[1987] OLRB Rep. May 768
2999-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW - Canada), Applicant v. Ontario Engineered Suspensions (Blenheim) Ltd., Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members I. M. Stamp and J. Redshaw.
APPEARANCES: L. N. Gottheil, Glen Myers, Gilles Desjardins, Real Desjardins, Doug Sales and Greg Van Gassen for the applicant; Brian P. Smeenk, George Lansens, Barbara Chapple, Dave Sykes and William Morrison for the respondent.
DECISION OF THE BOARD; May 20, 1987
This is an application for certification in which a pre-hearing representation vote was conducted. Thirty-seven ballots were cast in favour of representation by the applicant trade union, thirty-six were against and one was spoiled. The respondent employer asks that these results be set aside and a new vote ordered because of the conduct of an employee supporter of the union in advising another employee that he was not eligible to vote. That employee was eligible to vote, but did not do so. Had he done so, the employer argues, the union might not have won the vote.
The employer's request was first made in its counsel's letter to the Board dated March 20, 1987. That letter is the only statement of desire to make representations which had been filed in this matter. It was received by the Board on March 24, 1987, having been sent by ordinary mail. In accordance with subsection 70(2) of the Board's Rules of Practice, March 20, 1987 was the deadline for filing of statements of desire to make representations about the representation vote or any other issue in this application. This deadline was clearly indicated in the Board's notices to the parties and employees of the returning officer's report. At the hearing scheduled to consider the objection set out in this letter, counsel for the union argued that the Board should not entertain the objection because it had not been filed in a timely manner.
We invited and heard argument with respect both to this matter of timeliness and to the question whether, assuming the truth of the facts alleged and conceded by its counsel, there was any basis for the result contended for by the employer. The facts alleged and conceded by counsel for the employer are set out in the next three paragraphs.
After this application was filed, the Board authorized a labour relations officer to confer with the parties on matters relating to the applicant's request for a pre-hearing vote and obtain certain information, including the parties' positions on the contents of a voters list and on the vote arrangements which would be appropriate if the Board were to grant the request. D.B. is an employee of the respondent who has been away from work on workers' compensation since August 1986. The parties agreed on a list of employees who would be eligible to vote if a vote were directed in the voting constituency corresponding to the bargaining unit which they agreed would be appropriate in this application. D.B.'s name appeared on that list, and no one suggests it should not have. Nevertheless, Mr. Myers, the union's representative at the meeting with the labour relations officer, left that meeting believing D.B. was not eligible to vote. G.D., an employee supporter of the union, communicated Myers' belief to D.B. some time before the day of the vote. 'The employer does not allege that G.D. was acting on behalf of the union in so doing.
After the Board subsequently directed that a pre-hearing representation vote be conducted, the list of employees agreed to by the parties was used as the voters list. As we have already noted, D.B.'s name was on that list. Copies of that list were posted in the work place along with the Board's Notice of Taking of Vote, in accordance with the arrangements agreed to by the parties at their meeting with the labour relations officer. The vote was conducted by the Board at the work place on March 12, 1987. Polls were open between 6:30 and 7:15 o'clock in the morning and again between 2:30 and 3:45 o'clock in the afternoon. Some time after the morning poll closed, Mr. Myers learned that the Returning Officer considered D.B. eligible to vote. Mr. Myers then asked the employee who was acting as the union's scrutineer to have D.B. contacted and told that he was eligible to vote. As a result, G.D. contacted D.B. at his home by telephone and told him that he was considered eligible to vote. The employer does not challenge the union's assertion that this conversation occurred at about noon on the day of the vote. Counsel for the employer says D.B. would testify that he was confused by this call and attempted to contact Barbara Chapple, the respondent's controller, by telephone. She was not available to answer his call, and he did not request that his call be returned. D.B.'s home is about 10 miles from the respondent's plant. His wife had the family car with her at her place of work that day.
