Audio Visual Services (Canada) Corp. v. Ontario Labour Relations Board, 2019 ONSC 5717

CITATION: Audio Visual Services (Canada) Corp. v. Ontario Labour Relations Board, 2019 ONSC 5717

DIVISIONAL COURT FILE NO.: 752/18
DATE: 20191009

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D. L. Corbett, Gray and Sossin JJ.

BETWEEN:

Audio Visual Services (Canada) Corporation

Applicant

– and –

Ontario Labour Relations Board and International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada, Local 58

Respondents

COUNSEL:

Michael Comartin, Stephen Shore, and Emily Cohen-Gallant, for the Applicant

Ronald Lebi and Katherine Ferreira, for the Respondent, IATSE Local 58

Andrea Bowker, for the Ontario Labour Relations Board

HEARD at Toronto: June 25, 2019

GRAY J.:

[1] This is an application for judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated October 26, 2018, and the certificate issued to the respondent union of the same date. The Board certified the union to represent employees in the following bargaining unit:

All house crew, audio/visual technicians and house crew riggers regularly employed by Audio Visual Services (Canada) Corporation at the Sheraton Centre Toronto Hotel located at 123 Queen Street West in Toronto, Ontario save and except non-working supervisors and persons above the rank of non-working supervisors.

[2] After hearing submissions by the applicant’s counsel, we did not call upon the respondents and dismissed the application, for reasons to be delivered in writing. These are those reasons.

Background

[3] On January 20, 2017, the union applied for certification to represent a unit of employees of the respondent employer. The unit applied for was:

All house crew audio/visual technicians and house crew riggers regularly employed by the responding party at the Sheraton Centre Toronto Hotel located at 123 Queen Street West in Toronto, Ontario save and except non-working supervisors and persons above the rank of non-working supervisors.

[4] The Board ultimately issued 15 decisions in dealing with the application, culminating in its decision dated October 26, 2018, in which it certified the union. Some of those decisions were brief, simply reflecting matters such as granting extensions of time and the like, but many of them were substantive.

[5] In a decision dated January 25, 2017, the Board held that the bargaining unit described in the union’s application “could be appropriate”. The Board also noted that there was a dispute about the appropriate bargaining unit, in that the employer took the position that the appropriate bargaining unit consisted of a larger group of employees who are employed in the City of Toronto.

[6] The Board ordered that a vote be held of the employees as described in the employer’s bargaining unit, but that the ballots be segregated, the ballot box sealed, and the votes not be counted until the Board ordered. The vote was held on January 27, 2017 and the ballot box was sealed.

[7] The Board then held a hearing, which was conducted over two days. Ultimately, it was the task of the Board to determine the contours of the appropriate bargaining unit, and to determine who was actually in the appropriate bargaining unit so that the entitlement of employees to vote could be determined, and the actual votes could be counted to determine the union’s level of support.

[8] The Board issued a decision dated September 15, 2017. The Board noted that the parties had agreed that the Board should hear and determine, first, the issue of whether the appropriate bargaining unit applied for by the union was an appropriate bargaining unit. Depending on the Board’s decision, it may be necessary for the Board to resolve status disputes.

[9] The employer called two witnesses. The union did not call any evidence and cross-examined only one of the employer’s witnesses.

[10] In its decision, the Board noted that the employer had about 160 hourly employees in the Greater Toronto Area. It provides sound systems, microphones, speakers, lighting and rigging and draping, video protection and uplighting and the crews to set up, operate and strike down those systems at venues and events. It is the preferred service provider at approximately 18 hotels in the Greater Toronto Area, and also provides the same services at other venues like banquet halls for corporate clients, weddings and charities.

[11] The Board noted that the employer employed three categories of employees, namely, full-time employees who typically worked more than 30 hours per week and for whom the employer was usually their only employer; part-time regular employees, who typically worked 20-30 hours per week and who may work for other employers and could decline work from the employer; and part-time casual employees who may infrequently work for the employer, and also provide specialized services to a number of employers.

[12] Upon hire, each employee was assigned to a “cost centre”. Cost centres included the hotel locations where the employer was a preferred service provider, and “branch” and “rigging”, which comprise almost half of the employer’s Greater Toronto Area employees. Most of the employees in branch and rigging were casual employees.

[13] The Sheraton Hotel is the largest of the hotel cost centres. At the date of the application approximately 20 employees were cost centred to the Sheraton, and 18 of those were full-time or regular part-time employees.

[14] The Board analyzed the evidence in considerable detail, but for the purpose of our decision it is not necessary to delve into it in any particularity.

