A-660-83
The Queen in Right of Canada as represented by
Treasury Board (Applicant)
v.
Public Service Alliance of Canada (Respondent)
and
Public Service Staff Relations Board (Mis -en-
cause)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, January 15 and 31, 1985.
Public service — Exclusion of employees from bargaining
unit — 260 employees given power to make binding decisions
on behalf of employer in dealing formally with grievances at
first level of grievance procedure — Employer seeking exclu
sion of employees as persons employed in managerial or
confidential capacity — No mala fides — Refusal of PSSRB
to allow exclusions — Extent of PSSRB's jurisdiction with
respect to review of exclusions — Public Service Staff Rela
tions Act, R.S.C. 1970, c. P-35, ss. 2, 7, 99(4) (as am. by S.C.
1974-75-76, c. 67, s. 28), 100 (as am. idem, s. 29) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Judicial review — Applications to review — Public service
— Exclusion of employees from bargaining unit — Employer
giving 260 employees power to make binding decisions on
employer's behalf in dealing officially with grievances at first
level of grievance procedure — Exclusion of said employees
sought as persons employed in managerial or confidential
capacity — No mala fides — Refusal of PSSRB to allow
exclusions — Extent of jurisdiction of PSSRB with respect to
review of exclusions — Privative provisions of s. 100 of Act
inapplicable as overriden by s. 28 of Federal Court Act —
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 2,
7, 99(4) (as am. by S.C. 1974-75-76, c. 67, s. 28), 100 (as am.
idem, s. 29) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
Jurisdiction — Federal Court — Appeal Division — Review
of PSSRB decision on exclusion of employees from bargaining
unit — Privative provisions of s. 100 of Act inapplicable as
overriden by s. 28 of Federal Court Act — Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, ss. 2, 7, 99(4) (as am. by
S.C. 1974-75-76, c. 67, s. 28), 100 (as am. idem, s. 29) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Treasury Board proposed to designate for exclusion from the
bargaining unit 260 Customs Superintendents on the ground
that they were persons employed in a managerial or confiden-
tial capacity within the meaning of section 2 of the Public
Service Staff Relations Act. These employees had been given
the power to make binding decisions on behalf of their employ
er in dealing formally with grievances at the first level of the
grievance procedure. The union objected to these exclusions
and the matter was submitted to the Public Service Staff
Relations Board which disallowed exclusion even though it
found as a fact that the employer had effectively assigned to
the employees the above-mentioned grievance-related respon
sibilities.
This application to review is based on the argument that the
Board was not empowered by Parliament to override the au
thority given the employer by statute to designate persons
whose decision on a grievance constitutes a level in the griev
ance process. The respondent argues that if the Board did not
have the jurisdiction to satisfy itself that management's deci
sion was justified in a particular case, then it would be reduced
to acting as a rubber stamp. The respondent also suggests that
by designating such a large group of employees, the employer
could circumvent and undermine the entire collective bargain
ing process. For its part, the Board argues that its decisions are
protected by the privative provisions of section 100 and can
only be quashed by a reviewing court when they are found to be
"patently unreasonable".
Held, the application should be allowed.
Parliament has entrusted the employer and not the Board
with the responsibility for designating persons to act on its
behalf in making binding decisions in the course of the griev
ance process pursuant to paragraph (e) of the definition of
"person employed in a managerial or confidential capacity" in
section 2 of the Act. The Board's finding of fact that the
employer had effectively assigned the duty to deal with griev
ances under the Act effectively disposed of the issue between
the parties and the Board should have stopped there and
decided the matter in favour of the employer. The Board erred
in law in examining whether management's decision was other
wise justified. The word "required" in paragraph (e) of the
above-mentioned definition cannot be interpreted as imposing a
requirement of necessity, giving the Board jurisdiction to
inquire into the need for the designation and to require a
reasonable explanation by the employer for such a large
increase. The definition nowhere uses the word "necessary" or
similar words and the "liberal" interpretation proposed by the
respondent would be contrary to section 7 of the Act. That
section requires a construction of the Act which will not affect
management's right to determine the organization of the Public
Service and to assign duties to and classify positions therein.
There is no basis for a finding of mala fides on the part of
the employer, nor did any member of the Board make one.
