The Society of Ontario Hydro Professional and Administrative Employees v. Ontario Hydro, 1991 CanLII 6008

[1991] OLRB Rep. January 83

1714-90-R The Society of Ontario Hydro Professional and Administrative Employees, Applicant v. Ontario Hydro, Respondent

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

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; January 31, 1991

1. This is an application for certification in which the applicant ("the Society") has asked the Board to conduct a pre-hearing vote. That request is opposed by the respondent ("Hydro") and a group of affected employees who refer to themselves (as we will for the purpose of this deci­sion) as The Coalition to Stop the Certification of the Society ("the Coalition"). This decision deals with the question whether the Board will conduct such a vote under section 9(2) of the Labour Relations Act ("the Act") in connection with this application. That question arises against a background of previous proceedings which we shall first briefly describe.

Background

2. Hydro and the Society for some years engaged in a form of collective negotiations which they treated as taking place in the context of a "voluntary relationship" outside the ambit of the Labour Relations Act. On November 5, 1986, the Society filed an application for certification as exclusive bargaining agent of the group of Hydro employees ("Society represented employees") it had been representing in that "voluntary relationship." It requested that a pre-hearing represen­tation vote be conducted.

3. When that first application was filed, Ontario Hydro ("Hydro") and the Society were parties (as they apparently still are) to a "Master Agreement" and a number of subsidiary agree­ments which addressed the terms and conditions of employment of a unit of employees for whom Hydro recognized the Society as the "representative body". On March 27, 1987, at the conclusion of the show-cause hearing ordered in a decision reported at Ontario Hydro, [1987] OLRB Rep. Mar. 419, ("Hydro #1"), we decided not to conduct a pre-hearing representation vote, for reasons later reduced to writing and reported at [1987] OLRB Rep. Dec. 1589 ("Hydro #2").

4. The first issue dealt with on the merits in that application was whether certain "Society represented" employees fall within federal jurisdiction for labour relations purposes and could not, therefore, be included in any bargaining unit for which the society might be certified by this Board. That issue had been raised by the Coalition, whose role in those proceedings as representative of objecting employees was described in paragraph 3 of our decision of February 25, 1988, which is reported at [19881 OLRB Rep. Feb. 187 ("Hydro #3"). 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.

5. Hydro and others applied for judicial review of our constitutional determination in Hydro #3. On June 12, 1989, the Ontario Divisional Court decided that the Ontario Act, and not the federal Labour Code, applies to Hydro's "nuclear employees" who are not otherwise exempt from its provisions: Re Ontario Hydro and Ontario Labour Relations Board et at. (1989), 1989 CanLII 3257 (ON HCJDC), 69 O.R. (2d) 268. The Attorney-General of Canada was later granted leave to appeal from that decision, and the appeal was argued before the Ontario Court of Appeal in early September 1990. The court's decision issued on January 28, 1991. By a majority, the court allowed the appeal and set aside the Divisional Court's decision, affirming our initial assessment of the constitutional issue. We are mindful of the possibility of a further appeal to the Supreme Court of Canada.

6. The first application raised a number of other issues that had to be resolved whether or not some of the affected employees fell within federal jurisdiction. These were described at length in Ontario Hydro, [1989] OLRB Rep. Feb. 185, 1 C.L.R.B.R. (2d) 161 ("Hydro #4"). The most substantial and pervasive of the several major issues was whether, as Hydro has long claimed, a great number of the persons represented by and forming the membership of the Society exercised managerial functions within the meaning of clause 1(3)(b) of the Act in connection with the employment either of other persons represented by the Society or of Hydro employees 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. Moreover, Hydro asserted that the Society could not be a "trade union" if its membership included managerial persons and that their participation in its activities and the Society's having enjoyed the fruits of the "voluntary relationship" disentitled it to certification under section 13 of the Act and cast doubt on the membership evidence it had submitted in support of its application. Hydro's position on those and other issues was supported by the Coalition.

7. We began by addressing the questions whether the society was a trade union and whether it had received employer support within the meaning of section 13 of the Act. After lengthy hearings on those issues, we concluded that the applicant was a trade union within the meaning of clauses l(l)(p) of the Act even if, as we assumed for the purpose of assessing Hydro's argument to the contrary, its membership included managerial persons as alleged by Hydro: Hydro #4, supra. We also concluded that the applicant had not been the recipient of employer support within the meaning of section 13 of the Act. We came to those conclusions without answering the question whether the applicant's agreements with Hydro constituted a collective agreement: Hydro #4, supra, paragraphs 95 to 97.

