[1992] OLRB Rep. March 298
2718-91-R United Steelworkers of America, Applicant v. Centre de Re-education Cor Jesu De Timmins Inc./Cor Jesu Re-education Centre of Timmins Inc., Respondent
BEFORE: M. G. Mitchnick, Chair, and Board Members R. M. Sloan and R. R. Montague.
DECISION OF THE CHAIR, M. G. MITCHNICK; March 16, 1992
This matter arises out of an application for certification, in which the Board had scheduled its usual meeting with a Labour Relations Officer for the purpose of narrowing and hopefully resolving any areas of dispute between the parties.
The applicant in correspondence to the Board requested that it be provided in advance of the Officer meeting with the Schedules to the employer's Reply in this matter (generally referred to as the "Employee Lists"). The applicant based its request on two grounds:
the affording to it of an adequate opportunity to investigate the employer's position in advance, so that it would be able to respond at the meeting with its own position, without further loss of time;
avoiding, through this advance preparation, what might be unnecessary exposure to the employer of who its inside advisor or supporter is; in other words, in the language of section 113 (formerly section 111) of the Act, avoiding disclosing that such employee is a member of or desires to be represented by the trade union.
The response of the employer to the applicant's request was that it was quite prepared to have the applicant see the Employee Lists in advance of the meeting - so long as the employer was permitted at the same time to see the applicant's Form 9. (The latter is a reference to the "Declaration Concerning Membership Documents" that is required to be filed by an applicant for certification in support of its membership evidence, and the employer made it clear that its only interest in the document was in seeing the number of "cards" that had been filed.) The applicant declined that offer, and the issue has come before the Board for determination. In saying that, it should be noted that the applicant is one of three trade unions in the province who has been requesting that the Board provide it a copy of the "Employee List" upon receipt in each case, and the reference to the need for an opportunity to prepare in advance of any Board Officer's meeting is a common theme in the applicant's requests, irrespective of the size of the unit. And further, the applicant in its oral argument in this matter candidly advised that the second argument, that pertaining to employee exposure and confidentiality, is one that it will be making in every application for certification before the Board hereafter. It is clear, therefore, that the Board's practice with respect to the handling of "Employee Lists" from this point forward is not one that the Board is going to be in a position to develop "interstitially", but rather must be addressed in this decision.
Nor, it should be noted, can the Board at this point purport to address the issue of "Employee Lists" as one of first impression. Rather, there has been a long history to the manner in which the Board has dealt with this issue in the past, and some of the concerns the Board has articulated in the handling of certification issues as a whole have only recently been reaffirmed, albeit in other contexts. See, for example, Fort Erie Duty-Free Shoppe Inc., [1991] OLRB Rep. Nov. 1268; Santa Maria Foods, [1981] OLRB Rep. Nov. 1618.
As for the "Employee List" issue itself, those familiar with the Board know that this is a subject that has attracted a substantial amount of rhetoric and emotion over the years - to a surprising degree, perhaps, when one considers exactly what it is the practices and debate have revolved around: a listing of employees in the proposed bargaining unit that is required under the Rules to be filed by a respondent to an application as a Schedule to its formal Reply. In the mid-1980's there arose a series of cases in which the Board had occasion to begin a critical review of some of the practices that had been adopted by it as a way of responding to the concerns expressed by employers with regard to these Lists. Up to that point, for example, applicant trade unions had been permitted to "view" the List of Employees filed by the employer only in the presence of either the Board or a Labour Relations Officer, and never to make a copy of it. In the first case in which the issue arose for fresh scrutiny, Airline Limousine, [1985] OLRB Rep. Jan. 1, the Board, after ascertaining at the first day of hearing the parameters of the dispute between the parties, referred to an Officer the complex task of ascertaining through examination or discussion with the parties the actual list of employees who would fall within the various bargaining units being proposed. The respondent employer, it appears, at that stage disputed the entitlement of the applicant to see the Schedule of Employees that it had filed with its Reply at all. The Board wrote:
When these applications first came on for a hearing before the Board, it was apparent that it would be necessary to appoint a Board Officer to inquire into the employee lists and the composition of the proposed bargaining unit. During the course of that inquiry, a question arose as to whether the union should be given an opportunity to review and be provided with copies of the lists of employees whom the various respondents assert are appropriately included in the bargaining unit. The respondents argue that the union should not be given access to these lists. The union argues that it is entitled to them, and that they are necessary in order to fairly deal with the issues raised in these cases....
