C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227

SUPREME COURT OF CANADA

C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227

Date: 1979—03—30

Canadian Union of Public Employees Local 963 Appellant;

and

New Brunswick Liquor Corporation Respondent.

1978: December 11; 1979: March 30.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF NEW BRUNSWICK, APPEAL DIVISION

Labour relations — Interpretation — Jurisdiction of Public Service Labour Relations Board — Replacement of striking workers by management — Management personnel doing work of bargaining unit personnel — Public Service Labour Relations Act, R.S.N.B. 1973, c. P—25, ss. 19, 102 (3).

During the course of a lawful strike the appellant union complained that the respondent, the employer of the union members, was replacing striking employees with management personnel contrary to s. 102(3)(a) of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P—25. In fact management personnel had been used to do work normally done by union personnel. The issue centred on s. 102(3) of the Act in particular subs. (a) which provides that "the employer shall not replace the striking employees or fill their position with any other employee." The Public Service Labour Relations Board recognised the ambiguities of s. 102(3) but rejected the employer's argument that the only intent of the section was to ensure that the jobs remained open for the employees after the strike was over. The Board's view was that when the Legislature granted the right to strike to public employees it intended through s. 102(3) to restrict the possibility of picket—line violence by pro­hibiting both strike breaking and picketing; an intention which would be frustrated if the employer's argument were accepted. The Appeal Division allowed an applica­tion by the employer for certiorari and quashed the decision of the Board, holding not only that s. 102(3) did not prevent management from performing the functions of striking employees but also considering the interpre­tation of s. 102(3) as a preliminary or collateral matter wrongly decided by the Board which thereby assumed a jurisdiction that it did not have.

Held: The appeal should be allowed.

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The language of "preliminary or collateral matter" does not assist in the inquiry into the Board's jurisdic­tion. The Board acquires its jurisdiction to consider a complaint of violation of the Act under s. 19(1)(a). The Board was asked by the parties to determine the com­plaints in question and neither of them raised the juris­dictional question, the employer in its reply only contending that it had not in any way violated the provision (s. 102(3)(a)). One cannot therefore suggest that the Board did not have jurisdiction in the narrow sense to enter upon an inquiry. The cases cited by the Appeal Division do not have any application to this case. The privative clause in s. 101 protects the decisions of the Board made within jurisdiction and that section is clear statutory direction that public sector labour matters be promptly and finally settled by the Board. This would dispose of the appeal were it not for the contention that the Board's interpretation was 'patently unreasonable'. Where as here the ambiguity of the section is obvious there is no one interpretation which can be said to be right. The interpretation by the Board cannot be said to be "patently unreasonable". While it may appear so at first glance if one draws too heavily on private sector experience upon a careful reading of the Act and the decisions below, the Board's interpretation is at least as reasonable as the alternative interpretations suggested in the Appeal Division.

Service Employee's International Union v. Nipawin Union Hospital, [1975] 1 S.C.R. 382; Jacmain v. Attorney General of Canada, [1978] 2 S.C.R. 15; Parkhill Bedding and Furniture Ltd. v. International Molders & Foundry Workers Union of North America, Local 174 and Manitoba Labour Board (1961), 26 D.L.R. (2d) 589; Farrell v. Workmen's Compensation Board and Attorney General for British Columbia, [1962] S.C.R. 48 referred to.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], allow­ing an application for certiorari and quashing a decision of the Public Service Labour Relations Board. Appeal allowed, order and decision of the Board restored.

James A. DiPaolo, for the appellant.

David M. Norman, Q.C., for the respondent.

[Page 229]

The judgment of the Court was delivered by

DICKSON J.—On August 22, 1977, during the course of a lawful strike, the Canadian Union of Public Employees, Local 963, laid a complaint with the Public Service Labour Relations Board of New Brunswick, pursuant to the Public Service Labour Relations Act, R.S.N.B. 1973, c. P—25, s. 19. The Union complained that the New Brunswick Liquor Corporation, the employer of their members, was replacing striking employees with management personnel contrary to s. 102(3)(a) of the Act. The Liquor Corporation denied the com­plaint and countered with a complaint against the Union, alleging picketing in violation of s. 102(3)(b) of the Act.

