International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687) v. Ontario Hydro, 1997 CanLII 15597

[1997] OLRB REP. JULY/AUGUST 700

0251-95-R International Brotherhood of Electrical Workers, Local 1687 (IBEW 1687), Applicant V. Ontario Hydro, Responding Party V. Power Workers' Union, CUPE Local 1000 ("PWU"), International Brotherhood of Electrical Workers, Local 1788 (IBEW 1788), The Electrical Power Systems Construction Association (EPSCA), The Electrical Contractors Association of Ontario (ECAG), Intervenors V. Group of Employees, Objectors

BEFORE: G. T Surdykowski, Vice-Chair.

APPEARANCES: A. M. Minsky and Larry Lineham for the applicant; Bob Wright for Ontario Hydro; Richard P Stephenson for the Group of Objecting Employees; Raj Anand, Kate Stephenson and Harry Tomsett for IBEW Local 1788; Brian D. Mulroney for EPSCA; Scott G. Thompson for the ECAO; C. Dassios for Power Workers' Union; Mark J. Lewis for LIUNA Local 183.

DECISION OF THE BOARD; July 31, 1997

1Lest it be forgotten or overlooked, I find it appropriate to observe that this application for certification is but one manifestation of a struggle for bargaining rights for construction electricians employed by Ontario Hydro. In that respect, it is difficult to discern a difference between the PWU and the defacto IBEW 1788 (as opposed to the de jure IBEW 1788 which has been put in place from time to time by the IBEW International and which participated in the earlier phases of these proceedings). In many ways, this application is a continuation of the dispute between the defacto IBEW 1788 which has allied itself with the PWU, and the IBEW International, for which IBEW 1687 is very much a surrogate in this matter.

2I also wish to reiterate that this application is governed by the Labour Relations Act which preceded the Act currently in effect; that is, by the Bill 40 Act, not by the Bill 7 Act (see paragraph 4 of the Board's February 27, 1997 decision reported at [1997] OLRB Rep. Jan./Feb. 82).

3In the February 27, 1997 decision in this and three other applications for certification, the Board held that the PWU is not a trade union within the meaning of section 126 (of the current Act but which is identical to the provision in the Bill 40 Act) of the Labour Relations Act and that it was therefore not entitled to bring the applications for certification it had made in those other three applications (that is, in Board File Nos. 0164-95-R, 0186-95-R and 0187-95-R). The Board therefore dismissed those three applications.

4This application remained to be dealt with. Accordingly, the Board directed the parties to make written representations setting out their positions with respect to how the application should proceed.

5Upon reviewing the representations of the parties in response to that direction, I issued a decision dated April 23, 1997. Keeping in mind that the parties are entitled to an adjudicator with an open mind not an empty one, I tried in that decision to identify what appeared to me to be the issues which remain to be addressed, and to offer my preliminary thoughts in that respect. Nothing which I have written or said in that respect should have been or should be taken to suggest that I have made up my mind with respect to any of the remaining issues. I merely wanted to give the parties some indication of my thinking in that respect, in an effort to offer them some guidance with respect to the further written representations which I directed the parties to make. I also directed the Registrar to schedule a single day of hearing for the purpose of disposing of as many of the remaining issues as possible on the basis of the materials filed by them, to hear any additional representations the parties cared to make at the hearing, and to try to establish a protocol and schedule a hearing to deal with any issues which remained unresolved.

6A hearing was convened in that respect on June 20, 1997. (I note that LIUNA Local 183 appeared at the hearing through counsel. It expressed an interest in the sector issue (see below) and did not otherwise seek to participate in this proceeding. The issue of its standing in the sector issue is appropriately dealt with if and when sector issue is dealt with.)

7In the Board's April 23, 1997 decision and the parties' subsequent written representations, the following issues were identified:

(1) Is the PWU entitled, or should it be allowed to participate further in this application? (IBEW 1788's standing is not in issue at this stage of the proceeding. It may be put in issue later in the proceedings.)