The Board then went on to rule:
It is not difficult to understand why the employee list is revealed. It would be a little curious if a trade union were to be granted a certificate because it had established the requisite level of support in the bargaining unit described generally, but left the hearing without a precise understanding of the basis on which its application succeeded. On a more basic level, when even a simple certification case involves a comparison of the union's membership evidence with a list of employees in the bargaining unit, and there are statutorily prescribed consequences flowing from that calculation (a vote, outright certification, or dismissal), the union must be entitled to the employee list if it is to participate in the hearing in a meaningful way. How else can it properly protect and advance the rights of its members? How else can it determine whether through error, inadvertence, or improper intent the list of employees said to be in the bargaining unit is inaccurate? Now, of course, there may not be very many cases where an employer intentionally misrepresents the number of employees in the bargaining unit. But, as we have already noted, the speed with which the employer must respond to the certification application, the potential complexity of the issues, and the inevitable exercise of judgment will often result in the production of a list which, at lease arguably, is not sufficient for the purpose of making the determinations required under sections 6 and 7 of the Act
In our view, there is no sound basis for denying a trade union the opportunity to review the employee list and, in practice, the union has always been given that opportunity. If a question arises concerning the list, the union has never been denied an opportunity to review it. Nor is there any good reason why it should not make a copy or take notes, so that it can pursue its inquiries, on its own time. We do not think that it makes sense to draw a distinction between reviewing the list and taking a copy, simply because the latter might assist a union in preparing its case or gathering information which could well result in a withdrawal of a challenge. It would be odd to structure a system in such a way as to reward union officials with a good memory, and multiply the difficulties in large bargaining units where there is the greatest potential for error or misjudgment; and we can only speculate about how a court would respond to this "hide and seek" approach to litigation, in which critical assertions of fact may be revealed or reviewed, but not copied, lest the party asserting those facts lose some tactical advantage attributable to the other's ignorance. Adversarial attitudes are prevalent enough in our collective bargaining system, without elevating them to the status of principles governing the process by which employees acquire the right to bargain collectively through a union of their choice. If, in the course of a certification application, a union is entitled to review the list - as we find that it is - it is our view that the union should be entitled to make a copy, and, again as a practical matter, a union has always been accorded the right to make a list of all unfamiliar names for the purpose of challenge and investigation.
Similar sentiments were registered by the Board thereafter in Metropolitan Separate School Board, [1986] OLRB Rep. Dec. 1733, and Kitchener-Waterloo Hospital, [1988] OLRB Rep. April 406. The Kitchener-Waterloo Hospital case was a pre-hearing vote application involving a unit of 450 employees, and what the case actually decided, with respect to the conduct of prehearing vote meetings in general, was that
once the union makes the request, we are of the view that the Officer may properly give the union a copy to keep, consistent with ensuring that the union's right to information relevant to issues involving the union which must be decided is an effective, as well as theoretical, right. (paragraph 11)
The proceedings in that case having already proceeded through the Officer meeting, the Board also ruled that it was appropriate for the applicant to be provided with a copy of the finalized Voter's List as part of the Board's decision directing the vote.
- The Metropolitan Separate School Board case involved a large unit of non-"contract" teachers, and the Board after hearings on the matter determined that the position of neither party on the question of the appropriate bargaining unit was to be accepted, but rather that the appropriate unit was to be an "all-instructor" one that the Board had fashioned on its own. That obviously raised problems with the utility of the Employee List which had been filed and already reviewed by the parties at an earlier stage, and the Board accordingly dealt with that matter as follows:
1.... In a decision dated September 9, [19861 OLRB Rep. Sept. 1259], we determined that the appropriate bargaining unit in this case is not as originally described in either the union's Application or the employer's Reply, but would include all instructors (that is, persons who teach but are not teachers as defined by the Education Act) regularly employed for more than ten hours per week.
