Canadian Union of Public Employees, Local 79 v. The Corporation of the City of Toronto, 1996 CanLII 11115

Ontario Labour Relations Board

[1996] OLRB Rep. July/August 552

2603-95-R Canadian Union of Public Employees, Local 79 ("the union or "CUPE Local 79"), Applicant v. The Corporation of the City of Toronto ("the employer" or "the City"), Responding Party

BEFORE: R. O. MacDowell, Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: J. James Nyman for the applicant; E. T McDermott for the responding party.

DECISION OF R. O. MacDOWELL, CHAIR, AND BOARD MEMBER H. PEACOCK; July 3, 1996

1. To make this decision easier to read, the applicant will be referred to as "CUPE Local 79" or "the union", and the respondent will be referred to as "the City" or "the employer". The Labour Relations Act, 1995 which came into force on November 10, 1995 will be referred to simply as "Bill 7".

2. This case involves the interpretation of Bill 7, and the way in which the Board has been applying its provisions over the last few months; and in the course of argument, both counsel referred to the statutory language that was in place before the passage of Bill 7. Some of those references are discussed below. However, for comparison purposes, the full statutory provisions governing certifica­tion (before and after Bill 7) have also been reproduced in Appendix A, which can be read together with the text of this decision.

3. We will begin by outlining what this case is about, and highlighting some of the issues that it raises. We will then turn to the new statutory language.

WHAT THIS CASE IS ABOUT

4. This is an application for certification in which CUPE Local 79 seeks to represent a large group of City employees who are currently unrepresented. A significant number of those employees have sought membership in the union and have indicated in a secret ballot vote that they want the union to represent them. The question in this case is whether the union is entitled to certification as their bargaining agent - that is, whether the Board can give legal effect to the wishes of employees recorded in the representation vote.

5. The union and the City are no strangers to the collective-bargaining process. CUPE Local 79 already represents some 2800 "white collar" employees in the so-called "inside workers bargaining unit". CUPE Local 43 (a sister local) represents a bargaining unit of 1800 "blue-collar" workers in the "outside workers bargaining unit". Employees represented by the two CUPE Locals work in proximity to the unrepresented workers affected by this application.

6. The two CUPE Locals have been involved in collective bargaining with the City for decades. The issue in this case is whether another group of City employees is entitled to participate in that process.

7. The present application relates to a body of employees variously described as "part-time", "seasonal" or "casual", who work in the City's parks, community centres and recreation programs. Their hours of work and work locations vary considerably, as does the actual work that they do. The number of casuals actively employed at any particular time also varies with the season and with the program mix offered by the City.

8. The parties are agreed that for the purposes of this certification application the unit of employees appropriate for collective bargaining should be described as follows:

all casual employees employed by the Corporation of the City of Toronto in the Recreation Division of the Department of Parks and Recreation, save and except supervisors, persons above the rank of supervisor, and persons for whom the applicant or any other trade union held bargaining rights as of October 10, 1995.

However, the parties are not agreed on the number of employees in this unit for the purposes of the application. In other words, the parties agree on the description of the bargaining unit, but they do not agree on its composition.

9. The term "casual employee" (or "recreation casual") is used by the City for payroll purposes to describe these casual workers in a general way, and distinguish them from the "regular" inside or outside workers who are already represented by CUPE. For convenience, we will use the same terminology in this decision. However, it is important to note that the term "casual employee" (as used by the City and applied to a particular individual) does not necessarily connote a continuing employment relationship with the City, either in a common-law contractual sense, or for the purpose of certification under the Labour Relations Act. That is one of the issues that divides the parties. Since these "recreation casuals" work intermittently, there is a dispute about just how many of them actually were "employees" at the time the certification application was filed.

10. Counsel for the City advised that, over the course of the year, the City hires as many as

2400-2500 of these "casual workers" who work for various lengths of time in the parks, playgrounds and recreation centres scattered throughout the City. The peak program period is during the summer months when, we were told, the City needs roughly 1500 additional employees to work as lifeguards, supervise wading pools, organize sports activities, administer camp programs, and so on. Many of these individuals are students employed during their school vacation period, so when the summer is over, their jobs end and they go back to school. They may or may not return the following summer.

11. In the fall, the complement of casuals drops considerably. Counsel for the City advised that, for the autumn programs, between 700 and 900 individuals are engaged for activities as diverse as square dancing, piano lessons, or Red Cross certification. In the winter, yet another group of workers is engaged in respect of indoor programs or outdoor winter sports activities at the City's parks, ice rinks and arenas.

12. We were told that only a small group of "recreation casuals" are working continuously -primarily because they have a skill (for example, piano training) that is in constant demand for particular programs or at a particular recreation centre. However that core group comprises only 200-400 workers (the parties disagree about the numbers). The rest of the recreation casuals come and go in accordance with the City's needs. There is no necessary carry-over between, say, those casuals who act as lifeguards or supervise the wading pools in the summer, and the casuals who clean the ice rinks in the winter. The composition of the casual group is continuously changing.

13. The City says that up to 75% of the summer casuals are hired again in the following summer (the union disputes the percentage). But there is no legal commitment to do so. Nor is there any obligation on the casual to return if asked. In this sense, the casual workers' situation is quite different from someone with enforceable "recall rights" under a collective agreement.

14. No doubt a number of the summer casuals - especially students - hope to return the following year if they are still available for work and if there is still work available for them to do. No doubt the City is happy to bring back individuals who have performed satisfactorily in the past. But there is no guarantee that casuals will return year after year, or even for the next program cycle. They are engaged as needed; and as we understand it, when their particular assignment ends, they are given documentation (U.I.) that is consistent with a termination of employment.

15. By any measure, there is a substantial turnover of casual employees, since the number and composition of the casual group depends upon the seasons, the program mix that the City chooses to offer, and, of course, their own availability to return to a program that has been offered before. Indeed, it is interesting to note that even the City had difficulty identifying the precise number of casuals who had been employed over the past year. We were told that compiling a list of casuals was difficult because the work locations were geographically diverse and many of the payroll records were kept manually.

16. This application for certification was filed on October 10, 1995 - that is precisely a month before Bill 7 came into effect. The material filed with the application therefore reflects the scheme of the Act that was in effect prior to November 10, 1995. However, because Bill 7 had certain retroactive features, it is agreed that the Board is obliged to apply the new Act to this application, even though it was filed "under the old system".

17. In support of this application for certification, the union has submitted 738 "membership" cards, and has estimated that, at the time the application was filed, the size of the bargaining unit was 840 persons. We were told that the union had been organizing for a number of months prior to the application, so its estimate is presumably based upon its contact with the various work places and its understanding of the ebb and flow of program activity. The union's estimate is generally consistent with the City's own estimate of the number of casuals actively working in the fall programs (see paragraph 11 above).

18. In each case, the union card is signed by the individual worker concerned, is witnessed by another person, and indicates that the signer is applying for membership in the union. There is no real challenge to the form of this membership evidence either from the City or from any of the individuals who signed the cards. There is no reason to believe that the cards do not mean what they say: that the person signing the card wants to be represented by the trade union in a collective-bargaining relationship with the City.

19. The City has filed material in response to this application (which, as noted, was launched prior to the passage of Bill 7). The City's filing identified some 369 persons who were actively at work on Tuesday, October 10, 1995, the day on which the certification application was made.

20. The City has also filed a schedule of some 2455 other persons labelled "recreation casuals" who were not at work on the application date, but who had worked for the City at some point in the previous year. For the overwhelming majority of these individuals, the City has indicated that they were not scheduled to work on the application day, and that their expected date of return or recall was "unknown". The City's position is that all of these individuals (369 + 2045 2414) should be considered to be "employees" "in the bargaining unit" for the purposes of this certification application, and further that if less than 40% of them have signed union membership cards, there can be no representation vote.

21. It remains to be determined whether Bill 7 actually requires the kind of pre-vote arithmetic calculation proposed by the City, and, if it does, whether such calculation should be based upon the City's proposed list, material from the union or some revised version of the City's list that emerges from inquiry or litigation. The City asserts that an examination of this kind is required before any representation vote can be ordered. The union's proposed interpretation of Bill 7 avoids this pre-vote exercise altogether - or, more accurately, shifts the focus to one of determining voter eligibility after the vote is ordered, rather than whether a vote should be taken at all. We shall have more to say about that later. At this point, it may be helpful to "do the arithmetic" in order to illustrate the dimensions of the problem.

22. For the 369 persons actively at work on October 10, 1995 (i.e. literally "in" the proposed bargaining unit on the application date) the union has submitted 201 membership cards, which repre­sents about 54 per cent of the persons listed by the City as being at work on October 10. For the other 2045 persons not at work on October 10 (and for the most part not scheduled to return to work at any known date) the union has gathered a further 344 cards. Since the union's card signing campaign took place in the weeks prior to the filing of the application for certification, it appears that by the time the application was filed, quite a number of the casuals who were working during the summer and had signed cards at that time, were no longer actively employed.

23. The union clearly has the support of the majority of the employees actively at work on October 10, 1995, and therefore unequivocally in the bargaining unit on the date the union applied for certification. Since the City says that there are around 900 individuals working in its fall programs, it is also clear that a significant proportion of them want to be represented by the union. However, if the bargaining unit actually contains 2400-2500 "employees" as the City claims, then the union's level of "card support" in that much larger group is only around 25 per cent of this much larger number. And if the size of the bargaining unit is somewhere between 369 and 3000, it is currently impossible to determine the union's level of card support in percentage terms, without examining the actual situation of each person named on the employer's list to see whether such individual should be treated as an "employee" in the bargaining unit for the purposes of the certification process.

24. It is impossible to predict how long such analysis would take - particularly if the "facts" or their characterization are disputed, so that the Board would have to make specific determinations with respect to individual workers. But the union's estimate of "many months" is not at all unreasonable -especially if the test for inclusion in the bargaining unit for certification purposes ultimately turns on each individual's personal situation, his/her intention to return to work, or the likelihood that s/he will return to the program, position, or location in which s/he had worked before. This could be a mammoth task, involving hundreds of individual inquiries, and by the time it was completed, the bargaining unit under review would likely have undergone significant change.

25. The nature of the inquiry urged upon us by the employer warrants some further elaboration, because it highlights what might be described as a "systemic concern" in the interpretation of Bill 7. The "process problem" raised by the City in this case is not at all unique. If the employer's interpretation of Bill 7 is right, quite a number of cases may require such pre-vote litigation to sort out the employee list. And that, in turn, may significantly impact on the way in which the Board handles certification applications under Bill 7. In other words, while the characteristics of this work group are a little unusual, the legal issue raised by the employer is extremely important for the way in which the certification process works generally - and ultimately whether the new system can actually deliver the 5-day votes which are contemplated by the statute.

26. We should note that in this particular case, the union could not reasonably have known the precise number of "employees" in the bargaining unit, for, as we have already indicated, even the employer had some difficulty compiling a complete list. The union would have had some general information about the bargaining unit size from its members in the field, from the casuals themselves, and from an earlier application that was filed in the Spring and later withdrawn. But the union would not know the precise number or identity of the employees in the bargaining unit in October, even where, as here, the bargaining unit description was agreed upon. An agreement on the bargaining unit description does not mean that there will be agreement on bargaining unit composition.

27. However, from an operational point of view (i.e. how the certification process actually works), it is important to recognize that there is nothing unusual about this kind of disagreement or this kind of uncertainty on the union's part. It is a problem that a union faces, to a greater or lesser extent, in every campaign to organize unrepresented workers, and thus will be a factor in quite a number of certification situations. Accordingly, if the accuracy of the union's "estimate" of bargaining unit size is found to be a critical element of the new statutory scheme, then the legal determinations that the Board is called upon to make in this case may have practical (and "tactical") ramifications well beyond its particular facts.

