[1983] OLRB Rep. August 1262

0775-83-R; 0776-83-R Service Employees Union, Local 204, Affiliated with the A.F. of L., C.I.O., C.L.C., Applicant, v. Bestview Holdings Limited, Respondent, v. Christian Labour Association of Canada, Intervener

BEFORE: Richard M. Brown, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.

APPEARANCES: L. A. Richmond, R. DeGroot and A. Ferens for the applicant; George Longo and Robert Perkins for the respondent; W. R. Herridge, Q. C., F Heerena and D. Miller for the intervener.

DECISION OF THE BOARD; August 29, 1983

1. The Board directs the above applications be consolidated.

2. This is an application by the Service Employees Union, Local 204, (SEIU), to be certified as bargaining agent for employees working at a nursing home in Etobicoke opened in the spring of 1983.

3. The respondents, Bestview Services Limited and Bestview Holdings Limited, together operate a number of nursing homes in centres around Ontario. Bestview Services Limited usually employs the housekeeping, laundry and kitchen staff, and Non-registered nurses, physiotherapists and craft employees are engaged by Bestview Holdings Limited. In Bestview Holdings Limited, [1983] OLRB Rep. Feb. 185, the respondents conceded and, pursuant to section 1(4) of the Act, the Board declared they were one employer. The applicant contended this declaration also applies to the present proceeding, and the respondents did not object. Consequently, we will treat them as one employer and will refer to them as Bestview.

4. The Christian Labour Association of Canada (CLAC) represents all or some of Bestview's employees at six other nursing homes in Ontario. SEIU presently is the bargaining agent for nursing staff at the Orillia home, and the Canadian Union of Public Employees represents kitchen employees in St. Catharines.

5. CLAC has filed an intervention, contending it already represents the employees at Etobicoke. This claim rests upon a certificate issued in January 1974, a collective agreement executed in February 1982, and a subsidiary agreement concluded in April, 1983. The employer took no part in these precedings concerning CLAC's status at the Etobicoke home.

6. The certificate is dated January 18, 1974 and defines the bargaining unit as "all employees of Bestview Holdings Limited at its Bestview Lodge Nursing Home in the Municipality of Metropolitan Toronto" with some exclusions which are not relevant.

7. The earliest collective agreement introduced into evidence is dated September 17, 1979. The recognition clause defines the bargaining unit as "all employees as outlined in the 'Preamble', and as specified in Schedule 'B"', with exceptions which are not relevant. Schedule "B" lists several classifications. The preamble reads as follows:

"WHEREAS the Ontario Labour Relations Board did on the following dates and at the following locations:

March 27, 1973 Sarnia Ontario

May 2, 1973 St. Catharines, Ontario

August 3, 1973 Markham, Ontario

January 18, 1974 Toronto, Ontario

certify the Union as the bargaining agent for certain employees of Bestview Holdings Limited;

AND WHEREAS Bestview Holdings Limited has voluntarily recognized the Union as the bargaining agent for certain employees in the following location:

Newmarket, Ontario October 1, 1974

AND WHEREAS Bestview Services Limited has voluntarily recognized the Union as the bargaining agent for certain employees in the following locations:

Sarnia, Ontario

Markham, Ontario

Toronto, Ontario

Newmarket, Ontario

AND WHEREAS the Ontario Labour Relations Board did on the following date and at the following location:

April 4, 1974 Orillia, Ontario

certify the Union as the bargaining agent for certain employees of Bestview Services Limited;

AND WHEREAS the parties hereto have agreed to enter into a collective bargaining agreement upon the terms hereinafter set forth;

NOW THEREFORE THIS AGREEMENT WITNESSETH:"

The February, 1982 agreement between Bestview and CLAC applies to "all employees and locations as outlined in Schedule 'B"', again with exceptions which are not relevant. Schedule ''B" provides:

This Collective Agreement applies to Employees of the Employer working in the classifications as outlined below in the Employer's Nursing Homes at the following locations:

SARNIA: MARKHAM:

Kitchen Kitchen

Housekeeping Housekeeping

Laundry Laundry

Nursing Aides Nursing Aides

Crafts Crafts

Physio-Therapy Physio-Therapy

Health Care Aides Health Care Aides

Assistant Cook Assistant Cook

Cook Cook

R.N.A. R.N.A.

