The Society of Ontario Hydro Professional and Administrative Employees v. Ontario Hydro, 1989 CanLII 3081

[1989] OLRB Rep. February 185

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. The Coalition to Stop the Certification of the Society on behalf of certain employees, Tom Stevens, C. A. Stevenson, and Michelle Morrissey-O'Ryan and George Orr on behalf of certain objecting employees, Objectors

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.

APPEARANCES: James K. A. Hayes and others for the applicant; F. G. Hamilton and others for the respondent; A. M. Robinson and others for the employee objectors represented by the Coali­tion to Stop the Certification of the Society; no one for the other objectors; no one for the inter­vener.

DECISION OF THE BOARD; February 22, 1989

1. For a number of years, The Society of Ontario Hydro Professional and Administrative Employees ("the Society") has "represented" administrative, scientific and professional engineer­ing employees of Ontario Hydro ("Hydro") in their dealings with their employer, under the terms of a series of written agreements in which Hydro "recognized" the Society as the "representative body" for a defined group of such employees. Hydro treated its relationship with the Society as a "voluntary" one falling outside the scope of the Labour Relations Act ("the Act"), a characteriza­tion which the Society had not challenged for 15 years when, in November 1986, it filed this appli­cation under the Act for certification as exclusive bargaining agent for the roughly 6600 employees it then "represented" in its existing relationship with Ontario Hydro (hereafter referred to as "So­ciety represented employees"). This decision deals with two issues: whether the applicant is a "trade union" within the meaning of clause l(l)(p) of the Act and, if it is, whether section 13 of the Act prevents its certification. For convenience, and despite some possible semantic inaccuracy, these two issues will be referred to in this decision, as they were at hearing, as the "status ques­tions".

2. A number of issues are raised in and by this application, not the least of which (at least in terms of the time and effort which might be required to resolve it) is whether, as Hydro claims, roughly 3100 of the roughly 6600 persons "represented" by the Society at the time the application was filed exercised managerial functions within the meaning of subparagraph 1(3)(b) of the Act in connection with the employment either of other persons represented by the Society or of persons in the bargaining units for which Canadian Union of Public Employees - C.L.C. Ontario Hydro Employee Union Local 1000 ("OHEU") and other trade unions hold bargaining rights. Persons to whom subparagraph 1(3)(b) of the Act applies would not be included in any bargaining unit for which the applicant could be certified under the Act. Hydro's position on that issue is supported by The Coalition To Stop Certification of the Society ("the Coalition"), whose role in these proceed­ings as representative of objecting employees was described in paragraph 3 of our decision of Feb­ruary 25, 1988 ([1988] OLRB Rep. Feb. 187). It is said that the presence of "managerial" employ­ees in the applicant's membership is said to be relevant to the status questions.

3. Our decision of February 25, 1988 dealt with the claim, first raised by the Coalition, that certain Society represented employees fall within federal jurisdiction for labour relations pur­poses. In that decision we concluded that some of Hydro's facilities fall within the ambit of the dec­laration in section 17 of the Atomic Energy Control Act, so that Hydro's relations with those it employs on or in connection with any such facilities (the nuclear reactors in its nuclear generating stations, for example) fall under federal jurisdiction for labour relations purposes. Those persons would not be included in any bargaining unit for which the Society might be certified. The Board has not yet determined with particularity which of the positions occupied by Society represented employees fall within federal jurisdiction, but it is reasonably clear that a substantial number of such persons, including a number of those identified by Hydro as "managerial", would be excluded for that reason.

4. There are other issues which affect both the composition of the appropriate bargaining unit or units for the purpose of this application and the list of persons who fell within the unit or units on the application date. One issue is whether professional engineers should form a separate unit or be included in a unit with other employees. Consideration of their wishes in that regard in accordance with subsection 6(4) of the Act will require identification of those Hydro employees who fall within the Act's definition of "professional engineer", something Hydro has indicated may be difficult in a number of instances, even without the complications introduced by the consti­tutional limitation on our jurisdiction. Another issue concerns professional land surveyors, whose inclusion in any unit would depend on the Society's establishing, as it seeks to do, that no effect can be given to subsection 1(3)(a) of the Act because it contravenes the Canadian Charter of Rights and Freedoms. Another issue is whether, as the Coalition claims, the Research Division (to the extent it falls within provincial jurisdiction for labour relations purposes) should be excluded from any unit containing other Hydro employees on a community of interest basis.

5. In addition to issues which affect the composition of the appropriate unit or units and the list of employees employed therein on the date of the application, there is the question whether the membership evidence filed by the applicant is a satisfactory basis, quantitatively and qualita­tively, for a decision either to direct a representation vote or to certify without a vote under subsec­tion 7(2) of the Act. In that connection, issues have been raised about the form of some of the membership evidence and about the circumstances in which membership evidence was obtained. There are also issues raised which go to the question whether the Board should direct a representa­tion vote even if it finds that there is satisfactory evidence that over 55% of the employees in an appropriate unit on the application date were members of the applicant at the time determined under clause 103(2)(j) of the Act.

6. None of the other outstanding issues in this application has to be decided unless the Society establishes that it is a trade union, a proposition which Hydro and the Coalition dispute, nor need those other issues be decided if, as Hydro and the Coalition assert in the alternative, the Society is disqualified from certification because it is a trade union to which section 13 applied by reason of its having received employer support. We initially determined that those two "status questions" should be addressed in evidence and argument before dealing with any of the others (decision dated June 25, 1987, unreported). We subsequently determined (for reasons set out in our decision of September 21, 1987, unreported) that we would deal first with the constitutional issue which had in the meantime been raised in material exchanged by the parties in connection with the status questions. (See generally [1988] OLRB Rep. Feb. 187 at paragraphs 2-7.) That issue was addressed in our decision of February 25, 1988 ([1988] OLRB Rep. Feb. 187). This deci­sion now addresses the two status questions.

Background

7. On June 28, 1947, this Board found "Hydro Electric Power Commission Unit No. 1 Federation of Employee-Professional Engineers and Assistants" ("Unit 1") to be a trade union with majority support in a bargaining unit consisting of "all persons engaged in the practice of engineering as that term is defined in The Professional Engineers Act, R.S.O. 1937, Chapter 237, who are in the employ of The Hydro-Electric Power Commission of Ontario [now Ontario Hydro] and who come within the definition of employee in the Regulations". Acting under the then appli­cable legislation, it certified two individual designees of the trade union as bargaining representa­tives for all employees in that unit. By virtue of the provisions of subsequent legislation, Unit I itself became the exclusive bargaining agent for all employees in that bargaining unit.

8. It appears Hydro and Unit 1 made their first collective agreement in June 1948. In December of that year, regulations made under the Labour Relations Act, 1948 amended the pre­vious definition of "employee" to exclude "a member of the ... engineering ... profession qualified to practise under the laws of Ontario and employed in that capacity." Nevertheless, Hydro and Unit 1 continued to make collective agreements covering employees in the unit for which Unit 1 had been certified. Indeed, in 1955 the recognition clause was expanded so as to include "profes­sional scientists" and "graduate-engineers-in-training" in the unit for which Hydro recognized Unit 1 union as "sole representative." At some point in the early 1950s, Unit 1 came to be known as "The Ontario Hydro Unit, Canadian Federation of Engineers and Scientists" ("The Ontario Hydro Unit"). In late 1956, the parent body, the Canadian Federation of Engineers and Scientists, decided to dissolve. Those in attendance at a membership meeting of The Ontario Hydro Unit called and held for that purpose in November 1956 purported to adopt a new constitution along with a new name: "Society of Ontario Hydro Professional Engineers". Hydro treated the newly named organization as the bargaining agent under the collective agreement then in force between it and The Ontario Hydro Unit.

9. In 1958, Hydro refused to enter into any further formal agreement with the Society of Ontario Hydro Professional Engineers ("SOHPE"). This created considerable consternation among members of SOHPE, who pressed for continued formal collective bargaining. In 1961, Hydro and SOHPE entered into the following "Letter of Understanding":

LETFJ'ER OF UNDERSTANDING BETWEEN

THE MANAGEMENT OF ONTARIO HYDRO

and

THE SOCIETY OF ONTARIO HYDRO

PROFESSIONAL ENGINEERS

1. Management recognizes the Society as the representative body for all professional engineers and scientists of Ontario Hydro from MPI to MP6 inclusive who are mem­bers of the Society except those employed in a confidential capacity.

2. The mechanism by which Management and the Society meet to effect agreement is confirmed; viz, matters of mutual interest are to be referred to the Joint Society-Man­agement Committee, to which each body appoints an equal number of representa­tives. The Committee may agree to discuss any item of interest to either party, and to introduce or re-open items for discussion at any time.

3. Committee agreements are to be recorded in writing, and when such agreements have received mutual approval of Management and the society, they shall become working conditions.

4. The Society accepts as a guide to conditions of employment at this time those items in the Management Guide and those Directives so far made known to the Society as they apply to professional engineers and scientists.

5. It is the intent of Management and the Society to devise a mutually acceptable griev­ance procedure as soon as possible, similar to procedures now being followed. How­ever, final stage in such procedure shall provide compulsory arbitration by a third party.

6. It is the desire and intent of Management and the Society to co-operate in the early development of a system for settling any and all points of disagreement between them. It is mutually recognized that for optimum effectiveness such a system must in general ensure for society members treatment comparable with that enjoyed by the members of certified bargaining agents recognized by the Commission.

7. Pending the development of the system referred to in Item 6, Management under­takes not to alter working conditions of Society members without prior consultation in the Joint Society-Management Committee or with the Executive of the Society.

Hydro and SOHPE went on to establish a redress procedure, as contemplated by paragraph 5, and written agreements on terms and conditions of employment, as contemplated by paragraphs 2 and

3. The relationship under this “master" agreement continued for roughly ten years. During that time, SOHPE amended its constitution to add the words "and Associates" to its name and to pro­vide for two classes of members. "Regular" members were those whom The Society of Ontario Hydro Professional Engineers and Associates ("SOHPEA") could represent in negotiations under the existing arrangement with Hydro. "Associate" members were those outside the scope of such representation. Associate members had the same rights as Regular members, "other than representation and voting on matters of negotiations with Ontario Hydro". Member engineers who rose beyond the MP6 classification into positions on the Executive Salary Roll ("ESR") positions (which positions were indisputably "managerial" from a labour relations perspective and for which SOHPEA never had or sought the right to bargain collectively), tended to remain as Associate members if only to continue their participation in group insurance plans which SOHPEA had arranged.

4. In February 1971, the Labour Relations Act was amended to delete "engineering" from the list of professions whose members were deemed not to be employees by subsection 1(3)(a) and to add provisions now found in clause 1(1)(n) and subsection 6(4) of the Act. When its negotia­tions with Hydro reached an impasse later that year, SOHPEA applied to the Minister under what is now subsection 16(3) of the Act for appointment of a conciliation officer. Hydro disputed the Minister's authority to do so, and the Minister referred the question of his authority to the Board for its advice under what is now section 107 of the Act. Following what we have been told was a one-day hearing, a panel of the Board concluded that the Minister did not have that authority because SOHPEA was not a trade union, for reasons which appear in the following passage from its decision of August 23, 1971 ([1971] OLRB Rep. Aug. 501):

5. The applicant submitted that as a result of the [1961] Letter of Understanding it was recog­nized as a trade union and entitled to the benefit of section 13(3). Hydro resisted the application on the basis inter alia:

1. that the applicant was not at any time a trade union;

2. that there was not a collective agreement in effect between the applicant and the employer;

3. that the applicant did not represent or was not entitled to represent persons in the unit for which this application is made.

While a number of submissions were made concerning the retrospective effect of The Labour Relations Act and the nature of the purported bargaining unit we are of the opinion that the first objection raised by Hydro respecting this application is valid, and we do not propose to deal with the remaining submissions.

6. In order to avail itself of section 13(3) the applicant must show that it is a trade union. Section 13(3) presumes that there is an agreement between an employer and a trade union. A trade union is defined in section 1(l)(j) as "an organization of employees". The status of the applicant as a trade union was challenged on the basis that the applicant included in its membership a number of persons who were managerial and could not qualify as "an organization of employ­ees". Mr. Vat Scott the General Manager of the applicant for the past twelve years testified about the membership of the applicant. We were impressed with the candid and forthright man­ner in which he gave his evidence. He indicated that there are at least sixty-five persons in the organization who are considered to be managerial and are members of management and that there are also other members who perform managerial functions. He further testified that these people are dues paying members of the organization who associate with the organization in sup­port of its interests as professional engineers. He attempted to clarify the applicant's position by indicating that the managerial members do not have a part to play with respect to bargaining for wages or working conditions. During re-examination by the applicant's counsel Mr. Scott can­didly stated that as a result of the membership of these managerial people there did exist "a potential for conflict of interest". Again, he indicated that this had not been a problem.

7. This Board over the years has refused to give status to purported trade unions on the basis that members of management are or have been involved in its organization. There are many cases on that point. The whole spirit of The Labour Relations Act is to provide trade unions with a separate and distinct identity from management in order to maintain their integrity in dealing with management. See e.g. section 10, section 13(b) and section 48. Indeed, section 48 makes it an unfair labour practice for management to involve itself in certain trade union affairs.

The spirit of the legislation and the cases before this Board which have invoked that spirit resulted because of the potential for a conflict of interest with respect to certain issues in collec­tive bargaining. That is not to say that co-operative and harmonious relations do not exist between employers and trade unions. But it does consider that on occasion there will be issues where relationships must be maintained at arms length. To this end the legislature has required that trade unions be free from any type of management involvement. The "potential for conflict of interest" which Mr. Scott admits exists in his organization is precisely the problem that the legislation has attempted to resolve by requiring that trade unions be separated from manage­ment. We pause to note that even the original certificate obtained in 1947 was restricted to pro­fessional engineers who were "employees". On the basis of the evidence before us we have no alternative but to find that the applicant is not an organization of employees but is an organiza­tion of both employees and persons exercising managerial functions and accordingly it does not come within the definition of a trade union contained in the Act.

8. Our decision does not mean that bona fide bargaining has not taken place between the parties with respect to wages and working conditions or that bona fide bargaining could not take place in the future. Our concern is with the "potential for conflict". We also recognize that the parties may voluntarily agree to bargain collectively for managerial persons and while certain other leg­islation has recognized that managerial persons are appropriate for collective bargaining there is no such legislation in this Province and this Board does not have the jurisdiction to go beyond the terms of the legislation as it presently exists.

