Education Support Staff Association v. Ottawa Board of Education, 1995 CanLII 9929

[1995] OLRB Rep. May 663

3870-94-R Education Support Staff Association, Applicant v. Ottawa Board of Education, Responding Party v. Canadian Union of Public Employees, Local 1400, Intervenor.

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; May 17, 1995

1. This is an application for certification in which a pre-hearing representation vote has been held. The ballots have been counted, and the applicant received 268 of 352 votes cast.

2. Following the taking of the vote and the counting of the ballots, the Board drew a matter to the parties' attention by decision dated April 11, 1995, and requested written submissions. The issue raised was whether the form of the membership evidence filed by the applicant in support of this application meets the requirements of section 9 of the Labour Relations Act, under which this application is made. In its decision, the Board set out the form of the membership evidence filed and referred the parties to the recent unreported decision of a different panel of the Board, in Knob Hill Farms Limited, Board File No. 0268-94-R, decision dated March 20, 1995 [now reported at [1995] OLRB Rep. Mar. 303]. The Board is now in receipt of submissions from the applicant dated April 20 and 21, 1995 and from the responding party, dated April 21, 1995. The intervenor, the Canadian Union of Public Employees, Local 1400 has indicated that it does not intend to make submissions on the issue raised.

3. A brief history of these proceedings will help to understand the context of this decision. On February 3,1995, the applicant applied for certification with respect to a unit of employees of the Ottawa Board of Education. At the time the application was made, the employees affected by this application were represented by the Canadian Union of Public Employees, Local 1400. This is therefore an application to displace bargaining rights. There is no dispute that this application is a timely displacement application under the provisions of the Act. At the time it made this application, the applicant requested that the Board order a pre-hearing representation vote. The parties met with a Labour Relations Officer to review the issues in the application, and came to agreement on the bargaining unit description and list of employees for the purposes of this application. Based on this list, the applicant appeared to have the support of 64 per cent of the employees in the bargaining unit. Based on the material before it, the Board, by decision dated February 20, 1995 ordered a pre-hearing representation vote to be taken, noting that it "appeared" that more than 35 per cent of the employees in the bargaining unit were members of the applicant at the time this application was made.

4. When the Board orders pre-hearing representation votes, it uses the language of "appearance", taking the language from section 9 of the Labour Relations Act, reproduced below. This is because the purpose of a pre-hearing representation vote is to have the vote held quickly, and then determine the outstanding issues in the application. Thus, it is only after the vote is held that the Board is called upon, pursuant to section 9(4), to determine the effect of the vote and to confirm that there was actually support in excess of 35% which would have entitled the applicant to trigger the pre-hearing representation vote mechanism. In this case, the vote was held on March 23, 1995. The ballots were counted after the taking of the vote, the parties were given copies of the Report of the Returning Officer on the conduct of the vote, and the results were also posted in the workplace.

5. On March 20, 1995, however, the Board released its decision in Knob Hill Farms Limited. In this decision, the Board highlighted an apparent difference between the language used in the Act to describe the type of membership evidence required for the purposes of section 9 and that required for the purposes of section 8. In light of this decision, this panel of the Board decided to disclose to the parties to this matter the form of membership evidence filed, and to request submissions on whether this membership evidence fulfilled the requirements of section 9.

6. Section 9 of the Act provides:

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 the 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 section 8.

9. 1-(1) If a representation vote is taken, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast are cast in favour of the trade union.

(2) If no representation vote is taken, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit if it is satisfied that more than 55 per cent of the employees are members of the trade union on the certification application date or have applied to become members on or before that date.

9.2 If the Board considers that the true wishes of the employees of an employer or of a member of an employers' organization respecting representation by a trade union are not likely to be ascertained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

[emphasis added]

7. Section 8 provides:

8.- (1) Upon an application for certification, the Board shall ascertain,

(a) the number of employees in the bargaining unit on the certification application date; and

(b) the number of those employees who are members of the trade union on that date or who have applied to become members on or before that date.

(2) The Board shall direct that a representation vote be taken if it is satisfied that at least 40 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(3) The Board may direct that a representation vote be taken if it is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the certification application date or have applied to become members on or before that date.

(4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:

1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by a trade union.

2. Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.

3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be represented by a trade union.

(5) The Board shall not consider evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed on or before the certification application date unless it is in writing and signed by each employee concerned.

