Ontario Labour Relations Board

[1991] OLRB Rep. March 316

1211-90-R Independent Canadian Transit Union, Applicant v. Hopital Montfort, Respondent v. International Union of Operating Engineers, Local 796, Intervener

BEFORE: Brain Herlich, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.

APPEARANCES: M. Van Dusen and G. Gifford for the applicant; S. Y. Turenne and R. Bordeleau for the respondent; J. J. Slaughter and C. Gastonguay for the intervener.

DECISION OF THE BOARD; March 25, 1991

1. Subsequent to a representation vote held in the matter, this application for certification was dismissed by a decision of the Board dated December 24, 1990.

2. During the course of those proceedings the applicant requested that the Board direct a new representation vote. These are the reasons for the Board's decision, orally at the hearing, to deny that request.

3. The ballot employees marked in the course of the vote was as follows:

Essentially, the applicant's position was that a new vote ought to be directed since, although the ballot was otherwise bilingual, the applicant's name therein appears in English only.

4. Some background information is necessary to understand the context of the applicant's request. The following recitation either emerges directly from the Board's record or consists of facts all parties were willing to accept as true for the purposes of the intervener's motion to dismiss the applicant's request.

5. This application was filed on August 1,1990. The application was filed in English. Membership evidence filed in support of the application was filed in English. The Form 9 filed in respect of the application was filed in English.

6. The respondent's reply, dated August 22, 1990, was filed in French and explicitly requested that all procedures as well as the members of the panel be bilingual.

7. As is the usual practice in pre-hearing vote applications, the parties, pursuant to the Board's decision of August 16, 1990, met with a Labour Relations Officer on August 28, 1990 to deal with various matters relating to the application and a written report, signed by the parties, was prepared. In this report the applicant is listed as "Independent Canadian Transit Union". However, in Appendix E to the report which deals with the vote arrangements, the applicant is listed as "Independent Canadian Transit Union Syndicat Independent Canadian Transport". In the portion of the Appendix which deals with positions on the ballot the following appears:

Independent Canadian Transit Union

Syndicat Independent International Union of Operating Engineers Local 796

Further, while the Appendix indicates that ballots are to be in French and English, no explicit request is made in the Appendix (or elsewhere in the report) that the applicant's name appear on the ballot in English and French.

8. Under a covering letter dated September 14, 1990 the Registrar forwarded a copy of Form 69, Notice of Taking of Vote, to the parties. The notice indicated that the vote would be held on September 19, 1990 and included a sample ballot in the form already outlined in paragraph 3 above.

9. The applicant received and reviewed the Form 69 and the sample ballot on September

17, 1990. It decided not to raise the issue of its name appearing in English only at that time. The

applicant felt that the negative effects of a possible delay of the vote (which had already been postponed by a week) which might result from having to change the form of the ballot on short notice

would outweigh those of its name appearing on the ballot in English only.

10. The vote was held, as scheduled, on September 19, 1990. At the conclusion of the balloting Mr. Larabie, on behalf of the applicant signed a Certification of Conduct Of Election form which provides, inter alia, as follows:

We, the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the time and place mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given the opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.

11. In addition, Mr. Griffin, on behalf of the applicant, signed a Consent and Waiver form which provides, inter alia, as follows:

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 19th day of September, 1990.

AND WE hereby waive any objection as to the regularity and sufficiency of the balloting.

12. No objection was made at that time to the sufficiency of the ballot used in the vote. The ballots were counted: 61 ballots were marked in favour of the intervener; 59 ballots in favour of the applicant; and 8 ballots were segregated and not counted.

13. By letter dated September 21, 1990 the applicant requested a hearing and raised, for the first time with the Board, the issue of the sufficiency of the ballot used in the representation vote.

14. A number of aspects of the campaign between applicant and the intervener leading up to the vote as well as some developments subsequent to the vote are relevant to the parties' submissions and our determination.

15. A number of documents were filed with us on the consent of the parties. These consisted chiefly of propaganda pamphlets prepared by the applicant or the intervener in support of their campaigns to win the representation vote. We pause to note that documents prepared by both unions contain the kinds of exaggerations and dubious presentation or interpretation of the Labour Relations Act one might expect to find in the context of a closely fought election campaign. No one suggested, and neither do we, that any of these questionable statements constitute violations of the Act. They do, however, underscore the wisdom of the Board's general policy not to act as a referee between competing parties to a representation vote.

16. In any event, it is fair to say that, among others, two issues surfaced during the propaganda war between the unions: the ability of the applicant to provide services in French and the possible delay and lack of collective agreement protection which might flow from a change in bargaining agents.

17. The applicant has also submitted that employees may have been confused about their votes since the applicant was not referred to by its French name as had been the case on much of its propaganda literature. However, the only evidence supporting this claim was in the form of a letter signed by Mr. Larabie with an accompanying petition signed by 16 employees. The intervener initially objected to the Board receiving these documents in evidence. This objection may have been well founded for many reasons including the fact that although the letter was dated October 16, 1990 and addressed to the Registrar, the applicant took no steps to file it with the Board until the hearing (i.e. approximately a month later and approximately 2 months after the vote). In any event, while maintaining its right to pursue the objection in a different context, the intervener (and the respondent) agreed to file these documents with the Board only for the purpose of the present determination.

18. Mr. Larabie's letter reads, in part, as follows:

…….During the days that followed the vote, several of my fellow workers expressed their disappointment to me at not having found the name of one of the unions in French. They were expecting to read "SYNDICAT CANADIEN INDEPENDANT DES TRANSPORTS" rather than "CANADIAN INDEPENDENT TRANSIT UNION" [on the ballot].

