factors in applying the management exclusion test, and then looked at Martin’s role in the overall context of labour relations at the site. [ 33 ] Edge says that the Board ignored or gave inappropriately little weight to Martin’s own assessment of his duties and responsibilities, and in particular, to Martin’s view that he was, due to pandemic restrictions, acting more like a superintendent than a foreman, and that he performed only supervisory work.

Edge also says that the Board ignored or gave too little weight to the fact that Martin’s hiring recommendations were followed, that it was Martin who communicated to two employees the decision that they were laid off, and that Edge accepted a recommendation made by Martin (though originating with the other employees) that work hours at the site be changed.

Finally, Edge argues that the investigating officer did not ask other employees about Martin’s role beyond hiring, and the Board did not raise this and ask for information on this point. [ 34 ] The Board addressed and explicitly considered all of those facts, with the exception of Martin’s fellow employees’ assessment of his role. However, that latter factor is not one that is relevant in the Hibernia analysis. [ 35 ] The Applicant’s position, therefore, essentially asks the Court to reweigh the evidence that was before the Board.

This clearly is not the role of this Court on judicial review, as the Supreme Court of Canada emphasized in Vavilov at paragraph 125 : “It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.” [ 36 ] As the court in Vavilov went on to point out, interference by this Court will be appropriate if the administrative decision-maker fundamentally misapprehends the evidence or ignored crucial evidence.

However, Edge has not demonstrated that the Board committed either error in this case. Edge just asks this Court to substitute its own assessment of the facts for that conducted by the Board. The Argument that the Board Misinterpreted or Misapplied Precedent [ 37 ] The Board applied its previous decision in Hibernia to the question whether Martin ought to have been included in, or excluded from, the bargaining unit.

Both parties agreed in this proceeding that Hibernia is a relevant precedent and that it therefore was one of the legal constraints on the Board. [ 38 ] Edge, however, argues that the Board misapprehended the Hibernia decision regarding management functions because the Board seemed to take the position that an employee will only be considered to be exercising management authority in labour relations if they have sole authority in that regard.

Edge says that this misinterpretation was evident in the discussion by the Board at paragraph 64 regarding Martin’s effective authority in respect of hiring, discipline, sick leave and direction of employees. [ 39 ] However, the Board decision was not based on a considering whether Martin had sole effective authority in this regard. Rather, the Board decision was based on an overall assessment of Martin’s role on the job site, taking into account the pandemic restrictions on management travel, which resulted in Martin being required to communicate the decisions made by management.

There was no evidence before the Board that Martin’s role allowed him to make decisions, only that he was required to communicate them. This was the import of the Board reference to Martin’s “effective” authority. The Board decision was not based on Martin lacking the sole authority to make decisions, but, rather, on the facts it found that Martin communicated decisions that others made. Conclusion on Reasonableness Review [ 40 ] Edge has not demonstrated any basis for a conclusion that the Board decision was unreasonable.

Issue 2: Did the Board deny Edge procedural fairness? [ 41 ] Both the union and employer asked the Board for a hearing on the appropriate bargaining unit. The union withdrew its request after it was provided with a copy of the investigator’s report, but Edge did not. The Board dealt with the request for a hearing: 81 The Board has the discretion to order a hearing in matters such as these. In the Application for certification and the request for Reconsideration the Board was not presented with conflicting information of such a nature that necessitates a hearing.

If the Employer had further "examples" to support its position, as alleged in its request for Reconsideration, then the Employer should have put those forward in its written submissions. [ 42 ] Edge says that the denial of its request for a hearing constituted procedural unfairness, which justifies reviewing and quashing the decision. [ 43 ] All administrative proceedings that affect a person’s rights or interests or privileges should be fair, but the extent and scope of the duty of procedural fairness varies with context.

The leading authority that provides the framework for deciding the content of the duty of fairness is the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship & Immigration), 1999 SCC

699, in which, at paragraphs 21-28, the Court set out a non-exhaustive list of factors to assess the duty of fairness, including: 1. The nature of the decision and the process followed in making it. The closer that the nature and process resemble judicial decision-making, the closer the procedures required are to those used by a court conducting a trial; 2. The nature of the statutory scheme within which the decision-maker operates, including whether it provides for an appeal or requestfor reconsideration; 3. The importance of the decision to the individual; 4. The legitimate expectations of the participants; 5.

