[1983] OLRB Rep. December 1964
2339-82-R Lumber and Sawmill Workers' Union, Local 2995 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. BioShell Inc., Respondent, v. Canadian Paperworkers Union, Intervener, v. Group of Employees, Objectors
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.
APPEARANCES: P. J. Falzone and Marcel Lacroix for the applicant; W S. Cook and R. W. Pirrie for the respondent; David Watson, Andre Foucault and Don Beagan for the intervener; no one appearing for the objectors.
DECISION OF THE BOARD; December 16, 1983
A representation vote was conducted in the above matter on September 14, 1983. The report of the Returning Officer records that seven employees voted in favour of the applicant union while eleven employees voted for the intervener. By a letter dated September 19, 1983, counsel for the applicant union, Local 2995, complained that the intervener, the Canadian Paperworkers Union (C.P.U.), breached the silent period imposed by the Board which was to be in effect from midnight, September 10th until the vote was taken on September 14th. Counsel for Local 2995 maintains that the C.P.U.’s violations of the silent period constitute sufficient grounds to cause the Board to set aside the representation vote of September 14, 1983 and order that a new vote be taken.
The instant application for certification which was filed on February 10, 1983 has been through various stages. The Board's initial hearing was held on March 4, 1983. By a decision dated March 21, 1983 (now reported at [1983] OLRB Rep. Mar. 318) the Board dismissed Local 2995’s objection to the membership evidence filed by the C.P.U. The Board concluded on the basis of the membership evidence before it that both the applicant and intervener were entitled to participate in a representation vote.
Following the release of the Board's decision, Local 2995 raised the question of whether the ballot should provide the employees with a choice between the two competing unions only or whether the ballot should include a no union option as well. By a decision dated April 27, 1983 and having regard to the unique circumstances of the matter, the Board directed that the voters be asked only whether they wished to be represented by Local 2995 or the C.P.U.
Following the issuance of the Board's decision on April 27, 1983 (now reported at [1983] OLRB Rep. April 483) the respondent employer requested the Board to reconsider its decision to remove the no union option from the ballot. For the reasons set out in the Board's decision dated June16, 1983 (unreported) the Board denied the respondent's request for reconsideration and confirmed its decision dated April 27, 1983.
Subsequent to the Board's June 16th decision an application for judicial review of the Board’s decision and an application for a stay of the vote pending the outcome of the judicial review were filed before the Divisional Court of Ontario. On September 6, 1983 the Divisional Court rejected the stay application and the vote was ordered to proceed.
By way of further background we note that the Board issued a provisional policy with respect to the elimination of silent periods for all votes directed on and after July 1, 1983. The vote in the instant matter, however, was directed on March 21, 1983. The notices issued by the Board to the parties on July 19, 1983 confirming that the representation vote would be held on September 14, 1983 contained the following direction:
I direct all interested persons to refrain and desist from propaganda and electioneering from midnight of Saturday, September 10, 1983 until the vote is taken.
The Board further included this direction in the Notices of Taking a Vote which were posted for the eligible voters.
With this background we turn to consider the evidence brought forward by Local 2995 to substantiate its claim, firstly, that the C.P.U. "conducted an intensive door-to-door campaign from and including Monday, September 12, to the date of the vote" and, secondly, that "this campaigning was designed to have, and in fact had, a significant impact on the results of the vote."
Mr. Garfield Bowker is employed at BioShell Inc. and was among the group of employees entitled to participate in the representation vote. He testified that the day prior to the vote he was visited by two representatives of the C.P.U. He testified that they introduced themselves and talked about the union and upcoming vote. Mr. Bowker then questioned the C.P.U. representatives about union dues and the election of officers. He confirmed that they stayed between 15 and 30 minutes; he "guessed" that the purpose of their visit was to ensure that he would vote for the C.P.U. He stated, however, that their visit actually produced within him a negative reaction to the C.P.U. because he felt that they had breached the silent period. While Mr. Bowker stated that they talked about the union and the vote he gave no particulars which would suggest that the C.P.U. representatives made a direct attempt to influence him to vote in their favour.
No employee other than Mr. Bowker was called by Local 2995 to testify to a visit from representatives of the C.P.U. during the silent period.
Mr. Marcel Lacroix is a representative of Local 2995. He was involved as the organizer from the outset of Local 2995's campaign for certification at the BioShell plant. Moreover, he appointed Local 2995's scrutineers for the two stage representation vote. One portion of the vote was held from 6:30 to 7:30 a.m. on the morning of September 14th and the other from 6:30 to 7:30 p.m. that evening.
Mr. Lacroix stated that when he returned to the plant for the evening vote at approximately 6:00 p.m. a few employees asked him why the C.P.U. had campaigned in the final days before the vote. Mr. Lacroix testified that each of the five or seven employees standing there told him that the C.P.U. had visited them at their respective homes on either the Monday or Tuesday before the Wednesday vote. This evidence, however, is hearsay and cannot be relied upon to establish that representatives of the C.P.U. actually visited any of the employees. If Local 2995 wanted to establish the existence of additional visits to employees it could have brought the individuals before the Board to so testify.
