Canadian Union of Operating Engineers & General Workers v. Ontario Hydro, 1980 CanLII 783

[1980] OLRB Rep. June 882

2472-79-R Canadian Union of Operating Engineers & General Workers, Applicant, v. Ontario Hydro, Respondent, v. Canadian Union of Public Employees, Local 1000, Ontario Hydro Employees' Union, Intervener.

BEFORE: George W. Adams, Chairman and Board Members W. Gibson and M. J. Fenwick.

APPEARANCES: E. Rovet and M. Powell for the applicant; F. G. Hamilton, R. J. Belt on, F. B. Cruickshanks and G. D. Simard for the respondent; and C. M. Mitchell, W. A. Vincer, D. W. Burrows and N. T MacIntosh for the intervener.

DECISION OF THE BOARD; June 23, 1980

1This is an application for certification where the applicant has requested that a pre-hearing representation vote be taken among employees in such voting constituency as the Board determines. The proposed bargaining unit was described in the applicant's request in these terms:

"All employees of the Respondent employed at Pickering G.S., Bruce Heavy Water Plant, Bruce Services, Douglas Point G.S., Nuclear Power Demonstration G.S. and the Nuclear Training Centre. For greater parti-cularity the Unit applied for is described in part "G" of a Collective Agreement between the Respondent and C.U.P.E., Local 1000 that is for the term April 1, 1979 to March31, 1980. The exclusions contained there-in apply to the instant unit for which this application is being made."

The application was filed with the Board on March 31, 1980 and by decision dated April 3, 1980 the Board appointed a labour relations officer:

a) to confer with the parties as to the description and composition of an appropriate bargaining unit;

b) to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 8 of The Labour Relations Act;

c) to confer with the parties as to the description and composition of the voting constituency, the list of employees as of the terminal date in this matter to be used for the purposes of any vote that may be directed by the Board, the form of the ballot, the date and hour for the taking of the vote, and the number and locations of the polling places;

d) upon consent of the parties to investigate any other matter relating to the application; and

e) to report to the Board.

2Section 8 of The Labour Relations Act, under which pre-hearing votes are con-ducted, provides:

"(1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.

(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the re-cords of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection 2 shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.

(4) After a representation vote has been taken under subsection 2, the Board shall determine the unit of employees that is appropriate for col-lective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under sub-section 2 has the same effect as a representation vote taken under sub-section 2 of section 7."

It is apparent from subsection 2 that the Board is exercising a discretion when it entertains a request for a pre-hearing vote in contrast to the Board's responsibility under section 7. Section 7 provides:

"(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause j of subsection 2 of section 92.

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bar-gaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit."

3The pre-hearing vote meeting with the labour relations officer was held in May of 1980. The submissions of the parties at this meeting caused the Board to schedule a hearing at which the applicant was asked to show cause why the Board should grant the request for a pre-hearing vote. This hearing was held on May 30, 1980 and gives rise to the instant decision. The matters at issue are obviously important to the parties, but they also involved important ques-tions for this Board about the purpose of the pre-hearing vote procedure provided by the Act and about the significance of earlier decisions involving the same employer (Ontario Hydro) and, in some instances, the same parties.

4The applicant, by its application dated March 31, 1980, proposed a bargaining unit which it believed to be appropriate for collective bargaining and which it believed to embrace some 3800 employees. One of the complicating features of this case, indeed the principal problem, arises from the fact that all of the employees of Ontario Hydro the applicant might wish to represent are already part of a collective bargaining relationship between Hydro and the Canadian Union of Public Employees, Ontario Hydro Employees' Union, Local 1000 (hereinafter referred to as "CUPE Local 1000") involving, according to the employer's reply, approximately 16,000 employees. Thus, the instant application represents a timely attempt to carve a group of employees out of this larger collective bargaining relationship, the collective agreement between CUPE and Hydro having expired on March 31, 1980.

5The applicant advised the Board that it is applying for certification as bargaining agent for all employees of the respondent who work at nuclear energy stations or those facili-ties directly related to nuclear energy production. Unfortunately, the identification of the spe-cific individuals who would come within this general characterization of the applicant's pro-posed unit is not a simple matter when one has regard to Ontario Hydro's organization and existing collective bargaining relationship. Indeed, as the applicant has responded to ques-tions and objections of both the respondent and the intervener, it has been encouraged to amend its proposed bargaining unit description at least three times (including the hearing before the Board).