8. At the next stage in those proceedings, the parties and the Board began dealing with the challenges under clause 1(3)(b) of the Act. While that process was going on, the Society filed an application under section 44 and a complaint under section 89. Both squarely raised the question whether the agreements it had made with Hydro in its previous representational role together con­stituted a "collective agreement" within the meaning of clause 1(1)(e) of the Act. Hydro and the Coalition argued that the agreements did not constitute a "collective agreement" to which the Act applied. They also argued that the applicant was estoppel from asserting otherwise. This panel heard the application and complaint. We found that the Society was estopped from asserting that its agreements with Hydro constituted a "collective agreement" to which the Act applied: Ontario Hydro, [1990] OLRB Rep. Mar. 305, 7 CLRBR (2d) 161. The Society has applied for judicial review of that decision. Its application has not yet been heard by the Divisional Court.

9. In late April 1990, the Society applied for reconsideration of our 1987 decision denying its request that a pre-hearing vote be conducted. This panel heard that application in late June 1990. That month, a somewhat differently constituted panel also heard argument concerning roughly 40 of the 3100 individuals whose employee status as of the November 5, 1986 application date was in issue with reference to clause 1(3)(b) of the Act. Decisions had not issued in those par­ticular matters by late September 1990, when the Board was advised that the instant application was being filed. Upon being so advised, the panels ceased work on their decisions pending clarifi­cation of the intentions of the applicant.

10. The Society has not withdrawn its first certification application. Its stated reason for this is a concern that the Court of Appeal not lose or decline jurisdiction to pronounce on the constitu­tional issue argued before it in September 1990 as a result of a withdrawal of the application in which that issue arose. It asserts without contradiction that all parties to the judicial review pro­ceedings were in sympathy with the view that the Court of Appeal should be urged to pronounce on that issue even though the Society does not intend to pursue its first application and that that application should not be formally withdrawn lest the Court consider itself deprived of jurisdiction. We do not know what its intentions now are as a result of the release by that court of its decision.

11. This is an appropriate point to make some observations about the way matters devel­oped in the first application.

12. We declined to direct that a pre-hearing representation vote be conducted when that was first requested because, after asking the parties to assist us in that regard at the show cause hearing, we could not foresee any outcome of that application in which the Society could be found to be a trade union free of employer support without the existing agreements also constituting collective agreements which gave it the bargaining rights it purported to seek. There is a subtle but important distinction between saying that the applicant's agreements with Hydro do not constitute a collective agreement to which the Act applies and saying that the applicant is estopped from claiming otherwise. At this point in time we cannot say whether the estoppel argument which we heard in 1989 was somehow implicit in something someone said at the show cause hearing in 1987. We do not remember its having been expressly identified. Not having then heard the detailed evi­dence we later heard about the dealings between Hydro and The Society over the years, we did not anticipate an estoppel argument distinct from an argument about whether their agreements consti­tuted a collective agreement as a matter of law. When we made our decision not to direct the con­duct of a pre-hearing vote, we did not entertain the possibility that the collective agreement issue might unfold as it later did. It should be apparent from our decisions in Hydro #1 and Hydro #2 that had we then seen that as a possibility, we would have directed that a pre-hearing vote be con­ducted notwithstanding all the other arguments which were then made against our so doing.

13. After the initial decision not to conduct a pre-hearing vote, the 1986 application pro­ceeded as an "ordinary" application. That meant that before there could be any question of con­ducting a representation vote under section 7, the Board had to determine the composition of the bargaining unit and determine whether the requisite percentage of those employed in that unit on the application date were members of The Society on that date. That would require a substantial number of decisions about whether particular individuals were exercising managerial functions within the meaning of clause 1(3)(b) of the Act as of November 5, 1986. Those determinations threatened to occupy quite some time, particularly since the parties seemed unable to agree that any one of the more that 3000 individuals in dispute performed functions sufficiently similar to those of any others that the status of groups of challenged individuals could be determined by determining the status of one member of each group.

14. If the result of that exercise ultimately showed that on the application date the Society had the requisite membership support, a vote might have been ordered. In the period of years from the application date to that point, there would have been changes in the duties, responsibili­ties and incumbents of the positions originally in dispute. Eligibility to participate in the vote would again turn on employee status with reference to clause 1(3)(b) as of the time the vote was ordered and taken. Absent some substantial change in the parties' willingness to settle or narrow the issues, there would then have been a second set of lengthy proceedings directed to the applica­tion of clause 1(3)(b) to circumstances existing several years after the first determinations.