(6) The Board may consider evidence of a matter described in paragraph 2 or 3 of subsection (4) but only for the purpose of deciding whether to make a direction under subsection (3) and only if the evidence is filed or presented on or before the certification application date and is in writing and signed by each employee concerned.

(7) Subsections (4) and (5) do not prevent the Board from,

(a) considering whether, on or before the certification application date, section 65, 67 or 71 has been contravened or there has been fraud or misrepresentation;

(b) requiring that evidence of a matter described in paragraph 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned be proven to be a voluntary expression of the wishes of the employee; or

(c) considering, in relation to evidence of a matter described in paragraph 1, 2 or 3 of subsection (4) that is filed or presented on or before the certification application date and is in writing and signed by each employee concerned, further evidence identifying or substantiating that evidence.

[emphasis added]

8. In the case before us, the form of membership evidence which has been filed in support of this application is as follows:

APPLICATION FOR MEMBERSHIP IN THE

EDUCATION SUPPORT STAFF ASSOCIATION

P. 0. Box #83004, 2653 Alta Vista Drive

Ottawa, Ontario K1V 7T5

INFORMATION FOR ASSOCIATION RECORDS - PLEASE PRINT

FIRST NAME SURNAME

Home Address - Street Name City/Town Province

Postal Code HOME TELEPHONE # & AREA CODE

Name of Employer Work Location

Bargaining Unit: Educational Support Staff Employees

I hereby make application to become a member of the Education Support Staff Association and hereby authorize the Association to represent me as my bargaining agent in all matters concerning the terms and conditions of my employment. I hereby agree to be bound by the Association's Constitution and By-laws and agree that I will not enter into or sign any individual contract of employment with any employer for whom the Association holds bargaining rights on my behalf.

Date Signature of Applicant

9. This case hinges on a difference in wording between the provisions of section 8 and section 9. In section 8, the Board is directed to determine the number of employees who "are members of the trade union" on the date of application, or who "have applied to become members" on or before that date. In section 9, the statute speaks of a determination of the percentage of employees who were "members of the trade union" at the time the application was made. It is the responding party's submission that the form of membership evidence filed in this case does not establish that the persons named were members of the trade union at the time the application was made. Rather, the document establishes that the employee has applied for membership. Therefore, although it may be the type of membership evidence which is sufficient for the purposes of applications made under section 8 of the Act, it does not meet the requirements of section 9. To the extent that the Board found similar membership evidence to meet the requirements of section 9, in the decision in Knob Hill Farms Limited, the responding party submits that Knob Hill Farms Limited is either distinguishable or wrongly decided.

10. The applicant submits that the membership evidence filed by it in support of this application is essentially identical to that which the Board found in Knob Hill Farms Limited to be evidence of membership and not just of an application for membership. The applicant also refers to the A-4 declaration filed. Further, the applicant attaches a copy of the following document, which it is said forms the right hand portion of the membership documents filed in this case:

EDUCATION SUPPORT STAFF

ASSOCIATION

TEMPORARY MEMBERSHIP CARD

This certifies that:

(Print Name)

is a member of the above-noted Association.

(Member's Signature)

(Witness' Signature)

Date

11. While at one time the above document may have been attached and formed part of each of the membership documents which have been filed, it has apparently been torn off before the documents were filed. The documents which were filed in this application, therefore, do not include the above portion. The responding party raises the issue of whether the Board can take any account of this right hand portion, since it was not filed originally with the application. We do not need to decide this issue, since we are able to make our determinations in this case without considering the effect of the right hand portion of the membership document.

12. On the basis of all the material before us, and leaving aside the late-filed right hand portion of the membership document, we are satisfied that the persons named on the membership documents were members of the trade union at the time of this application. We find no salient distinction between the circumstances before us, and those before the Board in Knob Hill Farms Limited. In that case, the Board stated:

13. In support of this application for certification, the trade union filed documentary evidence on behalf of just over 35 per cent of the employees in the voting constituency (which, in this case is also the "unit of employees appropriate for collective bargaining"). This documentary evidence is in the form of cards which were filed in a timely way and are supported by a properly completed Form A-4, Statutory Declaration signed by Sam Schouten a union official. That statutory declaration reads, in part, as follows:

I Sam Schouten, the organizer of the applicant declare that, to the best of my knowledge, information and belief: the documents submitted in support of the application represent documentary evidence of membership on behalf of 57 persons who are employees of the responding party in the bargaining unit that the applicant claims to be appropriate for collective bargaining, on the date of the making of the application

[emphasis added]

The declaration confirms that, from the union's perspective, the employees who signed these cards are "members" for the purposes of this certification application.

