1063‑97‑R Labourers International Union of North America, Applicant v. Penegal Trim & Supply Ltd., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervener.

1245‑97‑R Labourers International Union of North America, Applicant v. Millway Lumber Ltd., Responding Party v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervener.

1771‑97‑R Manuel Barreiro, Applicant v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party v. Ganiva Construction Ltd., Intervener.

1774‑97‑R Arthur Borges, Manuel Felgueiras and Sergio Lopes, Applicants v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party v. Penegal Trim and Supply Ltd., Intervener.

1776‑97‑R Jose Barbosa, Jose Caetano, Applicants v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party v. Millway Lumber Ltd., Intervener.

1780‑97‑R Antonio da Silva and Jose da Silva, Applicants, v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party v. Marciano Lumber & Trim, Intervener.

1782‑97‑R Manuel Barbosa and Jose Ribeiro, Applicants v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Responding Party v. Forest Trim & Doors, Intervener.

BEFORE: R. O. MacDowell, Chair.

APPEARANCES: James K. A. Hayes and John Moszynski for the Labourers International Union of North America and the Labourers District Council, respectively; David Watson and Marisa Pollock for Carpenters Local 27; Brian Shell for certain employees; and Joseph Liberman for the "Group of Five companies" (Penegal Trim and Supply Ltd., Millway Lumber Ltd., Ganiva Construction Ltd., Forest Trim & Doors Ltd., and Marciano Doors & Trim Ltd.).

DECISION OF THE BOARD; April 3, 2000

What this case is about

1. This proceeding involves a series of certification and termination applications, that spring from the same setting and raise similar issues. Some of those issues have already been addressed in an earlier Board decision dated October 27,1998 (which should be read together with this one). Other issues will be canvassed below. However, as before, it is useful to begin with some background.

2. Each of these applications involves the Carpenters union, the Labourers union, and one of the so-called “Group of Five” companies that do low-rise trim carpentry (Penegal, Millway, Ganiva, Forest, and Marciano). As things now stand, the Carpenters union has “bargaining rights” for the employees of each of these companies, and those employees are, in each case, covered by a collective agreement. The employees are “pieceworkers”. The collective agreements expire later this year.

3. The Carpenters’ collective agreements are all based upon “voluntary recognition” – which is to say, an agreement between the Carpenters union on the one hand, and the employers on the other, that the Carpenters will be the exclusive bargaining agent for the “pieceworkers” engaged by those companies and covered by the collective agreements. The Carpenters union has never been “certified” by the Board as the bargaining agent for these employees. Nor has there ever been a Board-supervised “representation vote”, canvassing the wishes of the employees with respect to trade union representation. And, as I will discuss later: following the signing of each collective agreement, in late June 1997, there was never a further “ratification vote” to see whether the individuals then employed, actually supported the Carpenters union at that point, or endorsed the terms of the collective agreement by which they would thenceforth be bound. The foundation of bargaining rights is a voluntary recognition arrangement between the union and the employer - not an assessment of employee wishes supervised by the Board.

4. At the heart of each of these cases, therefore, is a fairly simple question: whether (as the Carpenters claim) the Carpenters union was entitled to represent the employees at the time it entered into the collective agreements – that is, whether the Carpenters union was actually entitled to represent the individuals whom it purported to represent when it signed the collective agreements. However, as we will see later, posing that question and answering it are two quite different things; for in the fluid work setting in which these pieceworkers are engaged, it is not easy to pin down the employee complement at any given time, let alone determine whether those employees support a union. That, in turn, makes the assessment of employee wishes much more difficult.

5. Be that as it may, these certification and termination applications all involve a Labourers’ challenge to the Carpenters’ bargaining rights – and, in particular, an attack on the voluntary recognition arrangements upon which the Carpenters’ bargaining rights and collective agreements are based. That challenge is being mounted under section 66 of the Labour Relations Act, which reads as follows:

6. (1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 18 (3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establish­ing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.

For completeness, I might also mention section 53 of the Act, which reads this way:

53. An agreement between an employer or an employers’ organization

and a trade union shall be deemed not to be a collective agreement

for the purposes of the Act if an employer or an employers’ organization

participated in the formation or administration of the trade union or

contributed financial or other support to the union.

6. As will be seen, section 66 permits a timely challenge to any collective agreement based upon “voluntary recognition”, and can force an incumbent union to establish that, at the time the agreement was entered into, the union was actually “entitled to represent” the employees bound by the agreement. Under section 66(3), the onus is on the “institutional parties” (the incumbent union and the employer) to demonstrate employee support for the arrangement between them. Section 53 has a somewhat different focus: to ensure that the union and employer are acting at arm's length from each other and that the union is the instrument of employee, and not employer, wishes. (See also section 15 of the Act which prevents the Board from certifying a trade union that has been the beneficiary of improper employer support).

7. The Labourers contend that the Carpenters and the companies cannot meet the onus cast upon them by section 66(3) of the Act: they cannot show that, in June 1997, when the collective agreements were concluded, the Carpenters were “entitled to represent” the employees in the bargaining units covered by those collective agreements. In the Labourers submission, the Carpenters never enjoyed majority support, nor (more importantly) can they now establish such employee support, as they may be required to do by section 66(3). The Labourers concede that the voluntary recognition arrangements may have been “convenient” for the Carpenters and the companies. But, in the Labourers submission, the Carpenters cannot show that it reflects the wishes of the employees. The Labourers maintain, therefore, that pursuant to section 66(4) of the Act, the Board should terminate the Carpenters’ bargaining rights, and set aside the collective agreements.

8. This attack on the Carpenters’ collective agreements, is central to each of the certification and termination applications, and in each case, requires the Carpenters union to demonstrate its entitlement to represent the employees in question. However, the challenge arises in somewhat different ways.

9. In the two certification applications (Penegal and Millway), the Labourers seek to displace the Carpenters as the bargaining agent for the “pieceworkers” working for these two companies. In each of these certification applications, therefore, the Labourers union has filed its own membership cards, indicating an “appearance” of quite significant employee support for the Labourers at the time that the certification applications were made (which, as it happens, is around the same time that the Carpenters were entering into their own collective agreements based upon “voluntary recognition”). In other words, the Labourers challenge to the Carpenters’ position is bolstered by evidence from employees, indicating that, around the same time that the Carpenters were entering into collective agreements binding on those employees and based upon voluntary recognition, the employees (or some number of them) actually supported the Labourers union – a proposition which the Labourers want the Board to confirm by polling employee wishes in a secret ballot vote (see section 8 of the Act). The Labourers point out that their certification application at Penegal and the Carpenters collective agreement at Penegal occurred almost simultaneously.

10. However, in both of these certification applications, the existing Carpenters’ collective agreement is raised as a bar to proceeding with the Labourers application, which the Carpenters say is “untimely”. The Carpenters assert that there should be no vote to test employee wishes, because there is a collective agreement in place that applies to those employees and prevents the Labourers from seeking certification as their bargaining agent. That, in turn, prompts the Labourers to challenge the Carpenters’ collective agreements under section 66 of the Act, in order to remove this impediment. If the Carpenters’ collective agreements were eliminated, the Labourers say that there would be nothing standing in the way of their own certification applications at Penegal and Millway, and that the Board should hold a vote to test the wishes of the employees: to see whether the employees wished to be represented by the Labourers union.

11. I might observe, parenthetically, that on an application for certification, the Board normally directs that a representation vote be taken within five days of the application date – sometimes sealing the ballot box if there are timeliness or other objections to the application (again see section 8 of the Act). That was not done in these cases, which arose, individually, before different panels of the Board, each which was persuaded that certain “preliminary" issues should be resolved before ordering any representation vote. Those panels were apparently concerned about these issues, and about the potential prejudice to the incumbent union, if the Labourers’ challenge turned out to be untimely. And there is no doubt that there were serious issues raised – including the so-called “Peace Pact issue” - that could have ramifications beyond the immediate case. (See the discussion in the earlier Board decision).

12. In retrospect, though, (i.e. with the benefit of hindsight), it is unfortunate that no votes were directed, because if the Carpenters’ various objections fail, it is now virtually impossible to either reconstruct the employee list as of 1997, or conduct a representation vote in anything like the environment that obtained in 1997. From a labour relations perspective, the objective of a “speedy vote” has been completely frustrated, and the position of the applicant Labourers union may have been seriously prejudiced. To put the matter another way: an apparent concern about “undermining” the position of an incumbent union, has had the practical effect of impeding the rights of employees to choose their bargaining agent and denying another trade union a timely opportunity to test its support – the very thing that the “quick vote” is designed to do.

13. Accordingly, whatever else this case may establish, it is, perhaps a lesson that, in future cases, the Board should more carefully consider whether a “timeliness objection” or the assertion of a subsisting collective agreement (particularly in the construction industry or where an agreement is based upon voluntary recognition) should de-rail the “quick vote” process contemplated by section 8 of the Act. Otherwise, unless the objections can be litigated fairly quickly, the labour relations purpose underlying the quick vote scheme may be completely frustrated. For the timing of litigation is necessarily problematic – depending, among other things, on the Board’s resources, panel availability, the availability of counsel, and the often unpredictable ways in which the evidence develops - and while the hearings progress and the Board deliberates, the situation in the workplace is seldom static.

14. In retrospect, therefore, a more prudent course in cases like this, might have been to direct the representation vote, and if necessary, seal the ballot box – perhaps with a notice to employees that, for legal reasons, the vote results might not ultimately be determinative of the application. There could thus have been a timely testing of employee wishes, (what the statute contemplates), while maintaining the caveat that those wishes might not ultimately prevail – that is, affirming the tactical dynamic envisaged by the statute, while at the same time blunting, to a considerable extent, any organizational impact on an incumbent union (and incidentally informing employees about what is going on).

15. Now, there is no doubt that the taking of such vote can be prejudicial to an incumbent union, irrespective of the ultimate disposition of the case, and that is a factor the Board has to consider in determining whether (or when) to hold such vote; moreover, a short delay to receive further submissions may well be appropriate, and may well be sufficient clear up any timeliness or other objections. The five-day stipulation is not absolute. Nevertheless, the “quick vote model ” represents both a legislative choice and a labour relations value, and in my view, that has to be kept in mind when the Board is exercising its discretion. It is a statutory norm from which the Board should not lightly depart – particularly in the construction industry, where the composition of the work force changes from day to day, and it is already difficult to hold quick votes. For, regrettably, this case is a graphic illustration of the consequences of such departure.

16. The termination applications (Penegal, Millway, Forest, Ganiva, and Marciano) were brought, (initially at least) by certain individual employees, however those application have also been joined by the Labourers union itself; and in each case, the Labourers union has filed quite a number of membership cards evidencing employee support in the summer of 1997, around the time that the Carpenters’ collective agreements were being concluded. Here there is a more direct application of section 66. But, as in the case of the certification applications, the Carpenters union is being asked to show that, when it entered into the collective agreements with the companies in June 1997, it was entitled to represent the employees who would be bound by those agreements. If the Carpenters union is unable to demonstrate such entitlement, its bargaining rights may be terminated under section 66(4) of the Act - which would, of course, pave the way for a future Labourers certification application at Forest, Ganiva and Marciano. (I will return to the significance of that “may” a little later).

17. In summary, then, in the certification applications, the Labourers union challenges the Carpenters collective agreements, which stand in the way of its own organizing drive. If that impediment can be removed, there can be a representation vote to see whether the employees support the Labourers. In the termination applications, a successful challenge would eliminate the Carpenters collective agreements, thereby facilitating a future Labourers organizing campaign. So, beneath the legal veneer, these cases are ultimately about the wishes of employees with respect to trade union representation, now that there are two trade unions on the scene - a familiar scenario, given the historic rivalry between these two union organizations (see the discussion in Part V of the earlier Board decision).