Our finding with respect to the composition of the appropriate bargaining unit - that is, the description of the sorts of employees who are to be included in the unit - was not sufficient to dispose of this application. We still have to determine the identities of all persons who were actually employed in that unit as of the application date in order to then assess, from membership evidence filed, whether the percentage of those employees who were members of the applicant at the relevant time is sufficient, having regard to section 7 of the Labour Relations Act, to warrant either a representation vote or outright certification. The lists which had been prepared and filed by the employer and were examined by the union before our hearings began had dealt only with Heritage Language Instructors. As a starting point for identification of the persons employed in the unit we had since found appropriate, we needed new lists from the employer, naming the persons it claims were employed in that unit on the application date. Accordingly, in our decision of September 9th we ordered that the respondent prepare and file such lists prior to the continued hearing date, which was to be set by the Registrar.
As the bargaining unit we had found appropriate included persons in a range of job categories whom the union had not sought to organize, we thought it unlikely that the applicant could responsibly determine and state its position with respect to the accuracy of the employer's new lists on the continued hearing date without having some time prior to that date to study the new lists and make any necessary enquiries. Accordingly, in our decision of September 9th we ordered that the respondent deliver copies of these new lists to both the Board and the union within three weeks of that date or at least one week prior to the next hearing date, whichever was the earlier.
[emphasis in the original]
That directive prompted the following demurrer from the respondent, as set out in the decision of
the Board:
I also note in paragraph 33 that the Board has directed M.S.S.B. to provide the lists of employees to the applicant trade union. This seems to run counter to the Board's normal practice with respect to employee lists and was not a matter that was raised before the Board during the hearing. Before our client is required to comply with that part of the Board's direction, I would appreciate an opportunity to address the Board on this point.
The respondent subsequently made it clear that its only objection was as to "when" the applicant got to review the list, not "whether", as follows:
My client has, of course, no objection to the applicant examining the employee lists at an appropriate point so that the applicant can determine whether it wishes to make any challenges to the list.
On the point of "whether", therefore, the Board simply noted that the respondent "sensibly conceded the Union's right to see the new lists it had filed", and referred to the above-quoted passages in Airline Limousine as dispositive of the issue, as the Board again stated, on the grounds of "natural justice" alone. On the remaining issue of "when", the Board then responded to the objection raised by the respondent as follows:
- There are always limitations on the extent to which issues in a certification application can be defined in advance of hearing. In the case of disputes over the identity of persons employed in the appropriate unit at the relevant time the possibility of defining or even ascertaining the positions of the parties on the hearing date is greatly limited by the fact that the union ordinarily has no notice of the employer's position before the hearing date. There is only so much an applicant union can do to define and narrow the issues in a matter of minutes after learning what they are. Even if the union comes fully prepared for any eventuality - able to particularize its challenges and even address them with evidence available to be called that day - proceedings may still be delayed by the employer's inability to respond to challenges asserted at hearing. That problem occurred in Martin Muhr Investments Inc., (Board File No. 0236-86-R, unreported decision dated May 16, 1986), for example, where a union's detailed challenges to a list it first saw that day could not be dealt with because counsel for the employer was not prepared to do so and was unable to contact anyone who could instruct him on the employer's answer to the union s allegations. There the Board noted:
In his own defense, counsel [for the respondent] observed that he had not known before the date of the hearing that there was any challenge to the list. While we do not accede to the applicant's request that we make a critical note about the respondent's inability to get instructions with respect to the applicant's challenges, we do note (as we did in the course of the hearing) that this difficulty would have been avoided had the respondent's lists been provided to the applicant in advance of the hearing, so that it could, in turn, review those lists and give the respondent advance notice of the challenges it proposed to make.
This was by no means the first time that the Board has commented on the adverse effect on the Board's processes of the current delays in informing an applicant union of the employer's position on the list; for another example, see Oaklands Regional Centre, [1984] OLRB Rep. June 811 at 10.
Because applicant unions (and interested employees) do not ordinarily see the respondent employer's lists before the first hearing date, scheduled hearing time and the time of other parties and potential witnesses is regularly and systematically wasted on the first scheduled hearing date, while the union and anyone else with an interest in the issue do what they could have done more effectively before the hearing: review the list and make whatever inquiries are necessary to take a considered position on the accuracy of the list. Often there is not time to make the necessary inquiries, so the union simply challenges every name about which it is uncertain; the hearing is then adjourned and a fresh hearing date is set or an officer is appointed to make inquiries, in either event introducing delays and adding cost which might both have been reduced or eliminated had the union been given both the opportunity and the obligation to review the lists in advance of the scheduled hearing date. When a panel has become seized, the inability to make effective use of scheduled hearing time is even more critical, because of the increased difficulty of rescheduling a hearing before any particular panel at an early date.
