[1989] OLRB Rep. September 927
2937-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Allied Signal Automotive of Canada Inc., Respondent v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. A. Correll and D. A. Patterson.
APPEARANCES: John Moszynski and Wayne McKay for the applicant; Bruce Binning and Tom Patterson for the respondent; M. Mitchell and Karen Mitchell for the objectors.
REASONS FOR DECISION; September 29, 1989
[1]. A representation vote was conducted in connection with this certification application on March 9, 1989. By letter dated March 16, 1989, counsel for the objectors alleged there had been "irregularities concerning the taking of the vote". Those allegations and the objectors' request that the results of the vote be set aside and a new vote conducted where the subject of four days of evidence and argument which concluded on May 25, 1989. In an oral ruling delivered that day, we rejected the objectors' request. We indicated at that time that reasons for our decision would be delivered in writing in due course, if requested. Counsel for the objectors has so requested.
[2]. The objectors' allegations of irregularity are summarized in five numbered paragraphs in their counsel's letter to the Board of March 16, 1989:
The Union challenged the inclusion of Mr. Jim Osier as part of the proposed bargaining unit immediately prior to the vote without reasonable cause and contrary to an agreement it had entered into with the objectors. The Union challenge was known in the plant, and had the effect of causing confusion in the plant and fostering the idea that the Union was controlling the vote.
The Union disseminated electioneering material immediately prior to the vote. The Union continued to electioneer up to and during the taking of the vote.
Members of the Union, including members of its organizing committee, specifically Mr. Bill Flick, also one of its representatives for the counting of the vote, placed themselves in the cafeteria immediately outside the door of the polling area during a significant part of the period of time that the voting was taking place, which had the effect of intimidating and harassing employees casting their ballots.
The writer, prior to the commencement of the vote, advised the Returning officer of the electioneering material being worn by members of the organizing committee, and as to their location immediately outside the polling area. Although I am advised the Returning Officer spoke to said employees, she did not ask them to remove themselves from the area, nor did she insist they immediately remove electioneering material. On the other hand, the writer was requested by the Returning Officer to remove himself from the area of the vote, to which request he immediately complied.
The company allowed electioneering material and electioneering to be done by Union supporters during working hours throughout the plant up to and including the day of the vote. The objectors were advised not to do so.
[3]. The Board's decision directing the conduct of a representation vote referred the matter
of arrangements for the conduct of the vote to the Registrar in accordance with section 68 of the Board's Rules of Procedure. In accordance with the usual practice, the Registrar requested that the parties meet in an attempt to agree on the list of eligible voters and the time, place, date and other arrangements for the conduct of the vote. The parties met for that purpose on or about February 21, 1989. One of the matters discussed was whether, as the union's representatives then contended, Jim Osier was excluded from the bargaining unit because his job involved the exercise of managerial functions. By the end of the meeting, the union~ s representatives had agreed that his name would be put on the voter's list as a person who was an employee in the bargaining unit as of February 7, 1989. The parties' handwritten agreement with respect to vote arrangements was received by the Registrar on February 22, 1989. She arranged for the conduct of the vote in accordance with that agreement.
[4]. The vote was conducted on March 9, 1989. Polls were conducted in the cafeteria conference room at the respondent's plant between 6:00 and 9:00 a.m. and between 2:00 and 4:30 p.m. Jim Osier attended to vote during the morning poll. His eligibility to vote was challenged at that time by the person in attendance as the union's scrutineer. The objector's scrutineer questioned the propriety of this challenge. Following the practice applicable whenever any challenges are made to the eligibility to vote of any person seeking to do so, the Board's Returning Officer permitted Jim Osier to mark a ballot but segregated the ballot rather than permit it to be deposited in the ballot box. In the course of so doing, she explained to Mr. Osier the double envelope procedure followed by the Board whenever ballots are segregated in order to preserve the secrecy of the ballot. (A description of this procedure may be found in the Board's decision in The Board of Education for the City of Toronto, [1983] OLRB Rep. July 1229, at ¶6.) There were other voters in the polling area when these events occurred.
[5]. The union's challenge to Mr. Osier was abandoned at the beginning of our hearings in May. As a result, we do not know on what grounds it was made. The Board has not generally permitted a party to resile from an agreement on voter eligibility. It may be that the challenge would have been rejected on that ground had it been pursued by the applicant.