The two complaints were heard at the same time. The Board found the employer's complaint to be well—founded, and an appropriate order was made requiring the Union to cease and desist its then current picketing practices. The employer's complaint against the Union is, therefore, no longer of concern. The Union complaint against the employer is another matter. It has given rise to some considerable difficulty and is the subject of the appeal now before the Court.

The facts of the case are brief and simply stated, by agreement of the parties before the Board:

Agreements as to the Complaint by the Union against Management

(1) Management personnel are and have been doing the work of bargaining unit personnel at the Fred­ericton warehouse since August 19, 1977.

(2) The Manager of Store No. 60 in Fredericton, N.B. opened that store and filled an order for a licensee at some unspecified date since August 19, 1977.

(3) All liquor received and sold in the Province by the New Brunswick Liquor Corporation is processed through bargaining unit personnel in normal cir­cumstances. Managers do sometimes participate in sales.

The centre of the controversy is the interpreta­tion of s. 102(3) of the Public Service Labour Relations Act:

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102(3) Where subsection (1) and subsection (2) are complied with employees may strike and during the continuance of the strike

(a) the employer shall not replace the striking employees or fill their position with any other employee, and

(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.

On one point there can be little doubt—section 102(3)(a) is very badly drafted. It bristles with ambiguities. Mr. Justice Limerick of the New Brunswick Appeal Division, in the course of his reasons in the present litigation, said: "Four possi­ble interpretations immediately come to mind."

The Public Service Labour Relations Board

In argument before the Public Service Labour Relations Board, counsel for the employer contended that the words "with any other employee" referred to the word "replace" as well as the words "fill their positions". He went on to argue that the activities of the employer were not a violation of the Act, because management personnel are not "employees" as defined in the Public Service Labour Relations Act. Seven different classes of people are excluded from the definition of "employee" in s.1 of the Act, including "(g) a person employed in a managerial or confidential capacity." Counsel buttressed his argument by a reference to s. 6 of the Act which reads:

6(1) Nothing in this Act affects the right of the employ­er to determine the organization of the Public Service and to assign duties to and classify positions therein.

6(2) Subject to paragraph 102(3) (a), nothing in this Act affects the right of the employer to engage private contractors or contract work out for any purpose whatsoever.

Whereas the right to contract out in s. 6(2) is expressly restricted by reference to s. 102(3)(a), s.

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6(1), in the employer's view, gave him the right to assign to management personnel the duties other—wise performed by the striking employees. The Board rejected this view. The words "assign duties to", the Board considered, must be read with the words with which they were associated, namely, "determine the organization" and "classify posi­tions". In that context "assign duties to" could only refer to the "sort of head office activity that lays out organizational tables, job descriptions and matters of that sort." Although the Appeal Divi­sion of the Supreme Court of New Brunswick reversed the Board, the Appeal Division equally found "no merit" in this argument of the employ­er. The Appeal Division took the further point that the section empowers the employer to "assign duties to positions therein" and not to person­nel. More specifically, it does not confer upon the employer the right to assign duties to personnel who did not occupy the appropriate classified posi­tions. I agree with the Appeal Division and the Board that the s. 6(1) argument does not assist the employer in the interpretation of s. 102(3)(a).

The major argument of the employer before the Board was that to which I have alluded, quite simply that the phrase "with any other employee" in s. 102(3)(a) covered both earlier branches of that paragraph, i.e. "replace the striking employees" or "fill their position". The only intent of the section, on this view, was to ensure that the jobs remained open for the employees after the strike was over. This interpretation was rejected by the Board. It was the opinion of the Board that when the Legislature saw fit to grant the right to strike to public employees, it intended through the enactment of s. 102(3) to restrict the possibility of picket—line violence by prohibiting strikebreaking, on the one hand, and picketing, on the other. This apparent intention, the Board held, would be frus­trated if the words "with any other employee" were to be interpreted as modifying "replace" as well as "fill their position", "for in that case there would be nothing to stop the Employer from replacing the strikers with anyone not coming

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within the definition of 'employee' in the Public Service Labour Relations Act ... . The result of such an interpretation would be that the strikers would have been deprived of their right to picket, but the employer would not have been deprived of the right to employ strike—breakers." The Board recognized the reach of their decision: "In coming to this conclusion we have been mindful of the fact that the result of our decision will force the Employer to close down some of the operations which are now being carried on and that this may have far reaching effects." The Board ordered the employer to refrain from the use of management personnel do do work normally done by the mem­bers of the bargaining unit in any of the employ­er's places of business.

