Ontario Labour Relations Board
[1986] OLRB Rep. July 962
0599-86-R Ontario Catholic Occasional Teachers' Association, Applicant, v. The Halton Roman Catholic Separate School Board, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.
DECISION OF THE BOARD; July 25, 1986
1This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken. By order dated June 6, 1986, the Board authorized a Labour Relations Officer to confer with the parties as to their positions on the description and composition of an appropriate bargaining unit and a voting constituency for the purposes of this application, to examine the records of the applicant and of the respondent for the purpose of obtaining the information required the Board under subsection 9(2) of the Labour Relations Act ("the Act"), to confer with the parties with respect to a voters' list and vote arrangements for the purpose of any vote that might be directed by the Board and to report to the Board thereon. The Officer so authorized met with the parties on June 18, 1986. In her report on that meeting, she noted that a Form 9 Declaration has not been filed by the applicant, and that counsel for the applicant had indicated that a Form 9 Declaration filed in a previous application "was to have been transferred to this file." The Officer also noted that counsel for the applicant had requested, and counsel for the respondent had agreed, that any pre-hearing representation vote be conducted by mail.
2The Registrar was then directed to, and did, write to the solicitors for the applicant and the solicitors for the respondent inviting their further written submissions on certain questions, the first of which was this:
In considering whether there is an appearance of membership in the required percentage under subsection 9(2) of the Act, can the Board give any weight to membership documents which are nor the subject of a Form 9 Declaration filed in and made with specific reference to the instant application?
In this respect, the attention of counsel was directed to the Registrar's letter to counsel for the applicant of June 6, 1986, the different application date in the Board file from which membership evidence had been transferred and the Board's decisions in A. P. Woodworking Shop, [1967] OLRB Rep. May 153, Precision Automotive Co. Limited, [1967] OLRB Rep. Nov. 740; Joifre Lapointe & Sons Limited, [1971] OLRB Rep. Sept. 621 and October 629; Wiltshire Catering, [1975] OLRB Rep. Dec. 916 and Westgate Nursing Home Inc., [1981] OLRB Rep. Apr. 503.
3In his written submissions on this issue, counsel for the applicant quotes from the Board's decision in Canadian General - Tower Limited, [1968] OLRB Rep. Oct. 712 at 715. The quoted passage begins with these words:
[Form 9] Declaration concerning membership documents is not, of itself, membership evidence……..
Counsel then makes this submission:
In the instant application, the Board was requested to transfer all the membership evidence to the new file, which includes in our submission, Form 9 evidence substantiating the evidence of the cards. If the Board had intended to require a new Form 9 relating to the membership cards transferred, it should have said so explicitly. To do anything else would be a gross abuse of administrative discretion.
4The Board's requirement of a fresh Form 9 Declaration when membership evidence is transferred from one file to another is well settled. As the Board stated in Westgate Nursing Home Inc., [1981] OLBR Rep. Apr. 503:
- An applicant who requests the Board to transfer membership evidence from one certification application to another must file with the Board in the latter application a Form 8 [now 9] Declaration concerning the transferred membership evidence (see, Joifre Lapointe & Sons Limited, supra, and A. P. Woodworking Shop, supra).
Rule 6 of the Board's Rules of Procedure provides:
- The applicant shall, not later than the second day after the terminal date for the application, file a declaration concerning membership documents in Form 9.
Having regard to the language of paragraph 2 of Form 9, a declaration prepared for the purposes of a previously filed application could not comply with the requirements of the rule: A. P. Woodworking Shop, supra. The Board's requirement of a fresh Form 9 Declaration was made clear in this case in the Registrar's letter of June 6, 1986 to the applicant. That letter noted that:
As requested, 51 combination applications for membership receipts previously filed with the Board (our File No. 0414-86-R) have now been transferred to this application.
The letter then went on to note that a blank Form 9 Declaration was enclosed and that
Form 9 must be received by the Board or mailed Registered Mail to the Board on or before June 18, 1986.
We reject the suggestion that by acting in the expectation that applicants for certification will read its rules and its Registrar's letters and act accordingly, the Board commits a "gross abuse of administrative discretion."
5In Northridge Plastics Limited, [1986] OLRB Rep. July 1011, the Board had to decide whether it could order a pre-hearing representation vote when the Form 9 Declaration filed by the applicant was defective because it had not been signed by the declarant and did not, therefore, satisfy the requirement of Rule 6. In that case, the Board made these observations at p. 1012:
Rule 82(2) empowers the Board to enlarge the time prescribed for filing a Form 9 declaration. In applications other than those in which a pre-hearing vote has been requested, the Board has generally permitted filing of the Form 9 declaration at any time up to and including the hearing of the application: The intelligencer, [1976] OLRB Rep. Mar. 120; Wiltshire Catering Division of J. V. Wiltshire Ltd., [1975] OLRB Rep. Dec. 916; Westgate Nursing Home Inc., [1981] OLRB Rep. Apr. 503. When the application reaches the point at which the Board must determine whether it is "satisfied" that a particular percentage of employees in the appropriate bargaining unit were members of the applicant trade union at a particular time, the Board will not act on membership evidence which is unsupported by a properly completed Form 9 declaration. In an application of this sort, that question arises after a pre-hearing representation vote is conducted, as appears from subsection 9(4) of the Act:
9(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 7(2).
