[1989] OLRB Rep. January 57
1549-88-R Glass, Molders, Pottery, Plastics & Allied Workers International Union (AFL-CIO, CLC), Applicant v. Northfield Metal Products Ltd., Respondent v. Group of Employees, Objectors
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. A. Correll and K. Davtes.
DECISION OF THE BOARD; January 31, 1989
- This is the continuation of an application for certification. By the Board's decision of
October 26, 1988, a representation vote was ordered which was held on Wednesday, November 16, 1988 at the employer's place of employment. The decision below deals with certain objections to the conduct of that vote.
- Scrutineers for each of the applicant, respondent and objecting employees signed a "Certification of Conduct of Election" that states in part:
We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.
As well, the same people signed a "Consent and Waiver" form which contains the following paragraphs as well as setting out the parties' agreement on what ballots should be segregated and not counted:
We the undersigned hereby consent to an immediate counting of the ballots cast at the representation vote directed by the Board and held on the 16th day of November, 1988.
[agreement on segregation of ballots omitted]
And we hereby waive any objections as to the regularity and sufficiency of the balloting.
The vote was accordingly counted. A majority of employees voted in favour of the applicant. The number of segregated ballots was smaller than the margin of victory. On November 22 and 24, 1988, respectively, the Board received statements of desire from a group of employees and from the respondent employer. Both statements made objections to certain matters relating to the conduct of the vote, all of which took place prior to the actual polling. The matter of these representations was set down for hearing.
- At the outset of the hearing the union made a motion to dispose of the matter without hearing further evidence on the basis that the relief sought, the overturning of the vote and the granting of a new representation vote, should not be granted on the facts set out in the statement of desire. The Board heard submissions from all parties on that motion, and recessed to consider the matter on the basis that all of the facts pleaded by the respondent and objecting employees were true, without so finding. We granted the motion in an oral decision on the day of hearing as follows:
The Board is of the unanimous view that no evidence need be heard as the
allegations, on the assumption they are true, would not lead us to grant a new vote. The test as applied by the Board is whether or not the actions complained of are coercive or destroy the secrecy of the ballot. The test is not based on the most gullible or the most firm voter, but the reasonable voter who is possessed of critical faculties and the ability to assess issues and inquire on his or her own behalf. A different standard for people of different ethnic backgrounds has not been applied by the Board in the past and we do not propose to do so in this case.
We will briefly indicate our reasons on each of the allegations and a written decision will follow.
We then went through each of the allegations in the statements of desire and gave our reasons for not considering them sufficient to order a new vote. We set those reasons out in a slightly expanded fashion herein.
The objecting employees complained firstly that a large number of employees in the bargaining unit did not understand the Notice of Taking of Vote posted before the vote or the ballot, due to language difficulties and multiple dialects. Illiteracy of many of the ethnic employees and the presence of people of ten different Laotian dialects in the bargaining unit were particularized. The respondent employer made the same allegation worded slightly differently. (The question of the respondent's right to raise matters on behalf of employees was not raised, but see, most recently, Image Painters, [1988] OLRB Rep. Aug. 807, Javid Construction, [1988] OLRB Rep. Sept. 906).
The Board has consistently refused to apply a different standard for employees of different ethnic backgrounds in evaluating evidence related to membership evidence and participation in Board processes. See for instance, International Chinese Restaurant, [1977] OLRB Rep. Oct. 688, S.K.D. Manufacturing Company Ltd., [1969] OLRB Rep. Feb. 1185, Dylex Limited, [1977] OLRB Rep. June 357, Bravo Cement Contrating Ltd., [1980] OLRB Rep. Oct. 1354, Image Painters, supra and Javid Construction, supra. As well, the Board has held that it is under no responsibility for the ability of employees to read English or their literacy. See Ilsco, [1973] OLRB Rep. May 221. Nonetheless, it was common ground that in this case the notices of the vote had been translated into three different Asian languages. We agree with the Board's previous decisions and find the allegations relating to language ability and ethnicity insufficient to warrant a new vote.
The objecting employees and the respondent both complained that the Board's Notices of Taking of Vote were defaced in advance of the vote by an "X" indicating that employees must vote in favour of the union and that these were later found in the possession of one of the bargaining unit employees who had been active in organizing the union. It was admitted in argument that there was no evidence that the defacing had been done by this person or representatives of the union. Furthermore, we are of the view that the defacing of the notice in this manner was not coercive, although it is a breach of the Registrar's direction not to remove or deface Board notices. We agree with the conclusions of the Board in Stauffer-Dobbie Manufacturing Company, 59 CLLC ¶18,147. The facts of that case included a similar allegation - that the union had published a marked sample ballot. The Board said:
The advertisement is obvious propaganda clearly recognizable as such by the employees concerned and in our opinion not likely to have misled them in any way. If the respondent had affixed to the ballot the name of one of the other parties to the proceedings, the situation might well be otherwise. However, in the circumstances of this case, the publication of the ballot cannot be said to have improperly influenced the vote and in the absence of improper influence; the infringement of section 56 [which required the name of the publisher and printer] of the Act standing by itself does not invalidate the vote and relief therefor should be sought in other proceedings.
