The Blue Cross Employees' Association v. Ontario Hospital Association (Blue Cross), 1981 CanLII 961

[1981] OLRB Rep. April 468

2526-80-R The Blue Cross Employees' Association, Applicant, v. Ontario Hospital Association (Blue Cross), Respondent, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervener.

BEFORE: George W. Adams, Chairman and Board Members F. W. Murray and D. B. Archer.

APPEARANCES: Michael G. Horan and Debbie Cowan for the applicant; Douglas K. Gray and G. 0. Ubels for the respondent; and L. A. MacLean, Q. C., P. Clancy and R. Nickerson for the intervener.

DECISION OF GEORGE W. ADAMS AND F. W. MURRAY; April 9, 1981

1. This is an application for certification in which the applicant has requested a pre-hearing representation vote. The applicant seeks to displace the intervener for a unit of employees of the respondent described in the following terms:

All office and clerical employees of the Ontario Hospital Association within the Municipality of Metropolitan Toronto save and except sect on heads, managers or co-ordinators, persons above the rank of sect on head, manager and co-ordinator, secretaries to those above the rank of supervisor, audio visual staff, sales staff, communications staff, print shop staff, mail room clerks regularly assigned to reading mail, internal auditors, consultants, all employees in the Hospital Employee Relations Services Department (including personnel and payroll staff), all employees of the Investment Services Department, all employees of the Hospital Accident Prevention Department, systems analysts, programmers and all computer operations staff, maintenance engineers, pharmaceutical .chemists, students employed during the school vacation periods and persons regularly employed for not more than twenty-four hours or less per week.

2. The intervener was certified as a bargaining agent for these employees on March 14, 1979. A lawful strike commenced September 21, 1979. An application to terminate the intervener's bargaining rights was filed February 21, 1980 but dismissed as premature. A second application was filed March 26, 1980 and dismissed by decision of the Board dated December 23, 1980. On the evidence before it, the Board could not be satisfied that at least 45 per cent of the members of the bargaining unit had voluntarily signified in writing that they no longer wished to be represented by the incumbent union. A request for reconsideration dated February 2, 1981 was also dismissed by decision dated March 13, 1981. The instant application for certification is dated February 18, 1981 and filed by an association that has not been found to be a trade union within the meaning of section l(l)(n) of The Labour Relations Act in any previous proceeding. By decision dated March 13, 1981 another panel of the Board reviewed the submissions of the intervener (and the responses of the applicant and respondent) that the application was untimely having regard to section 92(2)(i) and that, in any event, the applicant was not entitled to a pre-hearing vote because it had not established its status as a trade union in any previous proceeding before the Board. The panel directed a hearing in order to entertain evidence and representations with respect to:

(i) the relevance of section 92(2)(i) to the instant application; and

(ii) the entitlement of the newly formed applicant association to a pre-hearing vote.

3. The evidence reveals that the intervener gave notice to bargain to the respondent in March 1979. The first available date for a meeting was April27, 1979. On May 3, 1979 after the one April meeting the intervener applied for the appointment of a conciliation officer and did so before obtaining the employer's response to its proposal. The next meeting was June 8, 1979 with the conciliation officer and the intervener immediately requested the issuance of a "no-board" report. Following the issuance of this report and prior to the commencement of the strike on September 21, 1979, some fifteen to eighteen negotiation meetings were held. Mr. Joseph Maloney, chief negotiator for the intervener, testified that the two major areas of dispute between the parties consisted of the monetary items and the appropriate union security clause. He said that bargaining first centred on non-monetary items and the union security issue was placed with the monetary issue. The Board was advised that at the time of the strike some language issues, all monetary items and the union security clause issue were outstanding. On the latter issue, the trade union moved prior to the strike from its initial proposal of compulsory union membership for all employees to compulsory payment of union dues by all employees. The employer moved from its initial position of voluntary revocable check-off to a modified Rand Formula. There were at least two meetings between high level officials of the intervener and the respondent immediately prior to the strike but they were to no avail. No meetings between the parties occurred after the commencement of the strike and prior to the first application for termination of bargaining rights on February 22, 1980. Maloney testified that at the time of the strike there were some four hundred employees in the bargaining unit and that about half of these employees went on strike. By February 1980 seventy to one hundred employees remained on strike and at the time of this hearing sixty-one employees were said to be actively engaged in strike and picketing activity. The first application for termination of bargaining rights was filed February 21, 1980 and dismissed March 25, 1980. On that same day (i.e. March 25), the intervener requested the Minister of Labour to reconvene negotiations. By letter dated April 15, 1980 the Minister noted that a second termination had been filed and the employer's preference to await the completion of those proceedings.

4. On June 12, 1980 Bill 89 was passed into law. One of its provisions made mandatory the payment of union dues by all bargaining unit employees, effectively taking this issue off the bargaining table between the parties. However, at the time of passage of the legislation the parties were involved in the second application for the termination filed March 26, 1980. The proceedings were lengthy and paragraph 6 of the Board's decision of December 23, 1980 dismissing the application notes that the intervener's insistence on placing before the Board "the full history of the bitter relationship that had evolved" between the intervener and respondent was a major factor contributing to the length of the case. Unfortunately, the evidence was found to be of no value and the panel, in hindsight, observed that the more narrow approach of Ottawa Journal, [1978] OLRB Rep. Mar. 291 may have been preferable. No bargaining was undertaken between the parties while that case was in progress. On the very date the termination application was dismissed the intervener sent a telegram to the Ministry of Labour requesting mediation. Apparently, the earliest dates that could be arranged for the meetings were January 21 and 22, 1981.

