Service Employees Union, Local 204 v. Daheim Nursing Home Limited
[1980] OLRB Rep. November 1639
0970-80-R Service Employees Union, Local 204 affiliated with the A.F. of L., C.I.O., C.L.C., Applicant, v. Daheim Nursing Home Limited, Respondent.
BEFORE: M. G. Picher, Vice-Chairman and Board Members A. Hershkovitz and E.C. Went.
APPEARANCES: H. Goldblatt for the applicant; A. V. Craig for the respondent; J. P. Wearing for the employee.
DECISION OF M.G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER E.C. WENT; November 4, 1980
- On October 24, 1980 the Board conducted a show cause hearing as to why it should not, in the circumstances of this application, conduct a second representation vote. The facts and concerns giving rise to that inquiry are well set out in the following two paragraphs of the Board's decision herein dated October 8, 1980:
- This is an application for certification in which the Board by a decision dated September 15, 1980, ordered the taking of a representation vote. The vote was taken on September 30, 1980, and a number of challenges were made concerning the eligibility of certain persons to cast ballots. These ballots were identified and segregated pending a resolution of this dispute. In the discussions following the closing of the poll, the parties were able to reach agreement that only one of the disputed individuals was actually eligible to vote. The ballots were counted, and it was revealed that they were equally divided between those in favour, and those against, representation by the applicant. It was then discovered that, inadvertently, the single segregated ballot which the parties agreed would be counted, had not been placed in the ballot box or included in the count. In the circumstances it was apparent that this ballot would be determinative, and that to count it would necessarily reveal the wishes of the individual employee involved. Nevertheless, the Board officer conducting the vote acceded to the respondent's request that the sealed ballot be opened.
Board representation votes are conducted in accordance with strict standards designed to ensure that employees have an opportunity to register a free and untrammelled choice in the selection of a bargaining representative. Employees must be able to cast their ballots under circumstances that are not only free from improper interference, restraint, or coercion; but also from any other elements which might prevent or impede a free and voluntary choice. The secrecy of that choice is of fundamental concern. Form 42, the notice advising employees of the taking of a representation vote, specifically assures them that their ballot will be secret. It would strike at the integrity of the entire process if employees came to believe that, in some circumstances, by agreement of the parties, the choice on their ballots might be revealed. Where the counting of the ballots would disclose the choice made by even a single employee (as, for example, where a single employee's ballot, has been challenged and segregated) the invariable practice of the Board has been to order a new note (See: Wm Roberts Electric Ltd. [1962] OLRB Rep. April 26; P.C.D. Services Ltd., [1963] OLRB Rep. Oct. 392; CutlerHammer Canada Ltd., [1965] OLRB Rep. June 200; and Polmar Tile Co., [1970] OLRB Rep. May 206). In the circumstances of the present case the single segregated ballot should not have been opened. The matter should have been referred to the Board for its consideration. The Board is seriously concerned that this was not done. Had the matter been referred to the Board, the Board would have preserved the secrecy of the individual's ballot by ordering a new representation vote, in accordance with the practice affirmed in the cases to which we have referred. The officer had no direction from the Board to open the ballot, and it is our view that the ballot should not be counted in these circumstances. Accordingly, the Board directs the Registrar to schedule a hearing so that the parties will have an opportunity to show cause why, in accordance with the Board's established practice, a new representation vote should not be ordered.
At the show cause hearing, Mr. Kenneth Hilge, the employee whose ballot was revealed, asked that the Board conduct a new vote. He requests the opportunity to exercise his franchise secretly according to the Board's normal practice and in keeping with the understanding conveyed to him by the Board's notice to all employees (Form 42) that each employee's wishes respecting union representation would be expressed by means of a secret ballot.
As far as we are aware this is the first time in the Board's history that an employee's wishes have been revealed in this way. That is itself is an indication of the importance that this Board has consistently attached to safeguarding the confidentiality of employees' wishes in the selection of a bargaining agent by means of a secret ballot vote.
Strong feelings for and against are not uncommon when a union seeks to be certified as the bargaining agent in a particular work place. No matter which way their sympathies may lie the disclosure of the wishes of individual employees during the certification process can subject them to pressure and recrimination at the hands of their employer and to ostracism at the hands of their fellow employees. That is why the right of confidential selection must remain paramount in the certification process whether it be through the secret ballot or through the confidentiality of membership evidence and statements of employee opposition filed with the Board, expressly protected by section 100(1) of The Labour Relations Act. That right must be jealously safeguarded if employees, employers and unions are to retain confidence in the certification process administered by this Board.
Counsel for the union argues that the employer's knowledge of Mr. Hilge's previous support of the union will impede his ability to vote freely in a second representation vote. The facts disclose that Mr. Hilge, who is a member of the family that operates the respondent, has been subject to undue pressure from his employer since his ballot became known. It is not unusual to find relatives of management in a bargaining unit of employees, particularly in smaller units such as this one. In many instances an employee related to management may, because of the permanence of family, ties, have less to fear from management in the long run