Labourers' International Union of North America, Local 1059 v. J. Franze Concrete Ltd., 1995 CanLII 9978

[1995] OLRB Rep. June 813

0258-95-U; 0297-95-U Labourers' International Union of North America, Local 1059, Applicant v. J. Franze Concrete Ltd., Responding Party; Labourers' Inter­national Union of North America, Local 1059, Applicant v. Devgroup Limited, Responding Party

BEFORE: D. L. Gee, Vice-Chair, and Board Members R. M. Sloan and P. V. Grasso.

APPEARANCES: L. A. Richmond, Kate Erickson, B. Quistgaard, L. Monteiro and J. MacKinnon for the applicant; Brett Christen and Devon Howard for the responding parties; Joe Franze for Joe Franze Concrete Ltd.; Scott Borland for Devgroup Limited.

DECISION OF THE BOARD; June 6, 1995

1. These two matters are applications under section 91 of the Labour Relations Act (the "Act") in which the Labourers' International Union of North America, Local 1059 ("Local 1059" or the "union") allege that J. Franze Concrete Ltd. ("J. Franze") and Devgroup Limited ("Devgroup") have violated section 73.1 of the Act by using replacement workers. The responding parties assert that the union cannot invoke section 73.1 of the Act as it has not held a strike vote in accordance with the requirements of subsection 73.1(2)2. A hearing was held on April 25, 26 and 27, 1995 in order to hear the parties' evidence and submissions on this issue. The Boardreleased a "bottom-line" decision on May 1, 1995, in which the majority of the Board upheld the objection of the responding parties and dismissed the applications. We hereby provide our reasons for such bot­tom-line ruling.

Facts

2. Devgroup and J. Franze are contractors in the London area and members of the Sewer and Watermain, Curb, Gutter and Sidewalk Section of the London and District Construction Association (the "Association").

3. The Association is a non-accredited association of both union and non-union employ­ers. Membership in the Association is voluntary and, as stipulated in the Association's constitu­tion, does not bestow bargaining rights for the member employer on the Association. The Associa­tion presently has 28 members. The Association acquires the right to represent an employer at bargaining by obtaining a proxy from the employer immediately preceding the commencement of negotiations for the renewal of a collective agreement. In the round of bargaining which is pres­ently taking place, the Association holds proxies for 22 employers, some of whom are members of the Association and some of whom are not.

4. The Association is party to a collective agreement with Local 1059 which expired on December 31, 1994 (the "Association collective agreement"). As members of the Association who have given the Association a proxy to bargain on their behalf, Devgroup and J. Franze were party to and bound by the Association collective agreement. Local 1059 holds bargaining rights for a number of employers who work in the sewer and watermain sector in the London area who are not members of the Association and have not given the Association a proxy to bargain on their behalf. It is Local 1059's practice to negotiate separate agreements with these employers whereby they agree to "pick-up" the Association collective agreement ("pick-up agreements").

5. As described in greater detail below, it is Local 1059's position that the employees of all employers bound to the Association collective agreement, including those employers signatory to a pick-up agreement, constitute the bargaining unit for the purpose of the strike vote. Thus, for brevity, we have adopted the expression "bound by the terms of the Association collective agree­ment" to refer to, not only those bound directly to the Association collective agreement itself, but also those bound to all other agreements, such as pick-up agreements, that contain terms identical to the Association collective agreement.

6. The Association collective agreement defines the parties to the agreement in the follow­ing terms:

COLLECTIVE AGREEMENT

This agreement made and entered into this 29th day of June, 1992.

Between:

SEWER AND WATERMAIN,

CURB, GUTTER AND SIDEWALK

CONTRACTORS SECTION

of the London and District

Construction Association

(hereinafter called the "Employer")

OF THE FIRST PART

And:

LABOURERS' INTERNATIONAL UNION

OF NORTH AMERICA,

LOCAL 1059

(hereinafter called the "Union")

OF THE SECOND PART

GENERAL PURPOSE

The general purpose of this Agreement is to establish mutually satisfactory relations between the Employer and its employees, to provide a means for the prompt and "equitable disposition of grievances, and to establish and maintain satisfactory working conditions, hours of work and wages for all employees who are subject to its provisions.

Article 1

BARGAINING AGENCIES

1.01 The Employer recognizes the Union as the sole collective bargaining agency for all its con­struction labourers engaged on all construction projects within the Counties of Middlesex, Bruce, Elgin, Oxford, Perth and Huron, save and except non-working foremen and persons above the rank of non-working foremen, office and clerical staff and engineering staff.

