United Steelworkers of America v. Burns International Security Services Limited, 1996 CanLII 11205

Ontario Labour Relations Board

[1996] OLRB REP. MARCH/APRIL 192

4069-95-R; 4070-95-R; 4072-95-R United Steelworkers of America, Applicant v. Burns International Security Services Limited, Responding Party v. United Food and Commercial Workers International Union, Local 333 (Canadian Security Union) and International Union United Plant Guard Workers of America Local 1956, Intervenors; United Food and Commercial Workers International Union, Local 333 (Canadian Security Union), Applicant v. Burns International Security Services Limited, Responding Party v. United Steelworkers of America and International Union United Plant Guard Workers of America Local 1956, Intervenors

BEFORE: G. T. Surdykowski, Vice-Chair.

DECISION OF THE BOARD; April 12, 1996

I

1. These are three applications for certification. They were made shortly after the recent public service strike began. That strike, now ended, had a serious and direct impact generally on the Board, and specifically on these applications.

2. During the course of that strike, several endorsements were made in the applications. The following is a review of some of those endorsements, together with the reasons for them where necessary or as I consider appropriate.

II

3. In response to inquiries from some of the parties with respect to the filing of materials in the applications, a teleconference was convened on March 6, 1996 to canvass the parties with respect to how the Board should proceed with them. During that teleconference, a number of issues were identified. On agreement of the parties, a hearing was scheduled to deal with those issues, which are identified in the Board's March 6, 1996 endorsement in that respect (attached to this decision as Appendix 1).

III

4. A hearing was convened on March 11, 1996. The results of that hearing are contained in the first March 12, 1996 endorsement (attached as Appendix 2).

5. Upon hearing the representations of the parties, I dismissed the application of the United Steelworkers of America (the "USWA") in Board File No. 4069-95-R as untimely.

6. That application was made by fax on February 26, 1996. The collective agreement in effect between the responding employer ("Burns") and the incumbent trade union (the "UPG WA") at the time these applications were made contains the following duration clause:

This agreement shall come into effect the 26 day of April, 1993 and shall remain in effect until midnight on the 26 day of April, 1996 and shall be automatically renewed for successive periods of one year each thereafter, unless either party gives to the other notice of its intention to negotiate amendments hereto to the sixty day period immediately prior to the expiry date of this agreement or any successive term hereof.

7. Section 7(4) of the Labour Relations Act, 1995 provides that:

8. (4) Where a collective agreement is for a term of not more than three years, a trade union may apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

(emphasis added)

8. It is not common for parties to a collective agreement to specify that it expires at a specific time on a particular day. Nevertheless, that is what Burns and the UPGWA have done, which resulted in the timeliness issue in Board File No. 4069-95-R. In that respect, the USWA was alone in taking the position that the last two months of the Burns - UPGWA collective agreement commenced on April 26, 1996. The USWA's view was that the time "midnight on the 26 day of April, 1996" separates April 25 from April 26 so that the first moment of April 26 after midnight is within the "open period" specified by section 7(4) of the Act; that is, that the last two months of the collective agreement commenced at 00:00:01 a.m. on February 26, 1996.

9. I did not agree. In every day usage, midnight is considered to come at the end of a day, not the beginning. Consequently, "midnight on the 26 day of April, 1996" comes at the end of April 26th and the first moment after midnight on April 26th 1996 will be 00:00:01 on April 27, 1996. Concomitantly, "the last two months of ... operation" of the collective agreement began two months earlier; that is, at the first moment of February 27, 1996 (ie. 00:00:01 a.m.). Since the application was made prior to that, on April 26, 1996, it was not made "only after the commencement of the last two months of ... operation" of the collective agreement.

10. In an alternative argument, the USWA referred to the decision of the Ontario Court of Appeal in Re. United Headwear, Optical and Allied Workers Union of Canada, Local 3 et. al and Biltmore/Stetson (Canada) Inc. et. al. (1983) 13 O.R. (2d) 243, and argued that even if its application in Board File No. 4069-95-R was one day late, the Board should conclude that it "continued to speak" into February 27, 1996 when it was timely and that that application should therefor be treated as having been made first.

11. I was not persuaded by that argument either. The Biltmore/Stetson, supra, case concerned a notice to bargain given in a sale of business situation. That is significantly different from the issue in this case. Both practically and legally, a notice to bargain does "continue to speak" after it is given. In this case, however, the Board was concerned with an application which is in the nature of an originating notice for legal purposes. Like a Statement of Claim issued in the civil courts, an application is either timely or it is not, and what is important, particularly for purposes of section 7(4) of the Act, is not whether or not it "continues to speak" (because for purposes of things like the statutory freeze in section 86(2) of the Act, for example, an application for certification does "continue to speak"), but rather when it "begins to speak". If it "begins to speak" too soon, it cannot be heard.

12. In the result, the application in Board File No. 4069-95-R was dismissed as untimely.

13. I note that, even if it had been considered to be timely on the basis of the USWA's alternative argument, the USWA would have had two applications made on February 27, 1996, because Board File No. 4072-95-R is another application for certification by the USWA which is in all respects other than when it was filed identical to the application in Board File No. 4069-95-R. Because of my determination of the second issue (see below), the USWA would have been in no different position than it is now even if I had accepted its alternative argument. (I note also that neither section 111(3) of the Act, nor the Board's approach in Northern Telecom Canada Limited, [1979] OLRB Rep. June 544, the correctness of which I respectfully suggest is doubtful, applied to this first issue because there was no application other than the one in Board File No. 4069-95-R to consider.)