9. During argument counsel for the applicant suggested that the definition of bargaining units for professional engineers and the managerial exclusions may require a different approach from the one the Board has exercised in the past because of the professional nature of engineers, and the nature and type of work that they perform. Be that as it may, it does not in any way dero­gate from Mr. Scott's evidence in this case. We wish to further indicate that this decision is based on the particular circumstances and is not to be taken as indicating the considerations that this Board will give in defining bargaining units composed of professional engineers. Suffice it to say that this Board has dealt with persons engaged in a professional capacity such as nurses, and the thrust of cases defining bargaining units has been such that the Board has considered the particular facts and the nature of the existing relationships, and has attempted to define the bar­gaining units and their exclusions in a realistic sense considering the complexity of modern prob­lems facing employers and employees. In an appropriate case the Board will consider the partic­ular problems that arise because of the nature and type of work performed by professional engineers and the relationships that arise because of that work. But that is not the issue in this case.

10. In the result we are of the opinion that the applicant is not a trade union and accordingly section 13(3) is not applicable to the relationship between the parties, and we respectfully advise the Minister that in our view he has no authority under The Labour Relations Act to appoint a conciliation officer.

There is a dispute between Hydro and the Society about whether the managerial members about whom the panel was concerned were just its ESR level Associate members or included also Regu­lar members who Hydro apparently argued were also not "employees" by virtue of subsection 1(3)(b) of the Act. Even if it were possible for us to do so, it is unnecessary to resolve that dispute.

11. Following the 1971 decision, SOHPEA went back to the bargaining table with Hydro, seeking a new "voluntary" agreement. It also considered certification and canvassed its members' views on pursuing that option. Material circulated by the Society at the time speaks of the number of members who would be "in the group" as a result of certification being less than the number it had been representing under the 1961 agreement and its successors. It is unnecessary for us to determine whether this betrays awareness that members other than Associate members fell within the ambit of subsection 1(3)(b) of the Act or just a belief that a certified bargaining unit would be limited to professional engineers. In the result, SOHPEA entered into a new agreement with Ontario Hydro covering the group it had represented at the time of the Board's 1971 decision, and did not then pursue the certification option.

12. The new master agreement agreement took effect January 1, 1973. Its provisions included these:

(1) Ontario Hydro recognizes the Society as the representative body for all professional engineers and scientists of Ontario Hydro in MP1 to MP6, FMP 11 to FMP 16 and Engineering Trainees who are members of the Society except those employed in a confidential capacity.

(3) Negotiations between Ontario Hydro and the Society shall take place through a Joint Society-Management Committee to which each body will appoint an equal number of representatives. Negotiations shall be conducted in good faith and both parties shall make every reasonable effort to reach agreement on matters of mutual interest as expeditiously as possible.

This master agreement went on to provide that the parties' agreements were to be in writing. If agreement could not be reached on salary schedule adjustments, that matter was to be referred to an arbitrator whose award would be binding. Other matters on which the parties could not agree were to be referred to mediation by a mediator selected by the parties. If the mediator was unable to effect a settlement, he was to recommend a settlement which the parties were obliged to seri­ously consider but not to adopt. Hydro retained "the right to make the final decision" on those non-salary matters. This master agreement also incorporated by reference the redress procedure Hydro and SOHPE had worked out in 1963, under which a member's complaint about "unfair treatment" could be referred by either Hydro or the Society to third party arbitration if not first successfully resolved in its multi-step grievance procedure.

13. Hydro's MP and FMP classifications did not apply only to engineers and scientists; oth­ers also fell within those classifications. The Society's constitution was amended later in 1973 to extend eligibility for membership to all employees on these salary scales. Many newly eligible employees did join as Associate members. They wished SOHPEA to represent them in dealings with Hydro. In response to SOHPEA's request for expanded recognition as representative for all employees in the MP and FMP classifications, SOHPEA and Hydro arranged to have the firm of Clarkson Gordon & Co. conduct secret ballot votes among the affected employees. The group to be added were polled separately from those already represented. In January 1976, both groups voted in favour of expanded representation. In June 1976, Hydro signed a new master agreement with SOHPEA which provided, among other things, that

(1) Ontario Hydro recognizes the Society as the representative body for MP1 to MP6 inclusive, FMPII to FMPl6 inclusive and staff on Salary Schedules 04 and 18. exclud­ing those employed in a confidential capacity in matters relating to negotiations with respect to the Society or employees engaged in full-time security work, as contained in an agreed listing.

This clause has no limiting effect on any recognition clause that has been established under the Ontario Labour Relations Act.

This was the first master agreement in which the Society was recognized as "representative body" for employees without regard to whether they were members of the Society. The reference to "any recognition clause that has been established under the Ontario Labour Relations Act" was intended to make it clear that the group represented by the Society did not include any employee who fell within OHEU's bargaining unit.

14. OHEU represents a very large unit (over 16,000 in 1988) of clerical and technical employees in collective bargaining with Hydro, in a relationship which was established with a pre­decessor employee association by voluntary recognition. None of the participants or witnesses identified the date recognition was granted; it appears it must have been in the 1940s, after collec­tive bargaining became the subject of legislation in Ontario. Since the early 1950s, at least, it was understood that persons deemed not to be employees by the Labour Relations Act were excluded from the unit. During the 1960s, OHEU challenged Hydro's historic exclusion of a number of posi­tions from contract coverage, including M & P positions. These challenges took the form of appli­cations to this Board under what is now subsection 106(2) of the Act. Hydro witnesses told us that the number of such applications and their consequent burden on the resources of the Board led its then Chairman to suggest to the parties that they establish their own criteria and process for reso­lution of such disputes. The parties agreed on the process: arbitration. They could not agree, how­ever, on the criteria by which an arbitrator was to identify "managerial" or "confidential" posi­tions. The elaboration of such criteria was one of the issues dealt with by the interest arbitration board which settled a collective agreement pursuant to legislation which brought OHEU's 1972 strike to an end. The exclusionary criteria imposed by that interest arbitration board were essen­tially those proposed to that board by Hydro.

15. Substantially the same criteria have since appeared in each of OHEU's subsequent col­lective agreements with Hydro. "All professional engineers employed in a professional capacity including employees who are not professional engineers but are engaged in the same job classifica­tion" are excluded. Positions which are rated in a particular way under a job evaluation scheme established by Ontario Hydro in June of 1968 are excluded. "... [N]onunion [sic] jobs as of Sep­tember 24, 1972, shall retain their existing jurisdictional status" unless and until "an arbitrator rules that the factors which originally substantiated exclusion are no longer operative", in which case the position may then be tested against the general criteria. Under the headings "managerial functions" and "confidential matters", the agreement lists a number of sorts of job requirements or characteristics. The presence in it of any one of these factors is sufficient to make a job eligible for exclusion. The exclusionary criteria in the OHEU/Hydro agreements do not expressly distin­guish between positions in which the performance of one or more of the listed functions is a sub­stantial part of the overall duties and responsibilities of the position and positions in which that is not so.

16. Effective June 1976, SOHPEA amended its then constitution to preclude Associate members from holding executive office. In late 1976, SOHPEA changed its name to "The Society of Ontario Hydro Management and Professional Staff" ("SOHMPS"). The parties debate the sig­nificance of the Society's adoption of this name to describe itself. The phrase "Management and Professional Staff' had been applied by Ontario Hydro since 1959 to those in the MP job classifica­tions, including those in positions which had fallen within the bargaining unit represented by Unit 1, The Ontario Hydro Unit and SOHPE between 1947 and 1958. Hydro's then General Manager had explained the new phrase and concept in a memorandum distributed in 1959. Its adoption was there said to have been prompted, in part, from "[hack of clear recognition of those categories of staff as being the backbone of the management function" and to reflect the proposition that Hydro "regards all its professional employees, and all its supervisory employees in positions evaluated in Plan A, hereafter to be known as Management and Professional staff, as performing functions which are part of, or are in support of, the overall management of the Commission's business". At that time, the leadership of SOHPE saw the initiative of which the new classification label was a part as an attempt by Hydro to dissuade those they represented from continued support for any form of collective bargaining. Subsequent history shows the attempt was not entirely successful.

17. In any event, Hydro called the job classifications of persons represented by SOHPE and SOHPEA "Management and Professional". When it had expanded its membership base beyond professional engineers and scientists, SOHPEA adopted the name of the job classifications as a means of describing itself. As it had all along, it had in mind the possibility that it might apply for certification in the future. There was a concern at the time that the reference in its name to "man­agement" might adversely affect such an application. In material it circulated to its members before they approved the name change, SOHPEA noted that

We have obtained legal advice on this matter and counsel advises that the Ontario Labour Rela­tions Board is not concerned in any way with the name of an organization and has no jurisdic­tion in this regard. Rather, the Board examines specific job functions and decision-making pow­ers of individuals to determine the appropriateness of the composition of the group. ha fact, were that most unfortunate situation to arise where relations with Management had deteriorated to such an extent that a majority of our members would want to seek certification, the problem of composition of the group would be considerable, since many of our more highly-placed mem­bers would probably have to be excluded from membership. Measured against this, concern with having the term "Management" in our name pales in significance.

Above all, however, we see positive reasons for including the term. In the narrow sense (Ontario Labour Relations Board criteria), very few of our members are "Management." In the broader sense, however, a great many members are clearly what is generally called middle man­agement. The Society in fact represents professionals and middle-management people. To leave out the term "Management" (or some comparable term) would, in our view, fail to give suffi­cient recognition to the non-professional component of the membership, thereby defeating the purpose of changing the name of the Society.

It is true, of course, that the Board does not treat the name of an organization as determinative of its "status" under the Act, any more than it treats the name of a job classification as determinative of its incumbent's status under the Act. We reproduce this passage because it is illustrative of two of the recurring themes in this stage of the proceedings: Hydro's assertion that the Society or its predecessors knew that its membership included persons to whom subsection 1(3)(b) of the Act would apply, and the Society's assertion that it believed that the so-called "middle-management" employees it represented were generally not "managerial" from this Board's perspective.

18. In 1981, following requests by a number of them that they be allowed to join, SOHMPS amended its constitution to permit employees in Hydro's OSS (Office Supervisory Services) and TS (Trades Supervisory) job classifications to become members. A representation vote was con­ducted among employees in those classifications in 1983. Results tabulated by Clarkson, Gordon showed that a majority in each classification favoured representation by SOHMPE. Thereafter, SOHMPE and Hydro entered into a written agreement recognizing the Society as "the representa­tive body" for those in OSS and TS classifications. That agreement formed an addendum to the new master agreement covering MP and FMP staff which Hydro and the Society entered into at about the same time. There was a transitional period during which certain provisions of the new master agreement, including the provision for determination of salary adjustments by arbitration, were not applicable to OSS and TS staff. In late 1984, the new master agreement was amended to include the OSS and TS staffs in the recognition article and apply to them all of the then provisions of that master agreement. As had the recognition clauses in both the new 1983 agreement and the OSS/TS addendum, the recognition clause in the amended master agreement expressly excluded "those persons primarily employed in a confidential capacity and making effective recommenda­tions affecting the terms and conditions of employment for Society-represented staff or employees engaged in full-time security work" and retained the caveat, introduced in the 1976 master agree­ment, that '[t]his article has no limiting effect on any recognition clause that has been established under the Ontario Labour Relations Act."

19. The new master agreement of 1983 came about as a result of negotiations which fol­lowed Hydro's election in April of that year to give notice of termination of the master agreement then in effect. That notice of termination shook the faith of the Society's executive in the viability

of the "voluntary relationship". The conclusion of a new master agreement did not entirely restore their faith in the viability of a relationship "outside the Labour Relations Act." Against the possi­bility that the new master agreement might not prove to be a satisfactory basis for a continued "voluntary relationship", steps were taken to amend the SOHMPS constitution for the express purpose of better positioning the organization for a certification application. Proposed amend­ments included a change of the organization's to its present one, a change to the language of the objects of the organization to expressly empower the Society to serve as "the collective bargaining agent" for member employees with Hydro and changes to its membership provisions to eliminate the Associate Member category and expressly exclude from eligibility for membership

those employees who are exercising managerial functions, or employed in a confidential capac­ity to such a degree that the Society and Ontario Hydro have agreed to exclude such employees from Society representation, in addition to any employee that the Ontario Labour Relations Board may deem to be excluded from the protection of the Ontario Labour Relations Act.

These amendments were made by membership referendum, with effect as of November 1983, in accordance with the provisions of the constitution by which the organization's affairs were then understood to be governed.

20. During the early 1980s, Hydro had been discouraging those on its Executive Salary Roll from maintaining Associate membership in the Society. In 1982, Hydro stopped honouring the requests of ESR Associate Members that their dues in the Society be paid by payroll deduction. Those few on the Executive Salary Roll who remained Associate Members when the constitution of the Society was amended in 1983 so as to make them ineligible for membership were advised by the Society that their membership was terminated.

21. Difficulties with the new 1983 master agreement did arise, including a quite serious dis­pute over whether the arbitrability of complaints about certain actions by Hydro was a matter which could be determined by an arbitrator under the redress procedure provided for under the master agreement. The Executive of the Society considered how best to ensure that its relationship with Hydro would be governed by the Labour Relations Act. One of the options they considered was to simply initiate or precipitate proceedings to test the assertion that the Act already governed the existing relationship and that the existing master agreement and the subsidiary agreements made under it constituted a "collective agreement" to which the Act's arbitration and other provi­sions already applied. This came to be described as the "back door" route. The Society's executive rejected that approach. They preferred to establish the applicability of the Labour Relations Act by means of a certification application based on membership evidence obtained expressly for that pur­pose, so that the result would be founded on a direct demonstration of express majority support for representation by the Society in collective bargaining under the Labour Relations Act.

22. In 1985, the Society conducted a referendum to determine its members' wishes with respect to the certification option. A majority of those who cast ballots favoured pursuit of that option. In January 1986, the Society began collecting membership evidence for the purpose of this application. Its efforts in that regard are referred to in what follows as its "card signing campaign" or "organizing campaign".

The Organizing Campaign

23. The membership evidence collected by the Society took two forms. One is a "certificate of membership". Each such certificate bears a confirmation by the employee and by the Secretary-Treasurer of the Society that the employee in question is a fees-paying member of the Society. The confirmation which existing members were invited to sign reads as follows:

I hereby confirm that I am a member of The Society of Ontario Hydro Professional and Admin­istrative Employees and have paid the Society fees as indicated herein. I confirm that I autho­rize the Society to represent me as my bargaining agent in all matters concerning the terms and conditions of my employment. I hereby confirm that I am bound by the Society's constitution.

A substantial majority of the approximately 3200 membership documents filed in connection with this application are in this form.