D.B. did not attend at the plant to vote. He spoke to Ms. Chapple the following day by telephone to discuss his fringe benefits. It was when this conversation turned to the vote conducted $he previous day that the employer, through Ms. Chapple, first learned of the conversation G.D. had had with D.B. about his eligibility to vote. After discussing the matter with counsel, Ms. Chapple and Mr. Lansens, the respondent's president, visited D.B. on March 14th to get further particulars. They thereafter instructed counsel, who drafted his letter of March 20th and asked his secretary to send it to the Board by registered mail that day. Had she registered the letter there would have been no question of timeliness, since a document sent to the Board by registered mail is deemed filed when mailed, whereas filing by any other means, including ordinary mail, takes place only when the document is received by the Board.
On the matter of the timeliness of its objection, counsel for the employer argues that the Board should extend the time for filing of objections in the exercise of its discretion under subsection 82(2) of the Board's Rules of Procedure, as the clerical error here has caused no actual prejudice or delay. In opposing that request, counsel for the union drew our attention to the observations of the Board in H.D. Lee Company of Canada Limited, [1975] OLRB Rep. Jan. 55. In that case, an employer's statement of desire to make representations about alleged union misconduct in connection with a representation vote had been filed on the day after the deadline specified by what is now section 70 of the Board's Rules of Practice. At paragraph 17 of its decision, the Board said
It is important to note that the Board may finally dispose of an application for certification at the conclusion of the six day period following the posting by the employer of both the Returning Officer's Report and the relevant form. And it follows that if the Board's procedure are [sic] to remain expeditious the Board must be able to rely upon its own deadlines. In other words, parties must be encouraged to comply with time limits set out in the Board's Form and Rules of Procedure or otherwise the entire administrative process will become ineffectual through lethargy.
After acknowledging that the Board should not take an unduly technical view of its procedures,
and that it must balance the need for informal flexibility against the need for expedition, the Board observed at paragraph 19 of its decision that
the test of prejudice does very little for administrative expedition and certainty, and were it applied to fundamental procedural documents in matters before this Board administrative speed would become history.
Following the Board's decision in Pure Spring Canada Ltd., [1964] OLRB Rep. Dec. 476, the Board concluded that the test to be applied in determining whether to entertain an untimely objection in connection with a representation vote was whether, even with the exercise of reasonable diligence, the factual basis of the objection would not have come to the attention of the objector until after the time for making objections had expired. At paragraph 21 of its decision, the Board explained that
in cases of this kind dealing with a fundamental procedure of the Board, the Board must give paramount consideration to the speed and certainty of its procedures. Prejudice to another party is not a test that can accomplish this. Such a test does not provide a bright line for the challenging of documents and prejudice may have little or no relation to administrative expedition. Thus the test in this area emphasizes the reasonable diligence of the party asking the Board to amend the time limits and because the applicant failed to adduce evidence that would meet this test, the charges cannot be entertained.
In the matter before us, counsel for the union argued that the employer had not satisfied the reasonable diligence test, especially when the allegations set out in the letter of March 20th were based on an investigation completed six days earlier.
We agree with counsel for the union that the reasonable diligence test is the test which ought to be applied in this case to determine whether to entertain the employer's untimely objection and that the employer has not satisfied that test. We are also satisfied that we would not set aside the vote even if the employer's objection were timely and the facts alleged in support of it were proved to be true.
It is important to observe that the objector here is the employer, not the employee whose circumstances are the subject matter of the objection. D.B. had notice of his opportunity to object, but did not do so. He was present at our hearing. He remained silent when, after two employees sought to make submissions, we asked whether any other employee present wished to make submissions. It may be that the objection made by the respondent would not have been successful if made by D.B. on his own behalf. In Harold's Furs, [1983] OLRB Rep. Nov. 1843, for example, the Board refused to set aside a vote at the request of employees who had not voted because their supervisors advised them there were not eligible to vote. Some of the reasons for that decision are certainly applicable here. The question before us, however, is not whether D.B. would have been entitled to the relief sought had he made the objection now before us. The employer has no status to complain on behalf of its employees or any of them nor, we should add, did counsel for the respondent purport to do so here. The question we are addressing is whether the employer would be entitled to the relief it seeks if the facts it alleges were true.