28. In other words, if uncertainty about the "employee list" is a basis for litigation, then there may be quite a lot of it. And if a "list dispute" of this kind can delay the "quick vote" contemplated by Bill 7, then there may be quite a few votes that are delayed - despite the terms of the statute.

29. These ramifications flow from the way in which employees actually go about organizing themselves, and some of the hurdles that they customarily face when they want to exercise their right of self-organization.

30. Prior to the filing of a certification application, a union has no statutory right of access to the employee group at the workplace or on work time. Nor does a union have any access to the employer's records (see sections 13 and 77 of the Act). The union must make its best guess about the composition of the employee complement, based upon employee contact and hearsay. But it will often be wrong. And, if there were no prior agreement on the description of the "appropriate bargaining unit", it would be even more difficult for a union to predict the precise number of employees in the bargaining unit, because the bargaining unit perimeter might itself be the subject of argument (for example: whether to include more than one location, whether full-time and part-time employees should be put in the same bargaining unit, etc.). In the real world of collective bargaining, finding out who all the employees are (and where they are in this case) can be a real challenge for the union, and can pose a practical impediment to employees who want to exercise their right of self-organization (see section 5 of the Act).

31. The present case involves an unusually fluid work group, where it is difficult to pin down the composition of the bargaining unit, even though the unit description is agreed to. However, the "problem" for the union and its employee-supporters in this case is not as unique as it might first appear. On the contrary. Controversies of this kind are not at all uncommon (especially in the construc­tion industry). They arise from the way in which the union goes about organizing unrepresented workers, they are fuelled by unavoidable uncertainty and they have historically generated quite a lot of litigation - with all the cost and delay that that entails. Moreover, if such litigation has to happen before a vote is ordered, quite a number of votes will be postponed.

32. Now, of course, to some extent such uncertainty can be mitigated if there are well-known and easily-applied "rules of thumb" to avoid litigation and facilitate the processing of the hundreds of certification applications that the Board receives each year. The Board has had such "rules" for many years, and it remains to be seen how they should or must be modified in light of Bill 7. We will say more about that below. At this point we need only reiterate that the situation raised by this case is not unique, and the interpretation that flows from it may have significant practical ramifications for a broad range of cases, as well as for the Board's ability to hold the speedy representation votes contemplated by the statute.

33. On November 21, 1995, the Board, (differently constituted), established a "voting constitu­ency" for this application, based upon the agreed-upon bargaining unit description. The Board also directed that a representation vote be taken, so that the "employees" affected by this application (whatever their number) could indicate, by secret ballot, whether or not they wanted to be represented by the union. In so doing, the Board took into account: the material before it, its reading of what Bill 7 required, and the parties' agreement with respect to the bargaining unit description. The Board was satisfied that the union's material demonstrated the requisite "appearance" of support required by section 8 of the Act, so that the union's right to certification depended on a test of employee wishes.

34. The City disagreed. The City took the position that no vote of employees could be taken, that no vote of employees should be taken, and further that if a vote were taken, the vote should not be counted and the wishes of employees should not be revealed.

35. The parties did not agree on the composition of the proposed bargaining unit, so they did not agree on the list of eligible voters in the voting constituency. The City maintained that there were 2500-3000 persons who were "employees" in the bargaining unit entitled to participate in the vote, and apparently sent letters to those individuals (or many of them) advising them of the vote and urging them to exercise their franchise. The union's view was that the votes consisted of the 800 or so employees actually at work in the City's fall programs when the application was filed.

36. To avoid delay, the union agreed that a vote could be taken using the City's expanded voters' list. But the union's agreement was made without prejudice to its position that the City's list grossly overstated the number of employees in the bargaining unit and thus the number of eligible voters.

37. The union's position was that the City's list contained the names of a large number of persons who were no longer "employees" on the City's payroll. In the union's view, the City had "loaded the list" with a huge number of names in order to precipitate "front end" litigation over the list, and derail the quick vote procedure contemplated by Bill 7. The union points out that delaying the vote was in the employer's interest because in a bargaining unit like this one employee turnover would erode the union's base of support. And on a more general plane, if a union had to meet a test of correctness with respect to bargaining unit size, it would significantly impede any union's ability to organize employees.

38. In the union's view, most of the individuals on the City's second list were no longer legally connected to the bargaining unit at the time the application for certification was filed. They had left the City's employ by that time, without either a right or a firm date of "recall/rehire". Nevertheless, the union was content that the vote go ahead using the City's proposed voters' list, because the vote would be taken quickly, and at the very least, some of the employee status/voter eligibility issues might become academic if the disputed individuals had the opportunity to vote and chose not to do so. The vote itself would narrow the issues that had to be litigated.

39. On the union's reading of Bill 7, what was important was not the ultimate accuracy of its "estimate" of the number of employees in the bargaining unit, or the strength of its "appearance" of support based on that estimate. Determining the "appearance" of support was an essentially administra­tive exercise at the vote-ordering stage (in the sense that it could be done by the Board very quickly, based on the material filed, and without a hearing) - it required the union to assert through its filings, a plausible "showing of employee interest" or claim of support, that would ultimately be tested in a secret ballot vote. Once that administrative hurdle was overcome, the vote could be ordered, and what mattered was who actually was in the bargaining unit for voting purposes and the ultimate counting of ballots. Thus, if someone on the employer's expanded list chose not to vote, it might not be necessary to litigate his/her status in the bargaining unit or right to vote, because the certification result turns on the views of the majority of those actually voting.

40. On the union's reading of Bill 7, a person who chose not to vote could not be heard to complain about it, and it did not matter whether s/he was or was not an "employee" in the bargaining unit. It was not necessary to conclusively sort out the list before the vote was directed. The vote could go ahead using the City's list, and any challenges could be sorted out later. If a disputed individual turned up to vote, s/he could cast a segregated ballot. If s/he did not turn up to vote, it did not matter whether s/he was an employee in the unit, so that issue need not be the subject of debate. Holding a quick vote (and counting it if the number of segregated ballots would not affect the outcome) would reduce the scope of litigation.

41. There was also the possibility that - as a practical matter and "legalities" aside - one party or the other might be influenced by a definitive expression of employee wishes recorded in a secret ballot vote. That has been the Board's experience both before and since the passage of Bill 7. If the employees vote decisively one way or the other, the parties' appetite to litigate is often greatly diminished; moreover, a quick vote can sometimes have a symbolic effect which "clears the air" and may make it unnecessary to litigate some of the legal issues raised by the institutional parties in their pleadings. Sometimes those parties are content to abide by the wishes of the employees, because that is what makes "labour relations sense" regardless of the "legal" arguments that might be made. And of course, if it is clear that the union would lose the vote even on its view of the facts, it is unnecessary to litigate the parties' differences.

42. The representation vote in the instant case was taken on December 8, 1995. There were four separate polls in various parts of the city, with voting hours extending to 8:00 p.m. so that any individuals interested in the process would have an opportunity to exercise their franchise. Voters were invited to signify by secret ballot whether or not they wished to be represented by the trade union in a collective bargaining relationship with the City.

43. The turnout was quite low - only 342 persons. The union says that this low turnout reflects the casual workers' lack of actual attachment to the workplace, whatever their notional "employment status" might be, and points out that, in any case, everyone had an opportunity to vote, whether or not they chose to do so. We need not comment about that, save to note that the level of voter participation is as irrelevant here as it would be in a civic election or in a vote to elect the benchers of the Law Society of Upper Canada. The outcome does not depend upon a specific level of voter turnout.

44. In the result, a significant majority of the ballots cast in the representation vote were cast in favour of the union. In other words, all of the arguably eligible voters were given an opportunity to cast ballots, the ballots were counted, and the union "won" the vote.

45. The union is content with that result. The City is not.

46. On January 18, 1996 the Board held a hearing to receive the parties' representations with respect to the various issues raised in this case. The City and the union were both represented by counsel who took the Board, step by step, through the provisions of the Act said to be relevant. Both parties referred to sections of the Labour Relations Act, 1995 (i.e. as amended by Bill 7) that they claimed support their respective positions - although, of course, the parties have a very different view as to what those sections mean.

47. None of the employees (or potential employees) in the bargaining unit affected by this certification application has raised any challenge to the Board's decision to direct that a representation vote be taken to test their wishes. No employee has raised any question about the manner in which the vote was conducted. Nor does any employee or potential employee oppose the union's request that a certificate should issue based upon that representation vote. This case is a contest between the "institu­tional parties".

THE PARTIES' POSITIONS

48. The City argues that the representation vote should not have been ordered in the first place, because the trade union did not establish, in advance, that it represented at least 40 per cent of the employees in what the City claims to be the bargaining unit. The City argues that the results of that representation vote must therefore be disregarded.

49. The City argues that the 40 per cent threshold mentioned in section 8 of the Act must be satisfied before any vote could be ordered, and must be based upon the employer's evidence and representations on the "proper" employee list and "correct" composition of the employee bargaining unit. In the City's submission, the Board must establish the actual number of employees in the bargaining unit, before that threshold count is done; and if that requires a protracted inquiry because of the peculiarities of this work force, that is what the new system under Bill 7 requires. In the City's submission, the Legislature could never have intended that a representation vote could be triggered by a mere claim in the union's materials that it enjoyed the requisite 40% level of employee support - even where, as here, it is at least superficially plausible.

50. In the City's submission, the 40 per cent support must be substantiated in evidence not merely claimed or estimated in the union's application; and in the City's proposed unit, the union lacks the necessary level of support. The City asserts that a "percentage" requirement such as the one found in section 8(2) of the Act implies an objectively fixed denominator, and such denominator is determined with reference to the number of employees actually in the bargaining unit - not the union's estimate, or the number of employees that it claims are in the unit or some "appearance" of support in a "proposed" unit. The City argues that it does not matter that the union "won the vote", because the union and its supporters were not entitled to a representation vote in the first place. Nor does it matter that the union and the employees might have been entitled to a vote on the basis of the law as it was before Bill 7.

51. This last point requires a bit of explanation.

52. As we have already mentioned, this application was filed on October 10, 1995, but was eventually processed in accordance with the retrospective application of Bill 7, when Bill 7 came into force on November 10, 1995. The parties are agreed that it is Bill 7 that applies to this case. However, since both parties addressed argument to the former legal regime and how it was changed by Bill 7, it is interesting to note that if the application had in fact been processed under the "old rules" in effect at the time the application was filed (i.e. the law and practice as it was prior to Bill 7), the Board would have directed a representation vote.

53. It is unnecessary at this stage to go into detail about how the certification process worked prior to Bill 7 - or, indeed, how it worked prior to Bill 40 which made a number of modifications in 1992. It suffices to say that for many years, the Board has had a well-established approach to what was then a largely document-based method for ascertaining employee wishes. Among the Board's "rules of thumb" was the so-called "30-30 rule", whereby an individual who was not actively at work at the time the application was made would nevertheless be treated as being an employee in the bargaining unit if s/he had worked in the 30 days prior to the application and was expected to return to work in the 30 days following the application. (For the Board's rationale for this approach see cases such as: Sherman Sand and Gravel Ltd., [1978] OLRB Rep. May 459 at paragraph 24; Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273; or Flo-Con Canada Inc., [1989] OLRB Rep. June 594; and see generally Sack & Mitchell, Ontario Labour Relations Board Practice, Butterworths, Toronto, 1985, chapter 3). There were also "rules" (more accurately, "approaches" that had emerged from litigation and experience) respecting many of the common problems that arose from the more document-based certification system formerly in place (what to do with "stale" cards, misrepresentation issues, situations where an employee card was contradicted by a subsequent statement that the employee had changed his/her mind, etc.); and, it is worth noting that quite often, those "problems" themselves prompted the Board to seek the confirmatory evidence of a representation vote. Again the details are unimportant. The point is: had those "old rules" been applied to this application, the union would have been able to demonstrate about 47 per cent support, and the Board would have directed a representation vote.