Both before and since the creation of this Board, the general trend in the courts and other adjudicative tribunals has been toward adopting practices and procedures which encourage or force early and complete pre-hearing disclosure of each party's case to the opposite parties, so as to promote the settlement or narrowing of the issues to be tried, to enhance the quality of preparation and, hence, presentation of the evidence and argument on issues which remain to be tried and to achieve, by these and other means, a more efficient and effective use of the public resources devoted to dispute resolution. It should come as no surprise to anyone that the same trends should occur in the evolution of this Board's practices and policies. Those practices and policies are subject to critical examination from time to time~ as they must be, in light of experience, the level of the Board's resources and the competing demands made on those resources. Any change in or departure from existing practice which would facilitate and encourage a narrowing of issues and better preparation for hearing by the parties without any significant increase in demand on Board resources is a change or departure which will attract the Board's serious consideration. Any contention that such a change should not be made for fear that the new procedure may be abused must be closely scrutinized, along with the implicit notion that the current procedure effectively prevents otherwise likely abuses and does not itself harbour the potential for abuse.
All of the ab6ve three decisions arose in the context of particularly large or complex certification applications, and, notwithstanding the comments of the Board, and what was done in those three cases themselves, the practice of the Board in general with respect to the Employee List did not change at all. In 1990, however, the Board did implement certain changes to its practices with respect to certification applications, driven by the type of broader concerns that had already been articulated, for example, in some of these previous cases. Thus, following some earlier experimentation on a limited basis, the Board at that time moved to what it saw as a generally more effective way to protect valuable hearing times and indeed minimize litigation itself, by extending the use of Officer meetings in advance of the scheduled hearing date to cover all applications for certification (the normal practice, prior to this time, having been to arrange for a meeting with an Officer to take place on the same day as that scheduled for the hearing of the application itself). This provided the applicant in all cases with an opportunity to review and seek advice on the Employee List at least in advance of the hearing day. At the same time the Board eliminated the decidedly awkward practice of permitting such review to take place only in the presence of the Officer, and without the right to make or retain a copy of those Schedules for the applicant's own use in the file. Instead, all parties to the certification application currently are provided their own copy of the Schedules, when the point is reached where the List has become the subject matter of the discussions, and are expected to note the challenges or agreed-upon additions or deletions to the List as the Officer works through it. At the end of the Officer process all parties then receive a copy of the List as revised or challenged, forming part of the Officer's Report, and the parties accordingly are taken to have accepted responsibility for the composition of the bargaining unit as reflected in that List. As for the traditional argument by employers that allowing an applicant trade union to transcribe or otherwise have a copy of the Employee List opens the Board's process up to "abuse", by way of a "fishing expedition" for purposes of a subsequent application, the Board can only repeat here what has been said a number of times before, and that is that as long as the applicant gets to see a copy of the List at some point (as it must), and to note anything on it with which it "disagrees", the potential for "abuse" has always existed, and falls to be controlled in exactly the same way by the Board at present as effectively existed in the past.
That brings us to the final issue surrounding the question of Employee Lists, being that of "gerrymandering" on the description of the appropriate bargaining unit, and it is precisely that element that the novel suggestion put forward by the respondent in the present case serves to highlight. The standard way in which the Board addresses an application for certification, whether it be, as was common in the past, by a panel at a hearing, or as had become more common recently, by an Officer at a meeting, is to begin with a discussion of the bargaining-unit "description". Once the parties' positions have been identified in that regard, the inquiry moves on to a review and discussion of the Employee List. At that point a party is not permitted to "resile" from positions previously arrived at with respect to the description of the bargaining unit, except to the extent that such alterations may properly be attributed to a dispute becoming identified only as a result of disclosure for the first time of the Employee List. Once again see, for example, Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, as recently explained and confirmed by the Board in Fort Erie Duty-Free Shoppe Inc. [1991] OLRB Rep. Nov. 1268. Once the bargaining-unit description and Employee List have both been dealt with, the process goes on to deal with the membership evidence filed by the applicant in support of its application, in most cases culminating in an identification of the "count" (i.e. percentage level of support), or "appearance" of the count (the potential results of the application, depending on how the issues remaining in dispute fall to be resolved). And at that stage the employer is also granted access to the content of the applicant's Form 9 Declaration, including the description of any "irregularities" disclosed therein.
