Ontario Labour Relations Board

[1992] OLRB Rep. January 46

2336-92-R Eric de Buda, Applicant v. The Society of Ontario Hydro Professional and Administrative Employees, Respondent v. Ontario Hydro, Intervener #1; Robert S. Higgins, Intervener #2

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.

APPEARANCES: Eric de Buda on his own behalf; James Hayes, Darlene Booth, Mario Germani and James Bell for the respondent; G. F. Luborsky, I. A. Starastas, J. Browne and S. Foti for Ontario Hydro; Robert S. Higgins on his own behalf.

DECISION OF THE BOARD; January 13, 1993

1. This is an application for a declaration terminating the bargaining rights of the respondent trade union (the "Society"). Upon hearing the evidence and representations of the parties at a hearing on December 18, 1992, the Board dismissed the application in a brief oral ruling.

2. We note that Robert Higgins, a professional engineer employed by the intervener Ontario Hydro, sought party status at the hearing. No one opposed his request and he was therefore granted party status (as an intervener). However, Mr. Higgins chose to leave the hearing at the lunch break, leaving a short written submission for the Board's consideration.

3. We also note that the complainant, who is a professional engineer employed by Ontario Hydro, is not a lawyer but chose to represent himself at the hearing. He was entitled to do so, of course. The Board is sensitive to the difficulties which a person who appears before it without representation may encounter and generally, as we did in this case, permits an unrepresented person somewhat greater latitude in the manner in which s/he conducts his/her case than is generally afforded to counsel.

4. However, the Board is an adjudicative quasi-judicial tribunal and not an investigatory body. The Board is a neutral adjudicator of labour relations disputes which are brought before it. The Board is not an advisor or an investigator in that respect. Consequently, where the word "inquiry" appears in the legislation, it refers to a quasi-judicial proceeding, not an investigation.

5. The "rules" for proceedings before the Board are, as they must if the proceeding is to be fair, the same for all parties. Consequently, the rules of procedure, fairness, evidence and law applicable to the matter(s) in issue in a proceeding before the Board are the same for all parties, whether represented or not. Choosing to proceed without counsel or other representation, or otherwise failing to inform oneself, does not relieve a party of the obligation to prepare and present its case. A party which chooses not to obtain the appropriate representation or advice must live with the consequences of that decision. A party cannot expect that it will be in a better position procedurally or in law because it has chosen to proceed before the Board without representation or advice.

6. We find it appropriate to make these comments because it was apparent that the applicant did not fully understand the process or what was expected of him. In this case, as in all others, the Board's decision was based upon the evidence and representations of the parties presented at the hearing. The Board cannot base a decision on assertions for which there is no evidence, or on evidence which is either irrelevant or not before it.

7. This application was filed, litigated and determined under section 61 of the Labour Relations Act as it then was (that is, prior to January 1, 1993 when the Act was amended by S.O. 1992, c. 21) which provided that:

61.-(l) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

8. In making the application, the applicant asserted that the respondent Society was not, at the time it entered into a voluntary recognition agreement with Ontario Hydro, entitled to represent the employees in the bargaining unit defined by that voluntary recognition agreement. The applicant also specifically alleged that:

The composition of the bargaining unit is inappropriate: SOHPAE has not excluded employees who perform managerial functions. Professionals Engineers were not given a separate vote for their inclusion. Ratification vote was handled improperly by SOHPAE (not by an independent firm). Ballots were distributed by delegates and returned to SOHPAE, via unprotected internal mail, in see-through "secrecy" envelopes.

The applicant elaborated on his allegations in a letter to the Board dated December 14, 1992.

9. The Society, Ontario Hydro and the Coalition to Stop the Certification of the Society (which, as its name suggests, was a group which opposed the respondent's attempt to be certified by the Board as the bargaining agent for certain employees of Ontario Hydro) were involved in lengthy and complex litigation in Board File Nos. 2241-86-R and 1740-90-R. It is common ground that the respondent and Ontario Hydro eventually negotiated a voluntary recognition agreement dated November 13, 1992. This voluntary recognition agreement included the following recognition and ratification clauses:

1.0 Recognition Clause

Pursuant to section 16(3) of the Ontario Labour Relations Act, Ontario Hydro agrees to recognize the Society as the exclusive bargaining agent for the "employees" defined as follows:

"All employees employed by Ontario Hydro in the Province of Ontario as supervisors, professional engineers, engineers-in-training, scientists, professional, administrative and associated employees save and except:

"a) those persons included on the Executive Salary Roll and above;

"b) employees in bargaining units for which any trade union holds bargaining rights as of the signing of this Agreement;

"c) those persons who perform managerial functions as distinct from supervisor functions. An employee is performing managerial functions if:

i) she/he perform managerial functions such as hiring, promotion, performance increase, discharge, etc. over other employees in the bargaining unit and;

she/he is required to spend the majority of his/her time performing managerial duties and;

she/he supervises at least seven (7) employees (directly or indirectly) on a regular and continuous basis.

ii) she/he supervises employees who are excluded from the Society under (c)(i), (d), (e) or (f).

