[1983] OLRB Rep. February 246
1685-82-R Canadian Union of Public Employees, Applicant, v. Ontario Cancer Foundation, Hamilton Clinic, Respondent.
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members F. W. Murray and H. Kobryn.
APPEARANCES: Helen O'Regan for the applicant; Murray G. Levis for the respondent.
DECISION OF THE BOARD; February 11, 1983
This was a hearing held to receive representations regarding a vote which was conducted by the Board pursuant to an application for certification.
The respondent submitted the following by letter to the Board dated January 12, 1983:
Dear Mr. Aynsley:
A representative [sic] vote was held on January 7th at the Hamilton Clinic of the Ontario Cancer Foundation. One of the employees eligible to vote was to be on vacation out of the country on that date, was anxious to vote and expressed the desire to attend an "advance poll" if such could be arranged.
We would ask that you consider the following circumstances:
The Board's Voting Notices were not received until Thursday, December 30th although from information on the envelope it would appear as though they were to have been delivered on December 28th. The notices provide no information on the Board's 'position' re advance polls.
As part of the New Year's holiday, the Hamilton Clinic was closed on December 31st.
As part of the New Year's holiday the Board's offices were closed on January 3rd.
The Board's 'silent period' commenced at midnight January 3rd and any action to arrange an advance poll beyond that date could obviously be considered as a breach of the requirement.
Mr. Blenkey will return from his vacation and to work on January 17th beyond the Board's closing date of January 14th for representations.
The purpose of this letter is to request that the Board, in the light of the limited time available to him as outlined above, extend the closing date to permit Mr. Blenkey to make his presentation to the Board within a reasonable period following his return.
Yours very truly,
"Murray G. Levis"
Personnel Officer
Mr. John Blenkey was the employee who could not vote and could not make representations until after January 14, 1983, the date set by the Board by which the parties to the proceeding must make representations. Neither Mr. Blenkey nor any other employee was a party to the original application for certification nor did he or any other employee have any status, as party, at the vote. In view of this the Board considered the respondent's letter of January 12, 1983 to be a statement of its own position and heard evidence from Mr. Blenkey on the basis that he was a witness of the respondent. It was explained to Mr. Blenkey and other employees who attended the Board's hearing on February 4, 1983, that neither he nor they were parties to the proceedings.
It was an undisputed fact that following the Board's decision, dated December 20, 1982, ordering a vote the parties were contacted regarding a suitable date, place and time for such vote and that Mr. Murray Levis, Personnel Officer of the respondent, and Mr. Peter Douglas, representative of the applicant, ultimately agreed between themselves that January 7th was a suitable date for the vote. Mr. Levis indicated that prior to agreeing to the date he checked with the respondent's office manager, Mrs. Suquires, on whether any date after January 5, 1983 was suitable. She indicated it was. Mr. Levis first realized the respondent "had a problem" when sometime on December 30th he learned that an employee in the bargaining unit wanted to vote but would be away because of vacation. This was the first time he considered it necessary to have an advance poll. He did not call the Board to request one because he believed a Mrs. Boutilier, assistant to Mrs. Squires, was calling the Board in this regard. He acknowledged he did not direct her to do so. He also said he did not call the Board because he was not aware an advance poll was a possibility. He claimed that if there had been more days between Friday the 31st of December and Friday, January 7th, which were working days and not included in the silent period, he could have done something to learn about getting an advance poll. The significance of the silent period is that Mr. Levis interpreted this to mean that an advance poll could not have been held prior to January 7, 1983. He therefore did not call the Board regarding this matter on Tuesday, Wednesday or Thursday of the following week. Mr. Levis also did not phone the applicant.
Mr. Blenkey testified that he left for his vacation on the night of the 6th and did not return until the 17th of January. He had known since October of 1982 that he would be permitted to be away during this time. He first knew that he would be missing the vote on the 7th of January when he saw the posted Notice from the Board. He went to see Mrs. Squires immediately but in her absence, due to vacation, he told Mrs. Boutilier about his situation. Mrs. Boutilier advised him on Monday or Tuesday that "Head Office" had said there could not be an advance poll. He was also advised by her that the union indicated an advance poll could not be held without its agreement and there was no such agreement. After this point he did not do anything further because he did not know he could. He did not request or contact Mr. Levis prior to or during his vacation to make representations to the Board. Mr. Levis' letter of January 12, 1983 "came to him" when he got back from vacation. He could not recall how.
The respondent did not offer any testimony from Mrs. Squires or Mrs. Boutilier. The Board has on file the Certificate of Conduct of Election which Mr. Levis confirmed was signed by Mrs. Squires (who by that time had returned from vacation) on behalf of the respondent. The text of the Certificate states:
Place of Election — Hamilton, Ontario
We, the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the time and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.
"R. Alexander"
For Applicant
"C. E. Squires"
For Respondent
"J. Bright"
Returning Officer
There is no evidence that representations were made on January 7th to the Returning Officer by the respondent regarding Mr. Blenkey's inability to vote. Indeed, no complaint was raised regarding this until the letter of January 12, 1983 was sent to the Board and Mr. Blenkey himself had ceased any effort to vote by January 2nd or 3rd. The results of the vote were made known to the parties on January 7, 1983.
The Board has determined that the vote, as conducted, should stand. Mr. Blenkey should not be given an opportunity to vote either singly or as a part of a new vote. The most important consideration in coming to this conclusion is the fact that the respondent had input into the date the vote would be held and could have, through careful checking, avoided this situation. The reason why the respondent and applicant and any other party are given the opportunity to have such input is to have the best date, within reason, selected for all parties concerned. There will always be times when all employees cannot vote because of absences due to illness, vacation, etc., but the effort each party must make is to try to find a date when the least number of employees are absent. Even the best effort does not always guarantee employees being 100% present on the day of the vote. The Board seeks the agreement of the parties to ensure that parties are satisfied between themselves that the optimum date has been selected. What appears to have happened here is that the respondent did not make a thorough enough assessment, for whatever reason, of the acceptability of January 7th.
The second reason why the Board is refusing the respondent's request is because the respondent failed to take the steps promptly to petition the Board to do something about Mr. Blenkey's situation. The explanation may be a lack of sophistication or misinterpretation of the silent period until the day of the vote. However, it is important to note that the respondent made no complaint even on the day of the vote either immediately before or after the vote itself. It waited until 5 days later to write the Board. The Board was offered no explanation for the lack of action on the day of the vote and the time lag between the vote and the letter of January 12, 1983.
Considering all the above therefore, the Board is not prepared to accede to the respondent's representations as set out in its January 12th letter.
On the taking of the representation vote pursuant to the Board's direction of December 30, 1982, more than fifty per cent of the ballots cast were cast in favour of the applicant.
A certificate will therefore issue to the applicant for:
All employees of the respondent in the City of Hamilton, save and except supervisors, persons above the rank of supervisor, persons covered by subsisting collective agreements, registered nurses and professional treatment and research staff.
- 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.