ST. CATHARINES: ORILLA:

Housekeeping Kitchen

Laundry Housekeeping

Laundry

Nursing Aides Assistant Cook

Crafts

Physio-Therapy Cook

Health Care Aides

R.N.A.

TORONTO: NEWMARKET:

Kitchen Kitchen

Housekeeping Housekeeping

Laundry Laundry

Nursing Aides Nursing Aides

Crafts Crafts

Physio-Therapy Physio-Therapy

Health Care Aides Health Care Aides

Assistant Cook Assistant Cook

Cook Cook

R.N.A. R.N.A.”

8. Mr. Fred Heerena, a CLAC business agent since 1974, gave evidence about the events surrounding the opening of the Etobicoke home in the spring of 1983. Mr. Heerena is stationed in St. Catharines, and is involved in the day to day labour relations of employees in that city. From 1976 to present, he has also co-ordinated the dealings of business agents in other centres with Bestview. He participated in the negotiation of the 1979 and 1982 collective agreements.

9. Mr. Heerena could not recall any discussions occurring from 1976 until the spring of 1983, between Bestview and CLAC, about the scope of bargaining rights in Toronto. The first such exchange took place on March 15, 1983. Fred Heerena was aware of the impending start-up in Etobicoke, and he raised the topic at a second-stage grievance meeting at Bestview's head office. Heerena told Mr. George Longo the 1982 collective agreement would cover this operation when a workforce was hired. Mr. Longo said he might be prepared to agree, but he had other concerns to talk about. George Longo asked for a "wage break" at Etobicoke for a period of one year to off-set start-up costs. He suggested SEIU would be willing to make this concession, and said he was going to approach the rival union. Mr. Heerena declined to accept the bargain which Mr. Longo proposed, but they met again during the first week of April. Heerena reiterated CLAC's claim to the Etobicoke home under the 1982 agreement, rejecting the idea of a wage concession. Londo announced "the unions would have to fight it out". At this point CLAC reconsidered its position. It had earlier sought legal advice and was concerned that it was heading towards costly legal proceedings. CLAC was also anxious to protect the interests of employees at other homes who had expressed a desire to use the transfer provisions in the master agreement to move to Etobicoke. Mr. Heerena testified these concerns led CLAC to agree to a wage concession in exchange of Bestview's acknowledgment of CLAC 's pre-existing bargaining rights in Etobicoke.

10. On April 22, 1983 CLAC and Bestview reached agreement on the terms of three subsidiary contracts. One relates to the general workforce and addressed a range of topics. It extends the expiry date of the 1982 master agreement from March 31, 1983 to March 31, 1984, as required by the Inflation Restraint Act, S.O. 1982, c. 55 and calls for wages increases in conformity with that Act. The other two agreements focus upon Etobicoke employees. The first purports to clarify the meaning of the word Toronto in the 1982 contract:

"The parties wish to clarify Schedule 'B' to the Collective Agreement. THEREFORE, the parties hereto agree that the location 'Toronto' referred to in Schedule 'B' means the Municipality of Metropolitan Toronto."

The remaining agreement of April 22nd provides that the wage rates set out in the 1982 master agreement, unadjusted for inflation, apply from April 23 to December 31, 1983 to employees hired after April 22, 1983 to work at the James L. Arnott Nursing Home in Etobicoke. Although the terms of the two agreements relating to the Etobicoke home were settled on April 22, 1983, these contracts were not reduced to writing until a later date. On April 28th, Fred Heerena received the written agreements from counsel, signed for CLAC, and forwarded the documents to Bestview. The employer signed the contracts on May 3rd.