15. As counsel for the Society has noted in his submissions, during our hearings on the first application we more than once urged the parties to find ways to reduce the range and number of issues that had to be adjudicated before the wishes of those employees who are covered by the Act could finally be ascertained and acted upon. One of the observations we made was that determinations of the clause 1(3)(b) issues as of November 5, 1986 might be increasingly academic to the par­ties for any purpose other than the threshold question of percentage membership support, and would certainly be increasingly difficult to make on the basis of evidence given years after the rele­vant time. At at least one point we did offer the parties the observation that the filing of a new application would shift the focus of the issues under clause 1(3)(b) to a contemporary date and alleviate some of the difficulties which the passage of time had created.

The Issue To Be Dealt With In This Decision

16. Section 9 of the Act provides as follows:

9.-(1) Upon an application for certification, the trade union may request that a pre-hearing rep­resentation vote be taken.

(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were mem­bers of the trade union at the time the application was made, the Board may direct that a repre­sentation vote be taken among the employees in the voting constituency.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the par­ties have been given full opportunity to present their evidence and make their submissions.

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made~ the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 7(2).

17. In Hydro #2, supra, we made some observations about the nature of the question with which we have to deal at this stage in an application of this sort. Those observations bear repeat­ing:

18. The Board's response under subsection 9(2) to a request that a pre-hearing vote be conducted involves a decision about procedure, not substance. The procedural question is whether to gather up additional information about the wishes of employees to be represented by the appli­cant. The employees whose wishes would be tested in this way collectively constitute one or more voting constituencies, which may very well not be coextensive with the bargaining unit or units ultimately found appropriate by the board. The voting procedure can be designed to ensure that a vote of employees in that bargaining unit or units can, in effect, be retrospectively reconstructed from ballots cast by persons in the voting constituency or constituencies. The Board's discretion in defining a voting constituency is fettered only by its own assessment of the possible utility of a pre-hearing vote conducted in that constituency. If it appears to the Board that not less than 35 per cent of the employees in a voting constituency were members of the applicant at the time the application was made, the Board may conduct such a vote before enter­taining the representations and evidence of the parties and other interested persons with respect to matters relevant to the disposition of the application and before determining whether and to what extent the results of that vote could or should be relied upon in dealing with the applica­tion.

19. In a similar vein, this panel made the following observations in Taiga Trucking (Ontario) 1980 Inc., [1987] OLRB Rep. Nov. 1433:

20. Our function at this stage is to make the determinations contemplated by subsection 9(2) of the Act. We do not determine the appropriate bargaining unit or assess the weight to be given to the applicant's membership evidence. As appears from subsection 9(4) of the Act, those mat­ters are only decided after the vote is conducted, when all interested persons will be notified in Form 71 of the contents of the Returning Officer's report and of their opportunity to make rep­resentations and have a hearing before the Board with respect to any issue affecting the certifi­cation application or the pre-hearing representation vote. Indeed, at this stage the Board does not attempt to resolve any dispute about its constitutional jurisdiction (Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 293) or the applicant's "trade union status" (Emery Industries Limited, supra) or the identity of persons employed in any proposed bargaining unit at any rele­vant time (The Board of Education for the City of Norrh York, [1984] OLRB Rep. July 989), or the application of subsection 1(4) of the Act (Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602). These and any other issues affecting whether and how the results of a pre-hearing vote should affect the disposition of the application for certification are only resolved after any such vote is conducted.

21. While we do not resolve such issues at this stage, we do need to know the immediate parties' positions on any issue which could affect the use to which the results of a pre-hearing represen­tation vote may later he put. This is so that a meaningful voting constituency or constituencies can be struck and appropriate directions made concerning segregation of ballots cast by individ­uals or groups whose inclusion in or exclusion from the appropriate unit or units is in dispute. A pre-hearing vote is of little use unless one can later reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board. Accordingly, when an applicant requests a pre-hearing vote, the Board's practice is to authorize one of its Labour Relations Officers to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of the appropriate bargaining unit, the description and compo­sition of the voting constituency or constituencies, the list of employees as of the terminal date for the purposes of any vote which might be directed and all other matters relating to entitle­ment to and arrangements for such a vote, and to report to the Board thereon.

(See also McDonnell-Ronald Limousine Service Limited operating as - Airline Limousine, [1988] OLRB Rep. Nov. 1135 at paragraph 5.)