Among the matters discussed by the parties before the vote was conducted was the manner in which notice of the conduct of the vote would be given to those employees who were or might be eligible to vote. The respondent agreed that notice should be given by posting a copy of the Board's Notice of Taking of Vote in Form 69, together with a copy of the voters' list, at each of three locations in the work place. The respondent effected these postings as contemplated by the arrangements to which it had agreed. It has no complaint about the content of the notices or the length of time they were posted prior to the vote. The Form 69 notices posted in the work place contained this statement, among others:
The Returning Officer is the proper person to whom inquiries should be directed by employees who are in doubt as to their eligibility to vote or as to the voting procedure.
The following notation appeared in large red capital letters on each page of each voters list posted beside each Notice of Taking of Vote:
ANY EMPLOYEE WHOSE NAME DOES NOT APPEAR ON THE VOTERS' LIST OR CHALLENGED VOTER WHO FEELS THAT HE OR SHE IS ENTITLED TO VOTE SHOULD TAKE THIS MATTER UP WITH THE RETURNING OFFICER DURING THE TAKING OF THE VOTE.
As we have noted earlier, D.B.'s name did, in fact, appear on the voters lists posted in the work place.
Whatever might have been said by D.B. had he filed an objection, it is not open to the employer to complain that D.B. did not have adequate notice of the contents of these notices by reason of his being absent from the work place "on workers compensation", since that fact was known to the employer when it participated in the formulation of the vote arrangements: see Alan G. Cook Limited, [1972] OLRB Rep. Dec. 991 at paragraph 15 and Ontario Cancer Foundation, [1983] OLRB Rep. Feb. 246 at paragraph 6. As against the employer we must assume that,but for the conduct complained of, D.B. had the means and ability to learn what was stated in the materials posted in the work place.
Employees eligible to vote are under no compulsion to vote or even to read the Board's notices with respect to the vote. All that can fairly be expected of the vote process is that eligible employee voters as a class have a reasonable opportunity to vote and, to that end, that notice of the vote will be so given as to be reasonably likely to come to their attention. In assessing whether the results of a vote are unreliable as a result of others' communications to voters about the voting process or the subject matter of the vote, the Board is not concerned about misrepresentations unless they have interfered either with the voters' ability to evaluate the information available to them or with their ability to freely express their wishes in casting their ballots: see Staffer-Dobbie Manufacturing Co. Ltd., 59 CLLC ¶18,147; Indusmin Ltd., [1982] OLRB Rep. Nov. 1641; Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19; and, Harold's Furs, supra. The test is an objective one. The Board's approach is to determine the likely effect of the impugned conduct upon an employee of average intelligence and fortitude: Greb Industries, [1979] OLRB Rep. Feb. 89. because of concern for the secrecy of the balloting, the Board generally avoids enquiry into the subjective state of mind of an individual voter in assessing the effect to be given to the results of a vote: see RSLS Inc., [1982] OLRB Rep. June 921; and, Children's Aid Society of the Regional Municipality of Waterloo, [1985] OLRB Rep. Dec. 1818.
Starting from the necessary premise that notice to D.B. of his opportunity to vote was otherwise adequate, we cannot conclude that notice to him was made inadequate by G.D.'s telephone calls. Those calls did not interfere with D.B.'s presumptive ability and opportunity to ascertain the contents of the Board's notices. They did not interfere with his ability and opportunity to attend on the day of the vote and speak with the Returning Officer. Indeed, they did not interfere with his ability and opportunity to make further inquiries of others well before the date of the vote. Assuming the truth of what the employer alleges, we would conclude that D.B.'s having not voted was the result of choices he made without coercion or interference of the sort which would lead us to direct a new vote.
As there are no other matters in respect of which any interested person has expressed the desire to make representations, we may now deal with the issues which remain outstanding in this application.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Blenheim, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.
As more than fifty per cent of the ballots cast in the taking of the pre-hearing representation vote directed by the Board were cast in favour of the applicant, a certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the pre-hearing 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.