11. There were no employees at the Etobicoke Home on April 22, 1983. On April 26th or 27th, an orientation program began for employees of the James L. Arnott Nursing Home, and it opened its doors for business in May. Prior to this time, the employer operated only one home in each of the centres referred to above.

12. The number of persons employed at each location is as follows:

Sarnia 47

Markham 26

St. Catherines 100

Orillia 15

Newmarket 39

Main Street 66

Etobicoke 61

Approximately five of the sixty-one Etobicoke employees transferred there from other Bestview Homes pursuant to the master contract.

13. Mr. Heerena also described the structure of collective bargaining between Bestview and CLAC. A master agreement applies to all homes. CLAC is represented at the bargaining table by a committee made up of business agents and at least two employees from each location. All employees comprise one large constituency for the purpose of ratification votes. Administration of the contract is a local matter, subject only to the coordinating role performed by Fred Heerena.

14. The submissions made by counsel for CLAC centre around three alternative arguments. The 1974 certificate gives CLAC bargaining rights for all of Metropolitan Toronto. The 1982 collective agreement has the same effect. The two 1983 subsidiary agreements which address the Etobicoke home, either explicitly or implicity, constitute a valid voluntary recognition.

15. Counsel for SEIU disputed CLAC’s reading of both the 1974 certificate and the 1982 collective agreement. He also impugned any voluntary recognition agreement entered into during the spring of 1983 on two grounds. First, it was executed before there were any employees at Etobicoke and, therefore, at a time when CLAC did not enjoy the support of Etobicoke employees. Secondly, the employer acted out of favouritism for CLAC over SEIU. Finally, counsel contended that rates of pay at the Etobicoke home are lower than allowed by the Inflation Restraint Act.

16. Before turning to the wording of the certificate, we offer a comment on its relevance. We doubt whether bargaining rights granted almost a decade ago continue to have any force independent of the current collective agreement. The parties are free, subject to the restraints discussed below, to agree to expand or contract the scope of the bargaining unit described in the certification. See Beverage Dispensers & Culinary Workers Union v Terra Nova Motor Inn Ltd., (1974), 1974 CanLII 192 (SCC), 50 D.L.R. (3d) 253 per Laskin C.J.C. The primary significance of the certificate at this point in time is as an aid to interpreting the collective agreement.

17. The certificate refers to "all employees of Bestview Holdings Limited at its Bestview Lodge Nursing Home in the Municipality of Metropolitan Toronto". This bargaining unit description departs from the Board's usual practice in setting the territorial limits of bargaining rights. Most certificates refer only to a municipality. The transfer of a workforce from one location to another within the municipality does not defeat a certificate worded in this way. Moreover, such a certificate embraces a new, additional enterprise in the municipality. However, not all certificates are of this type. A certificate is typically restricted to a street address when an employer carries on operations at two locations in a municipality, a union applies to represent employees at only one, and they constitute an appropriate bargaining unit. In the past, a unit description narrower in scope than a municipality was occasionally granted in other circumstances, on the consent of the parties. The certificate in issue refers specifically to the Bestview Lodge Nursing Home, the name by which the Main Street home was known in 1974. This restriction has the same effect as referring to a street address in the sense that the certificate cannot embrace the home on Main Street as well as one in Etobicoke. Consequently, whatever the present force of the certificate, CLAC cannot found a claim to the Etobicoke home upon it.