As matters stand now, therefore, an applicant for certification going into the process knows how many cards it has, and who signed them, but it may not know for certain how many of those cards are "good" - i.e. how many correspond to the names of employees who ultimately will be found to have been employed in the bargaining unit as of the date of the application - until it is able to see and have a determination made on the employer's Schedules. The employer, on the other hand, has the records to furnish it with the best knowledge of who it is that belongs on those Schedules, and thus in the bargaining unit, but it has no knowledge with respect to the level of membership evidence upon which the applicant is relying. That is the basis upon which the parties under both current and historical Board practice have been called upon to address the initial issue of the bargaining-unit description. The respondent in this case, of course, understands the Board's practice very well, and is simply saying: if the Board is going to arm the applicant with more information with which to apply "tactical" considerations to its position on the bargaining-unit description, we would like you to provide the respondent with additional information "up front" as well, so that it can approach the issue of the bargaining-unit description in the same way.
In favour of the respondent's suggestion is the fact, as noted, that all of this is information that each of the parties are respectively entitled to see in the application at some point. The Board is not persuaded, however, that the respondent's proposed approach is the best way to advance the certification procedures that the Board has been developing in recent years, and which appear to be serving the community's interests well. Certainly the points raised by the applicant ought to be items of concern for this Board, and the desire of the applicant to be able to address matters arising out of the "List" prior to any Officer meeting or scheduled hearing date is a legitimate one. The issue of timely disclosure, permitting preparation in advance to avoid the loss of valuable hearing time, had been identified by the Board in the earlier decisions cited above, and has since been addressed, as discussed, through the interposing of the advance Officer meetings. But even the Officer meetings represent an investment of time and expense, both for the parties, and for the Board. Obviously the smaller the unit, the less concern there ought to be over "advance" disclosure and preparation time. But on the other hand, it is in exactly those smaller units that the exposure of supporters is of greatest concern to a Union. It is appropriate for this Board to ask itself, therefore, why an applicant for certification should be put to this requirement at all, when full disclosure and discussion of the parties' positions through proper use of the "Waiver" process might eliminate the time and expense of the parties ever having to come together in a direct setting entirely.
All of that leads us to the conclusion that the better approach at the present time is for the Board to continue on the path of extending its use of the "Waiver" program, as has already been underway, to assist the parties in addressing certification applications expeditiously and economically, while at the same time continuing insofar as practicable to deal with the issues that arise in such applications in the order in which they currently are being discussed. The way the process operates now is for the "Waiver Officer" to work through the bargaining-unit description issue, identifying the positions of the parties (whether or not full agreement can be reached), and then to move on to the consideration of the List of Employees. At that point, as in a Board hearing or Officer meeting, the applicant Union is provided with a working copy of the List. That is, prior to any meeting or hearing taking place, and indeed as part of a program whose aim it is to identify for the parties whether one or both of those alternate forms of proceeding may be unnecessary, the Waiver Officer places before the parties for agreement or at least debate, a copy of the Schedules that represent the employer's position on "the List". And that, with the advances of modern technology, is accomplished within moments of the point being reached at which consideration of the List becomes relevant.
As noted, the Board has, in more recent months, been eliminating the "restrictions" on the category of cases that can take advantage of this telephonic form of communication being offered by the Board, to the point where the still-used term of "Waiver" for the Program, and certainly "Practice Note" No. 12 issued by the Board in 1980 when the Program first was introduced, no longer accurately describe what the Board has in place. Rather, the facilitative process currently in effect allows parties to "waive" the Officer meeting and go directly to the scheduled hearing, if a hearing before the Board is the only practical way of addressing the issues that remain to be contested: for example, the voluntariness of a relevant petition; or the parties might even “waive” directly to an Officer (examination) appointment, if it is agreed that that is the most practical method at that stage for proceeding toward a resolution of the items that remain in dispute. Properly utilized, therefore, it would seem to the Board that this expanded form of "Waiver" process is capable of addressing the concerns that we believe have legitimately been raised by the applicant, without at the same time altering the ground rules which touch upon the "strategic" side of the equation, as enunciated by the respondent as its concern. If in spite of the expectations of the Board in this regard, however, there still arise individual cases where this adopted procedure for some reason does not result in a resolution of the issue, those situations will have to be dealt with -although with what might perhaps be termed a greater level of sensitivity to the issues of advance preparation and employee exposure than the Board at times has demonstrated in the past. While the Board's handling of the Employee List historically has adequately balanced the parties' interests on the issue of "gerrymandering", it has, as noted, for the most part failed to balance that issue against the issues of resource efficiency and employee vulnerability. The "waiver" process affords the Board a means of striking a more complete balance with respect to all of those competing concerns, while at the same time serving the broader interests of economy and efficiency for the community at large. Should that "waiver" vehicle, in particular cases, be removed from the Board, the Board will have to make a simple call on when to communicate the List, on the basis of the concerns set out in this decision, and the view it has expressed of them.