5. Before reviewing the bargaining opportunity between the intervener and respondent between the date of dismissal of the second termination application and this application for certification, the Board would be remiss if it did not comment on the nature of the economic confrontation between these parties that has existed up until this point in time. Exhibit 23 reveals that the Ontario Hospital Association, founded in 1924, is the voluntary organization of public hospitals in the Province and also has in its membership many other health-related agencies and institutions. The O.H.A. provides hospitals with a wide range of representational, educational and administrative services. In addition, through its Blue Cross Division, the O.H.A. has since the early 1940's provided prepaid health benefits to millions of individual and group subscribers in Ontario. Exhibit 23, introduced by the intervener, reveals that Blue Cross is a non-profit organization. Any surplus which may accrue is used for the benefit of its subscribers. The O.H.A., including Blue Cross, is governed by an elected 45 member Board of Directors, who serve without remuneration. The members of the Board consist of hospital trustees and chief executive officers from the O.H.A.'s twelve regions throughout the Province. There can be little doubt that the respondent saw the strike called by the intervener as directly related to the intervener's demand that all bargaining unit employees be required to pay union dues. Evidence adduced by the intervener before this panel pictured the O.H.A. representatives as confrontationist in the final few meetings before the strike, but at that very same time it would appear that the intervener was threatening the respondent with a massive loss in business if its demand on union security was not met. Confrontation sparks confrontation and the Board places no weight on the intervener's evidence in this respect. It is highly unlikely that the reasons why this dispute occurred and subsequently lasted so long are amenable to simple analysis. Moreover, with the passage of time events have engendered new controversy and conflict. Apparently, true to its work, the intervener engineered a major boycott by other collective bargaining relationships of Blue Cross health plan carrier services. For example, Exhibit 23 reveals that General Motors, Ford and Chrysler, at the insistence of the intervener, cropped Blue Cross as their health plans carrier even though all of these companies were 'very satisfied with Blue Cross services over many years. The exhibit reveals that the intervener enlisted the assistance of the central labour bodies in its effort to inflict business losses en the respondent and that members of the Legislature were lobbied for a change in Ontario labour laws. This boycott has had an adverse impact on the size of the bargaining unit. In turn, the respondent mounted its own campaign aimed at politicians of which Exhibit 23 was a part. Moreover, its resistance to the intervener's bargaining demands has inflicted considerable losses on that trade union and its supporters. Exhibit 18 indicates that the intervener "has paid out well over $500,000" to further its interests in the dispute as of March 11, 1981. It would also appear that only about one-half of the bargaining unit members initially supported the strike and their numbers had declined to sixty-one employees some eighteen to nineteen months later. The bargaining unit prior to the strike consisted of slightly over four hundred employees and at the time of the instant application had fallen to three hundred and eighty-two not including the sixty-one employees said to be still on strike. The earlier panel hearing the termination application characterized the dispute as "bitter" and existing within an atmosphere "charged in the extreme." This panel does not quarrel with that assessment. No one could.

6. We pointed out that following the intervener's telex of December 23, 1980, the Ministry of Labour's Conciliation and Mediation Services arranged meetings between the intervener and respondent for January 21 and 22, 1981. At the January 21st meeting the union submitted two documents. Document A consisted of some 28 pages of language previously agreed to by the parties (with a few exceptions). Document B was styled "Union Proposal To Settle All Outstanding Issues." This document dealt with some 18 items still thought to be outstanding between the parties. The first two pages of this latter document summarize these items in the following manner:

7. Union security language

8. One additional paid holiday

9. Vacations with pay

10. Benefit plans

11. Pensions

12. Job Descriptions

13. Classification Grades

14. Salaries

15. Overtime

16. Termination of agreement

17. Shift premiums

18. Leave of absence (Operating

Motor Vehicle)

13. Paid Education Leave

Filing Cabinet

Copies of agreement

14. Return all employees on strike at time of ratification to previous job and classification and no loss of seniority.

15. Removal of discipline re E. Richardson and E. Cust

16. Settlement pay to all employees on roll as of September 14, 1979 and still on roll at date of ratification

17. Wages t be effective as of date of ratification

18. Commencement of benefits for all workers off work because of participa-tion in strike to be effective first of month following date of ratification

— Attachment #1

— as per company offer Aug. 30/79*

— as per company offer Aug. 30/79*

— as per company offer Aug. 30/79*

— current programme right of employee to pick up time lost by strike at own expense

— as per letter dated Aug. 16/79 and attachments. Attachment #3

— as per company offer Aug. 30/79*

— as per attachment #4

— as per attachment #5

— November 1, 1981

— as per company offer Aug. 30/79*

— as per letter June 15/79. Attachment #6

— withdraw

— Attachment #7

— Attachment #8

— $300.00

*Company offer of August 30/79 Attachment #2

The respondent's reply dated January 21, 1981 took the following form:

In response to the union's proposal, the employer replies as follows:

1. Items 2, 3,4, 6, 7, 10, 11 and 12 now appear to be agreed upon. Subject to satisfactory contract language to be settled, our understanding of the agreement on these matters is as follows:

a) Item 2 - Additional paid holiday will mean total of 11. Additional holiday is anniversary date of employment with OHA, to be taken within a period of 30 days after such date, on a day to be approved in advance by the employee's supervisor.

b) Item 3 - Vacation entitlement will be:

2 after 1

3 after 4

4 after 13

5 after 22

c) Item 4 - All current plans to remain in effect.

d) Item 6 - As per letter of August 16, 1979, and descriptions already attached for job grades 2, 3, 5, 6 and 7. Description forjob grade 4 missing (already supplied to union) and will be supplied by employer. This will exist as a letter of understanding, not part of the collective agreement.

e) Item 7 - Classification grades are grades 2, 3, 4, 5, 6 and 7.

f) Item 10 - Termination of agreement November 1, 1981.

g) Item 11 - Shift premiums subject to mutual agreement should shifts be implemented.

h) Item 12 - As per letter of June 15, 1979. This will exist as a letter of understanding, not part of the collective agreement.