54. In other words, it appears that the City's argument would not have been sustainable under the "old system" in effect at the time the application was filed; or to put the matter another way: the City is saying that the vote-based certification process established by Bill 7 may now make it harder to get a representation vote than it was before. And, on the City's view of the law, there may be quite a number of situations in which a vote could not happen quickly, let alone within the 5 days set out in Bill 7.

55. We will return to these operational concerns later, because it is clear that the proposed interpretations of Bill 7 raised in this case are intertwined with practical issues concerning the applica­tion, administration and overall efficacy of the new statutory scheme.

56. The union does not read the new statute the way that the City does. The union submits that the Board properly applied the new statute to the circumstances before it, properly focused on the information in the union's application, and properly directed that a vote be taken to give every employee an opportunity to signify, by secret ballot, whether or not s/he wished to be represented by Local 79 for collective-bargaining purposes. The statute requires that the union organize an "appropriate bargaining unit", and that is what the union did. In order to get a vote, the statute requires that the union assert and support a showing or "appearance" of significant employee interest, and that is what the union did (as it turned out, among half the employees actually at work on the application date - although the union would not have known the precise number). The statute requires that a union ultimately establish support by winning a representation vote of employees in the bargaining unit; and the union did that too. In the union's submission: it met the so-called 40% "appearance", it won the vote, and it is now entitled to certification under section 10 of the new Act.

57. In the union's submission, the quick vote procedure - now mandatory in every certification case - is a familiar democratic device that employers have demanded for years, and that the Legislature has recently embraced as a means to give employees "the last word" over the certification result. In this regard, compulsory representation votes are part of a Bill 7 package that enhances employee participa­tion in workplace collective bargaining decisions, and includes such devices as compulsory strike votes before a work stoppage may be called, and compulsory ratification votes before a collective agreement may bind the employees covered by it. In each of these settings the legislation has been modified so that employee wishes determine the result; and in the union's submission, that is the thrust of the new certification provisions as well. The union urges the Board to give effect to the employee wishes recorded in the representation vote taken in this case.

58. In the union's submission, the City's reading of Bill 7 would make it impossible to conduct quick votes in a substantial number of cases, and could therefore not have been the Legislature's intention; moreover, it would open the door to situations, like the present case, where the wishes of the employee voters could be completely disregarded - even though a large number of them want to be represented by the union. The union points out that, on the City's reading of the statute, in order to create delay and avoid the "quick vote" mandated by Bill 7, all an employer has to do is assert that the bargaining unit is bigger, or the number of employees is greater, or the identity of the employees is different than the union claims is the case - even if the union's position is "reasonable" as it is here. On the City's theory, such disputes would then have to be resolved before any vote could be ordered - and in this case that could take months. It certainly could not be done quickly even in simple cases, nor is there any statutory disincentive to deter employers (like the "bar threat" applicable to unions - see below) from taking tactical positions of this kind in order to delay the vote. And whether or not there is merit in a particular employer's position, this is the kind of problem which is likely to arise in a large number of cases. Yet the statute contemplates that a 5-day vote will be the norm.

59. In the union's submission, it could not have been the Legislature's intention to make representation votes harder to get than they were before. On the contrary. The whole thrust of the amendments was to shift the focus to employees, and provide a speedy administrative mechanism to canvass employee wishes. The union asserts that if a certification application discloses on its face a plausible claim - an "appearance" - of sufficient support, the Board should direct a representation vote to test employee wishes, and sort out any "employee status issues" as a question of voter eligibility. The vote can be directed on the basis of an administrative assessment of the material accompanying the application; and both the quasi-judicial determinations and their consequences can be postponed until later. The new system shifts the focus to employees and a representation vote: employees are given a device that allows them to "have their say" even though it may later turn out that the certification application is dismissed for one reason or another.

60. To summarize, then, the main issues raised by the parties are these: did the Board err in this case when it directed a representation vote to test the wishes of employees with respect to trade union representation; and can the Board now certify the union based upon the evidence of employee wishes registered in that representation vote? In order to address those issues, the Board must interpret the new certification provisions created by Bill 7, and decide how the "quick vote" mechanism envisaged by Bill 7 can, and should, be implemented. And, en route to the ultimate result, the Board may also have to address quite a number of practical and legal questions, that are relevant not only in the instant case, but also for the hundreds of other certification applications that come before the Board each year.

61. These are some of the "operational issues" that we mentioned above, and that are highlighted by this case.

62. If the Board concludes that it must analyze the list supplied by the employer in order to make some threshold quasi-judicial determination in advance of ordering the vote, how does it do that within the time prescribed, and without a hearing? What "test" should be applied to determine who is an employee in the bargaining unit for certification purposes? Is the relevant employee grouping confined to those individuals actively at work in the bargaining unit at the time the application is made - literally "in" the proposed bargaining unit when the union files its application, and around at the time that the workplace vote is to be held? Or should employment in the bargaining unit for certification purposes turn on a broader "test" such as the 30-30 rule, or some even more elastic notion?" How does the Board address the development or application of such "test" if the parties disagree generally or in particular circumstances? If the inquiry embraces persons not actively at work (on layoff, for example), how does (or should) one even notify those persons of the issue concerning them within 5 days, let alone resolve it? How does the Board choose between competing assertions of fact? And how does the Board weigh the alternatives urged upon it in light of administrative efficacy and concrete conse­quences; for as Reid, J. observed in Hughes Boat Works, 79 CLLC ¶ 14,230:

It must be a matter of real significance to a tribunal whether a possible interpretation leads to practical or impractical consequences in the field of activity it is called on to supervise. I do not suggest that the consequence should be permitted to confute the clear meaning of the statute. Where, however, one of two possible meanings leads to consequences that a tribunal sees in light of its experience and expertise as impractical, I see no reason why the tribunal should not reject it.

63. Finally, when interpreting or applying the new certification mechanism, how does the Board accommodate traditional "labour relations values" and collective bargaining concerns which clearly have not been modified by Bill 7? Obviously Bill 7 has changed the way in which employee wishes are tested in certification applications, substituting a compulsory representation vote for the card-counting process that was in place before. However, there is no indication that the Legislature intended to turn back the clock, or abandon values and objectives which have animated the interpretation of the statute for 50 years. Nor should the Board ignore this labour relations perspective.

64. We do not think that the analysis called for in this case can be undertaken in the abstract (with a copy of a dictionary in one hand and Dreidger on Statutes in the other). It is important for the Board to keep in mind the real world collective bargaining to which the statute applies and the realities of the administrative process it is designed to regulate. It is also important to remember that the interpretation offered by a party in a particular case is more likely to be shaped by short-term tactical advantage than what is sensible labour-relations policy. Yet the Board has a responsibility to take these broader objectives into account. Thus, when the Board is faced with alternative readings of the statute, it is of real significance whether the options proposed: will facilitate or inhibit employee choice with respect to collective bargaining; will encourage or discourage litigation; will aggravate or moderate adversarial behaviour that can poison the work environment regardless of the outcome of the case; will expedite or retard the resolution of time-sensitive certification questions; will complicate or simplify the regulation process; will increase or decrease the cost to the parties and the public; will minimize or increase the potential for improper employer interference; and so on.

65. The certification process is a critical part of the statutory scheme, and lies at the heart of the Board's specialized jurisdiction. Accordingly, when implementing the new certification mechanism, the Board must strive for an interpretation that is faithful to both the statutory language and the labour relations context under review.

66. With these observations, then, we turn to the portions of Bill 7 that regulate the certification process. Like the parties in argument, we will begin with a brief overview of the new statute, then review its sections one by one, relating them to each other and to what went before. In our view, the new certification process can be more easily understood when compared with the process that preceded it. The old statutory formula provides some useful interpretive clues when one is analyzing the new statutory language. (This statutory material is reproduced in Appendix A.)

THE CERTIFICATION PROCESS - IN GENERAL

67. The general scheme of the Act is quite simple and, for the most part, was not changed by Bill 7. A trade union can become certified as the exclusive bargaining agent for an "appropriate bargaining unit" of employees, when a majority of those employees indicate that they want the trade union to represent them. The Act replaces the "recognition strike" with a peaceful method of awarding "bargaining rights" based upon employee wishes. The Board administers that process.

68. The statute guarantees employees the right to join a trade union and organize themselves for collective bargaining purposes. However, employees are not entirely free in this regard. They must organize themselves in groupings that the Board determines to be "appropriate bargaining units" -thereby injecting a public policy component into the determination of bargaining structure (that is, the number and "shape" of the bargaining units in an enterprise). Employees can join a trade union or associate as they wish, but for collective bargaining purposes they are grouped in "appropriate bar­gaining units". This limitation on the "shape" of employee self-organization has been part of the statute for many years, but means that there may be some uncertainty on the employees' part about how they should go about organizing themselves.

69. Once the appropriate bargaining unit is settled, certification depends upon the union's ability to demonstrate the support of the majority of employees in that unit. Upon establishing majority support, the union is "certified": it is granted a "licence to bargain" on behalf of the employees in the bargaining unit, with a view to achieving a collective agreement, that (after Bill 7) must then be submitted to employees for ratification. Thus, a union must initially demonstrate majority support in order to become the employees' bargaining agent, then it must later demonstrate support again for the results of the bargaining exercise. There is an analogous "decertification" process, which can be triggered in a timely way, if the union loses the support of employees (see section 63 of the new Act).

THE CERTIFICATION PROCESS BEFORE BILL 7

70. Prior to Bill 7, most certification applications were decided exclusively on the basis of documentary evidence of membership tendered with the application - that is, cards signed by employees and indicating that they had applied to become union members (much like the cards filed in this case). Under the old system some 80-90% of certificates were granted on the basis of union cards alone. Representation votes were a residual mechanism, that was used only where the union's card count did not establish a clear majority (i.e. more than 55 per cent), or where there was something in the circumstances of the case that persuaded the Board to seek the additional confirmation of a secret ballot vote. Such circumstances included unreliable or defective documentary evidence, intimidation or misrepresentation in the collection of the union cards, the filing of additional documents from employ­ees (usually in the form of a "petition") indicating that despite having signed cards they had changed their minds, etc. In the former system these issues often led to expensive and time-consuming litigation, even if the ultimate result was to certify the union based upon its card support alone. The Board's reports are replete with cases addressing questions of this kind.

71. In most cases, though, certification was a largely administrative process, that involved comparing an employee list and specimen signatures supplied by the employer, with membership cards submitted by the union along with its application. The Board did that comparison, then did a simple arithmetic calculation to determine the result. If the union had more than 55 per cent card support in the "appropriate" bargaining unit, it was "automatically" certified. If it had less than 40 per cent support, the application was dismissed. And if the level of support was somewhere in between 40% and 55%, the Board would order a representation vote. It was a mechanical process that reduced the opportunity for employer interference with employee choice (because the card signing was done in advance, without the employer's knowledge), and in most cases was relatively quick.

72. However, as we have already mentioned, this document-based system was by no means free of litigation. Not only were there occasional difficulties with the documents themselves, but it was relatively easy to cause some kind of contest about the perimeter of the bargaining unit, the employee lists, misrepresentation, misunderstanding allegedly improper behaviour, etc., then demand a hearing to establish those assertions. And once that happened, the expedition demanded by the circumstances went right out the window - regardless of the ultimate disposition of the case.

73. The fundamental issue remained the same: do the majority of employees in the bargaining unit want the union to represent them. But the answer to that question was sometimes lost in layers of litigation - including a variety of disputes about defective or contradictory union membership documents and whether those documents reliably indicated "what the employees really wanted". In recent years such cases were becoming increasingly common. That is why one of the features of Bill 40 was designed to restrict the filing of employee "petitions", thereby reducing litigation concerning the "voluntariness" of such documents and whether the employees really had changed their minds about the union. (On the need for expedition in certification matters see: Nick Masney Hotels (1970), 70 CLLC ¶ 14,020 per Laskin, J.A.)

