Ontario Labour Relations Board

[1982] OLRB Rep. January 105

0643-81-R United Electrical, Radio and Machine Workers of America (UE), Applicant, v. SGS Supervision Services Inc. Qualitest Technical, Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

APPEARANCES: Arthur E. Jenkyn and John Trufal for the applicant; D. Jane Forbes-Roberts, Richard Furst and M. Ozog for the respondent.

DECISION OF THE BOARD; January 21, 1982

1. By decision dated July 8, 1981 in this application for certification, the Board directed that a pre-hearing representation vote be taken in the voting constituency specified in that decision. Pursuant to that direction, a vote was taken on July 24, 1981 in which 20 ballots were marked in favour of the applicant, 20 ballots were marked against the applicant, and four ballots were segregated and not counted. By decision dated October 29, 1981, (reported in [1981] OLRB Rep. Oct. 1471) the majority of this panel (with Board Member Bell dissenting) ruled that only one of the four employees whose ballots had been segregated was eligible to vote and directed that another representation vote be taken of the employees in the following bargaining unit (which the Board had found earlier in that decision to be appropriate for collective bargaining):

"all employees of the respondent engaged in pipe inspection, working at or out of the respondent's premises at Welland, Ontario, save and except foremen, those above the rank of foreman, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period."

In accordance with its normal practice, the Board's direction concerning eligibility to vote (in the second representation vote) was as follows:

"All employees of the respondent in the bargaining unit on the date hereof [October 29, 1981] who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote."

2. One of the three individuals who were found by the Board to be ineligible to vote in the July 24, 1981 representation vote subsequently applied through counsel for reconsideration of that decision. His counsel also requested that the Board not proceed with the (second) representation vote or that, if the Board wished to proceed with the representation vote, the ballot box be sealed pending a decision of the Board with respect to the outstanding request for reconsideration. The Board determined that the representation vote should proceed but directed that the ballot box be sealed. By decision dated January 20, 1982 that application for reconsideration was dismissed.

3. By letter dated November 27, 1981, the Registrar advised the parties as follows:

"Having regard to the agreement of the parties, this will confirm that the representation vote recently directed by the Board will be held on Friday, December 11, 1981, from 6:15 A.M. to 7:00 A.M. and from 2:15 P.M. to 3:00 P.M., the polling booth to be located in Rose Villa Motel, Riverside Drive, Welland, Ontario.

Four Notices of Taking of Vote and four copies of the voters' list are to be posted immediately by the employer in such conspicuous location that they may be seen and read by all eligible voters, and I would draw your attention to the fact that the Notice contains the following statement:

'I direct all interested persons to refrain and desist from propoganda and electioneering from midnight of Monday, December 7th, 1981, until the vote is taken.'

The required ballots will be furnished by the Board's Returning Officer at the opening of the poll."

4. On the day before the vote, the Registrar received the following letter dated December 10, 1981 from J. D. Carrier of counsel for the respondent:

"Further to our telephone conversation of today's date I wish to confirm the following:

1. Due to the completion of a contract at the Stelco plant in Welland, that Company (Stelco) is winding down production.

2. We understand that that has resulted in a mass lay-off of Stelco employees.

3. The completion of our client's contract in the Stelco plant coincidentally [sic] has resulted in the lay off, as of today's date, of a great number of SGS employees as their tasks have now been completed.

4. Since these employees of SGS are hired for a definite task and that task has been completed it follows that their services have been terminated.

In these circumstances it is our recommendation that the ballots of those employees who were terminated today but who appear and vote tomorrow be segregated. This would be in keeping with the Board's order that persons terminated since the date of preparation of the list would not be entitled to vote."

5. At the December 11, 1981 representation vote, ballots were cast by 44 persons; 27 of those ballots were segregated as they were cast by persons on the voters' list who had been laid off on the previous day. A ballot cast by a person whose name did not appear on the voters' list was also segregated. Upon completion of the voting, the ballot box was sealed as directed by the Board.

6. The applicant's response to Mr. Carrier's letter of December 10, 1981 is contained in the following letter dated December 15,1981 that was sent to the Registrar by Val Bjarnason, Secretary-Treasurer of the applicant:

"I am writing in reply to your letter dated December 11 in the above matter, with which you enclose a letter from the counsel for the Respondent, requesting segregation of ballots. We wish to protest the segregation of some two-thirds of all ballots cast simply on the basis of a letter delivered to your office at 4:45 p.m. the day prior to the vote.