63. In each case the so-called "membership document" is signed by the employee, and is countersigned by the individual soliciting the card on behalf of the union. This is what the cards say:

TEAMSTERS' LOCAL UNION 938

AFFILIATED WITH THE INTERNATIONAL

BROTHERHOOD OF TEAMSTERS

CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

Social Insurance No.

APPLICATION FOR MEMBERSHIP

NAME (Please print) Date (414) 198(94)

ADDRESS (Please print)

TOWN (Please print) POSTAL CODE

OCCUPATION HOME TELEPHONE

COMPANY (Knob Hill Farms)

COMPANY ADDRESS (Dixie Rd.) EMPLOYMENT DATE

$ 0 Initiation Fee received by

I confirm the payment of the Initiation Fee

X

Member's Signature)

I hereby authorize and accept membership in Teamsters Local Union 938, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and promise to abide by the International Constitution and the Local By Laws. I further authorize the Union to represent me in any negotiations with my employer, concerning wages, hours and other working conditions. If I am found to be a dependent contractor, I agree to be included in a bargaining unit with other employees.

[emphasis added]

64. The opening words of each membership document, standing alone, might suggest that it is merely "an application for membership". However, when the document is read as a whole, it becomes clear that it is also:

(a) an authorization and acceptance of membership,

(b) a promise to be bound by the union constitution,

(c) an authorization for the union to represent the individual in any negotiations with the employer [Knob Hill Farms], and

(d) an agreement that if the employee is found to be a dependent contractor, s/he may be included in a bargaining unit with other employees (see section 6(5) of the Act).

65. If a trade union is an organization of employees formed for purposes that include collective bargaining (the statutory definition), and if an employee becomes a "member" of the trade union by binding himself/herself to the union organization and its objectives, we find that the employees who signed these particular documents have done what is necessary to become "members" for the purposes of certification within the meaning of the Act. In addition, these employees have authorized the union to represent them in negotiations with their employer (what certification is about), and have provided information which the Board could act upon if it were required to fashion a bargaining unit under section 6(5) of the Act.

66. There is no doubt that the applicant is a trade union within the meaning of the Act. There is no evidence that the union does not admit this kind of employee into membership. There is no evidence (or argument) that there is any constitutional impediment to membership.

67. The A-4 declaration filed in support of the application describes the cards as documentary evidence of membership - not mere applications for membership - and there is no evidence that any of these individuals has been refused membership. On the contrary. The document itself indicates that the employees were offered membership by the individual who approached them on behalf of the union, that they authorized and accepted membership, that they bound themselves to the union constitution, and that they "further" authorized the union to represent them. The A-4 document signed by a union official purports to confirm that they are "members". And, as we have, outlined above, union practice (consistent with the statutory history) generally does not distinguish between the two.

68. We find that the individuals who signed these documents became "members" of the applicant union within the meaning of section 9 of the Act.

69. The only significant difference between the form of the membership evidence before us and that in Knob Hill Farms Limited is that in Knob Hill Farms Limited, the documents state: "I hereby authorize and accept membership in. . ." In contrast, in the case before us, the documents state: "I hereby make application to become a member of. . ." Further, while the membership evidence in Knob Hill Farms Limited require the "Member's Signature", the documents before us call for the "Signature of Applicant". We do not find these differences to be determinative. We are satisfied that even without an explicit "acceptance" of membership, in stating that the employee is making application and agreeing to be bound by the constitution and by-laws of the applicant, the documents indicate both an application and acceptance of membership. The employee has indicated both a desire to be a member of and an acceptance of the obligations of membership in the applicant. Further, there is no reason to think that the trade union does not consider these employees to be members. The A-4 declaration filed in support of the application indicates that the union believes the documents submitted to be "documentary evidence of membership" and confirms that, from the union's perspective, the employees are "members" for the purposes of this certification application. We are therefore content that the union has shown that the persons on whose behalf it has submitted membership evidence were members of the trade union at the time the application was made, within the meaning of section 9 of the Act.