74. This document-based/card-counting system of certification was the norm in Ontario for many years. However, there has always been an active debate in the labour relations community about the reliability of this mechanism, and whether counting cards was the best way to test employee choice. The details of that debate need not be outlined here. (For a good summary of the arguments for and against see: Paul Weiler Reconcilable Differences, New Directions in Canadian Labour Law, Carswell 1980, pages 37-49 under the heading "Membership Cards Versus Representation Ballots".) It suffices to say that there are jurisdictions where representation votes are a more prominent feature of the process (Alberta, Nova Scotia, U.S.A.), and it was argued that the Ontario statute should move in the same direction. That is the change that was effected by Bill 7 in November 1995. In Ontario, there is now a "vote in every case" (to borrow the catch-phrase used in the community debate) - which does not mean, literally, that there is a vote every time a certification application is filed; but does mean that winning a representation vote is the only way that a union can now achieve certification as the employees' bargaining agent. In this regard, Bill 7 is quite different from the old document-based system, which mandated votes only in particular, somewhat limited situations (see the former statutory language reproduced in Appendix A).

75. Under the "old system", the Board was required to make a series of specific determinations, in a specific sequence:

• determine the appropriate bargaining unit (old section 6 in the Appendix)

• ascertain the number of employees in the bargaining unit on the applica­tion date (old section 8(1), (2))

• ascertain the number of those employees who were union supporters based upon membership cards to which were applied specific evidentiary rules (old section 8(1)(b) and 8(4) - (7))

• direct a representation vote if the Board was "satisfied" that at least 40 per cent of the employees supported the union (old section 8(2) and 8(3) or if there was some doubt about the reliability of the evidence sug­gesting over 55% support)

• certify if the union had a clear unequivocal majority (more than 55 per cent on a card basis) or, alternatively, if the union won a representation vote (old section 9(1))

The Board worked through the sequence, step by step, following the pattern prescribed in the statute. In each step the Board was required to make specific quasi-judicial findings which produced a prescribed result.

76. However, generally speaking, the old statute itself did not specify the content of pleadings or the kind of information that was to be put before the Board. Nor did the old statute set time limits within which the Board's decisions were to be made. Those matters were generally left to the Board's discretion under its rule-making authority, or were canvassed by the Board in the ordinary course, holding hearings where it was necessary to gather the necessary evidence.

77. An alternative mechanism under the old Act was the so-called "pre-hearing vote process", that was triggered when a union requested that a "pre-hearing vote" be taken (see old section 9 in the Appendix). As its name suggests, the pre-hearing vote procedure was intended to postpone litigation on all issues until after a representation vote was taken.

78. When a pre-hearing vote request was made, the Board had a discretion to determine a "voting constituency" - an employee grouping for vote-taking purposes. The voting constituency was a purely administrative construct for the purpose of balloting. It was not necessarily an "appropriate bargaining unit" - although, of course, the Board tried to make the voting constituency congruent with the possible bargaining unit alternatives, in order to make the vote as useful as possible.

79. The Board was then obliged to examine "the records of the trade union and the records of the employer" [old section 9(2)] to see whether there was an appearance (not a "finding") of 35 per cent support in the voting constituency (not the ultimate bargaining unit). If there was such an "appearance” of 35 per cent support on the basis of the material filed (and there almost always was, because when determining an "appearance" the Board usually adopted the position most generous to the applicant on an "assuming without finding basis") the Board would direct a representation vote (see again old section 9(2)). However, the Board could not give effect to the results of that vote until the Board subsequently determined what the appropriate bargaining unit was, made a concrete finding (as opposed to an "appearance") that the union actually did enjoy the necessary threshold level of support in that unit (not the voting constituency this time), and dealt with any other issues in the case. The employees' wishes did not necessarily control the result (see section 9(4) of the old Act). Indeed, the employees' votes might not even be counted.

80. The pre-hearing vote process was sometimes referred to as a "quick vote" procedure, but, in practice, the vote was not particularly fast - at least by Bill 7 standards. The administrative procedures then in place called for a workplace meeting to examine the records of the union and the records of the employer to settle a voters' list. The vote was then scheduled to take place a number of days after that, so that in practice, the pre-hearing representation vote would not normally take place until 25-31 days after the application was filed. The ultimate result might be further delayed depending upon the length and impact of any subsequent hearings. And because there was a relatively long lead time between the application and the vote, there was an opportunity for employer reaction and employer communications to its employees, which themselves could become the subject of charges and controversy.

81. The pre-hearing vote model postponed litigation until after a vote was taken. But it did little to narrow the issues, discourage challenges, or guarantee a quick result; and for that reason, it was not used very much.

THE SCHEME OF THE ACT UNDER BILL 7

82. Bill 7 was introduced into the Legislature in October 1995 and became law about a month later on November 10, 1995. Much of the Bill was directed to repealing features of "Bill 40". But in addition, Bill 7 made a number of other changes, including a revised certification process.

83. The new scheme no longer permits certification based on membership cards alone (except perhaps in the special circumstances addressed in section 11 - see Appendix). Nor did the Legislature return to the pre-Bill 40 "hybrid model" where a representation vote could be triggered if card signers later filed a voluntary change-of-heart "petition". Under Bill 7, employees do not have to file a petition with the Board to signify a change of heart about the union or to prompt the Board to direct a representation vote. A representation vote has now become the exclusive method of testing employee wishes (apart from section 11) and is a requirement in every case.

84. However, in opting for "a vote in every case", the Legislature has not simply reverted to the former process for obtaining and conducting a representation vote. Instead, the Legislature has created an entirely new and quite different mechanism, relying on very quick 5-day votes, to measure the employee wishes, while at the same time limiting the employer's opportunity to improperly interfere with the employees' freedom of choice.

85. The secret ballot replaces the signed membership card as the means of testing the employees' appetite for collective bargaining. But like the previous card-based model, the new system is designed to avoid a protracted "campaign" where the union and employer compete for the loyalties of employees. Because of the tight time frames, there is less opportunity for behaviour that could attract unfair labour practice charges (quite a number of these are filed each year and again see: Weiler: "Membership Cards vs. Representation Votes" mentioned above). The new system makes it very clear that time is of the essence: it is not just "a vote in every case"; the statute contemplates a "qttick vote in every case".

86. The 5-day time-frame mentioned in the statute is the most critical characteristic of the new certification scheme. It not only defines the nature of the process, it also requires the Board to develop new administrative structures in order to meet the 5-day target. Indeed, it is a target which we think the Board is required to meet if it can; moreover, it is a target which the Legislature must have intended that the Board could meet in most cases, applying the words of the new statutory scheme. The new certification process reflects a legislative trade-off: the elimination of the (relatively) quick card counting model for certification, and the substitution of the quick vote model instead.

87. There are considerable challenges associated with designing and implementing an "instant vote model" in a large province like Ontario, where hundreds of certification applications are filed with the Board every year. Aside from the logistics of getting returning officers and ballot boxes to appropriate locations around the province, there are quite a number of matters that have to be addressed in the short period leading up to the vote. Among these are the following:

(i) the application must be delivered to the employer;

(ii) the employer must receive some time to reply to the application;

(iii) notice to employees of the application must be given;

(iv) the Board must decide whether to direct the taking of a vote and under what conditions (e.g. which ballots, if any, should be segregated? If ballots are segregated, should any or all of them be counted?);

(v) if a vote is directed, the Board must decide on the appropriate voting constituency;

(vi) a decision directing the vote must issue and be received by the parties;

(vii) other vote arrangements must be made, including the date of the vote, and the number, location and hours of the polls;

(viii) notice must be given to employees of the taking of the vote and other vote arrangements;

(ix) a voters' list should be prepared;

(x) other issues between the parties, such as the description of the bargaining unit, should be resolved (with the assistance of a Board officer) to facilitate the counting of the ballots.

88. This list is not exhaustive, but is sufficient to illustrate the magnitude of the Board's administrative task. All of these matters have to be accomplished with exceptional and unprecedented speed. What used to be done in 4-6 weeks must now be done in five days.

89. The 5-day time limit defines and colours the whole process. It is a critical element in the new certification mechanism, and an important key to understanding how that mechanism is supposed to work - indeed how it has to work if the time limits are to be met. Some of the things that the Board had to do before simply do not have to be done anymore because the new system does not require them; moreover, if the Board has to choose between a reading of the statute that will facilitate 5-day votes in the ordinary course, and one that will not, we think that the Board should opt for the interpretation that gets the job done in five days. That is what the statute contemplates.

90. Bill 7 introduced a number of features designed to streamline the processing of certification applications and avoid litigation. The relevant provisions of Bill 7 read as follows:

91. (8) An application for certification may be withdrawn by the applicant upon such conditions as the Board may determine.

(9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.

(10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.

(11) The trade union shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

8. (1) Upon receiving an application for certification, the Board may determine the voting constitu­ency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individu­als in the voting constituency.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

10. (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.

As will be seen, the certification process established by Bill 7 looks quite different from what went before (compare these provisions with sections 6, 8, 9 and 9.1 of the former Act, reproduced in Appendix A).

91. The quick-vote model established by Bill 7 begins at section 7 of the new Act under the heading "Establishment of Bargaining Rights by Certification". The opening portion of section 7 contains timeliness rules which were not changed by Bill 7 and thus warrant no further comment. Sections 7(8) - 7(10) create a series of "bars" which will be discussed later.

92. The operative provisions of the new certification process start at sections 7(11) - 7(14). Those sections dictate in a quite unprecedented way, precisely how the certification material will be handled and what it must contain. Section 7(11) shifts the onus for serving the application for certification to the union (under the old scheme the Board effected service). Sections 7(12) - 7(14). are designed to codify and simplify the record, so that the Board can act within the 5-day time limit prescribed later on. These pleading and service rules were not in the statute before.

93. Section 7(12) requires an applicant union to provide two specific pieces of information: a written description of the proposed bargaining unit; and an estimate of the number of individuals in that unit. The statute recognizes that the unit that the union "proposes" may not ultimately be found to be appropriate, and further, that the union may not know the precise number of employees in the unit. At this stage, though, all that is necessary is a "proposed" unit and an "estimate" of the number of individuals in it. This must be accompanied by a list of union members and evidence of their status as such - for example, signed membership cards of the kind that were filed in this case (see new section 7(13)).

94. Section 7(14) contemplates that an employer may disagree with the union's proposed unit description. If it does disagree, the employer has only two days to provide the Board with its own written description of its proposed bargaining unit. No other kind of dispute is envisaged nor representa­tion requested, and the employer must crystallize this kind of dispute very quickly.

95. We must reiterate at this point: section 7 does not mention any other kind of dispute or filing from the employer at this stage. Specifically, section 7 neither requires nor contemplates that an employer will file a list of employees in the union's proposed unit, or in its own proposed bargaining unit. All that the statute mentions is the bargaining unit description, and even that is optional.

96. The employer is not invited to supply specimen signatures or make its own estimate of the number of employees, or challenge the estimate supplied by the union. These were features of the old system and some of the material filed in this case (prior to Bill 7), reflects that history. But this information is not mentioned in new section 7. Nor is there any reference to the "records of the employer" with which the "records of the union" must be compared, as there was under the old section 9(2) pre-hearing vote process. And, by way of comparison, there is nothing like section 63(7) of the new termination provisions, which contemplate that the Board can seek further information to determine the number of employees in the unit. The new termination provisions contemplate a pre-vote enquiry into the composition of the bargaining unit. The new certification provisions do not.

97. Under the new certification provisions, the employer's pleading requirements are quite narrow, and the statute does not require the Board to demand more. Moreover, having stipulated these specific procedural/pleading requirements, it seems odd to suggest that the statute prescribes only half of the procedural code.

98. If section 7 tells the parties what information they must put before the Board for certification purposes, section 8 tells the Board what to do with it.