[6]. It is in the nature of representation proceedings and representation votes that there will be occasions on which the eligibility to vote of particular individuals will be a matter of dispute which cannot be resolved until after the vote is conducted. Lists of eligible voters agreed upon by an applicant and respondent and, perhaps, a group of objectors, represent the position of the parties to that agreement on the matter of eligibility, not a final decision of the Board on that issue. Both the Board's Notice of Taking of Vote and the additional notation stamped on voters lists recognize that eligibility questions may arise and should be directed to the Returning Officer. The Returning Officer's function when an eligibility dispute arises is not to determine it, but to ensure that effect may later be given to the view which ultimately prevails when the dispute is later determined by the Board. The Returning Officer does that by permitting anyone to mark a ballot who claims the right to do so and segregating the ballots of those whose right to vote is in dispute.
[7]. The essential characteristic of a representation vote is the secrecy of balloting. The voter is assured that the Board will so conduct the voting as to ensure that none of the participants will learn how he or she marked a ballot. A voter who observed the events leading to segregation of Jim Osier's ballot might have concluded, quite correctly, that the union's scrutineer was in a position to challenge a voter's eligibility and, by so doing, control whether a ballot would be placed in the ballot box immediately or segregated to await further determinations by the Board. There would have been no reason for the voter to suppose that the union was the only participant capable of having this effect on the process. In any event, the challenge to Jim Osier and segregation of his ballot would not have given voters any objective reason to suppose that the union or any other participant could find out how they marked their ballots or in any other way tamper or interfere with the balloting process. We were not persuaded that the union's challenge to the inclusion of Mr. Osier rendered the results of the vote unreliable.
[8]. In support of the allegation in paragraph numbered 5 of their counsel's letter of March
16, 1989, the objectors alleged that through one of its supervisors, Mr. Bill Flick Sr., the company allowed a union supporter, Maggie Paulus, access to the plant after her normal shift on March 8th and 9th for the purpose of electioneering. Evidence in support of this allegation was to the effect that Maggie Paulus was seen in the plant talking to fellow employees in the early morning hours of both March 8th and 9th at times when she was not scheduled to be at work. Witnesses testified that Bill Flick Sr. must have been in a position to observe her there but they did not see him take any action to remove her. One witness testified that on one of these occasions she saw Ms. Paulus with brown bags in her hand and overheard her say to another employee that the bags contained union stickers.
[9]. The objectors called Bob Bree, the plant superintendent for the night shift, to testify about the activities of Maggie Paulus. His evidence was that he had heard rumours of her having been in the plant beyond her normal work hours on March 8th, although he had not seen her himself. He did see her there on the morning of March 9th at 2:20 a.m., after the end of her shift. He testified that when he pointed her out to Bill Flick Sr., Mr. Pick's response was "we better get her out." Mr. Bree dealt with that himself. He spoke to Ms. Paulus and, after verifying that she did not have a work-related reason for remaining on the premises, asked her to leave. She put on her coat and boots and headed for the door. If she returned later, as other witnesses suggest, Mr. Bree was not aware of it.
[10]. There is no evidence that Ms. Paulus did anything on these occasions other than talk to fellow employees. Apart from the overheard reference to bags containing stickers, there is no direct evidence about the content of any of those conversations. Maggie Paulus may well have been electioneering on the mornings of March 8th and 9th in support of the union. The evidence leaves us in some doubt about whether the behaviour of Bill Flick Sr. would have given other employees the impression that he was aware of and tolerated such after-hours electioneering on the plant floor. In any event, given the evidence of Mr. Bree and our familiarity with the events which preceded the order directing a representation vote~ we are satisfied that no rational employee in this workplace would have thought that the respondent was supporting the union's campaign. Any action by Bill Pick Sr. which might have appeared supportive of the union would have been interpreted and understood as personal to him and not reflective of the attitude of management. We are satisfied that the respondent neither allowed nor tolerated from union supporters any form of behaviour which was not equally tolerated when engaged in by union opponents.
