[1992] OLRB Rep. October 1093
0874-92-R Kenneth W. Lyon, Applicant v. Retail,Wholesale and Department Store Union AFL:CIO:CLC, Respondent v. Peacock Lumber Ltd., Intervener
BEFORE: Janice Johnston, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.
DECISION OF THE BOARD; October 19, 1992
This is an application under section 58 of the Labour Relations Act (the "Act") for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent. The Board by decision dated August 4, 1992 directed that a representation vote be conducted to determine whether the employees of the intervener Peacock Lumber Ltd. (the "Employer") in the bargaining unit wished to continue to be represented by the respondent union.
The parties met with a Labour Relations Officer on August 4, 1992, agreed to have the vote on August 27, 1992 and also agreed to September 3, 1992 as an alternate voting date. It is the Board's practice to arrange for the vote on the earliest date agreed to by the parties if possible, and that is what occurred in this case. Subsequent to the meeting with the Officer the employer received a request for vacation for medical reasons from one of the employees in the bargaining unit, Mr. Wayne Wood. The employer granted this request even though it meant that Mr. Wood would be out of the province on August 27, 1992, the date of the vote. The employer by letter dated August 21, 1992 to the Board's Manager of Field Services requested that the vote be adjourned. As the bargaining unit consists of only eleven individuals the intervener requested the adjournment to ensure that all of the employees entitled to vote could in fact cast ballots. In the alternative, the employer requested that Mr. Wood be permitted to vote either by proxy or to submit a ballot by mail. In the final alternative, the employer requested that the Board seal the ballot box and allow the employee in question Mr. Wood, to cast a ballot upon returning to work. The request to adjourn the vote and the request to allow Mr. Wood to vote by proxy or by mail were denied by the Board and the vote took place on August 27, 1992.
Immediately after the voting was concluded .all three parties signed a consent and waiver form. That form reads as follows:
SCHEDULE "B"
CONSENT AND WAIVER
FILE NO. 0874-92-R
BETWEEN:
Kenneth W. Lyon,
Applicant,
- and -
Retail, Wholesale and Department Store Union AFL:CIO:CLC,
Respondent,
- and -
Peacock Lumber Ltd.
Intervener.
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 27th day of August, 1992.
WE the undersigned hereby agree that the following persons:
"K. Lyon"
are eligible for inclusion in the bargaining unit and that their ballots should be counted; and that the following persons:
should not be included in the bargaining unit and that their ballots should not be counted;
AND WE hereby waive objections as to the regularity and sufficiency of the balloting
DATED AT Oshawa, Ontario on 27th day of August, 1992.
"Ken Lyon"
FOR THE APPLICANT
"J. Pound"
FOR THE RESPONDENT
"Terry Vail"
FOR THE INTERVENER
Therefore the employer agreed to count the ballots immediately and waived any objections to the regularity and sufficiency of the balloting. The parties also signed the form entitled Certification of Conduct of Election which states:
File No. 0874-92-R
BETWEEN:
Kenneth W. Lyon,
Applicant,
- and -
Retail, Wholesale and Department Store Union AFL:CIO:CLC,
Respondent,
- and -
Peacock Lumber Ltd.
Intervener.
CERTIFICATION OF CONDUCT OF ELECTION
DATE OF ELECTION - THURSDAY, AUGUST 27, 1992 PLACE OF ELECTION - Oshawa, Ontario
WE the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the date and place above mentioned. 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.
"Ken Lyon"
For Applicant
"J. Pound"
For Respondent
"Terry Vail"
For Intervener
"S. Beth Wild”_________________
Returning Officer
Ten persons cast ballots and the vote resulted in a five-five tie.
The Board is in receipt of a letter dated September 3, 1992 wherein the employer pursuant to the procedure set out in the Notice of Report of Returning Officer Before the Ontario Labour Relations Board (Form 70) has requested that the employee who missed the vote, Wayne Wood, be allowed to cast a ballot and that this ballot be included in the final count of the ballots.
Section 105(2)(f) of the Act and Rule 68 of the Board's Rules of Procedure make it clear that the timing of a representation vote falls within the Board's discretion. However, the Board generally through a Labour Relations Officer, consults with the parties and finalizes the voting arrangements based on the agreement of the parties. The parties are provided full opportunity for input into the details of the vote arrangements. It is they who are aware of the availability of employees and the nature of the employer's business. In this case the employer does not dispute that it concurred in the voting arrangements at the Officer's meeting.