IV

14. The second issue on March 11, 1996 concerned the exercise of the Board's discretion under section 111(3) of the Labour Relations Act, 1995 which provides that:

15. (3) Despite sections 7 and 63, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for the certification or for the declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application.

15. I do not think it useful to detail the arguments put forward on this issue. In essence, the position of the USWA was that even though its application in Board File No. 4072-95-R and the application by the United Food and Commercial Workers International Union, Local 333 (Canadian Security Union) (herein "Local 333") in Board File No. 4070-95-R were both made on February 27, 1996, the Board should postpone consideration of Local 333's application until the final decision has been issued in its (the USWA's) application. Counsel argued that this result was suggested by the Board's decision in The Carleton Board of Education, [1993] OLRB Rep. Feb. 102, which decision is as applicable and persuasive under Bill 7 as it was under the legislation in effect at the time it was made (that is, the "Bill 40" Labour Relations Act which was in effect from January 1, 1993 until Bill 7 was proclaimed on November 10, 1995). In that decision, the Board established its general approach to issues under what is now section 111(3) of the Act under the Bill 40 Labour Relations Act (which was different from the Board's approach under the pre-Bill 40 legislation) as follows:

16. Prior to the recent changes to the Labour Relations Act both the application date and the terminal date were necessary reference points for determining the level of support among employees. However, the terminal date is no longer relevant in determining the level of membership support enjoyed by any applicant for certification. Both the number of employees in the bargaining unit and the level of membership support enjoyed by the trade union among those employees is now determined as of the date of application (see section 8 (1)).

17. M. Pickard Construction Co. Ltd., [1989] OLRB Rep. Oct. 1046 filed by the OSSTF is of little assistance. Its discussion is primarily centered on which terminal date the Board should assign a subsequent application in circumstances where that date was highly relevant to the outcome of an application. While there may well be circumstances where it would be appropriate to utilize the option described in section 105(3)(a) [now section 111(3)1, we are of the view that section 105(3) read in light of section 8 of the Act, now places greater emphasis on the application that is first in time. That first applicant must still of course establish that it enjoys the support of the majority of the employees in the bargaining unit. Other interests are protected in that there may well be grounds for another trade union to intervene on behalf of employees in the bargaining unit in respect of a first application. We note that a request to intervene has been filed by the OSSTF in Board File No. 3015-92-R prior to the terminal date of the Association's application.

18. The Carleton Board of Education, supra, did not deal with a situation where two (or more) applications for certification were made on the same day. Nor does any other Board decision of which I am aware under either the Bill 40 or other previous Labour Relations Acts. That decision is neither applicable nor necessarily helpful in this case, although it may be that the Board will take the same approach under Bill 7 in circumstances like those in The Carleton Board of Education, supra.

19. The words "at the time" in section 111(3) are also found in sections 8(2) and 66(3) of the Labour Relations Act, 1995. It is not a new phrase. It was also contained in the certification and termination provisions of the Bill 40 and pre-Bill 40 legislation. It is a phrase which has always been interpreted by the Board to refer to the day on which an application is filed, and not to some smaller unit of time within a day. I see no reason to change that approach under the Labour Relations Act, 1995, particularly when section 111(3) specifically provides that a "subsequent application" may be treated as having been made on the same date as the "original application". I can think of no cogent reason for dealing with two applications for certification made on the same day with respect to the same group of employees separately. Accordingly, as reflected in the first March 12, 1996 endorsement, I ruled that the second USWA application (ie. Board File No. 4072-95-R and the application by Local 333 (referred to as the "UFCWU" in the endorsement) should be treated as having been made on the same date and that those two applications should proceed together for all purposes. This would necessarily require any representation vote to be a 3-way vote.

V

18. Third, Burns and the UPGWA submitted that no representation vote could or should be held until the applicants in each application first established that at least 40 percent of the employees determined to be in the bargaining unit at the material time were members in it, and until the "section 14 conflict issue" (as it was described in the hearing) was disposed of, both of which would require a hearing before the Board.

19. Again, I find it unnecessary to detail the submissions made by counsel on this issue. Having considered the representations of the parties, the materials filed and the requirements and intent of the Bill 7 Labour Relations Act. I concluded that a 3-way representation vote in the two remaining applications should be held before any hearing into the issues which have been raised.

20. I note that, as I subsequently ruled in the March25, 1996 endorsement (Appendix 4), no vote could be held in these applications until the public service strike ended. For the same reason, no hearing could be held either (notwithstanding that some Board hearings did proceed during the strike: most, if not all, of which were either related to the strike itself, or to unrelated alleged unlawful strike activity, or were continuations of hearings which had begun prior to the strike). If the view of the employer and the incumbent trade union had prevailed, a vote could not have been held for a very long time. Such a result would be contrary to the purpose and intent of Bill 7; that is, that the mandatory representation vote be held quickly. On the contrary, if the Board had accepted the position of Burns and the UPGWA, the mandatory representation vote, which the employer community has clamoured for for years, would be put off indefinitely while the parties engaged in complex and expensive litigation which might not even be necessary if the vote is held and counted. But more on this later.

