Scotland v. Retail, Wholesale Canada, 1998 CanLII 18274

[1998] OLRB REP. NOVEMBER/DECEMBER 1037

3623-97-U; 4062-97-M; 4063-97-U; 4447-97-M; 0808-98-M Patricia Scotland, Pa­mela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle, Applicant v. Retail, Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Party v. Wal-Mart Canada Inc., Intervenor; Wal-Mart Canada Inc., Applicant v. Patricia Scotland, Pamela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle and, Retail Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Parties; Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Party; Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 1000, Applicant v. Wal-Mart Canada Inc., Responding Party; Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1000, Responding Party

BEFORE: Russell G. Goodfellow. Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: George W King, Kimberly Michaelis, Lee Ann Beggs and Tricia Scotland for the individual employees; Stewart Saxe, M. Lisa Kirby, William R. Watson, Robert Wasserman and Don Herman for Wal-Mart Canada Inc.; James K A. Hayes, Amanda Pask, John-Paul Alexandrowicz, Thomas Collins and Mary McArthur for Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 1000.

DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; December 22, 1998

1. This decision deals with the question, "is a proposed collective agreement ratified if more than fifty percent of the employees voting select the first option on the following ballot":

RETAIL WUOLESALE CANADA

Canadian Service Sector Division of the

United Steelworkers of America

YES I accept the Company offer

NO I do not accept the Company offer & I instruct the

Negotiating Committee to call a strike if necessary

in order to attain a proper agreement

2. The issue arises in the context of five of approximately one dozen applications presently pending between various of these parties.

3. The issue was argued on the basis of certain agreed facts, the evidence of Tom Collins, the Director of the Retail Wholesale Canadian Service Sector Division of the United Steelworkers of America, a research study prepared for the employer by a professor at the University of Toronto, and affidavit evidence of five employees. Counsel for the employer, Mr. Saxe, also sought to call the evidence of a professor of philosophy, with a specialty in language and logic, from the University of Toronto and an expert on polling from Goldfarb. Counsel for the union, Mr. Hayes, objected to the Board receiving that evidence and a majority of the panel (Ms. Rundle dissenting) upheld that objection.

Facts and Submissions

4. The essentials of the relevant evidence are as follows. The union was certified. The parties bargained. A proposed collective agreement was achieved. The union held a ratification vote. The ballot offered a straight "accept" or "reject" choice. The union recommended acceptance. The majority (102-68) opted for rejection. The union went back to the bargaining table. A conciliation officer was appointed. Very few additional gains were achieved. The union believed that it had done all that it could in the circumstances. The union was also relatively satisfied with what it had accomplished. The union requested a "no-Board report". It also decided to hold a second vote. Given the point to which collective bargaining had come, the union believed that the only realistic alternative to ratifying the proposed collective agreement was a strike authorization. Accordingly, it announced its intention to use the ballot set out above. Before the vote was held, counsel for the objecting employees, Mr. King, advised the union of his clients' position that the proposed form of ballot was improper and contrary to the provisions of subsection 79(7) of the Act. The vote proceeded as planned. The union recommended ratification. The majority of employees voting (109-39) selected the first option on the ballot.

5. On the basis of the foregoing, the union says that the proposed collective agreement has been ratified and that the parties have now achieved a collective agreement. The objecting employees and employer submit that there has been no ratification. They submit that the form of ballot that was used is inconsistent with the requirements of the Labour Relations Act, 1995 and, in particular, section 44 which states:

6. (1) A proposed collective agreement that is entered into or memorandum of settlement that is concluded on or after the day on which this section comes into force has no effect until it is ratified as described in subsection (3).

(2) Subsection (1) does not apply with respect to a collective agreement,

(a) imposed by order of the Board or settled by arbitration;

(b) that reflects an offer accepted by a vote held under section 41 or subsection 42(1); or

(c) that applies to employees in the construction industry.

(3) A proposed collective agreement or memorandum of settlement is ratified if a vote is taken in accordance with subsections 79(7) to (9) and more than 50 per cent of those voting vote in favour of ratifying the agreement or memorandum.

(emphasis added)

Also relevant are the following provisions:

2 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.

79. . . .

(4) If no collective agreement has been in operation, no employee shall strike unless a strike vote is taken on or after the day on which a conciliation officer is appointed and more than 50 per cent of those voting vote in favour of a strike.

(7) A strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.

(8) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement.

(9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.

6. The objecting employees and employer submit that the introduction of the mandatory ratification and strike vote provisions (i.e. sections 44 and 79(4)) was a central feature of Bill 7. Together with the requirement for votes in certification applications, the purpose was to promote "workplace democracy" and to enhance the rights of individual workers. Through the mechanism of the secret ballot vote employees were to be given the statutory right to determine whether they will be represented by a trade union, whether they will be bound by a particular collective agreement, and whether they can be asked to go on strike. A ballot that collapses the ratification and strike questions into one frustrates the statutory purpose by effectively removing the "no" option. In order to reject the proposed collective agreement, employees must be prepared to authorize a strike.

7. Mr. King describes the ballot as a form of coercion that is not dissimilar in its likely effect on employee wishes to the choice that the Board said had been presented to employees by the employer that led to the union's automatic certification in the first place. Both choices raise the spectre of an inability to earn income and, therefore, prevent the Board from being able to ascertain the "true wishes" of employees on the simple question of ratification. According to Mr. Saxe, the ballot is akin to a "Soviet ballot". It leaves an employee who may not want the particular agreement and who may also not want to go on strike (or at least not yet) with no option. How does such an employee vote? The ballot also ties the hands of the employee who would prefer to ratify the agreement but who would be prepared to authorize a strike if that is what a majority of his or her colleagues want. Can the Board be confident that a vote in favour of the first option means that the employees actually favour ratification? Mr. Saxe submits not. The ballot effectively disenfranchises such employees.

8. Referring to the language of the statute, the objecting employees and employer submit that a vote that does not offer a straight "yes" or "no" choice prevents the Board from being satisfied that "more than 50 percent of those voting vote[d] in favour of ratifying the proposed collective agreement" as required by section 44(3). These parties submit that the only "meaningful" vote - the only vote on the basis of which the Board could be so satisfied - is one that presents a clear "yes" or "no" choice on ratification alone. The presence of the strike authorization, as a caveat to the "no" option, essentially corrupts the question and compromises the results of the vote. These parties also note that the language of section 44(3) (and section 79(4)) is essentially the same as that which appears in section 10 dealing with certification applications. In the context of certification applications, the Board must be satisfied that a majority of the ballots cast by employees were cast "in favour of' the union. Compound questions are not asked in certification applications and they must not be asked here.

9. These parties also argue that principles of democracy require the presentation of a clear and unfettered choice. In this case, the choice must be as between ratification or not. A ballot that offers a choice between ratification and a strike authorization is not democratic; rather is a form of; coercion that deprives employees of their freedom of choice. While it is true that the Board has sanctioned the use of such ballots in the past, the law has changed. Ratification and strike votes are now mandatory. They are no longer matters within the union's internal affairs. The question of ratification (and strike authorizations under section 79) has been given to employees for determination. Employees are now statutorily entitled to express themselves fully and freely on whether they wish to ratify a proposed collective agreement and whether they wish to go on strike. This means that there must be a simple "yes" or "no" choice, rather than the "hard choice" to which unions would like their members to be put and which the Board has allowed in the past.

10. On that basis, the objecting employees and employer ask the Board to declare that the vote is of no force or effect, to direct that a new vote be held, and to order that it be supervised by the Board.

11. Counsel for the union, Mr. Hayes, argues that there is nothing wrong, and much that is right, with the form of the ballot. Counsel submits that the only "meaningless" vote is one that could lead to a "no-ratification" -"no-strike" outcome. Where, counsel asks, would collective bargaining go from there? The reality is, nowhere. A collective agreement would not be achieved and the trade union's bargaining rights would wither and die. Mr. Hayes submits that that result, which this ballot seeks to avoid, is inconsistent with the scheme of the Act and is not required by the language of section 44(3).

12. Quoting from prior Board case law, Mr. Hayes points out that this form of ballot "has a long history and ... an important labour relations purpose in this province". Indeed, its use has received the Board's express approval: see Lilo Rail of Canada Limited, [1983] OLRB Rep. Sept. 1496. Given the clarity of the Board's case law, and the interpretive principle that the Legislature is presumed to know it, there can be no reason to conclude that the Legislature intended to outlaw this form of ballot.