However, such a finding in a given case could perhaps justify
disallowing exclusions. The argument concerning the privative
provisions of section 100 is without merit. Section 100 does not
apply here because the application was brought under section
28 of the Federal Court Act under which this Court is given
jurisdiction "Notwithstanding ... the provisions of any other
Act....
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Canadian Air Traffic Control Association,
[1982] 2 F.C. 475 (C.A.).
DISTINGUISHED:
Foreign Affairs Case, No. 1 (1968), P.S.S.R.B. Reports
K195; The Queen v. Professional Institute of the Public
Service of Canada, [1980] 2 F.C. 295 (C.A.).
COUNSEL:
Eric Bowie, Q.C. and Harvey A. Newman for
applicant.
Maurice W. Wright, Q.C. and A. J. Raven for
respondent.
Ian Scott, Q.C. and John E. McCormick for
mis -en-cause.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent.
Gowling & Henderson, Toronto, for mis -en-
cause.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision rendered on May 4,
1983, by the Public Service Staff Relations Board
(the Board). At all material times the respondent
was the certified bargaining agent for all
employees employed in levels 1 to 7 of the Pro
gramme Administration Occupational Group. At
the time of certification in 1968, the applicant and
the respondent agreed to the designation as
managerial or confidential, exclusions of some 430
persons employed in Revenue Canada, Customs
and Excise. In 1974, the parties agreed to the
exclusion of an additional 150 persons. These
exclusions were based on paragraph (h) of the
definition "employee" contained in section 2 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, as amended (the Act). That subsection
reads:
2....
"employee" means a person employed in the Public Service,
other than
(h) a person employed in a managerial or confidential
capacity,
Subsequent to 1979, the applicant proposed for
exclusion an additional 260 persons classified as
Programme Administrators at Level 2, identified
in the collective agreement as PM-2 and described
by the applicant as Customs Superintendents. The
basis for exclusion advanced by the applicant was
that each of these individuals had been assigned
the duty to deal formally on behalf of the employ
er with grievances presented at the first level of the
grievance procedure, and, therefore, fell within
paragraph (e) of the definition of "person
employed in a managerial or confidential capaci
ty" in section 2 of the Act. The relevant portion of
paragraph (e) reads:
2....
"person employed in a managerial or confidential capacity",
means any person who
and includes any other person employed in the Public Service
... who in any case where a bargaining agent for a bargain
ing unit has been certified by the Board is designated in
prescribed manner by the employer, or by the Board on
objection thereto by the bargaining agent, to be a person
(e) who is required by reason of his duties and responsibili
ties to deal formally on behalf of the employer with a
grievance presented in accordance with the grievance process
provided for by this Act,
The respondent objected to all of the 260 addi
tional proposed designations and, accordingly, the
issue between the parties was submitted to the
Board.
The majority of the Board decided that none of
the additional 260 persons proposed for exclusion
should be designated pursuant to paragraph (e) of
the definition of "person employed in a managerial
or confidential capacity" in section 2 of the Act.
The dissenting member of the Board, while tacitly
agreeing with the majority view that the Board
possesses jurisdiction to inquire into the "quality"
of the management decision, disagreed with his
colleagues on the facts, concluding that the
employer had established a prima facie case, at
the very least to support the bona fides of the
decision to designate and that on these facts, the
employer's decision was "logical, practical and
consistent with the provisions and objects of the
Act."
It is the applicant's position that the Board erred
in law and exceeded its authority in refusing to
designate the designated 260 PM-2's after finding
as a fact that the employer had effectively
assigned to them the duty to receive and deal
formally with first level grievances and had dele
gated the authority to them to make binding deci
sions on the employer's behalf. This position is
opposed by the respondent union which asserts
that the Board has jurisdiction to determine
whether or not the employees proposed for desig
nation should be properly excluded from collective
bargaining; that the applicant's position is tan
tamount to restricting the Board's jurisdiction to
acting as a "rubber stamp" in respect of the
employer's decision to designate; and that the
Board's position is correct in law and consistent
with the Act and with Parliament's recognition of
the particular expertise of the Board. Counsel for
the Board submits that the question to be decided
is whether the Board, hearing an objection by the
bargaining agent to designations by the employer,
is limited to enquiring whether the employer has
duly assigned the designated employees responsi
bility for grievances and designated them in the
prescribed manner, or, whether the Board can also
inquire as to whether the duties and responsibili
ties assigned to the designated employees will, in
fact, as well as in name, "require" their involve
ment in the grievance process. He characterizes
this issue as purely factual, i.e., do the duties and
responsibilities of the designated employees
require formal involvement in the grievance
process.