Before entering upon a discussion of the con­flicting interpretations of s. 102(3)(a) found in the judgments in the Court of Appeal, there is the critical characterization of the interpretation of s. 102(3) as a "preliminary or collateral matter" by that court, in the reasons of Mr. Justice Limerick:

The Board is empowered to inquire into a complaint that the employer has failed to observe a prohibition in the Act and not to determine what is prohibited by the Act or to interpret it except as necessary to determine its jurisdiction.

Two questions are therefore raised by the complaint,

1. Does the Act prohibit management personnel replacing striking employees? and if so

2. Did management personnel replace employees?

It is the latter question which is the subject matter of the complaint and the primary matter for enquiry by the Board. The first question is a condition precedent to and collateral to determining the second.

It is true the Board must determine the first question to vest itself with the jurisdiction to enquire into the second, but it is equally true the Board cannot by wrongly deciding the first question confer a jurisdiction on itself it cannot otherwise acquire. See judgment of Pigeon J. in Roland Jacmain v. The Attorney General of Canada et al., 30th September, 1977 (S.C.C.), (not yet reported). See also Jarvis v. Associated Medical Services Ltd. et al. (1964), 44 D.L.R. (2d) 407 et seq. (S.C.C.), and Parkhill Bedding & Furniture Ltd. v. International Molders & Foundry Workers Union of North America, Local 174 and Manitoba Labour Board (1961) 26 D.L.R. (2d) 589 at 593.

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With respect, I do not think that the language of "preliminary or collateral matter" assists in the inquiry into the Board's jurisdiction. One can, I suppose, in most circumstances subdivide the matter before an administrative tribunal into a series of tasks or questions and, without too much difficulty, characterize one of those questions as a "preliminary or collateral matter". As Wade sug­gests in his Administrative Law (4th ed., 1977) at p. 245, questions of fact will naturally be regarded as "the primary and central questions for deci­sion", whereas the "prescribed statutory ingredi­ents will be more readily found to be collateral". This is precisely what has occurred in this case, the existence of the prohibition described in the statute becoming the "collateral matter", and the facts possibly constituting breach of the prohibition, however interpreted, the "primary matter for enquiry". Underlying this sort of language is, however, another and, in my opinion, a preferable approach to jurisdictional problems, namely, that jurisdiction is typically to be determined at the outset of the inquiry.

The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdic­tional, and therefore subject to broader curial review, that which may be doubtfully so.

Broadly speaking, the Public Service Labour Relations Board acquires its jurisdiction to con­sider a complaint of violation of the Act under s. 19(1) (a):

19(1) The Board shall examine and inquire into any complaint made to it that the employer, or any person acting on its behalf, or that an employee organization, or any person acting on its behalf, or any other person, has failed

(a) to observe any prohibition or to give effect to any provision contained in this Act or the regulations under this Act.

The parties before the Board, a separate employer identified in the Act, and a bargaining

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agent duly certified under the Act, were certainly those entitled to initiate the inquiry according to s.19(1), and to be parties to that inquiry. The general subject—matter of the dispute between the parties unquestionably fell within the confines of the Act, that is, the situation of a strike by employees which is considered lawful by the very provisions of the Act. The Board was asked by the parties to determine whether certain activities of the Union and of the employer during that lawful strike were in violation of a prohibition in the Act, i.e. s. 102(3). The Union took no jurisdictional objection to the ban on picketing contrary to s. 102(3)(b), nor did the employer. The employer, in its reply to the Union complaint of violation of s. 102(3)(a), only contended that the Liquor Corpo­ration "has not in any way violated" that provi­sion. One cannot therefore suggest that the Board did not have "jurisdiction in the narrow sense of authority to enter upon an inquiry": Service Em­ployees' International Union v. Nipawin Union Hospital[2], at p. 389.