18. Voluntary recognition arrangements are relatively common in the construction industry. But the facts of this case are quite unusual, and so is the way that the case unfolded. Accordingly, at the risk of stating the obvious, I think that it may be worth a brief digression to sketch in the alternative ways in which a union can acquire bargaining rights under the Labour Relations Act, and the way in which the “voluntary recognition” fits into the legal scheme. I will then return to: how the Carpenters acquired bargaining rights in these cases; how the provisions of section 66 should be read; and finally, how those provisions should be applied in the unusual situation that this case presents. At the end of the decision I will look at an alleged “natural justice” concern, which, it is said, should prompt the Board to jettison what has already been decided, and start this case all over again.

How unions can acquire bargaining rights under the Labour Relations Act by “certification” or by “voluntary recognition”

19. The “Purpose” provision of the Labour Relations Act begins this way:

20. The following are the purposes of the Act:

21. To facilitate collective bargaining between employers and trade unions that are the freely‑designated representatives of the employees,

The emphasized portion of item 1 reflects a simple but basic proposition: the union’s right to represent a group of employees depends upon the wishes of those employees – and upon the union’s ability to demonstrate those wishes in the manner prescribed by the Labour Relations Act. “Bargaining rights” are held by the trade union in its own right; but such “bargaining rights” are ultimately rooted in employee support. (See also the statutory definition of collective agreement, which begins: “collective agreement means an agreement in writing between an employer…on the one hand, and a trade union…that represents employees of the employer…on the other hand…..”).

20. The primary method of acquiring bargaining rights is by “certification”, which is regulated by sections 7 - 11 of the Act, as modified by the special provisions pertaining to the construction industry. However, for present purposes, the construction modifications do not matter. The “construction context” is a complicating factor in the administration of the statutory scheme, but it does not change the basic problem which this case presents: how to assess employee wishes with respect to trade union representation.

21. Under the certification provisions of the Act, a trade union can become the exclusive bargaining agent for a group of employees (the “bargaining unit”) by demonstrating that the majority of those employees want the trade union to represent them. At its most basic, a certification application is a “counting exercise”, in which the Board determines the number of employees in the appropriate bargaining unit, then counts the number of those employees who support the union. The application stands or falls on whether the union can demonstrate majority support.

22. For many years, the Act envisaged that employee support would be measured by counting the number of employees who had signed “union membership cards”. Those membership cards were signed by the employee, were usually witnessed by someone else, and typically indicated that the individual was applying for membership in the union and was content to have the union represent him/her for collective bargaining purposes. In the course of the certification application, the union membership cards were counted and matched to a list of employees in the bargaining unit, so as to generate a percentage of support. If the union could establish majority support, based upon the cards that it had filed, the union could be “certified” by the Board as the employees’ bargaining agent. If the union could not establish majority support, the application would either be dismissed or a representation vote would be held.

23. Prior to 1995, union support was tested primarily by reference to these membership documents. Representation votes were a residual mechanism, that was used only where the union could not demonstrate “a clear majority” by reference to the cards (more than 55%), where there were some concern about the quality of the documentary evidence, or where there was some other reason why the Board should exercise its discretion to seek the confirmatory evidence of a representation vote. Such votes occurred on a fairly regular basis. However, the majority of certificates granting “bargaining rights”, were based solely upon union membership cards - a form of documentary “hearsay” that was protected from disclosure by section 119 of the Act.

24. This is not the place to review the law as it used to be, nor the rather elaborate way in which the Board dealt with the issues associated with membership documents (what if they were not properly witnessed? what if they were many months old? what if there was an alleged forgery? what if they were ambiguous? what if an employee had later repudiated his support for the union and/or signed a membership card in another union? and so on). It suffices to say that, prior to 1995, the primary means of assessing employee support in an application for certification, was an examination of the union’s documentary evidence of membership. Such membership cards were “good enough” standing alone to demonstrate that the union was entitled to represent the employees in question; and a representation vote was not normally necessary. (For a detailed explanation of the “card-based certification system” and the way in which “membership” was a proxy for “support” for certification see: Famous Players Inc. [1995] OLRB Rep. April 397. For a typical case illustrating how there can be problems with such documentary evidence see: P&M Electric (1982) Ltd. [1988] OLRB Rep July 843).

25. In 1995, Bill 7 changed all that.

26. As a result of Bill 7, it is no longer possible for a trade union to be certified based only upon union membership cards. Instead, employee support is tested by means of a representation vote, that the statute says should be held within five days of the union’s application for certification. Bargaining rights now rest upon a direct test of employee wishes, not an assessment of union membership cards.

27. Today, a trade union can only be “certified” if it “wins” a representation vote. Cards are no longer central to the process. Cards are only relevant to establish the appearance of support (40%) necessary for a representation vote to be ordered in the first place. It is the vote itself that really counts. Ontario has therefore moved from a largely “card-based” certification system to an exclusively “vote-based” system.

28. However, these 1995 amendments did not change the basic premise of the statute: that the union’s status as exclusive bargaining agent, depends upon establishing majority support among the employees whom it seeks to represent. There was simply a change in the method of measuring employee support. Nevertheless, it is difficult to resist the inference that the Legislature thought that a representation vote was a more direct and reliable method of testing employee wishes than looking at membership cards alone. The effect of Bill 7 is that an examination of documents respecting “membership” has been replaced by a direct polling of employee wishes with respect to certification. (Note that the question asked in a representation vote is not “have you at some point become a union member or applied for membership in a trade union”, but rather the more directly relevant question: “do you wish to be represented by this trade union, in a collective bargaining relationship with this employer, at this particular time”. “Membership” describes a relationship between the individual and the union, and does not depend upon the identity of the particular employer for whom the person may be working from time to time; but, of course, the identity of that employer may well be a factor in the employees’ decision about whether they wish to establish a collective bargaining relationship, because that is the employer who will be on the other side of the bargaining table. A person who is undoubtedly a union “member” for statutory purposes, may still decide that s/he does not want a collective bargaining relationship with a particular employer; and that is the question that is canvassed on a representation vote).

29. Once a trade union has been certified as the employees’ exclusive bargaining agent, it has a “license to bargain” on behalf of the employees, and may enter into a collective agreement that binds them (I say “may” because, outside the construction industry, the collective agreement is not binding until it has also been ratified by the employees in another secret ballot vote – see sections 44 and 79 of the Act). Moreover, once certified as bargaining agent, a trade union’s status can only be challenged in the manner prescribed by the statute (primarily sections 62-67 of the Act). Following certification, a trade union is protected from challenge, for at least a year, while it seeks to negotiate with the employer with a view to concluding a collective agreement. There cannot be an application to terminate bargaining rights or a “raid” by another trade union.

30. It is worth remembering, though, that the creation of “bargaining rights” and the signing of a collective agreement are not just matters between the union and the employer – the “institutional parties” to the collective bargaining relationship. The establishment of “collective bargaining” also changes the legal rights of employees.

31. Through self-organization, employees can enjoy the benefits of trade union representation and the fruits of collective bargaining, as set out in their collective agreement. But, by the same token, there is a corresponding change in the options open to the employees, who can no longer deal with their employer individually. Indeed, once the union becomes their bargaining agent, the employees must look exclusively to the union not only for the enforcement of the rights contained in the collective agreement, but also for the vindication of certain statutory and common law rights which they would otherwise be individually free to pursue (see for example section 64.5 of the Employment Standards Act; section 48(12)(j) of the Labour Relations Act; and the recent decision of the Ontario Court of Appeal in Giorno v. Pappas (1999) 1999 CanLII 1161 (ON CA), 42 O.R. (3d) 626).

32. The point is: the presence of a trade union and a collective agreement not only provides certain benefits to employees, but also takes away the employees’ right to pursue individual or collective alternatives. The existence of “bargaining rights” is not a neutral event from an employee perspective. Once the union is installed as the employees’ bargaining agent, and a collective agreement is in place, the employees must look exclusively to that union for redress for a variety of workplace problems. They can no longer deal with their employer individually. And as this case demonstrates, an existing trade union and collective agreement can also stand in the way of any employee desire to be represented by another trade union.

33. But, certification is not the only way in which a trade union can acquire

“bargaining rights” – status as the employees’ exclusive bargaining agent. Nor, to be clear, is the voluntary recognition alternative any less “lawful” or “legitimate”.

34. Under the Labour Relations Act, a trade union and employer, acting at arm’s length (i.e. subject to sections 53 and 70 of the Act), can conclude a “voluntary recognition arrangement” in which these “institutional parties” agree that the union will represent the employees in a defined bargaining unit. That voluntary recognition arrangement can either be an independent document, providing the platform for later collective bargaining, (see section 18(3) of the Act), or it can take the form of a full-blown collective agreement from the outset. Section 45(1) of the Act reads as follows:

35. (1) Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein.

Thus, it is open to a trade union and employer, to simply conclude a collective agreement with a “standard recognition clause” – which for that employer and bargaining unit will amount to a “voluntary recognition” arrangement. There need not be a “two-step process” of signing a voluntary recognition agreement then, later, signing a collective agreement. Nor, in the construction industry, need the collective agreement be “ratified” by the employees bound by it.

35. A voluntary recognition agreement can create bargaining rights - initially at least - without any reference whatsoever to the wishes of employees. It is a bilateral arrangement between the union and the employer. However, bargaining rights based upon voluntary recognition are inherently “fragile” - at least for the first year of their existence - because, during that first year, any employee or any trade union representing any employee, may demand that the union (and employer) prove that the union was “entitled to represent the employees” at the time that the voluntary recognition arrangement/collective agreement was entered into (see section 66 of the Act reproduced above). In effect, the challenger may trigger an enquiry into support for the union that is not unlike the one underlying the certification process.

36. The concept of “voluntary recognition” does not represent a departure from the majority principles upon which the union’s exclusive bargaining agency is based. Nor is there a departure from the necessity of employee support. On the contrary, in accordance with section 66 of the Act, a trade union may still have to meet a standard that is broadly similar to that required by certification: it may have to prove that at the time it acquired bargaining rights, it really was “entitled to represent” the employees in the bargaining unit. And while section 66 does not expressly speak about “majority support”, it is difficult to see how the union could establish its “entitlement to represent” the employees in the bargaining unit, if it could not establish support among some substantial segment of that employee grouping.

37. I shall have more to say later about the structure of section 66. At this point, it is sufficient to say that certification and voluntary recognition are alternative ways in which a trade union can establish bargaining rights, but in both cases, those bargaining rights turn, ultimately, upon a showing of employee support. And in both cases the statute is concerned to ensure arms length relationships (compare sections 15 and 53).

38. How does the union show such employee support? Unlike the certification process, there is no statutory prescription. But experience suggests that there are number of ways.

39. Sometimes the employer is prepared to produce a list of employees, so that the union can match the names on that list, with the names of persons who are already members or for whom the union has already obtained membership cards. (Supplying a list in advance of organizing might raise concerns under section 53 or section 70.) Then the union simply retains the agreed-upon list and its membership evidence, which can be produced later if there is any challenge to its entitlement to represent employees at the time the voluntary recognition agreement was entered into. It is, in effect, an approach which roughly parallels the process followed by the Board, prior to 1995, on a certification application. There, too, membership cards were matched to the names on a list of employees in the bargaining unit, in order to confirm the level of employee support.

40. Sometimes (especially in the construction industry) the union and employer enter into a voluntary recognition agreement before any employees are hired, and, at the same time, the employer undertakes to hire only out-of-work union members, through the union “hiring hall”. The bargaining unit, initially empty, is subsequently filled by persons who, by definition, are already union supporters before they are even hired. Indeed, it is the union that obtains the job opportunities for these employees in the first place; so once again, there may be little doubt that the union was “entitled to represent” them. And that kind of arrangement may be sensible from the employer’s perspective as well, because it allows the employer, in advance of any job or bid, to gain access to a secure pool of skilled labour.