21. Although there are many important and significant differences between the Bill 7 Labour Relations Act, 1995, and both the Bill 40 Act and the pre-Bill 40 Act, the fundamental scheme of the legislation remains simple and unchanged by Bill 7. Except for those individuals who are specifically excluded by the Act, every person has the right to join with others in a trade union, and to bargain collectively through that trade union with their common employer. The right of employees to organize themselves and bargain collectively with their employer is guaranteed by Bill 7.

22. A trade union can become the exclusive bargaining agent for employees either through voluntary recognition (which is uncommon outside of the construction industry), or by being certified as such when a majority of the employees in an appropriate bargaining unit indicate that that is their wish (or under section 11). (There is an analogous process for terminating bargaining rights as well.)

23. It is important to remember that although trade unions and employers have important

rights and obligations under it as well, the focus of the Labour Relations Act, 1995 (as was the case in the previous legislation) is on codifying and protecting the rights of employees. Up to this point in these applications, as is generally the case in the certification process, the proceedings have involved the institutional parties. The employees who are the subject of the proceedings have not been heard by the Board. Nor will they be until they have an opportunity to express their wishes in a representation vote. Under the Bill 7 certification system, a representation vote is the primary means by which employees speak to the Board.

24. In determining what is permitted, required or prohibited under Bill 7, it is helpful to recall what the pre-Bill 7 scheme looked like. Under every Labour Relations Act prior to Bill 7, the certification scheme was document based. It was primarily a card counting process in which the representation vote was essentially a residual mechanism. Prior to Bill 7, the representation vote was used in certification applications where, as in this case, there was an incumbent trade union, where the applicant had not filed sufficient membership evidence to be certified without a vote, or where there was something in the application which required the apparent support for the applicant to be confirmed by a vote. In fact, the vast majority of certification and applications prior to Bill 7 were disposed of without a vote.

25. Despite the fact that every pre-Bill 7 certification scheme was document based, nothing in any pre-Bill 7 Labour Relations Act specified the materials which were to be before the Board for that purpose. Nor were there any time limits, other than when an application could be made, within which anything had to be done. (Although the Bill 40 legislation did specify that the Board could not consider certain evidence if it was submitted after the certification application date.) Instead, the Board established pleading and other guidelines, both generally through its rule making process and "rules of thumb" which the Board developed in its jurisprudence, and in specific cases which required special treatment. The Board's approach in that respect evolved over many years, and was shaped by the Labour Relations Act in effect at the time and the Board's experience. Under every pre-Bill 7 certification system, the Board was required to make specific determinations in sequence as follows:

(a) First, the Board was required to determine an appropriate bargaining unit;

(b) Then the Board had to ascertain the number of employees in that bargaining unit at the time the application was made (which was interpreted as the date that the application was made);

(c) Next, the Board assessed the applicant trade union's documentary evidence of membership and other materials filed in support of the application in order to ascertain the number of employees in the bargaining unit who were or had applied to become members of the applicant in accordance with the evidentiary rules established therefor;

(d) Then, if the applicant trade union had achieved the statutory majority (fifty-five percent of the employees in the bargaining unit) in that respect, the Board could either certify the trade union, or order a representation vote if it was satisfied that one was appropriate;

(e) The Board was required to order a vote where the applicant trade union s materials established membership support within the bargaining unit within a specified range (the upper end of which was the fifty-five percent threshold for certification without a vote).

26. The pre-Bill 7 legislation also contained an alternative mechanism commonly referred to as the "pre-hearing vote" process, which a trade union could request when making an application. As its name suggests, the pre-hearing vote process was intended to postpone any litigation until after a representation vote was taken, and that is precisely the way the Board dealt with such applications. That is, regardless of what issues might be raised in an application, including the applicant's right to make the application or any bargaining unit description or composition issues, the Board's general and almost invariable approach was to hold a vote before convening a hearing into any of those issues.

27. In an application for certification in which a pre-hearing vote was requested, the Board had the discretion to determine a "voting constituency", which was an employee grouping for purposes of the vote and which was not necessarily an "appropriate bargaining unit". Having determined the voting constituency, the Board examined the "the records of the trade union and the records of the employer" to see whether there was an "appearance" of support for the applicant of not less than a specified percentage of employees within the voting constituency. If that appeared to be the case, the Board directed a vote. However, the Board could not give effect to the results of such a vote until the Board subsequently determined the bargaining unit description, and made a finding that the applicant trade union had at least the threshold level of membership support in that bargaining unit (not the voting constituency), and dealt with any other issues effecting the trade union's right to be certified (see section 9 of the Bill 40 and the pre-Bill 40 Labour Relations Acts and see generally Emery Industries Ltd., [1980] OLRB Rep. Mar. 316; The Board of Education for the City of North York, [1984] OLRB Rep. July 989). Accordingly, the pre-hearing vote model in the pre-Bill 7 legislation postponed litigation until after a vote, but it did little to narrow the issues or guarantee a quick disposition of an application.

28. Prior to Bill 7, it was not at all unusual to see issues raised concerning the bargaining unit appropriate for the application, the composition of (ie. the list of employees in), or the right or ability of the applicant trade union to bring the application or to be certified. On the contrary, these were very common issues, and dealing with them took time, sometimes substantial amounts of time.

