McMaster University v. The McMaster University Staff Association, 1999 CanLII 19966

Ontario Labour Relations Board

[1999] OLRB REP. MAY/JUNE 424

4299-98-U; 0007-99-U McMaster University, Applicant v. The McMaster University Staff Association, Responding Party; James R. Thomas (and others), Applicants v. The McMaster University Staff Association, Responding Party

Certification - Intimidation and Coercion - Representation Vote - Settlement - Trade Union - Trade Union Status - Unfair Labour Practice - Parties disputing whether Staff Association a trade union with bargaining rights under the Act or rather a non-union employee association -Parties settling unfair labour practice complaint by agreeing that Staff Association would apply to Board for certification - Staff Association doing so, but prior to representation vote, Staff Association convening special meeting of members and adopting resolution that Staff Association be deemed to cease to exist if majority of employees vote "no" in representation vote - Employer alleging that Staff Association's conduct violating settlement and amounting to unlawful intimida­tion and coercion - Employer's unfair labour practice complaint dismissed and Board declining to direct taking of additional representation vote

BEFORE: Brain Herlich, Vice-Chair.

APPEARANCES: James Thomas for the applicants in Board File 0007-99-U; Robert J. Atkinson, Joan Bowman, Heather Larmour, and Lori Thompson for McMaster University; Nelson Roland, Barry Diacon, Kerry Jay, Maggie Wilson, and Mary Machkovski for the responding party.

DECISION OF THE BOARD; May 17, 1999

1These are applications filed pursuant to section 96 of the Labour Relations Act, 1995 (the "Act"). Although filed by different applicants, both matters relate to the same series of events and each applicant asserts that the responding party, McMaster University Staff Association (hereinafter referred to as "MUSA"), has breached sections 5, 11, 76 and 96(7) of the Act.

2The parties have navigated a tangled web of proceedings to arrive at the hearing in these matters. The essential framework of their journey (though certainly not the legal import or significance of all of its components) is common cause between them. Some background and details of their most recent skirmishes will be of assistance.

3Whether or not MUSA is a trade union within the meaning of the Act, it has, for upwards of 20 years, enjoyed a relationship with the applicant, McMaster University (hereinafter the "University" or the "employer"). Commencing in early 1997 a "dues check off' scheme was implemented pursuant to the agreement of MUSA and the University, an agreement which had been approved by the majority of MUSA members who participated in a referendum on the issue.

4Not everyone was pleased. Mr. James Thomas, an affected University employee, filed a complaint under the Employment Standards Act (the "ESA") asserting that the resulting deduction from his pay was unauthorized and therefore in breach of that Act.

5The Employment Standards Officer assigned to the matter declined to make any order, apparently concluding that section 64.5(2) of the ESA which provides:

An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is not entitled to file or maintain a complaint under the Act

precluded Mr. Thomas from filing a complaint under that Act. In November of 1987, in what became Board File 2961-97-ES, Mr. Thomas sought a review of that decision.

6In the meantime MUSA and the University began to encounter difficulties in their bargaining relationship. In July of 1998 MUSA, asserting that it had been voluntarily recognized by the University as the bargaining agent for support staff, filed an application in Board File 1500-98-U alleging that the employer had violated various sections of the Act, including the duty to bargain in good faith.

7As a result of a number of preliminary decisions in those two files, both matters were listed to be heard on the same day before me in my capacity as an adjudicator under the ESA in the first matter and as a Vice Chair of the Board in the second. This was effected largely as a result of the fact that the status of MUSA was clearly an issue common to both files. Both Mr. Thomas and the University disputed MUSA's status as a trade union within the meaning of the Act. It was clear as that hearing commenced that the employer took the further position that even if MUSA were found to be a trade union that it, nonetheless, held no bargaining rights in respect of any University employees.