24. Employees who were "represented" by but not then members of the Society were invited to sign an application for membership in the following form:

I hereby apply for membership in the Society of Ontario Hydro Professional and Administrative Employees and agree to conform to and be bound by its Constitution. I confirm that I have authorized the Society to represent me as my bargaining agent in all matters concerning the terms and conditions of my employment.

I agree to pay the annual fee in accordance with Article XII of the Constitution (annual fees set at $156.00 on April 1, 1983) and hereby acknowledge that I have paid $5.00 towards the first month's fee of $13.00. I understand such fees may be changed only in accordance with the Con­stitution.

There is provision on this form for confirmation by the collector of receipt of the sum of Five Dol­lars. Hydro and the Coalition introduced into evidence another form of application for member­ship in the Society which did not include the second sentence of the form which we have quoted, nor the reference to payment of $5.00 toward the first month's fee. The Society's uncontradicted evidence is that this was an earlier form of membership application which was in use before it began its card-signing campaign but was not used during the campaign or otherwise for the pur­poses of this application.

25. There can be no doubt that the phrase "Society's constitution" in the certificates of membership and the applications for membership meant and would have been understood to mean the constitution which was understood to have come into effect in November 1983 following the amendments referred to in paragraph 19 of this decision.

26. Over the years, the Society has acquired a number of rights or privileges with respect to the use of Hydro facilities. The Society has three telephone lines directly connected to Ontario Hydro's internal telephone system. It has direct and unlimited access to Ontario Hydro's internal mail system, by means of which written material may be sent to and received from Hydro employ­ees anywhere in the province. It is given the use of certain bulletin boards or portions of bulletin boards in Hydro facilities throughout the province, on which it can post notices of its activities. As a result of discussions and negotiations over the years, Hydro permits members of the Society's Executive and delegates to take time off, without loss of salary or benefits, to attend to Society activities. Hydro premises, including its auditorium and meeting rooms, are made available for Society activities without restriction as to frequency or purpose of use. In recent years, on an almost annual basis, the Society has requested and been provided with information in various forms, including mailing labels, setting out the names and work locations of those who fall within the classifications for which the Society is "recognized" by Ontario Hydro as the "representative body", so that the Society could contact those represented persons who had not yet joined the Society (membership in the Society being voluntary) and invite them to join. Those who do join or have joined the Society sign written authorizations directing Hydro to deduct from their salary and remit to the Society the amount of their membership dues. Except as we have noted in paragraph 20, Hydro has routinely honoured these requests over the years. Other than for the telephone lines and for the expenses involved in providing it with the lists of represented staff, the Society does not make any payment to Hydro for the use of these rights and privileges.

27. The Society continued to use these rights and privileges during and in connection with its efforts to collect evidence of employee support for use in this application for certification. Although the Hydro mail system was not used in connection with the referendum or for transmission of membership evidence, it was used on a regular basis to communicate Society news and information, including news about the progress of its card-signing campaign and of the certification application itself. Such news was also available by way of pre-recorded news message on one of the Society's telephone lines. Matters related to certification were discussed in meetings between Soci­ety representatives and Society-represented personnel in meeting rooms available to the Society in accordance with its historic privilege. Matters relating to certification were also discussed by dele­gates and by members of the Executive at meetings for which time off was permitted in accordance with the Society's privilege in that regard.

28. It was Hydro's position that it had accorded the Society these various rights and privi­leges in order that it could better carry out its functions within the "voluntary" relationship between them, a relationship which Hydro at all times considered to be outside the scope of the Labour Relations Act. Hydro had never intended that such rights and privileges be used to further an application for certification under the Labour Relations Act. Nevertheless, it recognized that, as it had placed no limitations on the use of those rights and privileges in the past, it could not inter­fere with their use by the Society for the purposes of its certification application. (In that respect, Hydro correctly anticipated the result in University of Toronto, [1988] OLRB Rep. Mar. 325.) When the Coalition came into existence, it sought to use the internal mail system to distribute material opposing certification of the applicant, and offered to pay for that privilege. Hydro denied its request. While not happy about it, the Coalition does not say this denial was unlawful.

29. Hydro also communicated with the affected employees concerning certification of the Society, both before the referendum was conducted and during the card-signing campaign, in printed material circulated to employees and in pre-recorded "news" tapes available on one of its telephone extensions. Much of its material was merely descriptive of the Labour Relations Act and its provisions; it particularly described the constraints imposed by the Labour Relations Act on an employer's expressing its views in connection with a certification campaign. No one suggests it transgressed those constraints. Within the limits of those constraints, however, Hydro did express its disappointment that negotiations within the framework of the "voluntary agreement" had been unsuccessful. It expressed its desire to maintain the status quo and suggested that the status quo was preferable to the results of certification from the perspective of the affected employees. For example, in a two-page memorandum dated January 31, 1986 titled "Update on Society Certifica­tion", Hydro wrote:

While the Corporation has no intention of interfering with individual decisions, the Corpora­tion's view is that the voluntary arrangement has provided for collective negotiations in the areas of salaries, benefits, and working conditions. Yet through direct relationships between individuals and their supervisors, there has been scope to apply negotiated provisions to suit individual needs and circumstances. With certification, this changes. Individual terms and condi­tions of employment are those negotiated with the union, which alone is permitted to bargain on an individual's behalf as the sole bargaining agent. One result is that, more rigidity could be introduced into individual working relationships with supervisors.

The "Managerial Members" Assumption

30. As we noted at the outset, one of the major matters of dispute between the Society and those who oppose its certification is the number of Society-represented persons who would be deemed not to be "employees" for the purposes of the Act by reason of subsection 1(3)(b) because they exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations. Hydro says that nearly half of those in the group currently "represented" by the Society under the "voluntary agreement" exercise managerial functions and would, therefore, be excluded from any bargaining unit for which the applicant could be certified under the Act. The Society denies that those persons would be excluded for that reason from the scope of the Act. It is common ground that many of the individuals in dispute are members of the Society.

31. Hydro and the Coalition took the position at the outset that an organization which included in its membership persons who exercise managerial functions could not be found to be a "trade union" within the meaning of clause l(l)(p) of the Act, even if none of those managerial employees was or had been the means by which the respondent had participated in the formation or administration of the applicant or contributed financial or other support to it. That argument was referred to in our hearings as the "managerial members argument". While denying the prem­ise that clause 1(3)(b) was applicable to any of its members, the applicant argued in the alternative that the mere presence in its membership of managerial employees could not adversely affect either of the status questions. In the circumstances, there was a consensus that the question whether the applicant is a "trade union" should be addressed initially on the assumption that the disputed individuals would be found "managerial" without, however, assuming the truth of any element of any allegation of employer support.

32. In order to identify the factual issues on which answers to the status questions would turn, our decision of June 25, 1987 directed that the parties deliver detailed statements of the material facts on which they relied in connection with those questions. Those directions were sup­plemented in our decision of November 12, 1987, paragraphs 5 and 6 of which provided as follows:

33. Except as indicated in paragraph 6, any allegation that a person exercised managerial func­tion within the meaning of clause l(3)(b) of the Act or that their functions were analogous to those of one of the aforesaid representative or illustrative positions will be assumed to be true for the purpose of the Board's initial hearings with respect to the status questions and will not be the subject of proof or challenge unless and until the Board concludes that the status questions cannot be determined without making a finding with respect to that allegation.

34. The direction in subparagraph 2(2) of the June decision continues to apply. No essential ele­ment of an allegation of the sort described in that subparagraph will be assumed to be true.

Subparagraph (2) of paragraph 2 of the June decision provided that:

Without limiting the specificity required by the direction in subparagraph (1)(a) above, any alle­gation that an employer or employers' organization has participated in the formation or admin­istration of the applicant or has contributed financial or other support to it shall include full par­ticulars of the time(s) when and place(s) where such conduct occurred, the name(s) of the person(s) alleged to have engaged in such conduct on behalf of an employer or employer's [sic] organization, the name(s) of [the] employer(s) or employers' organization(s) on whose behalf those persons were acting and the means by which the alleged participation or support was accom­plished.

33. None of the participants suggested that we needed to know exactly how many of the persons with respect to whom membership evidence has been submitted are persons whom Hydro and the coalition allege to be "managerial". All seemed content to deal with the managerial mem­bers argument on the basis that a substantial portion of the challenged individuals were being treated by the Society as members at the time of the application and thereafter. Other than by a cursory review of the results of the Board clerks' comparison of membership evidence and the lists filed by Hydro, we have not tested that assumption. Based on that cursory review, it does not seem unreasonable to suppose that the proportion of challenged persons who are members is not radi­cally different from the proportion of Society-represented persons who are members.

Is the Applicant a "Trade Union" as defined by clause 1(l)(p) of the Labour Relations Act?

34. In ordinary use, the phrase "trade union" is generally understood to describe an organi­zation which represents employees in dealings with their employers. Either through personal expe­rience or from discussions with friends or relatives about their personal experiences or from reports in the media, most people have some awareness of the activities of organizations which call them­selves trade unions. The trade unions which are most likely to be the subject of this experience -the "traditional" or "conventional" trade unions, those which could be described as "in the main stream of the "labour movement" - are similar to one another not only in their basic function but also in the way they carry out that function and in their philosophy of labour relations. As a result of this common personal or vicarious experience of certain trade unions, use of the phrase "trade union" can and often does evoke for the listener or reader certain connotations about the ideology and methodology of such an organization, the kinds of workers represented and the sort of rela­tionships which exist between it, the workers it represents and the employers of those workers. The evidence before us suggests, for example, that the phrase "trade union" has been associated in the minds of Society-represented staff with compelled membership and with the use of strikes as the preferred means of resolving economic disputes. The secondary meanings which thus become attached to the phrase "trade union" in ordinary use can create some misunderstanding about the breadth of application of the Labour Relations Act and the meaning assigned by that Act to the term "trade union".

35. For purposes of the Labour Relations Act, the phrase "trade union" is defined very sim­ply in clause l(l)(p):

'~trade union" means an organization of employees formed for purposes that include the regula­tion of relations between employees and employers and includes a provincial, national, or inter­national trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

The Act's definition of "trade union" does not require commitment by the organization to the ide­ology or methodology of any particular labour organization or movement. While the Act permits the negotiation of compulsory membership clauses and regulates and protects the use of strikes as a means of resolving economic disputes, organizations are not excluded from the Act's definition of "trade union" if, like the Society, they prefer that such disputes be settled by other means and are content that membership in it by those it represents be voluntary. The question whether any one approach to collective bargaining better serves employee interests than another is left to be determined by the affected employees on a majoritarian basis through the exercise of their statu­tory right to select or reject a bargaining agent.

36. The Society has always represented itself as having as one of its purposes the represen­tation of employees in their employment relations with Hydro. Throughout its card signing cam­paign (indeed, since at least November 1983, when its constitution was last amended), the Society clearly represented itself as being the sort of organization which can be certified under the Labour Relations Act as exclusive bargaining agent for a unit of employees. In those circumstances, it is of no consequence that the Society has from time to time, with reference to matters other than the possibility of certification, disclaimed being a "union” in contexts in which "union” appears to have meant "contentional union" or "union like OHEU". We do not accept the Coalition's argu­ment that the Society is somehow estopped from claiming to be a "trade union" as defined by clause l(l)(p) of the Act.

37. Prior to the decision of the Ontario Court of Appeal in C.S.A.O. National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al., 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498, 26 D.L.R. (3d) 63, 72 CLLC ¶14,118 (the "C.S.A.O. decision"), the Board seems to have thought it was its function under the Labour Relations Act to "confer" or "grant" an organization "trade union status" according to whether that organization seemed to the Board to be suited to the representation of employees under the Act, and to "withhold" such status if it did not. In Oakville Trafalgar Memo­rial Hospital Association, [1971] OLRB Rep. Feb. 70 (reconsideration denied [1971] OLRB Rep. Apr. 247), the Board refused to "grant" C.S.A.O. National Inc. "the status of a trade union" because its constitution provided for two classes of membership, one class having inferior rights and privileges to the other. That decision was quashed by the Ontario Court of Appeal in the C.S.A.O. decision. In his decision in that case, Mr. Justice Jessup observed (at p. 501 O.R.) that:

. . . .by its interpretation of s. 1(1)(n) [now s. l(l)(p)] the Board assumed power to deny certifica­tion to a union on the sole basis of inter-membership discrimination and the question therefore is whether the Board erred in such interpretation.

In my opinion it is clear that it did so. I see nothing in the plain language of s. 1(1)(n) permit­ting, much less requiring, the introduction of such a factor in the determination of whether a union is an organization within the meaning of the subsection.

At pages 504 and 505, Mr. Justice Arnup made these observations:

While the Board in its initial decision used some rather inappropriate language as to the nature of the preliminary task it was undertaking, such as that "the Board would not confer the status of a trade union upon any organization with such a membership structure", and "the Board is not prepared to grant the applicant the status of a trade union" and again speaks in its reasons for its reconsidered decision of "granting an organization the status of a trade union", I do not place any emphasis upon the semantics involved. In my view the question the Board asked itself could be put thus:

"Is the applicant a trade union that we should recognize for the purposes of this Act? In particular, should we refuse to recognize it because of the membership provisions in its by-laws?"

In my opinion the "right question" to which the Board should have addressed itself was:

“Is the applicant a trade union as defined by the Act?"

It is clearly not the Board's function to "confer" or "withhold" "the status of a trade union", as the language of older Board decisions suggests. An entity or group of persons either is or is not a trade union, depending on whether the statutory definition is satisfied. The Board's function is to make a finding of fact. In doing so, it is obliged not to impose requirements unsupported by the language of clause l(l)(p) of the Act.

38. The word "organization" in clause l(l)(p) is not itself expressly defined. The language of the clause and of other provisions of the Act provides guidance as to what is meant. Clause l(l)(p) contemplates that the "organization" is something which is "formed" for particular pur­poses. The language of clauses (1) and (p) of subsection 1(1) and of other sections tell us that the organization is one of which "employees" are "members". Sections 74, 87, 91, 92, 98, 99 and oth­ers contemplate that a trade union will have at least one "officer, official or agent" who acts or purports to act on its behalf in matters about which the Act is concerned. These characteristics -membership within a formal structure with defined purposes and action through agents - suggest that the "organization" must either be a corporation without share capital created pursuant to some statute in that behalf or an unincorporated association brought into existence in the manner contemplated by the common law. Some unions in Ontario are corporations. Most are unincorpo­rated associations.

