Teamsters Local Union 938 v. Knob Hill Farms Limited, 1995 CanLII 9952

[1995] OLRB Rep. March 303

0268-94-R Teamsters Local Union 938, Applicant v. Knob Hill Farms Limited, Responding Party v. Group of Employees, Objectors

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. H. Wightman and B. L. Armstrong.

APPEARANCES: Marisa Pollock and Sam Schouten for the applicant; Edward T. McDermott, David Bannon and Howard Wood for the responding party; no one appearing on behalf of the objectors.

DECISION OF R. O. MACDOWELL, ALTERNATE CHAIR, AND BOARD MEMBER B. L. ARMSTRONG: March 20, 1995

INTRODUCTION

This is an application for certification in which the Board has directed that a "pre-hearing representation vote" be conducted. Certification applications of this kind are governed by section 9 of the Act, which reads as follows:

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

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

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

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in 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.

Upon receipt of this particular application, the Board determined that the union had the requisite "appearance" of employee support, and directed that a representation vote should be held. Employees were asked to signify, by secret ballot, whether or not they wished to be represented by the union in a collective bargaining relationship with their employer. The ballot box has been sealed pending resolution of certain legal objections raised by the employer.
The employer asserts that the vote should not have been taken, and that the employees' ballots should not be counted. The employer argues that the union did not have sufficient "membership" support to justify taking a representation vote or to warrant counting the ballots.
In the employer's submission, the employee documents filed in support of this certification application are mere "applications for membership" in the union, which are insufficient to establish actual "membership" as required by section 9; moreover, some of these employee "applicants" withdrew their support prior to the filing of the application for certification. The employer argues that when these factors are taken into account, the Board cannot be satisfied that the union enjoyed the minimum thirty-five per cent membership support required for a representation vote to be effective under section 9(4) of the Act. The employer argues that the application should therefore be dismissed, without counting the ballots.
The union asserts the contrary. The union submits that it has established sufficient employee support to warrant a representation vote being taken, and that its right to certification should turn on the results of that vote. The union urges that the ballots be counted so that the employees' wishes can be ascertained.
In order to understand the legal and policy issues raised by this case, it may be useful to sketch in some background.

II

The scheme of the Act - in general

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.
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. Section 8 of the Act reads as follows:

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:

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.
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.
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]

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.
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:
Ii 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.
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.
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)1 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]