8After hearing their comprehensive opening statements, I sought and received the parties' agreement for me to attempt to assist them to arrive at a settlement of the two matters. A protracted series of discussions ensued and culminated in the execution of two separate agreements. It is not necessary for our current purposes to set out the terms of the resolution of the ESA matters. However, as both of the applicants in the instant matters are asserting that MUSA has breached the terms of the settlement of the unfair labour practice complaint, it is necessary to set out that agreement in its entirety:

ONTARIO LABOUR RELATIONS BOARD

O.L.R.B. File 1500-98-U

BETWEEN:

McMaster University

("The University")

and

McMaster University Staff Association

("MUSA")

Memorandum of Settlement

WHEREAS the major issue in this Labour Board Complaint is whether MUSA is a trade union with bargaining rights under the Ontario Labour Relations Act or is a non-union employee association;

AND WHEREAS the University and MUSA agree that this issue should be decided by the affected employees by a secret ballot vote;

AND WHEREAS the parties wish to fully and finally resolve all issues under this Complaint;

NOW THEREFORE the parties agree as follows:

1. The issue of whether MUSA is to be a trade union with bargaining rights under the Labour Relations Act, 1995 or a non-union employee association will be determined by the outcome of a secret ballot vote by employees in the voting constituency attached as Schedule "A". This secret ballot vote will be supervised by the Ontario Labour Relations Board and will be held at the University on Wednesday March 10, 1999.

2. The question on the ballot for this secret ballot vote will be:

Do you wish MUSA to be your trade union with bargaining rights under the Labour Relations Act?

Yes______ No______

3. If greater than 50% of the ballots in this vote are cast in favour of MUSA being a trade union with bargaining rights under the Labour Relations Act, then the Ontario Labour Relations Board will issue a certificate declaring that MUSA is the exclusive bargaining agent for a bargaining unit attached as Schedule "A" and the Labour Relations Act will thereafter apply.

4. If 50% or fewer of the ballots in this vote are cast in favour of MUSA being a trade union with bargaining rights under the Labour Relations Act, MUSA will be a non-union employee association, and negotiations under the current procedures will continue. In addition, MUSA will be barred from bringing an application for certification for one (1) year from the date of the vote.

5. The University will continue to deduct MUSA dues regardless of the outcome of the secret ballot vote.

6. The parties agree to meet on March 2, 1999 to finalize the content of Schedule "A". It is understood that the principle for determining the content of Schedule "A" shall be all employees who, as of the date of this Agreement, have as a term and condition of their employment the payment of dues, either to MUSA or to a charity, pursuant to the Agreement dated September 30, 1996 between the University and MUSA. as amended by the Agreement dated May 14, 1997. It is further understood that the attached list of persons, whose status is in dispute, will be allowed to vote subject to agreement of the parties, or, if necessary, a determination by the Ontario Labour Relations Board as to their status under the Ontario Labour Relations Act.

7. MUSA hereby withdraws this complaint to the Ontario Labour Relations Board.

Dated at Toronto, Ontario this 26th day of February, 1999.

For McMaster University "John Bowman" "Heather Larmour" For the McMaster University "Barry Diacon" Staff Association "Kathleen Ouellette" "illegible"

9Further to the terms of that settlement and in view of the fact that a contemplated possible result was the issuance of a certificate by the Board, it was understood that MUSA would, in extremely short order, file an application for certification. On March 2, 1999, the parties spent the better part of the day with a Labour Relations Officer reviewing the intended application and, as contemplated under paragraph 6 of the Memorandum, attempting to finalize the content of Schedule "A" (the bargaining unit). Those discussions proceeded (as had perhaps become the parties' custom) well into the evening and beyond the Board's normal business hours. They did ultimately result, however, in the execution of a "Certification Worksheet". It comprised several further agreements including the timing and process by which the issue of trade union status would, if necessary, be determined by the Board. It was also agreed to extend the representation vote over a two day period. However, as they were unable to come to a final agreement on the bargaining unit description, the parties opted to define an agreed voting constituency and to revisit the bargaining unit issue subsequent to the vote. The application for certification (Board File 408 l-98-R) was filed the following day, March 3, 1999. In a decision dated that same day, I directed the taking of a representation vote in the voting constituency agreed to by the parties. The form of the ballot was set to conform with the wording included in the Memorandum cited above.