41. Sometimes the union solicits bargaining unit support at the same time that it is negotiating the collective agreement which will ultimately apply to that bargaining unit. Such collective agreement would, of course, include a recognition clause, as required by section 54 of the Act, so that concluding the collective agreement amounts to a “voluntary recognition” of the union. However, if the union immediately submits that collective agreement for employee ratification, such ratification, too, would be persuasive evidence that the union was “entitled to represent the employees” at the time the agreement was concluded. A positive ratification vote, proximate in time to the signing of the agreement, creates a strong inference of employee support for both the process and result of collective bargaining (and, inferences aside, what labour relations purpose would be served by questioning an agreement that the employees had just endorsed?). A ratification vote was part of the mix in cases such as: York County Quality Foods Ltd. (1984) OLRB Rep. Sept. 1340; and Gisbourne Design Services Ltd. (1995) ORLB Rep. June 796.

42. I do not think that it is necessary to multiply the examples, or to speculate at this point, on the various formulas which might easily or conceivably meet the test of section 66(3). It suffices to say that voluntary recognition is a legally-recognized alternative to certification, and is relatively easy to establish and defend, if the institutional parties keep the potential for challenge in mind when they are initially structuring their relationship. Bargaining rights based on voluntary recognition need not be “fragile” at all – despite the provisions of section 66. However, if the bargaining parties wish to protect their arrangement from attack and preserve the stability and certainty of the collective agreement, they must build a foundation that will survive scrutiny under section 66.

43. I will look later at how the facts in this case fit within the framework of section 66. At this point, I merely note that the situation here is quite unlike any of the “simple scenarios” outlined above, and serves to illustrate not only the perils of voluntary recognition, but also how these bilateral arrangements between “institutional parties” can affect the rights of employees and other trade unions. Moreover, as I will explain below, the unusual business setting and inter-union rivalry have combined to produce a complex and difficult piece of litigation.

How the Carpenters acquired bargaining rights in this case

44. The way that events have unfolded in this case makes litigation a rather unsatisfactory instrument for addressing the problems that it raises. However, it is important to record at the outset, that no one asserts that the voluntary recognition arrangement with the Group of Five companies is “collusive”, or that it is not “at arm’s length”, or (to put the matter colloquially) that the Carpenters union is “in bed with the employers”. There is no “section 53 issue” raised here. On the contrary, it is common ground that the Carpenters have made bona fide efforts to organize the employees at a time when they were the only union in the field; and that the Carpenters union and the Group of Five companies later entered into collective agreements “in good faith”, and in order to establish a level playing field for all of the employers who have a relationship with the Carpenters. The voluntary recognition arrangements in this case are not a “device” to avoid unionization by an independent employee organization, nor is this the kind of “sweetheart deal” which sometimes attracts attention under section 66, (and which is addressed more directly in sections 53, or 70 of the Act).

45. However, as I will outline later, the facts of the case are still troublesome in light of the “majoritarian” principles underlying the statute; for the focus of section 66 is broader than the so-called “sweet heart agreements” prohibited by section 53. In the earlier decision the Board put it this way:

“However it seems to me that section 66 of the Act is not only about “sweetheart agreements” or “collusion” between an employer and a trade union. The section is also about employee choice of bargaining agents; and in that context, the Labourers and/or individual employees are entitled to put the Carpenters to the test prescribed in the statute itself. To put the matter another way: if a trade union decides not to pursue the certification process with its required representation vote, or even obtain a certificate by means of some consent order from the Board, the union must be prepared to establish its support when challenged during the first year of any collective agreement.” [emphasis added]

Even in if the institutional parties are acting “at arms length”, section 66 still requires the incumbent union to show that it was “entitled to represent” those whom it purported to represent. Bargaining rights still depend, ultimately, upon the support of employees.

46. The effect of voluntary recognition - an arrangement between institutional parties – is to change the rights and limit the choices of employees; and that is so whether or not the parties to the voluntary recognition arrangement were acting “lawfully”, or “in good faith”, or “at arms length from each other”, or in a genuine belief that what they were doing was “good” for those employees. Accordingly, if there is a timely challenge, it is necessary to carefully scrutinize the foundation on which the voluntary recognition arrangement is based, to ensure that the union really does represent the employees in question. To reiterate: bargaining rights are held by a trade union, but they must be based upon employee support.

47. So how did the Carpenters come to represent the pieceworkers at these five companies?

48. The story begins in the spring of 1996, when Carpenters Local 27 began to organize the “pieceworkers” who worked for companies in the trim carpentry business. Those companies manufacture components, supply them to building sites, and contract with pieceworkers for the installation of those components. However, because of the way in which the business is organized, the trim companies (lumber yards) normally have no knowledge of the number or identity of the pieceworkers engaged on a particular building site at any given time. Nor are there any records to show how many people are working, or who is working, where, or when. The lumber company is interested in the result – not how it is accomplished. (See the Board’s earlier decision which also reviews the background, based upon the record of previous proceedings and the uncontested facts put before the Board; and note that the definition of “employee” for the purposes of the Labour Relations Act includes “dependent contractors”).

49. The result is a business setting in which the normal evidence concerning employees is unavailable, and thus the normal statutory mechanisms for testing employee support, do not work very well. And, unfortunately, the delays associated with this litigation can only complicate that problem.

50. The Carpenters organizing campaign followed familiar lines: the union approached the workers in question, touted the virtues of collective bargaining, and tried to enroll as many as possible into membership. According to the Carpenters, the organizing campaign faced the usual task of determining: who the workers were; how many there were; where they worked; and for whom they worked. In a certification system based upon majority wishes, this tactical information is critical, because, eventually, the union will have to demonstrate majority support of those employees in representation vote. The union needs at least a 40% appearance of support to trigger a vote, and majority support to win it (see sections 8 -10 of the Act); and that means that the union has to know who the employees are, as well as where and for whom they work. So does the Board.

51. At this point – in the spring of 1996 – there was no Labourers presence in this corner of the construction industry. Nor was there any effort by the Labourers union to enroll trim carpenters into membership. The Carpenters had the field all to themselves, and their organizing campaign was well under way before the Labourers expressed any interest in representing these workers, and before any of the pieceworkers expressed an interest in being represented by the Labourers. At that stage, the Carpenters were the only choice.

52. Carpenters Local 27 decided to concentrate its organising efforts on the so‑called "Group of Five" companies that were the “key players” in the trim carpentry business. On April 11, 1996, the Carpenters filed an application for certification in respect of Penegal, which is one of the larger lumber yards. In support of its application the Carpenters union submitted 17 membership cards, purporting to show support from at least 40% of the employees in the target bargaining unit (much as the Labourers did with their own certification application a little over a year later, when that union filed 24 cards on behalf of pieceworkers said to be working for Penegal).

53. In response to the Carpenters application for certification, Penegal took the position that it had "no employees" within the meaning of the Labour Relations Act. In Penegal's submission, all of the pieceworkers who were working on these sites were "independent contractors", and not "employees" at all. Penegal further submitted that, because of the geographic scope of its activities, there had not been proper notice to the individuals affected by the application, so that no representation vote should be held. In Penegal’s submission, the Board had to take into account the fact that the pieceworkers were geographically scattered over a number of different job sites.

54. There was also a serious dispute about the number of individuals in the bargaining unit eligible to vote – even assuming that they were “employees” – because of the fluidity of the work relationships and the imperfect knowledge of union and employer alike. At paragraph 19 of the earlier decision, the Board described the situation this way:

55. In the 1996 Penegal certification application, Local 27 claimed that there were 21 trim carpenters actively at work on the application date. The voters' list compiled in the wake of the application (with the additional information from Penegal) identified 38 individuals as "potential voters" (i.e. individuals whose actual entitlement to vote depended upon their status and whether they were in fact at work on the application date). Fifteen of those individuals cast votes.

56. In order to determine whether the Carpenters enjoyed majority support, the Board had to first determine how many employees there were. And, in this work setting, that was not easy – hence the difference between the Carpenters original estimate (21) and the expanded field of potential voters (38).

57. This dispute about the composition of the bargaining unit was complicated by the fact that there were no “employment” records of the kind usually kept by employers, so that these questions could only be resolved by oral evidence from witnesses who could actually recall who was working, where, at the relevant time (the bargaining unit also has a geographic perimeter). Because of the way in which the pieceworkers are engaged, the “numbers problem” was quite significant, and it was not at all clear how it could be readily sorted out. For the fact is: the “standard” certification model simply does not work very well in a setting where work is fluid, where job sites are geographically dispersed, where workers come and go, where there are no reliable employment records, and where the employer can fairly say that it does not really know who is working on its sites at any particular time. Nor, as we will see, is it easy to apply section 66.

58. A few weeks later, Carpenters Local 27 launched certification applications in respect of the other four firms in the Group of Five. Those applications involved similar problems respecting the composition of the bargaining units (i.e. the number and status of the pieceworkers), as well as some collateral unfair labour practices, and, in the case of Ganiva, some “related employer” issues under section 1(4) of the Act. Once again, because of the absence of records, there was the prospect of one or more witnesses having to testify about who s/he remembered being on each work site at the time the certification applications were made.

59. As the parties prepared to litigate these cases, it became evident that because of the number of work sites and work crews, the Board would have to determine numerous “challenges” before it could decide: how many individuals were affected by the applications; whether the individuals in question (or some of them) were "employees" within the meaning of the Act; who was working on the application date; where those pieceworkers were working; and for whom they were working. These determinations had to be made before the Board could sort out the composition of the bargaining units in each case, and conduct an effective representation vote. And because of the evidentiary issues, the potential litigation costs were significant, and the outcome was quite uncertain.

60. So, the parties began to explore the possibility of an alternative to litigation. They began to talk settlement.

61. Perhaps Penegal and the other four companies would have preferred to remain "non‑union". But they certainly did not welcome the prospect of costly litigation. So after weighing their options, the companies concluded that they could "live with the union" if: the Carpenters organising campaign encompassed the majority of their competitors; and if all (or most) of their competitors were bound by the same standard collective agreement. The companies reasoned that if their competitors were bound by the same agreement, unionisation would pose no competitive disadvantage.

62. Over the next few weeks, the Group of Five companies entered into negotiations with the Carpenters union, with a view to concluding: (1) a voluntary recognition agreement for each company; and (2) a model collective agreement that would apply to each of the Group of Five companies and also to their major competitors. But the primary pre‑condition for settlement, was that the Group of Five would only be bound to the collective agreement with the Carpenters, if the Carpenters successfully organised the majority of other trim carpentry employers, and persuaded those other companies to become bound to the proposed “industry agreement”. Bargaining rights by voluntary recognition would fall into place for the Group of Five, when the Carpenters brought the other companies on board. [Counsel for the Group of Five indicated that there were as many as 40 or more other firms in the trim carpentry business].

63. From the perspective of the “institutional parties”, the proposed settlement was a sensible alternative to litigation. The union would get bargaining rights, the employers’ competitive position would be maintained, and there would be a stable “industry agreement” to which all of the major employers would be bound. There would be both certainty and labour relations stability. And the Board would not have to decide the legal and factual questions thrown up by the Carpenters’ applications.

64. On December 12, 1996, the Group of Five companies and the Carpenters finalised a settlement along the lines described above. That settlement had two distinct components: a "standard collective agreement" prescribing terms and conditions of employment for the trim carpentry pieceworkers; and an understanding that neither the voluntary recognition nor the collective agreement terms would become effective, unless and until Carpenters Local 27 organised the other lumber yards and/or persuaded the other employers to become bound by the same “industry agreement”. Voluntary recognition would be extended and the “master agreement” would fall into place, once the union had secured the acquiescence of these other employers.