VI

29. The Labour Relations Act, 1995 became law when Bill 7 was given Royal Assent on November 10, 1995. Under the Labour Relations Act, 1995 the certification system is substantially different from what it was before. Sections 7(8) to (14), 8(1) to (4) and (8), 9(1) and (10) contain the provisions relevant to the issue in this case, and provide as follows:

30. ……

(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 subsecti6n 7(13).

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

(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. (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.

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.

The clear intent of these provisions is to change the certification process from a document based system to a streamlined representation vote system designed to avoid "front end" litigation and give employees an opportunity to express their wishes in a quick representation vote. Bill 7's message is clear: things are to be done differently. Consequently, the Board's way of handling certification applications has had to change. Not only does the Board not have to do many of the things it did prior to the Labour Relations Act, 1995, it is specifically prohibited from doing some of them.

30. First, sections 7(11) to (14) contain legislated pleading and filing rules which are designed to establish the simplified record required to accommodate the five day vote model directed in section 8(5). In that respect, section 7(12) requires a trade union to make an application for certification which includes two things: (1) a written description of a proposed bargaining unit; and (2) an estimate of the number of individuals in the proposed unit. This recognizes that a trade union may propose a bargaining unit which is not appropriate, and may not know the number of employees even in the bargaining unit it proposes.

31. Section 7(13) requires the trade union to file a list of its members in its proposed bargaining unit and evidence that they are members.

32. Section 7(14) allows an employer which disagrees with the bargaining unit proposed by the applicant trade union to give the Board a written description it proposes within two days of receiving the application.

33. The Labour Relations Act, 1995 does not require an employer to file anything. Although an employer is undoubtedly allowed to file other things, the only issue which the Act addresses in that respect is a possible dispute about the bargaining unit description which may have to be considered in striking the appropriate voting constituency. The Labour Relations Act, 1995 does not require or even contemplate that an employer file a list of employees in either the trade union's proposed bargaining unit, or in its own if it disagrees with what the union has proposed. An employer is not required or even invited to respond to the trade union's estimate of the number (or identity) of employees in any proposed bargaining unit. Indeed, the reference to the "records of the employer", and the invitation to the Board to compare those records to the "records of the trade union" found in the provisions which established the pre-Bill 7 pre-hearing vote system are conspicuous by their absence. (Nor is there anything anywhere in sections 7 to 10 anything like section 63(7) of the Labour Relations Act, 1995 which contemplates the Board seeking or acquiring information to determine the specific number of employees in the bargaining unit.)

34. In the result, all that Bill 7 contemplates the Board will have in an application for certification prior to determining whether or not a vote is to be directed is:

(1) The application with the union's proposed bargaining unit and its estimate of individuals in it;

(2) The union's list of union members in its proposed unit and evidence of their status as such; and

(3) The employer's proposed bargaining unit if it disagrees with the union's suggestion.

35. Section 8 tells the Board what to do, and what it can not do, with that information. Section 8(1) gives the Board the discretion to determine the voting constituency to be used in the mandatory representation vote. In doing so, the Board is required to take into account the trade union's proposed bargaining unit and the employer's proposed bargaining unit if any.

36. Then, Section 8(2) requires that the Board determine whether forty percent or more of the individuals in the trade union's proposed bargaining unit (not in the voting constituency) appear to be members of the union at the time the application was made. If that appears to be the case, the Board is required to direct a representation vote in the voting constituency. That is, if it appears that forty percent or more of the individuals in the union's proposed bargaining unit were members of the union on the date the application was made, a vote must be held in the voting constituency. Further, section 8(3) directs the Board to determine the section 8(2) question with reference only to the information provided in the application (under section 7(12)) and under section 7(13). That is, the Board is required to make the section 8(2) determination only on the basis of what the trade union says.

37. There is nothing anywhere in the provisions of the Labour Relations Act, 1995 which directs or suggests that the Board can or should consider anything else prior to directing a vote. Indeed, the language of the provision specifically provides otherwise. Further, not only is there nothing in the certification provisions which suggests that the Board may have to hold a hearing before it makes either a section 8(1) or a section 8(2) determination, section 8(4) specifically prohibits the Board from doing so. Even if the Board wants to hold a hearing before a representation vote, it cannot do so. I note that the words of section 8(4) stand in sharp contrast with the words of section 99(3) of the Act in that respect.

38. The words of section 8(1) to (4) make this conclusion inescapable. Further, this conclusion is consistent with the legislative intent that wherever possible representation votes should take place within five days of the application being filed with the Board (section 8(5)), with section 8(8) which permits the Board to hold a hearing after the vote before disposing of the application, and with the provisions of section 11 which contemplate a hearing after a vote is taken. (In sections 111(1) and (2) for example, the "circumstances" include that "no other remedy, including the taking of another representation vote, is sufficient to counter to effects of the contravention" (emphasis added), and section 11(3) allows the Board to consider the results of a vote when making a decision under section 11.)