6Briefly, the position of Hydro is that the unit applied for by the applicant is ina-ppropriate for collective bargaining and that the appropriate unit is the existing province-wide unit represented by CUPE Local 1000. CUPE Local 1000 agrees with the position of Hydro as to the inappropriateness of the province-wide unit. In this respect, the respondent and intervener take the position that on a displacement application the only voting constituen-cy under section 8 can be that defined in the most recent collective agreement between the employer and incumbent trade union and in the instant case the applicant lacks the threshold membership support to trigger any entitlement for the Board to consider its request. Alterna-tively, the respondent and intervener take the position that the bargaining unit proposed by the applicant, a) is so fraught with difficulties when one attempts to ascertain the employees entitled to vote; b) is so unlikely to be found appropriate by the Board; and c) would result in such a complex and disruptive representation vote, that the Board ought to exercise its dis-cretion against directing a vote and dismiss the application. On the other hand, the applicant points to a number of earlier decisions of the Board involving Hydro which, it submits, indi-cate that something less than a province-wide unit might be found by the Board to be appro-priate for collective bargaining. The applicant also points to the substantial membership sup-port filed with the Board and argues that the mere size and complicated nature of a representa-tion vote ought not to frustrate the interest of these employees in having this Board determine the appropriateness of the unit requested and ascertaining their wishes to be represented by the applicant.

7In deciding whether a pre-hearing vote ought to be directed, it is necessary to re-view: a) whether the applicant is obligated to seek a province-wide voting constituency; b) if directed, the difficulties associated with the administration and subsequent reliability of a pre-hearing representation vote in relation to the voting constituency proposed by the applicant; and c) the likelihood that the bargaining unit proposed by the applicant would be found to be appropriate. All of these issues, however, are best discussed against a background of under-standing with respect to Hydro organizations; its existing collective bargaining relationship with the intervener; and some of the earlier cases before this Board in which it has been in-volved. Fortunately, one of the Board's earlier decisions involving Hydro contains a summary of Hydro's organizations that requires a minimal amount of updating.

Hydro's Organization

8In Hydro-Electric Power Commission of Ontario, [1973] OLRB Rep. May 231, at at paragraphs 9 and 10, Hydro's operations were described in the following way:

"Hydro has divided its operations into seven regions. More particu-larly, there are the Niagara and Western Regions with their head offices at Hamilton, the Georgian Bay Region with its head office at Belleville, the North Eastern Region and the North Western Region with their head offices at Thunder Bay, and the Central Region with its head office at Toronto. The number of employees in each region varies from some 400 in the Georgian Bay Region to 1,500 in the Eastern Region for a total of about 7,000 employees in the seven regions. An additional 5,000 persons are employed at the head office complex in Toronto and vicinity for an approximate total of 12,000 employees.

Each region is divided into areas and there are sixty-five areas across the province in which there are a total of sixty-eight hydraulic generating stations, six fossil fired thermal generating stations, three nuclear fired thermal generating stations, some twelve gas turbine thermal generating units, one hundred and eighty transformer stations and seven hundred and twenty distributing stations. The Operations Head Office Division exercises functional control over all of the above facilities, although ad-ministrative control to some degree is decentralized."

9The Board was advised that today 6,000 employees are employed at the head office and approximately 16,000 employees are employed within the CUPE Local 1000 bargaining unit. The total staff of Ontario Hydro is in the order of 27,000 employees. Maps were filed with the Board to display the precise boundaries of the seven regions in order to convey the breadth of Hydro's operations and, one would assume, of its existing collective bargaining relationship.

10Some background was also provided to the Board in regard to Hydro's use of nuclear energy and the sites devoted to this power source. The above-cited decision, at para-graph 8, reports that in the 1960's Hydro entered into a program to produced electrical power using nuclear energy as a heating device. Today this program consists of a number of nuclear power plants. One is near Rolphton. Another is the nuclear generating station at Douglas Point. This station is one component of the Bruce Nuclear Power Development Complex located near Kincardine on Lake Huron. There is also the Bruce Heavy Water Plant at the Bruce complex and another nuclear generating station at Pickering just east of Toronto. A second major power component in the Bruce Nuclear Power Development Complex was completed in the 70's (the Bruce Generating Station) and three new facilities are currently under construction — one at the Bruce site, known as Bruce "B", one at Pickering, known as Pickering "B", and the other at Darlington. Photographs of the Pickering, Bruce, and Rolph-ton sites were introduced into evidence together with site plans for the Bruce and Pickering complexes. All employees who might be subject to radiation hazards in nuclear operations go through an extensive training program before being deployed to any of the nuclear generating stations. Training centre facilities are located at Rolphton, Pickering, Bruce and Mississauga. In addition, there are a substantial number of employees involved in Hydro's nuclear energy program who are employed at its Head Office in Toronto.

The Existing Collective Bargaining Relationship

11Hydro's collective bargaining relationship was described at paragraph 12 of the Hydro decision, supra, and is worth reviewing in the instant case.

