Joan Timothy v. London and District Service Workers' Union, Local 220, 1987 CanLII 3160

Ontario Labour Relations Board

[1987] OLRB Rep. December 1606

0292-87-R Joan Timothy, Applicant v. London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Respondent v. Strathroy Nursing Homes Limited, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.

DECISION OF THE BOARD; December 14, 1987

1. This is an application under section 57 of the Labour Relations Act ("the Act") for termination of bargaining rights. At the conclusion of a hearing on June 1, 1987, the Board directed that a representation vote be conducted in accordance with subsection 3 of that section. The parties then met and agreed that the vote should be conducted at the workplace on June 16, 1987. The Board gave the employees notice of the arrangements agreed to by the parties, and conducted the vote that day in accordance with those arrangements. There were nine persons named on the voters list prepared by the parties. All of them attended to vote except the applicant, Joan Timothy. The ballot box was sealed and the ballots not counted, pending resolution of two issues which had arisen in the meantime: whether June Robinson, whose ballot was segregated, was eligible to vote and whether special arrangements should be made to give Joan Timothy an opportunity to cast a ballot on another date. Those issues are dealt with in this decision.

2. The facts are not in dispute.

June Robinson

3. In May 1987, June Robinson expressed an intention to retire from her employment with the intervener. A retirement brunch was held during that month for her and one other employee. She was allowed to use up her five weeks' vacation entitlement and her sick pay credits before formally retiring. She began doing that on June 1, 1987, having ceased work at the end of May. She did not perform work for the intervener thereafter, nor was it expected that she ever would. When she attended to vote she was in the process of using up her vacation credits. She was "on the payroll" until July 15, 1987. Between June 1 and July 15, 1987, she remained on the seniority list, had union dues deducted from her pay and made claims for health benefits.

4. The decision directing the vote described eligible voters in the then customary language:

All employees employed in [the bargaining] unit on June 1, 1987, 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.

The Board has consistently interpreted a direction in this form to mean that a person must be an employee in the bargaining unit on both the initial eligibility date and the date the vote is taken in order to be eligible to vote: Canadian Westinghouse Company Limited, [1966] OLRB Rep. Sept. 372; London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461; Lapalme Nursing Home Ltd., [1987] OLRB Rep. Man. 406.

5. The issue in London District Crippled Children's Treatment Centre, supra, was whether a person employed in the unit on the initial eligibility date and actually at work on the date the vote was taken was eligible to vote, even though she had given notice one day before the vote was taken of her intention to terminate her employment two days later and had in fact left her employment on the day after the vote was taken. The Board found that she was eligible to vote if she was actually at work on the date of the vote, regardless of the length of time she intended or expected to remain employed after that date. The decision provided the following useful review of the Board's approach to voter eligibility:

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), 46 CLLC ¶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. In this case the respondent and the objecting employees invite the Board to adopt a different rule. They submit that if an employee has indicted an intention to leave the workplace he or she should not be permitted to influence the outcome of a representation vote. When pressed on the point, however, they are less than clear as to how that principle can be applied in any general way. Is an employee to be deprived of his franchise if, before a representation vote, he indicates an intention to leave his employment within three weeks of the vote? Or three months? Or six months? And is the result of a closely contested vote to be disturbed if an employee who voted is transferred, quits or is discharged within a day or two after the vote? The Board must obviously adhere to a rule that gives some certainty and finality to the granting of bargaining rights and which can be readily understood and applied by the parties.

19. 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 layoff without a definite date of recall have been held ineligible to vote (Rix Athabasca Uranium Mines 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).

20. 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. (1944), 46 CLLC ¶16,424). There appears to be no other recorded variation from the Board's rules.

21. 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 week 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 ¶18,057; McCord Corporation [1965] OLRB Rep. June 203; Domco Foodservices Limited, [1980] OLRB Rep. Jan. 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.

22. The Board has long recognized the right to vote of employees who are transitory, so long as they conform to the minimum requirement of the Board's two-pronged eligibility rule. If they are employed on the date the vote is ordered and continue to be employed to the date the vote is taken, they are entitled to vote. In J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100, the Board confirmed the eligibility to vote of a group of employees who fell within the eligibility dates but who in fact had been hired temporarily. They were strikers from a nearby plant who expected to return to their normal employment at some indefinite future date. And in University of Toronto, [1974] OLRB Rep. May 267, the Board confirmed the right to vote of all teaching assistants and research assistants employed by the University even though the vote was conducted in May, at the end of the academic year, and a turnover rate of 25 per cent to 35 per cent of the bargaining unit was projected for the next academic year.