1.02 The Union recognizes the Sewer and Watermain, Curb, Gutters and Sidewalk Contractors Section of the London and District Construction Association as the Employer Bargaining Agency for those Employers, as outlined in Schedule "A", for whom the Employer holds bar­gaining rights.

Schedule "A" of the Association collective agreement sets out the names of 46 employers. Some of the employers listed in Schedule "A" are employers for whom the Association holds bargaining rights by virtue of the fact that they have provided the Association with a proxy to bargain on their behalf. Some of the employers for whom the Association holds proxies are not listed in Schedule "A". Some of the employers listed are members of the Association who have not given the Associ­ation a proxy to bargain on their behalf. The remaining employers listed have not given the Associ­ation a proxy to bargain on their behalf nor are they members of the Association.

7. By letter dated October 31, 1994, Local 1059 gave the Association, as well as employers listed in a Schedule "A" attached to the letter, notice to bargain a renewal agreement. The letter describes the employers listed in the attached Schedule "A" as "bound to the Collective Agree­ment in effect between the parties or the Union holds bargaining rights for their employees". The letter states, in part, as follows:

As spelled out in Sections 52(1) and 52(2) of the Ontario Labour Relations Act, unless we are specifically notified in writing otherwise, before negotiations commence, the employers listed in Schedule "A" shall be represented by the employer's organization in bargaining.

8. Local 1059 received a response from two of the employers listed on the Schedule "A" to the notice to bargain. Wonnacott Excavating Ltd. ("Wonnacott") advised Local 1059 that the company was inactive. In the event they became active, they would contact Local 1059 and negoti­ate an agreement at that time. By letter dated November 4, 1994, Elgin Construction ("Elgin"), an employer bound to a pick-up agreement, advised Local 1059 that, as they were not a member of the Association, they would not be bargaining with the Association.

9. On November 10, 1994, the union held a strike vote. By decision rendered orally on March 20, 1995, the Board (differently constituted) ruled that this vote was not held in accordance with subsection 73.1(2)2 of the Labour Relations Act.

10. Following the giving of notice to bargain, Local 1059 and the Association engaged in collective bargaining. Local 1059 did not obtain a list from the Association of employers for whom the Association held proxies or who were members of the Association. It is Local 1059's practice to conclude negotiations with the Association before dealing with any individual employers who would not be bound by the results of the negotiations with the Association. Such employers would then be advised that the terms of the Association collective agreement were the terms Local 1059 was willing to agree to. In this manner, all employers working within the same geographical area, performing the same work, would be bound by the same collective agreement. Both Local 1059 and Mr. Doole, the Association's Executive Director, view having all employers performing the same work bound to the same collective agreement as desirable and necessary to the maintenance of stability in the industry. In at least two previous rounds of bargaining with the Association, Local 1059 sought and was provided with a list of employers for whom the Association held prox­ies. In at least one round of negotiations, Local 1059 was actively involved in obtaining proxies from the employers as Local 1059 wanted to ensure that they were bound by the outcome of the negotiations.

11. On January 26, 1995, the Minister released her no-board report. The list of employers to whom the no-board report relates is identical to the list of employers attached to the notice to bargain except for the omission of Elgin and Wonnacott. Local 1059 had requested that the Minis­ter not include Elgin and Wonnacott on the no-board report due to the fact that they had advised Local 1059 of their intention not to bargain with the Association. Local 1059 has not pursued bar­gaining with Wonnacott. Local 1059 applied for conciliation with respect to Elgin separately and obtained a no-board report on February 23, 1995.

12. By letter dated February 1, 1995 Local 1059 advised the Association that, effective Feb­ruary 13, 1995, Local 1059 would be on strike. Under cover of letter dated February 9, 1995, a copy of Local 1059's letter to the Association was sent to all employers bound to the terms of Asso­ciation collective agreement. Relying on the strike vote held on November 10, 1994, Local 1059 advised all employers that they were prohibited from using replacement workers. The cover letter advised any employer who wished to enter into a collective agreement directly with the union, such that they could continue to work, to contact the union office. By letter dated February 24, 1995, counsel for the Association advised Local 1059 that its attempt to circumvent the "Employer bar­gaining agent", and enter into agreements directly with the Association's members, was unlawful and in violation of various provisions of the Labour Relations Act. Local 1059 was warned not to make any further attempts to negotiate or enter into collective agreements with Association members. By letter dated the same day, Local 1059 responded as follows:

I have received your letter dated February 24, 1995.

I appreciate your position that the London and District Construction Association has been neg­otiating a collective agreement on behalf of its members. The complete list of all its current membership of the London and District Construction Association will therefore be bound to the collective bargaining relationship with Local 1059.