(2) Should the representation vote held on July 7, 1995 be counted now?

(3) Is the membership evidence filed by IBEW, 1687 in support of this application defective? In that respect, it is not suggested that the form of the membership evidence is deficient, but rather that it was obtained as a result of misrepresentations made by representatives of IBEW 1687 and the IBEW International. In addition, it seems to me that the facts alleged by the group of objecting employees in that respect raises a question regarding whether the persons with respect to whom IBEW 1687 has filed membership evidence have in fact applied to be members in it, in as much as it is alleged that it was represented to the persons who signed the applications for membership in IBEW 1687 which are the membership evidence that doing so did not constitute an expression of a desire to become members of or be represented by IBEW 1687 without a further subsequent indication of such a desire.

(4) Was there a collective agreement which covered the employees who are the subject of this application in effect at the time the application was made such that this application is untimely? This issue raises the question of the effect, if any, of a Letter of Understand­ing dated February 10, 1995 between Ontario Hydro and IBEW 1788.

(5) Is the "petition" which has been filed by the group of objecting employees a voluntary expression of the wishes of the employees who signed it, and if so, what effect should it be given?

(6) Was the work being performed by the bargaining unit employees at the material times in the electrical power systems sector or in the industrial, commercial and institutional sector of the construction industry?

8At the hearing on June 20, 1997,1 heard the parties with respect to the issues of the PWU's standing, whether the vote should be counted, and the order in which the other issues should be dealt with.

9Having considered the written and oral representations of the parties, and subject to what is said below (see paragraph 34 below), I am satisfied that the PWU does not have standing to participate further in this proceeding as of right, and that there is no reason to grant it such standing in the exercise of the Board's discretion.

10The PWU, supported by IBEW 1788 and the group of objecting employees, asserted two bases upon which it submitted it has or should be granted standing to continue to participate in this application:

(a) the representational authorization it asserts it has from the employees in issue as demon­strated by membership evidence it has filed; and

(b) its collective agreement with Ontario Hydro, the responding employer herein, may cover the employees who are the subject of this application, and may otherwise be affected by this proceeding.

Accordingly, argued the PWU, it has an interest in the application which is direct, substantial and legal, and as such is entitled or should be allowed to participate.

11In the July 7, 1995 decision in Canadian Union of Shin glers & Allied Workers, (Board File No. 0014-95-R, unreported), the Board had this to say about an attempted intervention:

17. Dealing first with Local 30's intervention, a party which seeks to intervene in a proceeding before the Board must demonstrate a real discernible legal interest in the proceedings, or persuade the Board that it is able to provide the Board with assistance which is required to ensure that all of the issues are properly presented, such that it should be granted a kind of amicus curiae status. In representation proceedings, a trade union or organization of trade unions must generally establish that it is the bargaining agent for or otherwise represents at least some of the employees who may be affected by the application. Amicus curiae status, which is invoked as a matter of the Board's discretion, has rarely been granted. (Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, provides an example of when it was granted. In that case, the United Steelworkers of America was granted amicus curiae intervenor status limited to making representations on the legal and policy issues raised by an application for certification by the International Brotherhood of Electrical Workers, Local 1687 for a bargaining unit of maintenance electricians, notwithstanding that the Steelworkers neither represented those employees nor sought to do so. Intervenor status was granted on the basis that the Steelworkers was the dominant trade union in the mining industry and represented many mine maintenance electricians within broader bargaining units. In another case, New Dominion Stores, [1986] OLRB Rep. Apr. 519, the United Steelworkers of America was denied such an intervenor status.)