DECISION OF BOARD MEMBER RENE R. MONTAGUE: March 16, 1992
- This is a case where the applicant made a very simple request. The request was that it be provided with the employee lists as soon as they were received by the Board. The reasons it wished to be provided with the employee lists was:
(1) so that it could properly identify and prepare any questions it may have had with respect to particular individuals being included on or omitted from the list;
(2) avoiding exposure to the employer of who its inside advisor or supporter is; regarding section 113 [formerly section 111] of the Act avoiding disclosing that such employee is a member of or desires to be represented by a trade union.
The respondent had no objection to the applicant receiving a copy of the list at this time but requested as a quid pro quo that it receive at the same time a copy of the applicants Form 9 ("Declaration Concerning Membership Documents"). The only interest, by its own admission, that the respondent had in the Form 9 was to see the number of cards the applicant had filed in support of its application.
The majority decision very ably sets out what the Board's past practice has been, its evolution and the rationale for the Board's practice with respect to employee lists. Some of the passages cited by the majority bear repeating with appropriate emphasis. As cited by the majority the Board ruled in Airline Limousine, (supra):
In our view, there is no sound basis for denying a trade union the opportunity to review the employee list and, in practice, the union has always been given that opportunity. If a question arises concerning the list, the union has never been denied an opportunity to review it. Nor is there any good reason why it should not make a copy or take notes, so that it can pursue its inquiries, on its own time. We do not think that it makes sense to draw a distinction between reviewing the list and taking a copy, simply because the latter might assist a union in preparing its case or gathering information which could well result in a withdrawal of a challenge.
and further;
Adversarial attitudes are prevalent enough in our collective bargaining system, without elevating them to the status of principles. If, in the course of a certification application, a union is entitled to review the list - as we find that it is it is our view that the union should be entitled to make a copy, and, again as a practical matter, a union has always been accorded the right to make a list of all unfamiliar names for the purpose of challenge and investigation.
These excerpts and others cited by the majority clearly establish the right of the applicant to be provided with the employee lists at some stage of the certification process. The majority decision confirms this as the practice of the Board and I agree with that decision. Where I must differ is in the artificial distinctions drawn to determine when the list is made available.
As the majority decision points out the list has lately been made available once the matter of the bargaining unit has been dealt with. The Board's client community has become accustomed to and largely accepting of this practice. Indeed the practice has proven to be an efficient and expeditious procedure which has enabled the Board to maximize its resources in the face of ever increasing demands for service from the community. It has also enabled the parties to narrow the issues in dispute and resolve differences, saving themselves time and money in expensive litigation.
The respondent in this case is fully aware of this practice and does not dispute the applicant's right to have access to the employee lists at a point in time. The respondent does, however, object to the applicant being provided with a copy of the list prior to finalizing the bargaining unit (unless it gets something in return). I fail to see what detrimental effect would result from the applicant receiving the list at the earliest possible time. If the applicant has access to the list up front it will only result in the differences being resolved sooner then later. The arguments about tactical advantages with respect to the appropriateness of the bargaining unit appear to me to be specious and without substance, especially in light of this respondents willingness to allow access to the list on the basis of some sort of quid pro quo arrangement.
The determination of the appropriate bargaining unit is not one to be made by the parties. It is a question that is not simply a discretionary authority within the jurisdiction of the Board but is a mandatory obligation imposed by s.6 of the Labour Relations Act. The process of the Board invites submissions by the parties on this issue. It also encourages and recognizes agreement of the parties on the appropriate bargaining unit, this process makes labour relations sense. The authority to determine that unit, however, rests with the Board and as the majority have pointed out in their excerpt from Metropolitan Separate School Board the Board need not have regard to the wishes of either party in determining the appropriate unit.