If our understanding is correct on these items, we will prepare contract language for signing off.

2. Attached hereto is union proposal dated August 9, 1979. Clarification required as to whether items in that proposal are withdrawn or whether there are still items therein that the union wished to pursue.

3. The employer will consider remaining matters listed in union proposal, and will respond to as many items as possible, tomorrow, January 22nd. In the meantime, certain other matters require consideration:

a) We would like to reach agreement on the identity of the persons still on strike who have not severed their employment with Blue Cross. Would the union please prepare a list of who they believe to be such persons.

b) Ratification procedure.

c) Status of persons who employer believes attempted to defraud Blue Cross by submitting claims for benefits after coverage cancelled. Also, status of employee convicted of improper behavior on picket line, upheld on approval.

d) Union boycott and pressure on other employers to change carriers is continuing, resulting in further losses of business and jobs. What does the union intend to do about this?

The employer requests consent of the union to implement, on an interim basis, pending resolution of all other outstanding matters in dispute, an interim wage adjustment of 9% across-the-board, retroactive to January 1, 1981, for members of the bargaining unit, as it intends to do for non-bargaining unit employees. This would, of course, be without prejudice to the right of the union to bargain for larger increases.

The negotiations on January 21, 1981 lasted from 10:00 a.m. until 6:30 or 7:00 p.m. and the only face to face meeting was between Mr. Patrick Clancy appointed to conduct negotiations for the intervener from January 1981 onward and Mr. George Hubels, the respondent's Associate Director of Human Resources.

7. Representatives of the intervener and respondent met again on January 22, 1981. Clancy testified that he thought the parties had a good discussion on the 2 1st. In his view the next day was even more fruitful. It was spent clarifying many issues, for example the effect of the boycott, and a number of items in Document B were at least tentatively agreed to (i.e., items 2,3,4,5,6,7,9,10,11,12,13 and 18). The intervener's response to the concerns of the respondent raised the preceding day was:

a) list of outstanding employees exchanged. 5 names to be checked.

b) Ratification Procedure - will discuss, should be no problem.

c) all employees to be returned to work with no discipline on records.

d) will stop completely when agreement ratified and ratified includes return to work of all striking employees.

e) 9% Jan. 1-81 union disagrees with payment at this time hold until Feb. 3-81.

f) all items agreed to as of Jan. 22-81 to be put in writing and signed off.

8. Clancy testified that at the end of January 22, 1981 the two parties had an understanding of their respective positions. However, he said that one of the "stickiest" issues is the timing of the return to work of striking employees in that both Hubels and Clancy have taken the position that they are "not going to sacrifice any soldiers". But he also testified that Mr. Hubels said he did not have authority to deal with some of the issues such as recall and would have to seek direction from a committee within the respondent organization. A meeting of that committee was to take place the following weekend and the issues were to be discussed at the time. The parties therefore agreed to meet again on February 3, 1981. The January 22, 1981 meeting lasted from 10:00 a.m. to 4:30 p.m.

9. Tie meeting on February 3, 1981 involved the same representatives with the addition of Robert Nickerson for the intervener, Assistant to the Canadian Director. The respondent had prepared contract language embodying the earlier agreements in principle and presented all eight page document for the intervener's consideration dealing with Articles 19 (hours of work and overtime), 23 (salaries), and 27 (benefits). From the Board's point of view, two relatively minor problems were encountered with language on Articles 25.04 (absence of an employee on a holiday) and 26.06 (vacation scheduling) but the heated reaction of both parties appears to have prompted the mediator to adjourn the meeting. In essence, the meeting broke up because the intervener wanted first to see the respondent's complete position before agreeing to the language items. It should also be noted that at this or the previous meeting Mr. Hubels showed Mr. Clancy a letter from Mr. Horan written to the respondent requesting a supervised ratification vote of any contract settlement. Clancy told Hubels that the intervener "would not be raising the ratification issue and that he saw no problem "with what they discussed the last day" (presumably a reference to item b) in paragraph 7 above).

10. Thereafter some confusion appears to have arisen over who was to arrange the next meeting. But, in any event, the respondent appears to have proposed that Clancy and Hubels meet on February 14, 1981 and that a formal meeting of representatives be held on February 19, 1981. However, Mr. Clancy's daughter was being married on February 14, 1981 and he also had some difficulty in understanding the need to meet Mr Hubels alone. The parties therefore did not agree to meet before February 19, 1981. Clancy testified that he attended at the hotel on that date only to be advised by the mediator that the respondent's solicitor was now in receipt of a letter indicating the instant application for certification had been made to the Board and that the negotiations could not continue with such a matter outstanding.

11. None of the parties before the Board objected to the Board comparing employee involvement in the two sequential applications as one considered in the application of section 92(2)(i). This comparison reveals that 60% of the employees supporting the applicant were also petitioners in the earlier termination proceeding and the President, Vice-President and Secretary of the applicant are mentioned in the decision of the Board in that earlier matter as very active petitioners. Also to be noted is the fact that Mr. Horan who acts for the applicant in this matter also acted for the petitioners in their request for reconsideration filed on January 22, 1981 and, apparently, also corresponded with the respondent on their behalf with respect to the ratification vote issue.