In order to correct this situation, my colleagues have signed a petition by which they are asking that you,

1. hold another election,

2. insure that the names of the unions as well as the necessary instructions appear on the ballots in French.

[Translation]

19. The preamble to the petition attached to Mr. Larabie's letter reads as follows:

We the undersigned hereby request:

1. that the election of September 19, 1990 held by the Ontario Labour Relations Board be cancelled;

2. that the Board hold another election at Hopital Monifort;

3. that the ballots for this new election be printed in French as well [as English].

[Translation]

20. We are not persuaded that, even accepting all the facts as pleaded by the applicant, these are circumstances in which we should exercise our discretion to direct holding a new vote.

21. The jurisprudence of the Board is replete with decisions in which the Board has not allowed a party to resile from its previous agreements and, more particularly, has not allowed a party to challenge the propriety of a vote it has previously certified as proper notwithstanding its prior knowledge of the defect subsequently complained of. The seminal expression of this view is found in Chateau Gardens (London) Inc., [1977] OLRB Rep. Jan. 12 at para 8 where the Board observed:

If the circumstances described to the Board in the CLAC's evidence was true and had due diligence with respect to the wrongdoings been exercised then adjustments could have been made to correct the alleged shortcoming. In other words, it does not lie in the mouth of a party to exploit to its own advantage a rule that was designed to assure fairness in the conduct of the vote. We find 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 the taking of the vote.

22. This sentiment is echoed in numerous other Board cases including The Salvation Army Grace Hospital, Windsor, Ontario, [1965] OLRB Rep. Nov. 539; Lecours Lumber Company Limited, [1972] OLRB Rep. Nov. 982; Laurentian University of Sudbury, [1979] OLRB Rep. July 672; Bermay Corporation Limited, [1980] OLRB Rep. Feb. 166; Golden Griddle Restaurant, [1983] OLRB Rep. Oct. 1651; and Northfield Metal Products Ltd.,[1989] OLRB Rep. Jan. 57.

23. The applicant in the present case apparently commenced its organizing campaign in English - its application and membership evidence were entirely unilingual. During the course of the campaign the applicant became more sensitive to the issue of provision of services in French as a result (at least in part) of some of its opponent's propaganda. But while most of its campaign literature was prepared in a bilingual form, the applicant made no explicit request of the Board at any time prior to the vote that its name appear in both languages on the ballot. Further, once the applicant was provided with a copy of the sample ballot it failed to take any of the opportunities available to it either before or at the vote, to raise its concern with the Board. It was only after the results of the vote were known that the applicant first chose to raise the issue with the Board.

24. The applicant agreed that it should not be permitted to "lie in the bushes" in the fashion described in Chateau Gardens case supra. It denies that this is what it has done. It argues that faced with what it viewed as the choice between possibly delaying the vote and not challenging the sufficiency of the ballot, it swallowed hard and opted for the latter. It was only after the vote that the applicant was provided with information, reflected in Mr. Larabie's letter and accompanying petition, which led it to conclude that voters may have been confused and caused it to seek a new vote.

25. In many ways this really is the heart of the matter. The applicant made a difficult and conscious political choice not to challenge the ballot despite its view, prior to the vote, of its insufficiency. Now, with the benefit of hindsight, the applicant concludes that it may have made the wrong choice and asks the Board to rectify that error on its behalf. Just as Board cases such as Golden Griddle, supra, have suggested that the finality of a vote ought not to be compromised to rescue a mistaken party from its own carelessness or inadvertence, neither should the Board be called upon to correct conscious judgements and political calculations which events may show to have been misguided.

26. It should be clear that we have not been persuaded, on the basis of the material and submissions before us, that any individual employees were actually confused about how to exercise their franchise because the applicant's name appeared on the ballot only in English. Even if such an inference were attractive it would not follow that our confidence in the integrity of the vote would be so undermined as to cause us to order a new vote. As the Board in Northfield Metal, supra, observed, the test to be applied in the circumstances would not be based on the most gullible or, in our case, most confused vote, but rather the "reasonable voter who is possessed of critical faculties and the ability to assess issues and inquire on his or her own behalf'. In the circumstances of this case, we are not convinced that a reasonable voter would be unable to distinguish between the applicant and the intervener because the former's name appeared on the ballot in English only.

27. In many ways the facts of the present case closely resemble those in Lecours Lumber, supra, although the impugned ballot in that case was entirely unilingual. For reasons which support and are similar to ours in the present case, the Board did not permit the respondent to object to the sufficiency of the ballot when no such objection had been raised prior to the taking of the vote and the signing of the relevant waiver forms. We cannot leave consideration of the Lecours case without a final important observation. Obviously, the very facts of the present case demonstrate that the Board's statement in Lecours that "the consistent practice of the Board, even where all of the parties have requested that the ballots be printed in French as well as in English is to supply ballots in the English language only" has been overtaken by events. There have been significant changes in the social and legislative context in the approximately twenty years since the Lecours decision. Indeed, had the applicant in our case made a timely request, there is no reason to doubt that the Board would have provided the very kind of ballot now asserted to be appropriate. (Neither is it certain that a delay in holding the vote would have been required.) What has not changed, however, in the twenty years since the Lecours case is the Board's aversion to allowing a party obviously unhappy with vote results to challenge the vote on the basis of alleged deficiencies known but not acted on or identified prior to disclosure of the vote results.

28. It was for all of these reasons that we ruled orally at the hearing that the Board would not direct a new vote.