- The question we must address at this stage is not whether we are "satisfied" that the applicant enjoys a particular level of membership support, but only whether it "appears" to us that there is membership support for purposes of subsection 9(2) of the Act sufficient to permit taking the administrative step of conducting a pre-hearing representation vote. The test in subsection 9(2) is whether the requisite appearance emerges from "an examination of the records of the trade union and the records of the employer ..." Combination application for membership and receipt cards are "records of the trade union." Neither the absence of a From 9 declaration nor the presence of a defective one can diminish either the character of cards as records or the appearance of membership they create. Accordingly, subsection 9(2) does not appear to require that the Board examine or even have before it a Form 9 declaration at the time it determines whether to direct a pre-hearing representation vote. Of course, if no Form 9 declaration is filed or accepted for filing before the Board makes its determination under subsection 94), or if the Board then finds that the Form 9 declaration filed by the applicant is unreliable, the application will be dismissed at that point, and that is so even if a majority of votes were cast in favour of the applicant in the pre-hearing representation vote: W & H Voortman Limited, [19751 OLRB Rep. Aug. 605. Thus, while the Board can and should direct a pre-hearing representation vote in an otherwise appropriate case when a Form 9 declaration has not yet been filed or, if filed, is obviously defective, it would be prudent in such circumstances for the Board to direct that the ballot box be sealed unless and until an apparently proper Form 9 declaration is filed on consent of the parties or with leave of the Board.
We adopt the Board's analysis in Northridge Plastics Limited, supra. The failure to file a Form 9 declaration made with specific reference to the instant application does not prevent our acting on appearance created by the application for membership and receipt cards transferred to this application, however fatal that omission may be if it remains unremedied when this application comes on for hearing.
6It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
7The Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All occasional teachers employed by the respondent in its schools in the Regional Municipality of Halton, save and except employees in bargaining units for which any trade unions held bargaining rights as of May 30, 1986.
For the purpose of clarity, we should note that in this description, the term "occasional teacher" has the meaning assigned to it by clause 1(1) 31 of the Education Act, R.S.O. 1980, c.129, as amended. This voting constituency represents the unit of employees of the respondent which the applicant and respondent agree is appropriate for collective bargaining. The question whether the appropriate bargaining unit is to be described in that way is, of course, one which is dealt with only after the vote is conducted, when all interested persons, including employees, are given the opportunity of a hearing to deal with the matters described in subsection 9(4) of the Act. The parties and the Board may wish to consider whether the phrase "in its schools" is surplusage which might attract avoidable arguments about what a "school" is.
8All employees of the respondent in the voting constituency on June 16, 1986, who have neither voluntarily terminated their employment nor been discharged for cause between that date and the date the vote is taken will be eligible to vote.
9Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
10Having regard to the Board's observations in Northridge Plastics Limited, we direct that the ballot box be sealed and the ballots cast not counted unless and until an apparently proper Form 9 declaration is filed by the applicant with leave of the Board. In his written representations on the question of the Form 9 declaration, counsel for the applicant notes that the Board could exercise its discretion to allow late filing of a proper declaration. Counsel for the respondent has not opposed the request for leave implicit in this submission; indeed, counsel for the respondent filed no submissions in response to the Registrar's request. In these circumstances, we hereby grant leave and extend the time for filing by the applicant of a Form 9 declaration in this application to two weeks from the date of release of this decision.
11The second matter the Registrar raised with counsel by direction of the Board concerned the applicant's request that the requested pre-hearing representation vote be conducted by mail. Counsel were invited to address the following questions:
What concerns in this case favour conducting a vote by mailed ballot?
Why should any pre-hearing representation vote in this case not be conducted in the ordinary manner, with polls held at one or more of the respondent's locations at reasonable times, on notice given both in the ordinary manner and by mail?
Whatever method of balloting may be selected, is it appropriate to conduct a vote of occasional teachers during the months of July and August?