39. The legal nature of a trade union which is an unincorporated association was described in the following passage from the judgment of the Ontario Court of Appeal in Astgen et al. v. Smith et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, 69 CLLC ¶14,198 (Ont. C.A.) at pp. 133-134 and 135:

I concede at the outset that a labour union under the Labour Relations Act, R.S.O. 1960, c. 202, and allied legislation has a "status" conferred by such legislation which makes it somewhat different from a fraternal organization or an athletic club but apart from such statutes a labour union is essentially a club, a voluntary association which has no existence, apart from its mem­bers, recognized by law. A club is basically a group of people who have joined together for the promotion of certain objects and whose conduct in relations to one another is regulated in accordance with the constitution, by-laws, rules and regulations to which they have subscribed.

…..Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelled out in the memorandum of association usually referred to as the "constitution"; the by-laws or rules provide the machinery for the proper carrying out of activi­ties intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill, Rand, J., in Orchard ea l. v. Tunney, 1957 CanLII 57 (SCC), [1957] 5CR. 436 at p. 445, 8 D.L.R. (2d) 273 at p. 281, stated:

…..each member commits himself to a group on a foundation of specific terms gov­erning individual and collective action ... and made on both sides with the intent that the rules shall bind them in their relations to each other.

I adopt also the proposition stated by Thompson, J., in Bimson v. Johnston et al., [19591 OR. 519 at p. 530, 1957 CanLII 131 (ON HCJ), 10 D.L.R. (2d) 11 at p. 22, which was affirmed on appeal 1958 CanLII 345 (ON CA), [1958] O.W.C. 217, 12 D.L.R. (2d) 379:

….that a contract is made by a member when he joins the union, the terms and condi­tions of which are provided by the unions constitution and by-laws…..The contract is not a contract with the union or the association as such, which is devoid of the power to contract, but rather the contractual rights of a member are with all other members thereof.

The contract of association is not between the members and some undefined entity which lacks the capacity to contract; it is a complex of contracts between each member and every other member of the union.

40. For the purposes of proceedings under the Labour Relations Act, the common law as it relates to unincorporated associations is modified in certain respects by that Act. For example, an individual who is not yet and might never be a member of the association in accordance with the provisions of its constitution may nevertheless be treated as a member for the purpose of the Labour Relations Act: see clause 1(1)(l) and subsection 103(4) of the Act and compare Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796 et al., 1970 CanLII 7 (SCC), [1970] S.C.R 425, 11 D.L.R. (3d) 336, 70 CLLC ¶14,008 (S.C.C.). Subject to the modifications effected by the Act, the question whether something exists as an "organization ... formed for pur­poses that include the regulation of relations between employees and employers" is governed by the common law principles to which the Court of Appeal made reference in the passage we have quoted from Astgen et al. v. Smith et al., supra.

41. The constitution by which the applicant's affairs have been understood to be governed

since November 1983 contains the following provisions, among others:

ARTICLE I - NAME

1. The organization shall be known as The Society of Ontario Hydro Professional and Administrative Employees and shall be referred to as "The Society."

ARTICLE II - MISSION STATEMENT AND OBJECTIVES

The Society exists to represent the interests of the professional, administrative and associated employees in all aspects of their employment with Ontario Hydro.

The Society shall be empowered to serve as the collective bargaining agent for the members employees with Ontario Hydro in such a way as to achieve the economic, social and career-related objectives of the members.

ARTICLE Ill - MEMBERSHIP

1. (a) All employees of Ontario Hydro who are employed as professional, administrative and associated personnel shall be eligible for membership or to continue their mem­bership in the Society.

(b) The following shall not be eligible for membership in the Society:

(i) those employees who are exercising managerial functions, or employed in a confidential capacity to such a degree that the Society and Ontario Hydro have agreed to exclude such employ­ees from Society representation, in addition to any employee that the Ontario Labour Relations Board may deem to be excluded from the protection of the Ontario Labour Relations Act.

(ii) those persons legally represented by another bargaining unit.

2. Any question of qualifications or eligibility shall be referred to the Executive whose decision shall be final subject to sub-section (a) and (b) above.

3. Any question of qualifications or eligibility shall be referred to the Executive whose decision shall be final.

ARTICLE XII - FEES

1. Any change in the amount of annual fees shall be approved by referendum.

2. Any member who is in arrears more than six months shall automatically forfeit his/her membership.

ARTICLE XV - DISCIPLINE

1. Each member, Executive member or member of the Delegates' Council shall adhere to this Constitution in the conduct of the affairs of the Society and shall act at all times in the best interests of the Society.

2. The Executive shall hear and, by a unanimous vote, determine the validity of any charge made in writing by any member that another member has violated Section 1 of this Article.

3. The Executive shall be entitled to reprimand, suspend or expel any members whom it has found to be guilty of a violation of Section 1 of this Article.

4. Any person thought to be affected by a decision of the Executive made pursuant to this Article shall be given notice in writing at least ten days in advance of the meeting at which the charge is to be dealt with, indicating the time and place of the meeting and the specific charges to be heard. Such person shall be entitled to appear and make such representations and produce such witnesses as he/she may deem advisable.

5. A decision of the Executive made pursuant to this Article may be appealed by any person affected to the next meeting of the Delegates' Council by notice in writing. Upon receipt of such notice, the Chairman of the Delegates' Council shall place the matter upon the agenda for hearing and the Delegates' Council shall, by majority vote, determine the appeal. The decision of the Delegates' Council shall be final and binding.

Article IV provides for the officers who comprise the Executive and sets out their individual and collective powers. Articles V, VI and VII provide for the election of Delegates by small groups of members and election by Delegates of Divisional/Regional Delegates ("DIR Delegates") and set out the powers and responsibilities of Delegates, D/R Delegates and of the Delegates' Council, which consists of the Executive, the D/R Delegates and the Delegates. Article VIII provides for the election of the officers by members in good standing. Articles IX and X provide for General Meetings of the members and set out the decision-making powers of membership in attendance at such meetings. Article XI provides for determination of questions by referendum of the members. Article XIII provides for internal and external audit of the Society's books. Article XIV provides that the constitution may be amended by majority of ballots cast by members in a referendum.

42. Counsel for the respondent argues that the applicant has not shown itself to be a trade union because there is insufficient evidence to show that it was established in accordance with what he describes as the Board's "requirements", including a requirement that there be "ratification" of the constitution by vote of the membership. He argues that the evidence does not show SOHPE to be the continuation of the organization which the Board found to be a trade union in 1947 and that there is no evidence that the required steps were taken at the meeting in 1956 to establish SOHPE as a brand new organization. With respect to the documents said to reflect the terms of the Soci­ety's constitution at various times after 1956, he argues that there is insufficient evidence from which we could conclude that the changes from one to the next were in each case effected in accor­dance with the provisions for amendment contained in the constitution then in force. He argues that the applicant has failed to produce evidence that the existing constitution or one of its prede­cessors was "ratified" by a vote of the membership at some point in time. It is not enough to rely, he argues, on the referendum which preceded the coming into force of the constitution by which the Society claims its members are now governed, since that referendum only purported to approve amendments to the constitution and not the constitution itself. He also argues that the constitution is inadequate because it does not prescribe a form of membership application and does not require the taking of an oath or otherwise prescribe membership obligations.

43. We agree that the evidence is insufficient to establish that the applicant is simply a con­tinuation of the organization which was found to be a trade union in the 1947 certification decision. Such documentation as is before us with respect to the constitution of that organization and of its parent suggests that any amendment to the constitution of that organization would have required the approval in writing of the Executive Board of the parent. Even assuming that such a funda­mental change as disaffiliation from its parent could have been achieved by means of amendment to the constitution of Unit 1 or the Ontario Hydro Unit, there is no evidence that the constitution apparently discussed and approved at the meeting of its members in late 1956 was approved by the parent body. The proceedings taken by members of the Ontario Hydro Unit in 1956 with respect to that constitutional document might only have been effective, if at all, as the creation of a new organization and not as a continuation of the existing one. All that follows from this, however, is that the applicant cannot rely on the presumption created by section 105 of the Act: the Board's finding in 1947 that Unit #1 was a "trade union" is not prima facie evidence in this proceeding that the applicant is a trade union.

44. The issue here is whether the applicant was a "trade union" within the meaning of clause l(l)(p) at times material to this application for certification. The application date is mate­rial, as is the period during which the evidence of membership was obtained. Except to the extent it assists the Board in assessing the applicant's status as of those material times, the question whether the applicant was a trade union at any earlier time is of no particular consequence: see York University, [1976] OLRB Rep. Apr. 181 at paragraph 10. When an organization's formation is followed almost immediately by an application for certification, the Board's close attention to the steps taken to create the organization is a natural consequence of the fact that there will be no other substantial evidence of the existence of the organization. When faced with an organization which claims to have been in existence for a considerable period of time, however, the Board has recognized that it will be less critical to focus on the steps originally taken to bring the organization into existence: University of Ottawa, [1975] OLRB Rep. Sept. 694 at paragraph 2; Dustbane Enterprises, [1986] OLRB Rep. May 607 at paragraph 14; Fort Erie Duty Free Shoppe Ltd., (OLRB Rep. File No. 1023-87-R, decision dated September 18, 1987, unreported) at paragraph 7. It follows that it will not be critical to the Board's finding it to be a trade union that an applicant establish a technically satisfactory constitutional continuum from its date of origin to the present day.

45. In a number of its decisions, the Board has set out five steps which it has considered suf­ficient to bring a trade union into existence: see Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472 at paragraph 10; Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797 at paragraph 11; Canteen of Canada Limited, [1978] OLRB Rep. Sept. 802 at paragraph 14; and Butterfield Division, Litton Canada Inc., [1985] OLRB Rep. July 1001 at paragraph 8. The fourth of those steps, which these decisions speak of taking place after employees have "approved" a constitution and been "admitted into membership", involves "adoption" or "ratification" of the constitution by a vote of those who have already been admitted into membership. The Board has said that completion of all of these steps is not necessary in each case; in particular, it has said that a separate "ratification vote" is not a necessary prerequisite to the existence of a trade union: see Zachary De Vuono, [1969] OLRB Rep. Apr. 71 at paragraph 10 and Local 199 U.A.W. Building Corporation, supra, at paragraphs 12 through 14. Indeed, the Board has recognized that a trade union can be brought into existence by means quite different from the five steps referred to in other cases: Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889 and Laval Tool & Mold Ltd., [1987] OLRB Rep. Oct. 1281.

46. Having regard to the principles outlined in the passage we have quoted from Astgen et al. v. Smith et al., supra, and the authorities referred to therein, the only essential prerequisite to the existence of an unincorporated association of individuals is that two or more such individuals have agreed to be bound by the terms of an identifiable constitution. We were not referred to any judicial authority for the proposition that such an agreement will not be effective unless the parties to it have employed ratification votes, membership oaths or other formalities which are unneces­sary to the formation of other contracts at common law. Nothing in the Labour Relations Act appears to authorize the Board's insisting on such formalities. The Board cannot go beyond the reasonable meaning of the provisions of the Act in imposing "requirements" in this regard.

47. Reference was made to the Board's decision in University of Ottawa, [1981] OLRB Rep. Feb. 232, in support of the proposition that ratification of the constitution by a membership vote is a prerequisite to trade union status which cannot be satisfied by membership evidence alone. To the extent that decision addresses the point for which it is cited, it relies on an earlier decision in National Steel Car Corporation Limited, [1979] OLRB Rep. June 542. That decision stated that the Board "requires" that the often-quoted five steps be followed before it will find that a trade union has been created. In the absence of a formal ratification vote, it rejected the argu­ment that the signing of applications for membership by employees after having been shown the constitution which they were being asked to adopt was not sufficient to establish a trade union. For reasons which we have already set out, we respectfully disagree with the proposition that proof of completion of the "five steps" is or can be a prerequisite to a finding that a "trade union" has been formed. A group of persons discussing formation of an organization may agree that they will not become parties to a complex of contracts on the terms set out in a constitution unless the constitu­tion is ratified by a vote. In that event, the absence of a ratification vote will be of significance. Except where participants in the formation of an organization have made a ratification vote a con­dition precedent to their acceptance of membership obligations, a process involving a ratification vote is surely not the only way they could bring an organization "into existence". The absence of evidence of a ratification vote is not dispositive of the applicant's claim that it is a trade union.

48. No authority was offered for the proposition that an "organization" cannot be "formed" unless its constitution prescribes a form of membership application. We know of no such authority. As the unincorporated association is a "complex of contracts", admission to member­ship involves a change in the identity of the contracting parties which, like any change in the terms of the contract, can only be effected in one of two ways: by the express consent of all existing members, or in accordance with the terms of the constitution to which the existing members have subscribed. From the "offer and acceptance" perspective from which issues about the formation of a contract may be assessed, a non-member's application for membership is an offer to enter into a contract with the existing members on the terms set out in the constitution. The contract is made when accepted in some manner by those existing members or by some person or persons autho­rized by the existing members to accept on their behalf. That delegated authority may be found in the constitution; its eligibility provisions will then define the limits of that authority. While provi­sions facilitating admission to membership otherwise than by unanimous consent of existing mem­bers may be a practical necessity if a trade union organization is to function efficiently, it is not clear why the inclusion of such provisions in its constitution would be a legal prerequisite to forma­tion of an organization. In any event, the provisions of Article III of the Society's constitution can fairly be interpreted as conferring on the Executive the authority to accept an applicant into mem­bership, without constraint as to the form such an application must take. It follows, we think, that it is for the Executive to determine at first instance what form an application for membership should take. We do not accept the argument that the silence of the constitution with respect to the form of an application leaves it without some essential characteristic of an "organization" for pur­poses of clause l(l)(p) of the Act.

49. The failure of a constitution to impose membership obligations would be relevant only if that failure had as its consequence failure to create a contractual relationship on whatever terms were in the constitution. Rather than enter the debate about whether "consideration" is in every event necessary to the creation of a contractual relationship, we simply note that, having regard to the language and implications of Articles XII and XIV of the Society's constitution and of the applications for membership and certificates of membership filed in this application, it is clear that members of the Society do have obligations as members, including the obligation to pay annual fees.

50. The evidence is that a great many people have for many years prior to the 1983 referen­dum conducted themselves as though the Society were an organization which had long ago been formed and did have members who were governed by the terms of a constitutional document which could be identified without dispute. There is no evidence that this common premise or any action taken on the basis of it was ever challenged in a timely way. The 1983 referendum was con­ducted in accordance with the terms of what was then commonly presumed to be the constitution of the Society. That referendum was understood to result in the Society's having a constitution. Many people have since acknowledged in writing that they are bound by the terms of that constitu­tion.