If a member of the London and District Construction Association no longer wishes to be repre­sented by the London and District Construction Association and wishes to enter into a collective agreement and has advised us of same, we are prepared to do as contemplated by Section 52(2) of the Labour Relations Act.

As you are aware, we have not yet entered into an agreement.

I trust that you will familiarize yourself with the Labour Relations Act.

13. By letter dated March 1, 1995, Local 1059 advised Elgin that, effective March 13, 1995, Local 1059 would be on strike. Once again, relying on the strike vote conducted in November 10, 1994, Elgin was advised that it was prohibited from using replacement workers.

14. On March 15, 1995, Local 1059 entered into a Memorandum of Agreement with an employer by the name of Advice Contracting Limited ("Advice"). Prior to March 15, 1995, Advice was a member of the Association. Advice withdrew from the Association and entered into a Memorandum of Agreement with Local 1059 in order to enable it to work. The Memorandum of Agreement incorporates the proposal which Local 1059 had made to the Association prior to nego­tiations breaking off on January 31, 1995.

15. On March 20, 1995 Local 1059 sent notice of a meeting to all employees who, according to remittance sheets filed by employers for the month of September, 1994, were employed under the terms of the Association collective agreement, with the exception of employees of Advice. Approximately 15 individuals who were employed by Elgin were given notice of the meeting. The notice indicated that the meeting was to be held on March 24, 1995 and "a further strike vote may be taken". It was Local 1059's intention to hold a further strike vote if, as in fact occurred on March 20, 1995, the Board ruled that the strike vote held on November 10, 1994, did not fulfil the requirements of subsection 73.1(2)2. The envelopes containing the notices were delivered by Local 1059 directly to the postal station sorting plant before noon on March 20, 1995. In addition to the notice being mailed out, Local 1059 business representatives made numerous phone calls to the individuals to whom notice was sent in order to ensure that they were aware of the meeting. Sev­eral employers also sent notice of the meeting to their employees and urged them to attend.

16. The meeting took place as planned on March 24. Of the 340 people who were mailed notice of the meeting, 248 attended. Local 1059 had never previously had such a high turn-out for a meeting of any kind.

17. The meeting was held at a hotel. There was a table placed just inside the meeting room on which there was a sign-in sheet. As each individual entered the room they were required to sign in. When the room filled up, the sign-in table was moved out into the hallway. People were then required to sign in before entering the room. There were a number of Local 1059 business agents in attendance who were familiar with those who work in the sewer and watermain sector of the construction industry.

18. As the room filled, it became apparent that the room was not large enough to hold everyone. The room rented by Local 1059 had a maximum capacity of 150 people. Thus, once the room was full, those in the hallway were asked to wait, and the door was shut. Local 1059 began the meeting by asking if there was anyone in the room not covered by the agreement. One person was removed. Local 1059 then explained, in both English and Portuguese, the status of collective bargaining, the outstanding issues, the Association's most recent proposal, and that negotiations were at an impasse. It was explained that a strike vote would be taken. Casting a "yes" ballot was a vote in favour of the strike. Casting a "no" ballot was a vote against the strike.

19. Those present then lined up. As each person got to the front of the line, he was handed a ballot. The ballot had "yes" on one half of the page and "no" on the other half. The person would walk to the ballot box, which was shielded from the view of others by a wall on two sides and a podium on the third, rip the ballot in half, and deposit the half with his vote on it in the bal­lot box. The person would then immediately exit the room, directly to the exterior of the building, through a door close to the ballot box. Once the person voting had exited the room, the next per­son would be given a ballot. Four individuals from the bargaining unit were assigned the task of watching the voting process to ensure it was done properly.

20. Once everyone in the room had voted, and exited through the exterior door, those wait­ing in the hall were allowed to enter the room. The entire process was repeated. After the last per­son had voted, the four watchers from the bargaining unit opened the ballot box and counted the ballots. Of those who voted, 192 voted in favour of the strike, 52 were opposed to the strike. There were two spoiled ballots. Two people attended the meeting but did not vote. The entire process took approximately 3.5 hours.

21. Immediately following the vote, by letter dated March 24, 1995, Local 1059 advised the Association that over 60 per cent of those voting had voted in favour of a strike and that Local 1059 expected section 73.1 of the Labour Relations Act to be abided by.

22. On March 30, 1995, Local 1059 filed a section 91 complaint with the Board against Elgin alleging that Elgin was violating section 73.1 of the Labour Relations Act by using replacement workers. Elgin challenged Local 1059's right to invoke section 73.1 on the basis that the strike vote held on March 24, 1995 did not satisfy the requirements of subsection 73.1(2)2. A hearing was held on April 6, 1995. In a bottom-line decision dated April 10, 1995, with reasons to follow, the Board (differently constituted) ruled that the vote did not meet the requirements of subsection 73.1(2)2 of the Act.