13. Mr. Hayes submits that requiring the use of a "yes" or "no" ballot in circumstances such as these performs no labour relations purpose. It does not advance collective bargaining and may give rise to a de facto (and untimely) termination of bargaining rights. Counsel submits that the position advocated by the objecting employees and employer represents a direct intrusion into what has historically been a matter of internal union affairs. The Board has said that trade unions must be accorded a measure of independent discretion in this area. As the employees' lawfully designated bargaining agent, the union is entitled to make choices for employees and, as well, to take steps that seek to preserve the collective bargaining relationship. It is the union's job to attempt to negotiate the best collective agreement that it can. Once it believes that it has done so, and assuming that the goal of collective bargaining is to achieve a collective agreement, the union must be entitled to confront employees with the "hard choice": "do you want what's on the table or are you prepared to authorize a strike to do better?". This is the realistic choice that the Board has said ultimately promotes compromise and the peaceful resolution of collective bargaining disputes. Employees are taken to be aware of this when they opt for unionization: see Beatrice Foods (Ontario) Limited, [1982] OLRB Rep. Apr. 519.

14. The union relies on the reasoning and result in Lilo Rail, above. As conceded by Mr. King, the facts of that case are essentially the same as this one. In Lilo Rail, however, the matter arose as a section 96 complaint in which the complainants alleged that the use of a ratification/strike form of ballot breached sections 74 and 76, and that the use of this form of ballot was implicitly precluded by sections 79(7) and (8). [All statutory references are to the present.] Dealing with the former issues first, the Board stated:

15. The issue is not dissimilar from that before the Board in K-Mart, supra. There the company's offer bad been rejected by the bargaining unit, but on the resumption of bargaining, the company made it plain that that was its "final offer" and, being aware of the lack of support for a strike, stated that it had no intention of making any improvements. The union then decided to recommend the contract as the best that could be obtained in the circumstances, and put the offer back to the members for a second vote. At the ratification meeting were a large number of employees openly hostile to the union's bargaining rights, and the contract was turned down by a margin of 67-68. The union recognized that it did not have the strength to call a strike, and so exercised its prerogative under its constitution to sign the contract, in spite of the negative vote. A group of dissident employees complained to the Board that the union's duty of fair representation had been breached. The complainants made many of the same arguments that were put to the Board in the present case, and the Board was firm in rejecting all of them. The Board discussed the critical points as follows:

16. It is argued by the complainants that the union's conduct was "undemocratic" and thus contrary to section 60 [now 74]. There are several answers to this submission. First the Act does not purport to regulate internal union democracy per se - perhaps in recognition of the fact that a union is a "fighting organization" and may have its effectiveness as a collective bargaining mechanism impaired if its officers were regarded as "delegates" rather than "representatives" of the employees in the union. Secondly, the reference to democracy is not really very helpful. Not only does it ignore the special collective bargaining context but even in "democratic" institutions such as the Legislature or Parliament, once representatives are elected they are left to vote as they wish or enact laws even though a majority of their constituents may not agree with their position. The remedy is at the ballot box, or in the present context, through a termination application. In determining whether there has been a breach of section 60 [now 74] in the instant case, we have found it more helpful to ask what the union could/should have done? What were its options?

In line with those latter questions, the Board observed:

35. We do not think that the union was required to resume futile bargaining, engage in an unpopular and abortive strike, or walk away from its bargaining rights, for, to hold that it was required to adopt any of these options would be to say either that it must participate in a pointless charade, and engage in an exercise in self-destruction, or that the repudiation of the employer's offer should be construed (as Mr. Bhatia did) as an effective termination of its bargaining rights. We are not prepared to make such finding. There is no doubt that the union carefully considered the options open to it, and weighed all of the circumstances - including the collective bargaining reality of the situation, the terms of its constitution, and the motivation of its opponents.

36. In a more general vein, it is significant to note that the board in K-Man specifically approved of the following statement in an earlier decision of the Board in Diamond Z Employees Association, [1975] OLRB Rep. Oct. 791, at paragraph 13:

…….We are of the view that the representative trade union despite its obligation to employees in complying with the duty of fair representation must necessarily have "a free hand" in setting strategies that will best forward employees' interests irrespective of their expectations. (See: The Nicholas E. Erdely case, OLRB M. R. September 1972 -844).

This is really the nub of the matter at hand. While the Board in such cases as Corporation of Thunder Bay, [1983] OLRB Rep. May 781, and Dufferin Aggregates Limited, [1982] OLRB Rep. Jan. 35, makes it clear that the duty of fair representation applies at the negotiation stage of collective bargaining as well as administration, those cases deal with the manner in which the trade union carries out the balancing of disparate interests within the bargaining unit. The trade union is, nonetheless, the "bargaining agent", and in fact under our Act the exclusive bargaining agent, so that matters of bargaining strategy, in dealing with the employer vis-a-vis the bargaining unit as a whole, generally fall within its domain of both prerogative and responsibility. Counsel for the complainants argued that Mr. Teal in his testimony offered essentially no explanation for his refusal to split the ballot as requested, other than to say that it was not his policy to change the form of the ratification ballot simply because an employee or employees demand it, and to assert his theory that bargaining must at some point be brought to a head. The Board, on the contrary, finds this to be a perfectly acceptable response by Mr. Teal to the questions which the complainants have raised. Mr. Teal clearly had turned his mind to the point to which bargaining had come, and was only assessing the "collective bargaining reality", as the Board in K-Man, supra, put it, in deciding that no further purpose could be served by returning to the bargaining table, unless it was with a strike mandate from the employees. That may not have been as easy a choice as some of the employees would have liked Mr. Teal to have put to them, but it is a fair and realistic appraisal of where the situation stood. The "sham" in the circumstances would have been to have gone through the ritual of another two-part ballot, with the results essentially predictable, and the value, in terms of advancing the situation, to have been nil. Mr. Teal was not required, as counsel for the complainants suggests, to permit a negative vote on both questions, and then to choose between going back to the bargaining table without any additional leverage, and calling a strike in the face of an express vote showing it would not be supported. Neither was Mr. Teal required to allow the bargaining, and hence the union's bargaining rights, to dangle in limbo, and become subject to a termination application by employees disgruntled with the lack of a contract, or an argument of abandonment by the employer. The choice which Mr. Teal accordingly put to employees was an informed and realistic one, and one which the respondent, in its capacity as bargaining agent, was entitled to dictate.

With those reasons, the Board dismissed the allegations that sections 74 and 76 had been breached. The Board then went on to consider whether the use of the compound ballot was precluded by the language of sections 79(7) and (8):

10. . . .

The complainants argue that the respondent has failed to comply with these subsections in a number of respects. Firstly, counsel argues that the use of the word "or" between "a strike vote" and "a vote to ratify a proposed collective agreement" is meant to indicate that the two votes could never be taken in one and the same ballot. The Board does not agree. The use by trade unions in

appropriate circumstances of a ratify/strike form of ballot has a long history and, as discussed above, an important labour relations purpose in this province. In the Board's view, had the Legislature meant to effect such a fundamental change in the practice and prerogatives of trade unions, it would have done so expressly. There will, of course, continue to be many situations in which the trade union will elect not to combine the two questions (as occurred in the first ratification vote in this very case), and the use of the disjunctive continues to have meaning in contemplation of that possibility. Counsel cites in support of his argument a decision of the British Columbia Labour Relations Board in Metal Industries Association and Letson and Burpee Limited, [1977] Can. L.R.B.R. 151, where that Board, commenting on a provision of its own Act calling for a secret ballot prior to the calling of a lockout in multiple-employer bargaining, noted that: "The ballot should pose the question in a fair manner". That comment, as a reading of the sister case reported in [1977] 3. Can. L.R.B.R. 101 makes clear, was in reference to the complaint that the question on the ballot in that case was ambiguous. Clearly it is not an argument that can be made in the present case: the employees who protested were only too aware exactly what it was they were being asked to vote upon. Once again, we feel that if the Legislature had intended to insulate employees from the kind of "hard choice" presented by this form of ballot, it would have dealt with the matter expressly.