"d) employees who are primarily employed in a confidential capacity affecting the terms and conditions of employment or Ontario Hydro staff;

"e) employees whose full-time duties are security work;

"f) employees who are members of a profession entitled to practice in Ontario and who are employed in a professional capacity where the Ontario Labour Relations Act excludes such persons from coming under the Act by virtue of their profession."

2.0 Clarity Note

For the purposes of clarity, the bargaining unit set out above:

2.1 Includes:

a) All regular, probationary, part-time and temporary employees whose functions are included in the classifications paid from Salary Schedules 01, 02, 04, 05, 07, 08, 09 and 18; and

b) All employees paid from Salary Schedule 13 (Nurses), Salary Schedule 0.3 (System control Operators) and Salary Schedule 06 (Helicopter Operator Supervisors), except employees excluded by virtue of 1.0 of this agreement, will be entitled to vote to determine if they wish to be represented by the Society. If the majority of eligible employees voting on any schedule vote in favour of being represented by the Society, eligible employees on that schedule will be represented by the Society. The vote will be conducted by the Society and Ontario Hydro by secret ballot.

2.2 Excludes employees in accordance with 1.0(c) above as follows:

a) M&P (Schedule 01) - in salary classification MP4 (or higher) rated by he Plan A Point System of Job Evaluation January 1988 ("Plan A"), or its equivalent, carrying "Nature of /supervision" Degree 4 (or higher) or its equivalent and "Numbers Supervised" Degree 3 (or higher) or its equivalent who normally supervise other Society represented employees.

b) FM&P (Schedule 02) - who normally supervise other FM&P employees and who normally supervise at least seven (7) employees directly or indirectly.

c) TMS and TS (Schedules 08 and 07) - who normally supervise other TMS or TS positions and who normally supervise at least seven (7) employees directly or indirectly.

d) OSS (Schedule 05) - who normally supervise other OSS positions and who normally supervise at least seven (7) employees directly or indirectly.

e) Supervising Electrical Inspectors (Schedule 09) - who normally supervise other SEI positions and who normally supervise at least seven (7) employees directly or indirectly.

f) Area Managers

2.3 Excludes employees in accordance with 1.0(d) above as follows:

a) Employees paid from Salary Schedule 01 rated under Plan A as having "Staff Responsibility" Degree 4 (or higher) or its equivalent and MP6 employees as having "Staff Responsibility" Degree 3 (or higher) or its equivalent.

b) Employees in the Executive Office;

c) Employees in the Office of the General Counsel and Secretary including the Law Division except Corporate Official Records Analysts.

d) Positions currently listed in Agreement RS-1 dated October 11, 1990.

e) Human Resource trainee positions on Schedule 04.

11.0 RATIFICATION

The Society Executive recommends acceptance of this agreement to its members and the agreement shall become effective upon the date of ratification. Persons eligible to vote will include all employees who will be represented by the Society under this voluntary recognition agreement. The vote will be conducted by secret ballot.

10. The voluntary recognition agreement specified that it was to come into effect "on the date of ratification".

11. Subsequently, a ratification vote was held. The result of the vote was reported as being in favour of ratification by a margin of 4,081 to 650, and notice of ratification in that respect was given by the Society to Ontario Hydro by letter dated January 16, 1992. Since then, the Society and Ontario Hydro have conducted themselves in accordance with the terms of the voluntary recognition agreement and they are currently in the final stages of bargaining for a collective agreement.

12. The evidence reveals that it was the Society which insisted that the voluntary recognition agreement be subject to ratification by the persons affected by it. The bargaining unit defined by the voluntary recognition agreement includes persons who had previously been represented by the respondent and a relatively small group which had not.

13. The ratification vote was conducted by mail. A voter's list and voting materials were prepared and distributed.

14. There were three packages prepared for distribution to the eligible voters. One was for members of the respondent which it had previously represented. It included a covering letter addressed "Dear Fellow Society Member" signed by the respondent's President, a document entitled "Summary and Explanation of Key Clauses in voluntary recognition agreement", a copy of the voluntary recognition agreement itself, voting instructions, a ballot asking "Do you accept the "Memorandum of Settlement on a voluntary recognition agreement" as set out in full in the attachment to this ballot?" with "Yes" and "No" boxes below it, a "secrecy" envelope into which the completed ballot was to be inserted, and a second envelope into which the secrecy envelope was to be inserted for return to the respondent's office in Toronto where the ballots were to be counted.

