[1989] OLRB Rep. October 1050
0250-87-R United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Mollenhauer Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and P. V. Grasso.
DECISION OF THE BOARD; October 23, 1989
Pursuant to the Board's September 13, 1989 decision herein, the applicant and the respondent have both made written submissions with respect to whether or not the Board should count the single ballot cast in the pre-hearing representation vote held in this application for certification.
The applicant submits that the ballot cast in this case should not be counted because there was only one person eligible to vote (that is, there was only one person in the bargaining unit at the times material to the vote) and because counting the ballot would obviously reveal how that person voted. The applicant submits that a further representation vote should therefor be held. The respondent does not oppose the applicant's request that the ballot not be counted but submits that there is no reason to hold a further vote and that the Board should dismiss the application.
In any application for certification, the Board must determine the unit of employees that is appropriate for collective bargaining and the number of employees in it. Both of those determinations are made as of the time the application was made (that is, the date of application). The Board must then determine the number of employees in the bargaining unit who are members of the trade union seeking certification at a subsequent time, namely the terminal date fixed for the application. The level of membership that an applicant trade union is able to demonstrate among bargaining unit employees dictates whether an application must be dismissed, whether there must be a representation vote, or whether the trade union is entitled to be certified as the bargaining agent of the employees in the bargaining unit (in the absence of circumstances in which the Board finds it appropriate to direct that a representation vote be taken notwithstanding that the applicant would otherwise be entitled to be certified without one). In applications (like this one) in which an applicant has requested a pre-hearing representation vote, the determination of the appropriate bargaining unit and the number of employees in it for purposes of the application are made after that vote is taken but both of these determinations and the determination of the applicant's entitlement to that vote are made as of the date the application was made. The requirement that there be more than one employee in every bargaining unit which is the subject of an application for certification applies to the determination which must be made at the time the application was made. There is no requirement that there be more than one person in a bargaining unit at any other time.
Where a representation vote is held, only those employees eligible to vote may do so. In order to be eligible to vote, a person must have been an employee in a bargaining unit on the date the vote is ordered (or on the terminal date in case of a pre-hearing vote) and on the date the vote is taken, both of which dates are necessarily subsequent to the date of application. In City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 810, the Board was faced with an application for a declaration terminating bargaining rights in which the only person who was eligible to vote cast a ballot. In disposing of that application, the Board reviewed its practice in representation votes as follows:
The Board's practices with respect to voter eligibility in the representation votes that it directs be taken are well-established. It has developed a two-pronged voter eligibility rule based on two material dates; the date of the Board decision ordering the vote (or, on the terminal date fixed for a certification proceeding in which a pre-hearing vote has been requested) and the date the vote is taken. The object of the Board's practices is to provide certainty and finality in proceedings where representation votes are taken, and to reduce the likelihood of attempts to gerrymander the voters list in an effort to influence the outcome of a vote (see London District Crippled Children's Treatment Centre, [1980] OLRB Rep. April 461 and Crowle Electrical Limited, [1982] OLRB Rep. Oct. 1458).
The Board has also long recognized that there is a difference between employment in the construction industry and non-construction employment. A major difference between the two is that employment in the construction industry tends to be intermittent and transitory relative to non-construction employment. A great deal of construction work is seasonal or subject [to] interruption due to inclement weather. When they do work, construction employees tend to work in small crews and continuous employment with any given employer is often measured in weeks or months rather than years. In recognition of the differences between them, the Board has established a practice of approaching the two situations differently. For example, in both applications for certification and termination proceedings, the employer involved is required to file with the Board a list of employees in the bargaining unit so that the Board can, as it must, ascertain the level of employee support of the application before it. In proceedings relating to the construction industry, the Board counts only these persons actually at work in the bargaining unit on the date of application in determining the number of employees in the bargaining unit. In contrast, in non-construction proceedings, the Board does not require an individual to be at work in the bargaining unit on the date of application for purposes of the count so long as s/he was an employee in the unit on that day, and did actually work in it on at least one day in the thirty day period prior to and one day in the thirty day period subsequent to the date of application. Similarly, when a representation vote is held in the course of proceedings involving the construction industry, a person is entitled to vote if s/he was at work in the voting constituency on the date of the Board's decision directing the vote (or, where a pre-hearing vote is requested in a certification application, on the terminal date), and the day of the vote. In non-construction matters, on the other hand, an individual is entitled to vote if s/he was employed in the voting constituency on those two material dates. Being "at work in" the voting constituency requires an individual to be physically on the job. Being "employed in" the voting constituency does not require a person's physical presence at work so long as s/he has not been permanently removed from employment in the voting constituency. This distinction illustrates the Board's practice of focusing on specific dates in construction industry proceedings and on periods of time in non-construction matters, and it reflects the Board's attempt to accommodate the differences between the two employment situations.