10Almost immediately upon executing the "Certification Worksheet", MUSA began communi­cating with affected employees. An e-mail message was transmitted late on the night of March 2, 1999 and a separate written notice was prepared and distributed thereafter. While it is useful to set out some portions of those communications, the general thrust can be described fairly succinctly. Essentially, the leadership of MUSA was advising its members of its view that (whatever the appropriate historical characterization might be) a continuing a bargaining relationship with the University in which MUSA was considered to be a non-union employee association was not a desirable option. In view of that, it sought the support of its members to decide, in advance of the scheduled certification vote, that in the event employees voted against certification under the Act, MUSA would cease to exist. To that end, members were invited to attend a "Special General Members Meeting" which was scheduled to take place at a University auditorium on Monday March 8, 1999 from noon to 2 p.m. Included in the material providing notice of the meeting was the following:

This vote will be a turning point for the Association. We think that members are ready to support this new important role and status for us in our relationship with the University. However, to quote some bank presidents, "the status quo is not an option". We know that the University has a fond nostalgia for the old, relatively powerless, version of MUSA. Some members may be tempted to think that the soft option of continuing as we have done is possible. The Executive of MUSA believes it is important that the entire membership be clear that, should employees vote against MUSA being a trade union, this will mean the end of MUSA.

Were we to sit across the bargaining table from the University, having just lost this vote, the Administration would feel free to dictate the terms of our salary settlement. If we tried to go to mediation, the mediator would factor the lack of interest of employees in having strong representa­tion into the amount of attention to devote to our concerns. The volunteers who have devoted so much time and energy over the past few years to make life at McMaster better for all of us will become extremely demoralized and would likely resign. MUSA would have few left at the helm. That being the case, the wisest thing we can do now, before the vote, is to outline to ourselves the consequences of a "NO" vote.

11Both the e-mail message and the notice concluded with the text of a 5 point resolution that the MUSA leadership was recommending be adopted at the March 8th meeting. The first point of the resolution read as follows:

1. Upon a "No" outcome of the March 10 certification vote, MUSA shall be deemed to have ceased to exist, except for the winding up of obligations and the disposition of the remaining assets of MUSA.

12The meeting proceeded as scheduled and (subject to some amendments not material for our purposes) an overwhelming majority of those who attended voted to adopt the proposed resolution. The vote was 196 in favour and 31 opposed (with 12 abstentions). The following day, i.e. the day prior to the scheduled certification vote, MUSA transmitted a further e-mail message advising its members of the adoption of the resolution the previous day.

13The certification vote proceeded as scheduled on the 10th and 11th of March. A majority of the ballots counted were in favour of the certification of MUSA; 606 individuals voted "yes"; 551 voted "no". There were, however, 88 further ballots marked which have not been counted as a result of ongoing disputes regarding the eligibility of certain individuals to vote.

14The position of the applicants results principally from their displeasure at the resolution adopted by MUSA on the eve of the representation vote. But while that displeasure may be easy to comprehend, its transformation into an illegality or even a circumstance otherwise requiring or war­ranting some form of Board intervention is another matter.

15The applicants allege violations of sections 5, 11(2), 76 and 96(7). The University also pointed to the Board's general authority to, in appropriate circumstances, direct the taking of further representation votes in certification applications.

16No significant arguments were advanced to support the application or alleged breach of section 5 in this case and thus, it need not be considered any further.

17The application of section 11(2) is also problematic, if not a source of some irony. It provides as follows:

11. (2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:

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

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

18This section is clearly not one capable of breach in its own right. Rather, it provides for a certain Board response (i.e. to order the taking of another representation vote) in situations where a trade union has contravened the Act. The irony emerges from the need for the applicants to assert that MUSA is a trade union in order to rely on this provision. As indicated earlier, the University and MUSA have agreed on the timing and process for the determination of the issue of trade union status in the certification application. They have also agreed to adjourn that matter pending the outcome of the instant applications. Despite that, University counsel invited us, if necessary, to advance the making of the status determination. In any event and even if the casual observer might otherwise be forgiven any confusion about the relative positions of the cart and the horse, it is clear that the Board cannot direct a further representation vote pursuant to section 11(2) unless a contravention of the Act is established. It is to that question that we therefore turn our attention.