[11]. The workers in this workplace are no strangers to "electioneering" by union supporters and opponents both, as will be apparent from the Board's decision of February 7,1989. After that decision directed that a representation vote be conducted, the union and the objectors engaged in further electioneering. Its supporters continued to wear their CAW T-shirts. New T-shirts with a "Vote Yes" message appeared on the scene. There were also "Vote Yes" buttons. The objectors responded by handing out "Vote No" buttons. The union disseminated further pamphlets and flyers. The objectors did the same. Union supporters and opponents continued to speak to fellow employees. Sometimes the discussions were welcome, sometimes not. There is no evidence from which we could conclude that unwelcome discussions involved intimidation, coercion, harassment or haranguing.
[12]. The polling area on which the objections, applicant and respondent agreed in mid-February was the cafeteria conference room, a section of the plant cafeteria which can be partitioned, off by means of a hanging movable wall. The wall was moved into place for the vote, leaving an opening of doorway width facing the cafeteria. The polling area was arranged so that the table occupied by Returning Officer and scrutineers was at the end of the polling area closest to that doorway opening, where that table and persons at it could be seen from the cafeteria. The polling booths were placed at the opposite end of the polling area, where they could not be seen by anyone seated at the tables in the cafeteria. Whatever electioneering may have taken place elsewhere in the plant, it is apparent from the evidence that the Returning Officer was vigilant to ensure that none occurred in the agreed-upon polling area. While serving in the polling area in that capacity, scrutineers were not allowed to display any arguably partisan message on their clothing. It is obviously for that reason that Karen Mitchell was told to remove a smock bearing the Fram name or logo. Each side was advised that voters would have to remove or cover up partisan materials before entering the polling area itself. Some union supporters wore their slogans as far as the part of the cafeteria outside the polling area. The objectors chose to advise their supporters to remove their slogans before they reached the cafeteria. The objectors gave themselves the advice referred to in the last sentence of paragraph numbered 5 of their counsel's letter of March 16, 1989.
[13]. Bill Flick Jr. is a bargaining unit employee. He is a vociferous union supporter. His behaviour toward the objectors during their circulation of the anti-union petition a year earlier was the subject of evidence in the proceedings which led to our directing the representation vote. He works the day shift, which beings at 7:00 a.m. He arrived at work before 6:00 a.m. on March 9th, so he could be in the cafeteria when the poll opened. He and some other union supporters sat at the cafeteria table closest to the entrance to the polling area. The objectors led evidence to the effect that this was not the table at which Mr. Flick normally sat when he was in the cafeteria. Some of those at that table had "Vote Yes" T-shirts or buttons. There is conflicting evidence about exactly what Bill Flick Jr. was wearing.
[14]. The lawyer who has acted for the objectors in these proceedings attended at the cafeteria that morning before the poll opened. Ms. Mitchell testified that she saw him speak to the Board's Returning Officer. She heard him say something about "the guys outside the door"~ but offered no particulars as to what was said. She did not hear the Returning Officer's reply. Her lawyer did not testify; we have no other direct evidence of the content of that conversation. Bill Flick Jr. testified that the Returning Officer approached him shortly before the poll opened and advised him and the others seated with him that they would have to remove or cover up any partisan messages on their clothing when they attended in the polling area. She made no comment to him or any of the others about the propriety of their sitting in that location.
[15]. Mr. Flick and his companions were among the first to vote. After doing so, Mr. Flick returned to the cafeteria table closest to the doorway into the polling area, and remained there until shortly before his shift began at 7:00 a.m. At some point during that period he went into the polling area and offered to get coffee for the Returning Officer and each of the scrutineers. The offer was declined by Ms. Mitchell, but accepted by the others. Although he did not request it of her, the Returning Officer insisted on reimbursing Mr. Flick for the cost of the coffee he brought her. This coffee incident occurred at a time when there were no voters in the polling area.
[16]. There was some difference of opinion about the distance between Bill Flick Jr. and the entrance to the polling area when he was seated at the table outside that entrance. Estimates ranged from 6 to 12 feet. Witnesses called by the objectors testified that they were uncomfortable about having to walk past Mr. Flick in order to vote. It was suggested that his presence was "intimidating". It was common ground, however, that from where he sat he could not see the polling booths where voters went to mark their ballots. Karen Mitchell testified that she did not like the fact that Mr. Flick was sitting outside the polling area, but did not complain about it to Mr. Flick or to the Returning Officer. Mr. Flick testified that no one made any complaint to him about his sitting at that table. Although it was alleged in his letter to the Registrar that the objector's lawyer complained about this to the Returning Officer, he did not testify to that effect when the opportunity to do so arose.