18. Two agreements focus upon Etobicoke employees. The first purports to clarify the meaning of the word Toronto in thn the City of Toronto and Metropolitan Toronto. To resolve this ambiguity we must turn to the 1979 contract and to the 1974 certificate. The 1979 agreement defines the bargaining unit by reference both to the 1974 certificate for employees of Bestview Holdings Limited at Toronto and to the voluntary recognition agreement for employees of Bestview Services Limited at Toronto. Insofar as employees of Bestview Holdings Limited in Toronto are concerned, the clear inference is that the bargaining unit described in the 1979 contract is the same as the one set out in the certificate. In other words, Toronto refers to the nursing home on Main Street. The parties must have intended Toronto to have the same meaning in the context of the voluntary recognitioin agreement between Bestview Services Limited and CLAC. The 1982 contract also refers to Toronto, but not to the cer­tificate. We must assume the parties intended the word Toronto to mean the same in 1982 as in 1979, in the absence of any evidence of a contrary intention. There is no such evidence. Indeed, Mr. Heerena testified the scope of bargaining rights was not discussed from 1976 to the spring of 1983. CLAC is not granted bargaining rights for Metropolitan Toronto by the 1982 agreement.

19. Two of the subsidiary collective agreements of April 22, 1983 do recognize CLAC as bargaining agent for employees at the Etobicoke home. These agreements are subject to challenge under section 60. It provides:

"60. -(1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwtih in respect of the employees affected by the application."

The Board has repeatedly stated a union is not "entitled to represent the employees in the bargaining unit", within the meaning of section 60, unless a majority of them have demonstrated their support for the union. See T R S Food Services Limited, [1980] OLRB Rep. Mar. 360 and the cases cited therein.

20. CLAC contends the bargaining unit referred to in section 60 is the overall unit comprised of seven nursing homes. In Bestview Holdings, supra, the Board ruled the six homes covered by the 1979 master agreement comprised a single bargaining unit. (The result of that decision was a raid by SEIU at the Main Street home failed, because the union had inadequate support in the larger unit.) From SEIU's point of view, the bargaining unit under section 60 is the Etobicoke home. In short, the parties disagree about what unit is to be looked to when section 60 is applied to a voluntary recognitiion agreement which pushes out the boundaries of an existing unit.

21. The starting point for resolving this issue is a distinction between an agreement that adds present employees to a bargaining unit and the expansion of a unit before there are any employees in the addition. Consider first the case of present employees.

22. The Board on several occasions has been faced with a voluntary recognition that expands bargaining rights. In some cases the Board has looked to the enlarged unit, and in others the constituency considered was the addition to the unit. Significantly, the outcome never depended upon a choice between the two. The voluntary recognition in Metcalfe Realty Company, [19651 OLRB Rep. Sept. 385 included additional classifications in the bargaining unit. For the purpose of determining employee support, the Board expressly chose the larger over the smaller unit, but gave no reasons. However, the union did not demonstrate that it represented a majority of employees in either constituency. Metcalfe Realty was cited with approval in John Beggins Re UAW, [1981] OLRB Rep. Dec. 1803, where a bargaining unit was expanded, but employees affected were allowed to opt out. A section 60 application was filed by an employee who had exercised this option, and it was dismissed because the applicant was not in the unit. The Board went on to say that the application would have failed in any event, because the union was supported by a majority of employees in the new expanded unit. The overall unit was again looked to in Warren Bitulithic Limited, [19821 OLRB Rep. Sept. 1375. However, the Board did not consider the possibility of a different constituency. Moreover, this determination did not effect the outcome of the case, because the union did not enjoy majority support either in the overall unit or among the new group of additional employees.

23. These cases may be contrasted with two others in which the Board upheld an agreement to enlarge an existing unit on the grounds that a majority of the employees in the new portion of the unit supported the union. See Acme Paper Products Company, [1968] OLRB Rep. Dec. 888 and the Doctors Hospital, [1972] OLRB Rep. May 401.