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

III

Some History

Since the 1950's a union has demonstrated its right to "automatic certification" without a vote, or its right to have a representation vote conducted, by showing that a certain number of employees were "members" of the union. The percentages have varied over the years, but their purpose has remained the same: unless the union can demonstrate this minimum level of "membership" support, the Board cannot direct a representation vote, and unless the union can show the membership support of a clear majority of employees, the union cannot be certified "automatically" without a vote. "Membership" - that is, affiliation to the union as an organization - has always been a critical element in the statutory scheme, even though "membership" is being used as a proxy for support for certification of the union.
From 1950 until 1970, certification depended upon Board findings with respect to union "membership"; but the statute did not actually contain a definition of the word "membership". The Act merely gave the Board the general authority to administer the certification sections of the Act and the general power determine the form of "membership" evidence, (under what is now section 105(2)(j) of the Act). If the Board was satisfied on the basis of the evidence before it that a clear majority of the employees were "members" of the union at the prescribed time, the Board could certify "automatically" (i.e. without a vote), much as it does today. If the union's membership support was significant, but not a "clear majority", the Board could order a representation vote.
But there was no statutory definition of the term union "membership". The statute did not elaborate on what the word "member" might mean, nor indicate what evidence would be necessary to establish the fact of membership. That was left for the Board to determine in the context of the task that had been assigned to it: the assessment of whether a majority of employees wanted the trade union to represent them in a collective bargaining relationship with a particular employer.
We might pause here to note, that although the certification formula has always referred to union "membership", "membership" in the union is neither legally nor logically connected to the union's actual role as statutory bargaining agent. An individual can be a "member" of one or more unions whether or not a union is that person's collective bargaining agent vis-a-vis a particular employer; and once the union is certified, it is entitled to represent all employees in the bargaining unit whether or not they are union members (see section 69 of the Act). Moreover, once certified, the union remains the bargaining agent for all employees in the bargaining unit regardless of subsequent changes to the composition of the work force, regardless of the ebb and flow of employee support (see the remarks of Laskin C.J.C. in Terra Nova Motor Inn, (1975) 75 CLLC ¶14,253) and regardless of whether they have become or remain "members".
Even in the stuatory scheme the connection between "membership" and "representation" is imperfect - although, of course, certification is the way that a union acquires the right to represent employees. A bare 35-40 per cent membership support can lead to a representation vote, and if the union "wins" the representation vote it becomes the employees' bargaining agent even if it never acquires another member, and even if all of its existing "members" depart. And if the application is under section 8, based on applications for membership, a union can be certified even if it has no "members" at all in a common law sense. Finally, it is interesting to note that on a representation vote, the question for employees is "do you want to be represented", not do you wish to be a "member". (Compare section 58(3) governing the termination of bargaining rights).
We might also note that a union is a collective bargaining organization that is not at all like a typical "club" or "voluntary association" (indeed membership is often not really "voluntary" at all - see section 47) and it speaks for people who are not necessarily its members. Its internal rules or constitution have very little to do with its status as statutory bargaining agent under the Labour Relations Act. The statute does not even require that a union have a constitution, let alone prescribe its contents. Nor does the Act say much about the rights of union members qua members (i.e. as opposed to employees in a bargaining unit to whom the union owes various statutory duties see for example section 69).
Nevertheless, prior to 1970, "membership" was an important concept at the certification stage, because a union demonstrated its right to automatic certification or a representation vote by showing that its employee supporters were union members. "Membership" was important because the scheme of the Act made it so. If employees were "members" of the union, it was assumed that they supported the union's bid for certification as the bargaining agent for employees at the workplace. "Membership" was a critical element in the statutory formula or by which the union becomes "certified".
For about 20 years no one challenged the Board's authority to decide what "membership" was for certification purposes. The Board's Rules provided that "membership" was to be determined on the basis of documentary evidence, and the statute provided (reversing a Supreme Court of Canada decision) that "membership" evidence was to remain confidential. However it was the Board that determined what "membership" in the union meant in the context of the statutory scheme, as well as what the union had to put before the Board to establish that an employee was a "member".
A union could always show that an employee was a "member" by demonstrating (through documents) that s/he had taken an oath, or had gone through some rituals or had fulfilled specific qualifications, or had done whatever else might be required under the union constitution to be admitted to "membership" in the organization. But this process could be complex or cumbersome, and did not focus directly on what certification was really about: whether the employee wanted the union to represent him/her in this bargaining unit for this employer (the question on the ballot in a representation vote, if one is held). Accordingly, between 1950 and 1970 the Board developed the following "mixed test" for determining what "membership" meant in the context of a certification application:

(1) Had the employee applied for membership in the union?

(2) Had the employee indicated his acceptance of membership in the union and his assumption of the future responsibilities of membership, by paying at least one dollar in respect of the prescribed fees or dues?

(3) Did the constitution of the union contain an express prohibition preventing the employee from being admitted into membership?

(4) Did the union accord to the employee full rights and privileges as a member?

