Ontario Labour Relations Board
[1980] OLRB Rep. April 461
1780-79-R Office & Professional Employees International Union, Applicant v. London District Crippled Children's Treatment Centre, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Gilles Beauregard for the applicant; Danial R. Ross and J. O. Evans for the respondent; Jane Lavender, Debbie Langford and Gareth Parry for the objectors.
DECISION OF THE BOARD; April 28, 1980
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This is an application for certification in which an issue has arisen respecting the entitlement of an employee to cast a ballot in a representation vote ordered by the Board.
The application was filed on December 13, 1979. On January 11, 1980 the Board issued a decision in which it found that not less than forty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant for the purposes of this application. The Board therefore ordered a representation vote to be taken of the employees in the bargaining unit. Through the Board's Labour Relations Officer the parties agreed to the composition of the bargaining unit and the list of eligible votes on January 8, 1980. Following its normal practice in ordering the taking of the representation vote the Board stated:
"all employees of the respondent in the bargaining unit employed on January 8, 1980 who do not voluntarily terminate their employment or who are not discharged for cause between January 8, 1980 and the date the vote is taken will be eligible to vote."
The representation vote was taken on January 22, 1980. On January 21, 1980 Miss Ingrid Cereghini, an employee in the voting constituency, gave written notice to the respondent that she was terminating her employment at the conclusion of her working day on January 23, 1980. Miss Cereghini presented herself at the polling station and voted in the representation vote on January 22, 1980. It is common ground that the scrutineer for the employer then expressed a concern to the Board's Returning Officer respecting her eligibility to vote. No formal objection was made, however, nor did the employer request that her ballot be segregated and not counted pending a determination of that issue by the Board. While the union had a scrutineer present, there was no scrutineer at the polling station representing the group of employees who had appeared at the initial hearing as objectors to the application.
At the conclusion of the balloting the representatives of the applicant and the respondent agreed to an immediate counting of the ballots. Prior to the ballots being counted both representatives signed the Board's "Consent and Waiver" form which states:
"We the undersigned hereby consent to an immediate counting of the ballots cast at the representation vote directed by the Board and held on 22nd day of January, 1980.
And we hereby waive any objections as to the regularity and sufficiency of the balloting."
The ballot count disclosed a victory for the union. Of the 21 ballots cast, 11 were marked in favour of the applicant and 10 were marked against it.
By letter dated January 23, 1980 a group of employees, largely the same employees who had appeared as objectors at the hearing, requested that a second vote be taken. They submit that since the vote was won by a one-ballot margin and Miss Cereghini was voting in circumstances where she was to leave the bargaining unit, the results of the vote should not be allowed to stand.
By letter dated January 28, 1980 counsel for the respondent raised substantially the same objection.
A hearing was therefore convened to allow the parties to make their representations respecting the result of the vote. The twofold issue is whether Miss Cereghini was entitled to vote and whether the outcome of the balloting should be allowed to stand in all of the circumstances.
Normally the Board might have some reservations about the standing of the employer to object either to the eligibility of Miss Cereghini to vote or to the validity of the outcome. The employer failed to raise any formal objection at the time that she cast a ballot. It subsequently signed a Consent and Waiver form which is on its very face an implicit undertaking to be bound by the result of the vote. If the respondent were the only party objecting there would be a serious question about its ability to do so. (See, Salvation Army Grace Hospital [1965] OLRB Rep. Nov. 539.) Because, however, a group of employees has raised the same objection, the employer, as a party, must be given the right to participate fully in the hearing of the employees' application by the Board. The Board therefore allowed the respondent to make all of its own representations on the issues before it and in the result both the employer and the employees were given a full hearing on the merits of their objections.
It is clear that the employees have a right to object to any matter relating to the representation vote after it has been taken and the report of the Board's Returning Officer has issued. In this regard section 45(1) of the Board's Rules of Procedure provides as follows:
"Subject to subsection 3, where a representation vote is taken after the hearing of an application,
(a) a party; or
(b) any employee or representative of a group of employees, who desires to make representations to any matter relating to the representation vote, or as to the accuracy of the report of the returning officer, or as to the conclusions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 43 or 45, as the case may be on or before the last day for the posting of the copies of the report and notices under subsection 3 of section 44."