(emphasis added)

15. As indicated earlier, Mr. Hayes places great weight on the highlighted portions of this paragraph. He submits, in effect, that the Board has placed the Legislature on notice of the "long history" and "important labour relations purpose" served by this form of ballot and, therefore, of the need to expressly preclude its use, if that is the legislative intention. According to Mr. Hayes, no such intention can be discerned from the relevant statutory language. While ratification and strike votes are now mandatory, nothing has been said about the form of the ballot or the way in which the questions must be put. Given what Mr. Hayes refers to as the "micro-management of the Labour Relations Act" by the current Legislature, including stipulating when the Board must seal ballot boxes, the Board can be confident that there was no intention to change the historical practice. Indeed, according to Mr. Hayes, the Board's confidence in this area can be strengthened by the fact that the Board issued a consent decision between the current government as employer and OPSEU as bargaining agent in 1995 in which a vote offering these very alternatives was directed, and by the fact that this issue has been pending before the Board, presumably to the knowledge of the Legislature, for many months and was not dealt with in the 1998 "Wal-Mart amendments".

16. The union submits that what the objecting employees and employer are really asking the Board to do is inquire into the subjective motivations of employees for voting the way that they did. This, Mr. Hayes submits, is something that the Board has expressly said that it would not do: see Beatrice Foods (Ontario) Limited, above. On that basis, the union asks that the arguments of the objecting employees and employer be dismissed.

17. Subsequent to the hearing, Mr. Saxe wrote to the Board and to the other parties, enclosing a copy of a decision by the Saskatchewan Labour Relations Board. (For the reasons given in Mr. Saxe's covering letter, this decision did not come to his attention prior to the hearing, and Mr. Hayes did not object to its introduction at this stage.) The decision is between Saskatchewan Telecommunications and the Communications and Electrical Workers of Canada, and is dated March 31, 1987. The decision deals with an application by the employer that a strike commenced following the taking of a vote on a ratify/strike form of ballot was unlawful. On the facts of that case, the majority of employees selected the second option on the ballot, which provided: "Reject the Proposed Settlement and Authorize Appropriate Actions up to and including Strike Action". The relevant provision of the Saskatchewan Trade Union Act was not dissimilar to section 79(4) of the Labour Relations Act, 1995. It read:

11(2) It shall be an unfair labour practice for any employee, trade union or any other person:

(d) to declare, authorize or take part in a strike unless a strike vote is taken by secret ballot among the employees who are:

(i) in the appropriate unit concerned; and

(ii) affected by the collective bargaining;

and unless a majority of the employees voting vote in favour of a strike, but no strike vote by secret ballot need be taken among employees in an appropriate unit consisting of two employees or fewer.

18. After rejecting an argument from the union that the matter should properly be viewed as falling within its internal affairs and, therefore, as free from challenge by the employer, the Saskatche­wan Board went on to consider whether "the ballot used by the union was sufficient to determine the true wishes of the employees":

Whether or not this application succeeds depends upon whether the ballot used by the union was sufficient to determine the true wishes of the employees - not with respect to ratification of the employer's final offer, but with respect to a strike ballot. Section 11(2)(d) of the Act does not mandate a particular form of strike ballot. It requires the union to take a strike vote, specifies that the vote must be by secret ballot, and determines which employees are eligible to vote.

Nevertheless, any democratic vote must adhere to certain basic principles. For example, there must be adequate notice to and opportunity for eligible voters to vote, there must be some means to ensure that the vote count is accurate and honest, and there must be a clearly worded ballot. A strike ballot, however it may be worded, must give the voter a choice: to strike, or not to strike. Those are basic principles to which the labour relations community already adheres in almost all strike votes. Beyond them, (and subject to the Board's discretionary authority under Section 11(8) of the Act) it is for the union to handle the details of the vote based on its own situation.

Did the ballot in this case meet those basic requirements? The choices facing SaskTel employees were to accept the employer's final offer, or to reject it and strike. The result was that employees who were not in favour of accepting the employer's final offer but who also opposed strike action were disenfranchised. If they voted at all, they had to set aside any wish they might have for further collective bargaining without strike action and choose one of the two options given to them. Those may have been the options most useful to the union at the bargaining table, but they were not the choices mandated by Section 11 (2)(d) of the Act.

At this stage we pause to note that it is not clear to us that the wish of the objecting employees in this case is for "further collective bargaining". Indeed, we think that it is safe to say that it is not. However, it must be remembered that the objecting employees are not the only employees who voted in this case or who will be affected by this decision. Indeed, the issue that arises here goes well beyond the immediate parties and affects the practices and procedures of collective bargaining generally in this province.

19. In the succeeding paragraphs the Saskatchewan Board went on to outline what it considered to be the practical implications of its decision and of the union's choice of ballot:

There need be nothing complicated about a strike ballot that gives the voter a choice of striking or not striking. In this case, the union acknowledges that the ballot was intentionally structured without a simple "no strike" choice to prevent employees from irresponsibly placing it in an untenable position at the bargaining table, as they apparently did over 20 years ago. As counsel for the union put it, the ballot purposely required the employees to "put up or shut up".

The union's concern is understandable. Its task is unquestionably easier if it carries a strike mandate to the negotiating table. However, one of the objects of the legislation is to ensure that employees decide whether a strike can take place during the course of collective bargaining. Once they decide that it can, the union decides whether and when it will.

The union has no right to attempt to improve its position at the bargaining table at the expense of the employees' right under Section 11(2)(d) to vote "For" or "Against" a strike. In this case it knew that the employees views would not necessarily coincide with its own, and union expediency took priority over simple and unfettered employee choice. Indeed, the union's argument that it should be allowed to structure a strike ballot in a way that prevents employees from taking what it considers to be an "irresponsible" position (in effect, to "protect them from themselves") is no less paternalis­tic than that of the employer professing to "protect" the rights of employees in dealing with their union.

It is a fair assumption that employees are as informed, enlightened and responsible as any other voters, and as attuned to their union representatives' task at the bargaining table as their representa­tives are attuned to them. If the majority favour further attempts to achieve agreement before authorizing strike action, that is their prerogative. The union can always provide them with further information and then ask them again for a strike mandate.

For the foregoing reasons, the Board finds that the vote conducted by the union did not constitute a valid strike vote under Section 11(2)(d) of The Trade Union Act. The parties have agreed that the union has engaged in strike activity (although the nature of that activity has not been specified) and the Board therefore finds that the union has committed an unfair labour practice within the meaning of Section 11(2)(d).

20. Mr. King and Mr. Hayes were given the opportunity to comment on the SaskTel decision. Mr. Hayes availed himself of that opportunity. In written correspondence with the Board, he stated:

The parties have all had full opportunity to make their submissions to the Board and there is nothing in the SaskTel case which was not fully argued by Messrs. Saxe and King. Accordingly, apart from its existence, it adds nothing to the analysis which the panel has heard. It is noteworthy that the Lilo decision of the OLRB was not referred to by the Saskatchewan Labour Relations Board despite the fact that it preceded SaskTel by several years and had long been reported by 1987. As we submitted at the hearing the OLRB has adopted Lilo with approval after SaskTel was decided in 1987.

Most importantly of all, it is the union's continuing submission that the 1995 Bill 7 amendments were not intended to address the form of ballot questions, the issue decided in Lilo. Bill 7 did make ratification and strike votes mandatory. But it did no more in this area notwithstanding the fact that, as Mr. Saxe submitted, the Legislature is presumed, as a matter of statutory interpretation, to be aware of the jurisprudence of the OLRB (not the Sask. LRB). It did not expressly reverse Lilo despite the Board having stated in that award that an amendment of this kind would be required to set aside such a well established labour relations practice in this province (as was illustrated by the Lilo ballot). We have also submitted that Wal-Mart cannot overcome the actual fact that the Ontario Government consented to OPSEU using, with the approval of the OLRB itself, a form of ballot question for approximately 55,000 of its own employees which was indistinguishable from the one before the Board in the instant case. So much for legislative intention. Presumably neither the provincial government nor the OLRB 'by mistake' missed what is now submitted was a major change to be found within Bill 7. SaskTel adds nothing to any of this analysis.