65. On December 15, 1996, the union called a “membership meeting” to consult the trim carpenters and to obtain their endorsement of the proposed collective agreement. I am told (and it is not disputed) that the union had to expend considerable effort (with radio and press announcements, etc.) to bring the proposed collective agreement to the attention of those trim carpenters, and to persuade them to attend a meeting where the proposed agreement could be discussed and “ratified”. I am told that it was difficult for the Carpenters to get in touch with the individuals whom the union purported to represent – and clearly would represent - once the collective agreements were put in place. For regardless of who had signed a Carpenters membership card or had attended a meeting in 1996, once the collective agreement fell into place, the Carpenters would represent all pieceworkers who were then employed or who were later employed, and everyone would also have to become a member of the union as a condition of employment.

66. Unfortunately for the Carpenters, the meeting was not particularly well attended. For example, there were only two individuals from Penegal who cast ballots in a purported “ratification vote”. Yet according to the estimates in the Carpenters own pleadings, Penegal is one of the bigger trim contractors, having 50 or more individuals actively working at the time the “ratification vote” was held. And, as counsel for the Carpenters later pointed out: the earlier Board decision was wrong to suggest that the poor turnout might have been related to a seasonal slowdown in the industry, because, she said, these workers tend to work inside and are not as affected by winter conditions as other construction workers. So we do not know why the Carpenters were unable to bring out more of the individuals whom the union was purporting to represent. But for whatever reason, the meeting was not very representative; and, according to the Carpenters (though this is difficult to verify) some attendees were reluctant to vote.

67. I have put the words “ratification vote” in parentheses in the previous paragraph, because the process adopted by the Carpenters is not the one that is usually followed to “ratify” a collective agreement. Normally, the parties negotiate a settlement, then the document is ratified by the individuals in the bargaining unit at the time that the collective agreement is to be put in place. Ratification normally follows closely upon the negotiation of the agreement, and, in turn, is closely followed by the execution of the agreement. “Ratification” doesn’t normally occur months before the deal is actually signed.

68. In the instant case, however, the collective agreement was not actually signed until June 24, 1997 – some six months after its purported “ratification” by the employees who answered the union’s invitation to attend the meeting on December 15, 1996. So quite apart from the number of attendees at the meeting on December 15,1996, it is not at all clear that the complement of active employees at each company on December 15, 1996 was the same as the complement of active employees at each company more than 6 months later, on June 24, 1997, when the collective agreement was actually entered into. Even assuming that no one had second thoughts between those dates, there is still no assurance that those who “ratified” the proposed agreement in December 1996, were working for the same companies six months later. And if it is hard to pin down the number of pieceworkers actually working for each company at any given time (the source of the difficulty in the earlier certification applications) it might be doubly difficult to ascertain who was working on December 15, 1996, then to cross reference that list with who was also working on June 24, 1997.

69. It is not obvious (and it is certainly not agreed) that the employee complement at each company remained the same over this six month period, nor that the expression of views recorded in December 1996 was necessarily representative of the views of whoever was on the scene six months later. This is just another aspect of the “numbers problem” to which I have earlier referred.

70. As far as the Carpenters were concerned, the meeting of December 15, 1996 gave them the “go ahead” to promote the collective agreement to other employers and employees in the industry – as the Group of Five companies had demanded as a condition of settlement. And, ultimately, the union was able to garner sufficiently generalised support to prompt the Group of Five companies to sign the agreement (albeit less support than the settlement contemplated – the original five companies eventually waived that requirement). But the Carpenters did not conduct any further ratification vote among the pieceworkers employed by the Group of Five companies on or after June 24, 1997, when the collective agreements were entered into. There was no additional confirmation from the employees then working (i.e. in June 1997) for the five companies.

71. Accordingly, assuming that at least some of the employees working for each company at the end of June 1997 were also active employees in mid-December 1996 when the purported “ratification meeting” was held, any support from those who voted for the proposed collective agreement in December 1996 would be “more than six months old” by the time the agreement was actually signed in June 1997. And as I have already noted, the number of workers attending the meeting in December 1996 was not particularly representative of the group whom the Carpenters themselves claim were actively employed at that time. This handful of supporters was not consulted again, nor did the Carpenters take any steps in June 1997 (i.e. when the agreements were actually signed) to consult the broader employee grouping who immediately became bound by those agreements. And, of course, by June 1997 the Labourers were on the scene, trying to enrol pieceworkers into membership in that union. (Note again that the Labourers have filed quite a number of membership cards in respect of individuals allegedly working for the companies around the very time that the Carpenters’ collective agreements are being signed).

72. Moreover, any “membership cards” collected by the Carpenters union to support the spring 1996 certification applications, would also be pretty old by June 1997 when the collective agreements were signed; and to be helpful in establishing the breadth of the Carpenters’ support, one would still have to match those cards to a list of employees at work, for each company, at the relevant time. That, too, would be a formidable exercise in a context where no one suggests that there are any employment records that would reliably establish who was working where and when (i.e. to establish a list of active employees to which the cards could be matched). Those difficulties would only be compounded with the passage of time, since, unlike documents, memories fade.

73. So leaving aside how one might assess the wishes of the employees, there is obviously some difficulty in even establishing who they are. But one thing is certain: while the essential question is easy to articulate (do the employees want the union to represent them in a collective bargaining relationship?), litigation cannot now produce a cheap, quick, and reliable answer, anymore than it could in the Carpenters’ certification applications in 1996.

74. In other words, even if there were an easy way to count the number of employees who supported the union at any given point in time, (“the numerator”) there is still the formidable problem of determining what proportion that they are of the entire bargaining unit (“the denominator”). Both parts of the equation are necessary to calculate the level of employee support: to use the cards to assess the union’s “entitlement to represent” the employees in the bargaining unit. But because of the work setting and the way in which the case has unfolded, there are practical obstacles to applying the statutory formula. In the absence of employment records, we may be left with individual recollections of who was working when, where (i.e. on what job sites), and for whom, back in 1997.

75. In summary then, the situation presented in this case is quite unlike the “simple voluntary recognition scenarios” described above. We do not have an agreed-upon employee list that can be matched with more or less contemporaneous union membership cards. We do not have a ratification vote in which the employees in the bargaining unit confirm their acceptance of a collective agreement that has recently been negotiated. Nor has an “empty bargaining unit” been filled up with referrals from the union hiring hall. Each of the five companies did have pieceworkers actively at work in the agreed upon bargaining unit at all material times, so there were employees immediately affected by the arrangement between the institutional parties; but the composition of that employee reference group has not been clearly established, and cannot be easily established. Instead, we have what I have described as a serious “numbers problem”. The earlier Board decision put it this way:

76. Central to the original group of certification applications, to the ratification process, and to the termination proceedings now before the Board is one overriding problem: ascertaining the number of trim carpenters affected, and determining the number of those individuals who, at the relevant time, supported Carpenters Local 27. It is an arithmetic exercise that is complicated by the fact that these individuals are pieceworkers, who work in the construction industry, where the work forces are mobile and fluid. Moreover, if "settling the numbers" and determining support was difficult in the context of the original certification applications filed in the spring or fall of 1996, it may be even more difficult now, more than a year after June 24, 1997, when the collective agreements were signed. Yet that is what Carpenters Local 27 may now be required to do. And if Local 27 seeks to rely on the "ratification vote" taken in December 1996, it may have to address the "representativeness" of that vote too.

77. In order to plumb the dimensions of this "numbers problem" (and also to put the parties' arguments into perspective), it may be useful to briefly review the various estimates that were set out in the original certification proceedings, or were put before me in the course of this proceeding. I do not suggest that one or other of these documents is determinative. Nor do I suggest that the number mentioned in a particular document is necessarily accurate. I record these estimates here, simply to illustrate the dimensions of the dispute.

78. It will be convenient to look at the companies one by one.

79. The original Penegal application for certification was filed on April 11, 1996, and Carpenters Local 27 claimed that there were 21 trim carpenters at work on the application date. Based upon the material supplied by Penegal, the Board assembled a possible voters' list comprising 30 individuals [sic - this should read 38]. Some 15 individuals cast ballots in that representation vote, However, the effect of the vote was stayed pending determination of the outstanding challenges, the unfair labour practice complaint, and the Carpenters request for certification under section 11 of the Act. But as it turned out, those issues were never pursued, because the parties reached the settlement described above.

80. In a letter dated March 30, 1998, counsel for Carpenters Local 27 claims that there were 56 trim carpenters working for Penegal as at December 12, 1996 when the "ratification vote" was held, and 54 workers working for Penegal as at June 24, 1997 when the collective agreement with Penegal was actually signed. But, for whatever reason, only two individuals from Penegal cast ballots in the ratification vote conducted on December 15, 1996 (both in favor).

81. To complete the picture for Penegal: the Labourers own certification application was filed on June 24, 1997 (the same day as the execution of the Carpenters collective agreement), and estimates that there were about 30 trim carpenters actively at work on that date. That certification application is supported by Labourers membership cards, collected in mid‑June 1997, and purportedly signed by quite a number of these trim carpenters. A termination application pertaining to Penegal's pieceworkers was filed on August 14, 1997, about seven weeks after the Carpenters collective agreement was executed.

82. So it seems that, at the very time that the Carpenters collective agreement was finally being signed, quite a number of Penegal's trim carpenters were recording their support for the Labourers union ‑ whatever their earlier inclinations might have been. I put it this way because it remains to be seen whether (or in what numbers) individuals who signed Carpenters cards have later signed cards signifying support for the Labourers union.

83. The situation for the other companies reveals broadly similar problems (see paragraphs 45-53 of the earlier Board decision), and the Board went on to say:

84. At this point, I do not propose to comment on the evidentiary basis for these various estimates, or the ultimate weight to be accorded to the "ratification vote" taken in December 1996. However, I think that one can hazard a number of general observations about the factual problems posed by this case:

(1) There remains considerable scope for argument about who was an employee of each of the Group of Five companies at any of the arguably relevant times; moreover, ascertaining that number may not be easy in a context where the usual employment documentation is lacking.

(2) The workers expressing their views in the ratification vote of December 12, 1996 were a minority of the trim carpenters working for the various companies at the time; and the vote itself was taken more than 6 months before the collective agreements were eventually executed.

(3) The determination of support for the Carpenters union may be complicated by the fact that any membership evidence filed in connection with the original Carpenters certification applications was up to a year old by the time the collective agreement was executed; and, by that time, many of the workers at Penegal at least, had signed Labourers membership cards (the foundation for the Labourers own certification application filed on June 24, 1997). The Labourers documentary evidence of support may therefore be "fresher" than the signification of support relied upon by the Carpenters ‑ although here, too, one would have to compare names and dates. But at the very least, this element may have to be factored into any numerical equation.

55. In summary, the task facing the Board in the instant group of cases may be even more difficult than the exercise that would have been required to dispose of the Carpenters original 1996 certification applications ‑ an exercise which the parties ultimately abandoned because of the likely length and cost of the litigation.

56. In light of these problems in each of the present cases, the Board focussed first on the so-called “Peace Pact issue” (and some related discretionary arguments), because, it was said, the resolution of that issue might be determinative not only of these applications, but also of other similar applications between these parties, in this corner of the construction industry. (The “Peace Pact” was said to stand in the way of any Labourers’ incursion into “Carpenters territory”). It appeared that this issue would have to be determined at some point, and that an initial determination of this issue might make it unnecessary to deal with any of the other problems in the case. And because of the number of counsel involved and the potential ramifications of the decision, the Board acceded to the request to schedule hearing dates on consent. However, as it turned out, the Board was not persuaded that the “Peace Pact” was the absolute “bar” that the Carpenters claimed it was – leaving the rest of the issues in each case, to be determined, one by one, in the ordinary course.

