United Brotherhood of Carpenters and Joiners of America, Local 27 v. Mollenhauer Limited, 1989 CanLII 3015

[1989] OLRB Rep. November 1112

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; November 24, 1989

Pursuant to the Board's decisions dated October 23 and November 14, 1989 herein, the ballot cast in the pre-hearing representation vote held in this application was scheduled to be counted on November 15, 1989. By letter dated November 14, 1989, the employee, who by now everyone knows was the sole person entitled to cast a ballot who cast one, wrote to the Board as follows:

Ontario Labour Rel. Board

Ref # 0250-89-R.

Gentlemen,

It has come to my knowledge that the ballot that I voted on in the summer of 1987 is to be opened up at 10 A M on 15th of November.

I feel very strongly against the ballot being opened, because at the time of the ballot I was not aware that my vote would be the only eligible ballot.

I respectfully request that my wishes be considered in this matter as it may jeopardize my position in the union or the company.

Respectfully Yours.

Brian Ogden.

The respondent supports the employee's position. The applicant submits that the Board has already twice considered whether the ballot should be counted, that there has been no new reason offered for not counting the ballot, and that the Labour Relations Act offers ample protection against retaliatory action for persons who participate in proceedings before the Board.

It is true, as the respondent suggest, that the primary position of all interested parties has been that the ballot cast in the representation vote herein should not be counted. (In that respect we view the applicant's most recent correspondence as accepting the Board's previous two decisions with respect to this issue rather than as resiling from its initial position.) However, the interested parties cannot agree on what results should follow from that. The respondent has submitted that the application should be dismissed. This would of course result in the respondent being successful in fending off the application. There is no basis in either the Act or otherwise for proceeding in this manner. The applicant has suggested that a new representation vote be taken at a time when there are more employees in the bargaining unit. Since the hearings have been concluded, any such vote could not be a pre-hearing representation vote, which was what was requested in this application. Further, although the Board has on occasion deferred the taking of a representation vote there is no precedent for taking another representation vote in circumstances like the ones in this application. Further, the Board's experience with deferring representation votes in the construction industry has been unsatisfactory. The employee concerned has offered no suggestion as to how to proceed as an alternative to counting his ballot.
We have considered the representations of the employee as aforesaid. We are not persuaded that there is any reason to depart from our reasoning in the previous two decisions issued in this proceeding with respect to this issue. We also find it unnecessary to repeat those reasons herein. We wish to add however, that while no one could have known that only one ballot would ultimately be eligible to be counted, everyone knew or ought to have known that this was a possibility. Further, it is not open to any voter to "change his/her mind" or to withdraw a ballot cast in a proceeding. In that sense (at least), once cast, the ballot no longer belongs to the voter.
We are not insensitive to the concerns of employees who find themselves in a situation like this one. The Board does its best to maintain the secrecy of employee wishes. However, it is well known that that is not always possible. While the unfortunate result of counting the single ballot is that the wishes of the employee who cast it will be revealed, that, by itself, is no reason to not count it. Nor are we persuaded that there is any other cogent reason to not count the ballot cast in this application in the circumstances.
Finally, we observe that section 80 of the Labour Relations Act provides that:

80.-(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person; (b) threaten dismissal or otherwise threaten a person;

(d) intimidate or coerce or impose pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

Let there be no misunderstanding. The protections of section 80 apply equally to persons who participate in a Board proceeding by casting a ballot in a representation vote as they do to persons who participate in other ways. We assure all concerned that the Board will respond quickly and appropriately to any allegation that the employee who cast the ballot in this case has been the victim of any improper conduct as a result of his participation in the proceeding.

The Registrar is directed to proceed forthwith to count the ballot cast in this application.