70. If we are wrong in our assessment of the membership evidence before us, and the material in this case can be seen as indicating nothing more than that the employees have applied for membership in the trade union, we find that for purposes of section 9, there is no difference between an applicant for membership and a member. We find that the statute does not establish a different form for establishing employee support for a trade union for the purposes of section 8, than for section 9.

71. In Knob Hill Farms Limited, supra, the Board discussed the differences between applications for certification which are made under section 8, and those which are made under section 9, within the general context of the scheme of the Act:

72. The scheme of the Act is quite simple. A trade union can become "certified" as the employees' bargaining agent, when a majority of employees indicate that they want the union to represent them. Support for the union can be demonstrated by documentary evidence, or by a representation vote, or both. Once certified, the union has a "license to bargain" on behalf of all employees in the "bargaining unit", whether or not they are union "members" or supporters. Certification is the first step in the collective bargaining process regulated by the Act.

73. These days, most certification applications are made pursuant to section 8 of the Act, and are based exclusively upon documentary evidence of "membership". (See generally: section 105(2)(j) and 113(1) of the Act, as well as sections 1(f)(g)(j) and 47 of the Rules). If those documents demonstrate that more than fifty-five per cent of the employees in a bargaining unit (i.e. "a clear majority") are members of the union, or have applied to become members, the Board can certify without recourse to a representation vote. Representation votes are a residual mechanism that is used where the union has not established a "clear majority", or where there is something in the circumstances of the case that persuades the Board to seek the additional confirmation of a secret ballot vote.

74. Section 8 contains a detailed code governing the kind of evidence of employee support or objection that can be put before the Board. However, it is important to appreciate what this evidence is used to demonstrate in the statutory scheme, and, in that regard the phrase "otherwise expressed a desire to be represented" in section 8(4) is significant. That phrase indicates that at least one of the inferences from an employee's union "membership" or an "application for membership" is that they both indicate a desire to be represented by the trade union. That is important for the purpose of certification, because that is what the certification process is designed to test.

75. The "pre-hearing vote" procedure is a little different. As its name suggests, that process involves the taking of a representation vote before a formal inquiry into any of the issues which might arise on a certification application (the status of the applicant union, the timeliness of the application, the definition of the bargaining unit, and so on). The purpose of section 9 was discussed by the Board in Emery Industries Limited, [1980] OLRB Rep. Mar. 316:

76. 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.

77. The procedure prescribed by [section 9] differs in some significant ways from the "ordinary" certification process. Upon an application for certification in which the trade union requests a pre-hearing representation vote, the Board need only determine a "voting constituency" - not a "unit of employees appropriate for collective bargaining" as it would under section 6(1) of the Act. Often the voting constituency and the bargaining unit ultimately determined will be the same; but this is not always the case, and it is for this reason that the Board is empowered to seal the ballot box pending a formal hearing. If the parties differ on the "shape" or description of the unit, the Board will direct that the ballots of some, or all, of the voters be segregated, and not counted, pending a resolution of this issue. Similarly, if it is contended that certain individuals are not entitled to vote, their ballots are segregated until their entitlement can be determined. Here, of course, there is no dispute with respect to the bargaining unit. If successful, the applicant union will obtain bargaining rights for the bargaining unit formerly represented by the intervenor.

78. On a pre-hearing vote application the Board does not make an initial determination of membership support as it would under [section 8] of the Act. Under [section 8], a representation vote cannot be ordered unless the Board is satisfied that not less than forty-five per cent [now forty per cent] of the employees in the bargaining unit, are "members" of the trade union. Under [section 9], however, the Board may order a representation vote if it appears, on an examination of the records of the trade union and the employer, that not less than thirty-five per cent of the employees in the voting constituency were members of the trade union at the time the application was made. The "pre-hearing" vote procedure involves a lower threshold percentage, and an initial onus on the union to establish only an "appearance" of support. [Section 9(4)] of the Act provides that a final determination, with respect to the bargaining unit and the trade union's actual membership support, can take place after the representation vote has been taken. If the Board is satisfied that the trade union has the requisite employee support (not just the appearance of support) then the representation vote has the same effect as if it had been taken under [section 8(2)] of the Act. Again, it must be emphasized that if any contentious issue arises, [section 9(3)] empowers the Board to seal the ballot box until an objecting party has had a full opportunity to present evidence and make submissions at a formal hearing.