18. In order to provide a basis for status, an interest must be direct and substantial. An interest which is merely political, which is anticipatory or speculative, or which is concerned with an indirect economic or commercial effect is not sufficient to entitle a party to intervene in a proceeding. Nor is the fact that a decision in a proceeding may be used or referred to as a precedent in another proceeding (New Dominion Stores, supra, at page 521; and, more generally, see Re Schofield and Minister of Consumer and Commercial Affairs, 1980 CanLII 1726 (ON CA), 28 OR. (2d) 764 (Ontario Court of Appeal)).

19. To support an intervention on an amicus curiae basis, the Board must be persuaded that the parties seeking to intervene can provide it with real and substantial input on important issues which the Board is unlikely to receive from the direct parties, and that the participation of such an intervenor will not cause undue delay or prejudice the rights of a direct party.

20. In this case, Local 30 does not purport to represent any employee of any of the roofing contractors involved. The collective agreement between the Ontario Industrial Roofing Contractors' Association and the Built-Up Roofers', Damp & Waterproofers' Section of the Ontario Sheet Metal Workers' Conference, effective until April 30, 1995 will not be effected. Nor will any of its interests in the industrial, commercial and institutional sector of the construction industry since neither the Labourers' International Union of North America nor any of its Locals which are affiliated bargaining agents can represent sheet metal workers or roofers in the industrial, commercial and institutional sector. Nor was it apparent that Local 30's participation would provide the Board with relevant input which the applicants, the CUSAW or their RRCA would not. In that respect, whether the Labourers' International Union of North America or its Locals can represent workers engaged in roofing in the residential sector is not in issue before the Board in this case. Although the Labourers' union may be present in this application in spirit, it is not here as a party and does not seek to represent any such employees in this application. In the result, I was not persuaded that Local 30 has any direct or substantial or legal interest in this application such that it is entitled to participate in this proceeding. Nor was I satisfied that there was any other cogent reason to permit Local 30 to participate in the exercise of the Board's discretion.

Further, in Domtar Inc., [1992] OLRB Rep. Nov. 1184, the Board noted that:

13. A trade union which seeks to intervene in another party's application for certification must establish that it either represents or is the bargaining agent for at least one employee in the bargaining unit which is the subject of that application. However, as the Board observed as long ago as Napev Construction Limited, [1976] OLRB Rep. Mar. 109, a trade union seeking to intervene in another party's application must either be the present bargaining agent or hold representational authorization from one or more persons in the bargaining unit. Evidence of representational authorization upon which a trade union seeking intervener status seeks to rely may be filed subsequent to the terminal date fixed for the application for certification in question. Indeed, it has been the Board's practice to accept such evidence as late as the hearing at which the issue of the right to intervene is dealt with (see for example, Chukini Lumber Company Limited, [1970] OLRB Rep. Apr. 63; Runneymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1306; Les Ingenieries Consbec Inc., [1976] OLRB Rep. Nov. 1402).

[emphasis supplied]

12In effect, the PWU submitted that it both had representational authorization from, and was the bargaining agent for, employees in the bargaining unit herein.

13In my February 27, 1997 decision, supra, I wrote that in its application in Board File No. 0187-95-R the PWU sought to displace IBEW 1788 as the bargaining agent for Ontario Hydro employees covered by the "Transmission Agreement" between Ontario Rydro and Local 1788. Of course, it is the EPSCA and not Ontario Rydro which is the employer party to the Transmission Agreement, although section 2 of the collective agreement relevant to these proceedings provides that it applies to "... all construction industry work performed on transmission systems for Ontario Hydro on Ontario Rydro property ... in ... Ontario...", and Ontario Hydro is the responding employer in all of these applications. In any case, it was a displacement application. Further, I observed that the PWU's application in Board File No. 0164-95-R appeared to be both in the alternative to its own applications in Board File No. 0186-95-R and, more particularly, Board File No. 0187-95-R, and also a pre-emptive response to IBEW 1687's application herein. The connection between the PWU's applications in Board File No. 0187-95-R and 0164-95-R is apparent on the face of the two applications, and is demonstrated by the PWU's stated intention to rely on the eight pieces of membership evidence which it filed in support of its application in Board File No. 0164-95-R and in Board File No. 0187-95-R as well, and by its pleadings in support of its application in Board File No. 0164-95-R that:

It is the position of the applicant that this bargaining unit, at least as it relates to the site where work is currently being done, is part of a much larger bargaining unit covered by a province-wide agreement between the IBEW Local 1788 and Ontario Hydro. The applicant's initial position is that a bargaining unit such as the one sought in this application is not appropriate. However, another Certification Application is currently being filed by another Union in respect of these employees and the applicant is therefore filing this Certification Application in the alternative to its position, should the Ontario Labour Relations Board determine that the Unit is appropriate.

14Similarly, in its intervention in this application the PWU pleaded as follows:

The Intervenor understands that a Certification Application is being filed by the International Brotherhood of Electrical Workers and/or its Local 1687.

The employees in respect of which this Application is being made are members of the Intervenor.

The bargaining unit being sought by the Applicant in this matter is inappropriate as it forms part of a much larger province-wide bargaining unit in respect of the electrical power systems construction sector covered by the Collective Agreement enclosed with this Intervention. Alternatively, if the bargaining unit sought does not form part of the province-wide IBEW bargaining unit, the Applica­tion is untimely as the enclosed Letter of Understanding would constitute a Collective Agreement and a period of one year has not passed since its signature.

In the further alternative, if this Application is allowed to proceed, the Power Workers' Union, CUPE Local 1000 should be listed as a Union on the ballot in the vote. This Intervenor has filed a Certification Application in respect of the employees at issue here.

Also in support of its intervention in this application, the PWU has submitted a copy of the Transmission Agreement, (the collective agreement referred to in its intervention) a copy of what has been referred to in these proceedings as the Leigh's Bay Agreement (the Letter of Understanding between Ontario Hydro and IBEW 1788), and referred to the membership evidence it has filed in support of its application in Board File No. 0164-95-R.

15I am not satisfied that any union which is able to file membership evidence with respect to at least one employee who is affected by an application for certification has, on that basis alone, sufficient representational authorization to entitle it to participate in an application for certification by another trade union.

16Employees affected by an application for certification have a right to participate in proceed­ings before the Board in that respect. They may do so directly with or without counsel (or other competent representation), or through a trade union other than the one seeking certification, or through some other organization, and which other union or organization may provide counsel or other represen­tation. It is fair to observe that there is no shortage of previous cases in which the Board appears to have proceeded on the assumption that in circumstances where there was nothing to suggest otherwise, the sort of membership evidence on which the PWU relies in this case constituted an implicit representa­tional authorization for purposes of conferring standing to participate in an application for certification by another trade union.

17Where a trade union has made its own application for certification with respect to a particular bargaining unit of employees, it probably has a right to participate in another trade union's application for certification which affects at least some of the same employees (although it is more likely that the Board would make a determination under what is now section 111(3) of the Act - section 105(3) of the Bill 40 Act). However, it is not at all obvious that the mere fact that one or more affected employees happen to be members of a trade union necessarily gives that trade union representational authority to participate in another trade union's application for certification in circumstances where the trade union seeking to participate is otherwise a stranger to the proceeding and does not otherwise have an representational authority in the workplace. Take, for example, an application for certification for a bargaining unit of (non-ICI) construction employees. If the application is by a Local of the United Brotherhood of Carpenters and Joiners of America but one of the employees affected happens to be a member of the Labourers' International Union of North America (a not altogether rare circumstance in the Board's experience), does this happenstance automatically entitle the Labourers' Union to partici­pate in the application by the Carpenters' Union? Or what if one of the affected employees happens to be a member of the CAW-Canada, for example? Is the CAW-Canada entitled to standing? I think not, at least not on that basis alone.