24. Our interpretation of section 60(1) should be informed by an appreciation of the role played by majority rule in the larger scheme of the Labour Relations Act. Majoritarianism is a basic tenet in the creation of brand new bargaining units, by either certificate or voluntary recognition. A union applying for certification need only demonstrate overall majority support in a unit determined to be appropriate for collective bargaining. A dissident group must abide by the will of the majority. When a unit is created by voluntary recognition, its parameters are set by the parties, and a majority within these boundaries prevails once again. At first blush, these observations might seem to lend credence to the overall majority test adopted in Metcalfe Realty, supra, for voluntary recognition agreements which expand a bargaining unit. But any similarities between the creation of bargaining rights by certification, a fresh voluntary recognition, and an agreement to expand on existing unit prove to be very shallow when the surface is penetrated.

25. Consider first the opportunity for present employees to participate in shaping a decision which will have a crucial effect on their employment. In the certification process, a union must campaign to win the hearts and minds of employees, and all or most of them are likely to be aware of an organizing drive. They are able to engage in the ensuing debate over the strengths and weaknesses of this union, and perhaps its rivals, and thereby may influence the outcome. When a new bargaining unit is created by voluntary recognition, section 60 ensures affected employees a similar opportunity to participate in determining their own fate. The union must be able to show a majority .of employees want to be represented by it. The evidence of support may take the form of attending a meeting to establish the union and ratifying a collective agreement. (See Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155.) These group activities provide a forum for an exchange of views among employees. The expansion of a bargaining unit by voluntary recognition, on the strength of an overall majority in the enlarged unit, presents a very different picture. The union can achieve its objective by relying upon employees in the old unit, and need not even give advance notice to a smaller number of employees in the increment.

26. The size of the bargaining unit is another important consideration. The larger is the unit, the greater is the tension between majority rule and self-determination for a small group of employees with a different point of view. The Board has recognized the importance of self-determination in the certification process. In K Mart Canada Limited, [1981] OLRB Rep. Sept. 1251, employees at one of several stores in a municipality had expressed a desire to bargaining collectively, but they were outnumbered by co-workers elsewhere who had not. A single store was found to be an appropriate unit in these circumstances. The converse situation is of greater interest for present purposes. Employees at one location may not want to be represented by a trade union which is supported by all other employees. As noted above, the typical certificate coincides with the boundaries of a municipality. If most of the employees in this unit embrace collective bargaining, the others are bound by this decision. The other side of the coin is that employees in one municipality, who want a particular union, cannot sweep in a minority in another municipality, who reject that union and perhaps collective bargaining in general. This limit on majority rule is discussed in Bruce Peninsula & District Memorial Hospital, [1982] OLRB Rep. May 656, at para. 7, and Adams Furniture Co. Limited., [1975] OLRB Rep. June 491, at paras. 7 and 8. Municipal boundaries were not set down to strike an appropriate balance between majority rule and self-determination in the labour relations setting. The resulting compromise varies from case to case — depending upon the dimensions of a municipality, the location of each enterprise and the size of workforces — but at least some bound is placed on majoritarianism. This constraint is missing in voluntary recognition.

27. The next point of comparison is the composition of the bargaining unit. The more disparate are the interests of employees in the unit, the less effectively can a bargaining agent represent all groups. Insufficeint attention to special interests not only prejudices some employees, but also may create a recruitment problem for management. To meet these concerns the Board will not throw together employees who lack a community of interest. For example, plant and office employees are segregated in separate bargaining units: see H Gray Limited, 55 CLLC ¶ 18,011. The community of interest test, in an important sense, is a check on majority rule. The community of interest safeguard is significant when an existing bargaining unit is expanded to embrace unorganized employees. A history of collective bargaining by one group, but not the other, may create a divergence of interests. The community of interest criterion is not applied when a union and employer enter into a voluntary recognition agreement to expand a unit.

28. Self-determination and community of interest often favour relatively' small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

29. How is self-determination and community of interest reconciled with consolidated bargaining in the certification process? The K Mart decision, supra, at paras. 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination. But the Board declared that self-determination would not always come out on top. One example used to make this point involved an employer operating fast food outlets at several locations in a municipality and employing at each a substantially smaller number of employees then worked at one K Mart store. The Board strongly hinted that an application for a bargaining unit comprised of one outlet would be rejected.