57. But, given the way that events have unfolded, it is not so easy now to deal with the “entitlement issue” mentioned in section 66(3) of the Act: to clearly, quickly, and unequivocally establish the incumbent union’s level of support back in 1997. Yet for that very reason, the employees – the focus of section 66 – have remained bound by the collective agreement, with all of its benefits and detriments, because the voluntary recognition arrangement stands until it is successfully challenged.

58. Not to put too fine a point on it, (and without suggesting any impropriety whatsoever): the unusual circumstances of the case, the method by which the Carpenters acquired bargaining rights, and the various “defences” raised by the incumbent union, taken together, have meant that the employees of the five companies have been bound by the collective agreement for more than two years, even though the Carpenters union may never have been “entitled to represent the employees in the bargaining unit at the time the agreement was entered into” . As a practical matter, the “deal” struck by the institutional parties has been binding on the employees, whether they like it or not, and whether or not the union can ultimately show that it was entitled to represent them. From a labour relations perspective, that is not a very satisfactory result unless the Carpenters’ position ultimately prevails.

The termination of bargaining rights based on voluntary recognition – the structure of section 66 of the Act

79. Because most of the Board’s experience with voluntary recognition has involved either suspected “sweetheart arrangements” or fairly simple scenarios, there has not been much close analysis of the individual provisions of section 66. Nor has there been any assessment of how (if at all) the application of section 66 may have been modified by recent statutory changes – in particular, the introduction of a vote-based certification process, and the diminished significance of membership cards as a method for assessing union support. Counsel for the Carpenters correctly points out that the recent amendments to the Act have not changed the text of section 66. However, it seems to me that those amendments do change the context in which section 66 appears, and at the very least, are a reminder that the wishes of employees are central to the collective bargaining scheme. And I do not think that one can ignore the fact there has been a policy shift away from cards, in favour of votes, as the preferred method of testing employee wishes. In a certification context, membership in a union alone, is no longer a sufficient to establish a bargaining relationship with a particular employer.

80. For convenience, section 66 of the Act will be reproduced once again:

81. (1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 18 (3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.

(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.

(3) On an application under subsection (1), the onus of establish­ing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.

(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application (emphasis added)

81. Section 66 is found in the constellation of provisions dealing with the termination of bargaining rights. However, unlike section 63, which roughly parallels the certification process (and contemplates the taking of a representation vote) a declaration under section 66 is discretionary. In my view, that is the significance of the word “may” found in the sixth line of section 66(1).

82. The use of the word “may” in section 66(1) confirms that the Board has a discretion whether or not to make a declaration, even if the requirements for doing so are met. In this regard, section 66 is similar in structure to section 65 which is also discretionary. And, in my view, the exercise of that discretion can be informed by the particular circumstances of the case, and also by labour relations policy considerations. The determination is “contextual”, and the Board is entitled to take into account what makes “labour relations sense”.

83. That said, the preconditions for a section 66(1) declaration are pretty straightforward, and are reinforced by section 66(3) describing the onus of proof. The incumbent trade union must establish that it was “entitled to represent” the employees in the bargaining unit, “at the time the agreement was entered into”. The emphasised words establish the temporal benchmark for measuring employee “support” – which is what “entitlement to represent” is all about. A union is “entitled to represent” a group of employees, because those employees have signified a desire to be represented: they have somehow designated the union as their bargaining agent. (again see item 2 in the “Purpose provision” of the Act).

84. The section does not specify how the union must meet the onus cast upon it under section 66(3), nor what evidence will be sufficient to establish “entitlement to represent”. That calculus is left to the Board to consider on a case by case basis, in light of its own experience. But it is evident that the determination may be a little different than the one made under the vote-based certification or termination procedures. In these contexts there are clear numerical guidelines - an express reference to majority support - as well as a stipulated process by which to assess that support (before and after Bill 7).

85. By contrast, there are no similar guidelines in section 66 – at least not explicitly. The words “entitlement to represent” are quite elastic, and there may be a number of different ways in which a union might demonstrate “entitlement” (see paragraphs 38-42 above). Nevertheless, it seems to me that what is contemplated is the “majoritarian principle” evident in other provisions of the Act dealing with bargaining rights or testing employee wishes (see for example: section 10, section 63 or sections 79(3) and 79(4)). At the very least, the support for the union must be significant, and demonstrable; and in accordance with section 66(1), that support must be evident at the time the collective agreement is entered into. Evidence of entitlement/support before or after that temporal bench mark will be helpful only if

(a) it supports the inference that the union’s “entitlement” or “support” was present at the time the agreement was entered into; or

(b) it is relevant to the exercise of the Board’s discretion.

86. For example, a solid ratification vote by the employees covered by the agreement, around the time that the collective agreement is signed, may prompt the Board to dismiss a challenge under section 66 even if there is some doubt about the union’s “entitlement to represent” at the precise moment that the agreement is signed (or earlier) because such “entitlement to represent” should be reasonably inferred. But, in any event, there would be no good labour relations reason to overturn a collective agreement that had been conclusively endorsed by the union, the employer and also by the employees. So a decisive and timely ratification vote would also be a powerful factor influencing the exercise of discretion – whatever problems there may be with the union’s other evidence of “entitlement to represent”. The discretionary nature of the outcome gives the Board more latitude than would be the case in other situations.

87. Section 66(2) of the Act, also permits the Board to “make such enquiry, require the production of such evidence and the doing of such things, or hold such representation votes [note the plural] as it considers appropriate”. This is an additional tool to test employee wishes, as well as an additional reminder of the purpose underlying section 66: to ensure that a trade union whose bargaining rights are based upon voluntary recognition, really does represent the employees whom it purports to represent. Section 66(2) allows the Board to initiate its own enquiries and to poll the employees directly.

88. But how could the results of a representation vote be helpful in a section 66 context?

89. Since the statute contemplates that an application under section 66 can be made up to a year after the collective agreement is signed, a representation vote conducted after such termination is application is filed with the Board, is unlikely to provide much assistance in determining the union’s “support” or “entitlement to represent” at the time the collective agreement was entered into. In other words, a representation vote taken some months after the agreement was signed, may not give much guidance on the employees’ state of mind some months before – even if the Board asked the employees that question (i.e. if the Board asked: “did you support the union and its bargaining position some months ago, at the time the agreement was first entered into?”). Nor will the voting constituency at that point necessarily be the same as it was some months previously when the collective agreement was signed – especially in an environment like the construction industry, where employees move from job to job and employer to employer, in accordance with the vagaries of the marketplace. And it is difficult to believe that the Board is being invited to reconstruct, reassemble, then poll, a list of individuals who were “there then”, even though those individuals are no longer “there now”.

90. So why has the Legislature included the power to hold “representation votes” in the Board’s remedial arsenal?

91. It seems to me that section 66(2) is an information gathering device, and permits the Board to conduct the kind of secret ballot vote that would have been conducted if the trade union had sought certification in the first place, (or that would have been conducted if the application had been launched under section 63). A representation vote may not be necessary, but section 66 identifies that possibility; and as in the case of a ratification vote (if the union holds one), the Board can use the results of the representation vote(s) to inform the exercise of its discretion under section 66(1).

For example: if the union were able to demonstrate solid support in a Board-supervised representation vote, the Board might well decline to inquire into a termination application, or refuse to grant such application, despite some question of “entitlement” at the time the collective agreement/voluntary recognition arrangement was entered into. In this sense, a positive representation vote affirming support for an incumbent union might “cure” any insufficiency of the incumbent’s evidence, and derail what might otherwise be a difficult historical enquiry. (A “negative” representation vote would, of course, be irrelevant and unnecessary if the union were otherwise able to meet the section 66(3) onus, because that is the evidence that feeds the power to terminate under section 66(1) and (4)).

92. From a policy point of view, a representation vote is one way to ensure that the situation remains consistent with the statutory purpose - that the union be the freely designated representative of the employees - and in an appropriate case, it may make it unnecessary to examine the depth of the union’s support some months before. Why worry about the wishes of employees at the time that the agreement was entered into, when the employees today are satisfied with the status quo (at least in the absence of concerns under section 53)? Section 66(2) permits a direct test of employee wishes, that may assist the Board in disposing of the case. Section 66(2) permits the Board to gather information of employee wishes that can then be used in the exercise of discretion.

93. In summary then, section 66 casts the onus upon the trade union to establish that, at the time the collective agreement was entered into, it was entitled to represent the employees bound by it. But the statutory scheme also envisages some alternatives. To meet its onus under section 66(3), the incumbent union may tender evidence of employee support, at the time specified by the statute: when the collective agreement was entered into. If the union can do that convincingly, there may be no need to consider anything else. However, regardless of the quality of the union’s evidence, the Board still has a discretion whether or not to grant the declaration requested; and, in exercising that discretion, one of the things that the Board may take into account is the results of any representation vote conducted pursuant to section 66(2). Finally (and quite apart from these considerations) there may also be something else in the facts, or in the labour relations context, which provides an independent reason for dismissing the application - which is one of the reasons why the Board considered whether the so-called “Peace Pact” between the two unions precluded the Labourers from trespassing on the Carpenters’ territory (see the earlier Board decision). Had the Board been persuaded by the Carpenters’ “Peace Pact argument”, the Board might have exercised its discretion to dismiss the termination applications, without putting the responding parties to the onus of section 66(3).

94. With this background, then, I turn to the application of section 66 to the particular circumstances of this case – which is to say, to an assessment of the union’s evidence of “entitlement to represent the employees” as of June 24, 1997, when the collective agreements were signed.

.95. I will then consider whether the Board should seek the confirmatory evidence of a representation vote under section 66(2), and whether there are any other factors in the situation which would prompt the Board to exercise its discretion to dismiss the applications.

96. As before, the circumstances that I consider relevant are not really disputed and will be dealt with on a “best case basis” – assuming that the parties would ultimately be able to prove what they assert to be true.

The Carpenters evidence of “entitlement to represent” the employees of the various companies, at the time that the collective agreements were entered into

97. For the reasons outlined above, I am satisfied that the issue of “entitlement to represent” in section 66 is a reflection of the “majoritarian” principle that is referred to in various parts of the Act. A union is “entitled to represent” a group of employees when it is able to show that those employees want the trade union to represent them. It is a question of measuring employee wishes. And it is a question of evidence.

98. However, as I have also indicated earlier: the exercise envisaged by section 66 contemplates a calculation with a “numerator” and “denominator”. The numerator consists of the number of employees for whom the union can demonstrate “support” or “entitlement to represent” – by means of membership cards, other documentary evidence of authorisation or support, participation in a ratification exercise, and so on. The denominator is the total number of employees in the bargaining unit at the relevant time. Taken together, the comparison of numerator and denominator determines the “depth” of the incumbent union’s support – the extent of its entitlement to represent the employee group to whom the collective agreement applies.

99. But the denominator – how many employees there were at work in each company bargaining unit at any given time - is very difficult to determine in this particular case. In the absence of employment records, the Board may be required to hear oral evidence from witnesses who actually recall seeing particular employees, on particular sites, of a particular employer, on a particular day, more than two years ago. That would at the very least, be a cumbersome exercise, relying on someone’s memory of facts that may not have been considered to be very important or legally significant at the time. For if the Carpenters union had actually been thinking about it, there are some fairly simple ways in which the union could have protected its position from later attack (assuming, of course, that when the collective agreements were signed, the Carpenters actually did enjoy the employee support that the union claims, because by that point, the Labourers were also on the scene).

100. So for present purposes, I will leave the denominator aside for now, and will focus instead on the numerator: the employees for whom the Carpenters union has evidence of support (i.e. leaving aside whether the Carpenters can show that any of these 1996 cards match the 1997 workforce).

