Labourers' International Union of North America, Local 645 v. Bravo Cement Contracting Ltd., 1980 CanLII 770

[1980] OLRB Rep. October 1354

0188-80-R Labourers' International Union of North America, Local 645, Applicant, v. Bravo Cement Contracting Ltd., Respondent, v. The Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 345, Incumbent trade union.

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members H. J. F. Ade and H. Simon.

APPEARANCES: S. B. D. Wahl, G. Morga and O. D'Agostini for the applicant; No one appearing for the respondent; L. C. Arnold and G. Dacanzin for the incumbent trade union.

DECISION OF THE BOARD; October 6, 1980

1. This is an application for certification in which the parties have raised a number of issues on which they seek either a Board determination, or directions as to the appropriate manner of proceeding. In order to understand the matters which have been raised, it is necessary to review the course of proceedings to date.

I

2. The application for certification was made on April 25, 1980 and was one of a series of similar applications involving an attempt by the Labourer's union to replace Local 345 of the Plasterers' union, as the bargaining agent for the employees of various construction contractors in the Windsor area. In its application, the applicant listed the Plasterers' union as a "trade union known to the applicant as claiming to be the bargaining agent of, or as claiming to represent any of the employees who may be affected." The applicant also requested the taking of a pre-hearing representation vote. Section 8 of the Act respecting pre-hearing votes reads as follows:

"1. Upon an application for certification the trade union may request that a pre-hearing representation vote be taken.

2. Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.

3. The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection 2 shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.

4. After a representation vote has been taken under subsection 2, the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection 2 has the same effect as a representation vote taken under subsection 2 of section 7."

By a decision of the Board dated April 28, 1980, the Board made the following ruling:

"Mr. J. Bowman, Labour Relations Officer, is authorized:

(1) to confer with the parties as to the description and composition of an appropriate bargaining unit;

(2) to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 8 of The Labour Relations Act;

(3) to confer with the parties as to the description and composition of the voting constituency, and list of employees as of the terminal date in this matter to be used for the purposes of any vote that may be directed by the Board, the form of the ballot, the date and hour for the taking of the vote, and the number and locations of the polling places;

(4) upon consent of the parties to investigate any other matter relating to the application; and

(5) to report to the Board."

3. On May 17, 1980, the Labour Relations Officer met with representatives of the applicant (and another trade union which indicated that it might be interested in the application although no formal intervention was filed). At this point the Plasterers' union had not filed a formal intervention and the respondent employer did not appear to take any active role in the meeting. Agreement was reached on the list of employees entitled to vote and arrangements were made for the taking of the vote on the respondent's premises, on either May 21, 1980 or May 28, 1980, between the hours of 7:00 a.m. and 8:00 a.m. It was agreed that there would be a "two-way" vote and that the applicant's name would appear on the top of the ballot and the Plasterers' name on the bottom of the ballot. Messrs. Zannese, D'Agostini, and Neil, all officials of the applicant, participated in these arrangements and agreed to them. No question was raised as to the status of the Plasterers as the "incumbent union", nor was any objection taken to a "two-way vote" in which the employees would have the opportunity to choose which union they wished to represent them. In the result, the date of the vote was fixed for May 28, 1980.

4. By decision dated May 13, 1980, the Board established the voting constituency and found that the applicant had a sufficient appearance of membership support to justify the taking of a representation vote. The Plasterers' union was listed as the "incumbent trade union in the style of cause on this decision, and the Board confirmed that there would be a "two-way vote", in which voters would be asked to indicate whether they wished the applicant or the incumbent trade union to represent them. Notices of the taking of the vote (in Form 42) were sent to the respondent and duly posted on its premises. These notices recite the purpose of the vote and the agreed voting arrangements. The notice also contained a pictorial representation of the form of ballot which bore the name of both trade unions, and a space in which each employee could mark his choice.