[15] The union argued that the evidence revealed a stable and consistent complement of employees at the Sheraton Hotel. Thus, its proposed bargaining unit could be appropriate.

[16] The employer argued that its business was centrally administered and functionally integrated, with significant interchange among employees. Because of the interchange of employees and equipment, serious labour relations problems would result if the Board certified the union for a single-location bargaining unit.

[17] In its decision, the Board noted that the evidence taken from payroll data supported both the union’s argument that there was stable complement of full-time and part-time employees at the Sheraton Hotel, and the employer’s argument that there is employee interchange among its many sites. The issue was whether the alleged integration of the business and the movement of employees to and from the Sheraton Hotel gave rise to labour relations harm.

[18] The Board noted that it was not sufficient to find that labour relations harm may arise, but rather the Board must evaluate the seriousness of the harm and consider whether the predicted harm arises only from the proposed bargaining unit. In addition, other statutory objectives, including the right of employees to self-determination, must also be considered. As part of the analysis, the Board was to consider whether labour relations problems could be dealt with by the parties in collective bargaining.

[19] Ultimately, the Board found that the full-time and regular part-time employees who spend most of their time at the Sheraton and infrequently work elsewhere comprise a stable employee grouping that is performing a stable body of work. The greatest interchange is among the casual employees who work at the Sheraton but separate from this stable group.

[20] Ultimately, the Board determined that the employee interchange factor did not establish labour relations harm. Even if the concerns about labour relations harm were compelling, the Board was satisfied that employees in this sector have a low rate of unionization, and any concerns about labour relations harm must be weighed against the obstacles to organizing that would arise from finding that the union’s applied-for unit could not be appropriate, and the Board held that access to collective bargaining should prevail.

[21] The Board’s ultimate conclusion was as follows:

The Board is satisfied that the bargaining unit of full time and regular part time employees at the Sheraton sought by the union is a stable unit with an identifiable body of work. The nature and extent of employee interchange and the functional integration among the employer’s different locations in this case is not significant, and in any event the interchange is not so significant that any issues arising from that unit could not be dealt with by the parties in collective bargaining. Finally, we note that there was no evidence before us that any Labour Relations Board has granted bargaining rights for a bargaining unit of employees in this industry (audio visual service providers in the hospitality sector) in Canada. For all of the reasons set forth above, the Board finds that the bargaining unit proposed by the union in it application for certification is a bargaining unit appropriate for collective bargaining.

[22] Having determined the contours of the appropriate bargaining unit, the Board was next tasked with determining which employees were actually in the bargaining unit so that the votes for and against the union could be counted.

[23] In its decision dated November 20, 2017, the Board confirmed that the parties had agreed that 14 individuals were in the bargaining unit, and 7 individuals were not in the bargaining unit. The status of 71 individuals remained in dispute. The employer took the position that they were all in the bargaining unit and the union took the position that they were all excluded from the bargaining unit. The Board invited written submissions from the parties.

[24] The employer applied for reconsideration of the Board’s decision dated September 15, 2017. In a decision dated December 13, 2017, the Board dismissed the application for reconsideration. In part, the employer submitted that the Board had allowed the union to reconfigure its applied-for bargaining unit. The Board rejected that argument, and made it clear that it had not decided which employees were in or outside the applied-for unit. Specifically, the Board made it clear that the employer was entitled to try to persuade the Board that employees labelled as “casual” should be included in the bargaining unit.

[25] The Board’s decision on reconsideration is lengthy, and for our purposes it is not necessary to analyze it in detail.

[26] In a further decision dated January 8, 2018, the Board gave further direction regarding submissions as to the 71 employees in dispute. In submissions filed subsequent to that decision, the union filed information that showed that 57 of those employees work less than 35 per cent of their hours at the Sheraton Centre. The employer did not dispute that information. The Board invited submissions, including information regarding representative employees within that group, and stated that if necessary the Board would schedule and hold a hearing to deal with the issues arising from the parties’ submissions.

[27] In a decision dated May 29, 2018, the Board held that the 57 employees who worked less than 35 per cent of their time at the Sheraton Centre in the six months prior to the application date were not in the appropriate bargaining unit. In substance, the Board held that those employees were not “regularly employed” by the employer at the Sheraton Centre. The Board stated:

The phrase “regularly employed” must mean more than “employed”, and the fact that an employee worked at the Sheraton before and will work there again is not enough to establish that he is regularly employed there. The interpretation of “regularly employed” must take into consideration the organization of the workplace and the status of the individuals who the parties agree are regularly employed at the Sheraton. The Board rejects the employer’s submission that “regularly employed” and “employed” mean the same thing.