"Turning now to the development of Hydro's collective bargaining relationship, in the 1930's Hydro accorded voluntary recognition to an employees' association which represented all of Hydro's employees. CUPE Local 1000 subsequently in the 1950's superseded and acquired the bargaining rights of the employees' association and since that time CUPE Local 1000 and Hydro have been parties to a series of collective agreements. In the early 1950's, however, the International Union of Operating Engineers (hereinafter referred to as I.U.O.E.) made success-ful applications for certification to this Board for employees at the Head Office Heating and Air Conditioning Plant, the Hearn Generating Sta-tion at Toronto and the Keith Generating Station at Windsor. The C.U.O.E. was successful in displacing the I.U.O.E. at these facilities in 1959. CUPE Local 1000, however, acquired and has held the bargaining rights for all of the employees of Hydro employed in its other new facili-ties built during the 1950's and 1960's and into the 1970's including the Bruce Heavy Water Plant, by reason of the province wide scope of the recognition clause of its collective agreements with Hydro. We would mention here that in 1968 the C. U .0. E. made an unsuccessful application to the Board for certification as bargaining agent for the employees of Hydro at the Lakeview Generating Station at Mississauga. At present, nearly 12,000 employees are covered by the current collective agreement between Hydro and CUPE Local 1000 and some 450 employees are covered by collective agreements between Hydro and the C.U.O.E."

12The collective agreement between Hydro and CUPE Local 1000 expiring March 31, 1980 was introduced into evidence. The recognition clause, Article I, is material to this appli-cation. It provides:

"1.1 Ontario Hydro recognizes the Union as the sole bargaining agent for all regular and temporary employees*. including Technicians of the Con-struction Field Forces but excluding:

(a) Employees now represented by other bargaining agents,

(b) Employees assigned to full-time security work,

(c) Employees, other than Technicians, in the Construction Field Forces of the Generation Projects Division and the Lines and Sta-tions Construction Department of the Transmission Systems Divi-sion who were placed in the Pension and Insurance Plan after April 1, 1953.

1.2 *"Employees" are employees pursuant to the Labour Relations Act for Ontario R.S.O., 1970 Chapter 232, as amended, with the exception of those persons who are excluded by the following criteria:

CRITERIA TO DETERMINE JURISDICTIONAL STATUS

A. Automatic Exclusions

1. All positions rated MP4 and above in accordance with "PLAN A RATING SCALE", dated June 1968.

2. All positions excluded by Article 1 — Recognition.

3. All positions in which the incumbent is engaged in, has access to or handles confidential security matters.

4. All employees to whom an excluded employee reports, wheth-er organizationally or functionally.

5. All positions which carry 3rd Degree (or higher) Staff Re-sponsibility in accordance with "PLAN A RATING SCALE",

dated June 1968.

6. All positions which carry 5th or 6th Degree External Con-tacts in accordance with "PLAN A RATING SCALE", dated June 1968.

All professional engineers employed in a professional capacity including employees who are not professional engineers but are engaged in the same job classification.

B. Managerial Functions

1. Requirement to make effective recommendations* regarding any of the following:

1.1 Organizational objectives such as manpower needs, work methods, organizational restructuring, Ontario Hydro Policy, budgets and investments.

1.2 Hiring, suspension, discharge, promotion, demotion, discipline.

1.3 A change in the status of an individual's employment in terms of wage rates, working hours or transfer to other positions or locations.

2. The job requires assessing and! or replying to employee griev-ances in accordance with Article 2.

3. The job requires accountability to higher authority for plan-ning, scheduling and for directing the work performance of others.

4. The job involves training, instructing and evaluating the deve-lopment of managerial employees in management skills.

5. The job carries the authority to interpret and administer the Collective Agreement and Management Guides.

6. The job contains responsibility for the preparation or custody of personal confidential personnel information resulting from investigations into the conduct, character or capability of employees.

• Effective recommendation means more than providing guid-ance and advice but does not necessarily include final authori-zation. It does, however, include responsibility and accounta-bility for making such recommendations.

C. Confidential Matters — Positions in which the normal job responsi-bility involves the custody or use of confidential information per-taining to Labour Relations.

1. Participation in the preparation, negotiation or communica-tion of Ontario Hydro's bargaining agenda.

2. The development and communication of information of a con-fidential nature on Ontario Hydro's behalf required by Ont-ario Hydro in the conduct of negotiations.

3. Participation in Management meetings where decisions affect-ing Labour Relations are made.

4. Representing Ontario Hydro in dealing with Labour Relations matters.

5. Responsibility for the preparation or custody of confidential information required by Ontario Hydro and pertaining to labour relations as above or for grievances and arbitrations.

Note:Any one factor (except for those under B 3.) under Managerial Functions or Confidential Matters will make a job eligible for exclusion.