[emphasis added]

11. Section 9 is designed to make representation votes more readily available to employees -leaving any legal or policy issues for later litigation.

12. Section 9 is an alternative to section 8, and may be attractive for a variety of reasons. From a union perspective, it is often useful to seek a quick vote of this kind to "clear the air", and conclusively establish whether the union enjoys majority support. From the employees' perspective, the representation vote is a familiar means by which they can record their views, free from peer pressure, and comfortable in the knowledge that their individual choices will not be revealed. And from the employer's point of view, a representation vote may be preferable to the document based assessment of employee wishes contemplated by section 8 - particularly when those documents are not shown to the employer (see section 113 of the Act). Generally, employers prefer representation votes.

13. A pre-hearing vote can provide a quick and conclusive answer to the central question in a certification application: do the employees wish to be represented by a union or not. It would be unfortunate if access to that process were encumbered by unnecessary "technicalities", since the clear intention of the Legislature is to avoid those problems and get to the heart of the matter:

what do employees want.

16. The Board then reviewed the history of the concept of union membership" as it related to an application for certification, concluding that "for almost 50 years. .. unions and the Board have routinely treated an application for membership and membership as being the same for the purposes of the certification process." [para. 461 Until recent amendments to the Act, effective January 1, 1993, the Act defined a "member" in a trade union for the purposes of the Act (and therefore, for both section 8 and section 9 purposes) as including a person who "has applied for membership." As part of the recent amendments, the general definition of "member" was removed, and instead has been specifically inserted in those provisions where "membership" is relevant. Hence the references in section 8 to persons who "are members . . . or have applied to become members." As it happens, however, these words were not inserted into section 9.

17. It is argued before us in effect that the difference in wording between sections 8 and 9 represents a change in substantive law; whereas before, the form of membership evidence required for the purposes of sections 8 and 9 was the same, now they are different.

18. We find that the changes to the Act which came into effect on January 1, 1993 were not intended to and did not produce this change in the substantive law. Although read literally and in a vacuum this may be the result, it is an irrational result, when viewed against the scheme of the Act as a whole. It is not a reading of the statute that we are driven to. We return to the decision of the Board in Knob Hill Farms Limited:

19. This result is a little confusing, and quite frankly, anomalous. It may make it more difficult to get a quick and final determination under section 9 - the very purpose of that provision. It raises the mischief that the Legislature moved so swiftly to eliminate in 1970. It may draw the Board into questions of "club law" which really have nothing to do with the certification exercise, and which the Legislature has clearly directed should not be the dominant theme for certification purposes. And it sets up an entirely artificial distinction between the "regular" and "prehearing" vote certification procedures, that may discourage resort to the latter - a rather ironic result when one remembers that employers generally prefer representation votes, as opposed to the document focused procedure under section 8.

20. We note, for example, that a vote option is also available under section 8 with a forty per cent threshold based on mere "applications for membership". In light of its response to Metropolitan Life did the Legislature really want to turn back the clock if the union sought a quick vote under section 9? Did the Legislature really intend a very different enquiry under section 9 that would make votes more difficult, or would shift parties into the more permissive vote provisions in section 8? We do not think so.

21. Section 9 as currently drafted is also difficult to square with the rest of the statutory scheme; for although section 9 refers only to "membership", the statute elsewhere - including the main certification section - gives equal status to an "application for membership". And section 105(4) remains in force. The Legislature has made it clear that it is the union's custom not its constitution which determines whether an individual can be treated as a "member" of a union for certification purposes, and there is no doubt that for almost 50 years (except for the six week Metropolitan Life interlude) unions and the Board have routinely treated an application for membership and membership as being the same for the purposes of the certification process -regardless of what the union constitution might say. The situation is not at all like it was in 1970 when Metropolitan Life was decided.

22. As the tribunal charged with the responsibility of giving effect to purposes and policy of the Act (see section 2.1 concerning employee rights to join and be represented by a union - "membership" is not mentioned) we do not think we can ignore labour relations reality. The distinction between an application for membership and "membership" may well be significant for club law purposes, but the fact is: thousands of certification applications have been granted on the basis of applications for membership, because unions and the Board have never drawn the distinction that the Court did. Whatever its intrinsic merits, that distinction was abolished by statute 23 years ago, bringing the statutory scheme back into line with a prevailing practice that had been in place for 20 years before that.