On this view of the matters before the Board, it is difficult to conceive how the existence of the prohibition, can be a question "preliminary" to the Board's jurisdiction, in the sense of determining the scope of the Board's capacity to hear and decide the issues before them. Thus, the cases cited by the Court of Appeal in support of their view do not have any application in the case at bar. In Jacmain v. Attorney General of Canada[3], the adjudicator's characterization of the employer's action as a disciplinary dismissal, or a rejection for unsuitability, could be seen as crucial to his ability even to enter upon a consideration of the griev­ance. In Parkhill Bedding and Furniture, supra, the issue was whether the Board could hear the Union's application under the successor rights provisions of the Manitoba Labour Relations Act and, therefore, rule the purchaser of the defunct company's assets bound by the existing agreement. Had the Board not found the purchaser to be a "successor" employer, then the Union would have had to apply anew for certification under the normal certification procedures. In the Jarvis case,

[Page 235]

the interpretation given to the Ontario Labour Relations Act by this Court was that the unfair practice provisions of that Act were only intended to benefit persons who were "employees" as defined by the Act. In this context, the Board's finding that Mrs. Jarvis was not an "employee" left the Board without jurisdiction to inquire into whether she was dismissed contrary to the Act, or to exercise its remedial powers of reinstatement. In each of these cases, at the threshold of the inquiry, the Board or the adjudicator had to determine whether the case before them was one of the kind upon which the empowering statute permitted entering an inquiry.

At this stage, it is important to have in mind the privative clause found in s.101 of the Act, which protects the decisions of the Board made within jurisdiction. Section 101 reads:

101(1) Except as provided in this Act, every order, award, direction, decision, declaration, or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and shall not be. questioned or reviewed in any court.

101(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board, the Arbitration Tribunal or an adjudicator in any of its or his proceedings.

Section 101 constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the Board. Privative clauses of this type are typi­cally found in labour relations legislation. The rationale for protection of a labour board's deci­sions within jurisdiction is straightforward and compelling. The labour board is a specialized tri­bunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence

[Page 236]

that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumu­lated experience in the area.

The usual reasons for judicial restraint upon review of labour board decisions are only reinforced in a case such as the one at bar. Not only has the Legislature confided certain decisions to an administrative board, but to a separate and distinct Public Service Labour Relations Board. That Board is given broad powers—broader than those typically vested in a labour board—to supervise and administer the novel system of collective bargaining created by the Public Service Labour Relations Act. The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Consid­erable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met. Nowhere is the application of those skills more evident than in the supervision of a lawful strike by public service employees under the Act. Although the New Brunswick Act is patterned closely upon the federal Public Service Staff Relations Act, 1966—67 (Can.), c. 72, section 102(3) is not found in the federal legislation nor, in fact, in any other public sector labour legislation in Canada. The interpretation of s. 102(3) would seem to lie logi­cally at the heart of the specialized jurisdiction confided to the Board. In that case, not only would the Board not be required to be "correct" in its interpretation, but one would think that the Board was entitled to err and any such error would be protected from review by the privative clause in s. 101: see Farrell v. Workmen's Compensation Board and Attorney General of British Colum­bia[4].

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In my view, that would be sufficient to dispose of this appeal. The Court of Appeal wrongly was of the opinion that the existence of the prohibition was a preliminary matter and, therefore, the Board's decision was subject to review for its "cor­rectness." I would take the position that the Board decided a matter which was plainly confided to it, for it alone to decide within its jurisdiction. It is contended, however, that the interpretation placed upon s. 102(3)(a) was so patently unreasonable that the Board, although possessing "jurisdiction in the narrow sense of authority to enter upon an inquiry", in the course of that inquiry did "something which takes the exercise of its powers outside the protection of the privative or preclusive clause". In the Nipawin case, in a unanimous judgment of this Court, it was held that examples of such error would include, at p. 389:

... acting in bad faith, basing the decision on extrane­ous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinter­preting the provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.

Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

I do not see how one can properly so character­ize the interpretation of the Board. The ambiguity of s.102(3)(a) is acknowledged and undoubted. There is no one interpretation which can be said to be "right". The judgments of the Court of Appeal are in irreconcilable conflict. Mr. Justice Limerick took the view that "replace" dealt with permanent effects, and "fill their position" with temporary actions by the employer. Chief Justice Hughes found the converse, that "replace" meant "replace temporarily", while "fill their position" meant "fill their position on a permanent basis". Mr. Justice Bugold agreed in the result, but did not indicate which of the two versions he would adopt.