99. Under section 8(1), upon receiving the certification application, the Board is given a discretion to determine a voting constituency that will be used for the purposes of a representation vote. In defining that voters' group, the Board must take into account the bargaining unit description proposed by the union in its application for certification, and the description, if any, proposed by the employer. The Board is not obliged to adopt either proposal, and in deciding what the voting constituency will be, the Board cannot hold a hearing. In this regard, it is interesting to note that the Board is not merely relieved of any obligation to hold a hearing (cf. section 99(3) of the Act); it is positively directed not to do so. New section 8(4) makes it clear that, at this stage, the Board is making decisions based upon the material filed, so that it can get on with the vote quickly.

100. In crafting a voting constituency, the Board takes into account the descriptions proposed by the parties, because those proposals can provide useful information about the potential parameters of the appropriate bargaining unit (see new section 9 reproduced in the Appendix). The Board may choose to direct a vote in one or other of the employee groupings ("proposed units") suggested by the parties, and where, as here, the parties agree on the bargaining unit description, the Board will likely accept that agreement, and the definitions of the voting constituency and the bargaining unit will turn out to be the same. However, when the parties' proposals differ, the Board may also try to fashion a voting constituency that will best accommodate the likely bargaining unit possibilities, so that employees' wishes can be tested in a single vote. For example, if the union proposes a bargaining unit covering one location and the employer proposes a bargaining ttnit encompassing two locations, the Board may define the voting constituency in terms of the larger grouping, but segregate the ballots from each location for later consideration, depending upon what the appropriate bargaining unit turns out to be. The statute contemplates that the bargaining unit perimeter will not be determined at the outset.

101. In some respects Bill 7 is reminiscent of the old pre-hearing vote process: the Board defines an employee grouping for voting purposes, that may or may not ultimately turn out to be an appropriate bargaining unit. The voting constituency is an administrative device fashioned for the purpose of vote taking. However, unlike old section 9(2), new section 8 does not contemplate that any threshold test of support (be it a "finding" or mere "appearance") will be made with respect to this voting constituency, nor does it refer to some comparison of the records of the union and employer. We shall have more to say about that below.

102. The Board may well want a list of employees in the voting constituency so that it can later make vote arrangements. It may also want information about the employees so that it can fix voting times, print the necessary number of ballots, and so on. But the statute does not mention filings of this kind and the number or list of employees does not enter into the statutory calculus of what the voting constituency will be. Nor at this stage of the process, has any bargaining unit necessarily been determined, because (for non-construction bargaining units) that is done under section 9 and may require a hearing of the kind prohibited by section 8(4). At this stage, all that the Board has before it are proposals about the bargaining unit contained in the application and response (if any), which it uses to fashion a voting constituency, so that it can get on with taking the vote in the 5 days prescribed in the statute.

103. The critical issue dividing the parties in this case, is how to read section 8(2), which we will reproduce again:

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individu­als in the voting constituency.

(emphasis added)

104. The syntax of section 8(2) is not a model of clarity, but the comparison or calculation that the Board is required to do before ordering a vote, can be put, schematically, this way:

To direct a the number of individuals on vote vote the union's list of members provided per section 7(13)

___________________________________________= at least 40% "the [number of] individuals in the

bargaining unit proposed in the

application for certification"

[the exact statutory language]

105. The Board determines an appearance of support on the basis of the material before it, using this formula.

106. The numerator is easy enough. It is determined [(per section 8(3)] by counting the number of names on the "list of the names of the union members in the proposed bargaining unit" [the words of section 7(13)] which section 7(13) requires the union to submit. Moreover, it seems that pursuant to section 8(9), none of this information can be challenged - which presumably means that the Board must accept both the sufficiency and veracity of the membership documents, and the other "information" asserted with the application (i.e. that it is a list of names of persons who are union members in the bargaining unit). In other words the "information" mentioned in section 8(3) and 7(13), and not subject to challenge under section 8(9), itself includes an aspect of bargaining unit composition. Be that as it may, it seems clear that the numerator is based on the union's claim/pleading and that information cannot be challenged.

107. According to the union, the denominator is equally easy to determine. One needs only look at the "estimate of the number of individuals in the unit" [the words of section 7(12] which one finds -and must find - on the face of the certification application form itself. In other words, to find "the number of individuals in the bargaining unit proposed in the application for certification" [the section 8(3) words] all one has to do is look at the application to see what actually is "proposed" in it; and if one looks at the application, one will find there "an estimate of the number of individuals in the unit" [the section 7(12) words]. It is that number which is used for the purposes of directing a vote under section 8(2).

108. The union submits that the phrase "proposed in the application for certification" refers to both the bargaining unit description and the estimate; and points to the information that the union is required to provide under section 7(12). Counsel for the union asks: why require such information in such similar language if it is not to be used in section 8(2)? And if the employer's estimate were thought to be significant for some reason, why does the statute not ask for it?

109. In the union's submission, what the new system envisages is something a little like (but quite different from) the old pre-hearing vote mechanism. A vote is triggered by an appearance of support based upon the union's pleadings and supporting material. The vote is taken within a voting constituency and the ultimate bargaining unit is sorted out later. Those are similarities. But the differences are important. In the new system the employee wishes are more likely to be determinative of their right to engage in collective bargaining because there is no "second check" like old section 9(4), which used to require the Board to go back and recalculate the union's level of card support after the bargaining unit was determined and before the vote could be given legal effect. There are no "section 9(4) words", just as there are no "comparing of records words" of the kind found in the former Act.

110. Under the old pre-hearing vote scheme, employees might opt overwhelmingly in favour of union representation, but their votes would not "count" if the union had miscalculated the level of support (i.e. misjudged the bargaining unit perimeter or the number of employees in the unit) or if there were defects in the documentary evidence submitted to show the "appearance" of support. Under the old scheme a workplace vote could be directed, the employees could register their views and vote overwhelmingly in favour of the union, and those views might be totally disregarded. In what was then a predominately card-based system, card counting (and all the problems that went with it) was a prominent feature, even in the pre-hearing vote option where the employees had an opportunity to register their wishes collectively and unequivocally at the ballot box. IF the union missed the mark on the threshold requirement, it did not matter what the employees voted.

111. In the union's submission, this consequence is not possible under the new scheme, which elevates employee wishes and voting to a more prominent position; moreover, section 8(9) completely eliminates membership evidence challenges which might have formerly been subject to post-vote litigation. On the union's theory section 8(9) makes perfect sense because, in the new scheme, it is the ballot not the membership card which ultimately determines the certification outcome. Similarly, the employees' opportunity to have their choice determine the certification outcome is not prejudiced because of the union's lack of information or inability to accurately determine the size of the bargaining unit.

112. The City proposes a different interpretation. The City says that the 40 per cent threshold requires the Board to determine the actual number and identity of the employees in the bargaining unit, whose names can then be compared to the list of union members supplied by the union. The description of the bargaining unit can perhaps be gleaned from the union’s proposal found on the face of the certification application. But the bargaining composition – the number and identity of the persons in the unit – is an independent variable which must be determined separately and objectively, based on all the relevant evidence. The phrase “proposed in the application for certification” in section 8(2) only modifies the words “bargaining unit”. To do the 40 per cent calculation, there has to be an accurate count of employees in the actual unit with which the membership cards can be compared.

113. The City argues that the Board is required to analyze the City’s proposed list of employees, compare it with the union’s information, and sort out any challenges in order to determine whether the union has demonstrated the required level of support in that unit so as to warrant taking a representation vote. In the City’s submission, the 40 per cent hurdle is a mandatory screening device, designed to avoid the disruption of a vote where the union has not first established that it represents a significant core of the workers in the bargaining unit. That hurdle must be overcome before a vote can be ordered. In the City’s submission the Legislature could not have intended that it could be overcome by a mere “pleading” or “claim” of support.

114. On this reading of section 8, the Board in this particular case would have to determine whether the bargaining unit is around 300, or 900, or 3000 employees before doing the calculation which the City says is required, and before holding a vote. Furthermore, if the City is right about how Bill 7 is to be interpreted, the Board would have to do that kind of analysis whenever an employer’s assertion of bargaining unit size (perimeter or composition) differed from the union’s “estimate” in any significant way. And for the reasons we have already mentioned, that could be a significant number of cases either because the union’s “estimate” is indeed wrong or arguably wrong, or because the employer says that it is wrong and precipitates a “front end dispute” by filing a different list.

115. We agree that section 8(2) is part of an overall scheme that includes checks and balances. But we do not read sections 8(2) and 8(3) as the City does. Nor do we think that the City's reading is the more probable one, having regard to other provisions of the statute and other labour-relations values - including administrative efficiency. In our view, the union's proposed interpretation is to be preferred because:

• it is more consistent with the words used by section 8;

• it is more in keeping with the administrative exercise contemplated by section 8;

• it makes it more likely to achieve the 5-day vote target prescribed in section 8 and,

• it discourages "front end" litigation cost and delay which are undesirable in their own right and which the statute seems designed to minimize.

116. All of these factors point in the same direction.

117. In our view the words "individuals in the bargaining unit [not employees be it noted] proposed in the application for certification" in section 8(2) direct the Board's attention to the application for certification filed by the union and the information contained in it - in particular, the union's estimate of "the number of individuals in the unit" required by section 7(12). The application for certification is the source of information for both the number of individuals in the union's proposed unit and the unit description (i.e. the two things that section 7(12) requires the union to specify). An application filed in accordance with section 7 contains all of the information necessary to make the calculations contemplated by section 8. The Board uses that information together with the list and membership documents filed under section 7(13) to verify the appearance of support, and direct that a representation vote be taken among the individuals in the voting constituency.

118. The whole thrust and focus of the language of section 8(2) is on the union's application, to which the words of the section direct the Board's attention. The Board is not directed to look anywhere else, nor do the filings mentioned in sections 7 or 8 require further information on the composition of the bargaining unit. There is an obvious parallel between the words describing the information required in sections 7(12) and 7(13) and the words describing the use to which such information is put in sections 8(2) and 8(3). And section 8(3) itself is quite specific: the determination is made with reference only to the union's application [which contains the union's proposed description and the number of individuals in it, per section 7(12), and the membership material provided under section 7(13)]. Why would section 8(2) require the Board to look somewhere else?

119. We read section 8(2) in this way for a number of reasons, apart from the parallel language of sections 7(12) and 7(13) on the one hand, and sections 8(2) and 8(3) on the other.

120. As we have already noted, Bill 7's section 8 neither requires nor refers to the "records of the employer" as the old pre-hearing vote procedure did (compare old section 9(2)). Unlike old section 9(2), there is no stipulated exercise in which the Board conducts "an examination of the records of the trade union and the records of the employer". There is no mention of the "employer's records" at all. Section 7(14) gives the employer an option to respond if it disagrees with the proposed bargaining unit. But, no other response or information from the employer are contemplated.

121. In our view these omissions are deliberate. When considered together with the parallel wording of section 8(2), it suggests that the Board is to examine the information provided by the union in the certification application itself. There is no requirement for an employee list or specimen signatures as there was under the old system, because of course, it is the vote not the documents which determines the outcome. The fact that the Board may request such lists for the purpose of later making vote arrangements does not make it a statutory - let alone jurisdictional - requirement when deciding what the voting constituency will be or whether to order a vote in the first place.

122. The City's theory requires the Board to know what the bargaining unit is, so that it can establish the base with which the union's card support is compared. But it is only by accident that the Board in this case knows what the unit description will be (i.e. assuming that the Board accepts the parties' proposed description, as it usually does). In many cases the Board will not know what the unit perimeter is at that stage - that is why it is fashioning and working with voting constituencies. The bargaining unit description is not determined until one gets to section 9, and the ultimate composition of the unit need not be determined until section 10 when the Board has to decide whether "more than 50% of the ballots cast in the representation vote by employees in the bargaining unit, are cast in favour of the union". It is under section 10 that the Board has to confront and finalize who is an employee in the bargaining unit.