23. Whether or not the union constitutions actually say so, the fact is, that in the context of a certification application, unions in this province treat "applicants" not as prospective members but rather as provisional members, and they have done so for decades. And so has the Board. Did the Legislature really intend to ignore or change that for section 9 representation vote purposes? But not for section 8 automatic certification or representation vote purposes?

24. Against that background, if a union considers employee applicants to be "members" for certification purposes, is it plausibly open to an employer to claim that they are not? To put the matter another way: if as a matter of fact (and there is really no doubt about this) trade unions applying for certification make no distinction between "membership" and "applications for membership", is the Board obliged to do so - particularly given the origins of "the problem" and the Legislature's efforts to eliminate it? Did the Legislature really intend to resurrect distinctions it so quickly eliminated 25 years ago?

25. If pressed to decide this case purely as a matter of Legislative policy, we would conclude that the elimination of the definition of "member" from the statute and from section 9 in 1993 has not turned the clock back to 1970. Prior to 1970, the Act did not expressly contemplate the Board acting on an application for membership in any context, and the Act did not expressly relieve the Board of any obligation to follow a union's constitution. Nor did the statute so clearly indicate why membership was relevant, or what its significance was, for certification purposes. The current statute does all of those things - despite Metropolitan Life - and in our view, one cannot ignore 50 years of history, in which unions have treated applicants as members for certification purposes. Nor can one ignore the legislative history of the certification sections.

26. Despite the creative efforts of counsel for the employer in this case, we are unable to discern any policy basis for the change to section 9 that has been enacted (or to put it more accurately, the failure to change section 9 in tandem with section 8). Nor was there any discussion about it in the long debate preceding the passage of Bill 40. Indeed, we are satisfied that there was no legislative intention to change section 9 in this way.

27. Rather, we think that the current difference between section 8 and section 9 reflects an oversight on the part of the legislative draftsperson. It is a simple drafting error: an effort to make the statute easier to read may have resulted in a quite unintended change in the symmetry and thrust of the pre-hearing vote process - a change that may blunt the remedial thrust of section 9, and raise issues which the Legislature moved so quickly to avoid about 25 years ago.

28. Does the Board have the jurisdiction to simply "rectify" the situation - to "read in", as it were, words that are not there (but should be) in order to avoid consequences that the Legislature clearly did not intend? It is not at all clear that we do; but before even considering that possibility, one must decide whether it is necessary. And that means reading the statute as a whole ,in light of existing labour relations policy, obvious Legislative choices, and indisputable labour relations facts.

29. When one analyzes the statute in this way, it is evident that while the Legislature has not severed the linkage to the notion of "membership", it had no intention of making any distinction between "members" and "applications for membership" in section 9. The "club law" approach of Metropolitan Life has not been resurrected. And quite apart from what the Legislature may have had in mind (or overlooked), trade unions themselves do not in fact draw the legal distinction that the Court did in Metropolitan Life.

30. Trade unions in fact routinely treat applicants as "members" for certification purposes; and we can discern no practical or policy reason why the Board should do otherwise, or should introduce a distinction that the union itself does not make. In the context of an organizing campaign that is to culminate in an application to the Board "applicants" for membership are considered to be provisional "members". In our view an "application for membership" should be treated as a sufficient indication of affiliation or attachment to "count" as "membership" within the meaning and for the purposes of the certification process - at least under section 9 where there is the confirmatory evidence of a secret ballot vote.

31. Is recognizing this fact amending the statute "by the back door"? We don't think so. It is recognizing a labour relations reality - as we think the Board is obligated to do if it is to fulfil its statutory mandate and carry out the legislative purpose. And section 105(4) suggests a statutory basis for doing just that.

32. Trade unions typically have constitutions that regulate their affairs (although the statute does not expressly require it), however section 105(4) indicates that the employee organization will also have customs which govern its actual operation and may be contrary to its formal constitution. Section JOS(4) is a warning that when examining the union organization for statutory purposes, the Board should look to how it actually operates, whether or not those practices are in accordance with the terms of some written constitution. If it is custom that determines the union's rules or approach to membership, then it is custom that governs - something that is hardly a novel idea in a legal system with parliamentary underpinnings and English roots. The union organization involves more than the constitutional contract among its members - or to put it more accurately: the union may have written and unwritten conventions which govern the way in which the organization operates, and such conventions may include who are "members" for certification purposes.