23. On April 20, 1995 the applicant filed the instant complaint against J. Franze. The instant complaint against Devgroup was filed on April 21, 1995.

Positions of the Parties

24. As indicated by the summary of the facts set out above, all individuals who performed work under the terms of the Association collective agreement, during the month of September, 1994, excluding the employees of Advice, were given notice of the March 24, 1995 strike vote and permitted to vote.

25. This case is one of the first in which the Board has been called upon to interpret the application of section 73.1 to the construction industry. It is the submission of counsel for Local 1059, that the Board must interpret section 73.1 in the context of the construction industry, having regard to the Association collective agreement, and keeping in mind the purpose of section 73.1.

26. Counsel for Local 1059 asserts that the use of the expression "a bargaining unit", as opposed to "the bargaining unit", in subsection 74(5) of the Labour Relations Act, indicates that the bargaining unit description adopted for the purposes of a strike vote does not have to mirror the bargaining unit, i.e. an existing bargaining unit. Rather, it must only be an appropriate bargaining unit. Thus, provided the Board accepts that the bargaining unit adopted by Local 1059 for the purposes of the strike vote was an appropriate one, the Board should find that the vote meets the requirements of section 73A(2)2.

27. Local 1059 asserts that there are a variety of groups of individuals who could, quite rea­sonably, have been selected as the bargaining unit for the purposes of the strike vote. Local 1059 could have permitted all 2400 of its members to vote as it is possible that each member may one day work under the terms of the Association collective agreement. Local 1059 could have permit­ted all, or a portion, of those on the out-of-work list to vote, on the theory that they have an inter­est in the outcome of the strike. Both of these approaches, however, would have led to inequities as most Local 1059 members, and most people on the out-of-work list, have not previously worked under the terms of the Association collective agreement and may never do so. People with a very remote connection to the strike would be determining whether individuals with a much closer interest in the strike would be able to return to work. Thus, in an effort to ensure that those who would be most directly affected by a strike vote would be the ones to vote, Local 1059 determined that those who had worked under terms of the Association collective agreement during the busiest month of the year would be given notice of the strike vote. It is this group of people who are most obviously tied to the Association collective agreement, who will most directly face the conse­quences of a strike and the consequences of replacement workers performing their work.

28. In support of Local 1059's position that all employees of all employers bound by the terms of the Association collective agreement comprise an appropriate bargaining unit, counsel for Local 1059 relies on excerpts from the Report of the Royal Commission on Labour-Management Relations in the Construction Industry prepared by H. Carl Goldenberg in March 1962 (the "Gol­denberg Report") and the Report of the Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry prepared by D. E. Franks in May, 1976. Both reports comment on the unique nature of employment relations in the construction industry. Construction workers, due to the potential short term nature of their employment with any one contractor, tend to associate more closely with their craft, and their trade union, than their employer. Further, the reports com­ment favourably on the formation of employer associations and the development of area agree­ments which all contractors are tied into one way or the other. In this manner, all contractors are bound to the same terms and conditions of employment when performing similar work in the same geographic area. This level playing field is described as being in everyone's interest as it makes all contractors equally competitive and ends the "whipsawing" otherwise often engaged in by trade unions. The Goldenberg Report comments that there is a very strong ethic in the construction industry that the area agreement will apply equally to all employers within its defined or implicit scope. Counsel further points out that both Local 1059 and Mr. Doole view the existence of one collective agreement, to which all contractors are bound, as attractive and valuable to the mainte­nance of stability in the industry.

29. Counsel urges the Board to find the bargaining unit selected by Local

1059 to be an appropriate bargaining unit as, to do otherwise, would seriously undermine the level playing field. Counsel asserts that, if Local 1059 is not permitted to hold a strike vote amongst the employees of all contractors who perform work covered by the terms of the Association collective agreement, it will mean a return to the jungle. Local 1059 will obtain a 60 per cent vote in favour of a strike against one of the contractors and will strike that contractor, while others are permitted to continue working, until that contractor breaks or is put out of business. The result will be that some contractors will be permitted to continue working while others are on strike and, eventually, contractors being bound to different collective agreements.