18It becomes easier to understand why this is the case if one begins by returning to first principles. By its very nature, the most that any authority obtained by a trade union which holds no bargaining rights which are or might be affected by an application for certification affected confers just that, an authority to represent employees who have given the authorization and not some sort of independent right to participate. Such a trade union's ability to participate in another trade union's application for certification is rooted in and entirely dependent on it.

19Whether a trade union has obtained appropriate representational authorization to permit it to participate will depend on the circumstances. The mere fact that an affected employee is or has applied to become a member of a trade union or other organization does not by itself confer sufficient representational authorization in that respect, unless a consequence of being or applying to be a member carries such an authorization with it. Trade unions exist to organize and represent employees in employment-related dealings with their employer. The purpose of typical such membership evidence is to support an attempt by a trade union to secure such bargaining rights, generally through the certifica­tion procedures under the Act, but sometimes through voluntary recognition. That is the representational authorization which is conferred by typical membership evidence. It is not about, and does not by itself confer, a representational authorization with respect to employees' dealing with other trade unions, whether in an application for certification by another trade union or otherwise.

20The PWU's claim to representational authorization to participate in IBEW 1687's applica­tion is based on the membership evidence it obtained and filed to support its own applications for certification in Board File Nos. 0164-95-R and 01 87-95-R. Prima facie, insofar as that was the intended purpose of that membership evidence, the usefulness of the PWU's membership evidence in these proceedings was exhausted when its applications were dismissed.

21Further, the PWU's membership evidence is in the following form:

APPLICATION FOR MEMBERSHIP IN POWER WORKERS' UNION

I the undersigned:

a. Apply for membership in the above union and agree to abide by its constitution and by­laws:

b. Authorize the union to be my exclusive bargaining agent.

Signed (X)

On behalf of the above mentioned Union. I hereby accept this application.

Signed ____________________________________ on behalf of the Union.

Date

22This "Application for Membership" is not in the form contemplated by the PWU constitution filed in these proceedings. In that respect, Article 1 provides that "Member":

shall mean an employee who has signed an application for membership in the Union in the form appearing in Schedule I to this Constitution and whose application has been accepted by the Executive Committee.

Article IV(l) provides that:

All employees of the Hydra [sic] who sign an application for membership in the form appearing in Schedule 1 to this Constitution shall be eligible for and shall be admitted to membership in the Union subject to acceptance by the Executive Committee. If membership is withheld by the Executive Committee, such withholding shall be subject to approval by the Executive Board.

The Form in Schedule 1 is as follows:

Dues Authorization and Application for Membership

I, the undersigned employee of [insert name of employer], hereby authorize and direct [insert name of employer] to deduct from my wages or salary an amount equal to the current weekly dues of the Union, on a weekly basis, and to pay the same as my dues to the Financial Officer, Power Workers' Union, C.U.P.E. Local 1000- C.L.C.

I hereby apply for membership in the Power Workers' Union, Canadian Union of Public Employees Local 1000 - C.L.C. and agree to conform to and be bound by the Constitution of the Union. I desire to have the Power Workers' Union, C.U.P.E. - C.L.C., act as Bargaining Agent for me.

Name: Empl. No.:

Signature: P.R. No.:

Witness:

In addition, Article XXXII 3.11 provides that:

Any person who was a member in good standing of Local 1788 on March 1, 1995 (including those persons holding valid Withdrawal Cards on that date) shall be entitled to membership in the Union upon application. Such membership shall not require the payment of any initiation fees or other assessments to the Union.

23Assuming that the application for membership forms upon which the PWU relies are "valid" under its Constitution (which form would otherwise clearly be sufficient to constitute membership evidence for the Board's purposes in an application for certification by the PWU) all that any employee signing such a document has done is apply for membership in, agreed to pay dues to and be bound by the constitution and by-laws of the PWU, and authorized it to be his/her exclusive bargaining agent. The latter is something which can only be given effect if the PWU obtains bargaining rights, and refers to collective bargaining and dealings on employment matters with an employer. There is nothing on the face of this membership evidence which authorizes the PWU to represent the employees in this application by IBEW 1687, or in any other dealings with another trade union. Further, there is nothing in either the PWU's constitution or by-laws which have been filed with the Board in the course of the proceeding which supports its assertion that the membership evidence it has filed confers sufficient representational authority to permit the PWU to participate in this application.