[28] The Board ordered that the ballot box should remain sealed pending the resolution of the status of the remaining employees who worked more than 35 per cent of their time at the Sheraton Centre.

[29] The employer requested reconsideration of the Board’s decision dated May 29, 2018. In substance, the employer alleged that the Board had denied it procedural fairness by making its decision without an oral hearing. The employer argued that the Board had denied it the right to call evidence.

[30] The Board rejected the employer’s argument. It held that it made its decision based on the employer’s submissions, on the assumption that those submissions reflected the employer’s “best case”, and thus an oral hearing was not necessary. The Board did, however, decide that it would hold a hearing to allow the employer to make its submissions. The Board held a hearing on August 28, 2018, and in a decision dated October 12, 2018 dismissed the employer’s reconsideration application, and affirmed its decision of May 29, 2018.

[31] In a decision dated October 19, 2018, the Board directed that having determined that 57 ballots were not to be counted, the remaining 19 ballots would be counted on October 22, 2018.

[32] In its decision dated October 26, 2018, the Board held that more than 50 per cent of the ballots cast were in favour of the union, and thus issued a certificate to the union.

Submissions

[33] The parties agree that the appropriate standard of review is reasonableness. I will have more to say about that standard in due course.

[34] The applicant submits that the Board’s decisions were unreasonable, and that there are elements of a denial of natural justice. To the extent that there is a denial of natural justice, a standard of review analysis is not necessary.

[35] Counsel for the applicant submits that the Board considered, and ultimately ordered, what was essentially a different bargaining unit than the one the union applied for. The applicant submits that the unit was not appropriate in light of its operations.

[36] The applicant submits that the bargaining unit that was certified is ambiguous and inappropriate. It submitted that the unit does not logically correspond with the connection between an employee and the bargaining unit, and to the extent that the Board’s determination relied on the proportion of an individual’s work at one location (among many) to determine his or her status, it is irrelevant and will cause labour relations harm.

[37] The applicant submits that the Board erred by refusing to hear evidence that the employer sought to call, and did not hear evidence regarding the determination of the status of certain individuals.

[38] The applicant submits that the term “regularly employed” does not actually mean “permanent full time and regular part time”, and thus the Board erred by ultimately excluding the 57 casual employees from the voting constituency. It cannot be assumed that the union actually applied for a bargaining unit that consisted of regular full time and part time employees only.

[39] The applicant submits that the Board compounded the error by subsequently determining that some casual employees were actually eligible to be included in the bargaining unit.

[40] The applicant submits that the Board failed to apply clause 3 of Section 8.1(5) of the Labour Relations Act, 1995. The applicant submits that once the employer gives notice under s.8.1 of the Act, disputing the appropriateness of the bargaining unit, the Board must determine the appropriateness of the bargaining unit applied for. The Board did not do this.

[41] The applicant submits that the bargaining unit description is vague and ambiguous, such that the parties to the collective agreement will be unable to know who is in or out of the bargaining unit. The applicant submits that the parties will need to cross-reference different variables at any point in time in order to determine whether someone is in the bargaining unit.

[42] The applicant submits that in making the determination it made regarding the status of individuals, the Board erred by declining to hold a hearing to permit the applicant to call oral evidence. To the extent that the Board purported to rely on the facts as alleged by the applicant, the Board actually misstated those facts. Furthermore, the Board erred by determining, without evidence, that there was a low rate of unionization in the industry, and drew inferences from a collective agreement in Vancouver on which no submissions were made.

[43] Counsel for the respondent union, in his factum, submits that the application should be dismissed.

[44] Counsel submits that the issue of the appropriate bargaining unit description and the issue of what individuals are included or excluded therefrom are matters that fall within the core expertise and jurisdiction of the Board. On these questions, the Board is entitled to a high degree of deference.

[45] Counsel points out that in many cases, including those in the Supreme Court of Canada, the Court of Appeal and this Court, the expertise of the Board has been recognized, and the courts have emphasized that the highest degree of deference is appropriate. This is particularly so because of the strong privative clauses that are contained in the statute that protect decisions of the Board.

[46] Counsel notes that the Board’s treatment of appropriate bargaining unit configuration has evolved over the years. Many years ago, the Board had certain well-defined standard bargaining units to which the parties were expected to conform. More recently, commencing about 30 years ago, the Board has loosened its reliance on that approach, and now takes the position that there may well be more than one appropriate bargaining unit that a union can apply for, and as long as the unit applied for is appropriate, it should be granted.