12. Finally, we observe that the presence of the applicant has spawned the issuance of a number of information leaflets by both the intervener and applicant. The purport of the intervener's leaflets is to question the capacity of a local employee association to bargain a collective agreement where the intervener has been trying to do the same since September 1979. The intervener has also questioned the origin of the applicant questioning whether it is "a real union." In response, the applicant has accused the intervener of being "afraid" of a representation vote and having to pay for "fat union salaries." Of particular note in the applicant's literature are the following excerpts:

Exhibit 19b

As everyone now knows, the Labour Board has decided that the employees at Blue Cross are not entitled to a vote to decide if they still want the UAW to represent them. Although there is no doubt that the majority of our employees would vote against them, it seems that we are stuck with the UAW until we do something in a positive way to get rid of them.

At the present time the UAW are still the bargaining agent of the Blue Cross employees. They have spent two years in unsuccessful attempts to get a contract for the employees. During that time there has been nothing but turmoil, bitterness and loss of jobs. The UAW have not succeeded in doing what they have promised to do.

A number of the employees at Blue Cross have now decided that we could do a much better job on our own. We have decided to form our own association. We intend to go before the Labour Board to get official recognition as the bargaining agent for the Blue Cross employees. We have already passed a Constitution and we intend to approach the employees to join our Association and thereafter we intend to bargain with the Company to get a contract for the employees.

Exhibit 19d

"Failure to join our Association is equivalent to supporting the UAW because the Labour Board will not recognize a "non-position". You have only two choices: your Association or UAW."

"If you fail to join our Association now there is a chance that the UAW could ratify a contract with Blue Cross that could make them your representative for a long time. Once a contract is ratified, there is no way out."

Exhibit 19a

"We know we can bargain a contract with the Company because we are not all hung up on getting strikers reinstated as part of any settlement. Remember that if 61 strikers came back to Blue Cross they are going to want to take 61 jobs. We are concerned about your job security."

13. On the application of section 92(2)(i) of the Act, it was submitted on behalf of the intervener that bargaining has been overshadowed by representation proceedings since February 21 1980; that, as a result, negotiations between the intervener and respondent had been severely impeded; and that since the dismissal of the second application for termination on December 23, 1980 this had continued to be the case. Counsel submitted that the evidence clearly revealed an inadequate opportunity for the intervener to negotiate a collective agreement between December 23, 1980 and the launching of the instant application for certification on February 18, 1981. It was submitted that new issues had arisen because of the strike and the passage of time and that progress was being made by the parties until negotiations were brought to a halt by the application at hand. Counsel contended that at no time had the intervener failed to pursue its bargaining mandate but the bargaining was charged with conflict and had not been a "picnic”. Counsel submitted that the facts before the Board represented the classic situation for which section 92(2)(i) was designed. Emphasis was placed on the similarity between those persons who were involved as petitioners and counsel in the earlier termination proceedings. Counsel for the intervener pointed out that counsel for the applicant had acted for the petitioners in writing to the respondent in early January about bargaining and in filing an application for reconsideration with the Board on January 22, 1981. He also observed that most of the key officials of the applicant were active petitioners whose names are revealed in the Board's earlier decisions dismissing the termination application. It was stressed that the intervener needed more time to rehabilitate itself as bargaining agent after the effects of the earlier proceedings. In making this argument, counsel drew the Board's attention to Trinidad Leaseholds, 52 CLLC ¶ 17,005; Filey-Hall Paper Box, 52 CLLC 9117,037; Windsor Lumber Co. Ltd., 58 CLLC ¶ 18,104; Wesmak Lumber, [1961] OLRB Rep. Mar. 447, Continental Can, [1964] OLRB Rep. Dec. 459; Seven-Up, [1971] OLRB Rep. Dec. 791; and Dunnville Supermarket, [1980] OLRB Rep. Aug. 1193. Finally, on this portion of his argument, counsel asked the Board not only to dismiss the instant application on the basis of section 92(2)(i) but also to impose a ten month bar to any additional applications. It was submitted that the Board should not encourage either the respondent or the applicant that another application for certification will be entertained in a short while. Counsel contended that meaningful collective bargaining required certainty in this respect and a ten month bar would provide such a result. With respect to the applicant's entitlement to a pre-hearing vote, counsel for the intervener contended that the Board lacked jurisdiction to direct a pre-hearing vote where an applicant's status as a trade union had not been first determined in earlier proceedings before the Board. Alternatively, it was contended that because of dl the earlier disruption the intervener ought not to have to submit to a representation election until the applicant had first established its status as a bona fide trade union. The intervener therefore asked the Board to exercise its discretion and deny the request for a pre-hearing vote as in Brown Shoe Co., [1965] OLRB Rep. Dec. 584.

14. Counsel for the respondent submitted that the Board's policy of directing a pre-hearing representation vote but sealing the ballot box until after a new organization as applicant had established its status was the fairest approach and clearly within the Board's jurisdiction. Relying on CSAO National (Inc.) v. Oakville Trafalgar (1972), 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63, it was submitted that a Board finding of status merely recognizes what already exists. Counsel submitted that there existed no special circumstances to take the case of the approach laid down in Emery Industries Limited, [1980] OLRB Rep. Mar. 316. With respect to the application of section 92(2)(i), counsel for the respondent submitted that, on the clear wording of that section, the Board could not impose a specific bar of any kind where the applicant was not an earlier unsuccessful applicant. It was therefore submitted that the most the Board could do in the instant matter was refuse to entertain the application. And on this later issue it was agreed that "a reasonable opportunity to bargain" was only one factor to be considered. Other matters related to the similarity of applicants and the precise nature of the representation issues raised before the Board by sequential applications. Counsel argued that the instant application raised an entirely different representation issue, i.e. a choice between trade unions. The applicant is a new legal entity and people other than former active petitioners were involved in its activities. Counsel contrasted this situation with File v-Hall Paper Box where the Board observed a one hundred per cent overlap between those supporting an earlier certification application and those supporting the challenged termination proceedings. Counsel also suggested that there was a qualitative difference to be considered where a certification application followed a termination application, as in the instant case, in that a subsequent certification application would clearly run afoul of section 92(2)(i) whereas certification applications often follow on the heals of successful termination application. On the issue of "reasonable opportunity to bargain", counsel urged the Board to have regard to entire circumstances from the beginning of bargaining. Counsel suggested that the intervener was the author of its own misfortune. It had pushed through conciliation before even getting the respondent's reply to its opening proposal. It had struck in a first agreement situation with only half the support of the bargaining unit and with fifteen to twenty issues outstanding. And that the only real attempt to get a meeting with the respondent was on the filing of the first application for termination. It was pointed out that since December 23, 1980 there had been two full days of bargaining and that the intervener had "frittered away" the third and fourth days available.