24Even if the PWU's membership evidence could clothe it with a sufficient representational authorization for purposes of this application by IBEW 1687, 5 out of the 8 employees affected constitute the group of objecting employees which is participating directly as a separate party, with counsel.

25Employees are entitled to participate in certification proceedings which directly affect their rights under the Labour Relations Act, 1995. However, this cannot mean that every individual employee will necessarily have the right to participate separately. Whether or not employees are entitled or should be permitted to participate separately will depend on the circumstances.

26In most cases, affected employees will fall within one of two categories: those who support the application for certification and those who oppose it. Generally, it is not appropriate that employees who support the application be allowed to participate in the proceedings, either individually or in a group to give voice to that support. Their support is demonstrated through the membership evidence filed by the applicant trade union and, under the current act, through the representation vote, and their interest in any other aspect or issue in the proceedings is coincident with and appropriately represented by the applicant trade union. Similarly, employees who oppose an application for certification and who wish to appear before the board in that respect are not necessarily entitled to participate in the proceeding separately, either as individuals or in more than one group. Employees who oppose an application for certification may have different levels of interests in particular issues in an application for certification. But they are united in interest in the primary issue: namely, whether the applicant trade union is entitled to be certified. That being the case, it is generally appropriate to require that "objecting employees" speak with one voice; that is, that they participate in one group as a single party (in a way which is somewhat analogous in civil proceedings in certain circumstances, for example).

27I hasten to add that this will not always be the case. The nature of the positions which employees wish to take, or the issues with respect to which they wish to participate may entitle them or make it appropriate to permit them to participate in a configuration other than a single entity. This may be a result required by law, or it may be a matter of hearing management. In that latter respect, it would benefit no one if a hearing became difficult to manage because a number of employees with substantially the same interests decided for some reason that they wished to participate individually or in several groups.

28The right to participate and be heard does not necessarily translate into an individual and separate right to be heard regardless of the circumstances. Employees cannot be part of two or more separate parties which are allied in interest in the same proceeding before the Board, or if they can, they are not entitled to be represented more than once. Having organized themselves into a group, which has filed a "petition" and indicated a desire to participate in this proceeding in order to oppose the application, and having retained counsel in that respect, the group of objecting employees has repudiated any representational authorization which might be suggested by the PWU's membership evidence.

29With respect to the three employees who are not part of the group of objecting employees, there is no suggestion that they have an interest which is incompatible with or even different from that of the five employees who constitute the group of objecting employees. Indeed, while they have not signed the petition which has defined the group of objecting employees to date, it is apparent that these three employees are part of the group of objecting employees in spirit and for all practical purposes they are allied in opposition to the application. Further, there was no reason suggested for allowing them to participate as a separate party. Accordingly, even if the membership evidence filed by the PWU with respect to its own applications for certification also represents a sufficient representational authority for purposes of this proceeding, the eight employees must decide whether they want to be represented by the PWU in this proceeding, or participate as the group of objecting employees as such. They cannot do both. They can be represented once, not twice.

30As to the second basis for the PWU's claim to standing, I am not persuaded that the PWU can be permitted to rely on its collective agreement with Ontario Hydro as a basis for standing to participate in this application, or to assert that that collective agreement covers the employees affected by this application and therefore constitutes a bar.