5. After the vote was taken, representatives of the applicant and the respondent signed two separate documents certifying that the balloting was fairly conducted, and waiving any objections which they might otherwise have had to its regularity and sufficiency. These two documents (each of which, again, bears the name of the incumbent union in the style of cause) reads as follows:

"CONSENT AND WAIVER

We the undersigned hereby consent to an immediate counting of the ballots cast at the representation vote directed by the Board and held on the 28th day of May, 1980.

And we hereby waive any objections as to the regularity and sufficiency of the balloting.

Dated this 28th day of May, 1980.

CERTIFICATION OF CONDUCT OF ELECTION

DATE OF ELECTION — May 28th, 1980

PLACE OF ELECTION — Windsor, Ontario

We, the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the time and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote."

No one appeared to act as scrutineer for the incumbent union, which had still not filed a formal intervention. Rule 9 of the Rules of Practice provides that a trade union claiming to be the bargaining agent for a group of employees, which fails to file an intervention may be deemed by the Board to have abandoned any claim to represent the employees affected by the application; however, no request was made for an exercise of the Board's discretion under Rule 9 and the applicant was apparently content to have the ballots in the "two way vote" counted. It should also be noted that, by virtue of Rule l(l)(b) a person (in this case the incumbent) served with notice of the Board's proceedings is a "party", and no objection to the incumbent's status as a party was taken until after the ballots were counted.

6. Sever, ballots were cast. Of these one was spoiled and three were cast in favour of each of the two unions. The applicant, therefore, did not receive more than fifty per cent of the ballots cast, and accordingly would not, on the basis of the representation vote be entitled to certification pursuant to section 7(3) of the Act.

7. The voting results were summarized in the report of the Returning Officer – a copy of which was sent to each of the parties. Accompanying the Officer's report was a notice in Form 44 advising the parties that if they wished to make representations in connection with the application, or as to any matter relating to the representation vote or the report, such representations should be made not later than June 4, 1980. The respondent was directed to post copies of the report in conspicuous places where they would most likely come to the attention of any of the employees affected by the application.

8. By letter dated June 4, 1980 (received by the Board June 5, 1980) the solicitors for the applicant for the first time, raised a number of objections and submissions concerning the incumbent trade union's status, the conduct of the vote, and the weight which should be given to the voting results. These representations were amplified at a hearing which took place on June 20, 1980. The applicant argues that the representation vote (which it must be repeated the applicant itself had requested) should be disregarded because the incumbent union had not filed a formal intervention or any collective agreement affirmatively establishing it as the bargaining agent for the subject employees. The applicant further argues that the incumbent has ceased to exist as a viable entity, or has abandoned any bargaining rights which it might have had. It was submitted that there should never have been a two-way vote, or indeed any vote at all, because there were no bargaining rights to displace. The applicant now asserts that the matter should be treated as an "ordinary" certification application in which the applicant's right to certification would be determined by its documentary evidence of membership support. In the alternative, the applicant requests the taking of a new representation vote because certain members of the bargaining unit were not fluent in the English language and did not fully comprehend the voting procedure. This, the applicant argues, was evidenced by the spoiled ballot and the fact that two employees who were scheduled to begin work at 10:30 a.m. on the morning of the vote did not appear to cast their ballots during the time the polling booth was open. Finally, the applicant contends that a ballot which should have been considered spoiled was improperly counted.

9. The incumbent Plasterers' union argues that it is now too late for the applicant to challenge the incumbent's status or bargaining rights. Having requested a representation vote and agreed to a "two-way" vote, the applicant cannot now repudiate the results of that vote and claim that the application should be treated as if no vote had been held at all. It might have been open to the applicant to make an "ordinary" certification application – in which case the incumbent would have had to establish its bargaining rights and status to intervene; however, after agreeing to a two-way vote, conducting the vote, waiving any objections as to the "regularity and sufficiency of the balloting", and losing the vote, the applicant cannot now raise these matters or reconstitute the application in a different form. Nor, having signed the above-mentioned waivers, can the applicant now claim that certain employees misunderstood the procedures or did not have a proper opportunity to cast their ballots. In the alternative, the incumbent argues that, in the circumstances, the onus of establishing an abandonment of bargaining rights or the disappearance of the incumbent union should rest with the applicant. Counsel filed with the Board employee bargaining agency designations dated April 27, 1978 and May 30, 1978; as well as a purported province-wide collective agreement between the Plasterers' union on behalf of, inter alia, Local 345 and the relevant employer bargaining agency on behalf of, inter alia, Bravo Cement Contracting. It might be noted that Bravo Cement Contracting is specifically listed on the face of this purported agreement indicating its business address as that at which the vote was held. In reply, counsel for the applicant repeated his earlier submissions and asserted that the incumbent should be put to the strict proof that bargaining rights existed at the time of the employee designation and that Bravo was properly included in and bound 'by the province-wide agreement.