51. On all the evidence before us, we are satisfied that, as of the date of this application and throughout the period to which the applicant's membership relates, the applicant was "an organi­zation ... formed for purposes that include the regulation of relations between employees and employers". Is it, however, an organization "of employees"?

52. The respondent argues that the applicant cannot be a trade union within the meaning of clause l(l)(p) of the act because, as we assume for the purpose of our considering this particular question, a substantial percentage of its members are persons to whom clause 1(3)(b) of the Act applies and are not, consequently, "employees" within the meaning of the Act. In support of its position, the respondent relies on the 1971 decision referred to in paragraph 10 above, which is hereafter referred to as the "HEPCO" decision.

53. The HEPCO decision did not refer to Hamilton Construction Association and Builders Exchange v. OLRB, 1963 CanLII 183 (ON HCJ), [1963] 2 O.R. 293, (1963) 39 D.L.R. 338, 63 CLLC ¶15,477 (Ont. H.C.). In that case, a construction trade union's application to the Board for consent to prosecute had been opposed on the ground that the applicant had within its membership superintendents and non-working foremen who, the parties agreed, were deemed not to be employees within the meaning of the Act by reason of subsection 1(3)(b). The Board had rejected the argument that an organization which included members of management could not be a "trade union". That decision became the subject of what would now be referred to as an application for judicial review. The Court's deci­sion dismissing that application records the argument that was made:

Mr. Laidlaw argues that the Ontario Labour Relations Act is based on the principle of dealing with two opposing groups, namely, employers, on the one hand, and employees, on the other, and that therefore when the definition of trade union says 'means an organization of employees' rather than 'includes an organization of employees', the definition is intended to confine the membership of a trade union to employees exclusively, and further, therefore, that since the evidence clearly shows that the organization which was granted permission to prosecute by the Board had at that time within its membership those 'with managerial functions', the organiza­tion could not then be a trade union, and any finding by the Board that it was a trade union was in contravention of the Act and in violation of the true intent and meaning of the Act.

The Court concluded that:

This was a matter that the Board had jurisdiction to determine and, in view of the past history of the union and the evidence before the Board as above-mentioned, I do not consider that the action of the Board was such a disregard of its statutory duty or of the provisions of the Act or so contrary to the true intent and meaning of the Act that it would constitute an abuse of juris­diction.... Even if the question of the said Local No. 18 being a trade union were a collateral issue and even if I could then review the evidence with a view to quashing the Board's decision, I would not disagree with the Board's finding.

54. In Ottawa General Hospital, [1974] OLRB Rep. Oct. 714, the Board considered whether a "managerial person" has a right, protected by what is now section 70 of the Act, to become a member of a trade union and to participate in its lawful activities. The Board concluded that the Act did not give managerial persons that right. Without specifically mentioning the deci­sion in HEPCO, the Board went on to disassociate itself from the view that a trade union is pre­cluded from having such persons among its membership, noting that that issue had been dealt with in the Hamilton Construction Association case.

55. Although not strictly speaking necessary to the determination of the question dealt with in it, the Board's decision in Chrysler Canada Ltd., [1975] OLRB Rep. Nov. 852 made the obser­vation that:

the very existence of section 95(2) [now 106(2)] reflects a recognition by the Legislature that determinations as to employee status may be required, either during bargaining or during the life of the collective agreement, a recognition which, in our view, tends to negate the inference that the mere presence of management personnel within union membership ranks necessarily destroys the union's status or nullifies the collective agreement to which it is a party.

[emphasis added]

This theme was picked up in Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651.

56. The applicant in that case was a staff association whose members' dissatisfaction with the results of its dealings with their employer had led to a decision to take whatever steps might be necessary to enter into collective bargaining within the framework of the Labour Relations Act. It amended its constitution to exclude from membership "employees exercising managerial func­tions". Although the association terminated the membership of those who it felt exercised manage­rial functions, the employer felt it had not gone far enough. It threatened to challenge the associa­tion's status as a trade union if it retained in membership and sought to represent persons whom the employer considered managerial. The association maintained its position and applied for certi­fication. The employer carried out its threat, arguing before the Board that the association could not be a trade union if it had managerial members and that the participation of those managerial members in the affairs of the association constituted employer support within the meaning of what is now section 13 of the Act. The Board concluded that the applicant was a trade union even if the employer was correct that some of its members did exercise managerial functions. This was not strictly consistent with the interpretation placed on what is now clause l(1)(p) by the HEPCO deci­sion. The Children's Aid Society decision explained that the concern about conflict of interest expressed in the HEPCO decision was adequately dealt with by the "self-purging" feature of the applicant's constitution, which would ensure that persons subsequently found by the Board to be managerial would not thereafter remain in its membership.

57. The correctness of the Board's analysis in the HEPCO decision was considered at length in Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 ("York I") where, after reviewing the decisions to which we have referred and others, the Board said:

58. ... it does not appear to us that the Board's jurisprudence in this area unequivocally supports the proposition that an association cannot be described as a trade union if it includes in its mem­bership persons who, in the opinion of the Ontario Labour Relations Board, exercise manage­rial functions. Further, and more to the point, it is not apparent that the Labour Relations Act supports such a proposition.

After setting out the provisions of clause l(l)(p), subsection l(3)(b) and sections 3,13, 48, 64 and 105 of the Act, the Board went on to observe that:

This Board does not "confer" or "grant" or, to use the language of the Board in the HEPCO case, give" organizations "trade union status". The only use in the Act of the term "status" in that connection is in the marginal note to section 105 of the Act. The actual language of that sec­tion, however, makes it clear that the Board only makes a finding of fact that an organization is a "trade union"~ it does not give the organization some characteristic it does not already have. "Trade union" is a description, not an award. The only "status" or in rem quality which attaches to a determination that an organization fits the statutory definition is that the determination, once made, can be set up as prima facie evidence of that fact in subsequent proceedings involv­ing employers and employees who were not parties to the proceedings in which the determina­tion was first made. Sections 13 and 48 describe an organization which has been the object of employer participation or support as "a trade union". If employer participation or support dis­qualified an organization of employees from being described as a "trade union", as paragraph 12 of the Children's Aid Society decision suggests, then the above quoted portions of sections 13 and 48 would be meaningless and unnecessary. On the language of sections 13 and 48, employer domination does not result in the withholding or removal of the "trade union" label; it results in a denial of certain rights which would be enjoyed by a trade union which was free of employer domination. A finding that an organization is a "trade union must not, therefore, be conclusive as to that organization's "status" to be recognized or certified as a bargaining agent under the Labour Relations Act. The Legislature's object was to ensure that employers and bargaining agents deal at arm's length, and to prevent employer dominated unions from standing in the way of organizational efforts of truly employer-independent trade unions. The statutory language employed to accomplish this policy does not require us to read into section l(l)(p) a limitation based on the nature of duties performed for their employer by individual members of what would otherwise be a trade union.

56. The HEPCO case held that the phrase "organization of employees" must be read as "orga­nization of employees only", having regard to the precision with which the meaning of the word "employee" is limited by paragraph 1(3)(b) of the Act. That reading of the language of para­graph 1(l)(p) would exclude from trade union membership not only managerial persons, who would be considered "employees" but for the deeming provision of paragraph 1(3)(b), but also persons who are not in any sense of the word anyone's "employee". If that were the intention of the Legislature, then why it did it so carefully use the "person" in section 3 when describing those who may join and participate in trade unions? The use of that word must at very least con­template trade unions' having members who are not "employees" because they are unem­ployed: see Ottawa General Hospital, supra, at paragraphs 24 and 26. While the language of sec­tion 3 of the Act does not create for managerial persons a protected right to join and participate in the Activities of a trade union, that language is clearly inconsistent with an interpretation of section l(l)(p) which requires that the phrase "organization of employees" be read as "organi­zation of employees only". It is noteworthy that none of the decisions which favour the "em­ployee only" interpretation of section l(l)(p) makes any reference to section 3 of the Act.

57. The HEPCO "employee only" interpretation of paragraph l(l)(p) not only fails to take the language of section 3 into account, it also comes into conflict with characteristics of organiza­tions commonly thought of as trade unions. We have already observed that craft unions tend to have "managerial" members, and that an "employees only" definition would prevent the unem­ployed from joining trade unions. It must also be recognized that trade unions are often employ­ers themselves; indeed, trade union employees can be and have been the subject of certification applications. In defining a bargaining unit of trade union employees, paragraph 1(3)(b) comes into play and those who act on the union's behalf in hiring, firing and directing the work of its employed staff will be excluded as "managerial". If paragraph l(l)(p) means what HEPCO says it does, then either those managerial persons would have to give up their union membership, or the trade union would have to give up its managers or its employees or forfeit its "status". This is an absurd result.

58. It is important to note also that the Labour Relations Act expressly defines "trade union" to include provincial, national and international trade unions. Many such organization exist. Some existed, as OSSTF did, before the Ontario Legislature enacted any collective bargaining legisla­tion; those organizations are not disqualified as trade unions by the fact that their founders were not persons then covered by such legislation. A trade union may function in a number of juris­dictions and under a range of collective bargaining statutes. It is not disqualified as a trade union in Ontario by the fact that its members in those other jurisdictions and under those other statutes are not persons covered by the Ontario Labour Relations Act. It can be expected that the legislature in each such other jurisdiction will have recognized that collective bargaining requires an arms-length relationship between "employees" on the one hand and their "employer" on the other, and that in the interest of both sides it is necessary to put "managerial" employees on the employer's side of the table in shaping any particular collective bargaining relationship. It may be supposed, therefore, that each jurisdiction and each collective bargaining statute will draw that managerial line or assign the task of line drawing to a tribunal empowered to administer the statute. While the principle of separation of employer and employee interests may be clear, the result of its application may vary from jurisdiction to jurisdiction, from statute to statute and from tribunal to tribunal. A legislature may feel that the various interests involved in collective bargaining generally, or in certain employment sectors in particular, are better served by draw­ing the "managerial" line at a point different from that at which this Board might have drawn the line in the same circumstances. It would seem peculiar and, frankly, pretentious if we were to deny an international, national or provincial trade union the opportunity to represent Ontario employees merely because some legislative body or administrative tribunal has required it to represent persons whom we would not, by reason of their duties, have included in a bargaining unit established under the Labour Relations Act. It is one thing to be ever vigilant against the mischief of company dominated unions. It is quite another to insist that those organizations which appear before this Board as trade unions conduct themselves in accordance with our views of membership purity regardless of the consequences to their ability to function in other jurisdictions. When public sector unions (OPSEU, for example) come before this Board for cer­tification under the Labour Relations Act, we do not require of them proof that in their repre­sentation of employees under other statutes they have not undertaken the representation of, or accepted as members, persons whose job functions might appear to us to be "managerial".

59. We conclude that the phrase "organization of employees" in paragraph l(1)(p) of the Act does not mean "organization of employees only". The mere fact that an organization has in its membership persons whose employment requires them to exercise managerial functions within the meaning of paragraph 1(3)(b) of the Act will not stand in the way of a finding that the orga­nization is a "trade union" within the meaning of paragraph l(l)(p) of the Act, if it otherwise qualifies to be so described. We respectfully decline to follow those earlier decisions which held otherwise. We acknowledge and share the concern those earlier decisions expressed about the "potential for conflict of interest" which can appear when managerial employees are members of trade unions. The need to keep employers and bargaining agents at arm's length is fundamen­tal to the scheme of the Labour Relations Act, but the right of employees on a majoritarian basis to freely choose their bargaining agent is equally fundamental. As a result, it is not for the Board to withhold rights from a freely selected trade union on grounds other than those contem­plated by the Act. Sections 13 and 48 speak to actual employer participation and support. A speculative concern about an organization's vulnerability to employer domination no more justi­fies denial of representation rights than would a concern that the composition of a trade union's general membership, or of another bargaining unit it represents, might divert it from the single-minded pursuit of the interests of the employees in the particular bargaining unit it seeks to rep­resent (see H. Gray Limited, 55 CLLC ¶18,011, and Canadian Iron Foundries, 56 CLLC ¶18,027). The Labour Relations Act provides safeguards against the realization of any potential for conflict of interest. By virtue of section 68 of the Act, a trade union which acquires the right to represent the employees in a bargaining unit assumes a duty to act fairly toward those employees in exercising that right, and that will require that the trade union avoid conflicts with the interests of persons excluded from that unit. While managerial membership alone will not trigger sections 13 and 48, the potential application of those sections to the trade union and, consequently, of section 64 to some one or more employers, will throw a spotlight on the rea­sons for such membership, and on the nature and degree of such members' participation in the affairs of the trade union. In the ordinary case, one would wonder why a person would join an organization devoted to collective bargaining in which it cannot represent him. When he is actively involved in those collective bargaining activities, one's wonder would grow at tolerance by his employer and by the trade union of any apparent conflict of interest, especially when the managerial employee had no protected right to join the trade union or participate in its activi­ties. While it will be a question of fact in each case whether managerial members are acting on behalf of employers, there will be some cases where the absence of any explanation for the man­agerial employees' membership and active participation in a trade union may support an infer­ence of employer domination. There will be few cases where, as here, the employees' allegedly managerial duties and concurrent trade union membership can be explained by the fact that both are compelled by law. Thus, sections 13, 48 and 68 encourage trade unions to confine the influence of managerial members; section 64 provides a similar incentive to employers. These provisions, together with the bargaining unit's ultimate remedy of changing or terminating its bargaining agent, are the safeguards the legislature has decided to provide for "conflicts of interest" in a system of free collective bargaining in which the concern for viable and indepen­dent bargaining representatives must share attention with the concern for the freedom to choose bargaining representatives on a majoritarian basis.

60. The allegation before the Board in York I was that the Ontario Secondary School Teachers Federation ("OSSTF") could not be a trade union within the meaning of the Act because it included in its membership principals and vice-principals who, it was alleged, exercised manage­rial functions within the meaning of subparagraph 1(3)(b) of the Act. Legislation governing the teaching profession required that teachers, including principals and vice-principals, be members of OSSTF or one of the four other affiliates of the Ontario Teachers Federation ("OTF"). Legislation governing collective negotiations between teachers and school Boards require that branches of OSSTF and the other OTF affiliates represent teacher bargaining units in which principals and vice-principals are expressly included. Assuming for the purpose of analysis the truth of the asser­tion that principals and vice-principals exercise managerial functions from the perspective of the Labour Relations Act, the Board concluded in York I that OSSTF was a trade union despite the inclusion of such persons in its membership. Following the same analysis, other panels came to the same conclusion with respect to OSSTF in Board of Education for the City of York, [1985] OLRB Rep. May 767 and with respect to another OTF affiliate, the Ontario Public School Teachers' Fed­eration, in The Board of Education for the City of Windsor, [1986] OLRB Rep. Mar. 378.

