Brewery, Malt and Soft Drink Workers, Local 304 v. Alexandria Sash & Door Co. Limited, 1993 CanLII 8025

[1993] OLRB REP. APRIL 303

2716-92-R Brewery, Malt and Soft Drink Workers, Local 304, Applicant v. Alexandria Sash & Door Co. Limited, Responding Party v. Teamsters, Chauf­feurs, Warehousemen and Helpers, Local 91, Intervenor

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. A. Correll and B. L. Arm­strong.

APPEARANCES: John McNamee, J. Cameron Nelson and A lain Lajoie for the applicant; Daniel Dubois for the responding party; Harold F. Caley and Andre Papineau for the intervenor.

DECISION OF THE BOARD; April 16,1993

1. This is an application for certification. The applicant, Brewery, Malt and Soft Drink Workers, Local 304 (the "Brewery Workers") seeks to represent a unit of employees of the responding party Alexandria Sash & Door Co. Limited (the "company") currently represented by the intervenor Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91 (the "Teamsters").

2. At the request of the Brewery Workers, and pursuant to an earlier decision of the Board, a pre-hearing vote was directed. Arrangements were made between a Board Officer and the parties for the vote to be held at the company's premises in Eastern Ontario at three different times on January 22, 1993. Unfortunately, on January 22nd, the Board's Returning Officer was waylaid by a snow storm and missed the first two polling times. However, on agreement of the par­ties, a new time was substituted for the earlier two and voting proceeded that day. At the conclu­sion of the vote, the ballots were counted and the results made known to the parties. Of the 94 employees on the voting list, 87 cast ballots. 45 employees voted for the Brewery Workers and 41 for the Teamsters. There was one spoiled ballot.

3. On January 29th, 1993, the Board received a statement of desire from the Teamsters' General Counsel, which states in part as follows:

The Intervener Union objects to the manner of the vote in that due to the late arrival of the Board Officer and the necessity for a change in the polling times, a number of eligible voters were not afforded the opportunity to vote on January 22, 1993. Since a number of eligible voters were thus denied the opportunity to vote, the Intervener Union hereby respectfully requests that another vote be held to determine the wishes of the employees in respect of the Application to Terminate Bargaining Rights.

On January 22, 1993, a vote was scheduled to be held at two (2) locations and three (3) times as follows:

1. Cafeteria, 95 Lochiel Street East, Main Floor Alexandria, 6:45 A.M. to 7:45 A.M.

2. Main Floor Lunchroom, R.R. #3 Alexandria Lochiel, 8:15 A.M. to 8:30 A.M.

3. Cafeteria, 95 Lochiel Street East, Main Floor Alexandria, 3:00 P.M. to 3:45 P.M.

Due to the unavoidable delay of the Board Officer to Alexandria. certain drivers working out of

95 Lochiel Street East were not able to vote at 6:45 A.M. to 7:45 A.M. Given the nature of the

business, drivers would be dispatched and not back at the employer's location till after 3:45

P.M. These drivers were thus deprived of the opportunity to cast their vote.

The Intervener Union, through Mr. Andre Papineau, had advised the Board Officer of the Intervener's concern of the lack of opportunity for certain drivers to vote.

Four (4) drivers were affected and unable to cast their votes. The Intervener Union would request that the Board order another vote to take place.

The Intervener Union would request a hearing before the Board.

The Board scheduled a hearing to deal with the matters raised in the statement.

I

4. At the hearing both parties called evidence as to the events of January 22nd. Mr. Andre Papineau testified on behalf of the Teamsters. He has been the president of Local 91 since May 1990. Prior to that he was the business representative. Mr. Papineau testified that the 6:45 a.m. polling time had been specifically requested by the Teamsters to accommodate the schedules of certain drivers who leave early each morning for lengthy trips out of town. He said that when the 6:45 a.m. and 8:15 a.m. polls were missed and a proposal was made to replace those times with a 12:15 p.m. to 1:15 p.m. polling time, he asked the Board Officer about the people who would not now have the opportunity to vote. In examination-in-chief, Mr. Papineau said that the Board offi­cer replied, "let's go ahead with the vote anyway. If the difference is so big that it wouldn't impact the result, then there's no harm done. If the results are such that it would have made a difference, then you've got all the grounds for a re-vote.". In cross-examination, Mr. Papineau said that the officer's reply was, "you've got good arguments or all the arguments for a re-vote". Mr. Papineau later repeated the first of the answers given in cross-examination. Mr. Papineau said that this dis­cussion took place in front of the scrutineer for the company, Marc Poirier, and for the Brewery Workers, Alain Lajoie. On the basis of that reply, Mr. Papineau testified that he agreed to pro­ceed with the modified voting schedule.

