[1987] OLRB Rep. January 116
0731-84-R Ontario Public Service Employees Union, Applicant, v. Board of Education for the City of North York, Respondent, v. Ontario Secondary School Teachers' Federation, Intervener
BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and R. M. Sloan.
APPEARANCES: Ian Roland, and Ivor Oram for the applicant; Steven L. Moate and Barbara J. Fickert for the respondent; Maurice A. Green and Fred Birket for the intervener.
DECISION OF THE BOARD; January 22, 1987, as amended February 13, 1987
- This is an application for certification in which the applicant ("OPSEU") and the intervener ("OSSTF") both requested that a pre-hearing vote be taken. The relevant provision of the Labour Relations Act is section 9 which reads as follows:
9.-(1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.
(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.
(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.
(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 7(2).
- The OPSEU application was made on June 13, 1984, and the Board fixed a terminal date of June 22, 1984. On June 22, OSSTF made its application. In those circumstances, section 103(3) of the Act gives the Board three options:
(a) to treat the subsequent application as having been made on the date of the original application;
(b) postpone consideration of the subsequent application until a final decision has been issued on the original application; or
(c) refuse to entertain the subsequent application altogether.
In a decision dated July 6,1984, [1984] OLRB Rep. July 989, the Board (differently constituted) embraced option (a) and decided to treat the OSSTF application as having been made on June 13, 1984, the date the OPSEU application was filed. The two applications were consolidated and processed on that basis.
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 can often arise when the conduct of a representation vote must await the determination of issues which can only be resolved after a hearing in which all of the affected parties can participate. Under section 9(2) the Board strikes a voting constituency and determines whether the applicant has the requisite appearance of membership support within that voting constituency. Any contested issues are dealt with later, after the vote has been held. However, section 9(4) makes it clear that the results of a ~re-hearing vote will have no effect unless it is later demonstrated that, in fact, not less than thirty-five 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.
Upon an examination of the records of the applicant, the respondent, and the intervener, it appeared to the other panel of the Board that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant and/or the intervener at the time the application was made; namely June 13, 1984. It is abundantly clear (and not disputed before us) that the date the Board used for this preliminary assessment of support under section 9(2), was June 13, 1984 - the actual application date for the OPSEU application and the "deemed" application date for the OSSTF application. In both cases the Board treated June 13, 1984, as the "time the application was made" (to repeat the words of section 9(2)) and directed a representation vote on the basis of the "appearance" of support demonstrated on that date.
OSSTF now urges the Board to adopt a different date under section 9(4) for determining its actual level of membership support. In OSSTF's submission the "time the application was made" for the purposes of section 9(4) should be June 22, 1984, the actual intervention/application date rather than June 13, 1984, the "deemed" application date under section 103. Its reason for taking this position is quite simple and candidly conceded. Approximately half of its membership cards were signed after the OPSEU application was filed. If the relevant date under section 9(4) remains June 13, 1984, OSSTF will not be able to demonstrate sufficient support, in fact, to even warrant its appearance on the ballot. Its certification application would have to be dismissed. That is why OSSTF urges the Board to assess its position as at June 22, by which time it had mobilized a sufficient level of membership support to warrant its continued participation in these proceedings. That would mean, of course that the two applications would be assigned different membership assessment dates under section 9(4), and further that the Board would be assigning a different meaning to the phrase "at the time the application was made" which appears in both section 9(2) and section 9(4). In effect, OSSTF is arguing that for the purposes of the 9(4) determination we should reconsider the earlier panel's decision to entertain the intervener's application but deem it to have been made on the date of the making of the original application.
We decline to do so. In our view, a reading of section 103(3) confirms its remedial thrust. It gives a tardy applicant something that it would not otherwise have: a right to participate, as an applicant, in another union's certification proceeding rather than having to wait until the earlier application has been disposed of. But the right of a latecomer to participate may carry with it certain disabilities - namely that its application will be treated as having been made on the date of the making of the original application. That is what happened here, and it is evident that the first Board panel used June 13, 1984, as the date for assessing the unions' appearances support, and directed a vote on that basis. We do not think that it would be consistent with the earlier Board decision or the interpretation of section 9(4) if the phrase "the time the application was made" were now given a different meaning. If this creates something of an anomaly or leads to a result based upon a fiction, it is only because of the way in which section 103 recognizes but also limits the rights of latecomers who file "intervener" applications for certification.
For the foregoing reasons we are satisfied that the date for assessing the unions' level of membership support under section 9(4) of the Act, is June 13, 1984, the actual application date for OPSEU and the deemed application date for OSSTF. On that basis, the Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of OPSEU at the time the application was made; however, the Board is not satisfied that thirty-five per cent of the employees of the respondent in the bargaining unit were members of OSSTF at the time the application was made. OSSTF did not, in fact, have the requisite level of membership support to warrant its appearance on the ballot. Its certification application is therefore dismissed.
What is the result of this finding? The parties are agreed that there must now be a new "two-way" vote in which the respondent's employees will be asked to choose between representation by OPSEU or a "no union" option. The voting constituency continues to be the one the parties were agreed upon. It is set out more specifically at paragraph 4 of the Board's decision of July 6, 1984:
All occasional teachers employed by the respondent in its secondary school panel in the City of North York, save and except persons covered by subsisting collective agreements.
Clarity Note: For the purpose of clarity, the term "occasional teacher" means a teacher employed as a substitute for a permanent, probationary or temporary teacher who has died during the school year or who is absent from his regular duties for a temporary period that is less than a school year and that it does not extend beyond the end of a school year, and does not include any teacher who is employed under a contract of employment in the form prescribed by the regulations under the Education Act.
All employees of the respondent in the voting constituency on January 12, 1987, who have not voluntarily terminated their employment or who have not been discharged for cause between January 12, 1987, and the date the vote is taken will be eligible to cast ballots.
Voters will be asked to indicate whether or not they wish to be represented by the applicant, OPSEU, in their employment relations with the respondent.
Counsel for the respondent and OPSEU have advised the Board that it will be necessary for these parties to meet in order to try to settle new voters lists and a voting procedure which will appropriately recognize the characteristics of the voting constituency. To this end, a Labour Relations Officer is hereby appointed to meet with the parties and assist in making voting arrangements; however, we wish to make it clear, as we did at the hearing, that because of difficulties encountered in previous cases where this method was used, we are not inclined to favour a process of mailed ballots. We are however receptive to designing a balloting process which meets the needs of the employees in the voting constituency. We will remain seized of this aspect of the case, and should it be necessary to address the Board further, the parties may do so, in writing.