61. The rejection in York I of the Board's earlier approach in HEPCO was not limited, as the respondent argues, to circumstances in which the membership of managerial persons is com­pelled by other legislation or otherwise results from the organization's functioning as a bargaining agent under other legislation. The fact that such membership can arise in that way was merely one of several reasons why the Board in York I concluded that the phrase "organization of employees" could not be interpreted as "organization of employees only".

62. Etna Foods of Windsor Limited, [1986] OLRB Rep. June 710 illustrates that this analy­sis has not been limited to "teacher" cases. In Etna, supra, some classes of employer were eligible for membership in the applicant fisherman's organization, and its president was alleged to be a captain of a fishing boat who exercised managerial functions within the meaning of clause 1(3)(b) of the Act. It was argued that these facts precluded a finding that the organization was a trade union within the meaning of clause l(l)(p) of the Act. In rejecting those arguments, the Board expressly adopted the reasoning in York I and the conclusion that "organization of employees~~ in clause l(l)(p) does not mean "organization of employees only". Assuming the truth of the allega­tion that the organization's president was a member of management, the Board held that, while it might raise an issue under section 13, this did not preclude a finding that the organization was a "trade union" within the meaning of clause l(l)(p) of the Act.

63. Counsel for the respondent argues that the analysis in York I depends for its validity on the proposition that section 3 of the Act gives managerial employees a right to join a trade union. He asserts that that interpretation of the word "person" in section 3 fails to take into account and is inconsistent with the interpretation placed on the Labour Relations Act by the Ontario Court of Appeal and the Supreme Court of Canada in Associated Medical Services Incorporated v. Ontario Labour Relations Board et al. 1962 CanLII 149 (ON CA), [1962] O.R. 1093 (Ont. C.A.) and Jarvis v. Associated Medical Ser­vices Ltd. et al. (1964), 1964 CanLII 12 (SCC), 44 D.L.R. (2d) 407 (S.C.C.). The issue in those cases was whether a person to whom subsection 1(3)(b) applied was a person within the meaning of what are now sections 66 and 89 of the Act. The Ontario Court of Appeal and the majority of the Supreme Court of Canada concluded that a person to whom clause 1(3)(b) applied was not a person to whom the protections of those sections were available.

64. The simple answer to counsel's argument is that the analysis in York I does not depend in the slightest on any notion that managerial employees have a protected right to join a trade union or participate in its activities. That analysis nowhere suggests that section 3 of the Act affords such a right. The fact that managerial employees have no such right is expressly acknowl­edged in paragraph 59 of the York I decision, and the decision refers with approval to the Board's decision in Ottawa General Hospital, supra, in which the Board concluded that managerial employ­ees did not have such a right. As the Board said in Ottawa General Hospital, however, it does not follow from that conclusion that a trade union is precluded, in all circumstances, from having man­agerial employees among its membership: Ottawa General Hospital, supra, at paragraph 27, quoted in York I at paragraph 54.

65. Counsel for the respondent argues that the analysis in the 1971 HEPCO decision reflects an application of policy considerations which are as relevant today as they were then and therefore should still be applied. It does appear that the 1971 HEPCO decision is the result of injection of policy considerations into a process in which the panel apparently considered it its function to "give" or "withhold" "trade union status". This is precisely the perspective which was disapproved by the Ontario Court of Appeal in the 1972 CSAO decision. The following observa­tions of Mr. Justice Arnup in that case (page 505 O.R., page 70 D.L.R.) are germane to consider­ation of counsel's policy argument:

[The Board] has found that notwithstanding the fact that the applicant herein comes within the statutory definition of a "trade union", the Board nevertheless is entitled to set up other qualifi­cations which must be met before an applicant is entitled to be recognized as a "trade union" for the purposes of the Act. If it arrived at this result by construction of the statutory definition­, then for the reasons given by Jessup, J.A., and those which I have already expressed, it erred in so doing and thereby gave itself an enlarged jurisdiction not warranted by the Act. If it reached this result other than by founding it on a construction of the statutory definition, then it equally erred and gave itself a jurisdiction it did not have.

If the policy which the Board appears to have been following, as illustrated by its present deci­sions and its prior decisions referred to therein, is one which as a matter of public policy should be perpetuated, then this is the function of the Legislature and not of the Board, in the same way as an existing practice of the Board was sanctioned by the Legislature in enacting the provi­sions now found in s.77(4) of the Labour Relations Act, as enacted by 1970, c.3, s.2 [now s.103(4)].

The Legislature has not since amended the Act to give the Board the power to "refuse" on policy grounds to "give status" to organizations which satisfy the definition of "trade union" set out in clause l(l)(p) of the Act. It is not entirely clear whether the authors of the HEPCO decision founded its result solely on a construction of the statutory definition. Having regard to the CSAO decision, we are obliged to focus on that definition. We could not arrive at the same result as the panel did in HEPCO unless we construed the phrase "organization of employees" to mean "orga­nization of employees only". Having regard to the analysis in York I, which we adopt, that is not a construction which those words can reasonably bear.

64. Counsel for the respondent argues that we should follow the HEPCO decision because it was made in proceedings to which, in effect, Hydro and the Society were parties. He acknowl­edges that the doctrine of res judicata is not strictly speaking applicable, but relies on the Board's observations in Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501 with respect to the desirabil­ity of the Board's following its previous decisions.

65. Oakwood Park Lodge, supra, involved an application for certification with respect to a

bargaining unit of nurses. Their employer took the position that all of its nurses exercise manage­rial functions. That position had been upheld by the Board three years earlier in another trade union's application for certification with respect to the same bargaining unit. The employer argued that the issue could not be relitigated in the new application. The Board observed that there were strong institutional and labour relations reasons why a tribunal in the position of the Board ought to give substantial weight to its earlier decisions, particularly decisions involving the same parties. It said that "decisions in earlier cases should not be undercut promiscuously by those in later cases. Later decisions should, unless there are overriding factors to the contrary, be consistent with those earlier cases." It also observed, as we do, that nothing in the Labour Relations Act obliges the Board to follow its earlier decisions. Even when the parties and issues before the Board are the same parties as between whom the same issues were disposed of in a previous proceeding, the Board has the express power, under what is now subsection 106(1), to reconsider the decision "if it considers it advisable to do so". In the result, the Board in Oakwood Park Lodge concluded that the applicant before it could challenge the proposition that the respondent's nurses all exercised managerial functions, notwithstanding the Board's decision to that effect three years earlier. In dis­missing an application for judicial review of that decision, the court noted that

the Board is not bound to follow its previous decision. The extent to which it chooses to do so in any given case is clearly a matter within its jurisdiction to decide.

(Unreported decision dated November 3, 1981, referred to in Medi-Park Lodges Inc. c.o.b. as Oakwood Park Lodge v. Ontario Nurses Association et al. (1983), 83 CLLC ¶14,016 (Ont. Div. Ct.). The Board subsequently concluded that the respondent's nurses did not all exercise manage­rial functions, notwithstanding the earlier Board decision to that effect which, it noted, did not appear to have considered all of the Board jurisprudence bearing on the matter in dispute: Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84 (application for judicial review dismissed Medi-Park Lodges Inc. c.o.b. as Oakwood Park Lodge v. Ontario Nurses Association et al., supra).

66. The issue between the parties in the 1971 proceedings was whether SOHPEA was a trade union in 1971. That issue does not arise here. There is no question here of deference to a finding of fact in earlier proceedings between the same parties. What we are being asked to do is give deference to the reasons given in a previous decision. That decision did not deal with the apparently contrary approach taken by the Board in the earlier Hamilton Construction Association case. It proceeded from a perspective later disapproved by the Court of Appeal in the CSAO case. It did not deal with the considerations addressed in the subsequent decisions to which we have referred. Its reasoning has not been followed by the Board in matters involving other parties. In all the circumstances, we do not think it would be appropriate to constrain ourselves to apply that rea­soning in this case.

67. Counsel for the Coalition argued that the Board's finding with respect to the constitu­tional issue and the assumption about the managerial status of members of the Society both cast doubt on proceedings taken by the Society and its Executive. Counsel noted that some of those who were members of the Executive at the time of the certification referendum and at the time this application was filed are among those assumed to be managerial. He also argued that some mem­bers of the Executive are employed on or in connection with works to which section 17 of the Atomic Energy Control Act applies, and that the Board's decision with respect to the constitutional issue has "deemed" them not to be employees for the purposes of the Labour Relations Act. Hav­ing regard to the provisions of Article III, section 1 of the Society constitution as amended Novem­ber 1983, counsel argues that members of the Executive who have since been deemed not to be employees for the purpose of the Labour Relations Act were not then eligible to be members and, accordingly, not eligible to be officers or members of the Executive of the Society at the time they purported to act in those capacities. He adds that many of the members who voted in the certifica­tion referenda would have been disqualified for the same reason, which would cast doubt, he argues, on the Society's authority to present this application to the Board.

68. Subsection 1(3)(b) of the Act provides that

Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial function or is employed in a confidential capacity in matters relating to labour relations.

The November 1983 amendment to the Society's constitution to make ineligible for membership "any employee that the Labour Relations Board may deem to be excluded from the protection of the Ontario Labour Relations Act" was obviously drafted with reference to subsection 1(3)(b) of the Act. Matters of constitutional jurisdiction over labour relations were not in contemplation at the time that amendment was drafted.

69. If and when the Board does find that the employment of identified individuals or of per­sons in identified job classifications falls outside provincial jurisdiction for labour relations pur­poses, it would not be apt to say that persons so identified or employed in the classifications so identified will then have been "deemed" excluded from the protection of the Ontario Labour Rela­tions Act in the sense intended by the Society's constitution. The "deeming" with which the consti­tution is concerned is the deeming which follows from the Board's forming an opinion that an iden­tified individual or persons employed in an identified job classification exercise managerial functions within the meaning of subsection 1(3)(b). The operative assumption at this stage is that the Board would come to such an opinion with respect to a great many of the members of the Soci­ety, including some of those who served on its Executive at times relevant to this particular argu­ment. The premise of the argument made by counsel for the Coalition is that this provision of the constitution will retroactively terminate membership if the Board forms the requisite opinion of them. We do not accept that premise. We do not understand the constitutional provision in ques­tion to mean that persons are ineligible for membership if there is some possibility of the Board's forming such an opinion about them at some time in the future. The most sensible interpretation of the provision is that when the Board expresses the opinion that an employee exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, that employee is thenceforth ineligible for membership.

70. It does not appear to us that the prospect of findings under section 1(3)(b) that they are managerial casts doubt on the legitimacy of actions taken in the past by persons then serving on the Society's executive. Even if it did, we are not satisfied that that affects the question whether the Society is a trade union within the meaning of clause I(l)(p). We have difficulty accepting the notion that a trade union could lose its status under the Act if there were some dispute about the eligibility for membership or for office of some members of a past Executive. If such a dispute could not affect the status of an organization previously found to be a trade union, why should it affect a finding with respect to whether the organization is a trade union? For similar reasons, we do not accept that the possibility of a decision that some members are deemed not to be employees by virtue of clause 1(3)(b) of the Act affects the validity of past actions of the Society's member­ship in any way relevant to the question whether it is a "trade union".

71. We conclude that the applicant is "an organization of employees formed for purposes that include the regulation of relations between employees and employers" and, therefore, is a "trade union" as defined by clause l(l)(p) of the Act.

Does section 13 of the Labour Relations Act prohibit certification of the Society?

72. Section 13 of the Labour Relations Act provides, in part, that

73. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it

For convenience, the various employer activities described in this part of section 13 will be referred to collectively as "employer support". It is important to note immediately that such employer activities are prohibited by the Labour Relations Act. Whenever there has been employer support within the meaning of section 13, there is an employer who has violated section 64 of the Act, which provides that:

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. Both Hydro and the Coalition allege that there has been "employer support" of the Society because of

a) the involvement in its affairs, both generally and in the card-signing campaign in particular, of persons alleged to exercise managerial functions, and

b) the provision to and use by the Society of the privileges referred to earlier in paragraphs 26, 27 and 28 of this decision.

In framing their allegations of "employer support", both Hydro and the Coalition were most reluc­tant to state that Ontario Hydro had engaged in any improper behaviour. Both were obliged by our decision of June 25, 1987 to deliver written statements setting out the material facts on which they relied in support of this allegation. We specifically required that

any allegation that an employer or employers' organization has participated in the formation or administration of the applicant or has contributed financial or other support to it shall include full particulars of the time(s) when and place(s) where such conduct occurred, the name(s) of the person(s) alleged to have engaged in such conduct on behalf of an employer or employer's [sic] organization, the name(s) of employer(s) or employers' organization(s) on whose behalf those persons were acting and the means by which the alleged participation or support was accom­plished.

In the statements they delivered, neither Hydro nor the Coalition expressly described any allegedly managerial person as having engaged in supportive conduct on behalf of Hydro or any other named employer. With respect to the involvement of allegedly managerial persons in the Society's affairs and card-signing campaign, Hydro's argument was that while it had not instructed those per­sons to engage in such activities, those activities were nevertheless the activities of Hydro as a mat­ter of law because the persons who engaged in them exercise managerial functions within the meaning of subsection 1(3)(b). In addition to adopting Hydro's allegations and arguments in this regard, the Coalition argued that the activities of those persons amounted to employer support because they would be perceived as members of management and, so, would have undue influence over the expression by employees of their wishes.

74. We were referred to a number of Board decisions with respect to section 13, and we are aware of a number of others. We do not propose to review them all in this decision. The Board's decisions in this area generally explain their application of section 13 or its companion section 48 by reference to one of two concerns. One is that a "company dominated" trade union is unable to properly represent employees because, as a result of employer support, it "does not owe its sole allegiance to those whom it seeks to represent": Canada Crushed Stone, [1977] OLRB Rep. Dec. 806; and see Seafarers Training Institute, [1984] OLRB Rep. Mar. 518. Sections 13 and 48 ensure that such "company dominated" trade unions cannot stand in the way of employees' selecting a trade union which is not beholden to their employer. The other concern to which section 13 is said to be responsive is described in Edwards & Edwards Limited (1952), 52 CLLC ¶17,027:

The section is clearly aimed at "company-dominated" trade unions which are not entitled to be certified, on the theory that a trade union fostered by an employer cannot be considered as having been freely chosen by employees. The section designates conduct by means of which an employer might seek to confine the broad right conferred by section 3 and is therefore to be called into play where that purpose appears. We consider it is intended to be applied where employer activities are of such a character or are of such proportions that it is reasonable to infer that the employees have not exercised a free choice in the matter of the selection of a bar­gaining agent, or where an employer has given material assistance to a trade union in connection with its organizational or other activities; where, in other words, the particular applicant is not truly the chosen bargaining agent of the employees concerned. It is argued that because of its explicit language, section [13] need only be literally construed and mechanically applied. We suggest that it can properly be interpreted only by reference to what is its obvious intent: to pro­hibit the certification of any trade union which, because of the nature of its relationship with an employer, is not qualified to act on behalf of employees in their relations with their employer.