31The first time that this position was asserted was in the PWU's June 13, 1997 letter to the Board, more than three years after this and the PWU's own applications for certification were made. Not only was there no hint of this earlier, but the very fact that the PWU obtained the membership evidence which forms the basis for its "representational authorization" position, and that it made not one but two applications for certification with respect to the employees who are the subject of this application is completely inconsistent with such an assertion. Indeed, in its pleadings and throughout the various proceedings in this and the PWU's three applications for certification, the PWU has consistently asserted that the employees were covered by either the Transmission Agreement (which was in an "open period" and therefore the PWU's application to displace IBEW Local 1788 as bargaining agent was timely) or by the Leigh's Bay Letter of Understanding as a separate collective agreement (in which case the PWU's own application Board File No. 0164-95-R would have been untimely). Further, it is no secret that for many years the PWU has represented Ontario Rydro employees who have regularly performed a substantial amount of electrical construction work under its collective agreement with Ontario Rydro. Indeed, once the Board determined that the PWU had to establish that it is a "trade union" within the meaning of section 126 of the Act in order to be able to bring its three applications for certification, the fact that it has represented employees who have performed construction work under the PWU's collective agreement with Rydro was the very basis for the PWU's assertion that it was a construction trade union; that is, a "trade union" within the meaning of section 126. The litigation of that issue consumed many days of hearing spaced over approximately one year, and at no time until many months after the hearing concluded and the Board decision issued did the PWU assert that its collective agreement with Ontario Rydro covered any of the affected employees, and in particular the employees employed on the Leigh's Bay project. Accordingly, the PWU cannot be heard to make that assertion now.

32Even if I were persuaded that it was appropriate to allow the PWU to maintain such an assertion at this late stage, I would be constrained to conclude that, having failed to assert any bargaining rights either on the Leigh's Bay project itself or in these proceedings, the PWU has abandoned any bargaining rights it might arguable have had in that respect. Although abandonment was not specifically raised at the June 20, 1997 hearing, the pertinent facts are found in the PWU's own applications and pleadings, and are incontrovertible.

33Finally, I am not persuaded that the PWU could bring anything to the remainder of this proceeding which would justify giving it an amicus curiae status in the exercise of the Board's discretion.

34In the result, I am not persuaded that the PWU has or should be granted standing to participate further in this application. However, if the employees affected by the application, which includes the five employees who constitute the group of objecting employees and the three who are not part of that group, elect to have the PWU represent them as a single party, the PWU will be allowed to participate as their representative. The employees will have 14 days to make their election in that respect, and to advise the Board in writing of their decision, failing which they will be deemed not to have selected the PWU as their representative in this proceeding and the matter will proceed without it.

35I now turn to the question of whether the representation vote should be counted.

36My initial inclination was to count the ballots. However, I have concluded that there would be no value in doing so.

37In its decision dated June 28,1995 in which the Board directed that a pre-hearing representa­tion vote be taken (even though the applicant did not request such a vote) in the voting constituency agreed to between the parties, the Stamp panel directed that voters be asked to indicate whether they wished to be represented by the PWU or IBEW 1687 in their employment relations with Ontario Hydro. The form of the ballot used in the vote reflects the Board's decision in that respect. Accordingly, voters were given a single ballot which gave them a choice between the PWU and IBEW 1687. IBEW 1788 did not appear on the ballot and voters were not given a "no union" option.