23. 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 of 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.

6. Ms. Robinson's particular situation is not addressed in any decision to which we were referred, nor any of which we are aware. Counsel for the employer argues that since her "employment status" did not change until July 15th, she should be treated as having been an employee at all relevant times for the purpose of the vote; her intention to retire should have no more effect than did the intention to quit of the employee whose eligibility was dealt with in London District Crippled Children's Treatment Centre, supra. Counsel for the union says the distinction between that case and this one lies in the fact that Ms. Robinson was not at work on either of the relevant days. He argues that her position on those days was like that of an employee on indefinite layoff with no real prospect of returning to work. He made reference to the following decisions dealing with eligibility to vote of employees on layoff: Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723; SGS Supervision Services Inc.,[1982] OLRB Rep. Jan. 105; and, Hurdman Bros. Limited, [1983] OLRB Rep. Feb. 238.

7. As the decisions cited indicate, and as one would expect, decisions about a person's eligibility to vote turn on the actual substance of that person's relationship with the employer at the relevant time, not on the form in which they have structured it or the language they have chosen to describe it. The mere fact that someone is "on the payroll" is not conclusive that he or she is an employee for these purposes. The Board's general approach to the issue is clear. If the person in question is or would be an employee (as opposed to independent contractor or volunteer) when performing work for the employer, then the nature of the Board's assessment of whether a person was employed on a particular day depends on whether that person was actually performing work for the employer on that day. If so, then it naturally follows that he or she was an employee on that day, whatever may have been the expectation as to other days. If he or she did not perform work for the employer on the day in question, the person will be considered to have been an employee on that day for these purposes only if he or she had performed work for the employer prior to that day and was then expected to do so again at some time thereafter.

8. Ms. Robinson was not performing work for the employer on either the initial eligibility date or on the date the vote was conducted. She had performed work for the employer prior to those dates, but was not expected to do so thereafter. She was receiving payments and benefits from the employer on those dates but, as counsel for the employer conceded, this was entirely in the nature of compensation for work performed prior to those dates. These considerations all draw us to the conclusion that Ms. Robinson's relationship with the intervener was not such as to make her an eligible voter.

9. Counsel for the employer argued that Ms. Robinson should be treated as an employee for the purpose of the vote because dues were deducted from her paycheques and remitted to the union during the period after June 1, 1987, and because her rights under the collective agreement could still have been the subject of a grievance by the union. Dealing with the latter point first, we observe that a person may have an interest in the enforcement of a collective agreement without being considered an employee for the purpose of a representation vote. For example, a former employee receiving pension benefits may be interested in the enforcement of the current collective agreement if it incorporates the pension plan by reference or otherwise addresses the employer's obligation to pensioners. No one would seriously suggest, however, that in those circumstances pensioners would form part of the voting constituency in a termination application.

10. There is a certain attractiveness to the argument that a person subject to union dues deductions should have a say in whether the union's bargaining rights are terminated. The application of that argument to Ms. Robinson's situation, however, suffers from the same fallacy as the argument that she must have been an "employee" for the purposes of the vote because she was still being paid at the relevant time. The collective agreement is not before us, nor do we have any explanation of the reason for deduction of union dues. All we have is the agreement of the parties that such deductions were made and remitted to the union, together with the acknowledgement of counsel for the employer that the payments from which such deductions were made were all in the nature of compensation for past services, not current services. In the absence of any other explanation, we can only suppose that dues were deducted because the collective agreement required such deductions from payments of this type. If that is so, the dues deductions are referable solely to past services in the same sense as were the payments from which they were deducted. The Board's test for voter eligibility focuses on the existence at the relevant time of a relationship involving the performance or anticipated performance of work for the employer by the employee. The fact that these dues deductions occurred after June 1, 1987 does not detract from the conclusion that the requisite relationship between Ms. Robinson and the intervener vote had come to an end by that date.

11. We determine that Ms. Robinson was not eligible to vote.

Joan Timothy

12. Joan Timothy, the applicant is these proceedings, was involved in a serious car accident on June 13, 1987. As a result, she was unable to attend at the poll and cast her ballot on June 16, 1987. As of the date of our hearing on these issues she was still receiving treatment and unable to return to work or attend the Board's hearing. She was then capable of marking a ballot, however. She does not ask that an entirely new vote be conducted. She asks that arrangements which will accommodate her current disability be made to give her another opportunity to cast a ballot before any ballots are counted.