21. Finally, and to round out the background to this decision, we wish to make mention of one additional matter. As previously indicated, Mr. Saxe introduced into evidence a study prepared by a professor at the University of Toronto. The study is entitled, "The Effect of New Labour Legislation in Ontario on Collective Agreement Ratification Voting". The "summary" to the study states in part:

The purpose of the study was to conduct an empirical survey of a representative sample of union business agents in Ontario to identify current procedures for ratification votes of collective agreement offers. The random sample was drawn from a pool of unions in Ontario operating under the Ontario Labour Relations Act, who reported holding ratification votes during the period September 1, 1997 to April 30, 1998. Information was obtained from 48 business agents on ratification vote procedures for 321 collective agreements and in 765 bargaining units (approxi­mately 61% of the total ratification votes during the period).

A great majority of the sample reported no change in their procedure for ratification voting subsequent to the passage of Bill 7. A wide variety of wording was used in the ratification ballots, but a majority of the sample (65.9%) report using 'one-dimension' ballot questions consisting of a phrase referring to the most recent management offer and then a question of whether or not to accept or reject the offer. A smaller number (34.0%) reported using some form of 'two-dimensional' question where voters are asked to accept an offer or to strike (or where a reject vote is stated to be equivalent to a strike vote). Finally, the majority of bargaining units conduct secret votes either at some site away from the work place (e.g., a union hall) or at some designated location at the work site.

As it happens, the study also purports to reveal the Steelworkers as the main user of this form of "two­-dimensional" ballot. Mr. Saxe relied on this fact and the overall percentages set out in the summary to argue that the requirement of a "one-dimensional" ballot would not cause the "labour relations sky to fall". However, as pointed out by Mr. Hayes, the study suffers from a number of apparent difficulties and we would be loathe to attach a great deal of weight to its conclusions.

Decision

22. The question posed at paragraph 1 of this decision can be restated as follows: does the Labour Relations Act, 1995 require, either expressly or by necessary implication, that a vote to ratify a proposed collective agreement be taken on a "yes" or "no", or "accept" or "reject", form of ballot?

23. We begin our analysis with the language of section 44. Section 44(1) provides that a proposed collective agreement has no effect "... until it is ratified as described in subsection (3)". Subsection (3) says that a proposed collective agreement is ratified "... if a vote is taken in accordance with subsections 79(7) to (9) and more than 50 per cent of those voting vote in favour of ratifying the agreement ...". Breaking this rather simple statement down into its component parts, three things appear to be required for ratification: (1) the taking of a vote; (2) compliance with the requirements of subsections 79(7) to (9); and (3) a determination that more than 50 per cent of those voting voted in favour of ratifying the agreement. In this case there is no suggestion that the second requirement was not met; that leaves the first and third requirements.

24. The first requirement, that "a vote" be held, would appear to provide the conceptual foundation for the objecting employees' and employer's assertion of "democratic principles". The third requirement, that more than 50 per cent of the employees voting "vote in favour of ratifying the agreement", is said to require the use of a "yes” or "no", or "accept" or "reject", form of ballot for either of two reasons: first, as a matter of simple logic or linguistics; second, in order to determine the employees' "true wishes".

25. Dealing with the first argument based on the third requirement, the objecting employees and employer submit that the Board cannot be satisfied that employees voted in favour of "ratification" unless the alternative is "not ratification". According to these parties, the moment the ballot deviates from that simple question, and asks a more complex or compound question, it becomes impossible to determine that a vote for the first option is a "...vote in favour of ratifying the agreement..."; it may well, for example, constitute a vote against the compound, or non-ratification, alternative.

26. We cannot accept this argument. In our view, whether employees can be said to have voted in favour of ratifying the agreement has nothing to do with the form of the alternative. Employees vote in favour of ratification whenever they select that option on the ballot. To suggest otherwise is to confuse the objective act of voting with the employees' subjective desire in relation to questions not put; it is to mistake what the voter has done with what the voter might have preferred to do if different choices were available.

27. The obvious purpose of the last three lines of section 44(3) is to establish the numerator and denominator required for ratification. In other words, in view of the entitlement of all members of the bargaining unit to vote (see section 79(8)), the closing words of section 44(3) perform primarily a quantitative, rather than a qualitative, function. They do not prescribe the form of the question; they do not impose any limits on the structure of the ballot; and they do not outline the quality of the choice that employees are entitled to make. These matters are left for the Board to determine in accordance with its understanding of the purpose of the provisions and the overall scheme of the Act.

28. In this regard, we are unable to derive any assistance from the Board's approach to certification applications. "Yes" or "no" questions are not an invariable feature of certification applica­tions (see e.g. displacement applications) and, where such questions are asked, they are not the product of the statutory requirement that "... more than 50 per cent of the ballots cast ... are cast in favour of the trade union ..." (see section 10) but of the history and purpose of such votes. Votes in certification applications, unlike ratification and strike votes, are conducted by the Board, not the trade union, in the exercise of its exclusive jurisdiction to determine the representational issue. Votes to ratify a proposed collective agreement or to go on strike, on the other hand, have been, and continue to be, largely a matter of internal union affairs: except to the extent that the statute expressly says otherwise, trade unions are entitled to determine whether, when, and how to conduct such votes.

29. Moreover, certification votes, unlike ratification and strike votes, stand at the commence­ment of the collective bargaining process, they do not continue it. As such, the only practical alternative to trade union representation is "not representation"; it is not "not representation and something else". The same cannot be said of ratification and strike votes. As the Board's case law makes clear, assuming that the object of collective bargaining is to achieve a collective agreement there are many situations in which the only real alternative to accepting a proposed agreement is to authorize a strike; otherwise the collective bargaining process is brought to an end.

30. Indeed, if the Board were to look to other provisions for guidance in interpreting section 44(3), sections 41 and 42 might be a useful place to start. These provisions enable the Minister or the employer to call for a vote among the employees on the employer's final offer. If the employees vote in favour of the offer, there is no additional requirement for ratification: the vote on the last offer is effectively deemed to perform the same function (see section 44(2)). In these cases, the Board asks only "yes" or" no" questions; however, the language of sections 41 and 42 refers expressly to "... a vote.., to accept or reject the offer". No such language appears in sections 44(3) or 79(4).

31. In the result, we can see nothing in the closing words of section 44(3) that mandates the use of a "yes" or "no", or "accept" or "reject", form of ballot.

32. This brings us to the objecting employees' and employer's next argument: the assertion that employees must be able to express their "true wishes" on ratification and strikes, and that a ratification/ strike form of ballot prevents them from doing so.

33. This argument was raised and rejected in Lilo Rail, above. Among other things, the com­plainants in that case argued that the presence of the strike alternative, as part of the "no" option on the ballot, was intended to cause, and could reasonably have been expected to cause, employees to vote in favour of ratifying the proposed agreement when they would not have done so on a pure "yes" or no ballot. As a result, the complainants' submitted, employees were prevented "... from expressing their 'true wishes' on each of these two questions individually".

34. For the reasons reproduced in paragraph 14 above, the Board repudiated this argument. According to the Board, the choice that was given to employees on the ballot was "an informed and realistic" one that accurately reflected the point in collective bargaining to which the parties had come.

The Board characterized the alleged requirement of another "two-part ballot" as the "real sham" in the circumstances, noting that it would serve only "... to allow the bargaining, and hence the union's bargaining rights, to dangle in limbo, and become subject to a termination application by employees disgruntled with the lack of a contract, or an argument of abandonment by the employer". Viewing this as completely antithetical to the statutory scheme, the Board said that express language would be required to produce such a result.

35. A substantially similar issue arose in Beatrice Foods, above. In that case, however, the alleged "coercion" was said to reside in correspondence between the trade union and the employees prior to the vote, rather than in the form of the ballot. Employees were advised that if they did not ratify the proposed agreement (on a "yes" or "no" ballot), the union would call a strike for midnight that same day. In rejecting the argument that this correspondence breached the unfair labour practice provisions of the Act, the Board chose not to rely on the fact that the employees had earlier given the union a strike mandate but on the following statements of general principle:

36. The Board is not prepared in this case to second guess the motive of employees for their choice expressed in a secret ballot vote. It is plain in the evidence that there were three general groupings of employees: those in support of the union, those opposed to the union, and those who were uncommitted. How each employee voted and the motive for his or her choice is personal to that individual; valid inferences in that regard cannot be drawn from the evidence. Some may have accepted the contract because of the additional benefits bargained in since the strike vote was taken; others may have voted for the contract to avoid striking. Most employees probably had a mix of motives. To conclude that the Act has been violated because a certain number of employees voted in favour of ratification to avoid going on strike is to misconceive the normal workings of the Act. That is the choice that organized employees must make continuously in this Province as part of the normal process of collective bargaining. It is that very choice that the Labour Relations Act ultimately forces upon them to promote compromise and the peaceful resolution of bargaining disputes; that is the avenue employees choose when they opt for union representation. On the evidence before us we see nothing that unlawfully deprived the employees of their freedom of choice.