The statute did not expressly say that, of course. The Board developed this approach in order to give policy content to the undefined words in the Act. We have called it a "mixed test" because, as will be seen, the Board's approach approximates the club/common law concept of "membership", without embracing it absolutely. For example, the Board held that an "application for membership" was sufficient organizational affiliation for certification purposes.
If an employee had done the things listed above, the Board considered him/her to be a "member" of the union for the purpose of certification, regardless of what additional rights, obligations, or limitations might be found in the trade union's constitution. The Board (like the scheme of the Act) was not unduly concerned with the terms of the union constitution. The Labour Relations Act does not regulate internal union affairs, and the Board was disinclined to look to such matters when exercising its statutory mandate.
A trade union might be a club at common law; but, in the Board's view, "club law" was not what the Legislature really had in mind when it drafted the Labour Relations Act or established the certification process. The Board reasoned that certification was about the union's status as bargaining agent, not the employees' rights as a member, and if the employee wanted to join and the union was prepared to accept him/her, that was sufficient affiliation to the organizations, and support for certification, to count that individual "in the union camp" for certification purposes -regardless of what the union constitution might say. For the purpose of certification, "membership" and an "application for membership" were the same, and a union constitution did not necessarily govern the result. Club law concepts were not abandoned, but they were not controlling either.
Over the years, trade union practice became increasingly congruent with this well established Board policy. Unions developed so-called "membership documents" that were used for organizing purposes, and consisted of an application for membership and an attached receipt indicating that at least one dollar had been paid in respect of union dues. The approach was well known. Indeed, the Lieutenant Governor in Council actually passed Rules and created forms reflecting this established Board and trade union practice (see for example: the 1952 certification form appearing as Form 2 in Consolidated Regulations of Ontario 1950, Reg. 236 as amended by 0. Reg 11/51, 202/51 and 203/51). In effect, trade unions developed a kind of "provisional membership" for certification purposes that was acceptable to the Board and, that was evidenced by an application for membership with supporting receipt.
Over the years evidence of that kind was accepted in hundreds of certification cases, and provided the basis for automatic certification or representation votes in certification applications involving thousands of employees. There was never any operational significance between "membership" in the union and an "application for membership"; nor was there any practical problem subsequently admitting employees to actual membership if that was their wish (or obligation under a collective agreement). For as we have already noted, "membership" was only relevant at the certification stage because the statute identified this element as a proxy for employee support. Thereafter, the union's statutory role as bargaining agent continues whether or not employees in a bargaining unit ever actually became members or remain "members" in accordance with the union constitution.
However, the Board's established approach to defining "membership" was successfully challenged by an employer in Metropolitan Life Insurance Company v. International Union of Operating Engineers, Local 796 et al, (1970) 70 CLLC ¶14,008. On the employer's motion the Supreme Court of Canada held that a trade union was like a club, and that in determining what union "membership" meant for certification purposes, the Board could not ignore what the union constitution required. Membership was held to be about "club law" after all - even though the operational connection to the statutory scheme is quite debatable, and the Board had taken a different view for twenty years.
lt appears that in the Court's opinion, the kind of "membership" that was contemplated by the statute was to be determined solely by reference to the union constitution, not the "tests" that the Board had developed. The Court ruled that when the Board applied it own tests it was "asking itself the wrong question". And from that perspective, there might be a difference between membership in the union, and the kind of affiliation to, and support for, the union organization evidenced by a "mere" application for membership.
The decision in Metropolitan Life was issued on January 28, 1970. But the law as declared by the Court did not last very long. Six weeks later, the Legislature amended the Labour Relations Act to include the following definition and instruction to the Board:

"member", when used with reference to a trade union, includes a person who

i) has applied for membership in the trade union, and has paid to the trade union on his own behalf an amount of at least one dollar in respect of initiation fees or monthly dues of the trade union,

and membership has a corresponding meaning.

105.-(4) Where the Board is satisfied that a union has an established practice of admitting, persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of a trade union, need not have regard for the eligibility requirements.