101. In accordance with the direction in paragraph 131 of the earlier decision, Board officer James Bowman compiled an employer by employer list of the cards filed by the Carpenters (based the union’s own information), indicating when such cards were signed by the alleged employees, in relation to the date on which the agreements were signed. The Board then scheduled a hearing to receive the parties’ representations on the application of section 66 – accepting the cards at face value, and assuming, without finding, that the other facts pleaded by the Carpenters, the employers, and the individuals represented by Mr. Shell were true and provable.

102. What the Board did, therefore, was to set up an opportunity for those who were seeking to preserve the status quo, to argue their position on a “best case basis”.

103. Why did the Board proceed in this way? For two reasons.

104. First of all, as the Board hinted in its first decision, it was by no means clear that the Carpenters evidence would meet the test of section 66(1) (i.e. the numerator) because of the particular way that the events had unfolded and the absence of evidence more contemporaneous with the temporal bench mark mentioned in section 66 itself. If such “evidence of entitlement”, viewed as a whole, should be ascribed little weight, then it might be unnecessary to go through the exercise of determining who was an employee in each bargaining unit at the time that the collective agreements were entered into. It was a logical way to proceed. If the numerator is “zero” it is unnecessary to calculate the denominator.

105. However there was also a “policy reason” for dealing with the case this way.

106. The collective agreements under review were signed in mid-1997, and this set of proceedings was commenced shortly thereafter. For reasons that were nobody’s “fault”, those proceedings have dragged on, to date – in large measure because of the nature of the issues raised, the decision to deal with the issues sequentially on dates agreed by the several counsel, and the peculiar employment setting in which there are no employment records demonstrating who was working, where, at the relevant time. The very problems which prompted the Carpenters to settle the 1996 certification cases, make it difficult to apply section 66 today, and also make it difficult for any challenger to produce a speedy outcome under section 66. But the practical reality for the employees is that they have been bound by a collective agreement since June 1997 (that among other things requires compulsory union membership) even though there has been no canvassing of anyone’s wishes at least since December 1996, some 6 months before the agreements in question were concluded.

107. Moreover, it is now obvious that, whatever may have obtained in 1996 when the Carpenters were the only union organising in the field, by 1997 there was an alternative union choice – the Labourers - that had garnered some degree of employee support in this sector of the industry. How much support there is for the Labourers, one cannot say for sure. But that is the inference to be drawn from the many Labourers’ membership cards that were filed in support of the Labourers applications. (Note, for example, that the Labourers have filed more cards in respect of “Penegal pieceworkers” than the Carpenters have filed, and the Labourers’ cards are much more recent – which is why a precise assessment of relative card support would require the construction of a list to which each union’s cards could be matched).

108. This, in essence, has become a “representation case” in which two unions are competing for the employees’ support; and it is troubling, therefore, that the unusual setting, together with the vagaries of litigation, have meant that the collective agreements under review may well have expired before this case is even concluded. It is troubling, in other words, that the “process” under section 66, may have completely defeated the “purpose” of section 66.

109. In the circumstances, it is incumbent upon the Board to embrace the process that appears most likely to yield a practical and timely outcome. Otherwise, the litigation process will simply drag on, and may further undermine the substantive employee rights which section 66 was designed to protect. That is why the Board focussed on “the numerator”.

110. So (on a best case basis) what is the incumbent union’s evidence of “entitlement to represent” the employees - to use the words appearing in sections 66(1) and 66(3)?

111. First, there is the so-called “ratification vote” that was held in mid-December 1996. That information was not disputed. But for reasons mentioned above, I am not inclined to accord that vote much significance. Not only was the turnout relatively sparse in terms of anyone’s assessment of the number of employees actively at work at the time, but the purported endorsement occurred some six months before the time that the collective agreements were actually entered into – which is the time that the statute fixes as the benchmark. And by June 1997, it is perfectly plain that the continuing support for the Carpenters was at least open to question - which is why the Labourers were able to apply for certification at Penegal and Millway, and were able to tender so many Labourers membership cards in respect of the various companies. (It is conceivable, of course, that none of these individuals signing these cards were actually working for the employer whose name is recorded on the card, but that scenario does not seem very likely; and it must be remembered that, just as there is as yet no hard evidence that any of these Labourers supporters were working for the companies at any given time, there is also no hard evidence that any of the Carpenters old cards match the workforce in June 1997 or at any other time. There is no evidence from anyone yet respecting the denominator).

112. Had the ratification vote been taken proximate to the signing of the collective agreement, and had it clearly involved significant numbers of employees actively at work in the bargaining unit at that time, I might have reached a different conclusion. But the endorsement of a small number of workers in December 1996 does not provide a reliable basis for the union’s claim of entitlement to represent the employees in the bargaining unit six months later, at the end of June 1997 – especially in the fluid environment of the construction industry.

113. In my view, the evidence respecting the ratification vote, even if accepted, is not sufficient to meet the onus cast upon the incumbent union by section 66(3).

114. What about the incumbent union’s membership cards, collected in 1996 in conjunction with the Carpenters own applications for certification? Do they provide an answer to the challenge raised by the Labourers? Do they assist in determining the incumbent union’s “entitlement to represent” employees in late June 1997?

115. In my view they do not.

116. Assessing union membership evidence is nothing new for the Board. That was an essential aspect of every certification application filed between 1950 and 1995 (thousands of them). Accordingly, the Board has a well-established approach respecting the form and timeliness of such evidence, as well as the way in which such evidence should be weighed.

117. What it boils down to, of course, is the weight that the Board is prepared to give to this particular form of written hearsay – in a context in which: these documents need not be revealed to the other parties in the case; they are not subject to cross-examination (see sections 111 and 119 of the Act); and, today, they could no longer be a basis for acquiring bargaining rights by “certification”. That is the “contextual component” to which I referred earlier. The weighing of evidence is not an abstract exercise, but rather a process undertaken in a particular regulatory context.

118. Prior to 1995, the Board had a consistent “policy” in certification applications with respect to what was described as “stale” membership evidence (i.e. a consistent series of rulings which provided the parties with guidance, and from which the Board was not inclined to depart, except for very good reasons). The Board’s view was that union membership cards that were over a year old should be given no weight at all in an exercise intended to test employee wishes at a much later point in time. The Board was of the view that a document showing a desire to join or support a union more than a year before, was not a reliable indicator of whether the employee now wished to be represented by that union in a collective bargaining relationship with a particular employer.

119. Similarly, in the former “card-based system”, the Board did not give much weight to cards that were more than 6 months old. Membership cards over 6 months old were not thought to be a reliable basis for establishing bargaining rights. Cards in the 6-12 month age range were not discounted altogether, but neither were they sufficient, standing alone, to support certification. Instead, the Board normally sought the confirmatory evidence of a representation vote, in which employees were invited to express their current wishes with respect to trade union representation.

120. In certification applications prior to 1995, therefore, “old cards” (i.e. “old hearsay”) were not considered to be a reliable indicator of employee support many months later. Better, the Board ruled, to test the employees’ views directly by means of a secret ballot vote – the only way that employee wishes can now be tested in a certification application or an application to terminate bargaining rights under section 63 of the Act.

121. Thus, even when membership cards played a much more prominent role in the system than they do now, the Board was not prepared to act upon just any document. There was a policy component in how the documents were weighed, taking into account the context in which the documents had been tendered, the purpose for which they would be used, the limits on disclosure, the absence of cross-examination, and the alternative (more direct) means of measuring employee wishes. The Board was also conscious of the hearsay quality of the documents, and the fact that employees could, and sometimes did, change their minds after signing such membership cards. In the Board’s experience, the fact that an employee was persuaded to sign a union membership card at a particular point in time, did not necessarily mean that the employee continued to support that union, at some later date. (That was the problem that led to the decisions of the Divisional Court in Fullers Restaurant (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462, Baltimore Aircoil (1981) 1981 CanLII 2940 (ON HCJDC), 130 D.L.R. (3d) 580, and Royal Canadian Yacht Club (1981) 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3d) 554).

122. Section 66 was not touched by the Bill 7 or the later Bill 31 amendments. Section 66 remains as it has been for many years. And as is apparent, the language is neither as precise nor as prescriptive as either section 63 or the procedures governing certification (before and after Bill 7). Certainly the statute does not require the Board to treat membership cards in the same way for certification purposes and for voluntary recognition challenges under section 66. The Board is entitled to treat these bits of hearsay in different ways, depending upon the context. Nevertheless, in my view, it is helpful to keep in mind not only the shifting legislative framework, but also the way in which the Board has historically looked at the problem of assessing employee wishes – and, in particular the role that membership cards have had in that exercise. To repeat: the Board has been dealing with membership cards for decades, even though such cards no longer have the same significance that they once had.

123. Against that background, I see no reason to depart from the approach that served the Board for many years, when membership cards were the primary (and often the only) means for testing employee support for a union and acquiring bargaining rights, or to treat cards differently under section 66 than they were formerly treated in certification applications (pre-Bill 7). If we are back in the “world of cards” under section 66 of the Act, I see no reason why the Board should not look at those cards the way it used to do, when cards played a more prominent role in the process for acquiring bargaining rights. Certainly there is nothing in the scheme of the Act to suggest that such documents should be given more weight than they had before. If anything, the legislative drift is in the other direction, since it is now no longer possible to acquire bargaining rights (by certification) based only upon membership cards.

124. In the instant case, virtually all of the cards relied upon by the incumbent union are more than 6 months old, and many of them are more than a year old. If the reference point for determining “age” is June 24, 1997, the date that the collective agreements were entered into, the Carpenters cards are “very stale”. In relation to Penegal, for example, some 34 of the 36 Carpenter cards are more than 6 months old, and 19 of those cards are more than 1 year old. At Marciano, 28 of the 30 Carpenters cards are over 6 months old, and 13 of those cards are over 1 year old. And so on.

125. By way of contrast, the Labourers filed cards in connection with the certification and termination applications that are virtually all dated in late June or early July 1997 – right around the time that the Carpenters’ agreements were being signed. The Labourers’ membership evidence is much “fresher” than the Carpenters’ evidence, both generally and in relation to the temporal benchmark established by the statute. For example, in relation to Penegal, 24 of the Labourers’ “Penegal cards” were signed between June 19 and June 24, 1997 – the very week that the Carpenters’ collective agreement with Penegal was executed. The same pattern is true for the other companies.

126. In addition, quite apart from relative age of the Carpenters cards, (which appear to have been collected in support of the Carpenters original organising activities in 1996), there are more contemporaneous Labourers cards for at least some of the same individuals who, some months earlier, had signed Carpenters cards. In other words, some employees have signed cards for both unions, and all of the Labourers’ cards are more recent – and also more proximate to the date that the Carpenters consummated their collective agreements with the Group of Five, in June 1997.

127. Finally, it is interesting to note that the cards filed by the two unions appear to confirm the mobility of individuals between companies. Looking at the Carpenters’ cards: four persons have signed cards for two different employers, dated on the same day (which if nothing else, serves to illustrate the difficulty of pinning down the details of the “employment relationships” at any given time).

128. There is, of course, nothing in the Act which prevents an individual from being a member of two unions at the same time, or applying for membership in more than one union. Indeed, where the “organising territory” of two unions overlaps, it is not unusual to see employees sign cards for both unions. But to the extent that a union relies upon membership cards to show timely support for a process of bargaining with a particular employer, I do not think that one can ignore the age of those cards, or the fact that some number of employees may have later had a change of heart - or at least have indicated similar support for another trade union. Nor can one ignore the fact that around the same time that the Carpenters are signing their collective agreements with the five companies, there are a lot of contemporaneous Labourers’ cards for individuals said to be working for those companies at that point. There are cards, with the employer’s name on them, purportedly showing support for the Labourers, not the Carpenters. The picture is muddy to say the least.