15. A second package was for non-Society members previously represented by it. Except for the covering letter, its contents were the same as the package sent to members as aforesaid. The covering letter was addressed "Dear Fellow Employee" and signed by the Society's president. Though structured differently, the covering letter contained similar information to that contained in the one sent to Society members.

16. A third package was sent to Ontario Hydro employees who were not Society members and who had not previously been represented by the Society, but who the voluntary recognition agreement contemplated would be included in the bargaining unit. It contained a covering explanatory letter signed by both the Society's President and an Ontario Hydro representative, the same summary of the voluntary recognition agreement sent to the other eligible voters, a copy of the voluntary recognition agreement, voting instructions, a two part ballot, a secrecy envelope for the completed ballot, and a transmission envelope addressed to "Corporate Mailing, HLC 022, Attention: Operating Supervisor". This package was sent to eighty-one persons: Fifty-seven in "System Control (Schedule 03)", Twenty-two "Nurses (Schedule 13)" and two "Helicopter Pilot Supervisors (Schedule 06)". Each such person was asked, first "Do you wish to be represented by the Society of Ontario Hydro Professional and Administrative Employees in your employment relationship with Ontario Hydro?; and, second, "Do you accept the "Memorandum of Settlement on a voluntary recognition agreement" as set out in full in the attachment to this ballot?"

17. The transmission envelopes in all three packages indicated "Inter Office Mail" on their face, but envelopes which were hand-delivered or sent by regular mail post-marked January 13, 1992 (the voting deadline date) or earlier were accepted.

18. The Society, Ontario Hydro and the Coalition were represented by scrutineers when the ballots cast were counted. The names on the transmission envelopes were compared to the voters list and the secrecy envelopes containing the ballots of eligible voters were removed and, at a subsequent stage, counted. By letter dated January 16, 1992, the Chief Returning Officer reported to the Society as follows:

THE

SOCIETY

REPORT OF VOTING RESULTS

FOR VOLUNTARY RECOGNITION

AGREEMENT

January 16, 1992

Mr. M. D. Germani

Secretary-Treasurer

Society of Ontario Hydro

Professional & Administrative Employees

Dear Mr. Germani:

Please be advised that the results of the referendum to ratify the proposed voluntary recognition agreement, dated November 13, 1991, are as follows:

YES 4081 NO 650

A total of 4796 staff voted of the 7811 eligible voters who will be employees in the bargaining unit defined in the voluntary recognition agreement. The voters included 1136 non-members (i.e. Mail groups 3,7,4,5 & 6) of whom 636 voted in favour of the agreement. The voters' List is attached. A total of 65 ballots could not be validated due to improper completion of the outer envelope or ballot. An additional 45 ballots were received from employees in positions where there is no agreement on inclusion/exclusion, and these have been segregated and not opened.

As of this report, a further 176 ballots could not be counted as they were not postmarked January 13, 1992 or earlier and were received after that date.

J. Browne

Chief Returning Officer

By letter of the same date, the Society gave Ontario Hydro notice of ratification as follows:

THE

SOCIETY

January 16, 1992

Mr. W.S. O'Neill

Management Co-Chair - JSMC

Director, Staff Relations Division

H2 Al

Dear Bill:

voluntary recognition agreement

I wish to formally advise you that the Society has ratified the Memorandum of Settlement on a voluntary recognition agreement dated November 13, 1991. The report of the Chief Returning Officer is attached. (A copy of the Voters' List of all those who will be included in the bargaining unit, with appended lists of those who will be excluded and those employees whose status is still undetermined, was prepared in consultation with Management Staff Relations Department and was provided to Mr. Starasts last week).

I also wish to point out that our records confirm that the Society has signed up 4,774 members of the total of 7,811 employees on the Voters' List of those who will be in the bargaining unit.

Also, consistent with 2.1 of the agreement, we have been advised separately that employees paid from salary schedule 13 (Nurses), salary schedule 06 (Helicopter Operator Supervisors) and salary schedule 03 (System Control Operators) have voted in favour of being represented by the Society and therefore these employees were added to the Voters' List of those who will be in the bargaining unit.

Yours truly, D.M. Booth

Senior Staff Officer

Subsequently, in a January 17, 1992 edition of "the Society Bulletin" distributed to employees including the applicant, the Society published the results of the ratification vote to employees.