[17]. There is no evidence that Mr. Flick's presence deterred any eligible voter from voting. He was outside the polling area for less than one hour out of the five and one half hours during which employees could vote. Four hundred and twenty-three people voted; there was testimony that about fifty of those would have voted while Mr. Flick was seated near the entrance to the polling area. Of those who testified to feeling uneasy about voting in those circumstances, none suggested that the way they marked their ballot had been affected by his presence. We are invited to conclude, however, that others might have been so affected.
[18]. While he was in the cafeteria that morning, Mr. Flick did not do or say anything which could fairly be described either as intimidating voters or as engaging in electioneering. He did have some conversations with some individuals. One of the objectors' witnesses testified that as one of the voters emerged from the polling area, Mr. Flick thanked him "for his vote" and wished him a good holiday. Mr. Flick testified, and we find, that he thanked that particular voter for taking time out of his holiday to attend to vote.
[19]. Section 68 of the Board's Rules of Procedure provides that the Registrar may
(j) direct all interested persons to refrain and desist from propaganda and electioneering during the day or days the vote is taken and for seventy-two hours before the day on which the vote is commenced.
It was for many years the Board's policy and practice that the Registrar would give a direction of this sort in every case. The time period described in subsection (j) came to be known and referred to as "the silent period". There was much litigation over allegations of breach of the silent period and the consequences which should flow from breach of the Registrar's direction. With many years' experience, the Board came to the view that such directions created more problems than they solved. The policy of imposing a "silent period" in every case was changed on a trial basis in July of 1983. On November 29, 1984, the Board issued the following policy statement:
BOARD POLICY RELATING TO THE SILENT PERIOD
In July of 1983, the board reviewed its policy relating to the normal 72 hour "silent period" preceding a representation vote and was of the opinion that litigation over alleged breaches of the "silent period" often prolonged certification proceedings unnecessarily. The Board concluded that the imposition of a "silent period" before a representation vote should be dispensed with, but considered it advisable to implement this change of policy for a trial period of one year. Having closely monitored the impact of the change during this trial period, the Board has decided to adopt the policy of not imposing a "silent period", as its regular practice. The Registrar of the Board, nevertheless, retains the right under section 68(j) of the Board's Rules of Procedure to impose a "silent period" in particular cases.
The Board reiterates that the dispensation of the "silent period" should not be seen as permitting "wide open" campaigns by parties to a vote. Rather, it is intended to eliminate litigation over technical violations. The Board will, of course, continue to deal with any submissions or complaints alleging that a representation vote has been improperly affected by the conduct of the parties or other persons.
None of the parties to this application asked that the Registrar exercise her powers under subsection 68(j) of the Board's Rules of Procedure, and there was no such direction in this case. It follows that none of the behaviour complained of by the objectors violated any specific direction of the Board with respect to the conduct of this representation vote.
[20]. We accept that Mr. Flick's proximity to the polling area made some voters uncomfortable. Had the Board known that there would be complaints made and hearing time consumed over anyone's sitting at any particular distance from the polling area entrances it or the Registrar might have made directions requiring or requesting that employees remain at some distance from the polling area when not actually voting. There is no suggestion that the Board was in a better position to anticipate this problem than the parties themselves, who neither anticipated it nor complained of it when it occurred. The issue at this stage, however, is not whether some voters were uncomfortable. The issue is whether the conduct complained of destroyed the secrecy of the ballot or created a situation in which the vote is not likely to disclose the true wishes of the employees: Stauffer-Dobbie Manufacturing Company, 59 CLLC ¶18,147; Scarborough Centennary Hospital Association, [1979] OLRB Rep. April 350, at ¶4; and, Northfield Metal Products Ltd., [1989] OLRB Rep. Jan. 57, at ¶7.
[21]. At the conclusion of evidence and argument on May 25, 1989, we were satisfied that, to the extent it was proven, none of the conduct complained of affected the secrecy of the vote or created a situation in which the vote would not have been likely to reveal the true wishes of employees. For these reasons, we were satisfied that the results of the representation vote conducted on March 9, 1989 should determine the outcome of this certification application.