33. Whether written in their constitutions or not, unions in this province treat "members" and "applications for membership" as the same for certification purposes. No doubt they do that because of the history to which we have referred. For 50 years, the Board and the Legislature had told them they could. But the fact is: unions treat "applicants" as "members". Thus, if the Board is required to look to the statutory purpose (which is to measure support) to the statutory history discussed above, and to the way in which the union organization actually operates, one finds no support for the distinction urged upon us by the employer and seemingly supported by Metropolitan Life.

34. What would that mean for this case? Only that union practice and legislative intent are ad idem: there is no distinction in fact and for certification purposes under section 9 of the Labour Relations Act between members and applicants for membership even though one might so argue based upon the literal wording of section 9 standing alone. In both cases, the individual has signified an intention to connect himself/herself to the union organization, either by becoming a member or applying to do so; and if enough employees do that, the Board will hold a vote to give all employees a chance to make their choice.

35. We agree with the views expressed above. As the Board discussed, representation votes are normally a residual mechanism for ascertaining the wishes of employees with respect to union representation. In many cases before the Board, employers have expressed a preference for representation votes to determine the wishes of employees, rather than have the Board decide the issue on the basis of documentary evidence of employee wishes. Section 9 allows a trade union to request a representation vote, even where it may have the support of over 55 per cent of the employees in the bargaining unit, as a means of determining the representation issue even while other issues remain to be litigated. An interpretation of section 9 which narrows its application and raises artificial barriers to its use ignores its place in the certification scheme and the statute as a whole.

36. The responding party notes that the case before us is a displacement application, where the applicant seeks to displace the incumbent trade union that presently holds bargaining rights with respect to this group of employees. The fact that this is a displacement application neither enhances nor detracts from the arguments of both sides in this case. Section 9 is available in any application for certification, and the question is whether the statute obliges the Board to impose a different standard of employee support for the purpose of obtaining a pre-hearing vote than for the purpose of obtaining a representation vote under section 8(2) or certification without a vote. It would seem anomalous and we find no rational labour relations basis, for imposing a more stringent standard where an applicant's right to certification is subject to the test of a vote, than where certification without a vote is sought. Further, whether the Board directs a pre-hearing vote under section 9 or a representation vote under section 8, the ultimate test of the employees' wishes and an applicant's success will be the ballot box. It is worth noting that on the material before us, the applicant would clearly have been entitled to a representation vote under section 8.

37. For all of the above reasons, therefore, we are satisfied that the documents before us establish that the persons named thereon were "members of the trade union" for the purposes of section 9.

38. The Board finds that the applicant is a trade union within the meaning of the Act.

39. Having regard to the material before it, the Board finds that the following constitutes a unit of employees of the responding party appropriate for collective bargaining:

all the employer's office, clerical and technical employees as defined in Article 1, save and except:

i) persons employed in positions set out in Schedule "B" attached;

ii) students employed during their summer vacation periods or on work experience programmes;

iii) persons employed on a casual basis for less than thirty (30) continuous working days.

SCHEDULE "B"