These amendments reversed the Supreme Court of Canada decision that had been released a few weeks before - implicitly rejecting at least some of the legal theory and reasoning upon which it was based. In effect, the Legislature restored the previous status quo by providing a statutory underpinning for what the Board had been doing all along. The Legislature acted to make sure that the focus in a certification application did not drift from assessing employee support for the union as bargaining agent (what the process was about), into arcane issues of internal club law - issues which were not central to the certification decision but could bog down the whole process.
The definition of "membership" provided in response to Metropolitan Life ratified the Board's existing policy, and confirmed that an application for membership is a sufficient showing of employee "membership" to support either automatic certification, or the taking of a representation vote. In addition, the club or common law test of "membership", drawing on the union constitution, was not to be determinative. Section 105(4) confirms that the Board should consider the union's practice rather than the eligibility requirements in the constitution. It is custom not constitution which governs. Section 105(4) reflects both the prevailing practice and the labour relations reality: unions routinely organize any receptive employees, without regard to the union's historical organizational base, and without regard to the eligibility requirements of the union constitution.
On the other hand, the Legislature did not totally abandon the "membership" notion that had been pivotal in the Board's approach both prior to Metropolitan Life and afterwards. It did not erase the need for affiliation or connection to the union as an organization, nor did it substitute some notion of "support" or "desire to be represented" of the kind that appears explicitly in the termination provisions of the Act. The Legislature merely extended the concept of "membership" to include an "application for membership", and confirmed that the Board was not necessarily obliged to apply the union's constitution (see again sections 105(4) and 105(2)(j)).
It is not at all clear whether Metropolitan Life would be decided in the same way today. What is clear is that the Supreme Court made a binding determination of what certain words in the statute meant, and the Legislature reversed that result by changing those words and returning the Board's focus to what it had always been. The Legislature gave a special meaning to the word "membership". The Legislature did not jettison the concept of membership altogether.
And that brings us to the current provisions of the Act, and the changes made by Bill 40 in January 1993.

IV

The Effect of Bill 40

Since the 1970 reversal of Metropolitan Life, the statute has contained the above-mentioned definition of "membership". That definition was set out in section 1 of the Act, and was to be applied whenever the word "member" was encountered later on in the statute. Thus, when the Board had to determine whether employees were "members" of the union in a "regular" [now section 8] certification application , it was sufficient if they had applied for membership and paid at least one dollar towards any later union dues. One did not have to actually be a "member" or become a "member" in accordance with the union constitution, nor did one have to pay the actual dues prescribed in that constitution. A token payment was enough.
Similarly, in an application for certification in which a pre-hearing vote request had been made, the term "membership" meant what the statute said it did - and again that included someone who had signed a card applying for membership and paid at least one dollar towards union dues. The test for "membership" was the same for "regular" and "pre-hearing" applications, because, in each case, when the word "member" was encountered in the relevant section of the Act, the Board was referred back to the statutory definition.
In 1993 Bill 40 changed the statutory format. Instead of having a statutory definition of the word "member" at the beginning of the Act, which is then "plugged in" whenever the word "member" is encountered later on, the legislative draftsperson has eliminated the definition altogether, and tried to insert the expanded meaning to the word "membership" in the various places where the word actually appears. Presumably this was done for the purpose of clarity, and in order to make the statute easier to read, without flipping back and forth between definitions at the beginning of the statute and the substantive provisions later on.
But the result of this change in format may have been a change in the substantive law -or so the employer argues in this case.
Section 8 reflects that change in legislative format. The words respecting "membership" formerly found in the definition at the beginning of the Act, have now been relocated in the body of section 8 itself, so that the result is much the same as it was before. An application for membership is a sufficient showing of support for certification purposes~ and the Board does not have to decide whether an employee actually has become a "member" within the meaning of the union constitution. (The requirement for a minimal financial payment has also been eliminated -see section 105(4.1) which, be it noted, still retains the reference to "membership").
Under section 8 of the Act a union can be certified as the employees' bargaining agent even if none of its supporters actually are "members" of the union, none of them has paid any dues monies to the union, and perhaps even if they are all barred from membership under the union constitution (see section 105(4) of the Act, reproduced above). This is, of course, entirely consistent with the practical and policy considerations that we have discussed above, and which prompted the 1970 reversal of Metropolitan Life: "membership" is significant not for institutional or internal trade union reasons, but rather as a proxy for support of a particular bargaining agent in a particular certification application.
However, the pre-hearing vote provisions are framed in a different way - or, more accurately, remain exactly the same as they were prior to Bill 40. The definitional words formerly found at the beginning of the Act, did not make their way into section 9, which still reads like this:

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

Under section 9, the Board's power to order a representation vote depends upon an appearance ' that 35 per cent of the employees were "members" at the relevant time, just as it did before. The Board's power to act on a representation vote still depends upon a "finding" that 35 per cent of the employees were members of the union at the relevant time just as it did before. But there is no reference in section 9 to an application for membership; and, with the elimination of the statutory definition, there is no explicit statutory direction to read the word "member" to include someone who has merely applied for "membership". Thus, even though there has been no practical difference between "members" and "applicants" for almost 50 years, and there is clearly no difference in section 8 of the Act, the employer says that there is, a critical difference in section 9.
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 "pre-hearing" 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.
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.
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.
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.
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?

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?
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.
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.
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.
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.
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.
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.
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.
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 105(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.
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.
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.
For all of these reasons, if we were required to find that membership and applications for membership are the same for the purpose of section 9 we would unhesitatingly do so. Those concepts are differentiated for historical reasons, but unions do not make that distinction in the context of certification and we do not think that we should do so either. If unions regard "applicants as members" for certification purposes we think the Board should do so as well. If the "right question" is: are "applicants for membership" to be considered "members" for the purposes of certification under section 9, the "right answer" is: yes. There is and should be no distinction between section 8 and section 9 in this regard.
However, we do not have to reach any final conclusion in this regard, because the employees in this case are not just "applicants for membership".

V

Does the particular documentary evidence filed by the union establish that employees are "members" of the union? Or are they merely "applications for membership?

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.

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 (4/4) 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

(Member's Signature)

I hereby authorize and accept membership in Teamsters Local Union 938, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousmen 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]

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).

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

VI

Does it matter that some employees may have changed their minds after signing the union cards and have withdrawn their "support"? Were they still "members" at the time the application was made?

In addition to the documents described above, the Board had before it nine letters from employees. Those letters were submitted to the Board in respect of an earlier certification application filed by the union, that was subsequently withdrawn. These documents were transferred from the old file to the present one, at the request of the employer.
The employer submits that if these letters come from employees who signed union membership cards, and if they were written after the membership document was signed, and if the letter constitutes a revocation or resignation or cancellation of membership, and if the resignation (etc.) is voluntary, then the union's level of membership support would fall below the 35 per cent requirement set out in sections 9(2) and 9(4) of the Act.
The employer submits that "membership" in a union (a so-called voluntary association) can be revoked; and that that is what has happened in the case of the nine individuals who wrote letters. In the employer's submission, those letters "cancel" the union's membership documents and mean that:

(a) a representation vote should never have been ordered in the first place; and

(b) the ballots cast by employees should not be counted.

The employer requests the Board to dismiss the application without counting the ballots or considering the wishes of employees recorded in that secret ballot vote.

The letters are addressed to the Labour Relations Board. They are typed, dated, and read as follows:

To whom it may concern,

I, _______________, currently work for Knob Hill Farms Limited, located n the Dixie Value Mall, 1250 South Service Road, in the City of Mississauga. I initially signed the card supporting Teamsters Union, Local 938. However, after careful analysis of matters presented to myself, I no longer support them. Therefore, I wish to withdraw my support of the Union.

The union asserts that whatever these documents may signify, they do not "cast doubt" on its "membership" evidence; and, in any event, they should not be received or relied upon because:

(a) With one exception the documents were filed in respect of an earlier certification application that was withdrawn, not the present certification application.

(b) The letters have been directed to the Board's attention in this application by the employer, not the employees writing them (i.e. no employee in this one has indicated that s/he wishes to have the earlier objection resurrected).