30. Counsel further asserts that the Board must consider the purpose of section 73.1 when determining the appropriate bargaining unit for the purposes of a strike vote. Counsel argues that, Board jurisprudence with respect to section 73.1 indicates that the section was introduced to reduce violence on picket lines and give unions increased power. If Local 1059 is required to get a 60 percent strike mandate from the employees of each individual employer it will seriously under­mine the utility of section 73.1 to Local 1059 and, as it will result in a situation where some con­tractors are working while others are not, will be a recipe for picket line violence.

31. Turning to the recognition provisions in the Association collective agreement, counsel points out that the union recognizes the Association as bargaining agent for all employers who are bound to the Association collective agreement, regardless of the means. The agreement makes no reference to the Association's representation rights being limited to those for whom they hold proxies. There are a considerable number of employers listed on the Schedule "A" to the agree­ment who have not given the Association proxies to bargain on their behalf. Counsel asserts that, when the Association signs this agreement, they are saying that they hold bargaining rights for all those listed in Schedule "A". Further, the union wrote to the Association advising that, unless the union is advised to the contrary, pursuant to section 52(2) of the Labour Relations Act, the Association will be deemed to bargain on behalf of all listed employers. With the exception of Elgin and Wonnacott, no response was received. Thus, when negotiations began, the union and the Association were bar­gaining to reach an agreement which would apply to all employers who were bound to the Associa­tion collective agreement regardless of the means. In counsel's submission, the Association collec­tive agreement anticipates that all such employers will be treated as one unit.

32. It is asserted on behalf of Local 1059 that there is nothing in section 73.1 which stipu­lates that the bargaining unit must be restricted to the employees of only J. Franze and Devgroup. The Board must determine whether the bargaining unit selected by Local 1059 is an appropriate unit and should make such determination in light of the unique characteristics of the construction

industry, the purpose of section 73.1 and the provisions of the Association collective agreement. When all such factors are taken into consideration, Local 1059 asserts that a unit comprised of employees of all employers working under the terms of the Association collective agreement is an appropriate bargaining unit such that all employees working under the terms of the Association collective agreement in September, 1994 comprise the voting constituency. Local 1059 held a strike vote of employees in such unit and at least 60 per cent of those voting voted in favour of the strike. The Board should thus find that the vote satisfied the requirements of section 73.1(2)2.

33. Counsel for the responding parties asserts that the strike vote does not meet the requirements of section 73.1(2)2 for a number of alternative reasons. First and foremost, the responding parties argue that the bargaining unit is the employees of each individual employer or, perhaps, the employees of the members of the Association, or those employers who have given the Association a proxy to bargain on their behalf, but it is not the employees of all employers bound to the terms of the Association collective agreement. The responding parties assert that, should the Board determine that the bargaining unit is not the employees of all employers bound to the terms of the Association collective agreement, the Board must conclude that the vote does not meet the requirements of section 73.1(2)2. It is not necessary for the Board to determine which bargaining unit is the correct one.

34. In support of the assertion that the bargaining unit is not employees of all employers bound to the terms of the Association collective agreement, counsel for the responding parties relies on the definition of "bargaining unit" set out in section 1(1) of the Act and the use of the expression "the bargaining unit" throughout section 73.1. Counsel points out that section 73.1(2) refers to the giving of notice to bargain and, in the instant case, notice to bargain was given to each individual employer. In addition, Local 1059 applied for conciliation with respect to each individ­ual employer and obtained a no-board report for each. Further, due to the fact that the Associa­tion is a non-accredited association, there is nothing which requires these employers to bargain together or even prevent employers, who commence bargaining under the umbrella of the Associa­tion, ceasing to do so mid-negotiations. Likewise, there is no means to ensure that all employers sign the Association collective agreement or an agreement containing terms identical to the Associ­ation collective agreement.

35. Should any employer, including a member of the Association, advise Local 1059 that it no longer wishes to be represented by the Association in the present round of bargaining, and that it wants to enter into an agreement with Local 1059, Local 1059 is prepared to do so. Counsel for the responding parties asserts that this position is inconsistent with Local 1059's position that the bargaining unit is a unit of employees of all employers bound by the Association collective agree­ment because they are all equally affected by a possible strike. If Local 1059 is willing to enter into an agreement with any single employer, prior to the Association agreement being finalized, then it is possible for an individual to have voted for the strike, and yet, be legally working during the cur­rency of the strike. In counsel's submission, this inconsistency highlights why accreditation con­cepts cannot and should not be applied to a non-accredited association.

36. Counsel for the responding parties further points out that at least two of the employers who Local 1059 asserts are bound to the Association collective agreement, such that their employ­ees are part of the bargaining unit for the purposes of the strike vote, have filed materials with the Board in another Board file in which they assert that they are not bound to the Association collec­tive agreement. If the Board is going to treat employees employed by all employers bound to the terms of the Association collective agreement as a bargaining unit, the Board will be drawn into determining issues such as which of the employers are in fact bound to the terms of the Association collective agreement.