We deal firstly with whether Miss Cereghini was entitled to vote. On this question, given the ordering of the Board's order, there can be little doubt. There is an obvious difference between notice of an intention to terminate one's employment and actual termination. On the day of the vote Miss Cereghini was an employee at work in the bargaining unit. She did not terminate her employment until the end of the following day. It cannot be seriously contended that Miss Cereghini was not entitled to vote according to the plain wording of the Board's order. On the day of the vote she was an employee in the bargaining unit as of January 8, 1980 who had neither been discharged nor voluntarily terminated her employment.
The more substantial issue is whether in these circumstances the result of the vote should be allowed to stand. Counsel for the respondent made two submissions in this regard. First he maintains that the employee's notice of her intention to terminate her employment is in the nature of an irrevocable document which should foreclose her right to influence the outcome of the representation vote. Secondly, he argues that, apart from her intention, because her interest in the bargaining unit ended on the day after the vote her ballot should not be allowed to influence the outcome.
There is, of course, no evidence before the Board to indicate which way Miss Cereghini marked her secret ballot. Nor should this Board give any credence to the assumption implicit in the employees' representations that conducting a second vote without her participation would alter the outcome. The secrecy of the ballot and the clear legislative intention to safeguard the wishes of individual employees enjoins the Board and the parties before it from engaging in that kind of speculation.
Certification is the primary process in The Labour Relations Act. It is the means by which the wishes of employees for representation are transformed into the affirmative right of a union to bargain collectively on their behalf with their employer. Generally, apart from exceptional cases involving extreme unfair labour practices, certification is accomplished by an application of majoritarian principles. A union can be certified by demonstrating support in excess of 55% of the bargaining unit through membership cards. It can also be certified by obtaining a simple majority of the ballots cast in a representation vote. These are the two normal routes to certification under the Act. Both of these procedures require the application of percentages to a defined number of employees. Because employees may continuously come and go through hiring, lay-offs, leaves of absence, quitting and discharge, the Board has had to devise some general rules to apply in order to fix a clear and stable figure of employees in a given bargaining unit for the purposes of an application for certification.
There are a number of ready illustrations of those rules. The Board has devised, for example, a "terminal date" as a cut off point for assessing the number of membership cards filed by a union and statements in opposition to certification filed by employees. The Board refers to the date that an application is filed for assessing the number of employees in the bargaining unit. (See R. v. OLRB, Exparte Hannigan, 1967 CanLII 205 (ON CA), [1967] 2 O.R. 469 (C.A.)). And it has developed a "thirty day rule" to determine whether an employee absent on the date of application is to be counted within the bargaining unit for the purposes of the application (Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840). The Board has also evolved "a seven week rule' as a rule of thumb to assess which employees will be viewed as full-time and which as part-time for the purposes of an application. (Sydenham District Hospital, [1967] OLRB Rep. May 135). These are procedural constructs whose application may mean victory or defeat for either party in any particular application. If all of the lines established by these rules were to be redrawn on a case by case basis the certification process would come to a standstill. These established principles are known to the labour relations community and parties corning before the Board can plan on the basis of them. While none of the above rules are entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from them in a particular case. (Trenton Memorial Hospital, [1980] OLRB Rep. Jan.)
The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Borden Co. Ltd., (1946), 46 CLLC ¶16,461) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod& Sons Ltd., [1970] OLRB Rep. Feb. 1316.
In this case the respondent and the objecting employees invite the Board to adopt a different rule. They submit that if an employee has indicated an intention to leave the workplace he or she should not be permitted to influence the outcome of a representation vote. When pressed on the point, however, they are less than clear as to how that principle can be applied in any general way. Is an employee to be deprived of his franchise if, before a representation vote, he indicates an intention to leave his employment within three weeks of the vote? Or three months? Or six months? And is the result of a closely contested vote to be disturbed if an employee who voted is transferred, quits or is discharged within a day or two after the vote? The Board must obviously adhere to a rule that gives some certainty and finality to the granting of bargaining rights and which can be readily understood and applied by the parties.