10. Because it was late in the day before this matter was reached, and two of the applicant's witnesses had come from out of town to give evidence, the Board heard the evidence of the two employees who had not voted – without prejudice to the incumbent's initial contention that it was too late to reopen the matter of the regularity of the vote.

11. The evidence of the two employees was virtually identical. Both employees were told by their employer that they would not be required to commence work until 10:30 a.m. on the date of the vote. There is no allegation that in scheduling employees to come to work at this time the employer was engaging in any improper conduct, or favouring either trade union. Both employees knew that a vote would take place on May 28th. Both of them saw the notice and both knew that it had to do with the representation vote. Each employee testified, however, that, since he could not read English, he did not understand the import of the notice. Neither employee sought a translation or clarification of the notice from the Board, their fe1low-employees, their employer, or the two unions involved.

12. The applicant made a number of factual assertions and although no evidence was called on these points, the intervener indicated that it was not in a position to contradict them. In the circumstances, and for the purposes of this decision, the Board is satisfied that it should assume, without finding, that these assertions are true, and give its ruling on that basis.

13. Of the ten employees on the voters' list, three had not voted by the agreed closing time. Mr. D'Agostini, the representative of the applicant who had participated in the earlier meeting and agreed to the polling hours, requested that the poll be kept open longer; but the Board Returning Officer refused this request. Nevertheless, the applicant and the respondent signed the waivers mentioned in paragraph 5 and the ballots were counted. When the employees arrived at work some hours later, the vote was over.

II

14. As we have already noted, this matter came on for hearing late in the day, some of the evidence was heard as a matter of convenience, and many of the issues to which we have referred supra were characterized by the parties as "preliminary". It appears to the Board, however, that most of these matters are not properly characterized as preliminary, and that we are able to render a final decision in this case on the basis of the material presently before us.

15. We have examined the ballot which the applicant contends was spoiled, and should not have been counted. We are satisfied that the ballot does not disclose the identity of the individual marking it, and that it was properly counted. We are also satisfied that no new vote should be ordered, even if the evidence of the two employees who were too late to vote is accepted in its entirety. Notices of the vote were posted in accordance with the Board's Rules of Practice and these notices clearly spelled out the agreed voting arrangements. No objection to the form of notice was taken, and no attack was made on the adequacy of these notices, until after the vote was taken and the ballots counted. Moreover, both of the subject employees actually saw the notices and knew that they related to the vote, but neither took the trouble to enquire as to their contents. It may have been that they were mistaken in their assumptions concerning the vote, but we do not think mistakes of this nature are sufficient to set aside the vote and order a new one. If voter errors were sufficient to set aside a vote, there would rarely be a representation vote which could not be challenged, since, presumably, spoiled ballots would always indicate some degree of employee misunderstanding. There is nothing to suggest that the employees were misled by the employer, the incumbent union, or even the notices themselves – they simply did not make the effort to ascertain their contents (as they no doubt did with respect to the applicant union's membership evidence – which is also in English). We do not think that the adequacy of a statutory notice can be assessed with reference to the intellectual or linguistic abilities of the persons to whom it may be directed – especially where, as here, no submissions were made that special efforts had to be made in this regard. In Federated Building Maintenance, [1979] OLRB Rep. Oct. 974 a similar attack was made on the adequacy of a Form 5 notice to employees of an application for certification and the Board made a number of observations which are equally applicable in the present case. At paragraph 12 the Board commented:

"12. Before parting with this matter, it should perhaps be added, if only to clarify the Board's procedure, that it is doubtful whether our conclusion would be any different even if the objection had been raised by a group of employees. There are over eighty Board forms, including its Notice to Employees of Application for Certification and of Hearing, all of which have been promulgated as regulations by the Lieutenant Governor in Council. They are always posted in English; the only qualification to that rule is that, upon request, the Board will provide a French translation for simultaneous posting with the English version. For years the Board has posted its notices in Canada's two official languages only without any apparent hardship to employees.

13. Obviously there are numbers of employees in the Canadian workplace who, by reason of their national origin, are not able to read or write either English or French. They are nevertheless usually quite able to function within the mainstream of everyday life in Canada. Whether they deal with commercial interests or with their government, they generally expect to do so in one of the two official languages of Canada. The same is true in their dealings with the courts or with public administrative tribunals. Immigrant Canadians generally obtain, and can reasonably be expected to obtain, the assistance necessary to enable them to respond to process issuing from a court or tribunal. In this case all 125 of the employees were able to respond to the Board's subpoena, written in English, issued to them by the employer. In the Board's experience employees who are not fluent or literate in English do not fall within a special class of disadvantaged workers. While the Board has always made use of translations in the receiving of evidence, it does not presume that immigrant Canadian employees are less able than others to inform themselves and assert their rights under The Labour Relations Act. (Ilsco of Canada Ltd., [1973] OLRB Rep. May 221; International Chinese Restaurant, [1977] OLRB Rep. Oct. 688; Dylex Ltd., [1977] OLRB Rep. June 357.)"

We do not think the language difficulties or misunderstanding of the two employees is sufficient, in the circumstances of this case, to set aside the representation vote. Finally, we do not think, having waived any objection to the regularity and sufficiency of the balloting, the applicant can now complain about spoiled ballots or the inadequacy of the voting arrangements. If that waiver has any effect at all, it must be to preclude precisely the kind of argument which the applicant is now trying to make.

16. We have also carefully considered the applicant's representations with respect to the incumbent union's existence, and its status as bargaining agent, and we have concluded that none of those arguments, or the evidence in support thereof, should now be entertained.

17. The applicant applied for certification and requested the taking of a prehearing representation vote. The request was granted, a voting constituency was established, a voters list was settled, and a vote was taken. The description of the unit of employees appropriate for collective bargaining is not in dispute, and we are satisfied that it should be framed in the same terms as the voting constituency. We are also satisfied, on the basis of the documentary evidence submitted that the applicant has the requisite membership support among at least thirty-five per cent of the employees in that unit at the time the application was made. In accordance with section 8(4) of the Act, a representation vote taken under section 8 has the same effect as one taken under section 7(2). On that basis the union "lost". It did not receive more than fifty per cent of the ballots cast. There is no requirement that the Board disregard the voting results, and, in the circumstances of this case, we do not think we should do so. The applicant requested the taking of a vote, identified the Plasterers' union as a party, agreed to its appearance on the ballot as an "incumbent union" which the employees could opt to support, did not request that the box be sealed, waived any objections concerning the regularity and sufficiency of the balloting, and agreed that the ballots should be counted. We do not think that this vote should now be disregarded, or that the applicant can now claim that no vote should have been taken or that its application should be assessed only on the basis of the documentary evidence. We are prepared to give weight to the representation vote which has been taken, and since on the taking of that vote, the applicant did not receive more than fifty per cent of the ballots cast, we are satisfied that its application must be dismissed. It is unnecessary to consider the applicant's various arguments concerning the continuing existence of the incumbent Plasterers' union or the possible abandonment by that union of its bargaining rights. We pass no opinion with respect to any of these issues.

18. The Board has further decided that, pursuant to section 92(2)(i) of the Act, it should not entertain a new application from the applicant, or by any of the employees affected by this application, or by any person or trade union representing such employees for a period of six months from the date thereof.