19. In accordance with the practice described in the passage just quoted, a Labour Rela­tions Officer was appointed and met with representatives of the applicant, the respondent, the Coalition and OHEU which represents an existing bargaining unit of employee of the respondent. When making the determinations set out in this decision we had before us the report of that Labour Relations Officer dated January 11, 1991 and its appendices, the documents referred to later under the heading Appearance of Membership, letters of January 8, 9,16 and 29, 1991 from counsel for the applicant, letters of December 28, 1990 and January 17, 1991 from counsel for the respondent, letters dated January 16 and 29, 1991 from Stewart Crampton, "Chairman, The Coali­tion" and a letter of January 17, 1991 from counsel for OHEU.

20. There are three questions to be addressed in connection with subsection 9(2) of the Act:

(1) what should be the voting constituency for a vote if one is ordered?

(2) does it appear from the records of the applicant and the respondent that at least 35 percent of those employed in that voting constituency on the application date were members of the applicant?

(3) if the answer to the second question is "yes", is there some reason why a vote should not be conducted?

The policy reasons for framing the third question as we have will be elaborated when we get to that question in the course of this decision.

Voting Constituency

21. When the participants in an officer's pre-vote meeting can agree on the description of the appropriate bargaining unit, the voting constituency is usually described the same way. When there is a disagreement about this "composition" issue - when, in other words, the participants in the officer's meeting disagree about what sorts of employees fall within the appropriate unit - then the best voting constituency for a pre-hearing vote is one which includes every sort of employee whom anyone thinks will fall within the appropriate bargaining unit. If that "all inclusive" voting constituency passes the "appearance" test, it is generally the one used. When a vote is conducted in those circumstances, the ballots of (at least) every sort of employee who anyone thinks will not fall in the bargaining unit are segregated and not counted pending determination of the issues in dispute: Carleton Roman Catholic Separate School Board, [1986] OLRB Rep. Sept. 1200 at para­graph 8.

22. Here the parties disagree about the composition of the appropriate unit. It is apparent that the applicant's description of what it says is the appropriate bargaining unit would encompass everyone who would fall within the narrower bargaining units proposed by Hydro and the Coalition. That is the "all inclusive" voting constituency here. In view of the many controversies over both the description of the appropriate bargaining unit and the list of those employed in it on the application date, all ballots cast in any vote in this voting constituency would be segregated and sealed pending determination of matters in dispute.

Appearance of Membership

23. As appears from subsection 9(4) of the Act, after a pre­hearing vote is conducted the Board must determine at least two things: the composition of the appropriate bargaining unit and whether at least 35 percent of the employees in that unit on the application date were members of the applicant. If this threshold membership requirement is satis­fied, a vote of the bargaining unit reconstructed from ballots cast in the pre-hearing vote may be given the same effect as a vote directed under subsection 7(2) of the Act. It should be noted that this threshold test focuses on whether a minimum number of those in the unit were members of the applicant organization in fact and law. It does not address the actual desire of the members to be represented by the applicant in collective bargaining: that is the obvious function of the vote.

24. At the post-vote stage contemplated by subsection 9(4), the Board must be "satisfied" that the requisite percentage were members, which is the same test (although the percentages are different) as applies under section 7 in an "ordinary" application. Whatever the results of a pre­hearing vote, a trade union cannot be certified unless it afterwards discharges this onus of satisfy­ing the Board with respect to its evidence of membership. Under section 72 of the Board's Rules of Procedure, that evidence must be in writing and signed by the employee and must be filed by the terminal date for the application. Having regard to clause 1(1)(l) of the Act, the documents must purport to show either that the employee is actually a member of the trade union or that the employee has applied for membership in the trade union and has paid to it at least one dollar in respect of initiation fees or monthly dues.

25. The Board does not have to be "satisfied" with an applicant's documentary membership evidence before ordering a pre-hearing vote. It need only find that "it appears" that at least 35 per­cent of those in the voting constituency at the time of the application were members of the trade union. Having regard to the language of subsection 9(2), this appearance is to be assessed by look­ing at records of the employer and the union.

26. Hydro's records were reviewed during the officer's meeting. The parties prepared a list ("the list") of everyone who anyone said was in the unit sought by the applicant. There are 8019 names on that list. Hydro says 3610 of these would not be in the bargaining unit in its view. It alleges 3306 of those exercise managerial functions and 114 are employed in a confidential capacity within the meaning of clause 1(3)(b). The others are challenged as being in categories Hydro says should be excluded from the bargaining unit on community of interest grounds: 22 in the New Business Ventures Division (of which an unidentified number are also challenged under clause 1(3)(b)), 4 in the Law Division, 3 in Corporate Security, and 124 temporary, 19 part-time and 18 student employees. The Coalition says the Research Division should be excluded on community of interest grounds. 304 individuals are challenged on that basis, 96 of whom are also challenged by Hydro and OHEU on other grounds. OHEU says that 683 of those on this list belong in its bar­gaining unit; 476 of those are also challenged by Hydro and the Coalition on other grounds.