The submission of counsel for the applicant is
simple and straightforward. By referring to the
definition of "person employed in a managerial or
confidential capacity" (supra) contained in the
Act, he observes that where, as here, a bargaining
agent has been certified by the Board and where,
as here, the employees have been designated by the
employer in the prescribed manner and where, as
here, the bargaining agent has objected to that
designation, the duty of the Board is limited to the
making of a factual finding on an individual basis
whether or not the duties and responsibilities of
each designated employee include dealing formally
on behalf of the employer with a grievance. In his
view, the Board was not empowered by Parlia
ment, on a plain reading of the language used, to
override the authority given to the employer by the
statute to designate persons whose decision on a
grievance constitutes the final or any level in the
grievance process.
Counsel then refers to the majority reasons of
the Board (Case, Vol. XXII, p. 3318) where it is
stated:
8. The evidence adduced, both written and oral, in the course of
this hearing satisfies the Board that the Employer has fulfilled
the technical requirements of the Act and the Regulations. The
Employer has effectively assigned to the subject employees the
duty to receive and deal formally with grievances at the first
level of the grievance procedure and has delegated authority to
them to make binding decisions on behalf of the Employer
particularly on such matters as scheduling of annual leave,
assignment of shifts, overtime work, special and other leave,
administering the disciplinary process within prescribed limits
and so forth.
On the basis of this extract from the majority
reasons, it is the applicant's position that the
Board found as a fact and on an individual basis
that each of the 260 employees proposed for exclu
sion had been effectively assigned "the duty to
receive and deal formally with grievances at the
first level of the grievance procedure". According
ly, in counsel's view, as a consequence of that
finding, the Board was required by the Act to so
designate each of the said employees, and in fail
ing to do so, the Board erred in law.
In support of this position, applicant's counsel
submits that section 7 of the Act must be read
along with subsection 99(4) [as am. by S.C. 1974-
75-76, c. 67, s. 28] of the Act to ascertain the true
meaning to be given to the words used in the
statute. Section 7 reads:
7. Nothing in this Act shall be construed to affect the right
or authority of the employer to determine the organization of
the Public Service and to assign duties to and classify positions
therein.
Subsection (4) of section 99 reads:
99....
(4) For the purposes of any provision of this Act respecting
grievances, the employer shall designate the person whose
decision on a grievance constitutes the final or any level in the
grievance process and the employer shall, in any case of doubt,
by notice in writing advise any person wishing to present a
grievance, or the Board, of the person whose decision thereon
constitutes the final or any level in such process.
On the basis of these provisions, the applicant
submits that Parliament has entrusted the employ
er and not the Board with the responsibility for
designating persons to act on its behalf in making
binding decisions in the course of the grievance
process.
I agree with that view of the matter. In my view,
the definition of "person employed in a managerial
or confidential capacity" supra, clearly includes
those persons to whom the employer has effective
ly assigned the duty to deal with grievances under
the Act. In this case, as noted supra, the Board has
made an affirmative finding of fact in this regard.
I agree with applicant's counsel that such a finding
effectively disposed of the issue between the par
ties and that the Board should have stopped at that
juncture and decided the matter in favour of the
employer. I reach this conclusion because of the
plain and unambiguous words used in the defini
tion and, more particularly so, when those words
are considered in the context of section 7 and
subsection 99(4) of the Act supra. In taking the
position that it had jurisdiction and a responsibility
to satisfy itself that management's decision was
justified in all the circumstances of the present
case, the Board clearly erred in my view. Counsel
for the respondent union submitted that the inter
pretation advocated by the applicant would result
in the Board's jurisdiction being restricted to
acting as a rubber stamp of the employer's deci-
Sion to designate. He also suggested that through
the simple expediency of designating such a large
group of employees, the employer could "circum-
vent and undermine the entire collective process."