38What then is the value of such a ballot, in circumstances in which the PWU's applications for certification have been dismissed on the basis that it is not a "trade union" within the meaning of section 126 of the Act and therefore cannot apply for certification under the construction industry provisions of the Act? I am not satisfied that it has any value. As a result of the Board's February 27, 1997 decision, the choice which the form of ballot used in the vote gave to employees was not one which was open to them to make. The voting constituency agreed to by the parties and used in the vote does not contemplate the possibility that the Transmission Agreement covered the employees affected by this application. (Indeed, no one has suggested that this is a possible result, presumably because if that is the case, the application is timely but it is likely that IBEW 1687 filed insufficient membership evidence to even entitle it to a representation vote. However, if a vote was directed, the employees would in those circumstances be given a choice between IBEW 1687 and IBEW 1788.) But one possible result which the Board decision and ballot did not contemplate is that of a representation vote offering employees the choice of IBEW 1687 or no union is appropriate. This would be the case if the petition relied upon by the group of objecting employees is found to be voluntary, but all other issues which stand in the way of Local 1687's application are determined in its favour. The form of the ballots used in the vote held on July 7, 1995 does not reflect this choice. It is one thing to offer employees a choice between two unions and quite another to offer them a choice between one or more unions and no union. On one hand, an employee may favour one union or another but would prefer to have either union rather than none at all. On the other hand, an employee may not want to be represented by any trade union, but if that is not an option would prefer to be represented by one union rather than the other. It is not apparent that a vote in Which voters were asked to choose between the PWU and IBEW 1687 gives any indication of the employees' wishes with respect to a choice between Local 1687 and no union.

39Further, IBEW 1687 did not ask for a representation vote at all. It continues to assert that it is entitled to be certified without a vote, as indeed it is if all of the remaining issues are determined in its favour (since the "vote in every case" provisions of Bill 7 do not apply to this application: see paragraph 4 of the February 27, 1997 decision). In addition, it is apparent that whatever might be gleaned from the results of the vote which has been taken, all of the matters which are in issue will remain in issue, and the litigation of this application will continue. If it could be discerned that IBEW 1687 won the vote, the parties opposed to the application would continue to assert that the application is untimely and that IBEW 1687's membership evidence is defective, and that in either case the application should therefore be dismissed. On the other hand, if it could be discerned that IBEW 1687 lost the vote, it would continue to assert that it is entitled to certification without a vote and all of the issues, including the timeliness of the application, the adequacy or sufficiency of IBEW 1687's membership evidence, and the voluntariness of the petition would still have to be litigated. In other words, no result which could possibly be discerned from the vote which has been held would be dispositive of this application or any significant part of it.

40Accordingly, I am not satisfied that there is any purpose to be served by counting the ballots cast in the July 7, 1995 representation vote herein now, or perhaps ever. The ballot box will therefore remain sealed.

41Having regard to the representations of the parties, I find it appropriate to direct that the remaining issues be dealt with in the following order:

(a) the status of the Leigh's Bay Letter of Understanding; that is, whether it constitutes a collective agreement which bars this application;

(b) the adequacy and sufficiency of IBEW 1687's membership evidence and the voluntariness of the petition;

(c) the sector issue.

42In that respect, the Leigh's Bay Letter of Understanding issue is a severable one which may lead to a further reduction of the parties if it is determined in favour of IBEW 1687, although if it is determined against IBEW 1687 it will make it necessary to determine the sector issue, unless the membership evidence issue is also determined against IBEW 1687.

43Whatever the determination of the Leigh's Bay Letter of Understanding issue, the member­ship evidence issue will have to be addressed. This issue appears to be so intertwined with a petition issue that it makes no sense to try to separate the two, and it is appropriate to deal with them together.

44Finally, the sector issue is both severable and whether it needs to be addressed at all depends upon the determination of the other issues. In addition, the nature of sector disputes is such that the proceedings tend to be cumbersome and lengthy (even relative to this one). Accordingly, it is appropriate to leave it to the end, and to address it only if a determination of the sector issue is necessary to the disposition of this application.

45The Registrar is directed to schedule a hearing for purposes of hearing the evidence and representations of the parties with respect to the Leigh's Bay Letter of Understanding issue; namely, whether this constitutes a collective agreement which bars this application. Rearing dates are to be scheduled in consultation with the parties, such consultation to take place after the affected employees who wish to participate in this application elect or are deemed to have elected, representation by either the PWU or the group of objecting employees. In the event that the parties are unable to agree to hearing dates within a reasonable period of time, I am prepared to set peremptory dates.