The procedural choices made by the decision-maker, particularly when the statute leaves to the decision-maker the ability to chooseits own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. Nature of the Decision and Process [44] The decision on certification is arrived at after a process set out in the Act. This process requires a vote of those who wouldmake up the bargaining unit, and for determining the scope of the bargaining unit by examination of evidence and the consideration ofsubmissions from the parties.

However, the mere fact that the process involves evidence presented in an adversarial way does not imposea requirement that there be a hearing, so long as each party has an effective opportunity to be heard. In the Board process the right to beheard is protected by the opportunity provided to each party to give evidence to the investigator, to respond to the investigator’s report,and to make submissions to the Board. Edge could not identify anything that would have been gained by a hearing in this process otherthan the potential that it could have gained information from Martin on cross-examination.

However, there is nothing that Martin knewabout his position that Edge did not know and could have provided with its evidence. Nature of the Statutory Scheme [45] The Labour Relations Act includes a privative clause and no right of appeal from a decision on the scope of a bargaining unit. This factor would tend to lean toward a requirement for the fullest opportunity to be heard before the Board. The Importance of the Decision to the Parties [46] The Act takes account of the importance of the decision within the labour relations field.

It expressly recognizes thatemployees have the right to join a union if they choose to do so, and it prohibits an employer from interfering with that right. A decisionto unionize a workplace is of obvious importance to an employer, but the Act prioritizes the rights of employees to a streamlined,effective process toward certification. This factor tends to favour a requirement for a hearing in only exceptional circumstances. The Legitimate Expectations of the Parties [47] The Act does not require that the Board hold a hearing in respect of the issue of the scope of the bargaining unit.

Thediscretionary nature of the decision whether to hold a hearing into matters before the Board has been affirmed in jurisprudence of thisprovince: Barry's Ltd. v. Fishermen, Food & Allied Workers' Union (1992), (NL SC), 311 A.P.R. 249, 98 Nfld. &P.E.I.R. 249 (Nfld. S.C.(T.D.)) at paras. 41-42; Eastern Road Builders Ltd. v. Construction General Labourers, Rock & Tunnel Workers,Local 1208 (1990), (NL SC), 225 Nfld. & P.E.I.R. 113, 672 A.P.R. 113 (Nfld. S.C.(T.D.)), at para. 20; Locke'sElectrical Ltd. v. Newfoundland & Labrador (Labour Relations Board), 2010 NLTD 27, at paras. 9-17.

Employers and unions operatingin the province would not have an expectation that the Board would hold a hearing into the scope of the bargaining unit. The Procedural Mechanisms and Choices of the Agency [48] The Act clearly provides the Board with a discretion whether to hold a hearing.

Section 46 says that in order to determinewhether a majority of employees wish to be represented by a union, the Board “may make the examination of records or other inquiriesthat it considers necessary, including the holding of the hearings… that it considers expedient, and the board may prescribe the nature ofthe evidence to be provided to the board.”

Section 18 provides for the powers of the Board to decide what information and evidence tocollect and examine, and allows the board to delegate some of that responsibility.

Section 22 allows the Board to set its own procedures. Most importantly, in this context, s. 22(2) provides: “Subject to a provision of this Act requiring the board to hold a hearing, the boardmay hold those hearings that it considers advisable and may dispose of an application without a hearing notwithstanding the filing of arequest for a heating under this Act or rules made under subsection (1).” [49] The statutory framework clearly allows the Board the discretion to hold a hearing or not.

Edge did not demonstrate that theBoard has regularly made procedural choices in respect of the scope of the bargaining unit that are different than the choice it made herenot to hold a hearing. Conclusion on Procedural Fairness [50] The Board considered the request by Edge for a hearing, but denied it because “the Board was not presented with conflictinginformation of such a nature that necessitates a hearing.” Edge has not demonstrated that procedural fairness required the Board to hold ahearing into the issue of the scope of the bargaining unit.

CONCLUSION and DISPOSITION [51] The decision of the Board regarding the scope of the bargaining unit was reasonable. The Board did not breach the requirementof procedural fairness by refusing to hold a hearing on this issue.

[ 52 ] The Application is therefore dismissed. The First Respondent is entitled to its costs taxed on Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Daniel M. Boone Justice