In response to the employees' questions Mr. Bowker replied that he understood from the Board’s notices that the silent period applied during the days preceding the vote. Mr. Lacroix asked the Board's Officer about the application of the silent period but was not given a definitive answer.
Mr. Lacroix then went to the lunchroom to proceed with the evening vote. At approximately 7:15 p.m. the balloting was concluded and the parties went to the company office to count the ballots. Prior to the counting of the ballots, however, Mr. Lacroix signed the following Consent and Waiver form:
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 14th day of September, 1983.
AND WE hereby waive any objection as to the regularity and sufficiency of the balloting.
A representative from both the C.P.U. and the employer also signed the Consent and Waiver form. Mr. Lacroix testified that he did not have any objection to the actual conducting of the vote so he signed the waiver. He stated that as the waiver did not mention the campaign, he thought it simply applied to the vote. On cross-examination Mr. Lacroix acknowledged that he was aware that the ballot box could have been sealed after the taking of the vote if he had had an objection.
Counsel for Local 2995 argues that the Board should draw a negative inference concerning the extent and purpose of the campaign conducted by the C.P.U. during the silent period from the fact that the C.P.U. did not call evidence. Counsel maintains that the Board should conclude from the C.P.U.'s failure to call evidence that the C.P.U's representatives probably visited each employee in the bargaining unit during the silent period and engaged in an intensive campaign. Counsel further maintains that the actions of the C.P.U. were designed to influence the outcome of the representation vote and that the breaches of the silent period were so serious that they warrant setting aside the September 14th vote.
Counsel for the C.P.U. argues that the evidence before the Board establishes no more than that representatives of the C.P.U. visited one employee during the silent period. He maintains that Mr. Bowker's description of the visit hardly suggests an intensive campaign to influence him to vote for the C.P.U. In fact, counsel argues, the evidence does not establish that the C.P.U. even asked Mr. Bowker for his vote. Council asserts that in these circumstances the Board should decline to draw a negative inference from the C.P.U. decision not to call evidence; in his view Local 2995 brought forward nothing for the C.P.U. to refute. Accordingly, counsel for the C.P.U. maintains that even if the silent period was applicable to this vote, the C.P.U. did not engage in conduct which would justify setting aside the vote.
Counsel for the C.P.U. takes the further position that Local 2995 lost its opportunity to object to the alleged pre-vote conduct because Mr. Lacroix signed the Consent and Waiver form in order to have the ballots counted immediately after the vote. At the time he signed the waiver he had already been informed that C.P.U. representatives had visited employees during the silent period. He was already possessed, in other words, of the facts which would later form the substance of his objection. Counsel emphasized that it was only after the vote had been counted and Mr. Lacroix learned that Local 2995 lost that he raised the objection based on the C.P.U. 's alleged breach of the silent period.
In Bermay Corporation, 11980] OLRB Rep. Feb. 166 the employer raised an objection to the regularity of the representation vote after the vote had been counted and therefore, after it had signed the consent and waiver form. The respondent submitted that the vote was prejudiced because of the participation of the union's president as scrutineer at the balloting. Prior to the vote the employer had objected to the participation of the union's president as scrutineer. The Board, however, ordered the employer to allow any scrutineer chosen by the union to enter the premises for the purposes of the vote indicating that it would be open to the employer to object to the union's choice of scrutineer after the balloting in the appropriate form. The employer, though, did not raise its objection immediately after the balloting; instead it signed a Consent and Waiver form which allowed the ballots to be counted. When the employer sought at the Board's hearing to raise its objection to the vote on the basis of the participation of the union's president as scrutineer, the Board held that it was not open to the employer to object to the regularity of the vote after having signed a waiver and after having learned of its defeat in the vote. At paragraph 11 and 12 of its decision the Board made the following statement:
Normally when all of the ballots are in the box following a representation vote the parties are given the opportunity of having the ballots counted immediately by the Board's Returning Officer. That way parties can learn right away what their collective bargaining situation will be as a result of the vote. A further advantage to an immediate count is that the result may render academic outstanding issues attaching to the application and eliminate the need for further litigation. The Board will not, however, count the ballots immediately after the vote unless it is clear that both parties are prepared to be bound by the result of the count. The Board therefore requires the parties to sign a "Consent and Waiver" form prior to counting the ballots. In this case the Consent and Waiver form presented to the parties 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 the 17th day of September, 1979.
And we hereby waive any objections as to the regularity and sufficiency of the balloting.’
Prior to the counting of the ballots the above form was signed by Mr. Dorfman for the union and by Mr. Brisbin, the employer's counsel, for the company.
The employer, by objecting now to the union's scrutineer, is attempting to go back on that understanding. Having first waived any objection to the conduct of the vote it is not open to the employer to complain about the regularity of the balloting now having learned that the result of the vote was favourable to the union. That is precisely what the Consent and Waiver form is designed to prevent. If the Company had wished to pursue its objection it should have requested that the ballot box be sealed and the ballots not be counted pending a ruling on the merits of its complaint. Having failed to do so it may not now deny its counsel's undertaking.