Of course, Mr. Saxe submits, a "valid inference" can be drawn in this case about "how" people voted from the form of the ballot (i.e. they cannot be said to have voted in favour of ratification when the alternative included a strike authorization), and we have dealt with that issue above. It is also fair to say that the precise legal question that was addressed in Beatrice Foods was whether the correspondence violated the unfair labour practice provisions of the Act and not whether it was precluded by the yet-to-be-enacted vote requirements. However, it is the Board's reasoning in Beatrice Foods which is critical and which is directly applicable to this case; that is, that the practical choice that was presented to employees (to ratify the proposed agreement or to go on strike) is the very "...choice that organized employees must make continuously in this Province..." and which "... the Labour Relations Act ultimately forces upon them to promote compromise and the peaceful resolution of bargaining dis­putes...". In the view of the Board, that choice is entirely consistent with "the normal workings of the Act" and, indeed, "...is the avenue that employees choose when they opt for union representation".

36. In our view, this reasoning and these cases entirely undermine, if they do not directly contradict, any suggestion by the employer and objecting employees that the use of a ratify/strike form of ballot compromises the ability of employees to express their "true wishes" on the question of ratification and strikes. These decisions recognize that the two questions are inextricably linked in the collective bargaining process and to suggest that employees are prevented from expressing their "true wishes" on one of them because of the presence of the other is to "misconceive the normal workings of the Act". Nor do we see any basis for taking a different approach to this issue simply because the Legislature has chosen to make the holding of ratification and strike votes mandatory, rather than leaving the question of whether to hold such votes entirely in the hands of the trade union. While it is true that the absence of any statutory requirement for the holding of a ratification vote was a central feature of the reasoning in K-Mart, above, it formed no part of the reasoning in Lilo Rail or Beatrice Foods. The analysis in those cases proceeded entirely from an understanding of the dynamics of collective bargaining and an appreciation for the overall scheme and purposes of the Act.

37. The fact that the two vote requirements are the subject matter of separate statutory provisions also does not suggest to us a different result. The idea that "separate provisions means separate votes" does not proceed from any principle of statutory interpretation with which we are familiar. In this regard, we note that the Legislature has not chosen to set up two different "streams" or "processes" for ratification and strike votes but has elected to maintain a single stream or process (i.e. subsections 79(7) to (9)) for each. Indeed, and as noted at the outset, compliance with the requirements of subsections 79(7) to (9) and majority support in the form of a vote are the only express requirements for ratification or for a strike authorization.

38. Finally, and without wishing to belabour the point, we note as well that there is no express statutory requirement for applying a "true wishes" test to ratification and strike votes as there is in certification applications (see sections 11 and 111(5)). While this does not mean that parties are entitled to engage in conduct that would amount to unlawful intimidation and coercion, the absence of any such requirement in the ratification and strike vote provisions is consistent with the largely "internal" and unregulated nature of such votes.

39. In the result, we are unable to find that the ballot that was used in this case is prohibited because it prevents employees from expressing their "true wishes" on the question of ratification.

40. Turning to the objecting employees' and employer's remaining arguments, these parties assert that the alleged purpose of the new ratification and strike vote provisions (as set out in Hansard) and principles of democracy (as supported by the Saskatchewan Board's reasoning in SaskTel) require the use of a "yes" or "no" ballot.

41. At an intuitive level, there is much to be said for the proposition that if the Legislature has chosen to confer on employees the statutory right to vote on ratification and strikes, then they should be accorded the fullest and most unfettered opportunity possible to express themselves on these issues. In particular, it seems odd (not to say arguably "undemocratic") that the subject matter of one of the vote provisions can serve as the alternative to the other on the ballot. In structuring the ballot in this way, the trade union has obviously prevented employees from exercising what would appear to be a naturally occurring option, i.e. to vote "no" on both subjects. Does this not offend the purpose of "enhancing" or "strengthening" the rights of individual workers" and promoting "workplace democ­racy" as set out in Hansard? The answer to this question lies in a review of some basic principles underlying the scheme of the Act and which inform the collective bargaining process.

42. First, and most fundamentally, the Act exists to permit employees to bargain together jointly with a view to improving their terms and conditions of employment. Indeed, the first purpose of the Act, as set out in section 2, is "to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees" (emphasis added). Once trade unions obtain the statutory right to represent employees, they exercise that right by first negotiating and later seeking to enforce terms and conditions of employment with the employer. The process begins with the trade union, typically, serving the employer with notice to bargain; it continues with the parties engaging in statutorily mandated good-faith negotiations; and it concludes, ideally, with the achievement of a collective agreement. We say "ideally" because, although the achievement of a collective agreement is not guaranteed (i.e. bargaining rights can ** be extinguished without a collective agreement ever having been achieved), it remains the statutorily supported target: see T Eaton Co., [1985] OLRB Rep. Aug. 1309.

43. Second, the Act is structured in such a way that the processes for achieving a collective agreement (which include the good-faith bargaining obligation, the unfair labour practice provisions, and all of those sections of the Act dealing with the "negotiation of collective agreements", e.g.. the first contract provisions, the final offer vote provisions, and the ratification provision) exist independently of those that enable employees, periodically, to seek the removal of the trade union as their exclusive bargaining agent. While as a matter of timing these processes may overlap (i.e. an application to terminate bargaining rights can be made while the trade union and employer are still subject to the good-faith bargaining obligation), the opportunities for terminating bargaining rights are carefully circumscribed. Indeed, the Act expressly permits trade unions to take steps in collective bargaining (e.g. to apply for conciliation) that can delay the time for filing an application to terminate bargaining rights. Further, consistent with the clear statutory support for collective bargaining, and for the goal of achieving a collective agreement, are Board decisions to the effect, for example, that the filing of a termination application does not interrupt the parties ongoing obligation to bargain in good-faith towards achieving a collective agreement. Such factors as these demonstrate the inherent statutory opposition between the processes for achieving a collective agreement and those that enable employees, from time-to-time, to seek the removal of their trade union.

44. This opposition is made plain in the following excerpt from the Board's decision in T Eaton Co., above, which describes the purpose of ratification votes in the context of a duty of fair representa­tion complaint:

45. . . .

The Labour Relations Act contemplates that the result of collective bargaining will be a collective agreement. The purpose of a ratification vote is to allow employees to indicate whether certain proposed terms for a collective agreement are acceptable to them as opposed to possible other terms. The union felt that if ratification votes were held in this case, and the proposed agreements defeated, its bargaining rights would be effectively destroyed. The Act, however, stipulates that votes to terminate a union's bargaining rights are to be conducted in response to proper and timely termination applications. They are not to be conducted in the guise of ratification votes

45. Third, and of equivalent importance, is the basic statutory understanding that the ability of trade unions to call and conduct a lawful strike (or to choose to ratify a proposed collective agreement) has always been a matter of internal union affairs: it is an aspect of the trade union's relationship with its members - a relationship which is substantially unregulated by the statute. In the context of that relationship, trade unions, like employers, have always been free to determine their collective bar­gaining agendas and to establish their collective bargaining strategies (including whether, when, and how to resort to economic sanctions or to sign a proposed collective agreement) subject only to such restrictions as appear expressly or by necessary implication in the statute. On that basis, it must be said, any "rights" allegedly conferred on employees in this area come at the expense of one of the two collective bargaining parties (i.e. the trade union) and may impair its ability to make significant decisions in the collective bargaining process.

46. With this background in mind, the issue that arises in this case may be seen as presenting something of a tension between the new statutory rights of employees to vote in favour of ratification or to authorize a strike and the historical rights of trade unions to control the form of the ballot. In its more thematic sense, this tension is a feature of any democratic system in which individuals elect others to represent them for a specific time or a specific purpose. Through the act of voting, electors necessarily cede a measure of individual autonomy and personal freedom to those whom they have chosen to speak or act on their behalf. In addition, and in order for any democratic system to function effectively, it is generally understood that this transfer or vesting of authority must be complete and not subject to recall when "the going gets tough" or difficult decisions are required to be made. To adapt a phrase from the Saskatchewan Board, these are basic principles to which all democratic societies adhere in almost all representative contexts. In the labour relations context, however, these principles are especially important.