27. The applicant relies in this application on the documentary evidence it filed in Novem­ber 1986 in connection with its earlier application for certification. That evidence came in two forms. One is a combination application for membership and receipt and acknowledgement of pay­ment of $5.00 towards the first month's membership fee. The other form is a certificate which is signed by the employee confirming that he or she was a member. Each certificate is also signed by an officer of the applicant confirming both that the individual was a member and that the member had paid "the Society fees" for a specified period of months prior to the date of the certificate. As might be expected, a number of the documents filed in 1986 relate to persons who are not on the list.

28. The applicant has filed additional documentation in connection with this application. That documentation includes four boxes full of applications for membership on a form which does not include a receipt or acknowledgement of actual payment to the applicant. The precise wording of these applications for membership varies according to when they were signed. Some are more than 20 years old. Some are dated well after the 1986 application. More than 4200 of these newly-filed documents appear to be signed by persons on the list.

29. In addition, the applicant has filed documents ("dues lists") said to be lists periodically generated by Hydro during the 12 month period prior to the filing of this application, showing amounts deducted by it from named employees' salaries and remitted to the applicant on account of the employees' membership fees. Over 4500 of names on these documents correspond to names on the list. Over 4000 of those names correspond with names on the applications referred to in the previous paragraph, over 250 correspond with names on combination application and receipt cards filled in 1986 and over 2000 correspond with names on certificates filed in 1986. There are many cases in which more than one document has been filed with respect to an individual. The applicant has also filed copies of receipts with respect to membership fees issued to a small number of mem­bers who pay their fees directly rather than through payroll deductions.

30. The respondent and the Coalition argue that much of the membership evidence is unre­liable because of its age and the circumstances in which it was obtained. Those are matters which are addressed at hearing after any pre-hearing vote is conducted. The appearance test which applies at this stage is satisfied if the documentary evidence filed by the applicant trade union would establish the requisite level of membership if the assertions in the documents and by the applicant are true.

31. On their face, the combination application and receipt cards filed in 1986 are evidence of an application for membership and payment. Each newly filed application for membership which is signed by someone whose name appears on one of the aforementioned dues lists or receipts also arguably meets the requirements of clause 1(1)(l). It therefore appears, from the records of the applicant and respondent, that at least 35 percent of those employed in the voting constituency were members of the applicant on the application date.

Exercise of Discretion

32. The use of the word "may" in subsection 9(2) gives the Board a discretion not to con­duct a pre-hearing vote even when the prerequisites are met. Hydro and the Coalition argue that we should exercise that discretion against the applicant. Their many submissions in this regard have these basic themes:

(1) there should not be a vote because there is an earlier outstanding applica­tion;

(2) there should be no pre-hearing vote because there is in their view a sub­stantial chance that the application will fail no matter what the result of the vote may be;

(3) there should be no vote before the bargaining unit issues are dealt with because voters do not know how many Society represented persons are employees to whom the Act applies, do not know whether such employees will ultimately be included in one bargaining unit or two and in a great many cases do not know whether they would be included in any bargaining unit if the applicant wins;

(4) there should be no vote before the managerial challenges are dealt with because active participation of challenged individuals may adversely affect the results if it is later determined they are managerial.

33. The Board's discretion under subsection 9(2) must be exercised with regard to the pur­pose of the provision for pre-hearing votes. That purpose was described this way in Emery Indus­tries Limited, [1980] OLRB Rep. Mar. 316:

34. It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolu­tion of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.

35. We repeat the observations we made in Hydro #2:

36. A quick vote will be a totally illusive ideal except in the most trivially simple of cases if the trade union status of the applicant, the description or composition of the appropriate bargaining unit, the list of persons employed in that unit on the application date, the qualitative and quanti­tative sufficiency of evidence of membership or any other issue of substance must be adjudi­cated before the vote is conducted. The provisions of section 9 recognize this. By describing the vote contemplated by section 9 as a "pre-hearing" vote, the Legislature recognized that the Board must be able to decide whether to conduct such a vote without having first to decide any issue in respect of which any person has the right to prior notice and the opportunity of a hear­ing. As the Board observed in Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 292 at paragraph 8:

……A 'pre-hearing representation vote" is precisely that: a vote conducted before any hearing is held to determine whether and to what extent the result of that vote should affect the rights of the parties. The Board has repeatedly noted that the expedition contemplated and intended by section 9 of the Labour Relations Act would be lost if the vote had to await formal adjudication of some contested issue in the guise of a preliminary matter: The Board of Education for the City of North York, [1984] OLRB Rep. July 989; Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602, and the decisions cited therein. A hearing is conducted after the vote to determine whether effect should be given to the result.