(c) The letters constitute the kind of evidence which the Board may receive in a regular certification application because section 8(4) SO provides, but, in the union's submissions such documents cannot be received in connection with a pre-hearing application under section 9 because section 9 has no equivalent to section 8(4); moreover the Board has the power to reject or disregard such documents where there will be a vote anyway.

(d) The documents are not proven to be a voluntary expression of the wishes of the employees who signed them (the union refers to Rule 50).

The union also points out that these very employees have already had an opportunity to express their wishes in a secret ballot vote. Unlike the employer, the letter writers do not take the position that the workers' wishes should be disregarded. There is no indication that they either oppose the vote, or object to the ballots (including their own) being counted. But that is the use that the employer seeks to make of their letters.
The employer replies that there may be no representations from employees, one way or the other, because they have received no specific notice of the hearing. However, that is not entirely accurate. The one employee who filed his letter in this application did get notice of he hearing; and, after the vote, a notice in Form B-37 was posted in the workplace inviting employee representations. None were forthcoming from any employee. No employee objects to the taking of the vote or to counting the ballots.

VII

When sections 8 and 9 are read together, in light of the statutory scheme and purpose, it seems clear to us that "change of heart" documents of the kind now before us have no place in the pre-hearing vote process. Unlike section 8, section 9 makes no provision for the Board receiving such material, and in our view that "omission" is intentional. It is useful, though, to look at how section 8 treats such documents, because as we have already noted, sections 8 and 9 are both about certification and are, to some extent, alternative procedures.
Under section 8 a union can be certified solely on the basis of documentary evidence of membership. On the other hand, the Legislature has provided under section 8 that employees may register a change of heart in various ways, and if they do so in a timely manner, the Board will take that into account. But it is interesting to note how the Board is instructed to treat a "change of heart" - and the legal categories which the Legislature has established to deal with such matters.
Section 8(4) item 2 and 8(4) item 3 categorize the various kinds of documents which the board can receive with respect to employee wishes. Some of those documents have to do with "membership". Others have to do with support or objection which, as we have already noted, is different from membership notions (albeit both are involved in the certification determination).
Under section 8, documents of objection are all treated in the same way: they go to the Board's discretion to order a representation vote. In this regard there is no operational distinction between a "revocation of membership" a statement of objection to representation, or a withdrawal of "support". If the union's support seems equivocal based upon the documentary evidence of "membership", the Board settles the matter by ordering a representation vote (see section 8(6)). The Board does that even if the persons affected by the application remain members" in both a common law and statutory sense. If the "members" are of two minds about supporting the union, the Board orders a vote to resolve the issue.
There is no equivalent process under section 9, and in our view that is deliberate. None is necessary because the process contemplates a representation vote in any event. There is no place for "change of heart" documents in a section 9 case because all of the employees - including the indecisive ones - will have the opportunity to record their preference in a Board supervised secret ballot vote.
We see no purpose for this kind of employee representation in a section 9 proceeding where, as noted, documents of this kind are not contemplated and all of the employees will have an opportunity to express their wishes. If the Legislature had intended change of heart documents in a section 9 proceeding it would have said so, as it did in section 8. But it did not. Accordingly, if the Board has the power under section 105(2)(j) to accept documents in this form in a section 9 context, we would decline to do so.
However, even if we are wrong in this regard, we do not think that these particular documents command the result that the employer urges: that the ballots should not be counted and the employee wishes thus disregarded.