I do not agree. As I perceive the language used in
the definition of "person employed in a managerial
or confidential capacity" in section 2, the Board
has the power and duty to determine, in a case
where there is a certified bargaining agent, and
where the employer has designated certain per
sons, and where the bargaining agent has objected
to that designation, whether those persons come
within any of the classes described in paragraphs
(c), (d), (e), (f) or (g) of the definition. In the case
at bar, the relevant class is the class described in
paragraph (e). Consequently, the question for
decision under that paragraph is whether the per
sons designated by the employer do, as a matter of
fact, have the duty and responsibility to deal with
grievances on behalf of the employer. As noted
supra, it is apparent from the majority reasons of
the Board that after considering all of the evi
dence, both written and oral, it was satisfied that
the employer had "effectively" assigned the duties
specified in paragraph (e) to subject employees.
That is not acting as a rubber stamp, in my view.
At that stage, the Board had made the inquiry
required of it under the statute and it should have
concluded its deliberations at that juncture.
It is submitted, however, by counsel for the
Board, that the word "required" should be inter
preted in a wider sense, namely, in the sense that
the proposed large increase in the number of griev
ance officials is necessary and that the Board has
jurisdiction to inquire into the need for such a
designation and to require a reasonable explana
tion by the employer for such a large increase. I do
not accept this submission. I observe, initially, that
the word "necessary" or words of similar import
are not found in the definition. I would also note
that such an interpretation would be directly con
trary to section 7 of the Act which requires a
construction of the various provisions of the Act
which will not affect management's right to deter
mine "... the organization of the Public Service
and to assign duties to and classify positions there
in." Such a construction would arrogate to the
Board a power which the section does not confer
upon it.' Furthermore, I think it significant that in
paragraph (g) of this same definition, 2 Parliament
has seen fit to expressly empower the Board to
look into, qualitatively, management's designation
of any employee. Had Parliament so intended in
respect of paragraph (e), it would have been a
simple matter to insert similar words in that
paragraph.
Counsel for the Board referred, in his memoran
dum, to the Foreign Affairs Case, No. 1, a deci
sion of the Board dated April 30, 1968 (P.S.S.R.
Board Reports, K195, at page K204) where the
Board said that the employer must show "... that
there has been given to the person concerned some
authority of substance to give a binding decision
on his own initiative to some types of grievances."
In my view, this statement by the Board does not
assist counsel for the Board or the respondent in
light of the specific findings of fact made by the
Board at Vol. XXII, page 3318 and quoted supra.
Those findings are clearly evidence of "authority
of substance" to give binding decisions on that
person's own initiative in respect of first level
grievances. In reading the Foreign Affairs deci
sion, however, I note a useful discussion of the
problem facing the Board when an employee
organization has challenged employer designations
under subsection 99(4). At pages K199 to K200,
the Board said:
' For a similar view in respect of section 79 of the Act, see
The Queen v. Canadian Air Traffic Control Association,
[1982] 2 F.C. 475 (C.A.), at page 485, per Urie J.
2 Paragraph (g) reads "who is not otherwise described in
paragraph (c), (d), (e) or (/), but who in the opinion of the
Board should not be included in a bargaining unit by reason of
his duties and responsibilities to the employer". [Emphasis
added.]
On a number of occasions, we invited the advocates for
employee organizations who appeared before us in certification
proceedings to suggest what sort of test ought to be applied by
the Board in determining whether designations proposed by the
Employer were proper or improper. No concrete suggestion of
any sort has been forthcoming. We were generally told that the
Board should look at the facts of each case and come up with
some sort of an answer. Needless to say, if we were to adopt
this counsel, we would be setting ourselves up as a court of
appeal to consider the wisdom or lack of wisdom of the
Employer in designating any person as a step in the grievance
process and without offering any guidance either to the
Employer or to employee organizations as to what principles
ought to guide the Employer in the designation of employees.
The authority of the Employer to make a designation under s.
99(4) would then be robbed of all content. If this approach to
designation had been intended by Parliament, it would have
vested the authority to designate in the Board itself or at least it
would have provided that the authority was to be exercised
under the direction and guidance of the Board. The fact is that
Parliament has declared in s. 99(4) that "the employer shall
designate", without any qualifying phrases.