With respect to the third question, counsel for the applicant submits that it would not be appropriate for a vote of occasional teachers to be taken in July or August, and suggests that the vote be held during the first week of September. Counsel's submissions with respect to the other two questions are as follows:
The nature of the work of the employees in question is temporary and the place and hours of work can and usually do vary from day to day. Occasional teachers have no regular place of work to which they normally report, and when working could be at any of the Board's thirty schools. The Board's regular method of holding the vote at the employees' place of work, could in this case require as many as thirty different polling places, and then would reach only those occasional teachers at work on that day at those schools. Teachers who were not working in the Board's schools or were working in schools where there were no polling stations, or were for other reasons unable to attend, would be deprived of their vote in this matter.
Conducting a vote by mailed ballot eliminates the problems of multiple polling places and the requisite staffing of them, and ensures that the ballot reaches the teacher or his or her home address, thus enabling his or her participation in the process.
With regard to all of the submissions made to Issue #2 it is important to recall that the York decision mentioned above [The Board of Education for the City of York, [1985] OLRB Rep. May 7671 has already decided the issue of a mailed ballot. Mail-in ballots then should not be refused through administrative decisions, but through a decision of the Board.
12With respect to the first paragraph of counsel's submissions, we acknowledge that there will be some difficulty in adapting the Board's ordinary approach to certification applications to matters involving occasional teachers. There is, for example, a major difficulty in determining which persons will be considered to be occasional teachers "employed" by a respondent school board on the application date or at any other relevant time. The Board struggled with that problem in The Board of Education for the City of York, [1985] OLRB Rep. May 767. The eligibility test it devised - all those on the school board's list of individuals actively interested in employment who have worked at least one day in the preceding twelve month period - was a response to the need for a "bright line" test to determine which occasional teachers' employment attachment to the school board is sufficient to warrant taking their views into account, when the Board's usual tests would ordinarily enfranchise only a fraction of the identifiable individuals whose employment might be affected by a certification decision. As a result of adopting that test, one would expect that a majority of eligible voters will not be at work for the school board on any day on which a vote by poll might be conducted. Does this compel the use of the postal system as a substitute for polling booths?
13It is seldom, if ever, the case that all employees eligible to vote are at work when a representation vote is conducted by poll at their place of work. Even in a unit of full-time employees, on any given day there are often eligible voters who are not at work because they are not scheduled to work. They may be on vacation. They may be on a short or long term leave for any number of reasons, including sickness or pregnancy. They may be on temporary (as opposed to indefinite) layoff. Obviously, the number of eligible voters who may be absent from work when a poll is conducted will increase when a unit of part-time workers is involved. In these cases, voters who are not scheduled to work on the day of the vote are not disenfranchised - they are merely expected to attend at their place of work if they wish to exercise their franchise. In the ordinary course, therefore, an otherwise unnecessary trip to their work place is not thought to be too much effort to expect from employees who wish to have their wishes taken into account in representation matters.
14As counsel notes, occasional teachers ordinarily have several potential work places. Presumably, a central location (or locations) can be identified such that the effort required to travel to it (or one of them) is not substantially different from the effort which might be involved in travelling to work on a teaching assignment. Apart from the fact that there are more of them as a percentage of the total, those occasional teachers not actually at work at such a central location are in no different position from that of employees in other cc'ntexts who are not at work on the day of a vote, with this exception: some of them may have occasional teaching assignments at locations other than the central location which might prevent them from attending a poll conducted during their working hours. This problem, too, occurs in other contexts - with truck drivers, for example, and other employees whose work duties take them away from the otherwise logical polling place during working hours. The answer in those circumstances has been to ensure that the polls are open at times outside those work hours, so that employees in that position may also attend and cast their ballots.
15It seems to us that resort to something resembling the Board's ordinary vote procedure need not require that polls be conducted in every school, nor would that disenfranchise individuals who could be described as actively interested in employment as an occasional teacher, if polls are open both during and outside the ordinary hours of work of occasional teachers. It would, however, require of nearly all eligible voters that they make an effort roughly equivalent to the effort involved in attending at work, in order to cast a ballot.
16The second paragraph of counsel's submissions addresses the problems of administering the vote. It presumes that a mailed ballot vote is administratively simpler than a vote by poll. In fact, the Board's experience with mailed ballot votes during the last year is that such votes seem to consume considerably more of the Board's limited administrative resources than would a vote in which notice is given to eligible voters by mail and the actual vote is conducted in the ordinary manner by means of polls at one or a small number of central locations. The difference in required time and effort results from the vastly increased paperwork necessitated by the inability of the Board (and the parties' scrutineers) to make a visual identification of each person to whom a ballot is given. Among other things, this requires coding each of the preaddressed, postage paid return envelopes in which voters are instructed to return ballots. Records of the address to which each envelope is sent must be maintained. Coding on envelopes received must be noted and cross-checked to prevent duplication. Interestingly, in the 7 such votes for which data were available at the time of this decision, this coding was deliberately obliterated or cut off by over one per cent of those who mailed ballots to the Board, thus effectively spoiling the ballots they returned. The mailed ballot is by no means administratively simpler than a poll vote.
