[1981] OLRB Rep. November 1581
1502-81-R Employees' Association of Groves Park Lodge, Applicant, v. 428378 Ontario Limited c.o.b. as Groves Park Lodge, Respondent, v. Canadian Union of Public Employees, Intervener.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL;
November 6, 1981
1. This is an application for certification.
3. The applicant has requested that a pre-hearing representation vote be taken.
4. The applicant has not previously established in any proceedings before the Board that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The intervener, as the incumbent bargaining agent for the employees in question, requests that the applicant be required to prove that it has status as a trade union before a representation vote is directed in this matter. In support of that request, the intervener submits that the taking of a representation vote before the applicant has established that it is a trade union within the meaning of section l(l)(p) of the Act would give the voters the impression that the Board has already granted status to the applicant and that it is, therefore, a bona fide trade union.
5. In Emery Industries Limited, [1980] OLRB Rep. Mar. 316, at paragraph 5, the Board described the purpose of the pre-hearing vote procedure as follows:
"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 application date. This avoids the potential prejudice which might arise if a representation 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, associated 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."
In the Linen' case, the intervener trade union argued that an applicant is not entitled to utilize the pre-hearing vote procedure until it has established its status as a trade union. In rejecting that contention, the Board stated (at paragraph II):
"There is no reason for according the 'status issue' a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issues after a vote is taken. Of course, if one adopts a strict 'sentence-parsing' approach, one encounters the word 'trade union' before mention is made of such matters as employee status, the appropriate bargaining unit, and membership in the trade union; but, while it may appear that one determination is a condition precedent separate from the next, in our view it is clear, having regard to the purpose and structure of section 8, that the Legislature intended that all of these matters be resolved at the hearing following the vote. The Board cannot certify the applicant union until its trade union status is determined; but we can see no reason for singling out the trade union status issue for special treatment; nor can we discern any labour relations objective which would be served by denying new unions access to the pre-hearing vote procedure. There is no reason why these new unions should be put at a competitive disadvantage vis-a-vis established organizations, and it would require the clearest possible language before the Board would be driven to this conclusion. There may well be cases where the issues raised are of such nature, or complexity, that a pre-hearing vote is inappropriate. Section 8 is framed so that the Board has a discretion to order a pre-hearing representation vote, and Rule 5 of the Rules of Practice regulates the procedure which must be followed when the Board has refused this request. However, there is nothing in the issue of trade union status, per se, which prevents the taking of a vote, nor is there any evidence, in this case, of any other special circumstances which make such vote inappropriate or which justify any interference with the previous Board decision. In our view the Board was entitled to direct the taking of a vote and defer resolution of the trade union status issue.
(See also, Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. April 468, at paragraph 30, in which the Board specifically endorsed the approach adopted in the Emery case; cf. Tn Canada Inc. [1981] OLRB Rep. June 794.)
6. By letter dated October 30, 1981, Helen O'Regan on behalf of the intervener provided the Board with a "scenario of events as they pertain to the history of bargaining between the intervener and the respondent" and requested the Board to take all of those matters into consideration before taking any action relating to this application. Without expressing any view concerning the effect which those events, if proved, might have on the ultimate disposition of this application, the Board is satisfied that the letter does not set forth circumstances which would make the taking of a pre-hearing representation vote inappropriate.
7. It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
8. Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All employees of the respondent at Renfrew, Ontario, save and except professional and medical staff, registered and graduate nurses, undergraduate nurses, supervisors, persons above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.
9. All employees of the respondent in the voting constituency on the 22nd day of October, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between the 22nd day of October, 1981 and the date the vote is taken will be eligible to vote.
10. Voters will be asked to indicate whether they wish to be represented by the applicant or by the intervener in their employment relations with the respondent.
II. The Board directs that the ballot box containing all the ballots cast in the prehearing representation vote be sealed and that the ballots not be counted pending further direction by the Board.