37. With respect to Local 1059's argument that the Board should strive to preserve the level playing field and interpret section 73.1 in furtherance of such, counsel for the responding parties asserts that preservation of the level playing field in the case of a non-accredited association is beyond the Board's powers. Local 1059 has already entered into an agreement with Advice which will most likely differ from that eventually agreed to by the Association. There is nothing to stop Local 1059 from entering into agreements with other employers prior to the Association agreement being concluded and, as set out above, Local 1059 has indicated that it is willing to do so.

38. Article 1.02 of the Association collective agreement stipulates that the Association is recognized as the bargaining agency of those employers listed in Schedule "A" of the agreement "for whom the Employer holds bargaining rights". Thus, the agreement itself recognizes that the Schedule "A" lists employers for whom the Association is not the bargaining agent and that the Association represents only those for whom it has been authorized to bargain.

39. If the Board accepts that the employees of all employers bound by the terms of the Association collective agreement constitute a bargaining unit, counsel for the responding parties asserts that the vote does not meet the requirements of section 73.1(2)2 because Local 1059 should not have determined which employees could vote based on the remittance sheets filed by employ­ers for the month of September, 1994. There were employees working in October and November, 1994 who, may or may not have been working in September, who would have been an equally valid pool of voters. Had Local 1059 used the remittance sheets from October or November, the possibility of individuals voting who had, since September, 1994, moved on to employment in another sector would have been reduced. Alternatively, counsel suggests that the appropriate vot­ers, given the frequency of movement amongst employees in the sector, should include employees on the out of work list.

40. If the Board accepts that employees who worked under the terms of the Association collective agreement in the month of September, 1994 are the appropriate voting constituency, counsel argues that the vote is invalid because either the employees of Elgin should not have voted or the employees of Advice should have been permitted to vote.

41. Finally, if the Board accepts the bargaining unit as defined by the union and its means of selecting the voting constituency, counsel for the responding parties argues that the vote does not fulfill the requirements of section 73.1(2)2 because, due to the short notice on which the vote was held, and the fact that the vote was held during working hours, the employees did not have ample opportunity to cast their ballots. Alternatively, the vote is invalid because the question was not set out on the ballot or because the persons who signed in were not asked for identification or checked off against the list of individuals who were sent notice of the meeting. Finally, it is sug­gested that the vote was not a secret ballot because~ after an individual cast his ballot, he remained in possession of the other half of the ballot which, if others were waiting outside of the door and demanded to see it, would reveal how the individual had voted.

Decision

42. For reasons set out below, the majority of the Board is of the view that the strike vote held by Local 1059 on March 24, 1995 did not meet the requirements of subsection 73.1(2)2 of the Labour Relations Act, incorporating by reference the requirements of subsections 74(4) to (6). We do not accept that the "bargaining unit" referred to in subsection 74(5) for the purposes of the strike vote includes the employees of all employers bound to the terms of the Association collective agree­ment. Further, even if the statute permits the possibility of a valid vote which includes persons in more than one bargaining unit, on the facts of this case we are satisfied that the voting constituency used contravenes the provisions of section 74. (By not segregating the ballots in a manner which would permit the Board to determine whether 60 per cent of those in the proper voting constituen­cy(ies) voted in favour of a strike, it is our determination that the strike vote does not meet the requirements of subsection 73.1(2)2.)

43. Before setting out our reasons for our determination that those permitted to vote were not a proper voting constituency, we have considered some of the responding parties' alternative challenges to the validity of the vote. In doing so, we have assumed, without so finding, that each of the matters complained of would, if made out, result in the vote not fulfilling the requirements of the Labour Relations Act.

44. We do not conclude that the short notice on which the meeting was held, nor the fact that the meeting was held during working hours, resulted in the employees not having ample opportunity to vote. Local 1059 delivered the notices directly to the mail sorting plant before noon on March 20 resulting in the notices being delivered to the employees' homes on March 22 or 23 at the latest. In addition, Local 1059 business agents made an effort to contact the employees by tele­phone and advise them of the meeting. Further, the employers themselves sent correspondence to the employees in an effort to make sure the employees were aware of the meeting and the fact that a strike vote might be held. The meeting cannot be said to have been held during working hours as the employees in question were on strike. Finally, we note that, of the 340 people who were noti­fied of the meeting, 248 attended. Local 1059 had never previously had such a high turn-out to one of its meetings. Thus, in our view, neither the short notice nor the time of day at which the meeting was held, resulted in the employees not having ample opportunity to vote.