129. Given the express requirements of section 63(3) and the employee interests that the section is designed to protect, it seems to me that the incumbent union must be able to produce something that is much more convincing than what is currently before me.

130. Viewing the Carpenters “best case” as a whole, and taking into account the facts which the Carpenters say “should” demonstrate entitlement (including, to be clear, the submissions made by Mr. Shell on behalf of some employees who support the Carpenters position) I am simply not satisfied that the Carpenters were entitled to represent the employees at the time the collective agreements were entered into. The membership evidence is simply too old and too stale, and the ratification vote was neither timely nor particularly representative.

131. This is not to say that the Carpenters have done anything “wrong” or that the existing arrangements represent some kind of “sweet heart deal”. It is simply that there is insufficient evidence of employee support. Or to repeat the words of the section 66: the evidence tendered, even if accepted, is insufficient to establish that the Carpenters were “entitled to represent the employees” at the time the agreements were entered into. For whatever reason (the Peace Pact? the fact that they were the only union in the field?) the Carpenters did not take sufficient care to ensure that their arrangement with the companies could survive scrutiny under section 66.

132. For these reasons, the Board finds pursuant to section 66 of the Act, that the evidence tendered by the incumbent union does not, and would not, meet the onus cast upon it by section 66(3), so that if these various applications are otherwise properly before the Board, the Board has the discretion to terminate the incumbent union’s bargaining rights – setting aside the collective agreements in all cases, and perhaps making way for the Labourers certification applications in the case of Penegal and Millway.

133. But should the Board exercise its discretion in this way?

134. Or is this the kind of case where the Board should direct a representation vote, to test employee wishes more directly – as it is permitted to do under section 66(2) of the Act, and as the Board sometimes did prior to 1995 in certification applications when a union sought to rely on “stale” membership cards?

135. These issues were canvassed in a preliminary way, in the earlier Board decision; but, I return to them now, after hearing further from the parties on the evidentiary elements of the Carpenters case.

Should the section 66 challenge be dismissed as a matter of discretion?

136. For the reasons outlined in the earlier decision (see paragraphs 111-127), I do not think that I can give much weight to the “good faith” of the institutional parties in entering into voluntary recognition arrangements, or to the fact that, from their perspective, such arrangements were a sensible way of resolving what might otherwise have been time consuming and expensive litigation. The search for a settlement was sensible. But there were, and are, more interests at stake than those of the institutional parties. There is also an employee interest – an interest that is expressly recognised by section 66 of the Act, and that, after all, was what the original certification applications were all about (i.e. whether or not the employees wished to be represented by the Carpenters in a collective bargaining relationship with the companies). In reaching their “sensible” accommodation, therefore, the Carpenters and the companies were obliged to carefully factor that interest into the equation, if they wished to secure their objective and make it immune from attack. Good faith, as between themselves, is not a sufficient answer under section 66, where the legislative concern and the statutory onus are both quite explicit.

137. Nor do I think it matters that the Labourers are something of an “interloper” in this setting, or that the challenge mounted under section 66 may disrupt a settled collective agreement. That is a possibility with any challenge to a voluntary recognition arrangement, and is expressly contemplated by section 66 itself. While the Carpenters and the companies have an understandable desire to maintain “labour relations stability”, I do not think that such considerations, valid though they may be, can override the right to make a timely challenge under section 66. For again: unless the institutional parties are very careful at the inception of a voluntary recognition arrangement, they leave themselves open to precisely that kind of challenge, with all its attendant uncertainties and disruption.

138. It is true that the pieceworkers have now been bound by a collective agreement for quite some time, and that a successful Labourers’ challenge may open the door for the Labourers to organise these workers - or for that matter, for the Carpenters to reassert their interest. There may now be a competition for the allegiance of the employees that was not anticipated when the settlement was struck in 1996 (although that possibility should have been obvious by the time the agreements were finalised in June 1997). And from the companies’ perspective, they may be “caught in the middle”.

139. However, the longevity of the relationship is largely a product of how this litigation developed, and does not provide an appropriate basis, on its own, for rejecting a timely challenge. For it must be remembered that these proceedings were all launched when the agreements were fresh; and I do not think that it is open to the Carpenters to now argue that, having mounted a spirited defence, preserving the status quo for many months, the Board should now take that passage of time into account and dismiss the case. Nor in these circumstances do I think that the Board should be much influenced by the fact that there will soon be an “open period” permitting an application by the Labourers under another provision of the statute. (The situation might be different if a section 66 application were made on the eve of the open period)

140. I am troubled that a group of employees who have had a collective agreement may find themselves without one, and I appreciate the companies’ concerns. However, I am not persuaded that the Board should ignore the weakness of the Carpenters’ evidence, or that it should exercise its discretion to dismiss the application and maintain the status quo.

Does a representation vote make sense?

141. Historically, representation votes have often been used when there were problems with documentary evidence of membership (age, irregularities etc.), or where there were documents indicating that employees may have had a change of heart, or simply where holding a representation vote might help sort out the underlying labour relations situation. Moreover, since Bill 7, representation votes have become the standard way to test employee wishes. There is nothing novel these days about using a vote to determine whether employees want a particular trade union to be their “freely designated” bargaining agent. Accordingly, a vote under section 66(2), while unusual, would be completely congruent with other portions of the Act dealing with the acquisition, preservation, or termination of bargaining rights (cf. sections 8-10, section 63, and section 69(8)), with the direction of legislative change, and with the way that the Board has sometimes dealt with situations were the documentary evidence is weak or equivocal.

142. But does a vote make “labour relations sense” in this case? Would it provide information that might be helpful in the exercise of the Board’s discretion? Would it contribute to a timely resolution of the underlying controversy – legally and

practically? In my view, the answer is “no”.

143. If one sets to one side the peculiar employment setting and the particular legal vessel into which this dispute is being poured, the labour relations dynamic is really quite simple – indeed, it is a scenario that is quite familiar, given the historic rivalry between these two union organisations. What is happening “on the ground”, is yet another contest between Carpenters and Labourers over who will represent a particular category of workers in a particular sector of the construction industry. We have seen that kind of rivalry many times before, as the Labourers have expanded into areas claimed or occupied by other trade unions. Indeed, that is what prompted these two unions, ten years ago, to enter into a so-called “Peace Pact”, that purported to divide up the disputed territory (framing, residential trim, resilient flooring etc. – see the general discussion in Part V of the earlier Board decision).

144. This series of certification and termination applications, therefore, is but the legal manifestation of an organisational rivalry in which two historic competitors seek to represent “pieceworkers” in the trim carpentry business. The Carpenters were first off the mark in the spring of 1996: organising pieceworkers engaged by the Group of Five, (the precise level of support was never finally determined), then solidifying their position, a year later, with the voluntary recognition arrangements described above. The Labourers entered the field a little later, but obviously made some progress, while the Carpenters were busy “selling the deal” to the other firms in the field (a condition of voluntary recognition from the Group of Five). In the result, by June 1997, when the Carpenters’ collective agreements were signed, there was an active Labourers presence - hence the many Labourers’ membership cards filed in conjunction with the various certification and termination applications (cards which are more current and “timely” than the Carpenters cards). By the time that the Carpenters were ready to sign their collective agreements with the Group of Five, the Labourers had eroded their base of employee support.

145. Whether framed as a certification or termination application, this case is really “about” the efforts of Carpenters and Labourers to organise pieceworkers, and whether those pieceworkers now want the Carpenters or the Labourers to represent them. In the circumstances, a representation vote has some attractions if only to “clear the air”.

146. However, I have (somewhat reluctantly) come to the conclusion that in the absence of more agreement between the parties than has been evident so far, a vote is unlikely to be helpful in bringing this litigation to a conclusion.

147. I note first of all that neither the Carpenters nor the companies are pressing for a representation vote, and the Labourers remain “Luke warm”. Second, and more important, I am not sanguine that in the particular context under review, a representation vote would meaningfully assist the Board in the exercise of its discretion. In other settings, a vote might be helpful and avoid the necessity of further enquiry or concern about the union’s entitlement to represent employees. Here, and now, I think it is more likely that a vote will merely provide the parties with another platform for litigation – more quarrels about who was working, when, who was entitled to case ballots, how representative that grouping is, whether there was improper campaigning or gerrymandering, and so on. And the last thing that this case needs is more issues and more fodder for litigation.

148. Accordingly, while I am satisfied that a vote under section 66(2) may sometimes be helpful to simplify or resolve an application under section 66, and would certainly be attractive if the parties were more amenable to agreement, I am not satisfied that a vote would be helpful in this particular case.

Some Residual Issues: the “natural justice” concern

149. The two certification applications were launched by the Labourers union in its own name. The five termination applications were “nominally” launched by individual employees. A little later, though, those termination applications were also supported by the Labourers union itself, which asked to be joined as a separate moving party - thus purportedly meeting the second branch of section 66(1) ("…upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit …”). In support of that request, the Labourers union filed quite a number of membership cards, purportedly from employees of the five companies. (See the discussion above). The Labourers say that they represent not just any employee in the bargaining unit, but in fact, many such employees; moreover, it is not disputed that the applications and the request to amend, were made within the one year period mentioned in section 66.

150. However, not long after the initial filing by the individual applicants, the Carpenters wrote to the Board, enclosing statements purportedly from the individual termination applicants. Those statements are purportedly signed by the individuals in question and assert, among other things, that they have never retained Mr. Hayes as their counsel. The documents then go on to say:

“Prior to today, I have never seen a copy of this [termination]

application and did not authorise that it be filed. I do not support

this application and wish to withdraw it”.

Further copies of these documents were later received directly from the individuals themselves. It was in response to this submission that the Labourers asked to be joined and treated as an “independent” applicant, filing the many cards previously mentioned.

151. In light of these employee statements, Mr. Hayes also filed a series of individual “retainer and authorisation” documents for each of the individuals in question. The retainer documents apparently bear the signatures of those individuals, and the signatures certainly look to be the same as the ones on the documents forwarded to the Board by the Carpenters. The retainer documents read, in part, as follows:

I [name] retain the law firm of Cavaluzzo, Hayes, Shilton, McIntyre & Cornish for the purpose of representing me with respect to challenging an alleged voluntary recognition agreement and/or collective agreement entered into by the Carpenters, Local 27, with my employer and other companies in the trim carpentry sector.

I authorize the law firm to take any steps it may deem appropriate in this regard and to file any applications, complaints, responses, interventions and material with the Labour Relations Board which in its discretion deems appropriate. I specifically authorise the law firm to file an application under section 66(1) of the Labour Relations Act to terminate the bargaining rights allegedly held by Local 27. [emphasis added]

[employee signature]

152. So what we have are some statements from individuals who first seem to be challenging the Carpenters, and then seem to be withdrawing their challenge; moreover, it is interesting to note that those individuals are asserting, in writing, not merely that they have had a “change of heart” or have “changed sides” but that that they have never retained Mr. Hayes in the first place, and know nothing about any challenge to the Carpenters bargaining rights. Yet we also have the individual retainer documents from Mr. Hayes that deal with that very matter, that pertain to the same individuals, that have (apparently) similar signatures, and that say not only that Mr. Hayes was retained but also what he was retained to do.

153. If nothing else, this curious turn of events illustrates why it may be unwise to put too much weight on documents purporting to record employee wishes. It also illustrates something of the practical “on the ground” dynamic when two unions are competing with each other, and when an incumbent is attempting to maintain its position in the face of challenge. And of course, if the Board had to unravel this particular mystery, it would be drawn into yet another time-consuming tangent.

