Judgments

Decision Information

Attorney General of Canada v. O'Toole

Collection	Judgments
Date	1978-06-26
Report citation	[1979] 1 F.C. 267
File numbers	A-888-77
Subjects	Administrative Law

Decision Content

A-888-77

Attorney General of Canada (Applicant)

Alan O'Toole (Respondent)

Court of Appeal, Urie and Ryan JJ. and MacKay D.J.—Toronto, April 4; Ottawa, June 26, 1978.

Judicial review — Labour relations — Interpretation of collective agreement — Overtime provisions — Casual employees used 'in high mail volume situation rather than giving overtime opportunity to regular postal worker on day of rest — Adjudicator finding respondent had right to be offered extra work before casuals called in — Whether or not Adjudicator erred in law — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Collective agreement between Treasury Board of Canada and Canadian Union of Postal Workers, signed at Ottawa, December 12, 1975 relating to Postal Operations Group (non-supervisory), Internal Mail Processing and Complementary Postal Services, Articles 15.05, 15.08, 15.10, 15.11, 15.12, 17.01, 39.07.

This is a section 28 application to review and set aside an Adjudicator's decision allowing a grievance submitted by respondent, a member of the Canadian Union of Postal Work ers, under a collective agreement. Respondent, a regular full- time employee, was on his day of rest and not offered the chance to work the extra hours necessitated by a high volume mail situation that day. Casual employees were used. The Adjudicator held that, by virtue of clause 39.07 of the collective agreement, respondent had the right to be offered the extra work before casuals were called. The main issue is whether the Adjudicator, in making her decision, erred in law.

Held, (MacKay D.J. dissenting) the application is dismissed.

Per Urie J.: Article 17.01 provides the key to the interpreta tion since it contemplates employees working on their days of rest and since there is nothing in Article 39.07 which excludes the use of regular employees on their days off rest, the whole context of the agreement indicates that they should be offered the opportunity to work, if available, before work is offered to casuals.

Per Ryan J.: It is a question of fact, not of law, whether an employee on his day of rest was available to work overtime required by a high mail volume. Nothing in the collective agreement compels the conclusion that for the purposes of clause 39.07 an employee on his day of rest could not be considered as being available to perform overtime work. Indeed, a contrary intention is found in clause 17.01 which concerns the doing of work by employees who would be other wise on their day of rest. Its provisions make it difficult to conclude that regular employees cannot be considered as being available to work overtime on their day of rest. Before casuals

may be used under clause 39.07, employees on their day of rest are entitled to be offered overtime occasioned by a high volume of mail if they are, in fact, available for such work when a reasonable effort is made by the employer to contact them.

MacKay D.J. (dissenting): Unless work on a day of rest comes within the term "additional hours and/or overtime" in Article 39.07, there is nothing to require the employer to offer the work referred to in Article 39.07 to employees on their day of rest before calling in casual help. Article 15 indicates the meaning of "overtime" is restricted to hours worked by full- time employees in addition to their regular eight-hour working day. The words "extra hours" and "additional hours" in Article 39.07 include "overtime" as defined by Article 15 and all have reference only to hours that are worked by an employee in addition to his regular eight-hour day. Work done by employees called in to work on their day of rest cannot be described as being either "additional hours" of work or over time because the employee on his day of rest is not otherwise at work on that day. For employees who are on their day of rest, the principle of equal opportunity applies only as among them selves. Since work on a day of rest does not come within the provisions of Article 39.07, the Board erred in law in holding otherwise.

APPLICATION for judicial review. COUNSEL:

E. R. Sojonky for applicant.

P. J. Cavalluzzo for respondent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Golden, Levinson, Toronto, for respondent.

The following are the reasons for judgment rendered in English by

URIE J.: I have had the opportunity of reading the reasons for judgment of both of my brothers Ryan and MacKay and find each of them to be persuasive. It is, therefore, not without hesitation that I have concluded that the section 28 applica tion must be dismissed. It is my opinion that, persuasive as his argument is, to give to the rele vant articles the interpretation suggested by MacKay D.J. would be unnecessarily restrictive. I believe that Article 17.01 provides the key to the interpretation since it contemplates employees working on their days of rest and since there is nothing in Article 39.07 which excludes the use of

regular employees on their days of rest, the whole context of the agreement indicates that they should be offered the opportunity to work, if avail able, before work is offered to casuals. Any other interpretation, in my view, requires resort to a strained interpretation which is not consistent with the agreement when read as a whole or the spirit in which collective agreements in general should be interpreted.