15. On behalf of the applicant, it was submitted that the instant application was different from the earlier termination application and raised quite a different question for affected employees. Counsel argued that the two matters would reflect a substantial overlay of supporters because a number of employees continue to be unhappy with the quality to existing representation. It was contended that because of the substantial passage of time and the effects of the strike, a great number of employees in the bargaining unit have not had their wishes tested with respect to continued representation by the intervener and the scheme of the legislation was clearly designed to provide such an opportunity should the Board be in any doubt. Counsel urged the Board to consider the intervener's entire bargaining relationship with the respondent in determining whether it has had a reasonable opportunity to bargain. It was submitted that eighteen months or more was clearly sufficient time to negotiate a collective agreement and that between December 23, 1980 and February 18, 1981 the intervener knew of the ongoing interest of dissatisfied employees and should have been more diligent. Finally, on this issue, counsel contended that the delay in processing the second termination application was due to the intervener's conduct and that there was little if any "stability and continuity" in collective bargaining between the intervener and respondent to be considered under section 92(2)(i) in any event. On the issue of the pre-hearing vote, counsel stressed the importance of a quick vote and the prejudice to his client if deprived of an opportunity to proceed under section 8.

16. Save for section 92(2)(i) of The Labour Relations Act this is an otherwise timely application for certification. The intervener was certified March 14, 1979 to represent the employees in the affected unit and a lawful strike commenced September 21, 1979. Section 53(1) gives a newly certified bargaining agent approximately one year free of representation controversy to negotiate a first collective agreement and this provision is made expressly subject to section 53(3) which stipulates, when a strike has been commenced, a six month bar against representation proceedings calculated from the commencement of the strike. Thus, by the end of March 1980 the intervener's bargaining rights were at risk. This legislative scheme reflects a balancing between employee wishes and the requirement of stability for meaningful labour negotiations. A trade union that has achieved the degree of employee sup port to entitle it to certification, is also entitled to a reasonable and meaningful period of time in which to attempt to fulfil its bargaining mandate. If after the issuance of a certificate the certified trade union had immediately to defend itself against an unlimited number of challenges to its status as bargaining agent, the impairment to its stability to negotiate a collective agreement would be obvious. S too would be the consequences for industrial peace and stability. Accordingly, while employee wishes are of fundamental importance under The Labour Relations Act, the practice and procedure of collective bargaining demands that representation issues should not be raised indiscriminately.

17. A balancing of these same interests is carried through by section 92(2)(l) to that period of time where representation proceedings are timely under section 53 but where there has been already one unsuccessful application during the so-called "open period." However, the balancing of such interests is left to the Board. No automatic bar or mandatory refusal is provided for. Section 92(2)(i) provides:

Without limiting the generality of subsection 1, the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within a period not exceeding ten months from the date of the dismissal of the unsuccessful application.

18. The Board's understanding of the rationale for the section was set out in the Trinidad Leaseholds (Canada) Ltd. case, 52 CLLC 91 17,005 where a collective agreement had expired on July 6, 1948 and an application for certification, filed May 28, 1949, had been dismissed on July 27, 1949. In refusing to entertain a second application for certification filed on July 28, 1949 by the same applicant the Board wrote:

In respect of regulation 7(4), with which we are immediately concerned, it would not in our view, accord with the manifest purpose of that regulation to conclude that once the ten month period has passed any number of applications may then be made, without interval, by the same applicant. On the contrary, we are of the opinion that where there is a current and active collective bargaining relationship and where an application, properly made under regulation 7(4), is rejected on the ground that the applicant does not enjoy the requisite employee support, a second application by the same applicant should not be entertained by the Board until a reasonable opportunity has been given to the parties to the collective agreement to bargain collectively with a view to its renewal.

The question of representation which we are now asked to determine was tried by the Board as recently as July 27, 1949, at which time the Board found that the applicant did not have as members in good standing a majority of the employees concerned. The right of the employees affected to select a new bargaining agent has thus been fully recognized although, in actual fact, no new bargaining agent was designated. We must now take into account what is, as indicated by regulation 7(4), the equally important consideration of stability and continuity in collective bargaining. Our earlier decision, by implication, identified the inter-vener as the authorized bargaining agent of the employees affected. Little purpose was served if the right of intervener to continue to represent those employees was immediately thereafter again subject to question at the instance of the same applicant. The respondent and the intervener have inevitably been hampered in their collective bargaining activities during the period when they would ordinarily have been directing every reasonable effort toward the negotiation of a renewal of the collective agreement. It is our view that before the Board undertakes a further consideration of the question of representation on an application by the present applicant the respondent and the intervener must be permitted a reasonable period of time during which to carry on collective bargaining without hindrance.

Accordingly, we find that the application is not timely and it is therefore dismissed.