- The next allegation is that Laotian employees were told by union members in response to questions as to how they should vote, to mark the ballot in favour of the union without being advised of their right to free choice. This allegation cannot have the result of ordering a new vote for the reasons set out above in regards to employees of various ethnic origins. In any event electioneering is permitted. The Board is not in the business of policing electioneering unless the conduct is coercive or jeopardizes the secrecy of the ballot. Rather, as the Board said in Stauffer Dobbie, supra,:
A new vote will generally be directed where the action complained of is coercive in nature or if ways and means of destroying the secrecy of the ballot or the confidence of the employees in the secrecy of the ballot are suggested or implied.... In the main, however, a considerable amount of leeway is permitted in electioneering. The Board does not undertake to police election campaigns or to consider the truth or falsity of campaign literature and speeches unless the ability of the employees to evaluate such literature or speeches is impaired, e.g., by the use of campaign trickery to such an extent that the free desires of the employees cannot be determined in a secret vote.... In determining the impact on the voters of the literature complained of, it is of course obvious that it is really, and perhaps never, possible to determine objectively what effect it has actually had. One cannot pay too much attention to either the most gullible voter or to the one of firm convictions. One can only look at the circumstances of each case and, on the facts presented, determine whether the statements objected to are of such a nature that they are likely to have seriously misled a "reasonable" voter.
See also Cara Operations Ltd., [1985] OLRB Rep. Feb. 222, Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19, and Carlton Cards Ltd., [1985] OLRB Rep. Sept. 1352.
The next allegation is that employees were given hats and other objects marked with the union logo to wear at work and subsequently told that if the union was unsuccessful, management would know they supported the union, and their jobs would be jeopardized. We find this to be an allegation of further electioneering which would be able to be evaluated by a reasonable employee. We are not prepared to draw the inference that a reasonable employee could not express a free choice in a secret ballot because of such an event. We view the employer's allegations that "Vote Yes!" stickers were placed on plant machinery, notices of a "Local Union Meeting" were distributed by union representatives to the employees of the company at its gate on November 16, 1988 and that union representatives told employees that if they voted for the union they would immediately receive benefits ranging from a 40-hour work week to free work boots in the same light.
The employer also made comments about the number of ballots that were segregated at the vote, but none of them disclosed any allegation of coercion or jeopardy of the secrecy of the ballot and are irrelevant to the motion before us.
We have also considered an allegation made by the employer in argument that was not pleaded, i.e. that the quality control officer who was agreed to be in the bargaining unit would have been seen to be an authority figure when he made remarks in favour of the union at the plant. When the bargaining unit was agreed upon management did not challenge the inclusion of this position. We cannot on any objective test find the fact of a bargaining unit employee's expressing his views coercive. This also appears to be part of the argument that employees of some ethnic origins are less able to evaluate information than others, with which we have dealt above. This allegation does not lead us to order a new vote.
Additionally, none of the allegations were raised until such time as the employer and
the objecting employees were aware of the vote results. We agree with the approach taken in Chateau Gardens, [1977] Jan. OLRB Rep. 12 where the Board said that a party cannot "lie in the bushes" and await the outcome of a vote and when it learns that the result was not amenable to its liking seek a second representation vote on the basis of a breach of a rule that could have been brought to the Board's attention in advance of taking the vote. The objecting employees state that they did not know of the improprieties and irregularities in the pre-election before the vote was taken to the extent that they could be substantiated and verified before the Labour Relations Officer. It is not pleaded that they did not know in advance of the vote, merely that they did not know to that extent. The employer does not plead lack of knowledge. The Board's notices are quite clear that complaints are to go to the Returning Officer, usually a Labour Relations Officer. It is not necessary to substantiate matters before the vote; it is necessary to raise them. The Consent and Waiver forms signed by all parties are expressly designed to prevent objections being pursued only when the results of votes are unfavourable. See, for example, Bermay Corporation, [1980] OLRB Rep. Feb. 166 and Harolds Furs, [1983] Nov. 1843.
Accordingly, we confirm both the oral ruling given on the day of hearing, and the results of the vote.
A certificate will issue to the applicant for the bargaining unit set out in the Board's October 26, 1988 decision.