The section 28 application should, therefore, be dismissed.

* * *

The following are the reasons for judgment rendered in English by

RYAN J.: This is an application under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review and set aside a decision which was made by G. Gail Brent, a member of the Public Service Staff Relations Board and Adjudicator, on November 18, 1977. The Adjudicator allowed a grievance submitted by the respondent, Mr. Alan O'Toole, a member of the Canadian Union of Postal Workers (referred to in these reasons as "the Union") under a collective agreement between the Treasury Board of Canada and the Union, signed at Ottawa, December 12, 1975. The agreement related to the Postal Opera tions Group (non-supervisory), Internal Mail Pro cessing and Complementary Postal Services.

The grievance had been presented up to and including the final level in the grievance process under the collective agreement. It involved the interpretation or application in respect of Mr. O'Toole of a provision in the collective agreement. The grievance had not been dealt with to his satisfaction so he referred it to adjudication under section 91 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35.

It is not in dispute that on June 30, 1976 a high mail volume in the Saint John Post Office neces sitated the working of extra hours. Mr. O'Toole, a regular full-time employee, was on his day of rest. He was not offered the chance to work the extra hours. Casual employees were used. The question is whether Mr. O'Toole had the right to be offered

the extra work before casuals were called. The answer depends on an interpretation of clause 39.07 of the collective agreement, which reads:

39.07 High Mail Volume Situation

When high mail volumes necessitate the working of extra hours, the Employer agrees that such work will be offered first to regular employees available to perform additional hours and/or overtime. In instances where the action mentioned above is not sufficient to meet service requirements, casual employees will be used to complement the regular staff.

The Adjudicator held that by virtue of clause 39.07, Mr. O'Toole had the right to be offered the extra work before casuals. The main issue on this section 28 application is whether, in interpreting clause 39.07 as she did, the Adjudicator erred in law.

The adjudication was heard on the basis of an agreed statement of facts. The statement is brief, and it may be as well to set it out in full:

AGREED STATEMENT OF FACTS RE: ADJUDICATION-A.R. O'TOOLE

(166-2-2904)

1. On Wednesday, June 30, 1976, there was a high mail volume situation on all shifts within the meaning of PO (NS) Article 39.07 necessitating the working of extra hours in the Saint-John Post Office.

2. In the application of Article 39.07, the Employer, on June 30 offered overtime or additional hours as follows:

(a) additional hours to regular part-time employees on duty that day;

(b) overtime to regular full-time employees at the conclusion of their shifts;

3. As the action taken in paragraph 2 above was not sufficient to meet service requirements, casual employees were used to complement the regular staff.

4. Mr. O'Toole, the grievor, is employed in the Saint-John Post Office as a full-time P0-4 on the afternoon shift (12:00 to 20:30 hrs.)

5. Wednesday, June 30, 1976, was a day of rest for the grievor and he was not requested to work on that day. No other employee on a day of rest was requested to work on that day.

6. Had the Employer requested the grievor to work on his day of rest he would have done so.

It is also desirable to set out the exact terms of Mr. O'Toole's grievance:

That on Wednesday 30, 1976, Management brought in casuals and did not offer me the opportunity to work my R.D.O. This is a violation of articles 39.02, 39.03, 39.07 of the collective agreement and of the past practice of the last 2 years.

Mr. O'Toole requested:

That: (1) The past practice of offering overtime to regular employees, including work on a Day of Rest, be continued prior to seeking casual help, and

(2) I receive 12 hours of overtime at the rate of double time.

Actually, the principal, if not the sole, submis sion to the Adjudicator on behalf of the employer was that, unless the collective agreement limits the employer to the use of bargaining unit personnel, the employer has the right to use casual help. The submission was that article 39 of the agreement expressly reserves the right of the employer to use casuals in the absence of an express prohibition, and that clause 39.07 does not prohibit the use of casuals before offers of overtime are made to regular employees on their day of rest. Counsel asserted that the words "additional hours and/or overtime" have a special meaning and that this meaning is disclosed in article 15, the article of the agreement which has to do with "OVERTIME". The submission was that "overtime" and "additional hours" must be limited to work for which no more than one-and-one-half times the hourly rate applies. This, it was submitted, would have the effect of excluding work on a day of rest because, by virtue of clause 17.01, a higher scale of pay, namely double time, applies to such work. Accord ing to the reasons for decision of the Adjudicator, "... counsel agreed that the employer would have to offer work to those to whom the regular over time and additional hours apply before resorting to casual time, but asserted that that was the only restriction placed on the employer by the agreement."