12. Having regard to the objections raised by the intervener, the Registrar is directed to list this matter for hearing at the earliest possible date following the holding of the vote for the purpose of according the applicant an opportunity to establish that it is a trade union within the meaning of section l(l)(p) of the Act, and to hear the evidence and submissions of the parties on that issue and all other matters arising out of and incidental to this application.
13. The matter is referred to the Registrar.
DECISION OF BOARD MEMBER O. HODGES;
1. I dissent from the conclusion of the majority. I wish to express in the strongest possible terms my disagreement with the decision of the majority that an organization which has not yet established its status as a trade union may participate in a pre-hearing representation vote in an attempt to displace an incumbent union.
2. As apparent from the majority decision, this is not the first time that this issue has come before the Board. The principle endorsed by the majority has its origin in Emery Industries Limited, [1980] OLRB Rep. Mar. 316. This decision was followed in a more recent decision Ontario Hospital Association (Blue Cross), [1981]OLRB Rep. April468, with Board Member D. B. Archer dissenting.
3. I consider this matter to be serious enough that I propose to set out my reasons for dissent in some detail, even at the risk of being repetitious of what Board Member Archer has already stated in his dissent in the Ontario Hospital Association case.
4. The Labour Relations Act, section 9(1) states that "upon an application for certification, the trade union, may request that a pre-hearing representation vote be taken." Does not this provision make it clear that only an organization which has established status as a "trade union" may request for a pre-hearing vote?
5. In Emery Industries, at paragraph 11, the Board seemed to characterize this argument as mere "sentence parsing". With respect, I disagree. The use of the term "trade union" in section 9 (1) is not a coincidence nor is it a mere technicality. It has real practical consequences which may significantly influence the whole process of pre-hearing representation votes. There is furthermore a fundamental distinction in origin between the applicant trade union in the Emery Industries case and the applicant associations in this application and Ontario Hospital Association. That distinction must be made clear because it is the perception of the status of the applicant trade union by employees, whom it aspires to represent in collective bargaining with their employer, that is absolutely crucial. Employees must not be misled in their judgment of the bona fides of an applicant. The law forbids employer meddling in the creation of a bargaining agent. Section 64 of the Act provides as follows:
"64. No employer or employers' organization and no person acting on behalf of an employer or an employer's organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence." (emphasis added)
That essential condition is proven only when a new employee organization is accorded status as a result of a hearing by this Board.
6. The applicant in Emery Industries was a trade union created by the merger of two trade unions who had both long established their status before this Board and their presence as bona fide trade unions was evident. The status issue rested upon a technical challenge by the intervening trade union with regard to the constitutional authority of one of the merging locals to do so. On the other hand the trade union status of the applicant association in Ontario Hospital Association, and in this case, was not established anywhere by any means at the time the request for a pre-hearing vote was made. Indeed in Ontario Hospital Association, allegations of employer influence in the organization of the applicant association were made by the incumbent trade union, but no opportunity to prove those allegations was afforded until the hearing to prove status which was held after the vote. In my opinion, to cite the Emery Industries case as Board jurisprudence in the present case is inaccurate on the essential facts required to prove status, just as it was wrong in the Ontario Hospital Association case.
7. We have to assume that the average employee is not familiar with the provisions of the Act or the Board's policies. When the Board directs a vote in these circumstances, as far as the employees are concerned, they have a choice between two "trade unions". The mere direction of a vote by the Board inevitably is seen as a recognition by the Board of the status of both competing organizations. It is not realistic to expect the average employee to be sophisticated enough to realize that a subsequent proceedings will determine whether the organization in relation to which they voted was in fact a trade union.
8. In summary, the overt mischief of the present Board policy of conducting a prehearing vote at a time when the applicant had not established its trade union status is two-fold:
(1) The Board's policy misleads employees into believing that the vote is between two trade unions, both viable entities capable of representing the employees in the bargaining unit in collective bargaining, when there is no assurance that this is so with respect to the entity that has not yet been accorded trade union status.
