London and District Service Workers' Union, Local 220, SEIU, AFL, CIO, CLC v. Kitchener-Waterloo Hospital, 1988 CanLII 3761

[1988] OLRB Rep. April 406

3160-87-R London and District Service Workers' Union, Local 220, SEIU, AFL, CIO, CLC, Applicant v. Kitchener-Waterloo Hospital, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. N. Fraser and H. Peacock.

DECISION OF THE BOARD; April 15, 1988

1. By decision dated March 22, 1988, the Board directed the taking of a pre-hearing repre­sentation vote in this matter. It also responded to a request by the applicant for a copy of the employee list to keep by declining that request and directing that a copy of the voters list accom­pany the copy of the decision sent to the applicant. We now give our reasons for that decision.

2. Both parties filed submissions on the issue in letters dated March 11, 1988. Counsel for the applicant notes that the bargaining unit is composed of approximately 450 people. He argues that disclosure "is necessary to ensure an informed electorate" and points to "an emerging trend in Board decisions to provide the equivalent to such a list in teacher pre-hearing applications". Coun­sel for the respondent refers to "a new internal Board policy" requiring the respondent to provide the applicant with a copy of the employee list and requests a "copy of the policy, together with the reasons therefore, so that I can respond fully on behalf of my client", particularly since, in his view, "the situation is a departure from the Board's earlier practice (and does not seem to be covered by the City of York Board of Education principles)".

3. The Board has clearly indicated that the union is entitled to review the employee list without a Labour Relations Officer being present and has directed that the union be provided with a copy of the list which it may keep: Airline Limousine, [1985] OLRB Rep. Jan. 1; Metropolitan Separate School Board, [1986] OLRB Rep. Dec. 1733. While in both cases the Board of course dealt with specific fact situations and ruled only on those fact situations, it also considered in some detail the interests involved and discussed the Board's approach to the disclosure of employee lists.

4. In Airline Limousine, supra, in which an application for certification was made pursuant to section 7 of the Act with respect to the drivers of airline limousines, the composition of the bar­gaining unit raised several complex issues; the parties met with a Labour Relations Officer in an attempt to resolve or focus the issues and in the course of that meeting, the question of the union's access to the employee lists arose. In dealing with that question, the majority of the Board said the following about the disclosure of the lists to the union before finalization of the bargaining unit description:

5. On an application for certification, when any issue arises concerning the employee list or the composition of the bargaining unit, the Board's longstanding practice is to determine the bar­gaining unit description, then permit the applicant union to review the list so that it can identify and particularize any challenges. If the union does not request to see the list or question its accuracy, the Board will proceed on the basis of the information contained therein without the necessity of formal proof. But nothing in the Act or the Rules makes that employee list "confi­dential", nor is it easy to see where the Board would get the authority to withhold information upon which it planned to act, and which was so clearly necessary to its determination. The records of a trade union relating to membership have been accorded specific statutory treatments, as have other documents revealing employee wishes with respect to union representation. (See section 111 of the Act). Section 111 was passed to reverse judicial decisions requiring the production of such documents revealing employee preferences. (See: Globe Printing Co. v. Toronto Newspaper Guild 1951 CanLII 145 (ON HCJ), [1951] OR. 435; 1952 CanLII 59 (ON CA), [1952] 2 D.L.R. 302; 1953 CanLII 10 (SCC), [1953] 3 D.L.R. 561.) Main­taining the confidentiality of a union's membership records helps to protect employees from unlawful reprisals by those employers who do not accept the legitimacy of their right to join a union or engage in collective bargaining. However, there is no similar provision prohibiting or restricting disclosure of the list of employees said to be, or found to be, in the bargaining unit.

6. It is not difficult to understand why the employee list is revealed. It would be a little curious if a trade union were to be granted a certificate because it had established the requisite level of support in the bargaining unit described generally, but left the hearing without a precise under­standing of the basis on which its application succeeded. On a more basic level, when even a simple certification case involves a comparison of the union's membership evidence with a list of employees in the bargaining unit, and there are statutorily prescribed consequences flowing from that calculation (a vote, outright certification, or dismissal), the union must be entitled to the employee list if it is to participate in the hearing in a meaningful way. How else can it prop­erly protect and advance the rights of its members? How else can it determine whether the employee list is accurate and correct or whether through error, inadvertence, or improper intent the list of employees said to be in the bargaining unit is inaccurate? Now, of course, there may not be very many cases where an employer intentionally misrepresents the number of employees in the bargaining unit. But, as we have already noted, the speed with which the employer must respond to the certification application, the potential complexity of the issues, and the inevitable exercise of judgment will often result in the production of a list which, at least arguably, is not sufficient for the purpose of making the determinations required under sections 6 and 7 of the Act.