5. Except in very simple cases, there will always be some risk that no use can ultimately be made of the results of a particular pre-hearing representation vote. Against that risk must be balanced the potential benefit of the quick vote, both in the case at hand and for the certification process generally. In the Board's view, the purpose described in the preamble to the Act is best served by making the section 9 quick vote procedure a real and workable option in the widest possible range of cases. As a matter of policy, the Board will not be quick to conclude that a pre-hearing vote should not be conducted because of a risk, however real, that no use could ultimately be made of the results. Generally, the Board would rather conduct a pre-hearing vote which might later prove useless than fail to conduct a pre-hearing vote which might have been useful.

[emphasis added]

35. By way of amplification of our earlier reference to the benefit of the quick vote for the certification process generally, we adopt the observations in Goldcrest Furniture Ltd., [1989] OLRB Rep. Apr. 355 at paragraph 12, which refer to the classic management arguments in favour of "a vote in every case":

36. Whether certification decisions should be based on membership evidence or on the results of a representation vote is a matter of perennial debate: see Weiler, Reconcilable Differences (1980) at pages 37 to 49; Weiler, Promises To Keep: Securing Workers' Rights To Self-Organiza­tion Under The NLRA, 96 Harv. L. Rev. 1769 (1983). The response to this debate in some juris­dictions has been to require representation votes in every case but conduct them as soon as pos­sible after the application is filed, before hearing the application on the merits; see Christie, Certification: Is There A Better Way To Test Employee Wishes?, in The Direction of Labour Pol­icy in Canada 47 (F. Bairstow ed. 1977). That has not been the response in Ontario. Member­ship evidence is the primary basis on which certification applications are determined in "ordi­nary" applications under section 7 of the Labour Relations Act. The section 9 "quick vote" is, however, an option which a trade union can request when it applies for certification. If certifica­tions based on representation votes are more palatable to employers and from their perspective provide a better foundation for collective bargaining than those based on membership evidence, then it is obviously in the interests of harmonious labour relations that the quick vote option be exercised as often as possible. Trade unions will be reluctant to exercise that option if the pro­cessing of the application through to and including the conduct of the vote can be delayed by an opposing party's raising an argument which, if successful, would result in the dismissal of the application.

(See also U-Need-A-Cab Limited, [1989] OLRB Rep. Mar. 301 at paragraph 5.)

36. With the exception of submissions based on the fact that the previous application remains outstanding, the arguments of the respondent and the Coalition against conducting a pre­hearing vote are repetitions, elaborations and variations on arguments made to and rejected by us in the earlier application: see Hydro #1 and Hydro #2, supra. Intervening changes of circum­stance, including the introduction of the constitutional issue, do not dissuade us from the views we then expressed. Again, we denied the applicant a pre-hearing vote at that time only because we were not shown how there was any real possibility that the result of a vote in a certification applica­tion could have a real effect on the applicant's legal rights. Having regard to the estoppel argument later made to and accepted by us, it is now apparent that the result of a vote in a certification appli­cation could have a real effect on the applicant's legal rights. That will be so if the Society's appli­cation for judicial review of our decision on the estoppel issue is denied. That possibility is suffi­ciently real for these purposes.

37. It cannot be repeated too often that at this stage we are not determining or pre-judging the merits of the many issues raised by the parties. It is in the nature of a pre-hearing vote that it is conducted before there is a hearing to resolve the issues in dispute and decide whether any use can be made of the results of that vote. The parties' submissions do not persuade us that there is no outcome of the issues raised in which use could be made of the results of a vote conducted now. There is no reason for according any of the issues raised a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issues after a vote is conducted: Emery Industries Limited, supra, at paragraph 11.

38. The same may be said about the issues raised about the earlier application which remains outstanding. The effect of a prior application on the Board's willingness to entertain a sub­sequent one is an issue which can only be resolved after a hearing. The existence of such an issue is not something which has caused the Board to refuse to direct a pre-hearing representation vote: The Corporation of the City of Gloucester, [1989] OLRB Apr. 352. While that is enough to dispose of that argument for these purposes, some further comment is in order.