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Mr. Justice Limerick accepted that "with any other employee" only applies to the filling of posi­tions. He also agreed with the Board as to the intent of the Legislature in enacting s. 102(3). First, he referred to s. 6(2), the contracting-out provision. Clearly s. 6(2) means contracting work out to non—employees. If s. 102(3)(a) on both branches were read with "with any other employee", then s. 6(2)'s exception would be meaningless. But contracting out for Mr. Justice Limerick must "infer some degree of fixed length of employment or contract of service, a concept antagonistic to the interpretation that the word 'replace' is intended to mean the temporarily replacing or performing the function during the indefinite period of the strike." This proves to be a crucial assumption for what comes later. Thus, since s. 6(2) must be made applicable to s. 102(3)(a), and it cannot apply to "fill their posi­tion with any other employee", then s. 6(2) must be referable only to "replace" and thus "replace" must refer to "permanent" replacement. Hence:

"Replace" as used in paragraph 102(3)(a) means putting someone in the position or job of the striking employee and excluding him or her permanently from the position. "Fill the position", means to assign the work allocated to a position or job classification to someone temporarily. [Emphasis added.]

and, then:

It is the intention of the legislation to prohibit the employer, 1. from terminating the employment of an employee who is engaged in a legal strike and 2. from using other employees as strike breakers by having them do the work of striking employees.

At the heart of this interpretation lies his view that:

The striking union would have no expectation or hope of affecting or influencing management personnel of the employer involved in the dispute from carrying on the business of the employer.

This appears to be a reasonable interpretation on first reading but, with all due respect, no more or less reasonable than the interpretation which found favour with the Board.

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First, s. 102(3)(a) is not required to "prohibit the employer from terminating the employment of an employee who is engaged in a legal strike". That purpose is fully accomplished by other provi­sions. The very definition of "employee" in s. 1 concludes with "and for the purposes of this defini­tion a person does not cease to be employed in the Public Service by reason only of his ceasing to work as a result of a lawful strike ...", and s. 7(3) in edited form further provides:

Except as otherwise provided in a collective agreement no person (a) shall refuse … to continue to employ any person ... because the person ... was or is exercising any right under this Act.

These provisions, standard in labour legislation, would seem more than sufficient, without s. 102(3)(a), to ensure the maintenance of an employee's status while he is out on legal strike.

Nor do I see why of necessity the contracting out of work need be for any fixed term. The Act contains no definition of contracting out and surely s. 6(2) is intended to maintain a very broad notion of contracting out, considering its wide language. To restrict contracting out to a fixed term would severely cut down the employer's freedom to con—tract out work, and would be a somewhat surpris­ing result. If anything, the contracting out of work would more commonly be on a temporary basis.

Chief Justice Hughes develops a contrary, and far more wide—ranging, version of s. 102(3)(a). In very brief reasons, he first states that the opening words of s. 6(2) are no more than an exception in the instance of a legal strike, and that exception applies generally to both branches of s. 102(3)(a). The Chief Justice also takes the position that meaning must be given to both branches of the paragraph, by giving "some larger meaning" to the second branch. Thus, he concludes:

In my opinion the first branch forbids the employer to "replace the striking employee" that is, replacing him temporarily while the employee is on strike. The second branch forbids the employer to "fill their positions with any other employee," implying that the employer may not treat the striking employee's position as vacant and

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fill it permanently with any other employee. In my view the words "with any other employee" apply to both branches of the prohibition. [Emphasis added.]

As for the problem of "permanently" filling the position, the comments above would again apply. The very definition of "employee" and the unfair practice provision of s. 7(3) supply protection without need of s. 102(3)(a).

The consequence that striking employees could be replaced by any non—employee under the Act, and not just managerial personnel, is dismissed as "a defect in the wording of the clause".