19. From the facts before the Board in that case and its articulation of policy, it is apparent that the Board directed its attention only to the period of time between the unsuccessful application and the second proceedings in determining whether there had been a reasonable opportunity to bargain. The incumbent trade union appears to have had almost a full year to negotiate a collective agreement before the bringing of the first application for certification and yet there was no attempt to assess the quality of bargaining during that period. See also Continental Can Company of Canada Limited, [1964] OLRB Rep. Dec. 459 where only this period was emphasized. However, it occurs to this panel that there must surely be cases where the importance of the opportunity for bargaining between the two most recent applications would be less significant. For example, where there has been a long and unsuccessful strike and the passage of time has simply deepened the impasse between the parties, "the opportunity for [further] bargaining" approach may not be so obviously applicable. Indeed, in certain "lost strike" situations it may be difficult to develop a rationale preventing any number of decertification or certification applications, in that a bargaining relationship which deteriorates to such an unresolvable impasse is unlikely the kind of situation section 92(2)(i) was designed to shelter nor would it appear to be the kind of situation employees need endure without the benefit of review by access to a representation vote. Whether the instant matter falls within this category of case is something that will be considered below. Suffice it now to say we do not agree with the intervener's submission that the Board should focus exclusively on activity between the two applications, i.e. between December 22, 1980 and February 18, 1981. Moreover, we observe that there is no reported case which has considered the application of section 92(2)(i) after the expiration of some twelve months of "protected" bargaining which included approximately six months of strike activity.

20. The Board has also said that the Trinidad Leaseholds phrase of "a current and active bargaining relationship" refers to the activity of the union in bargaining during the relevant period and not to the degree of support which the union may enjoy among the employees in the bargaining unit. Thus, the Board has not been prepared to speculate as to a trade union's ability to enter into or to carry through negotiations successfully in determining whether a reasonable opportunity was afforded to the incumbent bargaining agent after the dismissal of the first application. See Canadian Sealright Co. Ltd. 59 CLLC 9118,157 and Continental Can Company of Canada Limited, supra. But again, we observe that this principle was not developed in the context of the kind of unresolvable impasse or passage of time hypothesized in the previous paragraph. Accordingly, this principle too must have some limitations.

21. Passing to a third consideration revealed by the earlier cases, the intervener is correct in asserting that neither the Board nor section 92(2)(i) draws a sharp distinction between the kind of representation proceedings involved in any two applications or requires a precise identity between the respective proponents or each. However, counsel for the respondent is correct in submitting that when the applications are of a different kind, the identity of the respective proponents is not an irrelevant factor. For example, in Filey-Hall Paper Box Co. Limited, supra, the initial application was one for certification and the second was that for a declaration terminating bargaining rights. The Board concluded that the principle explained in Trinidad Leaseholds applied particularly where substantially the same group of employees supported both applications and where the person authorized to represent the employees before the Board was the same person authorized to represent them in the earlier proceeding. The Board concluded that in all the circumstances the second application was brought "to try the same representation dispute" that was previously before the Board and dismissed. On the other hand, in Canadian Sealright Co. Ltd., supra, the two applications were both bargaining right termination proceedings and the second application was supported by two original petitioners and two new supporters. A reading of the case reveals that the absence of a precise identity between the employees supporting the first and second applications did not discourage the Board from refusing to entertain the subsequent application and contrast these cases with those dealing with the imposition of a six month bar following a representation vote but where there is no incumbent union. See The Clorax Company of Canada Ltd., [1980] OLRB Rep. Feb. 184. Counsel for the respondent submitted that an important difference existed where the second application was one of certification because suci an application could not be followed by a second application free from an explicit statutory bar. Whereas, on the other hand, he pointed out that successful termination applications are often followed by an application for certification. Implicit was his suggestion that the instant application is somehow less disruptive and thus deserving of greater consideration. While this submission does accurately reflect a potential difference in the two types of applications, we do not think the distinction is one that can be acted on while, at the same time, accepting the policy underlying section 92(2)(i). Whether the second application is one of certification or termination, the disruption to collective bargaining after the dismissal of the first application can be identical. Moreover, the explicit statutory bars to subsequent applications would only be triggered if the raiding applicant for certification on the second application won the representation vote. Indeed, one could argue that the Board should be less concerned about a second termination application in that if it is successful there remains no bargaining relationship that can be disrupted by yet another application.

22. Finally, the cases reveal that where special circumstances cause the dismissal of an initial application the Board may be willing to entertain an immediate second application. These cases can also be seen as an attempt by the Board to balance employees wishes against stability in collective bargaining. Where an initial application is dismissed because of "a technical irregularity", it has been the Board's view that a second application ought to be entertained to determine effectively the real representation issue before it. Initial cases so dismissed are usually dispatched quickly and cause little adverse impact on any ongoing bargaining by the incumbent. However, just what constitutes a technical irregularity is not easily defined. The filing of "stale-dated" cards by mistake even when "fresh" cards pre-existed the first application has been held not to raise a special circumstance avoiding the application of section 92(2)(i). See Windsor Lumber Co. Ltd., supra. On the other hand, the dismissal of a first application because of the impact of section 92(2)(a) on the membership support of an applicant forced to accept the application date of a competing but earlier application has been held not to prevent a second application. It was thought that any other result would be "unfair and unduly technical". See Du Pont of Canada Limited, [1967] OLRB Rep. Nov. 737. The Board has also allowed a second termination application where a first application was dismissed because an applicant did not know enough to call available evidence regarding the circulation of a petition or because a principal witness was on vacation out of the country and the necessity of his attendance was not appreciated. See also Soo Dairies Limited, [1971] OLRB Rep. July 439 and Calvin W Golbeck, [1978] OLRB Rep. June 543. However, the cases also make it clear that where there is an ongoing bargaining relationship an application need not result in an actual representation vote to cause the Board to refuse to entertain a second application under section 92(2)(i). For example, an application for certification dismissed because the applicant could not establish itself as a trade union within the meaning of the Act has provided a basis to the invocation of section 92(2)(i). See Filey-Hall Paper Box Co. Ltd., supra. A similar result has followed where a certification application was dismissed at a hearing because of clearly insufficient membership evidence support. See Trinidad Leaseholds (Canada) Ltd., supra. The same end can befall a second termination application where the first is dismissed because the Board is not satisfied that at least 45% of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the incumbent trade union. See Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791; Continental Can Company of Canada Limited, [1964] OLRB Rep. Dec. 459 (the second application dismissed June 25, 1964).