19. By letter dated February 14, 1992, the Coalition wrote to the Board in response to the Society's request for leave to withdraw its application for certification in Board File No. 1714-90-R. The Coalition complained that it had been denied the use of Hydro's internal mail system (presumably with respect to the voluntary recognition agreement ratification vote), of voting irregularities including an alleged lack of ballot confidentiality, that the position of affected Professional Engineers and section 6(4) of the Act had been ignored and that managerial staff have been included in the bargaining unit defined by the voluntary recognition agreement. However, the Coalition also confirmed that it "... did witness part of the ballot counting process at the invitation of the Society. Had this not been done, we would have had serious misgivings over the entire process...", which we take to mean that its voting process concerns had been alleviated. The Coalition also specifically stated that it did not intend to pursue any of these issues before the Board and agreed to the withdrawal of the application in Board File No. 1714-90-R.

20. The applicant was a member of the Coalition and was aware of its complaints and decision not to pursue them.

21. There is no obligation to submit a voluntary recognition agreement to affected employees for ratification. Nor is this often done. In this case, however, the voluntary recognition agreement between Ontario Hydro and the Society was made subject to ratification by the employees in the bargaining unit defined in it at the instance of the Society. We were satisfied that the voting procedure adopted in that respect was a fair, reasonable and appropriate one in the circumstances. We were also satisfied that the results of the ratification vote are a reliable indicator of the true wishes of the employees in the bargaining unit. There was no evidence which supported the complainant's allegation of impropriety in that respect. Nor was there any evidence to support the complainant's assertion that any affected employee was confused, misled or misinformed about the voluntary recognition agreement or the ratification vote.

22. There was no evidence offered in support of the assertion that the bargaining unit defined by the voluntary recognition agreement includes persons who are not "employees" within the meaning of the Labour Relations Act. In that respect, however, the mere presence in the bargaining unit of persons who exercise managerial functions would not, by itself, serve to invalidate the voluntary recognition agreement or the ratification vote, or any collective agreement which may subsequently be entered into between Ontario Hydro and the Society.

23. In a decision in the application for certification in Board File No. 2241-86-R (Ontario Hydro 1989 Board Reports February 185), the Board found the Society to be a "trade union" within the meaning of the Labour Relations Act. The Board specifically found that the fact that the respondent may have members or officers who exercise managerial functions does not mean either that it is not a trade union, or that it could not be certified under the Act. As that same decision suggests, the mere fact that the respondent may have members or officers who exercise managerial functions does not mean that it cannot enter into a voluntary recognition agreements or collective agreements under the Labour Relations Act (see also, Chrysler Canada Ltd., [1975] OLRB Rep. Nov. 852; Children's Aid Society of Metropolitan Toronto, [1976] OLRB Rep. Nov. 651; Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279; Etna Foods of Windsor Limited, [1986] OLRB Rep. June 710).

24. Nor were we persuaded that there was any merit to the assertion that the Society was not entitled to represent the employees in a bargaining unit defined by the voluntary recognition agreement because the professional engineers among those employees were not permitted to vote separately.

25. Section 6(4) of the Labour Relations Act provides that:

(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 the professional engineers wish to be included in the bargaining unit.

26. This provision governs the Board's certification proceedings. It does not extend to voluntary recognition agreements. In any event, the Society was founded by a group of professional engineers and scientists. It subsequently expanded to include other employees in the 1970's and again in the 1980's. Each expansion of membership was ratified by a vote of the then membership. The Society has for many years represented its membership, including the professional engineers, with respect to employment matters under what has been referred to as a single "Master Agreement" with Ontario Hydro. Further, the professional engineers voted, as a separate group, in favour of the Society applying for certification in 1986. Indeed, the evidence indicates that the Society has enjoyed, and continues to enjoy, the support of a majority of professional engineers in the bargaining unit herein.

27. Finally, the results of the ratification vote show that a vast majority of the employees in the bargaining unit supported the voluntary recognition agreement and the Society at the time the voluntary recognition agreement was entered into. One cannot assume, as the applicant does, that those who chose not to vote or whose ballots were spoiled were against either the Society or the voluntary recognition agreement. It is common enough for eligible voters to not cast ballots and, unless stipulated otherwise, results of a vote are determined by the ballots which are cast, not those which are not. In any event, even if all the eligible voters who did not cast ballots were deemed to have voted against it, the voluntary recognition agreement would still have been ratified, albeit by a slight majority.

28. In short, we were satisfied that the Society was entitled to represent the employees in the bargaining unit at the time it entered into the voluntary recognition agreement herein with Ontario Hydro. There was nothing in the evidence which suggested otherwise, or which suggested that there was any reason to hold any confirmatory representation vote(s) in that respect.

29. The application was therefore dismissed as aforesaid.