And, again, at pages K203 to K204, the Board
discusses the language used in subparagraph
2(u)(v) of the Act (the predecessor section to
paragraph 2(e) which, for the purposes of the
issues herein, is identical) as follows:
Let us now turn to the language of s. 2(u)(v) itself. It has
been suggested that, if the Employer's position on this provision
were accepted, the Board would become no more than a rubber
stamp. This construction ignores the wording of the clause. It
does not place a person within the managerial genus simply
because the Employer states that that person has been desig
nated under s. 99(4). To fall within the clause, he must be a
person who is required by reason of his duties and responsibili
ties to deal formally with a grievance presented in accordance
with the grievance process provided by the Act. Although the
Act nowhere states in expressed term what is intended by the
words "to deal formally", it seems to us that it must be
regarded as equivalent to the giving of a "decision" under s.
99(4).
What I understand the Board to be saying is
that the person concerned must have been given
real or effective authority and if he has, that is an
end of the matter. Since, in the case at bar, the
Board directed its mind to that question and, on
the evidence, answered the question affirmatively,
that should have decided the issue before the
Board.
The respondent, in its original objection letter
dated January 17, 1979, alleged that the employ
er's action in designating the 260 employees, was
"entirely capricious and without consistent
rationale". This matter was also raised by the
respondent before the Board with a view to estab
lishing mala fides or evidence of abuse by the
employer.
However, after reviewing the evidence, I can
find no basis for a finding of mala fides nor do I
think it can be said that either the majority or the
dissenting member of the Board made a finding of
mala fides. Indeed the dissenting member, as
noted supra, after a very extensive review of the
evidence concluded that the employer's decision
was "logical, practical and consistent with the
provisions and objects of the Act." The evidence
before the Board of Mr. J. P. Connell, the Deputy
Minister of Revenue Canada was to the effect that
the employer had conducted an extensive survey of
the Branch, including an analysis of its operational
needs, its managerial needs in general and specifi
cally a managerial capability to deal effectively in
employee-union-management relationships with all
unionized personnel at the many locations. He
testified further that the decision was made to
establish a new position, that of Customs Superin
tendent at the PM-2 level, with clearly defined
duties and responsibilities. The dissenting member
of the Board, in discussing the duties of the
PM-2's said (Case, Vol. XXII, pages 3348-3350):
5. The Summary of Duties, which prefaces the full position
description, reads as follows:
Directs the activities of a staff engaged in the application of
those Acts, regulations of this and other departments and
agencies which govern the movement of goods and people
entering or exiting Canada;
Performs various personnel management functions in the
interest of optimum utilization of staff and their development
and motivation;
Participates in the operational planning of the Customs
Operations activity;
Develops and maintains good and effective working relation
ships with representatives of other departments, police forces
clientele and the general public, and performs other duties.
Without in any way denigrating any of the other duties and
responsibilities set out in the position description I would note
the following:
supervising and coordinating the activities of a staff of
approximately 10, and where required a minimal number of
administrative support personnel
performs various personnel management functions in the
interest of optimum utilization of staff and their development
and motivation
administering the Departmental disciplinary process in the
manner delegated to the Superintendent by the Deputy
Minister
participating formally on behalf of Management in the griev
ance process.
6. The decision of the employer was to establish a new position
with a "national" position description. The functions performed
by the personnel of the Field Operations Branch of Customs
and Excise do not vary, materially, from one end of this country
to the other. There are variations in functions between airports,
marine terminals and highway truck terminals, etc., but the
functions do not vary whether the terminal is located at Hali-
fax, Montreal, Toronto or Vancouver. If the employer had "no
regard to the varying organizational structure of the Field
Operations Branch" and "the Employer's action would appear
to be entirely capricious and without consistent rationale," as
alleged by the bargaining agent in its letter dated January 17,
1979, it was encumbent upon the bargaining agent to at least
endeavour to introduce evidence to that effect. It did not do so
and I would add that, to have introduced this new position in
only one region with a limited number of persons proposed,
would have immediately raised an issue as to the bona fides of
the employer.
7. Mr. Connell further testified that, pursuant to sub-section
7(4) of the Financial Administration Act and pursuant to
section 5 of the Public Service Collective Agreements (Gener-
al) Implementation Order he delegated much of his authority
to these customs superintendents. In his opinion, it was only
logical to hold the customs superintendents accountable for the
decisions they made pursuant to those delegations of authority.