23. The exercise of a discretion where the competing interests are as fundamental as in the instant case always presents a difficult decision. However, the Board must do its best to articulate the considerations to be considered and its reasons for assigning them particular weights.

24. In favour of refusing the application is the apparently uncompleted discussions between the intervener and the respondent since the dismissal of the termination application. While the earlier major difference between them has been removed by legislation, a new and difficult issue has surfaced as a result of the passage of nineteen months following the commencement of the strike . Also outstanding are many monetary items and certain differences over language. Indeed, the applicant's published position on the status of striking employees revealed in the excerpt from Exhibit 19a adds force to the intervener's argument that it should be allowed to pursue bargaining on their behalf. Speculation over the fruitfulness of future discussions between the respondent and the intervener on this issue could be seen as violating the Board's earlier reasoning in Canadian Sealright discussed above.

25. A se2ond factor in favour of a refusal, is the close association between the earlier termination application and the instant certification application. A substantial majority of the employees supporting the applicant were petitioners. Key officials of the applicant were prominent petitioners. The solicitor for the applicant acted for the petitioners in writing to the respondent in carly to mid-January on the topic of contract ratification procedures. He acted for them on their application for reconsideration. And this application was filed before the reconsideration request had even been dealt with by the Board. The close association between applications is also revealed in the literature of the applicant, excerpts of which are reproduced above. The totality of this issue raises the concern expressed by the Board in Filey-Hall Paper Box Co. Limited, supra, that this second application has been brought "to try the same representation dispute" that was previously before the Board and dismissed.

26. In support of entertaining the application is the overall duration of the conflict between the respondent and the intervener. The intervener was certified March 14, 1979 and had twelve months of "sheltered" negotiating time including six months of strike action to achieve a contract. After the passage of that time the intervener had not achieved a contract and it requested the resumption of meetings between the parties only after the filing of the first termination application. As of that same point in time, only twenty per cent of the bargaining unit remained on strike. Had the second termination application been processed and dismissed by this Board within a month of its filing, i.e. before June 1980 and Bill 89, the Board would have been hard pressed to characterize the situation as anything other than one involving irreconcilable difference. Once such a clear and unequivocal impasse involving strike action has arisen and continues beyond the period provided in section 64, it may be more difficult to talk realistically about the right of the incumbent union to a further opportunity to bargain. It can be persuasively argued that at such a juncture stability in labour negotiations should give way to the wishes of the very employees who have been embroiled in the conflict for such an extended period. Of course, each case should turn on its own particular facts. We would also note that the legislative schemes in other jurisdictions dealing with the relationship of ongoing negotiations to representation proceedings are quite different. See Adams Laboratories L rd., [1980] 2 Can. LR BR 101; CJMS Radio Montreal (Quebec) Limited, [1979] I Can. LRBR 426. The legislation of this Province has again taken a distinctly different approach and this Board must honour the implications that arise from it in cases of this kind.

27. Also in favour of entertaining the application is the fact that the second termination application did not result in a representation vote and the Board expressly found that the respondent had not engaged in any culpable conduct. The Board simply could not be satisfied that everyone who had signed the petition did so voluntarily because of the way in which it was circulated. In this sense, the wishes of all bargaining unit employees have not been directly tested. With the great passage of time both in the processing of the case and since the issuance of a certificate to the intervener (i.e. two years) it is not particularly surprising that objecting employees wish to continue to place the intervener's status as bargaining agent in issue. Moreover, the intervener's position on the return of the remaining striking employees and its ongoing boycott activity would obviously concern replacement and low seniority employees given the reduced bargaining unit size. And finally, this application presents a choice between bargaining agents. The issue in the earlier proceeding was quite different.

28. Two section 92(2)(i) issues are before us. Should we entertain the instant applicant? And, if not, can we and should we go on to impose a ten month bar as requested by the intervener? Answering the last question first, we agree with the respondent's counsel that the Board cannot impose a prospective bar on this applicant. Section 92(2)(i) makes it clear that only an unsuccessful applicant can be prospectively barred. The Board, of course, may refuse to hear subsequent applications filed by other applicants affecting the same employees. But we cannot conclude that the section envisages the imposition of, in effect, a double penalty on an innocent applicant (i.e. a refusal and a bar). It is our opinion that a different applicant who has its application refused under 92(2)(i) cannot properly be characterized as an unsuccessful applicant for the purposes of imposing a bar. The refusal of such an application is to prevent further disruption of bargaining and does not itself amount to a representation proceeding falling within the purpose underlying a bar. Alternatively, the Board would not impose a ten month bar in this situation in any event. For the reasons discussed below, the stipulation of a precise but lesser bar would be inappropriate having regard to all of the circumstances.