13. There is no question about Ms. Timothy's eligibility to vote on June 16, 1987, as she was and is expected to return to work when she is able. The only question is whether the Board should afford her another opportunity to vote.

14. A good deal of the Board's jurisprudence on the opportunity to participate in a representation vote is aptly summarized in Sack and Mitchell, Ontario Labour Relations Board Law and Practice (1985, Butterworths, Toronto) at pages 245 and 246:

3:7340 Opportunity to vote. Employees eligible to vote must be given an opportunity to do so. It is for this reason that the Board attempts to schedule the vote during normal working hours on a date when the plant or operation concerned is expected to function at normal full time capacity. If adequate notice of the vote is not given, or if operations are shut down or curtailed, or if most of the employees have been transferred to another location on the day of the vote, or if there are no employees, or only one, at work on the date of the vote, the Board may schedule a vote for another date. However, the Board will not order another vote merely because a more representative work force will be employed at some other time, or postpone a vote because the number of employees has been reduced, unless it is established that the reduction was effected by the employer in order to influence the vote. Inevitably, some employees will be absent on the day of the vote because of illness, vacation or work schedule, but, while they are eligible to vote on the day of the vote, no further opportunity will be afforded to them to do so. The Board has declined to order a new vote simply because there was a low turnout of voters or non-English voters did not vote because they did not understand or inquire into the import of the Forms, but it has ordered a new vote where no employees voted out of a reasonable fear that, if they did, they would be the only persons to cast a ballot.

[Emphasis added, footnotes omitted]

The decision cited by this text in support of the proposition in the emphasized portion of this passage is Ontario Cancer Foundation, Hamilton Clinic, [1983] OLRB Rep. Feb. 246.

15. We agree with counsel for the applicant and the intervener that the circumstances dealt with in Ontario Cancer Foundation, Hamilton Clinic, supra, are different from those in this case. There, an employee's inability to vote was complained of by the employer but not the employee affected, the cause of that inability was foreseeable by the employer when it agreed to the vote date and the problem was not raised until after the vote had been conducted and the ballots counted. Here, the cause of the inability was not foreseeable at the time vote arrangements were made, the problem was brought promptly to the Board's attention and the ballot box is sealed. Nevertheless, the emphasized portion of the above-quoted passage is an accurate statement of the Board's practice, and we have concluded that that practice should prevail here.

16. It is not hard to be sympathetic about Ms. Timothy's situation. There would not be the same sympathy, however, if she had missed the vote because she had slept in or got caught in traffic, or because her car had broken down or because she had something else she preferred to do. Would there be the same sympathy if Ms. Timothy had caused the accident in which she was injured? Would the Board await the outcome of criminal or civil proceedings in which that had been alleged? Would it undertake the trial of a motor vehicle negligence issue before determining the result of a certification or termination proceeding?

17. The twin goals of certainty and expedition in representation matters require that the times and places at which those eligible will have the opportunity to vote must be settled in advance and remain settled, so that all interested parties know in advance when their campaigns and the vote will be at an end and the Board is able to get on with determining the effect to be given to the results. The process would be substantially disrupted if the counting of ballots had to await inquiries into why eligible voters did not vote and whether some cause for their absence other than lack of notice or interference by one of the parties should entitle them to another opportunity to vote. In that regard, we have some doubt whether a further opportunity to vote should ever be given to some but not all eligible voters otherwise than on agreement of the parties.

18. Counsel argued that Ms. Timothy ought to be allowed to cast a late ballot because in a unit this small one ballot may be the deciding ballot. One ballot can be the deciding ballot in any representation vote. Neither the size of this unit nor the fact that she is the applicant in this application gives Ms. Timothy's inability to vote any special legal significance.

19. The intervener's initial written submissions contained arguments based on the Ontario Human Rights Code and section 15 of the Canadian Charter of Rights and Freedoms - Those arguments were not pursued by counsel for the intervener at hearing, so it is unnecessary to deal with them here.

20. We conclude it would not be appropriate either to afford Ms. Timothy a further opportunity to cast a ballot or to conduct a further vote.

21. We therefore direct that the ballots other than Ms. Robinson's be counted.