The need to be cautious and purposive rather than literal in its interpretation and application of section 13 has been a regular theme in the Board's decisions. If it were otherwise, section 13 could be used by employers to accomplish the very thing it was intended to prevent: interference in their employees' right to be represented by the trade union they select on a majoritarian basis.

75. The Board has on several occasions addressed the proposition that involvement in a trade union's affairs or organizing campaign by persons who exercise managerial functions within the meaning of subsection 1(3)(b) amounts to employer support within the meaning of section 13. Some older decisions suggested that it did: Federal Packaging and Partition Company Limited, [1972] OLRB Rep. Apr. 316; Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 87; Leamington District Memorial Hospital, [1973] OLRB Rep. June 376. Later decisions, however, rejected the automatic application of section 13 in these circumstances, as the Board noted in Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639, where (at paragraph 6) it said this about what is now section 13:

The purpose of the section, in keeping with the scheme of the Act, is to maintain the necessary arm's length relationship between employers on the one hand, and trade unions, as representa­tives of employees, on the other. In applying section 12 [now 13], the Board has drawn a distinc­tion between support tendered by the employer, either directly or through persons holding man­agerial positions within his organization, and support tendered by persons who occupy management positions but act on their own initiative against the employer's interest in support of the interests of the employees. Although a question may arise in these latter circumstances as to the voluntariness of the membership evidence, the necessary arm's length relationship between employer and trade union may not be undermined in a manner which requires the automatic application of the section 12 bar. In rejecting the automatic application of section 12 in these circumstances (as in the Leamington Hospital case, [1973] OLRB Rep. June 376) the Board stated at para. 14 of the Children's Aid Society case, supra:

The Board recognizes that in the modern organizational setting interests of indi­vidual persons deemed to be managerial are not necessarily coincidental with those of the employer. If the evidence establishes that such persons acted on behalf or in the interests of the employer then undoubtedly the section 12 bar would apply. If, how­ever, the evidence establishes that the persons were acting not on behaif of the employer but contrary to the wishes and interests of the employer (see Air Liquide case (1964) CLLC 16,002) then it cannot be said that the employer has participated contrary to section 12, or section 56 for that matter. Similarly if the evidence estab­lishes that the disputed persons have been acting in their self interest rather than on behalf of or in the interest of the employer, then again section 12 should not be acti­vated."

(See also Edwards and Edwards Ltd. 52 CLLC ¶17,027, Municipality of Casimir, Jennings and Appleby, supra, Japamco Company Limited, supra and York Steel Construction Limited, deci­sion dated January 24, 1980, unreported, Board File No. 150I-79-R.) The purpose of the section is to prevent the certification of a trade union which is party to a "sweetheart deal" with an employer or is the recipient of employer support so that it does not owe its sole allegience [sic] to those whom it is certified to represent. The Board has consistently applied the section having regard to its underlying purpose.

76. The Children's Aid Society case referred to in this passage is the one we have already referred to in paragraph 56, in which the respondent employer attacked the status of an employee association when it applied for certification because it had not first expelled from membership all those whom the employer considered "managerial". That part of the attack which depended on section 13 (then section 12) was dealt with in the following paragraphs of the Children's Aid Society decision:

77. The respondent characterizes the first issue, the section 12 [now section 13] bar, as a simple one which hinges on a Board finding under section 1(3)(b) as to the status of persons in the dis­puted classifications. The respondent's argument presupposes that for purposes of section 12 the prohibited participation by an "employer" or "employers' organization" in the formation or administration of a trade union includes participation by persons later found to be managerial under section 1(3)(b) of the Act regardless of the nature of the participation. Notwithstanding the Leamington Hospital case the Board does not accept this interpretation of section 12 of the Act. The Board recognizes that in the modern organizational setting the interests of individual persons deemed to be managerial are not necessarily coincidental with those of the employer. If the evidence establishes that such persons acted on behalf of or in the interests of the employer then undoubtedly the section 12 bar would apply. If, however, the evidence establishes that the persons were acting not on behalf of the employer but contrary to the wishes and interests of the employer (see Air Liquide case [1964] CLLC 16,002) then it cannot be said that the employer has participated contrary to section 12, or section 56 for that matter. Similarly if the evidence establishes that the disputed persons have been acting in their self interest rather than on behalf of or in the interest of the employer, then again section 12 should not be activated. [sic]

78. The Act has been designed to allow the Board to resolve questions of employee status as they arise during a certification proceeding (section 6(1)) and as they arise during the course of bargaining or during the operation of a collective agreement (section 95(1)). These determina­tions do not per se undermine trade union status nor do they per se activate section 12 of the Act, nor do they per se invalidate collective agreements. The Board stated in the Chrysler Canada Ltd. decision [1975] OLRB Rep. Nov. 852 at para. 13:

The prohibitions contained in those sections of the Act ought not to be applied to persons who, while they may exercise managerial functions, are not in fact acting on behalf of management in joining or supporting the union but, rather are pursuing their own economic interests in the mistaken belief that they have the right to orga­nize and bargain collectively under the Act. This notion was expressed in a different but analogous context in the Air Liquid [sic] case 64(3) CLLC para. 16,002. More­over, there are many instances where management personnel have erroneously been thought to qualify as employees within the meaning of the Act and the Board has declared otherwise in applications under section 95(2). Indeed, the very existence of section 95(2) reflects a recognition by the Legislature that determinations as to employee status may be required, either during bargaining or during the life of the collective agreement, a recognition which, in our view, tends to negate the inference that the mere presence of management personnel within union membership ranks necessarily destroys the union's status or nullifies the collective agreement to which it is a party.

The Act contemplates that these disputes will arise within the context of modem organizations and has provided a means for their resolution. The resolution does not necessarily affect trade union status and does not necessarily activate sections 12 or 40. The Board can see no reason why section 12 should be activated in respect of an organization seeking status as a trade union and not in similar circumstances (i.e. bargaining unit dispute) in respect of a trade union which has established status.

16. In the absence of a statutory vehicle for the determination of employee status prior to the fil­ing of an application for certification the respondent's interpretation of section 12 would require an organization seeking recognition as a trade union to correctly guess the status under section 1(3)(b) of those it is seeking to organize, and to purge all those who might be managerial or risk the imposition of the section 12 bar. The result is unfair to the applicant and is inconsistent with the general application of section 12 vis-a-vis section 1(3)(b). A finding of managerial function under section 1 (3)(b) in respect of person(s) who actively participate in the formation of the trade union does not in and of itself activate section 12 of the Act. Rather a finding of managerial status in respect of these persons must be coupled with evidence which establishes that they were acting on behalf of or in the interests of the employer.

17. There is no evidence before the Board in the instant case to suggest that any of the persons the disputed classifications were acting on behalf of or in the interests of the respondent employer. The respondent has acknowledged that the relationship between itself and the appli­cant was at arm's length and indeed, Mr. Watson's memo of February 12, 1976, which is repro­duced in part in paragraph 7 hereof, indicates to the Board that the persons in the disputed clas­sifications who involved themselves in the applicant's transformation did so against the wishes of the employer. In the circumstances the Board must find that even if the persons in the disputed classifications are found to exercise managerial function [sic] under section 1(3)(b) their partici­pation in the applicant organization does not bar this application under section 12 of the Act.

[emphasis added]

77. We agree with this portion of the Children's Aid Society decision and with the passage it quotes from Chrysler Canada Ltd. We would add that uncertainties about the outcome of potential subsection 1(3)(b) disputes create difficulties for employers as well as for trade unions. If a mana­gerial employee's participation in a trade union's affairs in every event constituted employer sup­port to the detriment of a union under section 13 or 48, it would equally constitute a violation of the Act for which the employer was legally responsible, a violation which the employer was legally obliged to prevent. As managerial employees have no protected right to be a member of a trade union or participate in its activities, an employer could avoid liability for that sort of employer sup­port by making it a term of their employment that its managerial employees not become members of or participate in the activities of any trade union seeking to organize the employer's employees. Why would an employer concerned enough to bring employer support to the attention of the Board not be concerned enough to take such simple steps to prevent its occurrence? The answer may be found by considering the uncertainty of outcome under subsection 1(3)(b) from the employer's perspective. If an employer instructs all those employees whom it thinks are "manage­rial" that they may not join a union or participate in its activities and the Board later concludes that some of them were not, the employer's instructions will have violated the Act by interfering with employee rights contrary to section 66 and possibly other provisions of the Act. Where there is the potential for some dispute over whether an employee is "managerial" or not, an employer's reluctance to instruct the employee not to participate in the union's activities and a trade union's reluctance to exclude that employee from membership are equally understandable.

78. For the purpose of this "employer support" status question there was no assumption

that any member of the applicant fell within the scope of subsection 1(3)(b) at any time. Some evi­dence was led concerning the duties and responsibilities of some persons who were officers of the Society or otherwise acted on its behalf during the card-signing campaign or at other times. It is unnecessary for us to determine their status at this point. Even if they are persons to whom subsec­tion 1(3)(b) was applicable at the time they solicited membership evidence or otherwise partici­pated in the Society's affairs, we are satisfied that they were not acting on behalf of or in the inter­ests of Hydro in so doing. We are also satisfied (whatever might have been the relevance to or effect on this issue of a contrary finding), that no employee affected by this application could rea­sonably have supposed that Hydro itself supported certification of the Society or wanted its employees to support certification. Hydro's attitude over the years and its communications to employees after it learned of the Society's intention to seek certification made it clear that it did not support the Society in that respect.

79. Does the Society's use of Hydro facilities in connection with its bid for certification trig­ger a section 13 bar? Any accommodation or arrangement between a trade union and an employer which furthers the trade union's representation of employees of the employer could be described as supportive of the trade union. Whether such an arrangement or accommodation constitutes "em­ployer support" within the meaning of sections 13, 48 and 64 depends on the circumstances.

80. An employer's voluntary recognition of a trade union as bargaining agent for its employees is particularly supportive, but does not necessarily constitute "employer support". The Act treats voluntary recognition as a legitimate way to acquire bargaining rights. It accords bar­gaining rights so acquired many of the same protections as are afforded the rights of a certified bar­gaining agent: see subsections 5(3) and 16(3) and section 60. Indeed, voluntary recognition will not necessarily constitute employer support from the Act's perspective even when the trade union did not enjoy majority support or otherwise have the right to represent employees in the subject bar­gaining unit at the time recognition was granted. If voluntary recognition always constituted employer support under those circumstances, section 60 would be unnecessary and the one-year limitation on an application under that section would be meaningless. Voluntary recognition has been found to constitute employer support, however, when the trade union has no pre-existing bargaining rights for any employees of the employer and there are no employees in the subject bar­gaining unit at the time recognition is granted: F. D. V. Construction, [1984] OLRB Rep. May 719; C. Strauss (1973) Limited, 1975] OLRB Rep. July 581; Sunrise Paving and Construction Company Limited, [1972] OLRB Rep. Mar. 199 (but see Nicholls-Radtke & Associates Limited, [1982] OLRB Rep. July 1028). Voluntary recognition has also been treated as employer support when it occurs "in the shadow" of another trade union's organizing campaign: see Trent Metals Limited, [1979] OLRB Rep. Aug. 827.

81. Provision of employee lists to an organization created to block a trade union's organiz­ing campaign has been held to constitute employer support: Tn-Canada Inc., [1981] OLRB Rep. Oct. 1509. On the other hand, not only is the provision of employee lists and other employee infor­mation to a certified trade union not "employer support", the failure to provide the information can constitute an unfair labour practice: see Forintek Canada Corp., [1986] OLRB Rep. Apr. 453, 14 CLRBR (N.S.) 1 at paragraphs 30 to 34.

82. Use of premises provided by the employer has been found to constitute "employer sup­port" when the premises are provided and used for the initial founding or organizing meeting of an employee organization: Gillies Bros. and Co. Limited, [1964] OLRB Rep. Dec. 420; Basic Struc­ture Steel Fabricators Limited, [1966] OLRB Rep. Mar. 888; Crowe Foundry Limited, [1969] OLRB Rep. May 218. Remission to an organization of monies deducted from employee wages was found to constitute employer support in Crowe Foundry Limited where the organization in ques­tion was brought into existence while an incumbent trade union was engaged in a strike. Deduction and remission of dues otherwise than pursuant to the terms of a collective agreement was not found to constitute employer support in Edwards & Edwards Limited, supra, where, as the employer had reason to believe, the trade union already had substantial support among the employees when the request for checkoff was made or acted upon.

83. Subsection 46(1) of the Act provides:

46.-(1) Notwithstanding anything in this Act, but subject to subsection (4), the parties to a col­lective agreement may include in it provisions,

(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a prefer­ence of employment to members of the trade union, or requiring the pay­ment of dues or contributions to the trade union;

(b) for permitting an employee who represents the trade union that is a party to or is bound by the agreement to attend to the business of the trade union during working hours without deduction of the time so occupied in the computation of the time worked for the employer and without deduction of wages in respect of the time so occupied;

(c) for permitting the trade union that is a party to or is bound by the agree­ment to use the employer's premises for the purposes of the trade union without payment therefor.

The respondent argues that the purpose of this subsection is to permit arrangements which would otherwise constitute "employer support". It follows, the respondent argues, that any supportive arrangement not permitted by subsection 46(1) will constitute employer support. The arrange­ments between Hydro and the Society are not saved by this subsection, the respondent argues, because they are not reflected in the provisions of a collective agreement.

84. We agree that the provisions of subsection 46(1) put to rest any argument that arrange­ments of the sort described therein constitute employer support. We do not accept the proposition that any arrangement between an employer and a trade union which is supportive of the trade union's representational efforts will constitute employer support unless that arrangement falls within the four corners of subsection 46(1). That approach to the matter would introduce a literal or mechanistic approach into the interpretation and application of the "employer support" provi­sions. Viewed from the purposive perspective which the Board has generally adopted in dealing with the "employer support" provisions, the rationale of subsection 46(1) is that where an employer and trade union have the sort of "arm's length" relationship implicit in their being par­ties to a collective agreement, the introduction into that relationship of provisions of the sort referred to in subsection 46(1) does not raise the concerns to which sections 13, 48 and 64 are addressed. That rationale can bear application to provisions other than those described in para­graphs (a), (b) and (c) of subsection 46(1). This rationale should also apply to arrangements made in or arising out of arm's-length agreements even if they are not collective agreements (assuming, as Hydro argues, that an employer and an employee organization can enter into an agreement about the wages and working conditions of employees without thereby making a "collective agree­ment").