1.3 When an employee is removed from normal duties to act in a vacated position or relieve for an incumbent or perform a temporary assignment, the following shall apply:

(a) When the length of time involved is known to be three months or less, the employee will retain his! her present jurisdictional status.

(b) When it is expected that the length of time will be longer than three months, the employee will be excluded or included at the commen-cement of his/ her new responsibilities. However, in the event the period is actually less than three months: a) in exclusion cases, the Union will be reimbursed the dues which would have been paid; b) in inclusion cases, the Union will reimburse the employee the dues which have been paid.

(c) When the length of time is unknown, the employee will retain his/ her present jurisdictional status up to the three month period. If the period extends beyond three months, the employee will then be either included or excluded.

1.4 In the event of a dispute as to whether an employee is eligible, the criteria identified in Article 1.2 above shall apply and, in the event of further dis-agreement, the matter shall be determined by a single external arbitrator, selected from a panel of three arbitrators acceptable to both the Union and Ontario Hydro.

1.5 All existing union and nonunion jobs as of September 24, 1972, shall retain their existing jurisdictional status.

1.6 After April 26, 1978, if an arbitrator rules that the factors which originally substantiated exclusion are no longer operative each sub job may be tested against the criteria set out in Article 1.2 above."

It is important to note that the exclusions contained in this article principally relate to job functions and not to job classifications with the result that the persons affected may not con-stitute a readily identifiable group. The respondent argues that this uncertainty will likely mean that the status to vote of a great number of individuals may be challenged on any pre-hearing vote. The respondent also questions whether the Board will accept the "grandfather-ing" of "union and nonunion" jobs provided for in clause 1.5 of Article 1.

13The agreement is subdivided into seven parts — parts "A" through "G". These parts are headed:

Part A — General Items

Part B — Maintenance Trade Items

Part C — Operators' Items

Part D — Weekly — Salaried Items

Part E — Construction Field Forces

Part F — Thermal Generating Stations

Part G — Nuclear Generating Stations Items

The maintenance trades would appear to work on transmission lines through-out the Province regardless of the kind of generating system. Accordingly, these people do work on the nuclear system sites described above in that transmission of electricity commences on site. The elec-trical operators are engaged in the control and distribution of power over the entire system. Obviously, Hydro's responsibilities call for a high degree of centralized control and co-ordination in order to dovetail its generating capacity with the overall needs of users. Weekly salaried employees are located at every Hydro location including the sites in question. The construction field forces include construction technicians who are employed in various tech-nical capacities and who are located across the system where construction is being undertaken. Many, therefore, are employed on the sites in question. Parts "F" and "G" would appear to be confined to hourly rated employees employed at the two kinds of generating stations (i.e. in effect the production people). From reviewing all of these parts, it becomes apparent that the agreement does not represent the organizational divisions of Ontario Hydro and none of the various parts of the agreement embrace all the employees employed at any particular location in Hydro's operations.

The Earlier Decisions

14In Hydro-Electric Power Commission of Ontario [1968] OLRB Rep. July 376 the applicant requested a pre-hearing vote of the employees of the respondent in the following voting constituency:

"All employees of the respondent at its Lakeview generating station at Mississauga, save and except shift supervisors, foremen, persons above the ranks of shift supervisor and foreman, office staff and technicians."

The intervener in that case was, again, CUPE Local 1000. It objected to the taking of a pre-hearing vote and requested an opportunity to make representations to the Board. The Board rejected both submissions and directed the taking of the vote. In so doing the Board wrote:

"One of the purposes of a pre-hearing representation vote is to permit the Board to ascertain the wishes of the employees without delay. If there are unresolved issues, these may be dealt with after the wishes of the em-ployees have been recorded. The ballot box may then be sealed so that the other issues can be resolved on their own merits.

Where, as in this case, the voting constituency is identifiable with rea-sonable accuracy and there is little likelihood that a second represen-tation vote will be necessitated, no one is prejudiced if the Board directs that a representation vote be taken and the ballot box be sealed. How-ever, if the Board directed a hearing in order to resolve the issues raised by the other parties, prior to recording to support enjoyed by the appli-cant in a representation vote, and the Board subsequently determined that a representation vote should be held, the applicant's position might be adversely affected by the delay. For these reasons, the Board is of opi-nion that the pre-hearing representation vote requested by the applicant should be held in this case and that the ballot box be sealed pending the determination by the Board with respect to the objections raised by the intervener.