19It is asserted that MUSA's conduct amounts to a breach of the terms of the Memorandum reproduced above. It was not disputed that such a breach would be contrary to section 96(7) of the Act. Alternatively or additionally, MUSA's conduct is said to amount to a violation of section 76 of the Act.

20Both of these assertions depend, perhaps to varying degrees, on a particular characterization of the Memorandum executed by MUSA and the University. The applicants argue that the essence of the Memorandum is obvious and straightforward. As the recitals indicate, the question of MUSA's status as a trade union was a central issue in the initial unfair labour practice complaint. The parties to the settlement agreed that issue and, more particularly, the "issue of whether MUSA is to be a trade union with bargaining rights under the Labour Relations Act or a non-union employee association" was to be determined by the outcome of a representation vote. And while neither of the applicants disputed MUSA's right after the vote to make a decision to dissolve itself as an entity, they each vigorously argued that any such decision taken, however provisionally or conditionally, in advance of the vote, was, in addition to constituting unlawful intimidation and coercion within the meaning of section 76 of the Act, inconsistent with both the spirit and the letter of the settlement of the prior unfair labour practice complaint.

21At the outset, it is clear that MUSA's conduct is not in violation of any specific particular obligation explicitly set out in the Memorandum. The principal section of the Memorandum relied upon is section 4. But it is apparent that there is simply nothing set out in that (or any other) section that MUSA has agreed to and failed to do or agreed not to do and done. Even considering section 4 of the agreement, one is presented with consequences that are to flow if 50% or fewer of the ballots cast are in opposition to MUSA. That has (as least) not (yet) happened and consequently whatever obligations may otherwise be triggered by the section cannot be said to have been breached.

22But if it is difficult to assert or establish a specific breach of the explicit terms of the Memorandum, the applicants advance a more compelling argument that, at a minimum, the spirit and intent of the Agreement has been compromised.

23They assert that employees were to be given the choice of being represented by MUSA either as trade union within the meaning of the Act or as a non-union employee association. MUSA's pre-vote manoeuver effectively deprived employees of that latter option, an option the parties had agreed would specifically be put to them. And not only was the MUSA manoeuver contrary to the terms of the parties' settlement, it also constitutes improper coercion. Employees were now effectively being told that the only options were trade union representation by MUSA or no representation at all. In that context, employees whose true wish might have been to be represented by MUSA as a non-union employee association would have been coerced, when faced with the alternative of no representation whatsoever, into voting for the union option.

24While it is not difficult in the least to comprehend that both the employer and those employees preferring to see a non-union employee association would choose to understand the funda­mental character of the Memorandum in the fashion that they do, I am unable to accept that characteriza­tion. While the choice that was put to employees was one that arrived in a very particular context with specific historical antecedents, the actual question put to employees, as is invariably the case in certification applications, was whether or not they wish to be represented by a particular trade union in their employment relations with their employer.

25The characterization advanced by the applicants, while admittedly not without some ground­ing in the terms of the Memorandum, is one which is essentially antithetical to the manner in which certification representation votes are conducted and monitored by this Board both historically and in the particular recent context of vote based (as opposed to card based) certification proceedings. Implicit in the applicants' positions is an appeal to some claim to protect the rights of employees to be represented by a non-union employee association. But while employees clearly have the right to choose to not be represented by a trade union, there is simply nothing in the Act which directly protects the rights of non-union employee associations or of employees to participate in any such organization. Furthermore, while there may be nothing per se unlawful about the existence or activities of such entities, the Board's case law is replete with instances where such entities are designed or used to defeat the legitimate rights of employees, in particular, where such organizations spring into being with explicit or implicit employer support in the shadow of a trade union organizing campaign. It is perhaps not surprising, however, that the Board has never found nor ever before been asked to find that the internal decision of a non-union employee association to dissolve in the face of a trade union organizing campaign constitutes an unfair labour practice.