29. Attempting to balance all of the factors above, we have come to the conclusion that this application should be entertained. The intervener was unable to cite any previous Board decision refusing to hear a second application where the incumbent trade union had over twelve months of sheltered bargaining, including six months of strike activity, to enter into a collective agreement and in this case a first collective agreement. No earlier case has involved a total passage in time of two years. And, further, in all the earlier cases before the Board, none of the incumbent trade unions had as much time between the two relevant applications as the intervener has had in this case, i.e. almost two months. Admittedly, current discussions were disrupted by the application at hand but we are not satisfied on the evidence, particularly because of the duration of the impasse, that the intervener lacked a reasonable opportunity to bargain. While the Board was initially inclined to refuse to entertain this application for a few weeks, we have come to the conclusion that such an approach would more likely create greater controversy and turmoil between the parties. In fact, the intervener's emphasis on the need for a ten month bar is, in a sense, a reflection of this labour relations reality and a strong indication that even it is unsure of what is reasonable in the circumstances. More importantly, where a dispute has endured as long as this one has and where, as here, there is no previous history of collective bargaining between the parties, the Board is of the view that the greater weight must now be given to an application aimed at testing employee wishes. Also of relevance is the fact that the employer in this case has not engaged in any unfair labour practices prolonging the dispute; in fact, its conduct did not in any way lead to the dismissal of the preceding termination application. With respect to the status of the striking employees, we note that regardless of the outcome of a representation vote they have important statutory protection against both employer and trade union discrimination. At this point in time we do not think their more immediate interests can override the more general concern of ascertaining the wishes of all bargaining unit employees. We also note the applicant's withdrawal, by its counsel at the hearing, of the remarks found in Exhibit 19a.

30. On the issue of the appropriate pre-hearing vote procedure where an applicant has not had its status determined in an earlier proceeding, this panel of the Board specifically endorses the approach adopted in Emery Industries Limited, supra. In particular, we are in agreement with the following reasoning found at paragraph 11 of that decision:

We have carefully considered the submissions of the intervener with respect to the jurisdiction of the Board to order a representation vote.

Essentially, the intervener argues that until a trade union establishes its status, it is not entitled to make use of the pre-hearing vote procedure. We cannot accept this contention. 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 a 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.

If the intervener's submission was correct, it would be difficult to understand how membership evidence in a new trade union could be valid if executed before the trade union had established its status before the Board. However, that conclusion would be circular and entirely defeating of first applications of any kind. See also Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hosjital Association (1972), 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63. We therefore direct a pre-hearing vote be taken and that the ballot boxes be sealed pending a Board determination of the applicant's status as a trade union within the meaning of the Act. In our view, no special circumstances exist to merit another approach. The voting constituency is:

All office and clerical employees of The Ontario Hospital Association within the Municipality of Metropolitan Toronto, save and except section head, manager and co-ordinator, secretaries to those above the rank f supervisor, audio visual staff, sales staff, communications staff, print shop staff, mail room clerks regularly assigned to reading mail, internal auditors, consultants, all employees in the Hospital Employee Relations Services Department (including personnel and payroll staff), all employees of the Investment Services Department, all employees of the Hospital Accident Prevention Department, systems analysts, programmers and all computer operations staff, maintenance engineers, pharmaceutical chemists, students employed during the school vacation periods and persons regularly employed for not more than twenty four hours of less per week.

A labour relations officer is directed to confer with the parties with respect to the date and hour for taking the vote and the number of and locations of polling places. In all other respects, the previous pre-hearing meeting with the parties appears to be adequate. The matter is then to be returned to the Registrar for the conduct of the vote as directed. All employees of the respondent in the voting constituency on the 27th day of February, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between the 27th day of February, 1981, and the date the vote is taken will be eligible to vote. The Registrar is directed to relist this matter for hearing immediately following the taking of the vote for the purpose of inquiring into the status of the applicant and all other outstanding issues.

31. The Board wishes to thank all three counsel for their very thoughtful arguments and assistance in processing this matter expeditiously.

DECISION OF BOARD MEMBER D. B. ARCHER;

1. I dissent. On the basis of the facts, which are accurately set out in the decision of the majority, I do not agree that this application should be entertained at this time. As the narration of the facts indicates, one of the major items in dispute, namely union security, was removed from the bargaining table by the coming into effect of Bill 89. With that major obstacle out of the way, the intervener trade union and the respondent were not afforded a reasonable opportunity of engaging in any meaningful negotiations on the remaining issues in dispute, because of the filing of a second application of termination.

2. Admittedly, a long period of time has elapsed without a collective agreement coming into existence. However, the period of time alone is not decisive without regard to the other circumstances. The efforts of the intervener were interrupted by two unsuccessful termination applications. In the light of all these circumstances, I would have held that this application was premature and therefore should be dismissed in accordance with the authority of the Board under section 92(2)(i).

3. I also wish to disassociate myself from the majority's endorsement of the Emery Industries Limited principle, which is to the effect that a pre-hearing vote may be directed by the Board prior to the proof of trade union status by an applicant.

4. I disagree with the reasoning in the passage quoted from the Emery Industries Limited decision at para 29 of the majority decision, where it states that "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."

5. There is no question that section 8 of the Act contemplates that the resolution of issues be postponed until after the vote is held. However, in my view, the status of the applicant is so fundamental that this is not one of the issues that may be postponed under the scheme set out in section 8. Section 8(1) states that "a trade union may request a pre-hearing representation vote be taken." It is clear that before the Board has jurisdiction to direct a vote under section 8(2), it must be satisfied that the applicant requesting it indeed is a trade union within the meaning of the Act.

6. Besides, it concerns me that the Board is directing employees to vote for or against an entity, which may or may not be in existence. When employees cast their ballots, they will not have any assurance that the applicant is not employer dominated or engaged in discriminatory practices. They will not know whether the applicant has a constitution or whether it has elected officials. On the other hand, there is always the possibility that, from the mere fact that a vote has been directed, employees may assume that the Labour Board has already recognized the applicant as a legitimate trade union.

7. I am of the view that the Emery Industries Limited case is wrongly decided. I would have required the applicant to prove status, prior to being entitled to any representation vote. In order not to deny new trade unions access to pre-hearing votes, the Board should devise a method of conducting a quick hearing to dispose of trade union status issues in these circumstances.