In its letter dated August 21, 1992 the employer requested that Mr. Woods be allowed to vote by proxy. It has long been the practice of the Board to reject requests for votes by proxy. The dangers inherent in allowing proxy votes certainly outweigh any benefit to be derived from their use. A representation vote normally follows on the heels of vigorous campaigning by the various parties. The atmosphere in the workplace in the weeks immediately prior to the taking of a vote is often emotion charged, as those individuals who have determined the way their vote shall be cast, attempt to sway those who are undecided to their position. If the Board were to allow proxy votes we could potentially be setting up a scenario in which inappropriate pressure to cast their ballot in a certain fashion is brought to bear upon those individuals, who for whatever reason, will not be in attendance on the day of the vote. These observations should not be taken as the Board envisioning Machiavellian plots that do not exist and we do not suggest that improper conduct would inevitably occur. However, the potential for abuse would certainly exist.
Counsel for the respondent in his letter dated August 21, 1992 also requested that Mr. Wood be permitted to submit a ballot by mail. In the past, on a few occasions, the Board has allowed balloting by mail. The vast majority of these cases involve occasional teachers who do not have a permanent workplace. In the situation where voting has been conducted by mail, all the individuals entitled to vote have voted in this fashion. It would have been inappropriate in this case to allow one individual to cast a ballot by mail while all others voted in person. Balloting by mail raises many of the same concerns as voting by proxy. Workplace realities do not favour balloting by mail. Scrutineers would not be able to safeguard the process and voters could be inappropriately swayed. Votes work in part because of the secrecy of the ballot box. This is potentially lost in mail-ins.
The Board's practices as outlined in the previous paragraphs are not completely inviolate. If the parties agree to unusual voting arrangements (i.e. proxy voting, advance polls, voting by mail etc.), as a result of exceptional circumstances, the Board will consider and endeavour to accommodate such requests. We would hope that this type of emergency accommodation would be rare as it is incumbent on the parties to familiarize themselves as much as possible with the voting constituency to ensure that existing difficulties are taken into account before a vote date is agreed upon.
In the case before us immediately after the vote, the employer representative signed the Consent and Waiver form and the Certificate of Conduct of Election Form. The employer thereby agreed to an immediate counting of the ballots and waived any objections as to the voting process. In Bermay Corporation Limited, [1980] OLRB Rep. Feb. 166 the Board made the following observations concerning the implications of signing the consent and Waiver form:
Normally when all of the ballots are in the box following a representation vote the parties are given the opportunity of having the ballots counted immediately by the Board's Returning Officer. That way parties can learn right away what their collective bargaining situation will be as a result of the vote. A further advantage to an immediate count is that the result may render academic outstanding issues attaching to the application and eliminate the need for further litigation. The Board will not, however, count the ballots immediately after the vote unless it is clear that both parties are prepared to be bound by the result of the count. The Board therefore requires the parties to sign a "Consent and Waiver" form prior to counting the ballots. In this case the Consent and Waiver form presented to the parties states:
"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 17th day of September, 1979.
And we hereby waive any objections as to the regularity and sufficiency of the balloting."
Prior to the counting of the ballots the above form was signed by Mr. Dorfman for the union and by Mr. Brisbin, the employer's counsel, for the company.
- The employer, by objecting now to the union's scrutineer, is attempting to go back on that understanding. Having first waived any objection to the conduct of the vote it is not open to the employer to complain about the regularity of the balloting now having learned that the result of the vote was favourable to the union. That is precisely what the Consent and Waiver form is designed to prevent. If the Company had wished to pursue its objection it should have requested that the ballot box be sealed and the ballots not be counted pending a ruling on the merits of its complaint. Having failed to do so it may not now deny its counsel's undertaking.
We would also draw the attention of the intervener to the Certification of Conduct of Election form which states that the parties agree that "all eligible voters were given the opportunity to cast their ballots in secret ...". This forms was signed by Terry Vail on behalf of the intervener. Therefore, on the facts before us, we decline to allow the employer to resurrect its request that Mr. Wayne Wood be allowed to vote.
The Board is also in receipt of correspondence dated September 23, 1992 wherein counsel for the employer raises a challenge concerning the jurisdiction of the Board's Manager of Field Services to make a decision with regard to whether or not the representation vote should or should not have been adjourned. Whether or not the Manager did or did not have the jurisdiction to make the decision he did is academic at this point. The decision to deny the adjournment has been reviewed by a panel of the Board. After carefully considering counsel for the employers' submissions, for the reasons set out in this decision we see no basis for interfering with the Manager's decision not to adjourn the vote.
The Board therefore, for the reasons outlined, confirms that Mr. Wayne Wood was not entitled to cast a vote by proxy or by mail prior to the vote taking place, nor is he entitled to do so now. The respondent's request that he be allowed to do so is hereby denied.
On the taking of the representation vote, not more than fifty per cent of the ballots cast were cast in opposition to the trade union. This application is therefore dismissed.