47. Trade unions have been described by the Board as "fighting organizations" that must necessarily be granted significant leeway in the making of their representational decisions (see e.g. K-Mart and Diamond Z Employees Association, above). Trade unions do not represent the interests of just one employee, they represent the interests of many; and they do so in what is, especially in first agreement situations, often highly adversarial collective bargaining with the newly-certified employer. In bargaining a first collective agreement, it is not uncommon for employers and, indeed, some employees who may not have wanted the union in the first place, to have one eye on the bargaining table and the other eye on the clock ticking against the onset of the opportunity to file a termination application. In collective agreement renewal situations, the dynamic may be only slightly different or it may be dramatically different, depending upon the perceived level of support for the trade union as the employees' exclusive bargaining agent. Where support is believed to be weak, and the trade union's representational rights vulnerable, the union may be faced not only with the difficult task of negotiating a collective agreement with the employer (whose original opposition to the trade union may not have abated) but of managing dissent within the bargaining unit.

48. In more mature collective bargaining relationships, where the continued representational rights of the union may be less at stake (and the employer may be just as anxious to conclude a collective agreement as is the union), the focus of the union's energies may be more in the area of brokering internal, rather than external, conflict. In these situations, bargaining unit members may well be (and will almost certainly perceive themselves to be) more sophisticated consumers of trade union representational rights and collective agreement products, and it is not uncommon for questions of politics or personality to dominate the collective bargaining agenda. In the rough and tumble of the union hall, and even more behind the scenes, the difficult process of bargaining a collective agreement can sometimes be held hostage to a vocal minority bent on achieving more than just improved terms and conditions of employment.

49. It is no doubt for reasons such as these that successive Legislatures and, indeed, the Board (in giving content to such statutory obligations as the duty of fair representation), have chosen to tread lightly on matters of internal unions affairs and employee "democracy".

50. Indeed, if what is meant by the concept of "democracy" is the ability of employees to express themselves decisively on matters which may be of critical significance to the trade union's continued representational role, it presents something of an ill-fit with a statutory scheme predicated on the grant of exclusive bargaining rights on the one hand and employer freedoms on the other. As in what may be the more familiar parliamentary or legislative context, employees, like citizens, are given the opportunity to pronounce on representational matters only at specific times and in accordance with specific vehicles. At all other times, the business of governing goes on and the people are held to their original choice.

51. These principles were succinctly summarized by the Board in K-Mart, above, where it noted that the "effectiveness" of a trade union:

…..as a collective bargaining mechanism [may be] impaired if its officers were regarded as "delegates" rather than "representatives" of the employees in the unit.

For this reason, the Board observed more generally that:

...the reference to democracy is not really very helpful. Not only does it ignore the special collective bargaining context but even in "democratic" institutions such as the Legislature or Parliament, once representatives are elected they are left to vote as they wish or enact laws even though a majority of their constituents may not agree with their position. The remedy is at the ballot box, or in the present context, through a termination application.

And, of course, it is a fact of industrial relations life that every opportunity for employees to exercise their "democratic" rights (either established or alleged) presents another opportunity for the collective bargaining process, and, collective bargaining rights, to be brought to an end. To that extent, it should come as no surprise that at least one of the parties that is advancing the alleged requirement for another "yes" or "no" ballot in this case is, as the Board described the applicants in K-Mart, "first and foremost [an opponent] of the union itself'.

52. Having said that, however, it is important for the Board to observe that what we are asked to decide in this case is not how much employee democracy is enough - that is a choice for the Legislature to make - but how much employee democracy has been prescribed.

53. Accordingly, and to return to the point from which we departed several paragraphs ago, we note that Hansard tells us that the purpose of requiring votes for trade unions to be certified, for collective agreements to be ratified and for strikes to be called lawfully, is to "enhance" or "strengthen the rights of individual workers" and to promote "workplace democracy". In a related vein, the Saskatchewan Board expresses the view that any "democratic vote" requires a "clear choice" and that in the context of a "strike vote", the choice "must be" to strike or not to strike; anything else, it suggests, lacks the hallmarks of "democracy".

54. With the greatest of respect, we disagree. In our view, there is absolutely nothing "undemo­cratic" about a ballot that requires a choice between the "realistic" options that the Board has said present themselves when collective bargaining has reached an impasse, i.e. to accept the proposed agreement or to reject it and authorize a strike to do better. These are the alternatives that can move the collective bargaining process forward; their presentation on the ballot is consistent with the central purpose of the Act; and the absence of the "no - no option" ensures that the new statutory requirement of majority support for a proposed agreement or to go on strike will not be used to defeat the process of bargaining a collective agreement itself.

55. Thus, and while the alleged requirement of a "yes" or "no" ballot would no doubt provide employees with an additional option and, to that extent, may be said to do more to "enhance" or "strengthen" the rights of individual workers (at least with respect to their union - a point not always made clear in Hansard), it would do so in a way which is inconsistent with the first purpose of the Act, with historical understandings about the process of collective bargaining and the rights and obligations of trade unions, with the Board's well-established case law, and with long-standing practices in the labour relations community (see e.g. Lilo Rail). Having regard to all of these considerations, we are simply unable to infer a requirement for a “yes” or no ballot. In our view, the stated goal of enhancing employee rights and promoting workplace "democracy" is readily achieved through the express statu­tory requirement for majority support, demonstrated in the form of a vote, to conclude a collective agreement or to go on strike. As a result, neither T Eaton Co., above, (where the union signed an agreement without a vote among the employees) nor the K-Mart case (where the union signed an agreement following a negative vote) could be the same today.

56. Finally, and before leaving this matter, we wish to address briefly two additional points: the suggestion in certain employee affidavits that the question posed on the ballot was "confusing" and the reasons for our decision to exclude the employer's "expert" evidence.

57. In our view, the suggestion that the choices presented on the ballot were confusing is entirely without merit. The question was short and to the point: accept the proposed agreement or give the union a strike mandate to do better. While support for the latter option obviously does not mean that a strike will be called, it certainly means that it can be called. On any objective standard, there is nothing confusing about this.

58. With respect to the proposed evidence of the professor and the pollster, the arguments on admissibility are well-recorded in the transcript of proceedings taken by the court reporter engaged by the employer. The submissions are lengthy and detailed, and we found those of Mr. Hayes to be entirely convincing. In essence, it was the view of the majority, applying the criteria set out in R. v. Mohan (1994), 1994 CanLII 80 (SCC), 114 D.L.R. (4th) 419 (S.C.C.), that while arguably relevant, opinion evidence as to the conclusions that could reliably be drawn from the answers on the ballot was not necessary to a determination of the issue and, indeed, would have been addressed to the very function that the Board, in the fulfillment of its statutory mandate as an expert tribunal, is required to perform. In our view, the language on the ballot is clear and unambiguous and, predictably, any inferences to be drawn therefrom were ably pointed out by counsel in argument. At the same time, it was clear to us that to have received the evidence would have added to the length of the hearing and, indeed, may have necessitated an adjournment to enable Mr. Hayes to call such evidence of his own. With these factors in mind, we concluded that the potential benefits to be derived from receiving the evidence were not worth the costs and, accordingly, we exercised our discretion to decline to hear it.

59. By way of summary, we can see nothing in the form of the ballot that was used in this case that would prevent the conclusion that the proposed collective agreement has been ratified. As we understand it, however, there are other issues that remain to be addressed in these files before any finding can he made that the parties have achieved a collective agreement.

60. Accordingly, the matter is referred to the Registrar for further scheduling.

DECISION OF BOARD MEMBER J. A. RUNDLE; December 22, 1998

1. I dissent.

2. In my view, the majority decision is wrong in law, and represents a perverse interpretation of the simple and straightforward legislative changes that were introduced by Bill 7. My colleagues have simply ignored the plain meaning of those new statutory prescriptions, and have interpreted the statute as they would wish it to be, rather than as it is written. In so doing, they have not only blunted the clear legislative intent, they have also fallen into the kind of error which the Courts have had to correct in cases such as: CSAO National Inc. v. Oakville Trafalgar Memorial Hospital Association et al (1972) 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63; Re Brayshaws Steel and United Steelworkers of America (1972) 1971 CanLII 364 (ON CA), 26 D.L.R. (3d) 153; and Re Jarvis and Associated Medical Services 1962 CanLII 149 (ON CA), [1962] O.R. 1093; 35 D.L.R. (2d) 375 (C.A.); 1964 CanLII 12 (SCC), 1964] S.C.R. 497.