VIII

On this branch of this decision, we are prepared to assume, without finding, that the employee letters are properly before us at this time, that the employer can rely upon them, that they are permissible in a section 9 context, and that they represent the voluntary wishes of those who signed them, at the time that they signed them. The question then becomes: what effect should be given to these documents - given that under the Rules, the Board would be precluded from receiving "oral evidence of membership, oral evidence objection or oral evidence of reaffirmation, except to identify or substantiate the [documentary evidence]".
In addressing that issue (in the alternative and within the limits described above), we think that it is useful to consider sections 8 and 105 of the Act - both of which give some guidance about the way in which the Legislature has categorized the various kinds of representation which may be put before the Board in documentary form. For when one does that, one finds confirmation of the distinction to which we have referred in the first part of this decision: some kind of membership affiliation (albeit attenuated) is an important concept in the statutory scheme and it is analytically different from mere "support" for the union or for the certification application.
Whether or not there is a distinction between "membership" documents and "application for membership" documents, the statute indicates that these are not the only kinds of employee representation which may be put before the Board by means of documents. The Legislature has identified other documents which signify other things. And if the Legislature has identified different kinds of documents, and used different words to describe them, we should not lightly conlued that they are all the same – even if the statute then goes on to say that they may all lead to the same result (a vote).
Sections 8 and 105 of the Act suggest that a document filed with the Board may be one or more of:

(1) evidence that an employee is a member of a trade union;

(2) evidence that an employee has applied to be a member;

(3) evidence of a desire to be represented by a trade union;

(4) evidence that an employee who has become a member has subsequently cancelled, revoked, or resigned from membership;

(5) evidence that an employee who has applied to become a member, has subsequently cancelled or revoked the application;

(6) evidence that an employee has expressed a desire not to be represented by a union;

(7) evidence that an employee who had previously become or applied to become a member but has subsequently had a change of heart has changed his or her mind once more by becoming a member again, by re-applying for membership or by otherwise expressing a desire to be represented by a trade union.

Section 9 speaks only of “membership”; and for the reasons already given, we think that the only reason there may now be an arguable distinction between “membership” and an “application for membership” is a drafting error. It is clear that the Legislature has elsewhere tried to erase any statutory difference in effect, and unions do not make this particular distinction in the context of a certification application.
But, by the same token, if one reads the words of the statute literally, as the employer urges us to do, there is also a distinction between a resignation from membership, an expression of opposition to the union, and a withdrawal of “support” for the union, made in the context of a particular certification application. If the Legislature has created these different categories, they must signify something different.
Again, the union documents filed in the instant matter are a case in point. They include five separate (albeit related) elements: an application for membership; an authorization and acceptance of membership; a promise to be bound by the union constitution; an authorization to represent the individual in negotiations; and instruction to the Board respecting the configuration of the bargaining unit.
When the words of the employee letters are carefully considered and the Legislature's categories applied, we are not prepared to conclude that a "withdrawal of support" from the trade union is the same as a "resignation" or "cancellation" of membership. If we read the statute in accordance with its terms, the Legislature has distinguished these types of employee representation. They are different things; and if we are obliged to consider documents such as this at all, we think that we should do so with the statutory categories in mind. In that light, a withdrawal of support is not a resignation from membership. It has no effect on "membership" at all.
This may seem unduly "technical" at first glance; but as we have already discussed, "membership" in the union - the contractual binding of oneself to the union organization - is different from support for the union, in respect of a particular certification application.
The Supreme Court seems to say in Metropolitan Life: it is not enough to support the union, or apply for membership, or want to be a member; one must actually be a member in accordance with the union constitution. The Legislature rejected the specific result in that case, but it preserved the concept of "membership" which was, and remains, distinguished from the notion of employee support.
Is the distinction between "membership" and "support" odd, or counterintuitive? Not at all. It seems clear that, as a factual matter, an individual may well be a member of the union but not wish to be represented by that union in a particular collective bargaining relationship with a particular employer. Indeed, in the Board's experience, it is not at all unusual for an individual to be a member of more than one trade union, so that s/he may have to decide which union s/he wishes to support in a certification application. A member at one time, may change his/her mind later without withdrawing from membership. Conversely, an individual may support or oppose a union's bid for certification regardless of whether s/he is a member - for example, when given that opportunity in a representation vote which canvasses "support". There is a real distinction between membership and support - as unions sometimes learn to their chagrin when their "members" vote "no" in a representation vote.
That is why it is the Board's longstanding practice under section 8 to order a representation vote where it is shown that persons who have applied to become, or are, "members", have subsequently had a change of heart about their support for the union's certification, even if the change of heart does not take the form of a "resignation". Bill 40 does not change that practice either. If employees appear to be of two minds, the Board orders a vote to allow them to make their choice by secret ballot.
In our view, "membership" in a trade union organization is different from support for it, either generally, or in the context of a particular certification application. That withdrawal of support may take the form of a cancellation of membership (although under section 8 it would not make any difference how the change of heart was framed). But the Board will not readily conclude that an employee has "resigned from" or "revoked" his/her membership unless the document clearly says so - particularly when the result may be to prevent those and other employees from registering their wishes in a secret ballot vote. (And, if the Board really is required to take a "club law" approach to these matters, it is difficult to see how one could "resign" from "the club" by writing to some third party (the Board)).
It would have been relatively easy for an employee in the instant case to resign from, cancel, or revoke his/her membership; and if s/he had done so, the Board might well have had to consider the effect under section 9, when a vote had already been taken, and the whole purpose of that vote was to give all employees - including the wavering ones - the option of reconsidering their support for the union. But that is not what these employees have done here. They have not revoked, cancelled, or resigned from membership. They have, at most, purportedly withdrawn their "support".
For the foregoing reasons, even if we were to make the various assumptions recorded above, and even if we were to find a place for objections of this kind in the vote - based process of section 9, we would not find that these letters withdrawing support for the union either stand in the way of the initial direction that a representation vote should be taken to test employee wishes, or now preclude the Board from counting the ballots. They do not alter the union's "membership" level. At best, they demonstrate precisely the kind of equivocation that should be addressed by giving the employees the opportunity to express their wishes in a secret ballot vote - which is what has happened here in any event.
In view of the length of this discussion, a summary paragraph may be in order:

(1) Despite the drafting error in section 9, we do not think there is a distinction between "membership" and an "application for membership"; and when the statute is read as a whole and in context, we would be inclined to find that under section 9, an application for membership is "membership" of at least a provisional kind, that will support directing and counting a representation vote.

(2) If we are wrong, the particular documents in this case do establish actual "membership" for the purposes of section 9.

(3) Change of heart documents probably have no place in the pre-hearing vote process; but even if they do, a "withdrawal of support" addressed to the Board is not a revocation or resignation of membership in the union, and does not alter the number of union "members" at the relevant time.

IX

Decision

The Board finds that the applicant is a trade union within the meaning of the Act.
Having regard to the material before it, the Board finds that the unit of employees

appropriate for collective bargaining should be framed as follows:

all employees of Knob Hill Farms Limited, at 1250 South Service Road, Mississauga, save and except assistant store managers, persons above the rank of assistant store manager, and office and clerical staff.

On the basis of the totality of the documentary evidence before it, the Board finds 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. We give no weight to the letters withdrawing "support".
Section 9.1(1) of the Act reads as follows:

The Board directs that the ballot box be opened and the ballots counted.
If more than fifty per cent of the ballots cast are cast in favour of the trade union, it will be entitled to certification pursuant to section 9.1(1) of the Act.
In addition, section 105(2)(i) reads:

105.-(2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;

Accordingly, if fewer than fifty per cent of the ballots cast are cast in favour of the union, this certification application will be dismissed, and the Board will receive the parties' representations as to whether it should follow its usual practice of applying a six-month bar to any new application.

The Board directs that the ballots be counted forthwith.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; March 20, 1995

I have no doubt that, in writing for the majority, the Alternate Chair of the Board has arrived at a conclusion which the Legislature may have, indeed probably did, intend. I have the greatest admiration for the customary clarity with which he puts the issue into its proper historical context and proceeds to advance compelling reasons for there being as few barriers as possible to those seeking to determine the true wishes of employees as to whether they wish to be represented by a given union by means of a pre-hearing vote.
Nevertheless, 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.
The Board should not attempt to change the meaning of the words and in attempting to

do so I feel the majority have left this decision open to review