123. Under section 8 the Board is dealing with voting constituencies, and it seems odd that it might be required to make some early determination of the bargaining unit - especially since at that stage it cannot hold a hearing to do so. Nor is it apparent why the Board should accept the union's proposed unit for calculation of the percentages but not the union's estimate of the number of employ­ees - always bearing in mind that the Board will later have to determine the actual bargaining unit and the actual employee list to confirm voter eligibility and give effect to the results of the vote.

124. The terms of sections 8(4) and 8(5) also point in favour of the union's proposed interpreta­tion.

125. It is perfectly plain that in the ordinary course, the Board is expected to process some hundreds of certification applications each year and to hold a representation vote anywhere in Ontario within five days after the application for certification is filed. For each case it must accomplish the list of tasks mentioned in paragraph 87 above, and finalize vote arrangements within 5 days. Accordingly, any scrutinizing of documents or threshold assessment that the Board is required to make under section 8(2) or 8(3), must be one that can be accomplished almost immediately; moreover, in making those assessments, the Board must not hold a hearing to receive the parties' representations (see new section 8(4)). Given those time constraints and the stipulation that the Board must not hold a hearing, it is not at all surprising that the appearance that the Board is required to ascertain, is based solely upon the union's application and supporting material, and is a largely administrative exercise (in the sense described in paragraph 39, above).

126. In other words, the content of the inquiry contemplated by the statute under section 8(2) is constrained and illuminated by all of the provisions of sections 7 to 10, which must be read together to give a sense of how the process is intended to work - indeed, the only way that it can work within the time constraints imposed. The statute simply does not contemplate the kind of inquiry or fact-finding proposed by the City, nor in most cases could it be accomplished within a day or two.

127. The City's proposed interpretation means an end to 5-day votes in a substantial number of cases. The quick vote envisaged by the statute simply could not happen. The City's proposed interpreta­tion also means both prejudicial delay in time-sensitive certification situations and an opportunity for employer interference which the quick vote is designed to limit. And without in any way suggesting that the City has done anything improper in this case, that interpretation means that an employer seeking tactical advantage, can with impunity cause delay by simply causing a list issue. The City's interpretation blunts the remedial thrust of the new vote-based scheme.

128. The formula proposed by the union does the reverse. It works in most cases, and allows the Board to get the job done within the five days mentioned in the statute. It also makes employee wishes and the secret ballot central to the certification process. At the same time, it allows for litigation of legitimate issues after the vote is taken.

129. Section 8(4) suggests that what the Board is engaged in under sections 8(1) and 8(2) is more like an administrative than a "quasi-judicial" assessment; and so does the word "appear" in new section 8(2), and the use of the word "estimate" in section 7(12). This form of language suggests an administrative kind of examination of material pleaded or the identification of a plausible claim, rather than an adjudication of fact. The structure of the new process is very different than it was before. The Board is no longer required to make a series of sequential quasi-judicial findings as it was under the former legal regime (see paragraph 75 above).

130. And suppose, as in the present case, there is a difference between the union and the employer concerning the composition of the bargaining unit. How does the Board resolve those disputed facts if it must not hold a hearing, yet, at the same time, must make its determination in a matter of hours? Does the Board simply accept the employer's submission and decide not to hold a vote - effectively returning to pre-Bill 7 days when litigation over the list and composition of the bargaining unit delayed either a vote or "automatic certification". That is an undesirable result and seemingly inconsistent with the statutory thrust to have a quick vote; moreover, as the union points out, from a tactical point of view, it would not take employers very long to learn that they could avoid a quick vote by simply manufacturing a dispute about the perimeter or composition of the bargaining unit. That was not uncommon under the old system - particularly in the construction industry - but seems quite out of step with the quick vote model envisaged by Bill 7. And it certainly seems curious that the Board cannot consider challenges to the quality of the union's membership evidence (new section 8(9)), or perhaps to its list of names of members said to be in the bargaining unit, but must initially and definitively sort out the list of employees with which the membership evidence and list are compared.

131. Sections 8(3) and 8(9), when read together, underline the expedited and administrative quality of the Board assessment mandated by new section 8, which stands in sharp contrast to what the Board was required to do before. That administrative quality is essential to the speed that is now required, and avoids the kind of litigation which used to cause the system to bog down.

132. Under the pre-Bill 7 regime, the Board had to make a number of findings with respect to union membership, based largely upon documentary evidence; and in the Bill 40 period (1992-95) there was a rather precise list of the kinds of evidence that the Board could or could not consider when deciding whether the union had established the requisite support, or whether a representation vote should be ordered. The details do not matter. What is significant is that both before and after Bill 40, these evidentiary disputes were a frequent cause of litigation, because the documents were all the Board had to go on to make the required finding of membership, and thus the documents were the subject of frequent attack. From an employer's perspective there was an understandable suspicion of documents that it was not allowed to see (section 119 of the Act), and might have been collected in circumstances where peer or other pressures had influenced the employee's choice. Moreover, from a purely tactical point of view, if the employer could cast doubt on the union's membership evidence, the Board might order a representation vote: union supporters would then have an additional opportunity to change their minds, and the employer would have an opportunity to communicate with employees and persuade them to forego the collective bargaining option. A vote involved a contest for employee allegiance in which the employer could deploy formidable tools of persuasion and had some real advantages. Under the former model, therefore, there were lots of reasons to attack the documents.

133. Under Bill 7, however, the focus shifts to a representation vote rather than findings based solely on documentary evidence. The vote becomes the final arbiter, and the quality of the membership documents signed some days or weeks before, becomes much less significant. Employee wishes, collectively expressed, become the critical factor for granting certification.

134. Against that background, it is easy to understand why the Legislature provided that when determining the number of individuals from the bargaining unit who "appear" to be union members, an appearance is sufficient, the Board need look only to the information provided in the application for certification; and, pursuant to section 7(13) in disposing of the certification application, the Board does not consider challenges to that information. Bill 7 inhibits litigation over the sufficiency of the membership information because the apparent level of support so disclosed by those documents no longer determines the union's right to certification. What matters is how many employees cast ballots in favour of the union.

135. Under the new scheme, certification depends upon employee wishes recorded in a represen­tation vote. The quick vote is the central feature of the new process. But by the same token, once the vote becomes the exclusive means of testing employee wishes, we think that it is much less likely that the Legislature intended a lot of "front end litigation" over the right to have such vote taken - let alone a scenario like the present one where the employee wishes might have to be disregarded altogether. We are also reluctant to accept an interpretation that means a Bill 7 vote in this case is more difficult to obtain now than it would have been under Bill 40.

136. Is there an alternative? Could the Board avoid the problem of "front end litigation" and consequent delay, by directing a vote within five days as an administrative matter, but then declining to give effect to it (assuming that a majority of the employees voted in favour of union representation) pending a subsequent determination by the Board of actual 40 per cent "card support" among the employees ultimately found to be in the unit? Could the Board litigate the threshold test later on? In other words, could the Board treat the new Bill 7 procedures as if they mirrored the former pre-hearing vote process?

137. The problem with this approach is that it has no support in the language of the statute. The decision to order the vote is made on the basis of a determination of an appearance; and once that determination is made, nothing in the statute contemplates it being revisited. Indeed, the statute says the opposite: the results of the vote will be given effect, (perhaps subject only to unfair labour practice allegations - see section 11). Section 10(1) provides that where the union wins the vote, the union "shall" be certified. The language is mandatory. The union's certification is, quite explicitly, not subject to a second check of its entitlement to the vote in the first place.

138. Had the Legislature intended some ex post facto determination of actual 40 per cent card support, as opposed to an appearance of 40 per cent support, the Legislature could have reproduced language such as section 9(4) of the old pre-hearing vote procedure. However, when one compares the language of the current statute to the language of section 9 of the old Act, it is evident that the Act used to, could have, but now does not make a finding of actual support at any level (as opposed to the appearance of support) a condition precedent to certification. The structure of Bill 7 does not envisage later litigation about, or confirmation of, the section 8(2) decision. Nor, as we have already mentioned, is "front end litigation" practically feasible in 5 days, or seemingly permitted by section 8(4).

139. In our view, neither the statutory time frames nor the statutory language, nor labour relations policy considerations support the kind of inquiry proposed by the City. Nor can the Board simply adopt the City's proposed number of 3,000 or so "employees" in the bargaining unit, when the union has an equally (if not more) plausible submission that the bargaining unit size is really around 840. In fact, since the Board cannot practically give notice within a couple of days to any employees other than

those actively at work at the time the application is made, there is a good argument - which we need not decide - that it is the group of employees actively at work on the application day that the statute has in mind, and it is that group that is important for bargaining unit determination and voting purposes. The union's estimate of bargaining unit size is quite accurate with respect to that group. But, in any event, we think that the appearance required in section 8 is properly based on the material filed by the union pursuant to section 7.

140. This is not to say that an employer's position on bargaining unit issues is irrelevant when the Board is determining whether a union will be certified. It is not. The Board will still have to sort out the bargaining unit description if it is in dispute, and finalize the bargaining unit composition (i.e. the number and identity of the employees in the bargaining unit, and thus the eligible voters) before it can give effect to the representation vote under section 10 of the Act. The fact that the Board does not have to "revisit" the threshold appearance does not mean that the Board will not have to ultimately sort out the composition of the bargaining unit. But we do not think that it is necessary at the "vote ordering stage", nor is it legally or practically possible given sections 8(4) and 8(5).

141. Counsel for the City asks rhetorically: what if the union has acted in bad faith and has intentionally misrepresented the number of employees in the bargaining unit for the purpose of securing a quick vote to which "it is not really entitled" (i.e. what if the union has manipulated its application to get a vote, in the same way that the union claims the employer in this case has overstated the bargaining unit size in its response in order to avoid a vote)? What if the union's purported "estimate" is knowingly false? To be concrete: suppose the union files five cards and says that there are ten individuals in the bargaining unit, knowing that the real number is closer to 100? Could the Legislature have intended that there be a vote in such circumstances?

142. The difficulty with these hypotheticals is that they are exceedingly unlikely, and thus not very helpful as an aid to statutory interpretation. We think that a better guide is how the statute is to be applied in the normal or typical case. That is why we have emphasized that disputes about the description or composition of the bargaining unit are (or were) a normal and relatively common phenomenon, that before Bill 7, frequently led to delay and litigation Yet it seems clear that in the normal case under Bill 7 the Board is not expected to engage in that kind of exercise (or hold a hearing) at all when deciding whether to hold a vote under new section 8(2). Indeed, as we have explained above, if the Board were required to make such inquiries, it would not be able to hold a vote within five days, with the result that votes would not normally be held in five days. The union's interpretation is attractive because it avoids that result: it makes the system work in the typical case.

143. The kind of bad faith scenario hypothesized by the City is certainly not this case or the typical case. In fact, in the Board's experience, trade unions have not knowingly misrepresented their apparent support, either under Bill 7 or under the former pre-hearing vote procedure. Certainly there are instances where the union has been wrong about the perimeter of the bargaining unit or has miscalculated the number of employees in the bargaining unit (for example, in the construction industry where it is easy to miss a work site, or where the bargaining unit consists of part-timers or casuals, etc.). But intentional misrepresentation has not been an actual problem, nor does it seem at all likely that a union would misrepresent its apparent level of support in this way, when the representation vote itself will so quickly reveal the union's actual level of support. For the fact is: a union with little actual support in the bargaining unit is likely to lose the vote; and this, in itself, is a potent incentive not to manipulate the system.

144. A union disposed to make mischief in the manner posited by the City can only do so successfully if it actually has majority support among the employees, gleaned from an organizing campaign. Otherwise it will lose the vote. But surely, it is unlikely that a union with actual majority support would engage in such pretense: that it would file 5 cards and claim the unit was 10, knowing it was 100? Accordingly, whether or not such bad faith behaviour would constitute a "fraud" under section 64 of the Act, the scenario hypothesized by counsel for the City is simply too arcane to be a useful aid to interpretation.