The instructions for the holding of the vote were very clear and specific, especially as to eligibility for voting, namely, 'all employees ... who have not voluntarily terminated their employment or who have not been discharged for cause....' Nowhere in his letter of December 10, 1981 does Company Counsel claim that any employees either voluntarily terminated their employment or were discharged for cause. On the contrary he admits that the situation 'resulted in the lay-off, as of today's date, of a great number of SGS employees...

This frivolous last minute intervention by the Company Counsel has resulted in a further delay in the certification proceedings. We are protesting the decision to allow the segregation under such obviously unjustified reasons in the hope that orders will be issued to prevent repetitions of this abuse of the employees' rights under the Act.

We urge the Board to open the ballot box without further delay and proceed with the counting of all ballots cast."

7. In view of the dispute between the parties with respect to the segregated ballots, a hearing was scheduled on January 8, 1982 for the purpose of considering the representations of the parties with respect to the representation vote taken on December II, 1981. The parties were also afforded an opportunity to adduce evidence at that hearing with respect to the eligibility to vote of the persons whose ballots were segregated, but they declined to do so. Accordingly, the Board will dispose of his matter on the basis of the undisputed representations of fact included in the submissions that were presented to the Board by the respective representatives of the parties.

8. The respondent is one of the four major employers in the pipe inspection industry. It provides pipe inspection services to various customers; for example, it has a contract with a company known as "Trans Canada" pursuant to which it inspects pipe that is being produced for that customer by Stelco. To perform this function, the respondent sends highly skilled employees to the Stelco plant at which the pipe is being produced. Since the respondent's manpower requirements vary from week to week and month to month depending upon its customers' demand for pipe inspection services, the size of the respondent's active work force fluctuates. Counsel for the respondent submitted that employees are hired by the respondent for a definite term or task, upon the completion of which they are terminated; however, that contention was disputed by the applicant and in the absence of any evidence with respect to the matter, the Board is unable to find that submission to have been duly established. Nevertheless, it is clear that, as in the construction industry, some employees in the pipe testing industry work for more than one employer during the course of a year, depending upon which of the employers in the industry have need for their services. Some of the employees who are "laid off' by the respondent are subsequently "recalled" or "rehired" by the respondent if management "likes their work". However, some of the employees who are laid off do not return to work for the respondent; some do not accept the respondent's offer of further work because they have found alternate employment; others are never offered further work because of the respondent's dissatisfaction with their work. It was not disputed that the lay-off of 31 employees by the respondent on December 10, 1981 was occasioned by the completion of certain testing work that the respondent had been performing for a customer at Stelco. There was no suggestion by the applicant that the lay-off was in any way improper. The employees were not given any notice of lay-off or pay in lieu of notice. It was the respondent's position that the absence of such notice or pay in lieu of notice did not indicate that it was a "short-term lay-off' as contended by the applicant, but rather merely reflected the inapplicability of notice requirements to persons employed for a definite term or task. However, in the absence of any evidence concerning the pertinent terms and conditions of employment of the individuals in question, the lack of such notice or pay in lieu of notice does not assist us in resolving the issue of their eligibility to vote on December 11, 1981.

9. By the date of the hearing (January 8, 1982), ten of the employees who were laid off on December 10, 1981 had returned to work for the respondent (namely, J. Collins, M. Dagenais, E. Hemmingsen, J. Latinovich, 0. McCombs, J. Noxel, G. Oliver, J. Oliver, and J. Rappattoni). The respondent also anticipated that a further employee (S. Atkinson) would return to work on Monday, January 11, 1982. However, the respondent had also employed six "new hires" after the date of the lay-off. The existence of those "new hires" lends some weight to the respondent's contention that not all of the employees who were laid off on December 10, 1981 would ultimately return to work for the respondent. It was not suggested by the applicant that the respondent's failure to "recall" or "rehire" persons laid off on December 10, 1981 instead of employing "new hires" was in any way improper. However, the respondent did not dispute the applicant's contention that the respondent was aware at the time of the lay-off in question that a number of the laid off employees would be needed to perform testing work in another part of the Stelco plant later that month. Moreover, seven of those employees had returned to work for the respondent by December 21~ 1981, less than two weeks after their lay-off.

10. In London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461, the Board was presented with the argument that an employee who has indicated an intention to leave the work place should not be entitled to cast a ballot in a representation vote. Although the specific ruling made in that case (namely, that the employee in question was eligible to vote) does not assist the Board in resolving the matter in dispute in the present case, the following review of the Board's jurisprudence contained in that case and the Board's observations with respect to that jurisprudence provide a useful description of the context in which this issue arises and the Board's general approach to such matters:

"15. 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 to 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.

16. 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 coming 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. 116).