Contrary to what counsel for the respondent suggests, so long as employment in the voting constituency is not terminated, in neither case does the Board require an individual to be at work in it for any minimum period of time, or at all, during the period between the two material dates in order to be eligible to vote. It would be impractical and unrealistic to impose any such requirement. It is to be expected that some employees will not be at work, or if at work not be performing work within the voting constituency, during some part, or all, of the period between the date of the Board decision directing the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken. That is particularly true in the construction industry where the vagaries of employment are such that it is possible, even likely, that imposing a requirement that an individual perform work in the voting constituency during that intervening period would, in many cases, result in there being no one entitled to cast a ballot. The Labour Relations Act provides employees with an opportunity to join and be represented by a trade union in their employment relations with their employer, and also permits them to terminate that trade union's right to represent them, if they see fit to do so. It would be inappropriate for the Board to adopt procedures which would effectively deny either right. Furthermore, such a requirement could create uncertainty and invite protracted litigation, neither of which is desirable in labour relations matters, particularly those relating to representation rights.
The purpose of the Board's practices is to ensure that the persons affected by the outcome of a vote; that is, the employees in the bargaining unit affected, have an opportunity to participate in a representation vote where one is directed. To achieve that goal, the Board has formulated different approaches to employment in the construction industry and non-construction industry employment in response to the differences between the two employment situations. Some of those differences in approach have already been discussed. They are also reflected in the difference in the meaning that the Board has ascribed to the standard language it has long used to describe voter eligibility in representation votes in the construction industry compared to that in non-construction votes. In the result, in non-construction matters, a person need not be "at work in" the voting constituency at any time so long as s/he is "employed in it". In construction matters, the same eligibility terminology has been made equivalent to "at work in" so that a person must be at work in the voting constituency on both of the material dates; that is, the date of the Board decision ordering the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken in order to be eligible to vote (see Crowle Electrical Limited, supra). This reflects the Board's attempt to strike a balance between the vagaries of employment in the construction industry and the object of affording affected employees an opportunity to vote.
[emphasis supplied]
It is evident that the Board's comments in that case, with which we agree, were directed at both termination and certification proceedings.
On occasion, a representation vote is taken in which one or more persons whose entitlement to vote is challenged cast ballots. The ballots cast by such persons are sealed and segregated from the rest of the ballots. The parties may agree to have the non-segregated ballots counted prior to any determination of the right of those persons who cast segregated ballots to vote. In some such cases, an equal number of votes have been cast in favour of and against the applicant trade union. In such circumstances and where there is a single segregated ballot cast by a person who is subsequently found to have been entitled to vote, the Board's general practice is to direct that a new vote be taken so as not to reveal how that person voted (see Omstead Foods Limited, [1987] OLRB Rep. Feb. 264; SGS Supervision Services Inc. Qualitest Technical Division, [1981] OLRB Rep. Oct. 1471). This practice of counting the non-segregated ballots is premised upon the agreement of the parties which is made with a knowledge that they are taking an (avoidable) risk that a further vote may have to be held. In our view,, that situation is both anomalous and distinguishable from the one before the Board in this case.
In any case in which the voting constituency is small or where a small number of ballots is cast, there is some danger that counting the ballots will reveal how those who cast them voted. For example, if only two people are eligible to vote (or only two people cast ballots) there is a fifty per cent chance that both voted the same way and that that will be disclosed when the ballots are counted. Similarly, if three people are eligible to vote (or only three people cast ballots) there is twenty-five per cent chance of such disclosure, if four people are eligible to vote (or only four people cast ballots) there is a 12.5 per cent chance of such disclosure, and so on. It is only when eight people are eligible to vote (or only eight people cast ballots) that there is a less than one per cent chance that they will vote in a manner such that how they voted will be revealed. (We also observe that in circumstances where non-segregated ballots are counted and the margin of votes between the options with respect to which the vote was held is less than the number of segregated ballots cast by persons who are subsequently found to have been entitled to vote, it is possible that the way they voted will be revealed.) The vagaries of employment in the construction industry are such that it is not uncommon for there to be fewer than eight people in a voting constituency or for fewer than eight people to cast ballots in a vote. There is nothing in the legislation or otherwise which requires either that more than one person be eligible to vote or that more than one ballot be cast before a representation vote is "valid". While revelations of the manner in which any person has voted should be avoided if possible, secrecy of the ballot box should not be made an absolute objective. Nor, in the Board's view, should such secrecy take precedence over the right of employees to choose to be or not to be represented by a trade union and to express those wishes in a representation vote. Such questions are best answered by those eligible employees who decide to cast ballots.
For the foregoing reasons, the Board is satisfied that, except in cases where it is appropriate to apply the "build-up" principle (which, pursuant to section 119(2) of the Act, the Board is specifically authorized to disregard in the construction industry), the fact that only one person is eligible to vote, or that only one person has cast a ballot, will not, by itself, cause the Board to either defer the taking of a representation vote, or to hold a further such vote if one has already been taken. There is nothing in the mere fact that only one person was eligible to vote or only one person voted which, by itself, "invalidates" a representation vote. Nor is the Board persuaded that there is anything in the circumstances of this case which should cause it to refrain from counting the ballot cast.
The Board therefore directs that the ballot box be unsealed and the ballot cast in this application for certification be counted, and that the applicant and respondent be advised of the results of the vote in accordance with the Board's Rules of Procedure.