Ontario Labour Relations Board
[1982] OLRB Rep. December 1951
645-81-R; 2664-81-R United Food and Commercial Workers International Union Local 1000A AFL-CIO-CLC, Applicant, v. Keele-Wilson Supermarket Limited c.o.b. as Tops Food Market, Respondent, v. Group of Employees, Objectors
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.
CONCURRING OPINION OF BOARD MEMBERS, W. H. WIGHTMAN AND S. COOKE; December 3, 1982
We concur with the decision of the Board issued August 16, 1982 but we would like to add some additional comments regarding the Board's policy with regard to the "silent period" rule.
A review of the Board's decision on the issue of the consequences of breaches of the silent period reveals that the Board has become progressively more reluctant to order a new representation vote when a merely "technical" breach is shown. Originally the Board treated the silent period rule as an "absolute prohibition", breach of which would invariably result in the ordering of a new vote regardless of whether the violation had any effect on the outcome of the first vote or whether the impugned conduct came about through the fault of the respondent party: Rogers Majestic Ltd. 48 CLLC ¶16,517; Stauffer Dobbie Manufacturing Co. Ltd. 59 CLLC ¶18, 147. In later cases the Board departed from this species of absolute liability approach and allowed parties charged with breaches of the silent period to raise a defence of due diligence, i.e. that they had taken "reasonable precautions" to avoid the breaches that occurred: see Addressograph—Multigraph 11968] OLRB Oct. 752 for a review of this line of cases. In subsequent cases the Board also examined the alleged violations in order to determine whether they were likely to influence the outcome of the vote and refused to order a new vote if this was not the case. Thus the early absolute liability approach was qualified by requiring the applicant party to demonstrate a probable impact on the result of the vote and by allowing the respondent to argue that it took reasonable precaution to avoid the violations which occurred. This double barrelled restriction of the silent period rule is well expressed in Kimberly-Clark Ltd. [1977] OLRB Rep. Sept. 599 at paragraph 9,
Obviously, it would unduly prejudice the parties to a representation vote if the vote could always be automatically invalidated by virtue of breaches of the silent period by persons whose conduct is beyond the parties' reasonable control. Having found a disregard of the silent period the Board therefore must ask whether the party concerned took reasonable precautions to avoid or prevent any breach. If it is satisfied that the party has exercised the necessary care and that the breaches are neither so serious nor so widespread as to call into question the results of the vote, the Board will allow the vote to stand. Where it is found that isolated infractions are the work of rank and file employees who are not under the control of the union and that the union did all that can be reasonably expected to prevent those breaches, the Board may decide not to disturb the vote. (Rheem Canada Limited, [1965] OLRB Rep. July 284; Marsland Engineering Limited, [1972] OLRB Rep. Dec. 1009.)
This test for determining when a breach of the silent period will result in the nullification of the first vote and the ordering of a second vote was approved and adopted in the recent case, Treco Machine and Tool Ltd. [1981] OLRB Rep. Oct. 1503.
In Chateau Gardens [1977] OLRB Rep. Jan. 12 the Board further restricted the effect of the silent period rule by holding that a party must file charges relating to violations of this rule as soon as possible rather than awaiting the outcome of the vote in order to see whether or not it is favourable:
The Board finds that the CLAC was under a duty to exercise some dispatch in the filing of its charges once it became known that another party to the dispute was in breach of the Registrar's direction. The Board is of the view that the purpose of the imposition of the silent period is to prevent any one party from gaining an unfair advantage with respect to electioneering. If the circumstances described to the Board in the CLAC's evidence was true and had due diligence with respect to the wrongdoings being exercised, then adjustments could have been made to correct the alleged shortcoming. In other words, it does not lie in the mouth of a party to exploit to its own advantage a rule that was designed to assure fairness in the conduct of the vote. We find that a party cannot "lie in the bushes" and await the outcome of a vote and when it learns that the result was not amenable to its liking seek a second representation vote on the basis of a breach of a rule that could have been brought to the Board's attention in advance of the taking of the vote. (See: R: Pure Spring (Canada) Ltd. et al case, an unreported decision of The High Court per King J., dated February 21, 1965.)
In the normal circumstances, had due diligence been exercised in the filing of the allegations, the Board may very well have directed that the ballot box be sealed pending the disposition of the evidence filed in support of the charges. Or, the Board may very well have dispatched a Labour Relations Officer to investigate the respondent's premises and upon those findings the Board may very well have cancelled the holding of the vote and scheduled it for another day to permit prejudiced party to recoup what lost advantage had accrued as a result of the impugned electioneering. Whatever the adjustments that could have been made prior to the holding of the vote, we are satisfied that the CLAC's conduct in delaying the filing of the charges until after an unhappy result was known deprived the Board of any such opportunity. The Board is confident that our rules were not designed to allow a party in these circumstances to have "two bites of the cherry" where one may have sufficed. As a result, the Board is satisfied having regard to all of the evidence and the ensuing concerns with respect to continued viable collective bargaining that the CLAC ought to be foreclosed from filing its objections. (See: Lecours Lumber Company Ltd. case [1972] OLRB Rep. Nov. 982.)
From this brief review of the Board's jurisprudence on the silent period it can be seen that the Board has gradually narrowed the silent period rule in order to avoid the delay and other costs associated with repeat representation votes and the litigation that accompanies such votes. Indeed, the primary thrust of these cases is a mounting concern that the silent period is being used as a pretext by parties who merely wish to delay and obstruct proceedings before the Board. In the Treco case, supra, the Board Members Wightman and Hodges questioned the continued utility of the silent period rules and suggested that the Board dispense with this practice altogether. We would like to emphatically reiterate this suggestion. The utility of the silent period is clearly outweighed by its inconveniences. (Indeed it is questionable whether the silent period serves any useful purpose. It would seem that the silent period is merely an anachronistic hangover from the infancy of labour relations law in Ontario when the government adopted a basically paternalistic attitude towards employees.) Furthermore, there are alternative methods of attaining the objective of the silent period, namely to ensure that employees are able to express their true wishes in a representation vote. The Board clearly has ample powers under the Labour Relations Act to remedy any conduct preceding a vote which potentially distorts the outcome of the vote. Nothing is gained by imposing a blanket prohibition on campaigning for three days before the vote and much is lost in terms of increased potential for costly and time-consuming litigation. Therefore we urge the Board to cease its practice of ordering the imposition of a silent period under section 68(j) of its Rules of Procedure.