85. The Board has dealt in other cases with situations in which the applicant has pre-exist­ing relationship with the respondent employer pursuant to which it has enjoyed concessions like those contemplated by subsection 46(1). The Board has approached the question whether receipt of these concessions constitute "employer support" by asking whether the concessions were the product of "arm's length" negotiations with the employer: York University, [19761 OLRB Rep. Apr. 181. In our view, that approach is consistent with the thrust of the Board's jurisprudence. Arrangements in which an employer assists a trade union with dues deductions, use of facilities and so on have been found to constitute "employer support" when they are provided before the trade union has acquired or demonstrated any membership support among the affected employees. Such employer assistance is not seen as "employer support" when it is the result of "arm's length" deal­ings which occur after the assisted organization has established support among the affected employ­ees.

86. Whether or not the present applicant is the same organization as or a successor to SOI-IMPS, SOHPEA, SOI-IPE, the Ontario Hydro Unit or Unit 1 for purposes of section 62 or section 105 or a dispute at common law over the ownership of assets, the Society is the product of a history which includes all of those organizations. In terms of employee support, it traces its origins back to Unit 1. There is no suggestion that employee support of Unit 1 was the product of employer support. There is no suggestion that the 1955 expansion of the group for which the Ontario Hydro Unit was recognized involved employer support. Since then, the evidence shows that the Society or its predecessors acquired and demonstrated employee support in any new group of employees before being granted concessions in connection with the representation of that group. In the history of dealings between Hydro and the Society and its predecessors, there have been periods characterized by cooperation and periods characterized by confrontation. There is no serious suggestion by any witness that in any of those periods those dealings were other than ''arm's length''. The concessions and privileges of which the Society has made use in pursuing this application are privileges and concessions which are the result of an "arm's length" relationship and do not, in our view, reflect "employer support" within the meaning of section 13 of the Act.

87. Accordingly, we are not persuaded that the applicant is a trade union whose certifica­tion in this application is prohibited by section 13 of the Act.

Comments

88. With respect to both status questions, the respondent and the Coalition argued that the approach taken in the Children's Aid Society decision should not be applied here because, in their submission, this applicant had not engaged in a proper "purge" of management members following the amendment of its constitution in November 1983. This demonstrated, in their submission, that the "self-purging" feature inserted in the constitution at that time was merely window dressing intended to disguise the applicant's intention to continue as a "management" organization. They argue it was not enough to terminate the membership of the few remaining ESR associate mem­bers, while retaining in membership so many other "managerial" persons. In effect, the respon­dent and the Coalition question the bona fides of the applicant's asserted belief that none of those whom it seeks to represent falls within the scope of subsection 1(3)(b). It may be that the depth of the applicant's belief in the correctness of the position it has taken is not relevant to the consider­ation of either of the status questions. Nevertheless, given the extent to which evidence and argu­ment was directed to this point, we are inclined to make some comments about it.

89. One of the major premises of this attack on the bona fides of the applicant's position is that those who fall within the group now represented by the Society as a result of exclusion from the OHIEU bargaining unit must, of necessity, be persons to whom subsection 1(3)(b) applies. This presumes that application of the "managerial" and "confidential" tests articulated in the agree­ment between Hydro and OHEU would exclude from that unit only those who, in the opinion of this Board, exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations.

90. The exclusionary tests in the Hydro/OHEU agreement were not designed by this Board, nor were they even agreed to by both parties to that agreement. They were imposed by an interest arbitration board in 1972. On the material before us, they reflect the position taken by Hydro at that time, a position which Hydro then sought to support by reference not only to the notion that persons to be excluded performed managerial or confidential functions but also to the notion that persons at a particular level of education and technical expertise did not share a com­munity of interest with a vast majority of those who clearly fell within the OHEU unit. Nothing in the material before us suggests that the interest arbitration board's decision to adopt Hydro's posi­tion on the matter of exclusions ignored Hydro's argument about community of interest or was intended to precisely parallel this Board's approach to the application of subsection l(3)(b). Even if it were so intended, it is at least noteworthy, if not significant, that many of the seminal decisions to which the Board now refers in dealing with issues under subsection 1(3)(b), particularly issues arising in connection with professional, technical and other white-collar workers, postdate the Hydro/OHEU interest arbitration decision: see Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84; The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 and the decisions referred to therein including McIntyre Porcupine Mines Ltd., [1975] OLRB Rep. Apr. 261. Hydro filed with us several arbitration awards which deal with the exclusion provisions of the Hydro/OHEU agreement. And none of them suggests that those exclusionary provisions are coex­tensive in scope with subsection 1(3)(b). Indeed, one award recites with apparent bemusement the insistence of both Hydro and OHEU that this Board's approach to issues arising under subsection 1(3)(b) should not be considered or consulted by an arbitrator in applying the exclusionary provi­sions of their agreement. It is unnecessary and premature to speculate about the significance in practice of any particular arguable distinction between the exclusionary language of the Hydro/OHEU agreement and the Board's current approach to questions arising under subsection 1(3)(b) of the Act. It is enough to observe that the mere fact that a position is excluded from the OHEU/Hydro agreement cannot be determinative of the question whether that position would be excluded from the scope of any bargaining unit in this application.

91. Without suggesting that they are the only relevant considerations, it is apparent that the considerations outlined in the following passage from The Corporation of the City of Thunder Bay, supra, (at paragraph 7) would be of some significance in resolving the parties' disputes in this area:

(4) Modern forms of corporate organization, improved means of communication, and the devel­opment of sophisticated institutionalized personnel policies, have all significantly diminished the role (and perhaps need for) the "traditional foreman", so that he is no longer the king-pin he once was. This process has several effects - all of which are evident if one surveys the dozens of reported and unreported cases recently decided under section 1(3)(b). First, co-ordinating or supervisory functions which in the past were often associated with "real" managerial authority, may not be sufficient standing alone, to exclude one from collective bargaining. Second, it is much easier, in practice, to maintain an existing managerial exclusion, than to justify the cre­ation of a new level of management. Finally, again from a practical point of view, if the new purported "manager" has only a small number of subordinates, his managerial status is unlikely to be affirmed unless, as between them, there is very clear evidence, that the duties exercised are of such character that they clearly demonstrate the mischief to which section 1(3)(b) is directed. The fewer the number of subordinates, the stronger the need for demonstrative evi­dence of managerial status - especially if the next level of management is in close proximity and seems to be closely involved in the ultimate decision making.

(5) The acceptance of the "effective recommendation test" mentioned above, means that it is not necessary to show that the disputed individual performs his role independently of higher lev­els of management. But it is necessary to show that his recommendations are really effective, so that, in practice, and to a substantial degree, he becomes the effective decision maker in respect of matters impacting upon his fellow employees. From an evidentiary standpoint, it will be use­ful and often necessary to provide concrete examples of this kind of decision, and it will also fre­quently be necessary to hear from the person who actually made the decisions in order to show that the recommendations of the disputed individual were indeed decisive. In too many cases, in recent years, this evidence has either not been available at all, or when examined closely, amounts to no more than a "participatory decision-making style". Whatever value the latter may have in improving employee performance or ensuring adherence to corporate goals, it does not necessarily mean that managerial authority has percolated downwards.

These observations obviously cut two ways. Underlying them is a sense that a certain portion of any work force must, almost of necessity, consist of persons exercising managerial functions. The proposition that only a few hundred out of a work force of over 20,000 would exercise such func­tions to such a degree as to be excluded from the scope of the Labour Relations Act may seem at odds with that sense. At the same time, the observations we have quoted suggest that some organi­zations may so distribute decision-making as to leave only a relatively small number of persons exercising managerial functions in sufficient concentration to result in their exclusion from the scope of the Labour Relations Act. We do not offer these observations as any hint at the possible outcome of the parties' dispute over the application of subsection 1(3)(b) to persons whom the applicant seeks to represent. We offer them only to explain why we do not find it unusual or implausible that there would be a genuine dispute about the applicability (apart from constitutional considerations) of subsection 1(3)(b) to a group of employees which, although numerically large, constitutes only 10 to 15 per cent of Hydro's total work force.

92. In what might be taken as a challenge to Hydro's bona fides in taking the position it has on the managerial exclusions issue, the Society observed in argument that the persons whom Hydro says would have a "conflict of interest" if placed in the bargaining unit are persons whom Hydro had for years been prepared to leave on the "other side of the table" in a collective negotia­tion relationship with the Society. The Society asks rhetorically "[W]hy does this so-called conflict of interest, tolerated with equanimity under an enforceable "voluntary" agreement, become intol­erable under an enforceable collective agreement?" Their relationship under the "voluntary agree­ment" was one which both parties understood, correctly or otherwise, to be outside the scope of the Labour Relations Act with the consequence, among others, that those on the "other side of the table" from Hydro did not have any protected right to engage in a strike. Whether or not the avail­ability of the right to strike should affect the point at which a line is drawn between excluded 'management~~ and represented ''workers'' for the purpose of a system of collective negotiations, we note that at one point in the history of the relationship, at least, the Society's own leadership asserted that the absence of the right to strike should result in drawing that line higher in the hier­archy than might otherwise be the case.

93. In the course of dealing with the status questions, we have seen no reason to question either the Society's bona fides in asserting that none of those for whom it seeks certification would be excluded by subsection I (3)(b) or Hydro's bona fides in asserting that (subject to the effect of the constitutional issue) nearly half of those for whom the Society seeks to be certified are "mana­gerial" from this Board's perspective.

Issues not dealt with in this decision

94. Our findings in this decision do not involve any rejection of the concern that "manage­rial" employees may have been involved in collecting the membership evidence on which the appli­cant relies in this application. We have only rejected the argument that any such involvement con­stituted "employer support" within the meaning of section 13 or otherwise affected the status questions with which we are concerned in this decision. Even when that involvement does not constitute employer support, a managerial employee's involvement in union organizing may raise a question whether membership evidence which he or she obtains from other employees truly reflects the desire of those employees to be represented by the trade union in collective bargaining (as membership evidence is ordinarily assumed to do). The applicant will not be certified for any bargaining unit on the basis of its membership evidence alone unless it establishes that over fifty-five per cent of the employees in that unit on the application date were "members" on the terminal date and the Board exercises its discretion under subsection 7(2) by certifying without a vote rather than by directing that a representation vote occur. If it turns out that employees on whose behalf membership evidence has been filed in this application either became members or maintained their membership as a result of the influence of persons exercising managerial functions, that would be a factor which the Board could take into account in exercising its discretion under subsection 7(2). We have not here applied those observations to the circumstances of this case because the effect to be given to the membership evidence filed in this application is a matter to be dealt with at a later stage of these proceedings.

95. During argument, counsel for the applicant asked us to decide whether the applicant's current agreements with Hydro constitute a "collective agreement" within the meaning of the Labour Relations Act, even if a finding in that regard proved unnecessary to our disposition of the status questions. The question whether the agreements between the Society and Hydro constitute a collective agreement first arose at our instigation, when we were considering whether to grant the applicant's request for a pre-hearing representation vote. We asked the parties to take a position on that question in connection with that request. The results are reflected in our decisions with respect to the request for a pre-hearing representation vote: [1987] OLRB Rep. Mar. 419 and [1987] OLRB Rep. Dec. 1589.

96. After we had concluded in March 1987 that a pre-hearing representation vote would not be conducted, we invited the participants' representations about the order in which we should deal with the issues in dispute and the procedure we should adopt in connection with the hearing of those issues. None of the participants then chose to put the status of the existing agreements directly in issue. This was not surprising. It would not have been in the interest of the parties opposed to the Society's having bargaining rights under the Labour Relations Act to assert that the existing agreements constituted collective agreements under that Act, since that would amount to a concession that the Society already had bargaining rights under that Act. The existence of a "col­lective agreement" covering the employees affected by this application would leave us without jurisdiction to entertain this application (unless it could be said that it had been filed during one of the "open periods" contemplated by subsections (4), (5) and (6) of section 5 of the Act). An asser­tion by the applicant of a proposition which, if true, would leave the Board without jurisdiction to entertain the application might well have led to our dismissing the application without determining the correctness of the assertion. That was an obvious disincentive to the applicant's pursuing the matter in this application. Another apparent reason for the Society's not having put the status of its agreements with Hydro in issue emerged during the evidence, when we heard that the Society's executive had rejected the idea of taking a "back door" route to Labour Relations Act coverage by taking or precipitating proceedings in which it would ask the Board to find that the Society's agree­ments with Hydro constituted collective agreements. They preferred to establish Labour Relations Act coverage of the Society's relationship with Hydro by means of a certification application based entirely on membership evidence obtained expressly for that purpose, so that the result would be based on a direct demonstration of majority support for representation by the Society in collective bargaining under the Labour Relations Act.

97. We were surprised, therefore, when counsel for the Society raised this question again as a distinct issue which it wished to have decided in these proceedings. By that point, the simple answer to the request was that the two status questions were the only questions with which we were dealing in this phase of our hearings, and it would be inappropriate to deal with any other issue except to the extent that was necessary to resolve the two status questions. Any question whether the existing arrangement between the Society and Hydro constitutes a "collective agreement" within the meaning of the Act is complicated by the argument that the Society is estopped from asserting that those agreements constitute a collective agreement under the Labour Relations Act by reason of its having made contrary representations to its membership over a considerable period of time. There is the question whether the doctrine of estoppel can be applied in these circum­stances. There is the question whether a trade union as defined in the Labour Relations Act can engage in the representation of employees covered by that Act except under the provisions of that Act. These are complex questions with which we would not want to deal unless it were absolutely necessary to the disposition of the matter before us. It has not proved necessary to do so in order to determine the status questions. Indeed, this certification application could be dealt with without ever resolving those questions.

98. Our answers to the status questions are not dispositive of this application. It will now be necessary for the Board to address the other issues to which we referred at the beginning of this decision. This application should therefore be relisted for hearing. Notice of hearing should be given to all those who have expressed interest in participating in the Board's hearings with respect to any aspect of this application. On the next scheduled days of hearing, the Board will consider the representations of all those persons with respect to the procedure to be followed by the Board in resolving the remaining issues in this application.