[1987] OLRB Rep. March 419
2241-86-R The Society of Ontario Hydro Professional and Administrative Employees, Applicant v. Ontario Hydro, Respondent v. Canadian Union of Public Employees - C.L.C. Ontario Hydro Employees Union Local 1000, Intervener v. Groups of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; March 17, 1987
This is an application for certification in which the applicant has requested that the Board conduct a pre-hearing representation vote. Under subsection 9(2) of the Labour Relations Act ("the Act"), the Board may (and ordinarily does) conduct such a vote when asked to do so, if there is the prerequisite appearance of membership support in a voting constituency selected by the Board. This appears to be one of those extraordinary cases in which the Board should not direct a pre-hearing representation vote.
The unit for which the applicant seeks certification consists of what the respondent would describe as "administrative, scientific and professional engineering employees". There is a dispute about whether "professional engineers" should form a separate unit and about how the determination of their wishes in that regard is to be made as required by subsection 6(4) of the Act. There are disputes about the inclusion or exclusion of other job categories by reason of their community of interest with other affected employees and about the application of clause 1(3)(a) of the Act, which is challenged by the applicant as contrary to the Charter of Rights. The applicant and respondent disagree about whether clause 1(3)(b) of the Act results in the exclusion from any appropriate unit or units of approximately 3,000 of the nearly 7,000 persons for whom the applicant seeks certification.
If the union has the requisite appearance of support within such a constituency, as the applicant does in this case, the Board's ordinary response when there is a dispute over the composition of the appropriate bargaining unit is to strike a voting constituency which contains everyone who might later be found to fall within the appropriate bargaining unit and to segregate the ballots cast by any of those in that constituency who might not later be found to be in the appropriate unit: see Carleton Roman Catholic Separate School Board, [1986] OLRB Rep. Sept. 1200, at paragraph 8. In some cases, the number of persons whose ballots would be segregated is sufficiently great that it is administratively simpler and safer to segregate all ballots. That is what would be done here if we were to direct that a pre-hearing representation vote be conducted.
By themselves, the complexity of the bargaining unit issues in this case and the resulting complexity of any pre-hearing representation vote would not, we think, be sufficient reason to refuse the applicant's request that a pre-hearing representation vote be conducted, nor would the very considerable cost to the Board of conducting such a vote. The fact that the applicant has not previously been found to be a trade union does not warrant refusal of the request, for reasons set out in Emery Industries Limited, [1980] OLRB Rep. March 316. For similar reasons, we would not have thought a refusal would be warranted by the mere allegation that the applicant has been the recipient of employer support and, therefore, uncertifiable by virtue of section 13 of the Act.
It is common ground that for many years the applicant and its predecessors or precursors have been party to "agreements" with the respondent which speak to the terms or conditions of employment of persons in the unit for which the applicant seeks certification. These agreements describe the applicant as "the representative body" for these persons, at least some of whom are conceded to be employees to whom the Labour Relations Act can apply. The respondent has expressed one of its several grounds for opposition to the request for a pre-hearing representation vote in these terms:
A prime factor causing the Board to exercise its discretion in ordering a vote prior to a hearing is not present in this Application. Usually the Labour Relations Board is concerned that delay in the Applicant (the Society) being able to exercise representational rights on behalf of employees will cause disinterest in and loss of support for an applicant trade union. Under the Society's current relationship with Ontario Hydro, Ontario Hydro is prepared to permit the Society to continue to exercise its representational role in both negotiations of employment conditions and administration of policies and procedures including access to grievance and arbitration procedure. Negotiations have been continuing for 1987 compensation improvement and a Mediator's Recommendations on Benefits received January 22nd, 1987, have been accepted by both parties. Salary determination, if unable to to be agreed upon in direct negotiations, will be presented at Arbitration and an Award expected by March 10 will be final and binding for this year. In all of the Board jurisprudence on this issue, this unique circumstance of a voluntarily recognized organization continuing to exercise its role in negotiations and related functions has never been considered nor ruled on by the Board.
[emphasis added]
The respondent and the objecting employees both allege that the past and existing agreements between the applicant and respondent constitute employer support of the applicant which would disentitle it to certification by virtue of section 13 of the Act even if the applicant is a trade union as defined by clause l(l)(p) of the Act, which they deny. The applicant claims that it is a certifiable trade union, and that its agreements with the respondent have been and are collective agreements within the meaning of the Labour Relations Act. The respondent denies that the agreements are collective agreements.
If the Board finds that the applicant is a certifiable trade union and if its current agreement with the respondent is a collective agreement, it appears it would follow that the applicant already has bargaining rights for employees in the unit for which it seeks certification, and no outcome of this application - and, hence, no outcome of a vote - could augment or diminish those existing bargaining rights. If, on the other hand, the applicant is not a certifiable trade union, then it can have no existing rights which are enforceable under the Labour Relations Act and no outcome of a vote could result in its having such rights. Unless the Board were to find that an employer and a union can contract out of the application to them of the Labour Relations Act and, further, that these parties actually did so without the applicant's thereby or thereafter having become uncertifiable, we have difficulty seeing how the applicant could be found to be a certifiable trade union without its existing agreement with the respondent being a collective agreement. While we have come to no firm conclusion on these points, we are led to wonder whether there is any possibility of an outcome of this application in which the results of a pre-hearing representation vote could have a meaningful part to play in the determination of the applicant's right to represent the employees affected by this application. We therefore doubt that we should grant the applicant's request that a pre-hearing vote be conducted.
A decision about whether and how to conduct a pre-hearing representation vote is a procedural decision; it does not determine the substantive rights of any person affected by the application. Because the object of a pre-hearing representation vote is the expeditious determination of employee wishes, this decision is ordinarily made on the basis of the material filed by the parties and a Labour Relations Officer's report on the records of the applicant and respondent and on the positions taken and representations made by the parties' representatives at a meeting he or she will have held for that purpose very shortly after the application was filed. The premise of the pre-hearing vote procedure is that there can be substantial prejudice to an applicant if the determination of employee wishes is delayed. Accordingly, when the Board is inclined by the material before it to refuse a request for a pre-hearing representation vote despite the appearance of the requisite membership support in a suitable voting constituency, the Board schedules a hearing so that the applicant can have the opportunity to address the Board's concerns and show cause why its request should not be refused: A. G. Simpson Co. Limited, [1985] OLRB Rep. Sept. 1341; and see Ontario Hydro, [1980] OLRB Rep. June 882.
Accordingly, we direct that a hearing be scheduled for March 27, 1987 for that purpose and for the purpose of determining the manner in which the hearing of the substantive issues in this application will proceed.