39. We take the Society at its word that it has decided not to pursue the first application and did not withdraw it only because it shared a common concern that the Court of Appeal not lose or decline jurisdiction to deal with the constitutional issue. We are puzzled by the position taken by Hydro's labour counsel, which seems to be that the Society ought to be forced to pursue an application it has decided to abandon. It is not apparent from the submissions before us where counsel suggests the Board will find the jurisdiction to do that. The customary response to a request to withdraw made at the stage the first application had reached is to dismiss the applica­tion. That application had not reached the stage at which dismissal with a bar would ordinarily have seemed the appropriate response to a request for leave to withdraw: see Armacord Carpen­ters Ltd., [1989] OLRB Rep. June 531. Had the Society sought to withdrawn the application, the fact such a request was pending and opposed would not have been sufficient reason to deny a pre­hearing vote in this application: The Corporation of the City of Gloucester, supra. The fact that the request to withdraw has not yet been made should not alter the result, in our view.

40. Although it does not appear to have been raised in the parties' submissions concerning the previous outstanding application, we have considered whether subsection 103(3) of the Act affects our jurisdiction to direct that a pre-hearing representation vote be conducted. Subsection 103(3) provides:

103.- (3) Notwithstanding sections 5 and 57, where an application has been made for certifica­tion of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such certification or for such a declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the sub­sequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application.

We think it does not, bearing in mind that the conduct of a pre-hearing vote is a procedural step taken in the pre-hearing processing of an application and does not involve the determination of any substantive issue on the merits. In that regard, we adopt the reasoning set out in U-Need-A-Cab Limited, [1989] OLRB Rep. Mar. 301 at paragraph 3. Having said that, we do note the assertion of counsel for the Society in his letter of October 9, 1990 to the Registrar of the Court of Appeal that "[t]he Society shall not seek leave of the Board to withdraw the application until the replacement application is finalized." If "finalized" means "decided", the applicant would be well advised to consider the effect of subsection 103(3), because the Board will certainly have to do so when hear­ings commence.

41. The prerequisites to conducting a pre-hearing vote exist here, and we see no reason not to do so. We say that recognizing the risk that no use might be made of the results of the vote if certain of the arguments of Hydro and the Coalition are ultimately accepted. Bearing in mind our labour relations function, it should perhaps be noted that by conducting a pre-hearing vote we reduce the risk that the 1(3)(b) issue has to be dealt with more than once in the course of determin­ing whose wishes count and what those wishes are. That is certainly a desirable goal.

Representation Vote

42. Accordingly, we direct that a pre-hearing representation vote be conducted among employees in the following voting constituency:

All employees of the Respondent employed in the province of Ontario as professional engineers, engineers, engineers-in-training, scientists, profes­sional, administrative and associated employees save and except persons included on the Executive Salary Payroll and above, and persons in any bar­gaining unit for which any trade union held bargaining rights as of October 2, 1990.

For purposes of clarity, the Notice of Taking of Vote should add this clarity note:

The voting constituency set out above describes employees whose functions are included in the classifications more particularly identified in the recogni­tion clauses in the Master Agreement between the parties effective July 1, 1983, and, as subsequently amended to the application date. The voting con­stituency includes part-time, temporary and student employees and nurses.

Those employed in that voting constituency on October 26, 1990 who are so employed when the vote is conducted will be eligible to vote.

43. The question usually asked on a ballot where there is one applicant and no incumbent is "In your employment relations with [name of employer] do you wish to be represented by [name of applicant]?", with "Yes" and "No" as the options. The Coalition suggests that the question on the ballot be worded differently so as to drive it home to voters that this is a vote about representa­tion under the Labour Relations Act. The Society opposes that suggestion. This is not a point on which conflicting views can be accommodated in the design of a vote. When such points arise, the applicant trade union's proposal will be followed if it is not too far-fetched; that way, the applicant has no-one but itself to blame if the vote is discarded because the approach it advocated was later shown to be inappropriate. It is not far-fetched to use the usual wording. It will be open to the Coalition to present evidence and argument after the vote to show that voters would not have understood what was going on despite the Board's Notices of Taking of Vote and the history of the Society's attempt to have the Labour Relations Act apply to its dealings with Hydro on behalf of "Society represented" employees.