The Board's past decisions give considerable guidance in the application of the rules regarding the eligibility of employees to vote in the selection of a bargaining agent. Employees on lay-off without a definite date of recall have been held ineligible to vote (Rix Athabasca Uranium Mines Limited, [1961] OLRB Rep. July 127.) The Board has found that a person who was an employee in the bargaining unit on the date the vote was ordered and was promoted to acting foreman on the date the vote was taken was ineligible to cast a ballot, notwithstanding that he later returned to the bargaining unit (Success Display Limited, [1971] OLR3 Rep. Oct. 636). An employee who was absent on Workmen's Compensation on the date the vote was ordered and on the date the vote was taken, but who had neither quit nor been terminated was found eligible to vote (Alex's Plumbing and Heating Limited, [1970] OLRB Feb. 1321). Where, on the other hand, an employee who was absent due to illness had been treated in all respects as terminated and had no real prospect of returning to work, the Board concluded that he was not eligible to vote (Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723).
The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover. From the Board's earliest days employees were not removed from the voter's list unless they had left their employment before the taking of the vote. The only recorded exception to this appears to have been in wartime: under P.C. 1003, the Wartime Labour Relations Regulations, the Board's practice was to exclude from voting eligibility an employee who prior to the taking of the vote had obtained a separation notice pursuant to Selective Service regulations. An employee subject to that irrevocable step was viewed as no longer sufficiently interested in employment relations in the plant to be entitled to influence the outcome. (Packard Electric Co. Ltd. (1944), 46 CLLC ¶16,424). There appears to be no other recorded variation from the Board's rules.
The Board's voter eligibility rules are not intended and do not purport to achieve a standard of perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification. Any deliberate attempt to manipulate the eligibility rules and temporarily "pack" the voting constituency to influence the outcome of the vote can be dealt with through the Board's remedial authority in unfair labour practices (see, e.g. Custom Aggregates, [1978] OLRB Rep. Mar. 215). Any distortion in the selection process caused by a planned and bona fide substantial increase in the size of the bargaining unit in the near future can be accommodated by the application of the Board's build-up principles (Emil Frant 57 CLLC ¶18,057; McCord Corporation [1965] OLRB Rep. June 203; Domco Foodservices Limited, [1980] OLRB Rep. Jan. While the Board deals with these kinds of substantial changes in the bargaining unit, it cannot concern itself with the inevitable fact that some employees who are eligible to vote may have a more temporary or transitory interest in their jobs than others.
The Board has long recognized the right to vote of employees who are transitory, so long as they conform to the minimum requirement of the Board's two-pronged eligibility rule. If they are employed on the date the vote is ordered and continue to be employed to the date the vote is taken, they are entitled to vote. In J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100, the Board confirmed the eligibility to vote of a group of employees who fell within the eligibility dates but who in fact had been hired temporarily. They were strikers from a nearby plant who expected to return to their normal employment at some indefinite future date. And in University of Toronto, [1974] OLRB Rep. May 267, the Board confirmed the right to vote of all teaching assistants and research assistants employed by the University even though the vote was conducted in May, at the end of the academic year, and a turnover rate of 25 per cent to 35 per cent of the bargaining unit was projected for the next academic year.
The selection of a bargaining agent under the Act cannot be conducted on the basis of an ongoing referendum geared to the daily, weekly or monthly changes in the people who make up a bargaining unit. But bargaining rights are not necessarily permanent, and the Act allows for shifts in the wishes of employees whether through the turnover of personnel or otherwise. Any changes in the sentiment of a majority of the employees about union representation over time can be dealt with through the provisions of the Act for the termination of bargaining rights.
On the basis of the foregoing policy considerations, the Board is not persuaded that it should depart from its normal practice in this case to disturb the results of the representation vote. Moreover, the Board cannot agree, even given that Miss Cereghini did leave her job the day after the vote, that she had no interest in its outcome. (In this regard, it is doubtful whet tier the Board would again apply the narrow wartime rule in the Packard Electric Co. Ltd. case, supra). When the parties go to the bargaining table much is negotiable, including the possibility that the union will obtain wage increases and other benefits that are retroactive to the period of her employment. They might also negotiate a seniority formula that would give her credit for her past employment in the event of her return. An employee in the position of Miss Cereghini does have a genuine interest in the outcome of a representation vote.
Fox all of the foregoing reasons the Board is satisfied that it should not depart from applying its normal rule in this case. The Board therefore declines to disturb the result of the representation vote taken on January 22, 1980.
The Registrar is instructed to forward the report of the Returning Officer to the panel seized with the application.