(2) The preamble to the Labour Relations Act recognizes that harmonious relations between employers and employees is in the interest of the province. That being so, the established relationship between a trade union and an employer should be disrupted only in the clearest of cases. If after the conduct of the vote, the Board finds that the association in fact did not have status, the Board would have contributed to a pointless disruption of the relationship and perhaps caused irreparable harm to the trade union's strength. Where a displacement application is filed by an association of unproven status at a time when the incumbent union and the employer are in the process of negotiating for a collective agreement, for the Board to direct a pre-hearing vote is to undermine the incumbent union s bargaining strength by interrupting the negotiations. And all this may be for no justifiable reason if later it turns out that the association was not a trade union within the meaning of the Act. To allow the bargaining relationship to suffer the fragmentation of employee commitment through a pre-hearing vote under these circumstances is in my view counter to sound labour relations policy and ought to be avoided.
9. The majority also relies on the general principle that in a pre-hearing vote, resolution of disputes is postponed until after the vote. In my view, this principle holds true only with respect to those disputes that cannot possibly affect the vote in any way. Examples of these are disputes relating to employee status or the appropriateness of the bargaining unit. However, the issue of trade union status goes to the very issue of whether the subject organization is entitled to any rights under the Act. Besides, as I pointed out above, the direction of a vote may mislead the voters into believing that the organization is in fact a trade union and this can influence the way in which they vote. As Board Member Archer points out in his dissent in Ontario Hospital Association (Blue Cross), the voters are being asked to vote for an organization which may or may not be in existence. The voters have no assurance that the organization has a valid constitution or elected officials. Most importantly, the voters are not assured that the organization is not employer dominated.
10. For the foregoing reasons, I am convinced that the so called "Emery principle" is wrong, and should not be followed. In the alternative, the Board should distinguish this case from Linen' Industries on the basis that here the applicant is a completely unknown and new entity whereas in Linen' Industries both competing unions were well established unions and the only issue as to "status" was the technicality relating to the validity of a merger agreement.
11. The majority may be concerned that to require proof of status prior to a pre-hearing vote will deny new unions the benefit of a "quick vote". (See, paragraph II of the Linen' Industries case quoted in the majority decision at paragraph 5). While this is a reasonable concern, the remedy should not be to direct votes irrespective of the status of the organization. In recent times, employee associations such as the applicant, have been formed in increasing numbers and the employee association has been used as an alternative to opposing an incumbent trade union through a termination application or a petition. (See, Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509. The Board in Tri-Canada referred to this new trend and pointed to the advantages obtained by those opposing a trade union by resorting to the employee association approach. (See paragraph 9). Given this fact, the Board should not further assist these 'new' unions by giving the employees the impression that these are 'bona fide' trade unions when in fact they may not be so.
12. The Board should look to other remedies such as conducting a quick 'status' hearing in these circumstances. If indeed it is necessary, from a point of view of overall labour relations policy, it is less of an evil to deny all new unions the benefit of a quick pre-hearing vote than to adhere to the approach adopted by the majority. In my view, it is not repugnant to labour relations policy or to common reason, to place a new, unknown entity at some disadvantage, when it is competing which an established, proven and incumbent trade union, specially since this disadvantage attaches only the first time such entity seeks bargaining rights.
13. Finally, if the Board finds this case not distinguishable from its past decisions it should realize the gravity of the situation and simply be prepared to depart from the "Emery principle". After all, the precedent goes back only to 1980. The Board has not, as a general rule, considered itself to be bound by its previous decisions. (For example, see La-Z-Boy Canada Limited, [1981] OLRB Rep. April 460, where the Board reversed its policy requiring a presence in the province as a pre-condition for trade union status, a policy which had existed for nearly 20 years). In fact in a recent application for judicial review (Oakwood Park Lodge, date of hearing, November 3, 1981) the Divisional Court, in dismissing the application, endorsed the record in part as follows:
"The Board is not bound to follow its previous decisions. The extent to which it chooses to do so in any given case is clearly a matter within its own jurisdiction."
It is clear that the Board has the discretion to depart from its past decisions. The Board should not hesitate to do so in this case.
14. I would have required the applicant to prove its status as a trade union prior to the taking of a pre-hearing vote.