44. Accordingly, voters will be asked whether or not they wish to be represented by the applicant in their employment relations with the respondent. Every person claiming to be eligible will be permitted to mark a ballot. All ballots will be segregated and sealed pending further order of the Board.

Engineers' Vote

45. The units proposed by the Society, Hydro and the Coalition all include professional engineers with employees who are not professional engineers. Subsection 6(4) of the Act provides that

46. (4) A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective bargaining, but, the Board may include pro­fessional engineers in a bargaining unit with other employees if the Board is satisfied that a majority of such professional engineers wish to be included in such bargaining unit.

"Professional engineer" is defined in clause 1(1)(n) of the Act:

"professional engineer" means an employee who is a member of the engineering rofession entitled to practice in Ontario and employed in a professional capacity.

46. In conjunction with the conduct of the pre-hearing representation vote, we propose to conduct a vote of professional engineers employed by Hydro in which they will be asked whether they wish to be included with employees who are not in a single unit for the purpose of collective bargaining. The voting constituency for this vote will be

all professional engineers employed by Ontario Hydro in the Province of Ontario, save and except those persons on the Executive Salary Payroll and above, and persons in any bargaining unit for which any trade union held bargaining rights as of October 2, 1990.

In this description, "professional engineer" has the meaning assigned to it by clause 1(1)(n) of the Act. The Notice of Taking of Vote should add clause 1(1)(n) of the Act as a clarity note. All those employed in that voting constituency on the date the vote is taken will be eligible to vote. Since the parties disagree about who the professional engineers are and what qualifications they should have in order to count as a professional engineer, anyone claiming to be a professional engineer within the meaning of clause 1(1)(n) of the Act will be permitted to mark a ballot and all such ballots will be segregated and sealed pending further order of the Board.

47. Voters in the engineers' vote will be asked to check off answers to two questions printed on the outside of the outermost of the two envelopes in which their ballot is segregated, and to sign the outer envelope:

48. Are you a member of the engineering profession entitled to practice in Ontario?

YES NO

2. Are you employed by Ontario Hydro in a professional capacity as a pro­fessional engineer?

YES NO

The intent of this is to generate material which may assist the parties in themselves narrowing or resolving their dispute about whose wishes are to be taken into account on this issue.

48. The Notice of Taking of Vote should note that those eligible to vote in the Engineers' Vote are also eligible to vote in the representation vote.

49. In its filings, the Coalition asks that we direct Hydro to afford the Coalition the use of Hydro's internal mail system. That request is opposed by the Society. Hydro seems to agree that the Coalition should be able to use its mail system. It is not clear whether Hydro wishes us to sanc­tion that use in advance or is simply serving notice that it will permit use. We do not propose to give advance directions as to the use which may be made of Hydro's mail system in connection with these votes.

50. In their filings, Hydro and the Coalition express some concern that affected employees have not had proper notice of this application. With this decision, the Registrar will be delivering to Hydro for posting an appropriate number of Notices of Taking of Vote and voters' lists, giving all affected employees notice of the taking of the vote and their opportunity to participate in it. After the vote is conducted, and before any hearing is held, multiple copies of a further notice will be delivered for posting in accordance with the Board's rules of practice. That notice will give all affected employees notice of what to do if they wish to make representations concerning the con­duct of the vote or in connection with any issue in the application. No hearing will be held before affected employees receive notice of what they must do if they wish to participate.

51. To the extent they have not been addressed in this decision, the matter of arrangements for the conduct of the aforesaid votes is referred to the Registrar, who should also begin setting aside hearing dates for hearings to be held commencing as soon as possible after the expiry of the time for filing notice of desire to make representations which will be specified in the post-vote notices to employees.

52. Once again, we wish to make it clear that in deciding to direct a pre-hearing representa­tion vote and a vote with respect to professional engineers' wishes we have not resolved in any party's favour any of the disputed issues which will have to be dealt with before the Board can decide what use, if any, will be made of the results of those votes. Those issues will not be decided before all interested parties have had the opportunity of a hearing.

DECISION OF BOARD MEMBER G. O. SHAMANSKI; January 31, 1991

1. I dissent.

2. Although the majority decision alerts the applicant to consider the effect of section 103(3) under certain circumstances, I am more troubled by the applicants application for certifica­tion and request for a pre-hearing vote than my colleagues.

3. I would not permit this application to proceed in view of the fact that there is an active application for certification in process. Had the applicant withdrawn its first application before or at the time of filing this one, the concerns I have at this point in time with respect to their applica­tion may have been alleviated to the point that would have influenced me to support my colleagues and direct a pre-hearing vote.