The Adjudicator rejected, and in my opinion properly rejected, this submission. She said:

... I believe that, inter alla, article 15' sets out a minimum rate for overtime which would apply whenever there was no higher premium applicable to the extra hours worked. Those extra hours would nonetheless be overtime even though the higher rate applied. In other words, article 15 does not define overtime as being only that work for which 1 1 / 2 times the rate is paid, but sets the rate which will be paid for overtime, all else being equal.

That being the case, I cannot read article 39.07 as limiting the employer's obligation to offering the extra work to those regular employees who could be paid at a rate no greater than 1 1 / 2 times their regular rate.

The matter was argued on the basis that, given the agreed facts, if I accepted the argument on behalf of the grievor and rejected the argument of the employer as to the limitation of article 39.07, then the grievance should be allowed. Since, for the reasons set out above, I do not accept that article 39.07, by reference to "overtime" and "additional hours" limits the employer's obligation to use those people who can be compen sated at a rate no greater than 1 1 / 2 times the regular rate, I must accordingly allow the grievance ... .

Before us it was, however, submitted 6n behalf of the employer that, even if the term "overtime" is broad enough to include double time, nonethe less employees who are on their day of rest, by that very reason, are not "available" for overtime. On the assumption that that submission is now open to the employer, I would reject it.

It would seem to me to be a question of fact, not of law, whether, in a particular case, an employee on his day of rest was available to work overtime required by a high mail volume. I say this because, as I read the collective agreement, nothing in it

' Article 15, clause 15.01 of the collective agreement

provides:

15.01 Rates

(a)

(i) For full-time employees except as provided in 15.02, overtime shall be paid at the rate of time and one-half (1 1 / 2 ) for all hours worked in excess of eight (8) hours per day.

(ii) For part-time employees, overtime shall be paid at the rate of time and one-half (Ph) for all time worked in excess of eight (8) hours per day or forty (40) hours per week.

(b) Employees on a thirty-seven and one-half (37 1 / 2 ) hour week shall be paid overtime at straight-time rates for all hours worked in excess of thirty-seven and one-half (37 1 / 2 ) hours per week, up to and including forty (40) hours per week and at the rate of time and one half (1 1 / 2 ) for all hours worked in excess of forty (40) hours per week.

Clause 15.02 contains special provisions for meal and rest periods.

compels me to conclude that for purposes of clause 39.07 an employee on his day of rest could not be considered as being available to perform overtime work. Indeed, I find contrary indication in clause 17.01 2 . Clause 17.01 holds in contemplation the doing of work by employees who would otherwise be on their day of rest. The clause provides for payment at the rate of double time for such work. Paragraph (c) of the clause speaks of employees who "are required to work on a day of rest", and makes applicable to them the principles of article 15, the "OVERTIME" article. In view of these provisions I find it difficult to conclude that regu lar employees cannot be considered as being avail able to work overtime on their day of rest.

I recognize that it may be difficult for the employer to know, when a high mail volume situa tion develops or is in process of developing, wheth er particular employees who are on their day of rest are in fact available. The duty imposed on the employer by clause 39.07 is, however, as I read the clause, a duty that would be satisfied by doing what is reasonable in the circumstances to deter mine who are available and to make them the required offer. I suggest that it should not be

z Clause 17.01 of the collective agreement provides:

17.01 Work on a Day of Rest

(a)

(i) "Day of rest" in relation to a full-time employee means a day other than a holiday on which that employee is not ordinarily required to perform the duties of his position other than by reason of his being on leave of absence.

(ii) A full-time employee shall be paid at the rate of double (2) time for all hours worked on a day of rest.

(b)

(i) "Day of rest" in relation to a full-time employee means the same as defined in (a)(i) above.