7. In our view, there is no sound basis for denying a trade union the opportunity to review the employee list and, in practice, the union has always been given that opportunity. If a question arises concerning the list the union has never been denied an opportunity to review it. Nor is there any good reason why it should not make a copy or take notes, so that it can pursue its inquiries, on its own time. We do not think that it makes sense to draw a distinction between reviewing the list and taking a copy, simply because the latter might assist a union in preparing its case or gathering information which could well result in a withdrawal of a challenge. It would be odd to structure a system in such a way as to reward union officials with a good memory, and multiply the difficulties in large bargaining units where there is the greatest potential for error or misjudgement; and we can only speculate about how a court would respond to this "hide and seek" approach to litigation, in which critical assertions of fact may be revealed or reviewed, but not copied, lest the party asserting those facts lose some tactical advantage attributable to the other's ignorance. Adversarial attitudes are prevalent enough in our collective bargaining sys­tem, without elevating them to the status of principles governing the process by which employ­ees acquire the right to bargain collectively through a union of their choice. If. in the course of a certification application, a union is entitled to review the list - as we find that it is - it is our view that the union should be entitled to make a copy, and, again as a practical matter, a union has always been accorded the right to make a list of all unfamiliar names for the purpose of challenge and investigation. (last emphasis added)

15. It might be said that providing the union with a list of employees gives it an advantage not only in the particular application under review, but also in some later application. It might be said that a union should not have the "tactical advantage" of knowing the parameters of the bar­gaining unit, or the identity of the employees in it, for the purposes of approaching them at some later time to see whether or not they wish to be represented by a trade union. The list might be "abused"; moreover, a calculating union might apply for certification simply to obtain the list for a future campaign. If an employer knew that a union would receive a copy of the employee list, the employer might be tempted not to respond to the certification application, or to make an incomplete response. Finally, it might be said that it is "unfair" that a union be per­mitted to know who the employees are, and the employer is not permitted to know precisely which of those employees have opted to support the union.

16. No doubt there is some basis for these concerns, but in our view they are overstated. First, from a practical point of view, some two-thirds of all bargaining units have less than forty employees so that a mere perusal will be sufficient to generate an accurate list. It is only in larger bargaining units where a copy of the list gives the union the opportunity for future advan­tage, but it is precisely in those larger bargaining units that there is greater margin for error by one party or both, and a greater need for a list to identify and investigate the areas of dispute. Employers who believe they may benefit from filing an inaccurate or incomplete reply can do so now, and that fact in itself suggests that a union should have a copy of the list so it can evaluate its position. But the fact is that employers do not usually certify as accurate what they know is not, and unions do not usually file frivolous applications merely for discovery purposes. What does happen quite frequently are innocent errors by the employer, or an innocent miscalculation by the union as to the contours of the bargaining unit and the number of employees in it. Should the Board's process be abused, it has ample authority to deal with the problem.

[emphasis in original]

5. In Metropolitan Separate School Board, supra, involving an application for certification of full-time Heritage Language instructors, in a previous decision reported at [1986] OLRB Rep. Sept. 1259, the Board had rejected both the bargaining unit descriptions proposed by the applicant and the respondent, and therefore required new lists from the employer in order to identify the persons employed in the unit it had found appropriate. Since that unit included categories of employees the union had not attempted to organize, the Board believed it was "unlikely that the applicant could reasonably determine and state its position with respect to the accuracy of the employer's new lists on the continued hearing date without having some time prior to that date to study the new lists and make any necessary enquiries". Therefore, the Board had directed the respondent to deliver copies of the new lists to the Board and to the union by a specified date. In its December 1986 decision declining the respondent's request for reconsideration of that ruling, the Board referred to the majority's comments in Airline Limousine, supra, which are set out above, and summarized them thusly: "In short, the Board is obliged by the rules of natural justice to pro­vide an applicant union with access to the information in the employer's lists before it acts on that information in making any determination which affects or determines that union's rights".

6. We agree with the analysis in Airline Limousine, supra, Metropolitan Separate School Board, supra, and Nova Scotia Michelin Tire Employees' Local 1699 v. Nova Scotia Labour Rela­tions Board 86 CLLC ¶14,009 (N.S.S.C.) that natural justice principles require that the union be given an opportunity to review the employee list. Indeed, in Sudbury Memorial Hospital, [1974] OLRB Rep. Dec. 871, the Board described the procedure of the Officer's giving the union a copy of the list "for their perusal and verification", to which the respondent objected, as a procedure used for many years by the Board's examiners". The respondent in this case appears to take the position that any procedure other than the union's having the opportunity to review the list in the presence of a Labour Relations Officer constitutes a "new Board policy". In Extendicare Diagnos­tic Services, [1981] OLRB Rep. Aug. 1134, the respondent objected to the union being given an opportunity to review the employee list on the basis that the anonymity of the employees should be protected or that the employees should be served with individual notice and that the list could be used by the union for future organizing. The Board rejected these submissions and with respect to the third, pointed out that the Board can respond directly to an abuse of process and that "[i]n any event, it is the current Board practice to have a Board officer sit with the union during the review of the list and ensure that the list is not utilized in any way unrelated to the case at hand". The Board did not explain or consider how the officer's presence would have such an effect.