45. The fact that those who attended the meeting were not asked to produce identification, or checked off against a list of individuals who were given notice of the meeting, does not cause us concern. There were a number of Local 1059 bargaining agents present at the meeting who were familiar with the individuals who work in this sector. Local 1059 made it clear, at the beginning of the meeting, that only those entitled to vote should be present and asked anyone not so entitled to leave. The Minutes of the meeting reflect that such an announcement was made. All individuals entering the room were required to sign in. A copy of the sign-in sheet was provided to the responding parties as well as a list of the names of the individuals given notice of the meeting. Given the efforts made by Local 1059, and given the absence of an allegation that any particular individual was permitted to vote who was not so entitled, we do not see any reason to doubt that those in attendance were those who, according to Local 1059's theory of this case, were those enti­tled to vote.

46. The fact that the question was not printed on the ballot likewise does not cause us con­cern. Local 1059 advised those in attendance, in advance of the vote being held, in both English and Portuguese, that a "yes" vote was a vote in favour of a strike and a "no" vote was a vote against the strike. The Minutes of the meeting indicate that the meaning of a vote one way or the other was explained. We are satisfied that those present would have understood the import of vot­ing one way or the other and would not have been confused by the absence of the question on the ballot.

47. We do not believe that the vote was not a secret ballot vote because, after casting a bal­lot, the individual was left with a piece of paper which would reveal how he voted. There was no evidence to suggest that, after leaving the room, people were being asked to show the remaining half of their ballot. The remaining half of the ballot could easily have been shoved into the individ­ual's pocket and his decision as to whether he wished others to see it was his to make. In our view, in light of all of the circumstances surrounding the taking of the vote in this case, the form of ballot utilized did not result in a person's vote being identifiable.

48. We now set out our reasons for our determination that the union failed to meet the requirements of section 73.1(2)2 in conducting a vote which included the employees of all employ­ers bound to the terms of the Association collective agreement.

49. We do not accept the union's submission that the use of the term "a bargaining unit", as opposed to "the bargaining unit", in subsection 74(5) means that the bargaining unit description for the purposes of a strike vote can differ from an existing bargaining unit, provided it is an appro­priate one. In our view, the expression "a bargaining unit" in section 74(5) refers to the bargaining unit as described in the Board certificate or voluntary recognition agreement by which the trade union acquired bargaining rights, or as amended in a collective agreement entered into between the parties, and does not indicate that some other bargaining unit can, provided it is appropriate, be adopted for the purposes of the strike vote.

50. The term "bargaining unit" has a meaning. As defined by section 1(1) of the Act, it refers to a unit of employees of a single employer appropriate for collective bargaining. A bargain­ing unit comes into being by way of Board certificate, in which case the bargaining unit description is as set out in the certificate, or by way of voluntary recognition agreement, in which case the bar­gaining unit description is as set out in the agreement. Once a collective agreement is entered into between the parties, the bargaining unit description set out in the collective agreement becomes the bargaining unit. Thus, at the point in time when section 73.1 has practical meaning, the term "bargaining unit" has meaning for the parties concerned. It is the unit as defined in the applicable Board certificate, voluntary recognition agreement or collective agreement. The term "bargaining unit" is used throughout sections 73.1 and 74 to refer to such unit. For example, subsection 73.1(4) stipulates that an employer is prohibited from using the services of an employee "in the bargaining unit that is on strike". "[T]he bargaining unit" refers to the bargaining unit as defined by the Board certificate, voluntary recognition agreement or collective agreement applicable at the time the strike began. Section 74(5) mandates that all employees in "a bargaining unit" are entitled to participate in a strike vote. Given that, as of the point in time when subsection 74(5) has practical meaning, there is a defined bargaining unit in existence, and it is such bargaining unit which is referred to throughout sections 73.1 and 74. We do not accept that the term "a bargaining unit" in subsection 74(5) does not refer to the defined bargaining unit. Had it been the Legislature's inten­tion for the term "bargaining unit" in subsection 74(5) to refer to something other than the defined bargaining unit, we would have expected clear language to that effect.