17Apart from the administrative cost, mailed ballot votes suffer from a number of obvious frailties. If the parties' record of a voter's address is inaccurate, that voter will be disenfranchised. If, as has regularly happened, the parties disagree on the correct address of an employee, there is no easy way to resolve the problem, since only one ballot can be allocated to that voter. By contrast, if the mails are used only to give notice of the vote, that sort of dispute is easily dealt with by sending notice to every address supplied by either party. A voter who has moved and learns of the vote "by the grapevine" can simply go to the poll, if there is one. If the vote is conducted by mail, however, it may be more difficult for that voter to vote. How does she retrieve the ballot sent to her old address? Should the Board give her another ballot? What if the ballot sent to her old address is marked and returned? Neither the Board nor the parties can be certain that ballots returned to the Board were cast by eligible voters, nor can eligible voters be certain that the ballots they cast will be received by the Board by the specified deadline (or at all.) Finally, the mailed ballot vote may well be perceived by voters as less secret than the poll type. This may explain the cases in which ballots were spoiled as a result of the obliteration or removal of coding on return envelopes.
18In the third paragraph of his submissions counsel submits that the decision in The Board of Education for the City of York, supra, "has already decided the issue of a mailed ballot." In that case, the Board reviewed the need to give applicant trade unions the names and addresses of eligible voters so that each of the parties will have an equal opportunity to inform voters and all voters, in turn, can be involved in the campaign leading to the vote. After a careful analysis of the reasons for so doing, the Board in the York case decided that:
- For these reasons then, when a application for certification in respect of occasional teachers is made under section 9 of the Act (the pre-hearing vote section), or a vote of occasional teachers is directed under section 7, the respondent employer will be required to file with the Board a list of the names and addresses of all employees known to it to be in the voting constituency. Such list will be available to any person or party with a direct interest in the campaign.
Then, without having addressed the matter earlier in its decision, the Board added:
Further, since most of the occasional teachers will be geographically dispersed, and have no need to visit a particular school, the representation vote should ordinarily be conducted by means of a mailed ballot. While this may build in a little delay, it will enhance the voters' opportunity to conveniently indicate their choice for or against trade union representation.
At the time that was written, no votes of occasional teachers had ever been conducted by mail, and the number of occasions on which the Board had previously conducted a vote by mail could have been counted on the fingers of one hand. The mailed ballot vote had been used when the job duties of eligible voters had taken them outside the country and when the number of voters was small and they were located in very remote areas of the province. It had never been used in cases involving a large number of voters to spare them the trouble of an otherwise unnecessary trip to work. The panel in the York case did not address the potential frailties of a mailed ballot vote. The Board's experience in the period of roughly one year since the Board began conducting occasional teacher votes by mail was not then available to it, so the panel in the York case could not and did not address the problem of administrative costs which such votes have created, nor could it then assess whether the imagined benefits of this method of voting could actually be attained.
19If convenience were the only barrier to a high participation rate in occasional teacher votes, one would expect a very high participation rate in mailed ballot votes. In the seven cases mentioned earlier, however, only about 59 per cent of ballots mailed out were returned to the Board, and nearly two per cent of those were spoiled by the senders' failure to follow accompanying instructions. In no case did the participation rate reach or exceed 70 per cent; in one case only 25 per cent of ballots mailed were returned to the Board. Although the participation rate in all but one of those seven votes was higher then was experienced in the poll vote conducted in the York case, it is not clear whether the improvement results from the subsequent practice of mailing the ballots or from the subsequent practice of giving the applicant trade union the mailing list.
20In the York case, the Board refused to follow an earlier decision on the eligibility issue, saying:
as Professor Laskin (as he then was) observed in Re C.G.E. (1959), 9 L.A.C. 342, the first look at a problem is not necessarily the correct look
In retrospect, it seems to us that the Board's broad pronouncement on the superiority of mailed ballots in certification applications affecting occasional teachers may have been premature. While we do not suggest abandoning the mailed ballot for all but the most extreme cases, it seems to us that the use of mailed notice and central polls should be seriously considered in each case. Without some experience of this method of voting in cases where the union has been given voters' names and addresses in advance in accordance with the York decision, there will be no way of assessing whether the more complex mailed ballot vote procedure is so clearly superior as to warrant continuing to incur its higher costs. Unless specifically addressed in the decision directing the vote, the method of voting in cases involving occasional teachers should be a matter for the Registrar. The Board's policy that notice of the vote be given by mail to eligible voters and that the names and addresses of those voters be given to the applicant are unaffected by this decision.
21In this case, we see no reason to direct that the pre-hearing representation vote herein be conducted by mail.
22The matter is referred to the Registrar.