3. This case is not about the desirability of mandatory strike or ratification votes. Nor is it about the labour relations consequences that flow from these new employee rights. And it is certainly not about the tactical problems that the new legislation may pose for trade unions. Yet these are the factors that seem to drive the analysis of the majority - who seem to suggest that, despite the title and obvious purpose of Bill 7, the Legislature really did not intend to empower employees, to broaden employee choice, or to change the way that trade unions conduct themselves. In my view it is perfectly plain that the Legislature intended to do all of these things, and it is pure sophistry to suggest that the language that the Legislature has used is not "clear enough" to effect that intention.

4. In my view, the collective bargaining consequences that concern the majority flow inexora­bly from the new statutory scheme, and cannot be relied upon to confute the clear meaning of the statute; moreover, even if there were some ambiguity in the way that the new provisions are framed (which I say there is not) that ambiguity could not reasonably be resolved in the manner that the majority suggests. It seems to me that if the Board is to enjoy judicial deference and the protection of the privative clause, it is obliged to exercise some integrity and common sense and interpret the statute in the manner most consistent with the legislative intention. The Board should not be manufacturing "loopholes" where the policy is clear, or where the statute has an obvious meaning consistent with that policy. Nor is it the Board's role to resist change or substitute its own views for that of the Legislature.

5. The result that the majority has reached is totally driven by its discomfort at the alleged dilemma in which a trade union may find itself if the employees reject a proposed collective agreement and are also unwilling to strike. Surely, it is said, the Legislature could never have intended that the unions be left in such limbo - hostage to the wishes of the employees whom it represents. Surely, it is suggested, it is more important that collective bargaining produce a collective agreement - any agreement, even if it is one that the majority of employees reject, and even if it postpones, for years, the employees' ability to disengage from the process that has been imposed upon them. (For it should not be forgotten that, in this case, the employees have never voted in favour of trade union representa­tion - something that simply could not happen today). Surely, it is said, the union should be entitled to put before employees "the real collective bargaining choices" - which, the union says, are to strike or to authorize the collective agreement that the union has negotiated.

6. But that is precisely what flows from the Legislature's decision to give employees (as a group) more control over the conduct and results of collective bargaining. The choices open to the employees are those which the statute now prescribes - not what the union or the majority of this panel may prefer, or what may have been so under the former statutory regime. What we are asked to do in this case, therefore, is to give content to these new employee choices in a manner most consistent with the legislative changes - which in my view now requires two ballots that allow the employees to vote "yes" or "no" in response to each of the separate questions of strike or ratification that the Legislature has identified. It is not open to the union (or the Board) to limit those employee choices, or deprive the employees of the new options that they have been given.

7. The opinions expressed by the Board in the early 1980's in cases such as Lilo Rail, Beatrice Foods, K-Mart and Eatons are, quite franidy, irrelevant today. There was, then, no legal requirement for the union to hold a strike vote or ratification vote, and if the union did hold such a vote, it was not required to follow the wishes of the employees. As the law then was, the union could bind employees to a collective agreement whether or not those employees approved of the contract terms, and the union could also call a strike whether or not the majority of employees supported such action. Under the former statutory regime, employee wishes were totally irrelevant; and in that context, it may well have been reasonable for the Board to reflect upon the legislative "deference" to "internal union affairs", or the latitude that the statute then gave to unilateral union action.

8. However, Bill 7 has changed all that, because the Legislature has rejected the central premise upon which these Board decisions rely.

9. Today the decision to call a strike is no longer the unilateral prerogative of the trade union. Nor can the union unilaterally sign a collective agreement. Today, those decisions require employee authorization. The law has changed from the days of Lilo Rail. The Legislature has consciously and clearly shifted the balance which the majority utterly fails to acknowledge (or more accurately, acknowledges, but fails to give any effect to).

10. Bill 7 has recognized that collective bargaining is for employees, not just trade unions; and from that perspective, the statute now gives employees much more control over the initiation, conduct and consequences of the collective bargaining process. Bill 7 has fundamentally altered the relationship between the union and those it represents - just as, in different ways, Bill 40 did. The law is not what it was before, nor does the union's "exclusive bargaining agency" mean what it once did. To suggest otherwise is to ignore what the Legislature has recently prescribed.

11. Under Bill 7 employees may now choose, by secret ballot, whether or not they want to be represented by a trade union. Employee wishes and the secret ballot have become central to the process. Similarly, under Bill 7 employees as a group can decide whether or not they wish to accept the collective agreement that has been negotiated on their behalf. And, under Bill 7 employees can decide, as a group, whether or not they wish to authorize a strike. On all of these questions the employees now speak for themselves, not through their trade union, or through processes controlled by the trade union. The law gives employees an independent voice. (To the same effect see the recently enacted Bill 31, which prevents certification without a representation vote).

12. Whatever the situation may have been under Bill 40, the public policy of the Province now protects and promotes employee choice. The Legislature has given employees new alternatives that they did not have before, and has made these employee choices legally decisive. Actions that were once the unilateral prerogative of the union can now be undertaken only with the consent of the employees, expressed through the familiar democratic mechanism of a secret ballot vote. The fact that the exercise of that franchise may pose difficulties for the union is quite simply irrelevant, and cannot be a reason for limiting employee choice or, as here, for permitting the union to limit that choice. Indeed, the whole purpose of these new mandatory votes is to give employees a veto over the terms of the collective agreement and the decision to go on strike. There is nothing incongruous about that.

13. If employees exercise that veto, the union may well have to return to the bargaining table (as it did after the first failed ratification vote), or the union may have to seek further third party mediation, or the union may have to consider the availability of first contract arbitration, or the union may even have to go back to employees and show the majority why collective bargaining is valuable to them. The union may actually have to build majority support - something that, in this case, it may never have had, and has certainly never demonstrated. What the union cannot do is subvert the choices to which employees are now entitled, as of right.

14. These consequences for the union are not an anomaly, as my colleagues would suggest. Rather, they are a reflection of the majoritarian democratic principles that are now at the core of the new statutory scheme. It is what the Legislature intended: namely, that it is ultimately up to the employees to decide whether to embrace the process and results of collective bargaining - not just on the initial certification, but also at critical stages thereafter. It is the employees who decide whether or not they want the so-called fruits of collective bargaining and whether or not they want to assume the burden of a strike. The new legislation provides that it is now their choice to be freely and unambigu­ously made. Conversely, the Legislature could not have intended the restriction of these employee rights which the majority endorses. The Legislature could not have intended to remove the "or not" from the available options, clouding and blurring the clear choices these employees have been asked to express.

15. In other words, collective bargaining under Bill 7 is not a goal in itself, but rather a tool for employees acting as a group; and those employees, as a group, have a new role in determining how it will work for them. This neither undermines collective bargaining nor negates its premises. It merely clarifies for whom collective bargaining exists, and ensures that its outcome (be it strike or settlement) reflects the wishes of employees.

16. In my view, the interpretation embraced by the majority is patently unreasonable, and completely ignores the shift in language and intent which lies at the heart of the Labour Relations Act, 1995. It ignores the fact that the Legislature has added two new sections to the Act, which give the employees two new areas of control, over two quite different consequences of collective bargaining. What the union and majority have done, is confuse and thus limit, these new employee choices.

17. Since the general legislative thrust is perfectly plain, we should look at the two new sections, one at a time, beginning with the obligation to hold a strike vote now found in section 79 of the Act.

18. Apart from questions of timing section 79 now gives employees a choice as to whether or not to endorse a strike. The use of the word "choice" in section 79(7) is not accidental. It contemplates that employees, as a group, will have an opportunity to select between alternatives: to "vote in favour of a strike" (the actual words of section 79(4), or against that option. To suggest, as the majority does, that employees may be given a "choice" of voting "in favour of a strike" or in favour of something generically different, (YES OR YES) is a tortured reading of the statute, for which there is neither policy nor linguistic support. In my view, it is perfectly clear what the Legislature intended - and it is not the sleight of hand in which the union and the majority have engaged; moreover, to the extent that there is any ambiguity, both the direction of the amendments and the statutory language itself suggest a simple YES/NO choice in favour of or against strike action. There is no reason to read it any other way.