17. 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) CLLC 91 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.

18. 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 Mine 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] OLRB 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 Rep. 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).

19. 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., 46 CLLC 91 16,424). There appears to be no other recorded variation from the Board's rules.

20. 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 91 18,057; McCord Corporation [1965] OLRB Rep. June 203; Domco Foodservices Limited, [1980] OLRB Rep. Jan. 33). 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.

21. 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 or 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."

As noted in that decision, the Board has generally found employees on indefinite lay-off to be ineligible to vote. As stated in Canadian Westinghouse Company Limited, [1966] OLRB Rep. Sept. 372, at paragraph 6:

"The Board's standard direction for the taking of a representation vote, as quoted above, cites only two instances in which a person who was an employee in the bargaining unit on the date the vote was directed forfeits his eligibility to vote, namely, where he voluntarily terminates his employment or is discharged for cause before the date the vote is taken. The Board, however, has not attempted in its standard direction to define exhaustively all of the contingencies under which a person who was an employee in the bargaining unit when the vote was directed would cease to be eligible to vote. The Board has consistently interpreted its direction to mean that a person who, between the date of the direction and the date of the vote, has ceased to be a member of the bargaining unit, is disqualified from participating in the vote, whether because of voluntary termination of employment, discharge for cause, indefinite lay-off in some circumstances, or transfer to a position out of the bargaining unit. Stated another way, the policy of the Board is that a person must be an employee in the bargaining unit both on the date the vote is directed and on the date of the taking of the vote in order to be eligible to cast a ballot...

(emphasis added)

(See also Fleron Lumber Company Limited, [1970] OLRB Rep. Nov. 820; E. H. Ferree Company Limited, [1967] OLRB Rep. Feb. 867; and Rix-Athabasca Uranium Mines Limited, [1961] OLRB Rep. June 127. See also, generally, Beef Terminal (1979) Limited, [1981] OLRB Rep. March 244; Trenton Memorial Hospital, [1980] OLRB Rep. May 805; and The Regional Municipality of Durham, [1980] OLRB Rep. Jan. 80.) However, the absence of a definite recall date is not, by itself, fatal to a person's eligibility to vote, as indicated by the following passage from Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723, at paragraph 4:

"In determining the eligibility to vote of a person who is not actually at work (in this case of the date agreed upon by the parties) the Board has regard to the continuance of the employment relationship. In this connection, it is well established that persons on indefinite layoff are not permitted to cast ballots in representation proceedings. As was stated in Custom Aggregates, [1978] OLRB Rep. March 215, the Board has taken the view that it would be unfair to allow persons whose prospects for continued employment are so uncertain to participate in the selection or rejection of a bargaining agent. Although the absence of a definite recall date is not, by itself, fatal to a person's eligibility to vote, where, as here, there is no evidence to suggest that, on the date agreed upon by the parties, there was an expectation that the employee would be recalled, the Board will conclude that the layoff was for an indefinite period...

11. In the present case, the fact that many of the laid off employees appeared at the polling place and cast a ballot indicates that they considered themselves to be employees in the bargaining unit despite the lay-off (see Sinclair's Restaurant (Atikokan) Ltd., [1969] OLRB Rep. Sept. 765). Moreover, the fact that a number of them had returned to work within eleven days after the lay-off provides a further indication that the prospects for continued employment of at least some of the laid off employees were not so uncertain as to render it unfair for them to participate in the selection or rejection of a bargaining agent. However, the fact that the respondent employed a number of "new hires" subsequent to the lay-off without "recalling" or "rehiring" all of the persons who had been laid off on December 10th provides some indication that the prospects of continued employment with the respondent for some of the laid off employees were at best quite uncertain.

12. The Board is of the view that it would be inappropriate to count the ballots cast by all of the persons who were laid off by the respondent on December 10, 1981 since this would allow some persons whose prospects for continued employment were quite tenuous, to participate in the selection or rejection of the applicant. However, we are also of the view that it would be unfair to disenfranchise those individuals who, at the time of the vote, had substantial and legitimate expectations of being recalled in the near future. Therefore, having regard to all of the circumstances of this rather unique case, the Board directs that the segregated ballots cast by the following 11 persons be counted along with the 16 ballots that were not segregated: S. Atkinson, J. Collins, M. Dagenais, F. Hemmingsen, J. Latinovich, O. McCombs, J. Noxel, G. Oliver, J. Oliver, J. Rapattoni, and H. Teutenberg. The other 17 segregated ballots are not to be counted since the persons who cast those ballots were not eligible to vote.

13. The matter is referred to the Registrar.