26If the real choice being given to employees was one between representation by a union or a non-union, one would have expected wording different from that agreed to by the parties and directed by the Board in the certification application. Yet it is difficult to imagine how the wording which the applicants suggest is the real or the effective wording would ever find its way onto a ballot in a certification representation vote directed by this Board. It is conceivable that these parties might, in the context of different Memorandum (e.g. one which contemplated voluntary recognition rather than certification by this Board), have agreed inter se to a ballot which provided the option of representation by a union or a non-union. They did not. It is difficult to imagine any circumstance in the taking of a certification representation vote where the explicit option of representation by a non-union employee association would be one included on the ballot. There is simply no mechanism under the statute which provides for such an option. And if the Board would not include such an option at the instance of the association itself, efforts made in that regard by an affected employer could easily give rise to claims of improper and even unlawful interference (see for example the case of W Bolen Enterprises Limited, [1973] OLRB Rep. Jan. 50 where the employer's invitation to employees to form an employee association as an alternative to a trade union was held to have vitiated the results of a representation vote). Thus, if the form of ballot urged by the applicants is one which this Board would be unlikely to sanction in a certification application, I am loathe to infer that it is the real or effective or actual form of ballot used in this case and to interpret the Memorandum accordingly.

27What then, to the extent it is necessary to determine for the purposes of this case, is the appropriate interpretation of the Memorandum? In particular, what are we to make of the parties' apparent agreement that in the event of a "yes" vote, this Board will issue a certificate and in the event of a "no" vote, MUSA "will be a non-union employee association and negotiations under the current procedures will continue"? Again, the applicants assert that the parties agreed that MUSA's status would be determined by the outcome of the vote. Of course, it is for this Board, and not the parties to determine whether or not an entity seeking certification is a trade union and, if so, whether it ought to be certified. However, despite a residual perception to the contrary, the Board does not "confer" status on trade unions, it merely makes its determination on the basis of the evidence and material before it. Thus, a trade union is a trade union from its inception and not as a consequence of a declaration of the Board. And while, generally speaking, the Board has come to recognize the desirability of giving effect to the parties' resolutions of matters before it, it nonetheless appears plain that MUSA either was or was not a trade union at the time it filed its application for certification. And despite the parties' apparent agreement to allow status to be determined by the results of the vote, it is difficult to comprehend how MUSA's existing legal status would be altered by the results of that vote. In that context and whatever its practical effect might be, the parties agreement must be viewed not so much as an agreement by which the status of MUSA would be determined, but rather an agreement as to the positions the parties would or would not advance regarding the issue.

28Put at its simplest, whatever MUSA's status may be, the parties agreed, inter se, that if MUSA won the vote the University would not dispute its trade union status and alternatively, if it lost the vote, MUSA (for at least one year from the date of the vote) would not assert that it was a trade union.

29In that context, neither am I persuaded that the reference to the continuation of current procedures constituted any kind of warranty or guarantee of MUSA's (or, for that matter, the Universi­ty's) continued existence. Rather, it imposed a mutual obligation on the parties to continue to deal with each other in a particular fashion. Such an obligation would be implicitly contingent on the continued existence of both entities but not a guarantee of such continued existence. It is difficult to imagine, for example, MUSA asserting a violation of the agreement if the University ceased to exist. What is precluded on this branch of the agreement is for either of the parties to continue to exist and to refuse to participate in the continuation of the "current procedures". The agreement, as the applicants effectively concede when they acknowledge that MUSA could decide to dissolve after the vote, does not confer any legal right or power on either party to insist on the continuation of the very existence of the other.

30In this context it is also important to note that the decision to adopt the impugned resolution, while it may clearly have originated with the MUSA leadership, was a decision of its members made at a Special General meeting. The University, in the guise of seeking enforcement of the Memorandum, would effectively have this Board strip the internal decision making process about the very existence of the organization away from those who would presumptively be entitled to make such decisions - its members. Neither is the Board impressed by the University's effort to serve as the guardian of the MUSA constitution. It was asserted that the process culminating in the adoption of the resolution was at variance with MUSA's own constitution (insofar as 6 rather than 7 days notice was provided for what the University characterizes as a constitutional amendment).