The respondent's argument that providing the applicant with the list gives it a tactical advantage in discussions over the appropriate bargaining unit just doesn't hold water. The appropriate bargaining unit is determined by the Board and the submissions of the parties on that issue have to be relevant to the appropriateness of the unit for labour relations purposes. The Board is quite capable of distinguishing between arguments sufficiently relevant for labour relations purposes from those made purely for self interest in respect of the numbers required for certification.
The response the majority gives to "the traditional argument by employers that allowing an applicant trade union ... a copy of the Employee List opens the Board's process up to "abuse", by way of a "fishing expedition" for purposes of a subsequent application" is equally applicable to the concern over "gerrymandering" on the bargaining unit description. To again quote from the majority decision - "as long as the applicant gets to see a copy of the list at some point (as it must), and to note anything on it with which it "disagrees", the potential for "abuse" has always existed, and falls to be controlled in exactly the same way by the Board at present as effectively existed in the past."
It should also be noted that the respondent in this application could not point to one concrete example of the kind of abuse it anticipates. A review of the statistics as published in the Board's Annual Reports from 1986-87 to 1989-90 is illuminating when the certification applications are analyzed. Over the four years (1990-91 as yet unpublished) of the reports looked at the certification applications represent approximately 29% of all the applications/complaints before the Board. Roughly 67% of all the applications resulted in certification and approximately 90% of these were certified without a vote. This total does not include those certified pursuant to section 8 but only those where the applicant's membership evidence was of support by more than 55% of the bargaining unit. This is hardly demonstrative of trade unions "abusing" the Board's procedures by way of "fishing expeditions".
The respondent itself does not raise any serious objection to the applicants request to have the list but merely insists that this involve some quid pro quo of the applicant giving something up in return. What the respondent wants is to be provided with the applicants Form 9("Declaration Concerning Membership Documents"). The Boards procedures and process have developed not only in the interests of fairness and efficiency but also in conformity with the Act. Subsection 113(1) of the Act is strong evidence that the legislature intended that trade union records relating to membership not be disclosed. Without commenting in any way on this particular respondents motives in requesting access to the Form 9 I would simply note that even a cursory examination of the history of the struggle for trade union recognition would reveal the explanation for this concern.
In fact, the argument was made by the applicant that through advance release of "employee lists" the trade union would not have to unnecessarily expose the inside organizer. In my opinion, there is also a serious risk of identifying the supporters of the union and exposing them to risks of retaliation and is particularly critical in small bargaining unit applications, by providing the applicants form 9 (Declarations Concerning Membership Documents) to the respondent. This is alluded to in the majority decision at paragraph 9. The Annual Reports of the Board show that of 1823 non-construction certifications issued over the four years 1264 were for bargaining units of fewer then 40 employees and in 893 cases the certifications were for units of fewer then 20. The concern over the unnecessary exposure of supporters is very real.
Further to the quid pro quo proposed by the respondent I would simply add that the policy and procedures of the Labour Relations Board were not developed as bargaining chips for either party to barter. They were developed by the Board in order to facilitate its processes in administering the Labour Relations Act. When a party to a proceeding before the Board proposes a change in the administrative procedure of the Board that would have the effect of increasing efficiency and expediting the process the onus should be on the party objecting to demonstrate some substantive reason why the request should not be granted. To quote again from Airline Limousine "Adversarial attitudes are prevalent enough in our collective bargaining system, without elevating them to the status of principles." In the absence of any valid reason for not releasing the employee list I would grant the applicants request.
DECISION OF BOARD MEMBER ROBERT M. SLOAN: March 16, 1992
- The history of this issue before the Board is indeed long and contentious, and I do not disagree that the Chair's proposed method of balancing the interests involved through a logical extension of the "Waiver" process is a sensible one. I simply would not wish to be taken as necessarily subscribing to all of the Chair's comments with respect to the "legitimacy" of the concerns expressed should the availability of the Waiver process in certain instances for some reason fail to resolve the matter. I would want access to a panel of the Board to continue to be an option available at the request of a party to settle unresolved issues.