15When the parties were unable to agree upon the description of the appropriate bar-gaining unit subsequent to the taking of the vote, this issue was dealt with by the Board in [1969] OLRB Rep. May 169. At the time the application was made, the employees at the Lakeview Generating Station were bargained for as part of an Ontario-wide bargaining unit represented by the intervener. The applicant, however, represented employees in a bargaining unit at the respondent's Hearn Generating Station in Metropolitan Toronto and in a bargain-ing unit at the respondent's Keith Generating Station in Windsor. Many of the employees employed at the Lakeview Station were trained at the Hearn station and were represented by the applicant during that period. In order to staff the Lakeview station, the respondent had transferred employees from bargaining units represented by the applicant and from other locations which were represented by the intervener. The Board reviewed all the evidence and concluded that, in and of itself, the carving out of one generating station was not inappro-priate. The respondent had bargained on this basis with the applicant at other stations and, while having a concern for undue bargaining unit fragmentation, it was not the Board's usual practice to find that an appropriate bargaining unit would be all employees in Ontario. View-ing the conflicting factors as a whole, that particular panel of the Board concluded tht no over-riding consideration was present and that the Board's decision on the unit could take into account the wishes of the employees concerned. The Board therefore decided that it should ascertain the wishes of the employees as indicated in the pre-hearing vote in order to assist it, pursuant to section 6(1) of the Act, to make a determination as to whether the bargaining unit proposed by the applicant was a unit which would be appropriate for collective bargaining. The Board's discussions of the bargaining unit issue is contained in paragraphs 5, 6 and 7.

"Having regard to all the evidence and the representations of the par-ties, the Board finds that there are many factors which would support the applicant's position that the Lakeview employees form an appropriate bargaining unit which the applicant should be permitted to carve out of the unit presently represented by the intervener. The main factor in sup-port of the applicant's position is that the applicant currently bargains on behalf of all employees of the respondent's Hearn and Keith Generating Stations, with certain exceptions not here relevant. The applicant ob-tained these bargaining rights when it was successful in displacing Local 796 and Local 844, respectively, of the International Union of Operating Engineers as bargaining agent for the employees of the Hearn and Keith Generating Stations. In 1952, the locals of the International Union of Operating Engineers were certified as bargaining agents for those gener-ating stations following a representation vote between the respective local and the employee association of the Hydro Electric Power Commission of Ontario after the Board found certain employees at the generating sta-tions to be an appropriate bargaining unit. The employee association of the Hydro-Electric Power Commission of Ontario was the predecessor of the intervener in this case and it represented an Ontario-wide bargaining unit which included employees at the Hearn and Keith Generating Sta-tions at that time. The Board therefore, as early as 1952, established a practice of finding that the employees in a single generating station com-prised an appropriate bargaining unit which could be severed from an Ontario-wide bargaining unit.

There are other factors that would militate against such a finding which would result in the partial fragmentation of the bargaining unit currently represented by the intervener. While the Board usually at-tempts to avoid the fragmentation of subsisting bargaining units, it is to be noted that it is not the Board's usual practice to find that an appro-priate bargaining unit would be all employees in Ontario. Most certainly, any arguments against fragmentation of bargaining units are seriously weakened, if not destroyed, by the fact that the applicant currently bar-gains on behalf of employees at two generating stations which had been severed from an Ontario-wide bargaining unit. While these generating stations are much smaller than the Lakeview Generating Station, this fact does not destroy the principle of fragmentation which has been established. Although employees may be transferred on a permanent basis from time to time to staff new generating stations, it should be noted that there was not evidence of a day-to-day interchange of em-ployees between generating stations.

Among other factors relied on by the respondent was the fact that the respondent is a public utility which provides an essential service and the Board was requested to give special consideration to this fact. As stated above, the fact that the respondent already bargains with more than one trade union with respect to employees who produce electrical power has not created insurmountable problems for the respondent. Since there is no evidence that the public interest has been unduly threatened or im-paired by the fact that the respondent has dealt with more than one trade union, we are of opinion that the wishes of the employees as to the choice of the trade union to represent them in an appropriate bargaining unit should be recognized."

Reconsideration was refused by decision dated June 11, 1969 and reported at [1969] OLRB Rep. June 434. Subsequently, the vote was counted and the employees did not support the applicant. Accordingly, the application was dismissed.