145. There is an additional reason why a trade union is unlikely to manipulate the process in the way hypothesized by the employer.

146. Bill 7 makes a representation vote relatively easy to obtain. But it also creates some serious disincentives for any union disposed to make a frivolous or flimsy certification application. The new "bar provisions" caution potential applicants that they should not embark lightly upon the new certifica­tion process, since they face not only the prospect of losing the vote, but also the imposition of a mandatory bar, preventing any new application for a period of a year.

147. Under the former legal regime, the Board had a discretion to bar an unsuccessful applicant from making a new application for a period of up to 10 months (see section 11l(2)(k) of the Act). In practice, though, the Board did not normally impose a bar unless there were several failed certification applications, or alternatively, the union lost a representation vote. After a vote the Board routinely imposed a 6-month bar, preventing the losing union from filing a new application for certification. In deciding to impose a bar in this way, the Board was balancing the employees' right to self organization against the need for finality and labour relations stability in the work place.

148. Bill 7 is a little different. Bill 7 not only makes certification depend upon a representation vote in every case, but in addition, Bill 7 substitutes a mandatory one-year bar if the union withdraws its application after a representation vote has been taken (new section 7(10)), or if a certification application is dismissed following a counting of the ballots (new section 10(3)). In other words, Bill 7 doubles the post-vote "penalty"; and under new sections 7(8) and 7(9), the Board may also impose new conditions when a trade union seeks to withdraw an application. It may refuse to entertain a new application by the trade union for an elastic period of up to a year. And the discretionary bar/refusal to entertain language in the former statute is still there (see again section 111(2)(k)).

149. The new bar language has not been the subject of consideration by the Board nor, given the view that we take of section 8, is it necessary to do so in this case. It is sufficient to note that while Bill 7 makes representation votes relatively easy to obtain, it also contains terms that should deter both frivolous applications and the kind of intentional manipulation hypothesized by the company.

150. Isn't there something improper about a union being awarded bargaining rights after a representation vote, when it never actually had sufficient support to entitle it to the vote in the first instance? The practical answer to that is that it doesn't happen very often and when it does it is mostly by accident, so why should the employees' entitlement to vote on the issue be lost because of the union's miscalculation. On a more panoramic level though, the answer we think is simply "no" - not in the context of the present statute and the values that it promotes. The statute now provides enhanced scope for the expression of employee wishes in several areas (strikes, ratifications, certification) and provides the means to give effect to that expression. More than that, the statute makes it clear that the result of a representation vote should govern even where the membership evidence tendered by the union was somehow unsatisfactory (see section 8(9)). In other words, in a quick "vote in every case" regime, ultimate faith is based on the ballot box as the means of testing employee wishes.

151. Given the premise that there is to be a "vote in every case", there is also something very pragmatic about the scheme of the new Act. Rather than set up an elaborate administrative machinery to assess membership cards and compare them to lists and to signatures provided by the employer, and rather than entertain disputes about entitlement to votes and appropriate voting constituencies, the statute has prescribed a scheme of incentives and sanctions to regulate behaviour with a view to obtaining a quick test of employee wishes. It is a scheme which (so far at least) has been successful in: expediting the disposition of time-sensitive certification matters; simplifying a once complex process; and minimizing the costs to the parties and the public. While one should not judge the new system by its first few months of operation, the Board's reading of the statute has facilitated quick votes; and that in turn has (so far) been accompanied by fewer unfair labour practice allegations, fewer formal hearings, and an apparent willingness to agree on bargaining unit descriptions and voter eligibility questions which were frequently the subject of litigation under the old system. And, of course, the basic building blocks of the system remain the same: employees must still organize themselves into "appropriate bargaining units" and, as before, a trade union cannot be "certified" as their bargaining agent unless it demonstrates that a majority of the employees in that bargaining unit have signified their desire to be represented - now by means of a vote. These fundamentals of the certification process have not changed.

152. Our final comments concern the Board's inclination, where at all possible, to count the ballots so that the "quick vote" is followed by a quick result. There are several reasons for doing that.

153. It is important to recognize that a vote in the workplace is not a neutral event. Nor is it obvious that a vote taken but not counted is more corrosive to workplace relationships than a vote counted but not given effect because of legal limitations. Common sense suggests that since voting is such a familiar exercise in democratic societies and since it is now a key element in the certification process, it may be quite troubling (or incomprehensible) for the employees who have cast their ballots, if those ballots are not counted - particularly at the urging of a union or employer that for its own reasons does not want the vote results to be disclosed. In what other democratic setting are votes taken but not counted?

154. It appears to the Board that if a vote is taken, employees expect that their ballots will be counted; and unless the number of segregated ballots is so numerous that the vote results will be unhelpful, or the employees' identity cannot be kept secret, there is no reason that the employees' wishes should not be disclosed. Their expectation interest is at least as important to recognize as the tactical concerns of the union or employer. And from a purely practical perspective (which includes cost to the parties and the public) in a significant number of cases, counting the ballots often reduces or eliminates the need for litigation. (See for example: Knob Hill Farms, [1995] OLRB Rep. March 303 where costly litigation turned out to be entirely academic because the union ultimately lost the vote. That litigation could have been avoided altogether by simply counting the ballots in the first place.)

155. We might also note that Section 11(3) of the Act suggests that the vote results may be a factor in the certification equation even where it is alleged that there has been such serious illegality, that the vote does not reflect the employees' true wishes. If the vote may be counted in that situation -and the statute certainly contemplates that possibility - there seems little reason not to do so in ordinary cases, merely because a union or an employer might be dismayed by the results, or might have to alter its behaviour in light of a clear expression of employee wishes. Indeed, if collective bargaining is fundamentally about representing a group of employees, it seems curious not to hear what employees themselves have to say about that.

156. Unless there is serious prejudice to the institutional parties, when a representation vote has been taken, the Board is inclined to count the employees' ballots. And that is what it did in this case.

DECISION

157. For the foregoing reasons, we are satisfied that the union in this case has met the requirement in section 8 of the Act to have a representation vote directed based upon the material in its application. In our view, the earlier panel's determination was correct in this regard.

158. The Board is not persuaded that a vote should not have been held, or that a vote should have been postponed until the summer of 1996 when the casual work force would likely be larger. Given the inevitable variability and shifting composition of the casual group, we are satisfied that the fall complement is sufficiently representative to have a timely testing of employee wishes - particularly given the 5-day time frame mentioned in the statute. We also note that Bill 7 itself now supplies the answer if it is suggested that the employee complement as it was in the fall of 1995 was not representative and will change following certification: there cannot be a strike without another employee vote, there cannot be a collective agreement without employee ratification, and if employees are unhappy with the union, they can terminate its bargaining rights in a timely way under new section 63 of the Act which once again involves a representation vote.

159. Having regard to the agreement of the parties, the Board finds in this case that the unit of employees appropriate for collective bargaining is described as follows:

all casual employees employed by the Corporation of the City of Toronto in the Recreation Division of the Department of Parks and Recreation, save and except supervisors, persons above the rank of supervisor, and persons for whom the applicant or any other trade union held bargaining rights as of October 10,1995.

160. It is unnecessary to decide whether the union's estimate of the number of employees in the bargaining unit (about 840) or the employer's estimate of the number of bargaining unit employees (about 3,000) is the more accurate assessment as of October 10, 1995, the date the application for certification was made. Even assuming that the unit contains the additional employees asserted by the City, the persons within that grouping had the opportunity to vote, and the majority of those voting supported the union.

161. On any scenario, then, the union has met the requirements of sections 8 and 10(1) of the Act, and is entitled to certification based upon the ballot results.

162. To be specific: the Board finds that more than fifty per cent of the ballots cast in the representation vote taken on December 8, 1995 by the employees in the bargaining unit were cast in favour of the trade union.

163. A certificate will therefore issue to the union in respect of the agreed-upon bargaining unit description mentioned above.

DECISION OF BOARD MEMBER JUDITH RUNDLE; July 3, 1996

1. Proper interpretation of the Labour Relations Act, 1995, S.O. 1995, c. 1, (Bill 7) requires an appreciation of the context in which Bill 7 was introduced and passed.

2. The election of June 8, 1995 produced a majority government that had campaigned, in part, on a promise to amend the Labottr Relations Act. The importance of that commitment to the new government may be inferred from the fact that Bill 7 was the first major government bill to be introduced in the 36th Legislature, and the first government initiative to pass and receive Royal Assent.

3. The history of the passage of Bill 7 makes clear three important points concerning the intention of the legislative majority that introduced and passed Bill 7:

4. Bill 7 was intended to correct a perceived imbalance between the treat­ment of trade unions and the treatment of employers under the old Act.

5. Bill 7 was intended to strengthen the role and decision-making ability of individual workers, whose rights were considered insufficiently pro­tected under the old Act.

6. Bill 7 was intended to make the secret ballot vote the primary mechanism by which trade unions acquire the right to represent employees.

7. In the title of Bill 7 the Legislature declares the new law to be "An Act to restore balance and stability to labour relations ...". It is essential to note that this restoration of "balance" refers not only to balance among trade unions, employers and individual workers, but also to restoring balance between trade unions and employers. That two types of "balance" are contemplated is, in my view, deliberate. The historical context supports such an interpretation.

8. Having considered the general context and intent of Bill 7, the Board can turn to the specific issue raised by this case, namely, determination of the threshold for conducting a mandatory representation vote under section 8 of the Labour Relations Act, 1995.

9. Two objectives are very clear from the Act. First, the Legislature intended a threshold; the Legislature did not intend a vote in absolutely every case a union applied for certification, but rather, only in cases where the statutory test was satisfied. Second, responsibility for achieving the threshold lies with individual employees, not the union.

10. It would have been simple for the Legislature to have made no reference to thresholds, or to have imposed only a token threshold for the application. Subsection 8(2) refers to "40 per cent" and uses the verb "determines" - language which confirms that the Legislature intended the threshold to be real and substantial, a meaningful hurdle for employees, something requiring a "determination".

11. Any interpretation of subsection 8(2) that renders the threshold nugatory is inconsistent with the Legislature's intent and the ensuing language of the statute that there not be a vote in every case, but only in each case where the application passes a real and substantial test.

12. Secondly, subsection 8(2) places responsibility for meeting the threshold in the hands of individual workers, not the applicant union. A vote is triggered, not because the union files an application, but only because a sufficient proportion of employees have decided to call for a vote by taking out membership in the union. While it is the union that applies, it is the individual employees who decide - in sufficient numbers - that a vote is required.

13. It appears then that the existence of a critical mass of individual employees would be the prerequisite to a representation vote. Not only do employees have the right to vote on whether a trade union would represent them, they are empowered to choose (by signing cards in sufficient proportion) whether and when a vote takes place. This interpretation is consistent with the Legislature's intention to make the process "more responsible to individual workers" and "to strengthen the role of the individual workers in the decision-making process

14. The right to a representation vote belongs not to the union, but, collectively, to a sufficient proportion of employees. It is misleading, as the majority suggests, to talk of the union's right to a representation vote. Any analysis that assumes the vote is a union entitlement misinterprets the Act and overlooks the fundamental empowerment of individual employees brought about by Bill 7.

15. The majority's interpretation of the Act fails to pay sufficient deference to the enhanced rights and responsibilities of individual employees under Bill 7. Although the majority's interpretation assigns to individual employees a greater role than they enjoyed under earlier legislation, it limits individual employees to a single function - participation in the representation vote - while leaving the "institutional" parties to dominate the remainder of the certification process.