51. We find support for our conclusion when subsection 74(5) is read in context. Section 74 stipulates the circumstances under which a legal strike or lock-out can take place and the manner in which a strike or ratification vote must be held. The section refers to "a collective agreement", the appointment of a conciliation officer, and the release of the conciliator's report or a no-board report. Section 73.1 prohibits the use of replacement workers, as described therein, provided 60 per cent of those voting in a strike vote, authorized the strike. Section 73.1 speaks of "employees of an employer", the strike vote being taken after the service of notice to bargain, and "the bar­gaining unit that is on strike". The language used in sections 73.1 and 74 indicates that the sections contemplate a single bargaining unit going on strike. The term "bargaining unit" is used through­out sections 73.1 and section 74 to refer to the bargaining unit which, following service of notice to bargain, the appointment of a conciliation officer and the release of a no-board report, is in a legal strike or lock-out position. Given the context within which section 74(5) uses the term "a bargain­ing unit" it is our view that the expression "a bargaining unit" in subsection 74(5) refers to the bar­gaining unit for which negotiations are ongoing and, failing an agreement, will be faced with a strike or lock-out, and is not indicative that some other bargaining unit can be adopted for the pur­poses of determining the voting constituency for the strike vote.

52. Nor do we accept that all employers listed in Schedule "A" to the Association collective agreement constitute a bargaining unit. Article 1.02 of the Association collective agreement indi­cates that the Association is the bargaining agency on behalf of only those employers listed in Schedule "A" for whom the Association holds bargaining rights. Of the 46 employers listed in Schedule "A", only 16 have given the Association a proxy to bargain on their behalf in the present round of bargaining. Thus, at its largest, the Association collective agreement may create a bar­gaining unit of the employees of 16 employers. We make no determination in this regard as, for reasons expressed below, it is not necessary for us to do so.

53. Our finding that the "bargaining unit" referred to in subsection 74(5) does not consist of a unit of all employees of all employers bound to the Association collective agreement, does not, however, necessarily conclude the matter. Subsection 74(5) stipulates that all employees in the bargaining unit are entitled to participate in a strike vote. In the present case, individuals who are employees in more than one bargaining unit voted together in the same vote. If subsection 74(5) is interpreted as restricting the voting constituency to employees in the same bargaining unit, these applications must fail. Subsection 74(5) does not, by its words, however, explicitly preclude the possibility of a single vote being taken amongst the members of more than one bargaining unit and subsection 73.1(2) makes no reference to the voting constituency. Thus, it is arguable that subsec­tion 74(5) establishes only a minimum voting constituency and does not preclude individuals in more than one bargaining unit from voting together. However, even if subsection 74(5) is inter­preted in such a manner, these applications cannot succeed. Given the purpose and ramifications of a vote under section 73.1, even if these provisions do not preclude the possibility of a voting constituency that crosses bargaining unit boundaries, we do not accept that the voting constituency can be comprised of employees who would not be similarly affected by the outcome of the vote. The entitlement to participate in a strike vote (which subsection 74(5) guarantees to employees in the bargaining unit) would be rendered meaningless if any number of persons, having only a tenu­ous interest in the outcome of the vote, were permitted to cast ballots. In our view, the employees voting must all face the prospect of the same strike, and the prospect of being unable to work for any of the employers struck for the duration of the strike. Thus, where both the union and the employers of the employees who are permitted to vote are irrevocably bound (perhaps by opera­tion of subsection 52(2) or by a bargaining protocol) to bargain the terms of an agreement together, the vote may well be sustainable.

54. In the present case, it is Local 1059's position that, at any time, including following the commencement of negotiations with the Association, any employer can, by simply notifying Local 1059 to such effect, withdraw from the group of employers on whose behalf the Association is bar­gaining and pursue negotiations with Local 1059 on an individual basis. Local 1059's conduct is consistent with such position. Local 1059 entered into negotiations with Elgin on an individual basis (resulting in a later strike date) and entered into a Memorandum of Agreement with Advice. Local 1059 is willing to enter into a Memorandum of Agreement (provided agreement on terms can be reached) with any other employer who so wishes. Thus, those who voted on March 24 did not all face the same prospect of a strike, or the prospect of remaining on strike for the same length of time. In our view, therefore, it cannot be said that they all, or the employees of any num­ber of employers in combination, shared a common interest in the outcome of the vote. Thus, we do not accept that the voting constituencies for the purposes of Devgroup and J. Franze are all employees of all employers bound by the terms of the Association collective agreement.

55. Thus, it is our determination that the bargaining unit referred to in subsection 74(5) does not consist of a unit of all employees of all employers bound to the Association collective agreement. It is our further determination that, even if individuals in more than one bargaining unit can properly vote together, given that those who were permitted to vote together in the instant vote would not all necessarily be similarly affected by the outcome of the vote, those who voted were not a proper voting constituency.

56. For the reasons expressed above, by decision dated May 1,1995, the Board, with Board Member Grasso dissenting, ruled that the strike vote was not conducted in accordance with subsec­tion 73.1(2)2. Board Member Grasso now concurs in the decision.