39. This result is consistent with the general intent of the Labour Relations Act, 1995 to provide employees with quick representation votes. It is also, with respect, a sensible way to proceed in a vote based system, both generally and specifically in this case. First, as a practical matter, both the positions of the parties and what issues it is necessary and appropriate for the Board to determine is likely to be influenced by the result of the vote. It has been the Board's experience over the years that vote results can make some or all issues practically, as well as legally, moot. Hearing the voice of the employees can affect the appetite of a party to try to litigate a result which would be at odds with the employees' wishes. Indeed, prior to Bill 7, the employer community made the argument that votes would have this "clearing of the air" benefit in support of its lobby for a "vote in every case".

40. Second, in this case, if the UPGWA wins the vote, both of these applications will be dismissed and no hearing will be necessary or appropriate on any issue raised by Burns or the UPG WA. Even if the UPGWA does not win, only one of the applicant's can. Both the section 14 conflict issue, and the list of employees/forty percent threshold issue have been raised with respect to both applicants. With at least one applicant gone, any hearing with respect to those or any other issues will necessarily be shorter and less complex. In addition, I see no reason why any of the issues raised cannot be the subject of a hearing if one is necessary, after a vote.

41. Further, it has been the Board's experience that the most reliable vote results come from votes which are held quickly, particularly in industries like the security guard or construction industries where employment levels can fluctuate dramatically and employee turnover tends to be high. As a general matter, the more quickly a vote is taken, the more reliable it is likely to be as an indicator of employee wishes.

42. Nor am I impressed by the specter of trade union abuse of the certification process, the suggestion being that trade unions may be less diligent or perhaps even dishonest with respect to the material they file with the Board in order to obtain a vote. This boogie man has been put forward in different guises for many years, but the Board's experience is that there is little if any substance to it. There is no doubt that mistakes have been made by trade unions. On rare occasions, a trade union may have tried to mislead the Board. On the other hand, it is not unknown for employers to make their own mistakes, or to attempt to mislead the Board. (Indeed, much of the "list of employees" litigation under pre-Bill 7 Labour Relations Acts involved such "mistakes" and it is not unknown for employers to take "tactical" positions, the only effect of which is to delay the inevitable, and which would, if allowed under the Labour Relations Act, 1995, seriously impair the Board's ability to take quick votes.)

43. Further, what if a trade union does manipulate its application for the purpose of obtaining a representation vote to which it may not be entitled? What if, for example, a trade union says that there are 800 employees in a bargaining unit when it knows there are 1500 employees in it, or what if that turns out to be the case even if the union didn't know it? Could the Legislature have intended that there be a vote in such cases? On the language of the statute, the answer appears to be "yes". The Bill 7 certification system is designed to facilitate representation votes, and the Legislature has indicated a willingness to trust unions to put forward honest applications. Furthermore, abuse hypotheticals are exaggerated and therefor unhelpful. Intentional misrepresentation can arguably be dealt with under section 64 ("where certificate obtained by fraud"), or, as effectively for practical purposes, at the ballot box. Why would a trade union intentionally misrepresent a situation in which the mandatory representation vote will quickly reveal its actual level of support? The fact is that a trade union which conducts itself in that way or which has failed to organize support in a bargaining unit is doomed to lose the vote. Further, a trade union which loses a vote faces a mandatory bar preventing it from making any new application for a period of one year (section 10(3)), or even if it withdraws an application after a vote is taken (section 7(10)).

44. Nor is there anything obviously wrong with a union obtaining bargaining rights after a representation vote when it was mistaken in its estimate of the size of the bargaining unit and did not actually have forty percent support in the first place, having regard to the current statute and the values it espouses. The Labour Relations Act, 1995 provides a broad scope for the expression of employee wishes and, taken as a whole, suggests that in the absence of the circumstances described in section 11 (and perhaps sections 14 or 64 to offer to other examples), the wishes of employees as expressed in a vote should be determinative; that is, that the "vote in every case" be the determining factor or final arbiter.

45. Finally, it was suggested that it would be "bad labour relations" if one of the applicants were to win the vote, but it is subsequently determined by the Board that that applicant cannot be certified for the bargaining unit herein (see below) for other reasons, either because of section 14 or otherwise. Why? If that is the result, it is the result, and Burns and the UPGWA will nevertheless have had the benefit of being instructed by the voice of the employees.

46. In the result, I was satisfied that the provisions of the Labour Relations Act, 1995 required that there be a representation vote before the Board holds a hearing into any issue raised in these applications for certification and I so ruled.

VII

47. I then proceeded to determine the voting constituency under section 8(1). In these applications (as in most non-construction cases in which there is an incumbent trade union and an existing collective agreement), the bargaining unit proposed by both applicants mirrors the bargaining unit described in the collective agreement between Burns and the UPGWA, and all parties agreed that that also described the appropriate voting constituency. Having regard to the materials filed, and to the agreement of the parties, I found that to be the appropriate voting constituency for these applications. (I note that I did not make a bargaining unit determination under section 9(1).)

48. My direction that a 3-way representation vote be taken in these applications was initially less than clear. Nevertheless, the first March 12, 1996 endorsement did and was intended to so direct (as I indicated in the subsequent March 25, 1996 and March 31, 1996 (Appendix 5) endorsements). In addition, although it was implicit in the first March 12, 1996 endorsement, I inadvertently did not set out my determination, under section 8(2), that forty percent or more of the individuals in the bargaining unit appeared to me to be members of the applicant trade union in each application at the time that the respective applications were filed, and that each applicant was therefor entitled to a representation vote, which in this case would take the form of a 3-way vote. I rectified this in the March 31, 1996 endorsement.