(ii) A full-time employee called in to work on his day of rest will receive a minimum of three (3) hours of work or pay in lieu of work at double (2) time, subject to his willingness to perform any work available in his own class.

difficult for the parties, proceeding under clause 15.17 3 , which falls within the "OVERTIME" article, to agree, after "meaningful consultation", on reasonable and expeditious procedures for resolv ing this and other matters of detail.

I would note, however, before concluding, that counsel for the applicant placed particular reliance on certain other provisions of the collective agree ment falling within article 15, the "OVERTIME" article, as giving a limited scope to the words "available to perform additional hours and/or overtime" as these words are used in clause 39.07.

The opportunity to earn overtime is obviously regarded, because of its premium rates, as being an advantage, and a series of clauses, 15.05 to 15.19, is designed to establish a system for equaliz ing opportunities to perform required overtime work. In each postal installation, the employer must post and maintain an appropriate list of employees in order of seniority. The list must indicate the overtime opportunities that have been offered to each employee included in it. When less than a full complement of employees is required for overtime work, the opportunity to work must first be offered to the employees on the list who have had the fewest opportunities at the time the overtime is required; when, at that time, there are several employees with the same number of oppor tunities, the work must be offered to them in order of seniority; this is provided for in clause 15.07. Clause 15.08 then provides:

15.08 Order of Priority

In the application of clause 15.07, overtime work will be offered as follows:

(a) To employees on duty who normally perform the work on which overtime is required in an office or on a particular shift within an office, or, where applicable, in a division or

3 Clause 15.17 of the collective agreement provides:

15.17 Administration

The administrative details relative to the implementation of these clauses, including the compilation of lists and the manner in which employees are notified of overtime shall be established following meaningful consultation at the local level.

section of an office in descending order of the appropriate list.

(b) To employees scheduled to work their regular shift when the overtime is required immediately prior to that shift.

Clauses 15.10 to 15.12 provide:

15.10 Definition of an Opportunity

An employee on the appropriate list when overtime is worked shall be deemed to have had an opportunity to work overtime in the following instances:

(a) where the employee accepts;

(b) where the employee refuses;

15.11 No loss of Opportunity

An employee on the appropriate list at the time overtime is

worked will not be considered as having had an opportunity to

work overtime in the following instances:

(a) where the employee is on rotation day off;

(b) where an employee has been assigned overtime in an ascending order on a list in accordance with clause 15.12.

15.12 Compulsory Overtime

In the event that the Employer is unable to obtain sufficient employees to work overtime by following the system of equal opportunity in descending order, then the Employer shall, in accordance with the system of equal opportunity, assign the required number of employees in an ascending order from the appropriate list. Where standards of service and plant capacity permit, the Employer will take reasonable measures to ensure that assignments to work overtime in ascending order of the appropriate list will be minimized.

Counsel for the employer submitted that para graph (a) of clause 15.11 indicates that, for pur poses of the collective agreement, an employee on his day of rest (it was agreed that "rotation day off' is a "day of rest") is not considered as being available for overtime; this is so, it was submitted, because, by virtue of the clause, he is not even considered as having had an opportunity to work overtime if overtime is required on that day. Coun sel for the Union, on the other hand, submitted that, if an employee on his day of rest is not considered as being available for overtime, it would hardly have been necessary to make special provision for him in clause 15.11. He submitted, as I understood him, that, when read with clause 15.10, paragraph (a) of clause 15.11 has the effect of giving to an employee on his day of rest the privilege of accepting or of rejecting an offer of

overtime without being considered as having had an opportunity for such overtime. I would find the latter submission very difficult to accept if it were meant to suggest, as I am by no means sure it was, that an employee on his day of rest could accept an offer to work overtime without being considered as having had such an opportunity; it might, however, well make sense if the effect would merely be that an employee on his day off could refuse the offer without losing his prior claim to work overtime on a later occasion. The effect of an acceptance or refusal of an offer to work overtime on a day of rest need not, however, be decided here.

Clause 15.11, whether read alone or in conjunc tion with clause 15.10, does not cause me to alter the interpretation of clause 39.07 that I have already indicated. I would need a more compelling indication of an intent to exclude employees on their day of rest from the scope of clause 39.07.