31It is well known that it is generally not the function of this Board to regulate the internal affairs of trade unions (let alone non-union employee associations). Despite that, there may be excep­tional instances where the notorious and flagrant breach of a union's constitution can assist the Board in a determination of bona fides in a situation where conduct is otherwise regulated by the Act. That is simply not the case here. Advance notice of the meeting and of the text (and rationale) of the proposed resolution were widely distributed and it is less than apparent to the Board that the resolution was or required a constitutional amendment. The appropriate answers about the strict constitutional compliance of the MUSA maneouver may be left to another more appropriate forum. Whatever those answers may be, however, it is simply not so apparent to this Board that the MUSA conduct was so at variance with its own constitution as to warrant the scrutiny, attention or intervention of this Board.

32In view of all of the above, the Board is not persuaded that MUSA's conduct was a violation of the terms of the Memorandum amounting to a violation of section 96(7) of the Act.

33This leads us to a consideration of whether MUSA's conduct amounted to intimidation or coercion within the meaning of section 76 of the Act. It provides:

76. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

34Perhaps the most often cited Board decision setting out the meaning of intimidation or coercion is Keith MacLoed Sutherland, [1983] OLRB Rep. July 1219. After reviewing the common law approaches to the tort of intimidation, the Board, at paragraph 12, concluded as follows:

…for intimidation or coercion to be established, there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person (for example) refrain from exercising a right under the Act or from performing an obligation under the Act.

35In other words, in order for a breach of the section to be established at least two ingredients must be established. The first relates to the nature of the conduct; the second to its purpose.

36The most typical and obvious type of intimidatory or coercive conduct brought before this Board relates either to threats of physical or economic harm. Threats to physical integrity or suggestions of job loss or other types of employment related economic harm will likely attract the scrutiny of this Board. It is, however, difficult to subsume MUSA's conduct within any of those jurisprudentially familiar kind of scenarios. The action complained of consists of a pre-emptive decision made by MUSA members to dissolve the organization upon the occurrence of certain events. It is, as already discussed, a decision that the MUSA members are presumptively entitled to make. In that regard, it is not without significance that (whatever the actual turnout may have been) there would be a substantial overlap if not identity between the constituency entitled to make that decision and those entitled to cast a ballot in the certification vote. It is essentially the same people who are entitled to make both decisions. Viewed from that perspective the applicants' allegations amount to the suggestion that a group of employees has improperly intimidated or coerced themselves.

37In that context it is perhaps difficult to discern the precise nature of the "threat". The applicants clearly complain that the effect of the MUSA maneouver is to deprive employees of the option of a non-union employee association. Again, and at the risk of repetition, whatever the historical context of the parties' dealings may be, the right to belong to a non-union employee association and to participate in its activities (however lawful or even laudable such conduct may be) is simply not a right protected under the Act (particularly where any such "rights" are at variance with other rights protected by the Act). Similarly, it is not a choice that this Board, either routinely or in the specific circumstances of this case, offers to employees in certification applications.

38Thus, even if the conduct complained could otherwise be described as intimidation or coercion within the meaning of the Act, it is impossible to conclude that its purpose relates to effecting a result prohibited under section 76. It will be recalled that section prohibits conduct designed to compel any person:

(a) to become or refrain from becoming or to continue to be or cease to be a member of a trade union or of an employer's organization;

(b) to refrain from exercising any other rights under this Act; or

(c) to refrain from performing any obligations under this Act.

39In view of our conclusion that MUSA's conduct did not amount to a breach of the terms of the Memorandum, only (b) from the above list can have any possible application to the case at hand. What right is it, however, that MUSA can be said to have compelled persons to refrain from exercising? Again, it is the essence of the applicants' positions that employees have been improperly precluded from opting to choose to be represented by MUSA as non-union employee association. Whether or not employees have some abstract "right" to make such a choice, it is, as we have already concluded, simply not a right protected under the Act and therefore conduct aimed at compelling people to refrain from exercising any such right is simply not conduct contemplated under the relevant portion of section 76.