5. At the completion of the balloting, the scrutineers, including Mr. Papineau on behalf of the Teamsters, signed the Board's "consent and waiver" form. This form 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 22nd day of January, 1993.

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

The same parties, along with the Board's Returning Officer, also signed the Board's "certification of conduct of election" form. The material part of this form states:

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.

Mr. Papineau acknowledged that he made no comments about the possibilities of a re-vote when signing these forms.

6. Mr. Alain Lajoie testified on behalf of the Brewery Workers. Mr. Lajoie is the chief steward for the Teamsters and acted as the scrutineer for the Brewery Workers. He was present during the discussions for the revised voting arrangements. Mr. Lajoie testified that he did not know whether Mr. Papineau asked any questions about the employees who would be unable to vote. He added, however, that although the Board Officer may have said something about what might happen if the vote was "close", nothing was said about a re-vote. Mr. Lajoie was not cross-examined on this point.

II

7. Counsel for the Teamsters describes this as an "unusual case". He submits that it ought not to be viewed as a contest between two litigants, but relates to the integrity of the Board's vot­ing process and to the rights of employees to vote. Counsel says that when the first two polling times were missed, the vote should have been cancelled. Instead, the parties dealt with the practi­cal issue confronting them by entering into an "unfortunate arrangement". This arrangement had the effect of disenfranchising seven voters. According to counsel, the parties ought not to be in a position to take away, by agreement, the rights of a single employee to cast a ballot. It is not up to the parties to determine when a vote does or does not have significance. The Board has an interest, counsel suggests, in ensuring that all representation votes are conducted properly so that there will be no second guessing by the parties about the outcome. Counsel seeks a new vote and relies on the following authorities: Metroland Printing & Publishing Ltd., (Board File No. 1040-81-R deci­sion dated February 26, 1982, unreported); Rainy River Valley Health Care Facilities, Inc., [1985] OLRB Rep. Feb. 316; and Cable Tech-co Ltd., [19881 OLRB Rep. June 562.

8. Counsel for the Brewery Workers notes that on the basis of Mr. Papineau's own evi­dence the Teamsters were quite prepared to "disenfranchise" voters, so long as it would not impact on the outcome of the vote. In these circumstances, counsel submits, the Teamsters are in no position to be raising the rights of employees to vote. In any event, counsel points out that the possibility of certain eligible employees being unable to participate in a representation vote is an ever-present feature of the system. Voting times are set by agreement of the parties, and there is no guarantee that all of the employees on the voters' list will be able to vote at the agreed times.

9. Counsel suggests that the Teamsters could have deferred the vote to another day. Instead, the parties agreed to proceed that day with no guarantees or promises about the outcome of the vote or opportunities for a re-vote. The parties then signed the waiver forms from which the Teamsters now seek to resile. In answer to a suggestion by counsel for the Teamsters that there would be no prejudice in having another vote, counsel for the Brewery Workers points out that three months have passed since the expiry of the collective agreement, and the employees ought not to be required to wait any longer to know who will be their bargaining agent. Counsel for the Brewery Workers relies on the following authorities: Bermay Corporation Limited, [1980] OLRB Rep. Feb. 166; Bravo Cement Contracting Ltd., [1980] OLRB Rep. Oct. 1354; Ontario Cancer Foundation, Hamilton Clinic, [1983] OLRB Rep. Feb. 246; Golden Griddle Restaurant, [1983] OLRB Rep. Oct. 1651; United Plastic Components Ltd., [1984] OLRB Rep. Nov. 1636; and Northfield Metal Products Ltd., [1989] OLRB Rep. Jan. 57.