I have also considered whether clause 15.08 has the effect of giving to the words "available for overtime", as used in clause 39.07, a meaning limited to employees who fall within its paragraphs (a) and (b). I do not, however, read clause 15.08 as so limiting the scope of these words. As the heading of the clause indicates, its provisions appear to me to establish priorities within the general priority system created by the equal oppor tunity principle defined in clause 15.07. Again, however, it is not necessary for purposes of this case to determine the precise impact of clause 15.08 on the equal opportunity principle.

My conclusion is that, before casuals may be used under clause 39.07, employees on their day of rest are entitled to be offered overtime occasioned by a high mail volume if they are, in fact, available for such work when a reasonable effort is made by the employer to contact them.

I would agree with the Adjudicator that, having in mind paragraph 6 of the agreed statement of facts, Mr. O'Toole was available for overtime.

I would dismiss the application.

* * *

The following are the reasons for judgment rendered in English by

MACKAY D.J. (dissenting): This is an applica tion on behalf of the applicant pursuant to section 28 of the Federal Court Act to review and set aside the decision of a member of the Public Service Staff Relations Board allowing the griev ance of the respondent.

An agreed statement of facts filed with the Board was as follows:

AGREED STATEMENT OF FACTS

RE: ADJUDICATION-A.R. O'TOOLE

(166-2-2904)

2. In the application of Article 39.07, the Employer, on June 30 offered overtime or additional hours as follows:

(a) additional hours to regular part-time employees on duty that day;

(b) overtime to regular full-time employees at the conclusion of their shifts;

3. As the action taken in paragraph 2 above was not sufficient to meet service requirements, casual employees were used to complement the regular staff.

4. Mr. O'Toole, the grievor, is employed in the Saint-John Post Office as a full-time P0-4 on the afternoon shift (12:00 to 20:30 hrs.)

5. Wednesday, June 30, 1976, was a day of rest for the grievor and he was not requested to work on that day. No other employee on a day of rest was requested to work on that day.

6. Had the Employer requested the grievor to work on his day of rest he would have done so.

Mr. O'Toole's grievance was:

The relief claimed was:

That: (1) The past practice of offering overtime to regular employees, including work on a Day of Rest, be continued prior to seeking casual help, and

(2) I receive 12 hours of overtime at the rate of double time.

Article 39.07 is as follows:

39.07 High Mail Volume Situation

As the words "additional hours" and "overtime" are not specifically defined in Article 39.07, other articles in the collective agreement must be looked at to determine the meaning to be given to them. These articles are:

14.01 Definitions and Standards

(a) Except as provided in (b), the normal work week for full-time employees shall be forty (40) hours, eight (8) hours per day, five (5) days per week.

(b) Whenever the normal hours of work on the effective date of this Agreement for full-time employees are thirty-seven and one-half (37 1 / 2 ) hours per week, these hours shall contin ue to be the normal hours of work for the duration of this Agreement.

15.01 Rates

(i) For full-time employees except as provided in 15.02, overtime shall be paid at the rate of time and one-half (1 1 / 2 ) for all hours worked in excess of eight (8) hours per day.

(b) Employees on a thirty-seven and one-half (37 1 / 2 ) hour week shall be paid overtime at straight-time rates for all hours worked in excess of thirty-seven and one-half (37y2) hours per week, up to and including forty (40) hours per week and at the rate of time and one-half (1 1 / 2 ) for all hours worked in excess of forty (40) hours per week.

15.02 Meal and Rest Periods

(a) Full-time employees required to work more than two (2) hours' overtime in excess of his daily schedule or shift, shall be reimbursed for a meal allowance to the amount of two dollars and fifty cents ($2.50).

(b) Full-time employees required to work overtime for a period of two (2) hours or more immediately prior to his regular shift will be given a ten (10) minute rest period before commencing his regular shift. If the overtime period is

three (3) hours or more and he becomes entitled to a meal break under 15.02(d), the rest period will not be given.

(c) Full-time employees required to work overtime for a known period of two (2) hours or more immediately follow ing his regular shift will be given a ten (10) minute rest period prior to the termination of his regular shift.

(d) Full-time employees required to work overtime for a period of three (3) hours or more, immediately prior to, or immediately after his regularly scheduled shift will be pro vided a meal period of one-half ('h) hour to be paid for at the rate of time and one-half (Ph).