Administrative Assistant, Director's Office

Administrative Assistant, Planning

Administrative Assistant, Staff Counselling

Administrative Assistant, Translation

Administrative Assistant, Administrative Services

Administrative Assistant, Psychology

Administrative Assistant, Media

Administrative Assistant, Continuing Education

Administrative Assistant, Library Service Centre

Administrative Assistant, Computer Services

Administrative Assistant, Trustee Services

Administrative Assistant, Research

Administrative Assistant, Public Relations

Administrative Assistant, Social Services

Administrator of the SMIS Database

Administrator of Public Relations

Art Model

Assistant, Data Entry

Assistant, Data Control

Assistant Coordinator of Extra-Curricular Music/Drama

Assistant Supervisor of Day Interest Programmes

Assistant Supervisor of Community Education Programmes

Assistant, Energy Conservation

Assistant Purchasing Agent

Assistant Superintendents - Non-Academic

Assistant Manager of E.S.L. Programmes

Assistant Coordinator of Day Care Services

Assistant Manager of ABE Programmes

Assistant Supervisor of Payroll

Assistant Manager of Plant

Assistant Supervisor of Maintenance

Assistant Manager of Computer Services

Assistant Coordinator of Cafeteria Services

Assistant Superintendents - Academic

Assistant, Accounting

Board Reporter

Chief of Social Services

Chief of Psychological Services

Chief of Research and Professional Development

Coordinator of Purchasing

Coordinator of Assessment Revision

Coordinator of Home Instruction

Coordinator of Cafeteria Services

Coordinator of Testing

Coordinator of Day Care Services

Coordinator of Research

Coordinator of Grants and Special Projects

Coordinator of Volunteer Services

Director of Education and Secretary to the Board

Duplicating Room Supervisor

Engineer, Energy Conservation

Engineering Technologist, Plant

Executive Secretary to the Director of Education

Executive Secretaries to Superintendents

Executive Secretaries to Assistant Superintendents

French Language Monitors

Intermediate Planner

Manager of Public Relations

Manager of the Board Secretariat

Manager of Administrative Services

Manager of Plant

Manager of Engineering and New Construction

Manager of Computer Services

Manager of Accounting

Manager of Planning

Manager of the Library Service Centre

Manager of the Media Centre

Manager of Trustee Services/Executive Assistant to the Director of Education

Manager of Non-Academic Programmes

Manager of Transportation

Manager of ABE/ESL and FWC Programmes

Persons Employed in Duplicating Services

Persons Employed Under a Teaching Contract

Persons Employed in the Human Resources Department

Physio and Occupational Therapists (O.S.S.T.F.)

Professional Librarians

Psychologists (O.S.S.T.F.)

Psychometrist (O.S.S.T.F.)

Purchasing Agent

Senior Librarians

Social Workers (O.S.S.T.F.)

Staff Counsellor

Student Interns

Superintendents - Non Academic

• Academic

Supervisor of Payroll

Supervisor of Transportation

Supervisor of Maintenance

Supervisor of Operations

Supervisor of Day Interest Courses

Supervisor of Accounting

Supervisor of Stores Depot

Supervisor of Buildings

Supervisor of Assessment

Supervisor of Media Production

Supervisor of Community Education Programmes

Supervisor of Media Operations

Supervisor of Maintenance and Custodial Services

Supervisor, Cafeteria

Supervisor of Computer Operations

Systems Analyst

Teacher Aides (O.S.S.T.F.)

Translator;

persons employed in Continuing Education programmes in hours other than normal hours of work as outlined in Article 14; and

persons covered by a Collective Agreement between The Ottawa Board of Education and another bargaining unit.

24. Having regard to our findings above, the Board is satisfied that not less than thirty-five per cent of the employees in the bargaining unit were members of the trade union at the time the application was made.

25. On the taking of the representation vote, more than fifty per cent of the ballots cast were cast in favour of the applicant. A certificate will accordingly be issued to the applicant for the bargaining unit described in paragraph 23.

DECISION OF BOARD MEMBER J. A. RONSON; May 17, 1995

1. I think my colleague, Board Member W. Wightman, got it right when, pertaining to the same issue that is before us, he wrote in the case of Knob Hill Farms Limited, (a recent decision dated 20 March, 1995 - Board File No. 0268-94-R) [now reported at [1995] OLRB Rep. Mar. 303]:

“......words have meaning, and both the words and meaning of section 9 are clear. If the Legislature does not like the meaning of section 9 it can change the words…..”

2. When the Legislature made changes to the Act in Bill 40, 1 must assume, at the very least, that it was aware of the previous jurisprudence of the Board and the clear effect the new wording would have on the interpretation and implementation of the Act.

3. The Legislature chose to make a clear distinction between persons who are members of a union and persons who have applied to become members. It is no longer possible to pretend that the two classes of persons are the same. Section 9(2) of the Act, the Legislature has now told us, can only be used by "members of the trade union". One must assume that the Legislature felt that it was not unreasonable to require evidence of actual membership in the union, given that a prehearing vote is an expedited process triggered by evidence of a membership level significantly less than 50% of the voting constituency.

4. We have before us no evidence that any of the persons whom the union seeks to represent were members of the union at the date of the application. The "membership evidence" does not meet the standard required by section 9. The document signed by the employees is entitled "Application for Membership". Nowhere does it purport to be a membership form, indicating that the union has received the employee into membership. In this regard the "membership evidence" before us differs significantly from that before the Board in Knob Hill Farms Limited, supra.

5. I would dismiss the application since it does not meet the requirements of section 9 of the Act.