30. The differences between a certificate and fresh voluntary recognition, on the one hand, and an agreement enlarging an existing agreement, on the other, can be briefly summarized. Present employees can paticipate in a certification campaign. Majority rule is tempered by the notions of community of interest and self-determination, subject to a countervailing concern for viable bargaining structures. The creation of a new unit by voluntary recognition also entails employee participation. But all of these safeguards are absent in the context of a recognition agreement that expands bargaining rights if the litmus test is an overall majority.

31. Section 60(1) does not compel this result. In interpreting this section, one must remember that the legislative draftsman had the paradigm voluntary recognition agreement in mind. That agreement creates a brand new bargaining unit. In this context, there can be no dispute about what unit is to be looked to for the purpose of measuring support for the union. The statutory language fits an agreement expanding a unit imperfectly. Reference to the bargaining unit prompts the question which bargaining unit — the enlarged unit or the new addition? The parties have already agreed to the larger bargaining unit and, if the voluntary recognition survives, this will continue to be the unit for the purpose of collective bargaining. For these reasons, one may be tempted to say the expanded bargaining unit is the one to which section 60(1) refers. But the words of section 60(1) take on another meaning when the underlying purpose is borne in mind. In the paragidm case, section 60 allows the employees for whom a union is granted bargaining rights to challenge the voluntary recognition. The only employees who inherit a bargaining agent when an existing unit is expanded are those who are newly added. In this sense, they are the group of employees, or the bargaining unit, effected by the challenged agreement. A strong argument can be made that this is the bargaining unit to which section 60 refers. Any remaining ambiguity should be resolved by adopting the interpretation which meshes best with the general framework of the Labour Relations Act. Certification, the primary mechanism for creating bargaining rights, allows employees to participate in making a majority decision and also places some limits on majoritarianism. As an alternative to certification, voluntary recognition occurs outside the Board's purview, but the Act provides a mechanism for retrospective review. In the paradigm case, voluntary recognition also entails employee participation. Turning to the penumbral case of an agreement to expand bargaining rights, we prefer the interpretation of section 60(1) that grants employees this same procedural safeguard. Consequently, the word bargaining unit in section 60(1) must be read to mean the addition to an existing unit. A voluntary recognition agreement is not valid unless a majority of the additional employees support the union. Metcalfe Realty, supra, should not be followed.

32. Our reading of section 60(1) is consistent with the treatment of employees who are added to an existing unit by means other than voluntary recognition. In the federal jurisdiction and in British Columbia, the labour relations board sometimes expands an existing unit upon application by the incumbent union, but only if a majority of the additional employees so desire. See Olivetti Canada Ltd., 11197511 Can. LRBR 60 (B.C.); Reliance Lumber Co., [1975] 1 Can. LRBR 101 (B.C.); Automatic Electric (Canada) Limited, [1976] 2 Can. LRBR 97 (B.C.); British Columbia Telephone Company, [1978] 2 Can. LRBR 387 (Can.). The notion that employees cannot be added to a bargaining unit without reference to their desires has also found favour with the courts. See Board of School Thu stees of School District S7 (Prince George) v. IUOE, 1973 CanLII 1068 (BC SC), [1974] 1 WWR 197 (B.C.S.C.); and University of Saskatchewan v. CUPE, 78 CLLC ¶14,159 (S.C.C.). The approach followed in these cases is discussed with approval in Langille, "Developments in Labour Law: The 1980-81 Term" (1982), 3 Supreme Court L.R. 323, at 339 to 341.