(e) Where a full-time employee works overtime prior to and following his regular shift, and his total on-duty time is eleven (11) hours or more, he will be provided a meal period of one-half ('h) hour at time and one-half (1 1 / 2 ) provided he has not received such meal period under the provisions of 15.02(d).

15.05 Posting of Lists

For the purpose of equalizing opportunity to perform required overtime work, the Employer shall post and maintain appropriate lists of employees in order of seniority, applicable to each postal installation. Such lists shall indicate the overtime opportunities offered each employee.

15.07 Definition of Equal Opportunity

Equal opportunity for overtime work shall mean that once an appropriate list is established, overtime assignments will be offered to persons on the list who have had a fewer number of overtime opportunities until sufficient employees have been obtained to fulfil the requirements. When there is more than one employee who has had a fewer number of overtime oppor tunities (as mentioned above), overtime assignments will be offered to such employees in the descending order of the appropriate list. Equal opportunity entails no obligation on the part of the Employer for equal distribution of overtime hours worked.

15.08 Order of Priority

In the application of clause 15.07, overtime work will be

offered as follows:

(a) To employees on duty who normally perform the work on which overtime is required in an office or on a particular shift within an office, or, where applicable, in a division or section of an office in descending order of the appropriate list.

(b) To employees scheduled to work their regular shift when the overtime is required immediately prior to that shift.

15.11 No Loss of Opportunity

An employee on the appropriate list at the time the overtime is worked will not be considered as having had an opportunity to work overtime in the following instances:

(a) where the employee is on rotation day off;

(b) where an employee has been assigned overtime in an ascending order on a list in accordance with clause 15.12.

Article 17, under the heading "Work on a Day of Rest, Call Back" is as follows:

17.01 Work on a Day of Rest

(a)

(ii) A full-time employee shall be paid at the rate of double (2) time for all hours worked on a day of rest.

(b)

(i) "Day of rest" in relation to a full-time employee means the same as defined in (a)(i) above.

17.02 Call-Back

(a) A full-time employee called back to work after having completed his scheduled hours of work for the day and having left the Employer's premises will receive a minimum of three (3) hours of work or pay in lieu of work at time and one-half (1 1 / 2 ), subject to his willingness to perform any work available in his class.

(b) Insofar as possible, work assignments covered by this clause shall be in accordance with the principle of equal opportunity as provided in Article 15.

Unless work on a day of rest comes within the term "additional hours and/or overtime" in Article 39.07, there is, on the facts of this case, nothing in the agreement to require the employer to offer the work referred to in Article 39.07 to employees on their day of rest before calling in casual help.

Article 15 makes it clear that the meaning of "overtime" is restricted to hours worked by full- time employees in addition to their regular work ing day of eight hours and which additional hours are worked either immediately before the com mencement of their regular hours or commencing immediately after completion of their regular eight hours of work.

The words "extra hours" and "additional hours" in Article 39.07 would include "overtime" as defined by Article 15; they would also apply to cases where the additional hours that were worked did not come within the definition of overtime. For example, in paragraph 2 of the agreed statement of facts, reference is made to part time employees, on duty that day, being offered "additional" hours of work.

Article 17.02 provides for the call back of full time employees who have completed their shift and left the employer's premises; such work is addition al work but not overtime.

The words "extra hours", "additional hours" and "overtime" all have reference only to hours that are worked by an employee in addition to his regular eight hour day. This is necessarily so because under the provisions of the agreement as to equal opportunity and priority, if overtime was required on consecutive days and more employees were available and desired to work overtime than were required for the overtime work on the first day, the employees who worked overtime on the first day would not be eligible to work overtime on the next day.

Under the provisions of Article 17.01, employees may be called in to work on their day of rest. Such work is not and cannot be described as being either "additional hours" of work or "overtime" because the employee on his day of rest is not otherwise at work on that day.

The reference in Article 17.01(c) to Article 15 does not mean that employees who are on their day of rest are to have equal opportunity with employees who are at work that day to do overtime work. It simply makes applicable to employees who are on their day of rest the principle of equal opportunity as among themselves to work on their day of rest.

Having reached the conclusion that work on a day of rest does not come within the provisions of

Article 39.07, I am of the opinion that the Board erred in law in holding otherwise.

I would allow the application and set aside the decision of the Board, and refer the matter back to the- Board to dispose of the matter in accordance with these reasons.

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