At this point, it might be useful to review the purpose of s. 102(3)(a) within the general context of the New Brunswick Public Service Labour Relations Act. Clearly s. 102(3) is an attempt to maintain the balance of power with a quid pro quo, Its intent, no doubt, is to avoid picket lines outside government buildings, for two reasons: as the Board indicates, to avoid picket line violence, but also to avoid the impact of picket lines for one bargaining group upon the remainder of government operations in a given building. Collective bargaining in the New Brunswick public service takes place in bargaining units formed out of "occupational groups" and thus, there are a large number of bargaining units in any one government operation. In one department, there may be employees in units of "scientific and professional", "technical", "administrative", "administrative support", "operational," or other employees. Also, in any one government building, there will typical­ly be more than one department as well as one bargaining unit of employees. As a consequence, if one of the bargaining agents chooses the concilia­tion—strike route under the Act, some employees may go on strike while their fellow employees in the department and other departments stay on the job.

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By reference to the private sector strike, one can see the importance of s. 102(3). The traditional view of the picket line is that it is simply informa­tive. But its real purpose, as recognized by Mr. Justice Limerick, goes beyond that. Generally, the purpose is to shut down the employer's operation, or at least to make it difficult to maintain the operation. This is done by dissuading various groups and individuals from having anything to do. with the employer. In a heated confrontation, this attempt to discourage extends also to managerial personnel. The employer, by contrast, tries to maintain his operations by using managerial per­sonnel to do the work of the strikers, by hiring strike—breakers, and by maintaining lines of com­munication for incoming supplies and services, and outgoing products. In private sector labour rela­tions, these efforts on both sides are typically legal and an integral part of the economic conflict.

Hence, the enactment of s. 102 (3). On the one hand, the striking employees are barred from pick­eting "in or near any place of business of the employer." On the other hand, the employer is barred either from "replacing" the striking employees, or from "filling their positions with any other employee." Both branches are purely tempo­rary in nature, i.e. "during the continuance of the strike." The latter branch of the clause can be seen as cutting two ways: for the benefit of the striking employees, it bars the employer from temporarily filling the positions of the striking employees, and at the same time protects the "employees" in other bargaining units, who are still at work in the same government department or some other government department, from being required to fill the posi­tions of their striking fellow employees during the period of the strike. The first branch ensures simi­lar protection to the striking employees in a more general manner, in that they cannot be "replaced" by any person and not simply "with any other employee."

If one were to read "with any other employee" as applicable to "replace", then there is the obvi­ous problem that any individual not an employee under the Act in s. 1 could work in maintaining the employer's operation. Aside from individuals completely outside the ambit of the Act, the definition

[Page 242]

of "employee" in s. 1 excludes a number of categories within the potential application of the Act—not just clause (g) managerial and confiden­tial employees, but also (a) Order in Council appointments, (d) part—time employees, and (e) casual or temporary employees employed for less than six months. The result would be that the striking employees would be deprived of their right to picket, while the employer could maintain a high level of services, in the absence of the picket line, with suppliers and customers coming and going at will and the work being performed by anyone other than "employees" under the Act. The right to strike would be sterilized and the supposed choice of settlement techniques, spelled out in ss. 70 to 75, would become illusory.

Nor should one ignore the provisions of s. 50 of the Act which require the "designation" of essen­tial employees by the parties or the Board prior to any legal strike and, indeed, even before the appointment of a conciliation board. Designated employees must continue to work during the cur­rency of a strike, being barred from taking part in any strike by s. 102(1). Accordingly, all of the above refers only to employees who have not been designated under the Act.

I have discussed the possible interpretations of s. 102(3)(a) at some length only because, to some, the Board's interpretation may, at first glance, seem unreasonable if one draws too heavily upon private sector experience. Upon a careful reading of the Act, the Board's decision, and the judg­ments in the Court of Appeal, however, I find it difficult to brand as "patently unreasonable" the interpretation given to s. 102(3)(a) by the Board in this case. At a minimum, the Board's interpreta­tion would seem at least as reasonable as the alternative interpretations suggested in the Court of Appeal. Certainly the Board cannot be said to have so misinterpreted the provision in question as to "embark on an inquiry or answer a question not remitted to it."

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I would allow the appeal, set aside the judgment of the Appeal Division of the Supreme Court of New Brunswick, and restore the Order and Deci­sion of the Public Service Labour Relations Board, with costs in this Court and in the Supreme Court of New Brunswick.

Judgment accordingly.

Solicitors for the appellant: Bryden, DiPaolo & Breen, Fredericton.

Solicitor for the respondent: The Attorney Gen­eral for New Brunswick, Fredericton.