[1985] OLRB Rep. July 1164
0471-85-R Ontario Public School Teachers' Federation, Applicant, v. Scarborough Board of Education, Respondent
BEFORE: Harry Freedman, Vice-Chairman, and Board Members R. J. Gallivan and J. F. Kennedy.
DECISION OF THE BOARD; July 4, 1985
This is an application for certification.
The respondent, in its reply, submitted that the Board should refuse to entertain this application and therefore dismiss this application, or alternatively, refuse to direct a pre-hearing vote, on the grounds that the application is an abuse of the Board's processes. The respondent bases its submission on the allegation that the applicant filed an application for certification on May 1, 1985 (Board File No. 0257-85-R) in respect of the same group of employees who are the subject of the instant application and requested leave to withdraw that application on May 24, 1985, following which, the respondent asserts, the Board dismissed that application for certification. The applicant filed the instant application on May 27, 1985, which, the respondent alleges, was prepared on the day the Board dismissed the applicant's first application and "... is identical in form and substance to application for certification File No. 0257-85-R save and except a pre-hearing vote is now requested."
Without commenting upon the merit of the respondent's submission, the Board is satisfied that the respondent's submission should not cause the Board to decline to conduct a pre-hearing vote. We are not persuaded that the respondent's submissions could not be adequately dealt with at a hearing following the vote, or that no useful purpose would be served by conducting the vote prior to the hearing. (See St. Clair College of Applied Arts & Technology, [1984] OLRB Rep. Dec. 1776.)
The applicant seeks to represent the occasional teachers employed by the respondent in its elementary panel, whereas the respondent submits that the appropriate bargaining unit and voting constituency should be all occasional teachers employed by the respondent. The respondent filed schedules of employees which distinguished between the applicant's and respondent's proposed units. The applicant also challenged the list of employees filed by the respondent that related to the applicant's proposed unit.
If the Board were to adopt the respondent's position on the voting constituency, then the applicant would not even have the appearance of the requisite level of membership support to be entitled to a pre-hearing representation vote. If the applicant's position with respect to the appropriate unit and the challenges are accepted at this stage, the applicant does have the appearance of the requisite level of membership support for it to obtain a pre-hearing vote. (The Board's determination on this point is made having regard to the amended schedules and submissions made by respondent's counsel in its letter to the Registrar dated June 26, 1985.) At this point in the proceeding, there is no reason to define the voting constituency in the way suggested by the respondent. If the respondent's position on the bargaining unit description is ultimately accepted the application will be dismissed without the ballots being counted since the applicant would not meet the conditions set out in section 9(4) of the Act. (See Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602.
Similarly, we are not ruling on the challenges to the list at this stage of the proceeding. We are assuming that the applicant's position on the challenges to the list is correct, in order to determine whether the Board may direct a pre-hearing representation vote. The rationale for proceeding in this fashion has been explained by the Board in The Board of Education for the City of North York, [19841 OLRB Rep. July 989 at 990:
"The purpose of the pre-hearing vote procedure is to test the question of representation as quickly as possible after the application date. This avoids the prejudice which inevitably occurs when the conduct of a representation vote must await the determination of factual and legal issues which can only be resolved after a hearing in which each of the affected parties can participate. Often those disputed issues include the appropriate description of the bargaining unit, voter eligibility and employee status of challenged individuals. If the existence of such disputes could stand in the way of a pre-hearing vote, the procedure's efficacy would be destroyed. That is why the Legislature required only that the Board strike a voting constituency and prescribed as the vote prerequisite only that the applicant have the appearance of the requisite support within the voting constituency. (See generally Emery Industries Limited, [1980] OLRB Rep. March 316 at paragraphs 5, 6 and 7.) Where determination of the actual prerequisite level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union's position on the matters in dispute is correct. A pre-hearing vote is normally directed if on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However, the results of a pre-hearing vote are of no effect unless it is later demonstrated that not less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will normally defer counting any ballots until it can resolve those issues which bear on the propriety of counting all, or any, of the ballots.
As access to the pre-hearing vote procedure is a function of the matters of fact and law put in issue by the parties, there is a risk that frivolous allegations and arguments may be made. The same risk exists whenever entiflement to launch and prosecute proceedings depends only on the assertion of a prima facie case. However a trade union which gains access to the process by asserting unfounded and frivolous allegations and arguments only does itself harm. If it cannot ultimately demonstrate that it had the requisite support, it will never know how many ballots were cast in its favour, because unless the requisites of subsection 9(4) are met, there will be no reason to unseal the ballot box. The application having been pressed past the meeting with the officer, dismissal of the application will normally carry with it a bar imposed under section 103(2)(i). It if becomes apparent to the Board that the assertions which led to the vote were frivolous when made, then the Board may take that into account in determining the length of the bar."
[emphasis added]
- The Board also notes that both parties described the only exclusion from the bargaining unit as "persons covered by subsisting collective agreements." For the reasons set out by the Board in its decision in Niagara South Board of Education, [1985] OLRB Rep. Jan. 90, that description of the exclusion is imprecise. Having regard to the foregoing, the voting constituency is:
all occasional teachers employed by the respondent in its elementary panel in the City of Scarborough save and except employees in the bargaining units for which any trade union held bargaining rights on May 27, 1985.
It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency described above were members of the applicant at the time the application was made. Therefore, the Board hereby directs that a pre-hearing representation vote be conducted among the employees in the voting constituency.
All employees of the respondent in the voting constituency on the 14th day of June, 1985, who have not voluntarily terminated their employment or who have not been discharged for cause between the 14th day of June, 1985 and the date the vote is taken will be eligible to vote.
In view of the submissions of the parties and the issues in dispute, the Board directs that each ballot cast be segregated and that the ballot box be sealed. The Board notes that the parties have agreed that the Board should conduct this vote by mailed ballot.
At the meeting the Labour Relations Officer convened with the parties, the applicant requested a copy of the names and addressed of the bargaining unit employees. It is not apparent from the Officers' report of the meeting what submissions, if any, the parties made, or what position the respondent was taking with respect to the applicant's request. If this matter remains an issue in dispute between the parties, the Board directs the parties to file their written submissions on that issue with the Board by delivering three copies to the Board and one copy to counsel for the opposite party not later than July 11, 1985.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
This panel of the Board is not seized with this matter.
The matter is referred to the Registrar.