7. On the other hand, it should be noted that the Board in Sudbury Memorial Hospital, sup ra, did not see any necessity to refer to the Officer's presence or absence during the time the union reviewed the list. In Airline Limousine, supra, and Metropolitan Separate School Board, supra, natural justice principles and practical considerations relating to the efficiency of the certifi­cation process led the Board to require disclosure of the list to the union without the presence of a Labour Relations Officer and at different stages of the process. Permitting the union to review the list without an Officer being present or permitting the union to keep a copy of the list is therefore not a new policy hitherto unrevealed, but rather simply one way in which the Board has deter­mined that the interests manifest in the certification process can be satisfied. Furthermore, in con­trast to the Board in Extendicare Diagnostic Services, supra, the Board in Metropolitan Separate School Board, sup ra, did consider in some depth the history and value of the Officer's presence while the union reviewed the list (see paras. 8-13 in particular) and concluded that the presence of the Officer could not prevent the abuse hypothesized by those opposing the disclosure of the list. We agree for the reasons cited in Airline Limousine, supra, and Metropolitan Separate School, supra, that an Officer does not need to be present when the union sees the list. We also observe that this use of an Officer's time and abilities may not be the most efficient use of the Board's resources in any given case, especially in a non pre-hearing vote certification when the Officer may be more usefully engaged in assisting the parties with respect to challenges already made or other disputes, either in that or another case listed for hearing on "certification day".

8. While pre-hearing representation vote applications always involve a meeting by the par­ties with a Labour Relations Officer and while those meetings take place only a short time after the terminal date~ it is nevertheless of no less significance that the examination of the list by the appli­cant should not depend on an Officer's availability. Expedition is of major importance in such cases; it could be assisted by the applicant's obtaining a copy of the list at the outset of the pre­hearing meeting with the Officer to determine on its own time whether it wishes to challenge the list, a particularly important point in cases involving large bargaining units and pre-hearing meet­ings lasting more than one day (as did the one in this case).

9. The employer is required to file the employee list by Form 5 of the Board's Rules and Procedures. The employee list is a pleading: it contains facts - the names of employees the employer believes to be in the bargaining unit proposed by the union in its application - which may be disputed by the union. Pleadings are normally exchanged by the parties in accordance with a party's right to information relevant to the issues in dispute or potentially in dispute between or among the parties. There is also a public interest, as well as an interest usually shared by the par­ties, in a speedy statement and resolution of matters in dispute in a certification application. The employee list provides a starting point for the parties' determination of the voters list which some­times mirrors the employee list or contains few changes, but which may also contain many addi­tions to or deletions from the employee list. For those reasons, where the applicant in a pre-hear­ing representation vote application requests a copy of the employee list filed by the employer pursuant to Form 5, to keep, we see no reason why the Officer at the pre-hearing meeting should not provide a copy of the employee list to the union.

10. In this case, had we had an opportunity to rule on the union's request before the issue became moot, on the basis of the submissions before us, we likely would have directed that the union be permitted to keep a copy of the list. We have indicated that there is every reason to sup­port the view, consistent with previous cases, that that would be the appropriate way in which to deal with the matter in the normal course. By the time the matter reached us, however, the parties had agreed on the list for the purposes of the count and on the voters list and there were no out­standing challenges to the list by either party. We therefore do not direct that the Officer now pro­vide the union with a copy of the employee list. The employee list was filed as a document relevant to the litigation. Subject to submissions of employees at the post-vote stage, there are no longer any issues outstanding in the litigation requiring the union's access to the employee list.

11. We should make it clear that our decision in this case is not meant to suggest that we believe that the union is obliged to show that it cannot deal with the relevant issues without the list (or that an effort to do so must be made before the union may keep a copy of the list). Rather, once the union makes the request, we are of the view that the Officer may properly give the union a copy to keep, consistent with ensuring that the union's right to information relevant to issues involving the union which must be decided is an effective, as well as theoretical, right. The reasons advanced against any disclosure of the list or against disclosure without the Officer being present are also advanced against the union's keeping a copy of the list (see the cases cited supra). They have been repeatedly rejected by the Board for reasons which we adopt. Specifically, we agree that any actual abuse of the list can be dealt with by the Board in the case in which it arises. This is pref­erable to refusing to allow the union to keep a copy of the list for fear of a hypothetical misuse, a fear which in our view does not outweigh the requirements of natural justice. Of course, should an employer advance a reason not already considered by the Board, it would be entitled to have the matter heard by a panel of the Board. It is only in this sense that our colleague's statement that "this decision confirms the authority of the Board to decide the disposition of employer lists" applies: the Board always has the jurisdiction to determine whether it should follow its normal practice or whether the specific facts of a case are sufficiently distinct to warrant a departure from normal practice.