33. We now shift our focus from an agreement that adds present employees to an existing bargaining unit to a voluntary recognition entered into before there are any employees in the new component added to an old unit. In this context, only future employees are affected. Theirstake in the creation of bargaining rights is much weaker than that of the present work force. The reason is obvious. A person who is already employed when a bargaining agent is recognized has no real choice about union representation. The only way for this employee to escape the union is to quit, leaving behind seniority rights and perhaps also benefit entitlements and disrupting personal life. By contrast, an employee who enters an existing bargaining unit, knowing at the time of hire that a union is tied to the job, can avoid the trade union by not accepting employment. This difference between today's employees and tomorrow’s work force becomes highly significant when self-determination is balanced against the dangers of a fragmented bargaining structure.

34. In the certification process, the interests of future employees are assigned less weight than the concerns of present employees. A certificate embraces all those who enter the unit after certification is granted, regardless of their views about collective bargaining. However, the prospective reach of a certificate is limited, at least to some degree, by community of interest and municipal boundaries. For example, a plant unit includes new classification of a production variety but not new office jobs. Similarly, the typical bargaining unit is defined by reference to one municipality, and so does not encompass employees hired in another. A desire to preserve the autonomy of tomorrow's work force is one reason for defining bargaining units in this way. See Canada Safeway Limited, [1972] OLRB Rep. Mar. 262, at paragraphs 3 and 4 and K Mart, supra, at paragraph 9. But subject only to these loose constraints, future employees are swept into an existing unit to avoid undue fragmentation.

35. What about a voluntary recognition agreement that expands a bargaining unit? In the context of present employees, we have already assigned a greater weight to self-determination than to consolidated bargaining, by ruling that a group of employees cannot be added to an existing bargaining unit unless a majority of them wish to be. However, we believe that future employees should bow to the benefits of broadly based bargaining structures. A recognition agreement that expounds bargaining rights to encompass prospective employees should not be struck down.

36. This policy judgment can be comfortably accommodated by section 60(1). It states "the Board may ... declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit." In this setting, the bargaining unit is the addition to an existing unit and contains no employees at the crucial time. Consequently, the Board could make a declaration. But the word "may" clearly confers a discretion not to do so. For the reasons set out above, we believe a declaration would be inappropriate in these circumstances.

37. Under the approach we have described, the time when existing bargaining rights are expanded is crucial. An agreement made after there is a work force in place is subject to challenge, but a voluntary recognition that precedes the hiring of employees is not. The reason for the difference is that employees come to the union in one situation, whereas the trade union comes to them in the other. With this rationale in mind, we can formulate the question that determines on what side of the line any particular case falls. At the time the work force was hired, were employees told, or could they reasonably be expected to have discovered, that their jobs entailed union representation? In other words, the determining factor is what employees knew or could have learned with reasonable effort. The precise moment at which a recognition agreement becomes legally binding is in itself not relevant.

38. We will briefly summarize our conclusions about the application of section 60 to the expansion of existing bargaining rights. The term bargaining unit means the addition to the old unit. An agreement that sweeps in present employees will be struck down pursuant to section 60(1) unless a majority of them support the union. But the Board will exercise its discretion under section 60(1) to uphold an agreement entered into before there are any employees in an addition to an existing bargaining unit.

39. In the case at hand, the Etobicoke employees began their orientation program on April 26 or 27. We do not know precisely when they were hired. Most of them were probably engaged before April 22 when CLAC and Bestview reached an oral agreement. In any event, they were at work before April 28 when the agreement was reduced to writing, and also before May 3 when it was signed by Bestview. On a balance of probabilities, we conclude the Etobicoke employees, when hired, were not told, and could not have with reasonable efforts discovered, that CLAC would be their bargaining agent. In these circumstances, the applicant, acting on behalf of employees, is entitled to invoke section 60 by calling upon CLAC and Bestview to demonstrate that a majority of employees supported CLAC at the time it was voluntarily recognized. As neither of these parties have discharged this onus, we declare CLAC was not, and is not, entitled to represent the Etobicoke employees.

40. Having arrived at this conclusion, there is no need to address SEIU’s other attacks upon the voluntary recognition.

41. The application for certification is timely. We direct the Registrar to reconvene the hearing in this matter.