[1988] OLRB Rep. June 562
0830-87-R John Campbell, Applicant v. International Brotherhood of Electrical Workers Local 1590, Respondent v. Cable Tech Co. Ltd., Intervener
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members G.O. Shamanski and J. Redshaw.
APPEARANCES: Michael G. Horan and John Campbell for the applicant; Bernard Fishbein and R. Conrad for the respondent; Joseph Neil Tascona and Craig Thomson for the intervener; Douglas H. Brown for the objecting employees.
DECISION OF THE BOARD; June 30, 1988
1This application for declaration terminating bargaining rights of the respondent trade union was filed on June 19, 1987. A hearing into the application was held on August 11, September 9 and October 2, 1987. By majority decision dated December 14, 1987, the Board directed that a representation vote be conducted among the employees in the bargaining unit.
2On January 8, 1988 an officer of the Board met with the parties to make voting arrangements. It was agreed that the vote will be conducted on January 26, 1988. As is the usual practice an alternate date of January 28, 1988 was also agreed upon in the event that the vote is for some reason not held on January 26th. There is no question that all of the parties agreed and understood that the only date on which the vote would be held was the 26th and that the 28th was only an alternate date agreed to as a precautionary measure -
3In accordance with the Board's Rules, the Board forwarded to the employer five copies of "Form 69 Notice of Taking of Vote" and five copies of the voters' list with directions that these ''are to be posted immediately by the employer in such conspicuous locations that they may be seen and read by all eligible voters."
4The vote was conducted on January 26th as scheduled and all of the parties signed the consent and waiver form agreeing to an immediate counting of the ballots. Out of 134 eligible ballots cast 68 were in favour of the respondent union and 66 against.
5By letter dated February 2, 1988 three employees Don McQueston, Dave Sear and Andy Gibbons objected to the vote on the basis that they had not been given a reasonable opportunity to vote. A hearing was convened by the Board on May 5, 1988, to deal with this issue.
6The facts underlying the employees objection were not in dispute and were presented to the Board without the need for calling evidence. The facts that were presented are as follows.
7The three objecting employees constituted what is known as "the continental shift". The duration of the polls conducted on January 26, 1988 did not overlap with this continental shift. Thus the three were not at work at any time when the polls were open. On January 20, 1988, the employer posted the five notices (Form 69) as instructed by the Board. Each Board notice is approximately 14 inches x 54 inches in size and in bold 1 1/2 inch letters is a heading "NOTICE OF TAKING OF VOTE". There is a sub-heading in bold "TIME AND PLACE OF TAKING OF VOTE", followed by a preamble which states "Voters may cast ballots at their proper polling place at any time during the period in which voting is to take place. The vote will be taken at the following time and place:". Following the preamble there appear three headings "Date", "hours", and "place". Adjacent to the title "Date", there appears "Tuesday, January 26, 1988.
8The objecting employees were at work at various times between January 20, when the notices were posted by the employer, and January 26, the date the vote was taken. There is no suggestion that there was anything that prevented them from reading these notices. Indeed they admit that they saw the notices and may even have read parts of it. Yet they claim that they did not pay attention to the Board notices because they relied on a letter that they had received from the employer.
9This letter dated January 11, 1988 and signed by the company's President was sent to all of the employees in the bargaining unit. It is not necessary to reproduce the two page letter in whole here. Suffice it to say that it urged employees to give the company a chance to work without a union. The relevant part of the letter for purposes of this proceeding reads as follows:
Dear Fellow Employee:
As a result of a January 8 meeting at the Department of Labour, the following arrangements were agreed upon for the secret ballot vote to decide whether or not you wish to continue being represented by Local 1590 of the I.B.E.W.
Date of Vote - Tuesday, January 26, 1988 Alternate Date - Thursday, January 28, 1988
Voting Times - Day Shift 9 A.M. - 10 A.M.
-Afternoon Shift 5P.M. - 6P.M. - Night Shift 7A.M. - 8A.M.
Those persons whose day off occurs on the day of the vote have the right to come in and vote at any of the above times regardless of the shift upon which they are normally scheduled to work.
Place where Polling
Booth to be Located - New Lunchroom
10The objecting employees claim that upon reading the above, they understood that they will have an opportunity to vote on either January 26 or January 28 and that since they were not scheduled to work on the 26th they had planned to vote on the 28th. To their surprise, they learned that the vote had been concluded on the 26th. They claim the employer's letter was misleading as to the date of the vote and that as a result they were denied of their right to participate in the vote.
11After hearing submissions from all of the parties and the counsel for the three objecting employees, the Board recessed to consider the same. Upon returning, the Board delivered the following oral ruling dismissing the objections to the vote and the request for a new vote:
"The Board has considered the submissions of counsel in light of the facts presented. Having done so, the Board has come to the conclusion that there is no reason for interfering with the result of the vote. The facts indicate that five copies of the Board Notice, Form 69 - Notice of Taking of Vote, were posted by the employer as required by the Board's Rules. The notices very clearly set out the date, time and location of the vote. There is no suggestion that any of the objecting employees had no opportunity to read and understand the contents of these notice. However, they chose to ignore the Board's official notices and to rely instead on information contained in a letter from their employer. Any employee who elects not to pay attention to the Board's official notice, as the objecting employees claim they did, does so at his or her own peril. It is not too much to ask of employees to do this simple task. An employee has an obligation to read the Board's official notice. If any other information he or she has with respect to the vote is in conflict with the information contained in the Board's notice, he or she has an obligation at least to seek some clarification. The employees here, by ignoring the Board's notice, were the authors of their own misfortune. They have no one but themselves to blame for the consequences. The Board is not prepared to nullify a vote result to accommodate subsequent complaints by these employees that they had no opportunity to vote.
In the circumstances, the Board will not set aside the vote result as previously declared and the objections to the vote are hereby dismissed."
12The above ruling delivered at the hearing is hereby confirmed.