12. We note in light of our comments at the beginning of paragraph 10 that the employer was requested to make submissions on the question of the union's keeping a copy of the list; the employer's counsel chose to respond to that direction by requesting "a copy of the policy, together with the reasons therefore" and did not provide any reason why the union should not keep the list in this case. As we have indicated, the cases have clearly communicated that such disclosure may be ordered and have considered the objections advanced generally and in those cases, to such disclo­sure; as the Board stated in Metropolitan Separate School Board, supra, "there can be no doubt after Airline Limousine Service Limited, supra, that the proper approach to the timing and manner of disclosure of employee lists is open to consideration on a case by case basis". It is not unreason­able, therefore, for the Board to expect that a party to a certification proceeding make submissions with respect to its position on the question of the union's keeping a copy of employee lists when that question arises in a certification application. We were not given any reason why the union should not keep the list; nor was the Officer apparently given any reason. Therefore, it appears there was no reason for the Officer not to have given the union the list when it was requested by the union during the first day of the meeting.

13. The applicant refers to and relies on the "teacher pre-hearing vote" cases in its request for the employee list. Those cases consider the interest of employees in access to information about the advantages and disadvantages of union representation and the opportunity of the parties to communicate same. Such communication involves those employees who are eligible to vote and thus the cases deal with the voters list rather than the employee list originally filed by the employer. These cases have directed the provision of voters' names and addresses and are there­fore not on point with the issue here, although they are indicative of the tendency of the Board to require the disclosure of information, not protected by statutory privilege, it considers useful to decision-making by all participants in the certification process. The Board in The Board of Educa­tion for the City of York, [1985] OLRB Rep. May 767 directed that "when an application for cer­tification in respect of occasional teachers is made under section 9 of the [Labour Relations] Act (the pre-hearing vote section), or a vote of occasional teachers is directed under section 7, the respondent employer will be required to file with the Board a list of the names and addresses of all employees known to it to be in the voting constituency. Such a list will be available to any person or party with a direct interest in the campaign".

14. The requirement that the employer provide names and addresses of employees has been based in the cases on the fact that occasional teachers do not have a settled workplace; in Queen's University at Kingston, [1987] OLRB Rep. June 925, the Board indicated that the lack of attach­ment of the employees on a regular and consistent basis to a particular work location may not be the only reason the Board would direct the employer to provide the union with names and addresses. It also indicated, however, that the applicant "must clearly explain why its circum­stances warrant [such] a direction" and suggested that "such a direction will usually be predicated on factors which put the union at a disadvantage vis-a-vis the employer with respect to communi­cating its position and views to the employees" (emphasis added). Since the provision of addresses involves additional work for the employer and they are not required to be filed with the Board under the Board's Rules, as are employee lists, the Board must be satisfied that it should make such a direction. As a pleading in the application, however, employee lists are on a different foot­ing and it will be the exceptional case, if any, in which they should not be given where a timely request is made. (We observe in passing that in Queen's University, supra, the Board refused to consider the applicant's request for delivery of such a list because the request had not been made until after the Officer's meeting; no such problem arises here where the union requested the employee list on the first day of the Officer's meeting.)

15. While we are not prepared to direct the employer to give the union a copy of the employee list it originally filed in this case, we are satisfied that the parties should be in possession of the voters list for reasons of communication with the employees in the voting constituency, the main reason given by the applicant for requesting the employee list. Whether or not the employer has in fact communicated with the employees in specific ways before the Officer's meeting (as the applicant alleges in its March 11, 1988 letter), we do not consider that the question of such specific communication is the relevant issue. Quite simply, we are concerned here with whether the union should possess its own copy of a public document. A copy of the voters list is posted next to every Form 69, the Notice of Taking of Vote, which the employer is required to post in the workplace. The employer is in a position at the Officer's meeting to make the changes to the employee list to reflect the voters list as determined by the parties at the meeting and thus the employer effectively has or is able to have a copy of the voters list when it leaves the meeting. The union does not have that same opportunity if it does not keep a copy of the employee list, as in this case. Under the cir­cumstances of this case, we therefore directed that a copy of the voters list was to be sent to the union at the same time that a copy of the March 22, 1988 decision was sent to it.