[47] In this case, the union and the employer urged dramatically different bargaining unit configurations, and the Board, applying its expertise, determined that the unit applied for by the union was appropriate. Any labour relations harm had to be balanced against the right of employees to access collective bargaining, and the ability of the parties to address any potential difficulties through collective bargaining.

[48] The Board then had to turn its mind to which individuals were in or outside the bargaining unit for the purpose of the vote. In so doing, it had to construe the terms “house crew” and “regularly employed”. The Board noted that the union had, at the initial stages of the application, alerted the Board that “regularly employed” would be asserted to include full time and regular part time employees.

[49] Counsel asserts that the Board reasonably invited submissions on whether different categories of employees, depending on the percentage of time they worked at the Sheraton Centre, should be included or excluded from the unit. Having received detailed submissions, the Board determined, reasonably, that those who worked less than 35 per cent of their hours at the Sheraton Centre should be excluded.

[50] Counsel notes that at each stage of the proceeding, the Board issued lengthy and detailed reasons for its determinations. Those decisions reflect careful consideration of the issues before it, and should be accorded deference.

[51] Counsel submits that there was no denial of procedural fairness by the Board in any of its proceedings. At each stage, the Board accorded both parties the right to make full submissions, and held oral hearings when it was appropriate to do so. Where it did not do so, it afforded ample opportunities to make submissions, and assumed facts to be true as alleged by the party asserting them where appropriate.

[52] Counsel submits that there was nothing untoward about the Board drawing inferences from the lack of evidence, or from evidence that was actually tendered by one or both parties as appropriate.

[53] Counsel for the Board, in her factum, takes no position on the merits of the application, but submits that the appropriate standard of review of the Board’s decisions is reasonableness.

[54] Counsel submits that the applicant’s submissions with respect to procedural fairness simply amount, in the circumstances, to submissions as to the reasonableness of the Board’s approach.

Analysis

[55] The relevant provisions of the Labour Relations Act, 1995, are attached to these reasons as an appendix.

[56] The parties agree that the appropriate standard of review of the Board’s decisions is reasonableness. To the extent that there is an issue as to whether there has been a denial of natural justice or procedural unfairness, a standard of review analysis is unnecessary.

[57] While it is accepted that there is only one standard of review that is encompassed within the term “reasonableness”, there is nevertheless a recognition that in the case of a statutory tribunal with a long history, such as the Ontario Labour Relations Board, a high degree of deference is appropriate, particularly where the tribunal is exercising what can be considered to be one of its core functions. As stated by Gillese J.A. in Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, 90 O.R. (3d) 451, at para.42:

The decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction.

[58] The Board was created over 70 years ago. From the onset of its creation, the Board has had the obligation to certify trade unions to represent employees in appropriate bargaining units. If there can be said to be a prime example of the Board’s core functions, this is it.

[59] The legislature has not found it necessary to define what is or is not an appropriate bargaining unit. It would be impossible to do so. There are many different workplace configurations that have evolved, and continue to evolve, over the years. Gone are the days when most employees would congregate at a specific workplace, such as a manufacturing plant, to perform their daily work. As is perhaps illustrated by the case before us, it is sometimes difficult to define the appropriate place of work, the relationship of an employee to the workplace, and the exact nature of the relationship between the employee and the employer. Nevertheless, the task of the Board is to define a unit of employees that is appropriate for collective bargaining.

[60] It is obvious that the legislature has entrusted to the Board the obligation of defining the appropriate bargaining unit configuration, based on its experience and expertise, and its understanding of employer/employee dynamics. It must also apply the same experience and expertise in determining, in a practical manner, who is inside or outside the bargaining unit it has defined.

[61] It is worth noting (and this court can certainly take notice of this), the members of the Board are, for the most part, drawn from the labour relations community. The chair and the vice-chairs are often lawyers who have practiced in the labour relations field, and the other members of the Board are representative of employers and trade unions.

[62] Overlaid on these considerations are the two privative clauses that have historically protected decisions of the Board made within its jurisdiction, sections 114(1) and 116. They are a clear signal from the legislature that the determinations made by the Board are, for the most part, to be given deference.

[63] It is with these considerations in mind that I turn to the 15 decisions issued by the Board.

[64] In the final analysis, I am not persuaded that the Board decisions are unreasonable or that there has been procedural unfairness.