154. Mr. Hayes asserted that, quite apart from the effect of these individual retainers and withdrawals in the termination proceedings, the Labourers have independent status to argue the issues in the two certification applications (Penegal, Millway). In those certification cases there is really no debate that the “timeliness” issues can be argued. Nor did Mr. Hayes quarrel with the individuals’ right to change counsel, “change sides”, or withdraw support for a proceeding in which they were once involved. However, he further pointed out that the Labourers union has also joined the termination proceedings in its own right, and has filed many cards in, each of the five termination cases (respecting Penegal, Millway, Ganiva, Marciano, and Forest). So in his submission, the Labourers are properly present in all of the applications now before the Board, and the issues under section 66 can be fairly raised and debated, even if the original applicants no longer support the termination applications. He argues that, regardless of the effect of the individual withdrawals, there is still a timely challenge from a trade union representing employees in the incumbent’s bargaining units with the Group of Five.

155. Counsel did not press the apparent inconsistency between the written retainers obtained by Mr. Hayes, and the subsequent personal repudiations tendered by the Carpenters (and later by the individuals themselves). Nor did anyone demand evidence to explain the inconsistency. Indeed, counsel were very careful to avoid any “finger pointing” or any allegations of impropriety against each other. No one suggested that there should be a parade of witnesses (including perhaps the lawyers themselves) to explain how these various documents came into being.

156. But in any event, looking at the actual text of the individual “withdrawal documents”, there is no indication of any continuing desire to participate in the proceedings on an individual basis. There was no request to be treated as an “intervenor”, nor any indication that the individuals wished to make independent submissions with respect to the factual and legal issues that were identified in the proceedings. The individuals are merely withdrawing support for a proceeding with which they were formerly associated, but which, they say, they neither authorised nor support. That is what their submission is: the individuals are dissociating themselves from the proceeding, not indicating a wish to continue to participate.

157. It is a little difficult to know what to make of these contradictory documents purportedly signed by the same individuals (especially since the signatures do look identical). However, ultimately, I do not think that it matters, because I do not think that the Board erred in failing to send these individuals new notices of the hearing, when the matter was later scheduled. Nor do I think there has to be some formal “order” “striking” the names of these individuals. In my view, the Registrar’s staff properly concluded that the individuals were withdrawing from the proceeding, and no longer wished to be associated with it. It did not require an “order” to give effect to that intention.

158. In this regard it is interesting to note that the next hearing date was scheduled to consider the “Peace Pact” and related issues - i.e. whether a 1991 understanding between unions, dividing up some disputed territory precluded a related union from filing these proceedings under the Labour Relations Act. And as the earlier decision notes at paragraph 9 : the remaining parties, including the Carpenters, were content that the Board consider that issue based upon the un-contradicted facts adduced by the Carpenters and by the companies. That is the way that the hearing proceeded. The Carpenters and the companies put in some facts which were accepted for the purpose of argument, then led some evidence which was not challenged by the Labourers.

159. No one suggested that the individuals had a continuing interest in the proceeding, or that they should be notified of the continuing hearing, or that they might have any evidence or argument to submit in respect of an inter-union agreement to which they were, of course, not a party. No one suggested that individual pieceworkers, (first organised in 1996), had anything to add to the Board’s understanding of an agreement between unions struck a number of years before. Moreover there was every opportunity to make that assertion, because the continuation dates were set on the agreement of counsel. Counsel for the Carpenters reserved his right to make argument on the effect of the individuals’ withdrawal from the proceedings, but he never suggested that those individuals had not withdrawn, or that they should continue to receive notice of the hearings. That argument did not surface until later.

160. In other words, the hearing unfolded as a dispute between the institutional parties, who attended the hearing, with counsel, to address the “preliminary issues” identified by the Carpenters and the companies. The Labourers asserted that they had the right to challenge the Carpenters’ position and the Carpenters asserted that they did not. If it occurred to anyone that the named individuals had a continuing interest despite their purported “withdrawal”, such thought was never shared with the Board.

161. On the basis of the material before it and the arguments made by the institutional parties, the Board ultimately decided that the so-called “Carpenters/Labourers Peace Pact” should not stand in the way of the present certification and termination applications. The Board was not satisfied that this “deal” between unions, precluded the filing of these certification and termination applications. Nor was the Board persuaded, at that stage, that it should either dismiss the applications as a matter of discretion without hearing further evidence and argument (as the Carpenters urged), or that it should direct the taking of a representation vote to poll the employees directly (which the Carpenters opposed). [See paragraphs 116-127 of the earlier Board decision]. The Board was of the view that these issues, going to discretion, should not be considered until after the Board had considered the incumbent union’s membership evidence – the evidence upon which the Carpenters intended to rely to meet the onus cast upon the incumbent by section 66(3).

162. When the proceeding reconvened on later dates agreed upon by the parties, Mr. Shell appeared on behalf of the named individuals, claiming that there had been a “denial of natural justice” because those individuals had not been notified of the earlier hearing, in which the Board had received the Carpenters argument about the effect of the “Peace Pact”, and the Carpenters’ further submission that the cases should all be dismissed as a matter of discretion. Mr. Shell submitted that because the individuals had not been invited to participate, it was necessary to start the case all over again. In his submission it did not matter whether the individuals actually had anything to add to the evidence or argument (i.e. whether their presence to support the Carpenters position would have made any difference, or whether they had anything meaningful say about an agreement to which they were not a party), because the failure to give them notice was sufficient, in itself, to nullify all that had gone before.

163. The consequence, of course, would be to maintain the Carpenters in place as the bargaining agent for the employees of all five companies, even though, on the evidence before me, the Carpenters have not established that they were ever entitled to represent these employees at the time the collective agreements were entered into.

164. On Mr. Shell’s submission, therefore, the entire employee collectivity at all five companies, would remain bound by the collective agreements, requiring (among other things) compulsory membership in the Carpenters union, and precluding the individual exercise of rights, despite the fact that even on a best case basis, the Carpenters have not been able meet the onus required by section 66(3).

165. That is not a result which is consistent with the purpose and scheme of the Act, nor a result to which, I think, the Board should lightly leap. And it is not, in any event, a result which is warranted in the circumstances of this case.

166. For the reasons mentioned earlier, I do not think the failure to give the employees notice of the continuation of the hearing represents an “error” on which a natural justice argument could be made. The Registrar’s reading of the document is a reasonable one in the circumstances. However, even if there was an error, I do not think that there was a denial of “natural justice” such as to vitiate the entire proceeding.

167. “Natural Justice” is a judicial concept that has to adapted to the particular statutory setting in which a tribunal operates, having regard to the interests under review. The Board is not a Court, nor should it act like one; and the individual and collective interests which the Board is obliged to balance are a far cry from the individual or common law concerns that animate much of civil litigation. The rules of natural justice developed by the Courts do not apply holus bolus to proceedings before the Board, nor should they be applied without giving careful consideration to the practical context and the consequences of doing so.

168. The “right to be heard” component of “natural justice” is captured by section 110(16) of the Act which reads as follows:

The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and make their submissions.

This provision is bolstered by the “safety valve” of section 114(1) which provides:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless, the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke such decision, order, declaration or ruling.

170. Taken together, these sections permit the Board to structure the way in which representations will be received, to receive further evidence if the Board considers it necessary, and to supplement or correct any determination that has already been made (see also section 110 (18) of the Act and the related construction industry Rules, that apply to the Penegal and Millway certification applications).

171. In the instant case, the Board did hear the individuals when they surfaced unexpectedly and indicated a desire to participate in the proceeding. The Board did give them an opportunity to make representations on the matters that they wished to address. And, the Board not only received their representations, but also accepted them on the same “best case basis” as it accepted the representations of the Carpenters and the companies.

172. There remains nothing in any of the assertions so far raised by these individuals that have anything to do with, let alone would prompt the Board to reach a different result on, the “Peace Pact issue”. These individual employees are obviously not parties to the 1991 “Labourers-Carpenters Peace Pact” (see the description of that document found in the earlier decision). They had no hand in making the terms of that inter-union agreement. On the evidence adduced, they were not even members of the Carpenters union until years later. Nor is there any indication that they are advancing any argument or asserting any facts that the Carpenters themselves have not advanced or asserted (the employees now being in the same interest as the Carpenters union – albeit perhaps not starting out that way). In other words, having purportedly “withdrawn” their support for the termination application in the terms mentioned above, they do not now assert anything that would go to the Board’s conclusion on the issue considered in their absence – a conclusion which (perhaps ironically) allows individuals like themselves to freely choose to be represented by the union of their choice, in accordance with their rights under the Labour Relations Act and not some territorial treaty between unions. And the discretion issue, canvassed in a preliminary way in the first decision, was revisited and fully argued in the later hearing in which Mr. Shell took part.

173. In all the circumstances, I do not think that there has been any denial of natural justice to the individuals, or that the proceedings to date, are void.

Where does this case go from here?

174. It appears to me that the only remaining question is whether the Labourers are entitled to maintain their section 66 challenge in the context of the certification applications, and whether, in light of the departure of the individual applicants, the Labourers are entitled, on their own, to mount termination applications in respect of Forest, Ganiva, and Marciano.

175. I agree with Mr. Hayes that having filed an application for certification and demonstrated the requisite “appearance” of support as required by section 8, the Labourers are entitled to address the section 66 issue in the context of their own certification applications. I also agree with Mr. Hayes that the purported withdrawal by the individual termination applicants is not fatal, where, as here, the Labourers have filed an independent challenge under section 66, supported by membership evidence form employees in the bargaining unit(s). In my view, it was open to the Labourers to do that, and it is appropriate for the Board to amend the termination applications to make the Labourers an “applicant” in their own right. It would be unduly technical to require a separate filing.

176. However, it seems to me that the Labourers are still only entitled to make a termination application, or rely on section 66 in the context of their certification applications, if they otherwise meet the “entry requirements” of section 66 itself – which is to say, if they do indeed, represent at least one employee in the bargaining unit at the relevant time.

177. In other words, at least one of the Labourers cards, in each case, must match an employee in the bargaining unit of each company.

178. Now, of course, it seems highly unlikely that, for example, none of the Labourers many “Penegal or Millway cards” match any employee in the bargaining unit in the relevant time frame – particularly since, unlike the Carpenters cards, the Labourers’ documents were all collected more or less proximate to the filing of the proceedings. It seems unlikely that none of the individuals who signed cards were on a Penegal etc. job site at the time and within the first year of the life of the collective agreement. Nevertheless, strictly speaking, the Board has received no actual “evidence” about that, other than what can be gleaned from the documents themselves (each card has the company name printed on it); and if that is disputed, it seems to me that this is the next issue that may have to be addressed (i.e. the Board will have to hear from the parties on whether and how much evidence need be called on that point). The identity of the employer is not relevant to the validity of the card itself (see P&M Electric (1982) Ltd. mentioned above), however, where the employee was working and when is relevant to the application of section 66.

179. Finally, since in my view, representation votes should have been held at Penegal and Millway regardless of the Carpenters challenges (see paragraphs 14-18 above), it will be necessary and helpful to receive submissions about how and when those votes might now be conducted.

180. The matter will therefore be relisted for hearing for these purposes.

181. In the meantime, the Labourers are directed to provide the Board and the other parties with a brief synopsis of the evidence that the union would lead if it were required to establish that the union does indeed represent at least one employee in each bargaining unit; and the Carpenters are directed to respond to that submission, including a brief synopsis of any contradictory evidence that it might choose to call. In particular, the Carpenters are directed to stipulate whether there is any reason to believe that the employer name recorded on the membership cards is not the employer for whom the particular pieceworker was working at the time (bearing in mind that there is no actual evidence that the Carpenters cards “match” either).

182. The Labourers will have 14 days to provide this information to the Board and to the other parties, and the Carpenters will have 7 days to respond.

183. As before, Board officer James Bowman will be available to assist the parties in the resolution of any outstanding issues.

“R. O. MacDowell”

for the Board