VIII

49. Finally, I note that the "entitlement to a vote" and the section 14 conflict issues raised by Burns and the UPGWA are still "live", and it is open to them to seek to pursue these issues after the representation vote herein is taken. Particularly with respect to the former issue, the observations I have made about the scheme and interpretation of the Labour Relations Act, 1995 were a necessary part of the reasons from my decision that a representation vote should be held before any hearing, and although suggestive of my thinking, are not determinative of that issue.

50. This decision reflects the Board's practice in certification proceedings under the Labour Relations Act, 1995 and the reasons for that practice. Burns is entitled to challenge that practice in a hearing, but in this case, that hearing will not be held until after the vote is taken (which will not be until almost two months after the applications were filed. I am not seized with this matter for the purpose of any post vote hearing.

APPENDIX 1

BOARD ENDORSEMENT

Date: March 6, 1996

Before: G. T. Surdykowski, Vice-Chair.

Board File: 4069—95—R 4070—95—R 4072—95—R

These are 3 applications for certification. A teleconference call was convened on March 6, 1996 to canvass the parties with respect to how the Board should proceed with these applications. Having regard to the materials filed, and to what was said by counsel during the teleconference, a hearing will be required to hear the representations of the parties with respect to the following issues:

1. the timeliness of the application in Board File No. 4069-95-R (the “first USWA application);

2. if the first USWA application is timely, what decision is appropriate under section 111(3) of the Labour Relations Act, 1995;

3. if the first USWA application is untimely, what decision is appropriate under section 111(3) with respect to the other 2 applications;

4. whether the Board can or should hold a hearing with respect to the various 40% threshold' assertions or allegations, or the s. 14 issue, or both, before conducting a representation vote in any application which the Board finds it appropriate to proceed with herein;

5. the USWA's request for interim relief, and other issues raised by the parties with respect to the taking of any representation vote, particularly if the Board declines to hold a hearing before holding a vote;

6. how any hearing which precedes a vote should proceed;

7. how any hearing which follows a vote should proceed,

8. any other issue as appropriate.

I note that with respect to the employee list issues, the responding employer has now agreed to provide such lists in each application. Having regard to what was said during the teleconference, I find it appropriate to direct, as I indicated I would, that any list of employees filed by the employer in any of these 3 applications not be provided or otherwise disclosed to anyone else, including any of the other parties until the Board so directs. Any list filed in an application which turns out to be unnecessary or irrelevant will be returned to the employer or destroyed (as the employer chooses) without being provided or disclosed to anyone else.

The hearing to deal with the issues as aforesaid will take place on Monday, March 11, 1996 beginning at 9:30 a.m. at Victory Verbatim Services, Suite 3320, TD Bank Tower, 66 Wellington Street W., Toronto.

On agreement of the parties, the 3 trade union parties will share the cost of the hearing room.

“G.T. Sturdykowski”

for the Board

APPENDIX 2

BOARD ENDORSEMENT

Date: March 12, 1996

Before: G. T. Surdykowski, Vice-Chair.

Board File: 4069-95-R 4070-95-R 4072-95-R

Upon hearing the representations of the parties at a hearing convened on March 11, 1996, I ruled, orally, that:

1. The last 2 months of the collective agreement herein between the responding employer and the intervenor TJPGWA, Local 1956 commenced the first moment of February 27, 1996, that the application by the USWA in Ed. File No. 4069-95-R was not made "after the commencement of the last 2 months of [that collective agreement's operation" (section 7(4) of the Labour Relations Act. 1995), and that the application was therefore untimely. I further ruled that I was not persuaded by the USWA's argument in the alternative (based on Re United Headwear Union and Biltmore/Stetson (Canada) Inc. (1983) 1983 CanLII 1802 (ON CA), 43 O.R. (2d) 243 (Ont. C.A.) and other cases). I therefore dismissed the application in Bd. File No. 4069-95-R.

2. In the exercise of the Board's discretion under section 111(3) of the Act, the second USWA application (Bd. File No. 4072-95-R) and the UFCWU application (Ed. File No. 4070-95-R) should be treated as having been made on the same date (as indeed they were), and those 2 applications should proceed together for all purposes, including the taking of a representation vote if one is held. Any such vote will therefore be a 3-way vote.

Further, having regard to the representations of the parties at the hearing, I find it appropriate to direct, in the circumstances, that:

(a) the 3-way representation vote be held before a hearing is held with respect to

any of the issues which have been raised;

(b) the parties meet with a Labour Relations Officer, to be designated by the Board's Manager of Field Services, as soon as possible, to make the necessary vote arrangements for the taking of the vote, and that a Vice-Chair be available to rule on any disputes between the parties in that respect.

Having regard to the agreement of the parties at the hearing, I direct a mailing to each person whose name appears on the voters list in accordance with the procedure followed in Metropol Security Services, [1993] OLRB Rep. Nov. 1154 (paragraph 16).