[65] As noted by the Board itself, the work performed by this employer does not conform to many of the workplace structures that one would often find in other circumstances. The employer operates out of many different locations. The people who work for it may perform work at more than one location. The people who work for it may work many different hours per week, and probably at different times of the day.

[66] It is within this work system that the Board must make sensible decisions that permit employees to have a reasonable opportunity to collectively bargain, if that is their choice, while at the same time being sensitive to potential difficulties that may result for the employer.

[67] In this case, the Board was satisfied that a bargaining unit that consisted of people who regularly worked at the Sheraton Centre, with a sufficient number of regular hours to make it meaningful, was a unit of employees that was appropriate for collective bargaining. In my view, that conclusion was perfectly rational, and was explained in rational terms by the Board. I am certainly not convinced that it can be labelled unreasonable.

[68] Nor am I convinced that the Board was unreasonable in excluding those that it decided did not have a sufficient connection with the particular workplace, namely, those who worked less than 35 per cent of their hours at the Sheraton Centre. Such a determination was perfectly rational, explained in rational terms, and is reasonable.

[69] To the extent that the applicant complains that a small number of employees were included within the bargaining unit that perhaps did not fit the criteria that the Board had determined were appropriate, this was explained by the Board as resulting from a concession made by the union to a proposal made by the employer. The Board explained that this could not be taken as a determination by the Board as anything more than the acceptance of a concession made by one party to a proposal made by the other, and could not be taken as a determination by the Board based on any particular principle.

[70] As far as the alleged violations of the principles of fairness are concerned, I am not persuaded that there was any violation. The Board gave ample opportunity to both parties to make comprehensive submissions on all issues in dispute, and the Board held oral hearings where necessary. Where it did not hold oral hearings, it explained why not, and the explanations are satisfactory. To the extent that the Board relied on a lack of evidence or evidence put in by the parties that was not elaborated on, the explanations were satisfactory.

Disposition

[71] For the foregoing reasons, we dismissed the application for judicial review.

[72] As agreed, the applicant will pay costs to the respondent union fixed in the amount of $10,000, all-inclusive. There will be no order as to costs in favour of or against the Board.

___________________________ Gray J.

I agree

D.L. Corbett J.

I agree

Sossin J.

Date of Release: October 9, 2019

APPENDIX

Excerpts from the Labour Relations Act, 1995

Application for certification

7 (1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

Notice to employer

(11) The trade union shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

Proposed bargaining unit

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

Evidence

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

Same

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

Voting constituency

8 (1) Upon receiving an application for certification, the Board may determine the voting constituency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

Direction re representation vote

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.

Membership in trade union

(3) The determination under subsection (2) shall be based only upon the information provided in the application for certification and the accompanying information provided under subsection 7 (13).

No hearing

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

Timing of vote

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

Conduct of vote

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

Sealing of ballot box, etc.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

Subsequent hearing

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

Exception

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7 (13).

Disagreement by employer with union’s estimate

8.1 (1) If the employer disagrees with the trade union’s estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.

Content of notice

(2) A notice under subsection (1) must include,

(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;

(b) the employer’s estimate of the number of individuals in the bargaining unit described in the application for certification; and

(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer’s estimate of the number of individuals in the bargaining unit the employer proposes.

Sealing of ballot boxes

(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.

Board determinations, etc.

(5) The following apply if the Board receives a notice under subsection (1):

The Board shall not certify the trade union as the bargaining agent or dismiss the application for certification except as allowed under paragraph 2 or as required under paragraph 8.
If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application for certification.
Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.
If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.
If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,

i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and

ii. the Board shall determine the number of individuals in that unit.

After the Board’s determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board’s determination under paragraph 4 or 5 and the information provided under subsection 7 (13).
If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
If the percentage determined under paragraph 6 is 40 per cent or more,

i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8 (7), and

ii. the Board shall either certify the trade union or dismiss the application for certification.

Board to determine appropriateness of units

9 (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

Certification pending resolution of composition of bargaining unit

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union’s right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

Certification after representation vote

10 (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

No certification

(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

Board

110 (1) The board known as the Ontario Labour Relations Board is continued under the name Ontario Labour Relations Board in English and Commission des relations de travail de l’Ontario in French.

Composition and appointment

(2) The Board shall be composed of a chair, one or more vice-chairs and as many members equal in number representative of employers and employees respectively as the Lieutenant Governor in Council considers proper, all of whom shall be appointed by the Lieutenant Governor in Council.

Powers and duties of Board, general

111 (1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

Jurisdiction

114 (1) 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 any such decision, order, direction, declaration or ruling.

Board’s orders not subject to review

116 No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.