16In 1973 the Oil, Chemical and Atomic Workers, International Union (OCAW) applied as bargaining agent for all employees of the respondent at the Bruce Heavy Water Plant who were then represented by CUPE Local 1000 (See Hydro-Electric Power Commis-sion of Ontario, [1973] OLRB Rep. May 231. It was the position of Hydro that the unit ap-plied for was inappropriate and that the appropriate unit was the existing province-wide unit represented by CUPE Local 1000. CUPE Local 1000 agreed with this position. But, in the alternative, submitted that if a smaller unit was appropriate (which it did not admit), the unit would be the entire Bruce Nuclear Generating Complex at Douglas Point on Lake Huron. Such a unit was said to include not only the Heavy Water Plant, but also the adjacent Douglas Point Generating Station, the Auxiliary Steam Plant and the Bruce Generating Station which was then under construction. The decision contains an excellent summary of Hydro's facili-ties, some of which was reproduced above, and their operational inter-relationships. High-lights of the Board's findings include:

— management of each facility was responsible for its own budget although budget formulation was highly centralized

— in structure and organization the Hydro, throughout Ontario, was highly integrated, although a fairly wide latitude was accorded to the management of each facility;

— there existed a marked degree of functional coherence and inter-dependence within the Bruce complex itself;

— all of the chemical operators (a particular job classification under review) needed training to meet the standards required for a nuclear plant;

— transfers between the various nuclear generating stations and training centres were common;

• system-wide transfers of personnel were also common;

— there was a basic similarity in jobs throughout the nuclear system, but many job classifications and job functions were also the same as the classifications and jobs performed elsewhere in the Hydro system;

— there were basic common wage classifications, working conditions and benefits applicable to most employees represented by CUPE Local 1000.

17In deciding that the earlier decisions to certify the I.U.O.E. for separate units cover-ing the Hearn and Keith Generating Stations were of little weight, the Board wrote:

"While speaking of bargaining rights, the fact that the Board saw fit in the early 1950's to certify the I.U.O.E. for separate units covering the Hearn and Keith Generating Stations which were carved out of the pro-vince-wide unit then represented by the Hydro employees' association has little precedent value in the instant application. The reason for this is that at the time the Board certified the I.U.O.E. for the Hearn and Keith Generating Station, Hydro was just embarking on its post-war expan-sion program and the Hydro system throughout the province as we know it to-day did not exist at that time. Accordingly, the factors which we are called upon to consider in the instant application are quite different from those which the Board had to take into account in the early 1950's when the Board found the two named generating stations to be appropriate units. In fact, we do not know what submissions were advanced with re-spect to the two earlier applications as no reasons for its decision were given by the Board in either application."

18Finally, the Board explained that because province-wide bargaining had resulted in a fairly stable relationship which had, by and large, benefited the interests of employees, the applicant had to provide "strong and compelling" reasons for carving out the unit it was seek-ing. And in this respect, the applicant failed. However, the applicant to-day places reliance on paragraph 29 of that decision, where the Board cautioned that it was not holding that a pro-vince-wide unit was the only appropriate unit. Specifically, the Board observed:

"We would state, however, that our decision should not be interpreted to mean that another unit either within the existing Hydro system pre-sently represented by CUPE Local 1000 or even within the Bruce Nuclear Power Development Complex at Douglas Point or the Complex itself would not be an appropriate unit for collective bargaining. There may be factors or circumstances which would persuade the Board that some other unit or units of production employees of Hydro are appropriate for collective bargaining. Our decision relates solely to the unit sought by the applicant in the instant application.”

19The next decision is Hydro Electric Power Commission of Ontario, [1973] OLRB Rep. Sept. 490 where the Canadian Union of Operating Engineers applied to be certified as bargaining agent for all employees of the respondent at the Nanticoke Generating Station, Nanticoke, save and except supervisors, foremen, persons above the rank of shift supervisors and foremen, office staff and technicians. While the applicant's request for a pre-hearing vote was granted, its application was ultimately dismissed. In coming to this latter conclusion the Board reasoned:

"Having considered the evidence in this matter in light of the decisions above referred to, we find that in the interest of greater labour mobility and the preservation of the seniority rights of employees who are trans-ferred from one site to another, that the larger bargaining unit repre-sented by the intervener ought not to be disturbed. Finally, the history of collective bargaining between the respondent and the intervener which covers in excess of twenty years wherein the intervener has represented employees of the respondent on a province-wide basis is a further reason for refusing to fragment the established bargaining unit. The fact that the applicant or its predecessor has represented the employees at the Keith and Hearn Generating Stations since 1951 does not detract from our findings in this matter. While there has been tremendous growth in the unit represented by the intervener, the unit represented by the applicant has not experienced similar growth. In making this observation we are not criticizing the respective quality of representations provided by either trade union. However, in the absence of evidence which would indicate that the intervener has failed to provide equal representation to em-ployees at the various locations, we are not prepared to fragment the unit represented by it at this time.

20The same applicant sought to be certified as the bargaining agent for all stationary engineers and persons primarily engaged as their helpers employed by the respondent at its auxiliary steam plant at Douglas Point, save and except the chief engineer (Hydro Electric Commission of Ontario, [1973] OLRB Rep. Nov. 563). Again, the Board granted the request for a pre-hearing vote, but ultimately dismissed the application. In deciding to dismiss the matter, the Board found there was a close interrelationship of facilities at the Bruce Heavy Water Plant Complex and the Auxiliary Steam Plant. Thus, the Auxiliary Steam Plant was not to be a separate and viable facility but rather was functionally dependent on services from elsewhere within the complex.