In that respect, I find that the voting constituency should reflect the bargaining unit agreed to between the parties. Accordingly:

All security guards employed by Burns International Security Services Limited in the County of Sussex, the County of Kent, the County of Middlesex, the County of Oxford, the County of Perth, the County of Essex, the County of Huron, the County of Lambton, save and except Guard Inspectors or their designates, persons above the rank. of Guard Inspector or their designate, office, clerical and sales staff, and students employed during school vacation periods; and in the County of Wellington, the County of Brant, the Regional Municipality of Waterloo, the Regional Municipality of Hamilton Wentworth, the Town of Milton, the Town -of Haldimand, the City of Burlington, the City of Niagara Falls, the City of St. Catherines, the Town of West Lincoln, the Town of Grimsby, the City of Welland, the Town of Fort Erie, the Town of Dunnville, the City of Clarkson (Petro Canada), save and except Site Supervisors or their designates, Guard Inspectors or their designates, persons above the rank of Site Supervisor or their designate, Guard Inspector or their designate, office, clerical and sales staff, and students employed during school vacation periods will be entitled to vote.

Written reasons for the above will follow.

I think it premature to deal with any vote arrangement issues, including the form of the ballot, and also with whether or not the ballot box(es) should be sealed. Any such matters should first be dealt with by the Officer assigned to the matter.

I also think it premature to deal with any hearing procedure issues. These are best dealt with after it is clear what those issues are, and probably by the panel assigned to the hearing.

The applications are referred to the Registrar.

"G. T. Surdykowski"

for the Board

APPENDIX 4

ENDORSEMENT

March 25, 1996 G.T. Surdykowski, Vice-Chair

Board Files 4070-95-R and 4072-95-R

In a brief oral ruling made on March 22, 1996, I ruled that these applications cannot proceed further at this time. I also directed that the 3-way representation vote which I had previously directed in these applications be held within 5 days of the day on which the Board's staff returns to work from the strike in which it is engaged (as part of the public service strike), unless otherwise directed by the Board. In that respect, and to facilitate the taking of the vote, I also directed the parties to file their suggested vote arrangements with the Board forthwith upon the conclusion of the strike.

Further to the Board endorsements dated March 12, 1996, the L.R.O.'s designated by the Board's acting Manager of Field Services convened a meeting of the parties for the purpose of making the necessary arrangements for the 3-way representation vote ordered in these applications. Before any arrangements could be made, a dispute arose between the parties regarding when that vote should be taken. The applicants wanted the vote to take place as soon as possible, regardless of the status of the ongoing public service strike, while the responding employer and the intervenor trade union took the position that no vote should be held until that strike is over. I was called to the meeting to determine that issue and, upon hearing the representations of the parties, I ruled as aforesaid.

The situation I was presented with was a difficult one. It was (and continues to be) a situation created by a combination if of several factors which brought these applications to where they are today. The most significant of these factors is the ongoing public service strike by the OPSEU against the Government of Ontario. Among the public service employees engaging in this strike are the Board's non-managerial (or otherwise excluded) office, clerical and administrative staff~ which includes the persons who process and prepare the notices, ballots and other materials necessary for a vote to take place, and the Board's Returning Officers: and the manner in which these and other applications have been dealt with by the Board since that strike began.

These two applications had developed a momentum of their own. This began with something as innocuous as an inquiry regarding the filing of materials in response to the applications, which led to exchanges between the parties and the Registrar and the Chair of the Board, and then to a teleconference on March 6, 1996 which I chaired.

No one objected to the teleconference. Indeed, all of the parties were quite content to participate in it. Further, all parties agreed that the applications should proceed further, although they disagreed on how they should proceed (i.e. the applicants argued that a vote or votes should proceed and that any hearing be held later [although they disagreed on which of the applications, which included Bd. File 4069-95-R at the time, the vote(s) should be in] while the employer and the incumbent trade union submitted that the various issues which they had raised should be heard before a vote, if any was held). To deal with how the applications would proceed, I convened a hearing on March 11, 1996. No one objected to this hearing either. Indeed, all parties agreed that it was appropriate to deal with that question.

On March 11 & 12, 1996, I dismissed as untimely an otherwise identical application by the USWA (in 4069-95-R), directed (under s. 111(3) of the Labour Relations Act. 1995) that the applications in 4070-95-R and 4072-95-R should be treated as having been made an the same day (as they in fact were) and that those two applications proceed together for all purposes including the taking of a 3-way representation vote, directed that that vote take place before a hearing is held (if one is necessary) with respect to the issues raised in the applications, and that the parties meet with a Board Officer to make the necessary arrangements for the vote. I also directed (on agreement of the parties) that a mailing be conducted in accordance with the procedure in Paragraph 16 of Metropol Security Services [1993] OLR.B Reports November 1154, and found that the voting constituency should reflect the bargaining unit agreed to by the parties. In a separate endorsement on March 12, 1996, I directed that the lists of employees filed by the employer be released to the parties prior to the Officer vote arrangements meeting.

I do not propose to try to detail the arguments made to me on March 22, 1996. In essence, the applicants said that it was essential that the vote(s) proceed, in whatever way the Board was able to carry that off, because of the size and particular circumstances of the applications and the time and expense involved in them. The applicants observed that the Labour Relations Act. 1995 mandates "quick and speedy" access to workplace democracy, that the magnitude of these applications heightens the need to proceed with them, and that because the status quo favours the incumbent trade union it is not neutral and indeed seriously prejudicial to both applicants if the Board does not do so.

The employer and Incumbent trade union wondered why it was that these applications should proceed when others are not, and on what basis the Board is determining which applications will proceed and which will not. They suggested that there is nothing which makes these applications so special that they should receive attention other applications are not getting, and that it is important that the Board maintain control over the vote process and documents.