One way to hold them accountable was for a customs superin
tendent to answer a grievance against a decision he had made,
i.e., as the first step in the grievance process. Mr. Connell
regarded as irrelevant whether 50 grievances or none were filed.
After reviewing the evidence of other witnesses,
the dissenting member stated at page 3354:
I submit that it must be apparent from all of the foregoing that
the employer did more than simply "fulfill" some "technical
requirements" set out in the Act and the Regulations. No little
time and money has been expended in training and developing
these customs superintendents as representatives of the employ
er. The bargaining agent did argue that the employer simply
assigned arbitrarily to employees, whose regular duties and
responsibilities did not cause them to fall within the definition
of a "person employed in a managerial or confidential capaci
ty," the duty to deal with grievances. The bargaining agent did
so, however, in face of evidence to the contrary.
I agree with the above quoted conclusions of dis
senting Board member, D. G. Pyle, since they are,
in my view, supported by the evidence. Insofar as
the majority of the Board is concerned, I think it
clear from their reasons that their conclusion was
not based on a factual finding of mala fides. The
Board was clearly of the view that it had jurisdic
tion to require the employer to show that the
proposed addition of designated employees was
"reasonably justified" (Case, Vol. XXII, page
3342), and that it had authority to inquire into the
employer's proposals (Vol. XXII, page 3345).
Based on the evidence in this case, the Board was
not so satisfied. I leave aside for a future case
where mala fides is established on the evidence,
the question as to whether or not such a factual
situation would affect the result.
The majority of the Board as well as counsel for
the respondent in his submissions to us relied on
the decision of this Court in The Queen v. Profes
sional Institute of the Public Service of Canada,
[1980] 2 F.C. 295 (C.A.). In my view, that deci
sion does not assist the respondent. In that case the
employer had claimed that a particular employee
came within paragraph (a) of the definition of
"person employed in a managerial or confidential
capacity" because he was said to be in a position
confidential to a Chief Executive Officer of a part
of the Public Service. The Court decided that the
Board had jurisdiction to inquire, as a factual
matter, into whether a person claimed to be within
paragraph (a) was, in actual fact, a member of
that class. That decision, in my view, has relevance
only to employees said to fall within either para
graphs (a) or (b) of the definition. It has no
relevance to persons falling within classes (c) to (I)
because the wording of the definition clearly
empowers the Board to perform a fact-finding
function with respect to those classes. In the case
at bar, the Board did perform that function and
found the facts required of it in paragraph 8 of the
reasons at page 3318. Where it erred, in my view,
is that it proceeded to conduct another inquiry
which it was not authorized to conduct.
Finally, it was submitted by counsel for the
Board that, in any event, decisions of labour rela
tions tribunals protected by a privative clause such
as section 100 of this Act [as am. by S.C. 1974-75-
76, c. 67, s. 29], can only be quashed by a review
ing court when they are found to be "patently
unreasonable".
I do not agree that the privative clause in the
Public Service Staff Relations Act (section 100)
applies here. I say this because this application is
brought pursuant to section 28 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10].
Under that section, this Court is given its review
jurisdiction "Notwithstanding ... the provisions of
any other Act ...". Accordingly, in my view, the
Court has jurisdiction to review and set aside a
decision where inter alla, the tribunal erred in law.
It is my conclusion, for the reasons stated supra
that the Board erred in law in this case by misin
terpreting paragraph (e) of the definition of "per-
son employed in a managerial or confidential
capacity" in section 2 of the Act as giving it
authority to, in effect, examine the quality of
management's decision. Therefore, I do not think
it necessary for the Court to address this problem
which might have arisen had section 100 of the
Act been applicable.
For all the above reasons, I would allow the
section 28 application, set aside the Board's deci
sion of May 4, 1983 and refer the matter back to
the Board with a direction to designate on an
individual basis those persons who are required by
reason of their duties and responsibilities to deal
formally on behalf of the employer with a griev
ance presented in accordance with the grievance
process provided for by the Public Service Staff
Relations Act as persons employed in a manageri
al or confidential capacity.
URIE J.: I agree.
RYAN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.