19. The new section 44 of the Act reads in the same simple, straightforward fashion.

20. In my view sections 41, 42 and 44 of the Act must be read together, because they all deal with the subject of "ratification votes" (see the title of section 41), and the words of section 44 refer back to the earlier provisions. In each case, the statute provides a mechanism wherein employees have a decisive say over whether they will ACCEPT OR REJECT the terms of a proposed collective agreement. Those are the choices expressly contemplated by sections 41 and 42, and in my view that is the way that section 44 must be read as well: employees are to be given the choice of accepting or rejecting the employer's proposal - not accepting the proposal or accepting a completely different kind of option. Yet that is what the majority suggests is permissible - in effect, saying that the union may put the employees to a Hobson's choice of voting in favour of the collective agreement or in favour of something that the union knows the employees do not support.

21. Surely the Legislature in enacting new section 44 never intended that the employee choices could be: (a) to accept the collective agreement or (b) to agree to any other conduct or proposed action that the union might think is in its strategic interest, or embrace whatever other undesirable alternative the union could dream up to secure a "yes vote". What the Legislature envisaged was a YES/NO vote on the question contemplated by all three sections: whether to accept or reject the employer's outstand­ing offer. That is why no ratification vote is necessary under section 44 (see section 44(2)(b)) if the employees have been given the option of accepting or rejecting under sections 41 or 42. If a YES/NO, ACCEPT/REJECT, vote has been conducted under sections 41 or 42 (and that is the kind of vote that must be taken under those sections) there is no need to ask employees the same question again under section 44.

22. That is not only the most natural meaning of the words. It is the common sense and labour relations meaning as well. It is what a ratification vote - the subject of all three sections - is all about: the employees' right to accept or reject the proposed collective agreement. It is what makes the most sense of the three sections read together, and is most consistent with their common theme: which is to give employees - not the union - control over the results of collective bargaining.

23. Nor is there anything novel about a simple YES/NO option. It mirrors the choice given to employees in a typical certification application: do you want to be represented by the trade union, yes or no (although, of course, the employees here have never been given that choice)? A union could rightly complain if the Board were to add "and do you authorize the union to strike on your behalf' even though the collective bargaining reality may well be that, if the employees are not prepared to strike, collective bargaining will not yield them very much. But it would be just as inappropriate for the Board to structure the "real question" in this way as it was for the union in this case. Because, again, the question is not framed with reference to what the collective bargaining realities may be, but rather to the choices that the statute defines for the employees, who, post Bill 7, are the primary focus of attention. Today, employee wishes drive the system in a way that is quite different from the way things were before 1995.

24. Viewed in this light, the vote conducted by the trade union is fundamentally flawed, because it does not give employees a clear YES/NO choice in the manner contemplated by the Legislature and now required by Bill 7. There is no "rejection option", and thus is as ineffectual and invalid for the ratification of a collective agreement as it would be for the authorization of a strike. In neither case have employees been presented with the true choices open to them - choices, which in my view they are entitled to embrace, whether or not the union approves of their decision.

25. Even on logical and linguistic grounds the ballot is faulty.

26. Can we say that the employees have really "ratified" - which is to say "accepted" - the proposed collective agreement? No; because it is just as likely that they were refusing to authorize a strike. Indeed, given the fact that the employees at Wal-Mart have never voted in favour of trade union representation, and that the employees rejected the earlier (but quite similar) settlement proposed by the union, it is apparent that the union has added the "strike authorization" to the question precisely because the union knew that support was weak and hoped that an employee NO to that Hobson's choice could be bent into an artificial YES to the proposed agreement. It is a devious and cynical manipulation of the Act which, in my view, the majority ruling endorses.

27. By way of contrast, this is what the Saskatchewan Labour Relations Board had to say about this kind of approach in Saskatchewan Telecommunications and the Communications and Electrical Workers of Canada, March 31, 1987:

"Whether or not this application succeeds depends upon whether the ballot used by the union was sufficient to determine the true wishes of the employees - not with respect to ratification of the employer's final offer, but with respect to a strike. Section 11 (2)(d) of the Act does not mandate a particular form of strike ballot. It requires the union to take a strike vote, specifies that the vote must be by secret ballot, and determines which employees are eligible to vote.

Nevertheless, any democratic vote must adhere to certain basic principles. For example, there must be adequate notice to and opportunity for eligible voters to vote, there must be some means to ensure that the vote count is accurate and honest, and there must be a clearly worded ballot. A strike ballot, however it may be worded, must give the voter a choice: to strike, or not to strike. Those are basic principles to which the labour relations community already adheres in almost all strike votes. Beyond them, (and subject to the Board's discretionary authority under Section 11(8) of the Act) it is for the union to handle the details of the vote based on its own situation.

Did the ballot in this case meet those basic requirements? The choices facing Sasktel employees were to accept the employer's final offer, or to reject it and strike. The result was that employees who were not in favour of accepting the employer's final offer but who also opposed strike action were disenfranchised. If they voted at all, they had to set aside any wish they might have for further collective bargaining without strike action and choose one of the two options given to them. Those may have been the options most useful to the union at the bargaining table, but they were not the choices mandated by Section 1 l(2)(d) of the Act.

There need be nothing complicated about a strike ballot that gives the voter a choice of striking or not striking. In this case, the union acknowledges that the ballot was intentionally structured without a simple "no strike" choice to prevent employees from irresponsibly placing it in an untenable position at the bargaining table, as they apparently did over 20 years ago. As counsel for the union put it, the ballot purposely required the employees to "put up or shut up".

The union's concern is understandable. Its task is unquestionably easier if it carries a strike mandate to the negotiating table. However, one of the objects of the legislation is to ensure that employees decide whether a strike can take place during the course of collective bargaining. Once they decide that it can, the union decides whether and when it will.

The union has no right to attempt to improve its position at the bargaining table at the expense of the employees' right under Section 11(2)(d) to vote "For" or "Against" a strike. In this case it knew that the employees' views would not necessarily coincide with its own, and union expediency took priority over simple and unfettered employee choice. Indeed, the union's argument that it should be allowed to structure a strike ballot in a way that prevents employees from taking what it considers to be an "irresponsible" position (in effect, to "protect them from themselves") is no less paternalis­tic than that of the employer professing to "protect" the right of employees in dealing with their union.

It is a fair assumption that employees are as informed, enlightened and responsible as any other voters, and as attuned to their union representatives' task at the bargaining table as their representa­tive are attuned to them. If the majority favour further attempts to achieve agreement before authorizing strike action, that is their prerogative. The union can always provide them with further information and then ask them again for a strike mandate.

For the foregoing reasons, the Board finds that the vote conducted by the union did not constitute a valid strike vote under Section 11(2)(d) of The Trade Union Act. The parties have agreed that the union has engaged in strike activity (although the nature of that activity has not been specified) and the Board therefore finds that the union has committed an unfair labour practice within the meaning of Section 11(2)(d)."

The Saskatchewan legislation was in all material respects identical to the changes effected by Bill 7, and, in my view, the Saskatchewan Board's reasoning is unassailable.

28. The problem in this case is that the "NO/NO choice" - an option contemplated by the statute and the one that the employees in this workplace may well embrace - was not presented to them. The union has twisted the question to prevent the true wishes of employees from being expressed, and has thus produced a result in which, as a purely evidentiary matter, one simply cannot say that "more than 50 percent of those voting [have voted] in favour of ratifying the agreement or memorandum". One cannot make that legal finding with this form of ballot, and thus the requirements of section 44(3) have not been met.

29. For all of these reasons, I would find that the form of ballot used by the union in this case is inconsistent with the new statutory scheme, and that the conduct of the vote was contrary to both sections 44 and 79 of the Act.

30. In my view, the vote conducted by the union was fundamentally flawed, and, as a result, there was no bona fide ratification, and there is thus no collective agreement now in operation between the union and the employer.

31. Finally, for the reasons outlined above, I think that the majority has fundamentally miscon­strued the statute, and has thus denied the employees rights which the Legislature has given to them in clear and unambiguous terms.