21The last decision involves an attempt by CUPE Local 1000 to displace the applicant at the J. Clark Keith generating station in Windsor (See Ontario Hydro [1978] OLRB Rep. Aug. 754). In that case the Canadian Union of Operating Engineers & General Workers tried to rely on the Board's general practice to describe the bargaining unit in the same terms as the unit set forth in the most recent collective agreement with the incumbent union. The Board noted that the case did not call for any departure from the practice because the unit sought by the applicant did accord with the Board's understanding of the relevant bargaining unit under the most recent collective agreement.

22It is against this background then that we must determine whether the pre-hearing vote requested by the applicant should be directed. The first issue is whether the province-wide unit described in the CUPE Local 1000 is the only appropriate unit and in support of this proposition the respondent and intervener directed our attention to a number of decisions including: Roland Lefebre Limited [1966] OLRB Rep. May 140; Toronto Star Limited[1974] OLRB Rep. July 416; Harding Carpets Limited[1975] OLRB Rep. July 566 (where the appli-cant successfully intervened on the basis of the doctrine); The Wellesley Hospital [1976] OLRB Rep. Feb. 46; The Canadian Red Cross Society Blood Transfusion Service [1978] OLRB Rep. May 408. This principle is not to be lightly dismissed. Where parties have estab-lished the viability of a bargaining unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmen-tation. Moreover, in these cases, the Board is not dealing with employees who are unrepre-sented by a trade union. Thus, more concern can be given to the most viable unit from a collec-tive bargaining viewpoint without the risk of impeding the initial organization of employees attempting to engage in bargaining. But the principle cannot be without its exceptions. Sec-tion 48 of the Act clearly envisages displacement applications which are less extensive than pre-existing bargaining units. While there is a strong presumption in favour of the incumbent trade union's bargaining unit, the Board is willing to entertain evidence and submissions on why the status quo ought not to be maintained. The incumbent trade union may clearly have failed to represent a distinct and cohesive group adequately, a problem that has sometimes reared its head in the relationship of skilled and unskilled employees. This problem of unsatis-factory representation may be combined with a capacity in the employer to tolerate somewhat greater fragmentation, particularly if the smaller unit sought can meet the principles of appro-priateness generally applied to certification cases. In the case at hand, the applicant indicated its intent to adduce evidence on the distinctive nature of Hydro's nuclear energy facilities; on the common training and conditions of employment of the affected employees; and on the manner in which they have been represented by CUPE Local 1000. The unit relied upon by the intervener and the employer is not one that the Board would normally grant and the inter-vener, itself, never had to organize all of the affected employees. Against this background, we are not prepared to say at this time that the applicant will be unable to make out a case justi-fying the unit it has requested. On the other hand, the applicant's chances for success based on its answers to the Board's probing and against the background of all that we have reviewed above, cannot be characterized as substantial.

23If a province-wide bargaining unit is not per se the only appropriate unit, is the Board obligated to direct the requested pre-hearing vote? Section 8 gives the Board a discre-tion to exercise and, historically, this discretion has been exercised in light of the section's purpose.

24The quotation from one of the earlier Hydro decisions found at paragraph 14 spells out this purpose and a recent statement in this respect is found in Emery Industries Limited, Board File No. 1860-79-R issued March 19, 1980, as yet unreported:

"5. It is axiomatic that in labour relations matters 'time is of the es-sence'; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a pos-sible erosion of that support. This might not only make the union's certi-fication more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the appli-cation date. This avoids the potential prejudice which might arise if a re-presentation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, asso-ciated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute."