In the instant matter the union's representative Mr. Lacroix, signed the Consent and Waiver form and learned the outcome of the vote. Although Mr. Lacroix was aware of the alleged misconduct prior to signing the Consent and Waiver form, he did not raise his objection to the validity of the vote until after he learned that Local 2995 had lost the vote. Mr. Lacroix acknowledged that he was aware that he could have asked that the ballot box be sealed and the vote not counted in order to raise an objection to the vote. The Board cannot accept the suggestion that he did not understand that waiving "any objections as to the regularity and sufficiency of the balloting" would include an objection arising out of an alleged breach of the silent period.
Consistent with its decision in Bermay Corporation, the Board is of the view that Mr. Lacroix waived any objection he might otherwise have had to the regularity of the balloting when he signed the Consent and Waiver form to clear the way for the immediate counting of the ballots. No new facts came to his attention following the counting of the ballots which would have caused him to complain after rather than before signing the waiver. Moreover, the Board does not accept that Mr. Lacroix was so confused about the application of the silent period to the vote in question so as to nullify the effect of his failure to object in a timely manner.
Quite apart from the effect of Local 2995's signing of the Consent and Waiver form the Board is of the further view that the alleged misconduct is not of such a nature as to cause the Board to set aside the representation vote. The Board summarized the purpose of the silent period in Anderson Metal lndustries lnc., [1981] OLRB Rep. Apr. 415 at para. 9:
Its primary object is to ensure that, so far as possible, the vote will be conducted in an atmosphere of calm and that the employees who are to participate in the vote shall not be subjected to partisan pressures and influences as the voting day approaches. The Board's view has always been that at that point the individual employee should be left free to make a purely personal decision as to how he should vote.
In Treco Machine & Tool Ltd., [1981] OLRB Rep. Oct. 1503 the Board dismissed the employer's application to set aside the results of a vote on the basis of violations of the Board's silent period because the Board did not consider that the statements had unfairly influenced the outcome of the vote. At page 1507 of its decision the Board said,
Having regard to the nature of the impugned statements, the source of the speculation in which employees were engaging, and the person by whom the statements were made, the Board is not satisfied that the statements were such as can be said, on the balance of probabilities, to have unfairly influenced the outcome of this vote.
- In Tops Food Market, [1982] OLRB Rep. Dec. 1951, the concurring opinion of Board Members W. H. Wightman and S. Cooke paved the way for the Board's provisional policy lifting the silent period rule. At paragraph 4 of its decision the Board Members made the following comments:
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(1) of its Rules of Procedure.
The Board cannot conclude on the balance of probabilities that the C.P.U.'s representatives’ visit to Mr. Bowker during the silent period would have unfairly influenced the outcome of the vote notwithstanding that it constitutes a technical breach of the silent period. There’s no evidence to suggest that the C.P.U. representatives exerted direct pressure on Mr. Bowker. The only details of the conversation brought to the Board's attention were questions asked by Mr. Bowker on the union's dues and the election of officers. We can scarcely conclude from this that the C.P.U. unfairly influenced the outcome of the vote.
In the result, having regard to both the nature of the C.P.U.'s breach of the silent period and the untimely manner in which the Local 2995's objection was taken, the Board dismisses the application of Local 2995 to set aside the representation vote taken on September 14, 1983.
Accordingly, the Board affirms the results of the September 14th representation vote.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the intervener.
A certificate will issue to the intervener.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision, unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
DECISION OF BOARD MEMBER, W. H. WIGHTMAN;
As indicated at paragraph 20 of the majority decision, the Board would have dismissed the application even if Mr. Lacroix had registered his complaint by refusing to sign the waiver. It would have done so on the basis that the allegations even if accepted as proven were not of such a nature as to warrant upsetting the vote.
In this connection the evidence of the complaint's witness, Mr. Bowker, is telling. With respect to the visit to his home by two C.P.U. representatives Mr. Bowker “’guessed’ that the purpose of their visit was to ensure that he would vote for the C.P.U." (quoted words are from paragraph 8 of the Board decision). In the absence of their having said so, it seems to me reasonable for Mr. Bowker to have concluded they were not calling on behalf of the United Way. Whatever the C.P.U. representatives may have said the significant point is that the effect on Mr. Bowker was negative and that he so testified in an uninhibited fashion when called as a witness by the union opposing the C.P.U.
There is a long line of cases in which the Board has refused to order representation votes on the basis of the Board having been persuaded that employees have been intimidated to the extent that a government conducted secret ballot vote would not reveal their true wishes.
Mr. Bowker’s testimony stands for this proposition that it is more in keeping with human nature to expect that, if anything, intimidation before a vote is likely to result in the employee using the privacy of the voting booth as an opportunity to get back at the tormentor.