40Thus, whether viewed from the perspective of its very nature or its purpose, we are not persuaded that MUSA's conduct falls within the range of that prohibited by section 76.

41This brings us finally to a consideration of a residual position advanced by the employer. Even assuming that MUSA's conduct was not unlawful, the Board should exercise its discretion to direct the taking of a further representation vote to determine the true wishes of employees. MUSA's last minute subterfuge should be seen to have robbed the Board of any confidence it might otherwise have had that the result of the representation vote discloses the true wishes of employees. Individuals might have otherwise voted against certification secure in the knowledge that representation by MUSA as a non-union employee association remained a possible option. In view of the apparent extinguishment of that option by MUSA, such individuals may have felt compelled to vote in favour of certification rather than face the alternative of no representation whatsoever.

42Assuming that section 111(5) of the Act provides the Board with a broad discretion to direct the taking of additional representation votes in certification applications (a proposition disputed by MUSA), we are not persuaded that the current circumstances warrant the exercise of that discretion.

43First of all, in the absence of a finding that MUSA has contravened any provision of the Act, the Board's authority would, under section 111(5), be restricted to directing the taking of an additional vote. In the absence of a further remedial response (such as one which might have been available under section 96 had a violation of the Act been established), it is difficult to see how or why the Board should conclude that an additional vote would be likely to more accurately reflect the wishes of employees.

44But perhaps more significant than that concern is the Board's long-standing reluctance to actively police the conduct of certification campaigns. Of course, while it will not shrink from intervention in appropriate cases, the Board's nonetheless circumspect approach dates as far back as the case of Stouffer-Dobbie Manufacturing Co. Ltd., 59 CLLC para, 18,147 and has been affirmed more recently in cases such as Concorde Metal Stampings, [1987] OLRB Rep. Jan. 34 at paragraph 30:

…While the Board always has the authority to set aside a representation vote and order a new one, that is not a neutral decision, nor one which should be taken lightly and in our view should not be taken unless the occurrences are so serious and pervasive as to render improbable a reliable expression of employee wishes despite the sanctity of the ballot box.

45The test for Board intervention was re-stated in The Canadian Red Cross Society, [1994] OLRB Rep. Nov. 1592 where, at paragraph 5, the Board observed:

…the test for the over-turning of a representation vote as applied by the Board is whether or not the actions complained of destroy the secrecy of the ballot or are coercive so as to prevent the true wishes of employees from being expressed, viewed by the reasonable voter who is possessed of critical faculties, the ability to assess issues and make inquiries.

46The parties agreed to poll employees as to whether or not they wished MUSA to be their trade union with bargaining rights under the Act. They agreed to put that question in the context of a certification application. Whatever the historical context of the parties' dealings may be, the question they agreed to put was framed in terms of acceptance or not of MUSA as a certified bargaining agent. That corresponds to the question typically and actually posed in the context of a certification application. The parties did not agree to explicitly provide employees with the option of endorsing representation by a non-union employee association. Such an option would not form part of a ballot in a certification representation vote directed by this Board.

47Counsel for MUSA may have been less than entirely forthcoming when he declined to acknowledge that the "MUSA manoeuver" was designed for a purpose. The Board has little hesitation in accepting that it was designed to maximize the likelihood of a yes vote. But in the absence of any illegality associated with the manoeuver, the Board will not intervene. Similarly, as we are not persuaded that the MUSA resolution robbed voters of their critical faculties or ability to assess their choice on the fundamental question put to them, i.e. whether they wished to be represented by a trade union, neither is the Board persuaded that an additional representation vote is warranted. The determinative effect of the democratic expression of employee wishes has been recognized by both the parties (to the Memorandum) and the statutory treatment of certification applications. Yet as the ballot box has gained ascendancy, so too have creative efforts to impede its predominance proliferated. The Board sees no reason to not give effect to the results of the certification vote.

48These applications are dismissed.