The pre-hearing representation vote therefore allows for a speedy assessment of the wishes of the employees. However, where the unit sought is clearly inappropriate or where the composi-tion of the bargaining unit is so complex as to impede and undermine the taking of a meaning-ful representation vote, the Board has been unwilling to go through the motions of a pre-hearing vote. See Howard Furnace Limited [1961] OLRB Rep. July 98. In the instant case, the applicant is burdened by a combination of these latter factors. The applicant's suggested bargaining unit clearly cuts against the principle discussed in Canadian Red Cross and is not, at first blush, in tune with many of the principles usually applicable to bargaining unit deter-mination cases. See Usarco [1967] OLRB Rep. Sept. 527. Similarly, counsel for the applicant did not give the Board the impression that it would be introducing unequivocal evidence of inadequate trade union representation by CUPE Local 1000. And, most importantly, the un-certainty surrounding the identification and appropriateness of the unit requested could attract so many proper challenges from the respondent and intervener as to make the vote ex-ceedingly difficult to administer and endanger the reliability of the votes cast and subsequently counted. We note that since the outset of its application, the applicant itself has been amend-ing the unit description as new information becomes available. And each time, the respondent has tried to accumulate the information needed to respond to the Board's forms. This is some evidence of the complexity the parties and the Board face. It is also conceivable that the appli-cant will want to challenge many of the employee exclusions contained in Article 1 of the agreement, a monolithic provision not based on specific job classifications. Similarly, the respondent may properly challenge the voting of the unit requested as one comprehensive group and ask for a segregation of ballots on a facility by facility basis. There is also concern for the relationship of the construction field forces, the head office employees and the other nuclear energy sites currently under construction (together with the employees in training for these sites) to the unit the applicant seeks to represent. None of this uncertainty and complex-ity was present in the other pre-hearing votes directed by this Board in the cases reviewed above involving Hydro. And with these problems comes the real risk that a second represen-tation vote would have to be ordered after the Board finally determined the appropriate unit or units in order to assess the wishes of employees in a reliable way. With the proposed bar-gaining unit subject to substantial challenge, the votes of employees could well be dependent on the Board's view of the appropriate unit(s). For example, if the Board found that the appro-priate unit should be on a facility by facility or complex by complex basis, employees may be less attracted to the applicant's representation. This approach could fragment the applicant's support and adversely affect an employee's perception of the applicant's eventual bargaining power. We have great concern over the reliability of ballots cast in the face of so much uncer-tainty over the very structure of collective bargaining by way of the applicant trade union.

25The applicant's description of the bargaining unit proposed in its application of March 31, 1980 referred to "Part G" of the CUPE Local 1000 collective agreement and, there-by, seemed to be concerned with 3,191 production employees. Posting in the workplaces went up to this effect. They by letter dated April 15, 1980 it indicated that it also intended the bar-gaining unit to include clerical employees (all weekly or salaried employees at the various sites pertaining to nuclear energy) and control and chemical employees. This appears to have swept in another 651 persons after Hydro spent considerable time identifying the impact of this amendment. However, Hydro pointed out that this amendment still appeared to exclude employees at its head office concerned with the nuclear division and employees in training at Peterborough and Mississauga for the new sites. These people will be eventually transferred to Darlington and Bruce B but are not, at present, employed under "Part G" of the agreement. Subsequently, at the meeting with the Board's labour relations officer on May 1, 1980, the applicant advised the other parties that it wished to exclude the Bruce B and Darlington sites together with head office employees. But, by letter dated May 6, 1980, it advised the other parties that it did wish to include all persons at Peterborough and Mississauga being trained for the new sites. As we have already observed, the pre-hearing vote procedure is designed to facilitate the certification process where the bargaining unit requested is relatively easy to as-certain and is clearly set out by the applicant. It is our opinion that an application as complex, as novel and as speculative as the instant application ought to have the appropriateness of the bargaining unit determined first and this is particularly the case where the affected employees are already participating in collective bargaining.

26The Board was advised that the underlying concerns of the substantial number of employees who have apparently turned to the applicant are based upon a perception that CUPE Local 1000 favours the employees employed in the older divisions of Hydro. Em-ployees in the nuclear energy division believe, the Board was told, that they have been unable to effect important changes to their status through the bargaining process and, given the struc-ture of CUPE Local 1000, that this problem is likely to continue. Counsel for the intervener characterized these submissions as inaccurate and made the point that, in this round of bar-gaining, CUPE Local 1000 had to postpone consideration of many groups worthy of special consideration in favour of a general increase beneficial to all. We would make only two obser-vations on both of these submissions. Contrary to the submissions of the intervener's counsel, the discontent underlying this application does not appear to arise solely from the most recent round of negotiations and should be reviewed by both the intervener and respondent in the interests of good industrial relations. Secondly, the submission of counsel to the applicant on the reasons for this discontent did not appear to reveal the kind of "strong and compelling" problem referred to by the Board in the 1973 Hydro case (see paragraph 18) that would justify the carving up of an established collective bargaining relationship. Of course, we did not hear evidence on this point and may well be mistaken in this impression. However, without clear evidence of inadequate representation, the applicant must understand this Board's interest in encouraging broader based collective bargaining structures which maximize opportunities and flexibility for both employers and employees. See E. E. Herman: Determination of the Appropriate Bargaining Unit: Queen's Printer, 1966, at 44-45. And in a displacement applica-tion the Board has a tendency to pursue this interest in a more single-minded manner than in the usual application for certification.

27For all of these reasons the applicant's request for a pre-hearing vote is refused and the matter is referred to the Registrar under Rule 5 for the fixing of a new terminal date and the posting of appropriate forms.