16. Under the scheme of Bill 7, voting is not something that individual employees do once the union and employer have completed a series of prerequisite steps. Rather, voting is a right which individuals acquire when a sufficient proportion among them decides in favour of union membership. Conversely, if the requisite proportion of individual union members is lacking, the individuals do not acquire the right to vote. The absence of the required proportion has two consequences: first, individuals desirous of union representation are unable to vote for it; second, and equally important, individuals opposed to union representation are not required to vote in order to prevent it.

17. Exactly for this reason, the "vote cures all ills" or "ultimate faith is based on the ballot box" approach taken by the majority is inconsistent. Unless a sufficient proportion of individuals decide to trigger a vote by joining the union, then those individuals opposed to union representation need not resort to the ballot box - indeed, they need not do anything - for the status quo to prevail. Where the statutory threshold is not satisfied, forcing opponents to defend the status quo through action at the ballot box means depriving them of their legitimate expectation and placing the onus on them to resist union representation when the onus should be on individual union proponents to achieve the statutory threshold.

18. Therefore, numbers do count. If the union's proposed bargaining unit contains either 840 persons or 3000 persons, it makes a difference whether the statutory threshold is 336 or 1200. It makes a difference to the individuals themselves: individual union supporters' ability to vote for union representation crystallizes at 336 or at 1200. It makes a difference. And individuals opposed to union representation can remain passive - completely inactive - until individual union members number 336 or 1200, when they must manifest their opposition at the ballot box. It makes a difference. Calculating the threshold wrongly (say at 336 when it should be 1200) forces individual opponents of the union to vote when they have a right to see the status quo prevail without them acting. Calculating the threshold wrongly at 336 changes the consequences of their non-action from maintenance of the status quo to potential alteration of the status quo by those who vote.

19. Ordinarily, in a democracy, one is reluctant to sympathize with individuals who fail to exercise the right to vote. However, where the threshold has not been met, individuals are entitled under the Act to expect their workplace to remain unorganized - entitled to expect that no vote or other action by them is required to maintain this outcome. Those who take no part in a representation vote held without satisfaction of the statutory requirement cannot be said to abstain at their peril; they have a right to abstain and expect that nothing will happen.

20. For these reasons, the manner in which the statutory threshold is determined is of critical importance to all workplace parties, especially the individual employees.

21. The relevant provisions of the Act have been set out elsewhere, only subsections 8(2) and (3) are reproduced here:

22. (2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individu­als in the voting constituency.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(emphasis added)

19. It is important to note that the threshold established by the Legislature is expressed, not as an absolute number but rather as a minimum proportion or percentage, or fraction of "the individuals in the bargaining unit proposed in the application for certification".

20. This percentage or fraction is obtained by dividing "the number of individuals in the proposed bargaining unit who appear to be members of the trade union" by the total number of "the individuals in the bargaining unit proposed in the application for certification".

21. The Act does not restrict the information used by the Board to calculate the total number of individuals in the proposed bargaining unit. With respect, the opinion expressed in Burns International Security Services Limited, (decision dated April 12, 1996, as yet unreported) [now reported in [1996] OLRB Rep. March/April 1921, the Board would err if it held that subsection 8(3) fetters its determina­tion in this regard.

22. What subsection 8(3) restricts is the information used by the Board to determine the number of apparent union members among individuals in the proposed bargaining unit. It does not affect the determination of the total number of individuals in the proposed bargaining unit. In other words subsection 8(3) speaks to the numerator of the fraction referred to in subsection 8(2), but not the denominator.

23. One can readily understand the reason for restricting the information used to determine the number of apparent union members. By limiting the Board's consideration to the union's documents, particularly the cards, the Legislature has prevented employer challenges to the quality of the member­ship evidence, challenges which in the past have been based on such allegations as defective signatures, coercion, misrepresentation, failure to understand the language, failure to understand the card's signifi­cance, and (prior to Bill 40), non-payment.

24. There is little doubt that Bill 7 contemplates and provides for speedy votes. However, speed is just one of the many principles, not the exclusive and overriding objective that the majority would make it. Indeed, if one was forced to identify the single, dominant principle or objective of the certification process, the political context and the legislative history makes the choice clear: the empowerment of individual employees and the enhancement of their control of the process. An interpretation (namely, that of the majority) that favours speed at all costs over one which is consistent with individuals' empowerment is not merely incompatible with the Legislature's intention but is contrary to the language and spirit of the statute.

25. To the extent that speedy votes are desirable, consistent with that desire, subsection 8(2) allows the Board to make a "rough and ready" assessment of whether the union has more than 40 per cent support. However, a rough and ready approach was intended to apply only to the count of apparent trade union members - the numerator in the fraction referred to in subsection 8(2). What the Act does not contemplate is gross imprecision in determining the total number of individuals in the proposed bargaining (the denominator) particularly in a case such as this, where the impact is not merely one or two employees but the difference between 840 and 3000.

26. What information does the Board have available when it comes to count the total number of individuals in the proposed unit? It has not only the union's description and list, but also any employer's description. According to subsection 7(12), a unit description includes an estimate of the number of employees. The word "includes" was chosen deliberately: it means the numerical estimate is part of, not in addition to the description. The proper interpretation can only be that an employer's "description" also includes a numerical estimate. If not, the Legislature would explicitly have stated that the employer's description was different from the union's.

27. To isolate the union's submissions, as the majority does, is to render subsection 7(14) meaningless - clearly this is not the intent of the statute. While the employer is not obliged to submit a unit description, the 2-day deadline in subsection 7(14) indicates that the Act provides the Board with an opportunity to receive such information prior to making its determination under subsection 8(2). Why? Because such information may - not must, but may - be used by the Board, in its discretion.

28. Consequently, in an application such as this, the Board has two sets of descriptions and two numerical estimates, both relating to the total number of individuals in the unit. Nothing prevents the Board from using all this information to make its determination under subsection 8(2). (As indicated, subsection 8(3) is not a restriction, since it refers only to the number of union members, and not the total number of individuals in the unit.) To the contrary, several reasons compel consideration of all this information:

(a) excluding relevant information that the employer provides (instead look­ing only at the trade union's documentation) is inconsistent with the Legislature's intent to restore the balance between trade unions and employers;

(b) excluding information which shows that the number of employees in the bargaining unit differs significantly from what the union states is inconsistent with the Legislature's intent that the threshold for a vote be real and substantial - not a threshold subject to the vagaries of the union's numerical estimates.

(c) excluding information which shows that the number of individuals in the bargaining unit differs significantly from what the union states is inconsistent with the Legislature's intent that the threshold belongs to the individual employees and that it be a function of their individual decisions;

(d) provided that the Board's determination is made quickly and without a hearing (as the Act contemplates), no labour relations purpose is served by basing a determination on only part of the information before the Board.

29. It is important not to blur the distinction between two very different concepts in sections 7 and 8. One is the bargaining unit proposed by the union. The other is the union's description of that proposed unit (including the numerical estimate). The proposed bargaining unit is one thing. How the unit is described or incorrectly described, and counted, or miscounted, is quite another. The distinction is particularly relevant in a case such as this where the parties agreed on the bargaining unit, but not how to describe it or to count the individuals inside.

30. This distinction is useful in interpreting subsection 8(2), which refers only to "the bargaining unit proposed in the application". Subsection 8(2) mentions neither the applicant's description nor its numerical estimate. This strengthens the conclusion that the Board's task - determining how many individuals are in the proposed bargaining unit, albeit in a rough-and-ready manner - is not limited by either party's incorrect description or miscount of the proposed unit. That determination remains the Board's.

31. The majority takes the position that the appropriate calculation involves not the number of individuals in the proposed unit, but actually the union's estimate of that number. It states:

In our view the words "individuals in the bargaining unit [not employees be it noted] proposed in the application for certification" in section 8(2) direct the Board's attention to the application for certification filed by the union and the information contained in it - in particular, the union's estimate of "the number of individuals in the unit" required by section 7(12).

Had the Legislature intended the Board to be bound by the union's estimate of the number of individuals in the proposed unit, then subsection 8(2) would have made reference to the "estimate". Clearly, it does not.

32. Based on this analysis, it is clear that the statute requires a threshold to be met, namely, those individuals who appear to be members of the trade union must total more than 40 per cent of the number of individuals in the proposed bargaining unit. Only then can the Board order a vote. If the number of individuals who appear to be members of the trade union is less than 40 per cent of the number of individuals in the proposed bargaining unit, then the Board has no jurisdiction to order a vote among the individuals in the proposed bargaining unit.

33. Further, this analysis preserves the statutory (subsection 8(5)) wish that a representation vote be held within the 5-day time period, unless the Board directs otherwise. The Act does not, in my view, at this stage of the certification process, contemplate the Board inquiring into the issue of employee status - hence the use of the word "individual" at this stage of the process. The intent of the statute is to capture the wishes of the "individuals" at a particular point in time (within five days) and preserve those wishes (by sealing the ballot box) pending the resolution of any outstanding issue such as any question of employee status. The Board has shown itself capable of acting in an expeditious manner to resolve complex issues of concern to the parties, such as unfair labour practices. I see no reason why it cannot move in an equally expeditious manner in the certification process.

34. Therefore, applying this analysis to the facts of this case, I would dismiss the application.

"APPENDIX A"

THE CERTIFICATION MODEL

PRE-BILL 40 (1975 - 1992)

"Regular Certification Process"

7.-(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

"Pre-hearing Votes"

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 such 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 subsection 7(2).

THE BILL 40 MODEL

(1992 - 1995)

"Regular Certification Process"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Pre-hearing Votes"

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

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

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

(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in the bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under section 8.

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

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

THE BILL 7 MODEL

(Effective November 1995)

7. (8) An application for certification may be withdrawn by the applicant upon such conditions as the Board may determine.

(9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.

(10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.

(11) The trade union shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

8. (1) Upon receiving an application for certification, the Board may determine the voting constituency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be mem­bers of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

9. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bar­gaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bar­gaining unit.

10. (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.

[NO "PRE-HEARING VOTE" EQUIVALENT]

11. (1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

12. An employer, employers' organization or person acting on be­half of an employer or employers' organization has contravened the Act.

13. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

14. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

15. The trade union has membership support adequate for the pur­poses of collective bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

(3) The Board may consider the results of a representation vote when making a decision under this section.

(4) Subsections 10(1) and (2) do not apply with respect to a representation vote taken in the circumstances described in this section.

BILL 7 TERMINATION PROCEDURES

(Effective November 1995)

63. (3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(4) The application filed with the Board shall be accompanied by a list of the names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union and evidence of the wishes of those employees, but the applicant shall not give this information to the employer or trade union.

(5) If the Board determines that 40 per cent or more of the employees in the bargaining unit appear to have expressed a wish not to be represented by the trade union at the time the application was filed, the Board shall direct that a representation vote be taken among the employees in the bargaining unit.

(6) The number of employees in the bargaining unit who appear to have ex­pressed a wish not to be represented by the trade union shall be determined with reference only to the information provided in the application and the accompanying information provided under subsection (4).

(7) The Board may consider such information as it considers appropriate to determine the number of employees in the bargaining unit.

(8) The Board shall not hold a hearing when making a decision under subsection

(5).

(9) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board.

(10) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(11) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(12) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application.

(13) When disposing of an application, the Board shall not consider any chal­lenge to the information provided under subsection (4).

(14) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

(15) The Board shall dismiss the application unless more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in opposition to the trade union.

(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

(17) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.

(18) Upon the Board making a declaration under subsection (14) or (17), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.

64. (1) If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.

(2) Subsection 8(9) does not apply with respect to an application for a declaration under subsection (1).

(3) If an applicant has obtained a declaration under section 63 by fraud, the Board may at any time rescind the declaration. If the declaration is rescinded, the trade union is restored as the bargaining agent for the employees in the bargaining unit and any collective agreement that, but for the declaration, would have applied with respect to the employees becomes binding as if the declaration had not been made.

(4) Subsection 63(13) does not apply with respect to an application for the recission under subsection (3) of a declaration.