The applicants responded that they were not prepared to let the Board "off the hook". They insisted that the Board proceed with these applications, and that the Board publicly state what it intends to do with matters which are or come before it during the strike. They submitted that the Board should proceed with all applications which are before it by modifying its processes as required in order to do so.

The concerns, either expressed or implied, of all parties are legitimate. On one hand, it is true that the Act provides for the speedy expression of workplace democracy through the representation vote which is now mandatory in all certification proceedings, and it recognizes that delay in certification proceedings is undesirable. On the other hand, it is also true that these applications have proceeded to a point that others have not. .Even though there are reasons for this, I can understand how this might give the appearance of special or preferential treatment.

The fact is that the Board has been directly and seriously affected by the public service strike. It is not "business as usual at the Board. Nor can it be. Never before has the Board been faced with a strike by its bargaining unit employees. Without these employees the Board cannot function. Having said that I am aware that some Board hearings which began before the strike have continued. I am aware that some new applications have been processed and some new hearings have been held (in an alleged unlawful strike application, and in applications with respect to disputes arising out of the public service strike itself). I suspect that this is no more than the Board trying to react to a situation it has no experience with. I say "I suspect" because I do not know why. I am not an administrative officer of the Board and I do not know the basis on which what happens when or where or in which case is being determined. Accordingly, I cannot comment on that. Nor can I deal with or comment on any applications other than the two before me herein.

Although difficult, the situation I was faced with was really quite simple. So far as I am aware, the Board simply does not have the ability to conduct by representation votes, much less in applications of the magnitude (in terms of the number of employees affected and the geographic scope of the bargaining unit) of these two. I was satisfied that these applications, and any representation vote(s) in them must remain completely in the Board's control, and that the Board cannot proceed with them until the strike is over (or its staff returns to work), and that the Board should not attempt to do so (particularly since it was common ground between the parties that what vote arrangements are appropriate may well depend on when the vote(s) is taken).

Do I think that this is a good or even acceptable labour relations result? No, I do not. But I have no legislative or supernatural powers. I cannot, the Board cannot, do something with when it hasn't the tools to do so. Is this neutral? I don't know that it isn't in a legal sense, although it may well not be neutral in a practical sense. But that is the effect of the public service strike, much like the effect in Ontario of the recent United Auto Workers strike in the United States.

In that respect, I note also that the employer (the Government of Ontario) and the trade union involved in the public service strike have entered into an Essential Services Agreement under the Crown Employees Collective Bargaining Act pursuant to which certain work and employees have been designated as "essential" and therefore exempt from the strike. Apparently, the Government of Ontario and the OPSEU do not consider what the Board does, or any part of it, to be essential because, as far as I am aware, none of the Board's work or bargaining unit employees have been designated as "essential". I doubt that I am the only one who finds it ironic that the Government and the OPSEU have nevertheless brought various matters concerning the st:^1~e before the Board.

I wish to comment on two other matters. First, the reference to "a” mailing in the first March 12, 1996 endorsement was not intended to suggest that there could or should be only one. I also note that at present there is no limit on the number of mailings, and that no party has the unilateral right to impose one. Notwithstanding the UFCWU's understandable desire that the parameters in that respect be established, I am not inclined to try to do so in the absence of any issue between the parties. Second, reasons for my earlier rulings will issue when they are ready and the Board is able to issue them, which I expect the Board to be unable to do until the strike has ended. I see no merit to the employer's assertion that a delay in that respect will prejudice it, but even if it is prejudicial, that too is an effect of the strike.

Finally, as I indicated to the parties on March 22, 1996, anyone who wishes to bring this endorsement or situation to the attention of the Registrar or the Chair of the Board, should feel free to do so.

G.T. Surdykowski, Vice-Chair

for the Board

APPENDIX 5

ENDORSEMENT

March 31, 1996 G.T. Surdykowski, Vice-Chair

Board Files 4070-95-R and 4072-95-R

By endorsement dated March 12, 1996, I directed, among other things, that a representation vote be held in these applications and that that representation vote take place before a hearing is held (if one is necessary). I am in the process of preparing written reasons for my various decisions in these applications, including my decision directing a representation vote, and it has come to my attention that I inadvertently failed to record the requisite finding under section 8(2) of the Labour Relations Act, 1995, in that respect. Even though that finding is implicit in my decision, it should be made explicitly. Accordingly, and pursuant to the provisions of section 114(1) of the Act, I hereby amend the first March 12, 1996 endorsement (i.e., the one in which I directed the vote) by inserting the following immediately after the direction that a vote be held prior to any hearing:

In that respect, I am satisfied, on the basis of the information provided in the two applications, and the information accompanying each application under section 7(13) of the Act, that 40% or more of the individuals in the bargaining unit herein appear to be members of the United Food and Commercial Workers Union, Local 333 (Canadian Security Union) at the time its application was filed, and that 40% or more of the individuals in the bargaining unit appear to be members of the United Steelworkers of America at the time its application was filed. Accordingly, under section 8(2) of the Act, each applicant is entitled to a representation vote, which, as I have already indicated, will proceed as a three-way vote.

G.T. Surdykowski, Vice-Chair

for the Board