III

10. The Board agrees with counsel for the Teamsters that it has a definite interest in ensur­ing the integrity of the voting process, but takes a different view of what that interest demands under the circumstances.

11. Voting arrangements are typically made on agreement of the parties. The process was described by the Board in Rainy River Valley Health Care Facilities, Inc., supra, at para. 14, as fol­lows:

The timing of a representation vote is a matter which lies within the discretion of the Board. See section 103(2) [now section 105(2)] of the Labour Relations Act and section 68(a) and (c) of the Board's [former] Rules of Procedure. While the Board exercises these powers, it does so after consulting with the parties who are affected by the representation vote. These parties are in a better position to know the nature of the respondent's business and the impact that this may have on the conduct of a representation vote. Clearly, the availability and opportunity of employees to cast ballots in a representation vote is affected by predictable factors such as shift work, scheduling of work, reassignment, holidays and vacations. The availability and opportu­nity of employees to cast ballots is also affected by unpredictable factors such as illness, injury and weather. In the process of settling the date and hour of a representation vote, the Registrar provides the parties with suggested dates and asks for the agreement of the parties to two dates on the understanding that both of these dates are available for the Board to conduct the repre­sentation vote. The Board usually conducts the representation vote on the earlier of the two dates. However, for the purposes of flexibility and availability in utilizing its staff, the Board requires two dates which are equally acceptable to the parties.

In this case, the alternate date was January 29, 1993.

12. As the passage from Rainy River indicates, although the Board has the authority to determine the timing of representation votes, it routinely exercises this authority in consultation with the parties. It does so in recognition of the fact that it is the parties themselves who are best able to assess their workplace situation and determine the times that will maximize voter turn-out. Although the Board is not bound by these agreements, it typically seeks to accommodate them.

13. Once voting arrangements have been made, however, they are not quite cast in stone. Flexibility remains a hallmark of the labour relations process. Parties, under the auspices of the Board, are sometimes able to accommodate the unexpected. In Golden Griddle Restaurant, supra, for example, the parties agreed to amend the voters' list after the vote had been conducted but prior to the counting of the ballots in order to add the names of four individuals who had cast seg­regated ballots. This agreement was recorded on the "waiver and consent" form and enforced by the Board when one party sought to resile from it.

14. At any time during the balloting, or after the vote has been conducted, parties are also able to raise any concerns they may have about the regularity and sufficiency of the balloting or about the fairness of the voting process. In some cases, this may result in the ballot box being sealed and the votes being counted at a later date after the parties have had a chance to consider their positions and, possibly, make representations to the Board. Alternatively, the ballots may be counted immediately and the results made known to the parties forthwith. It is a truism in the cer­tification process that "labour relations delayed are labour relations defeated and denied" and an early outcome is generally preferred by all parties. However, given the temptations for an unsuc­cessful party to seek to have an unfavourable result overturned, the Board requires the parties to sign "consent and waiver and "certification of conduct of election" forms prior to an immediate count. This requirement seeks to accommodate the need for expedition to the certainty required by the Board's election and certification process. It will only be in the most exceptional cases that parties who have derived the benefit of an expeditious result will not be held to their signed waiv­ers. There is a natural skepticism that arises when an unsuccessful party seeks, for the first time, to raise allegations before the Board about pre-vote conduct only after the results of the vote have been made known.

15. The importance of the waiver process and the effect of a signed waiver was described by another panel of the Board in Golden Griddle Restaurant, supra, at pages 1652-1653, paras. 8 and 9:

16. A general policy of enforcing waivers serves the purpose of finality. From the moment a waiver is executed, the parties are assured that the result of the vote will not be overturned. A union that wins an election is quickly granted a certificate and so is able to immediately call management to the bargaining table. In the converse situation, an application for certification is promptly dismissed, freeing an employer to deal directly with the work force. Whatever the outcome, the parties can conduct their affairs accordingly, secure in the knowledge that any expectations oracts of reliance generated by the election will not be rudely unsettled. Finality would be served equally well by enforcing waivers signed either before or after ballots are counted. But only a waiver executed in advance of the count serves another purpose. As the election result is not yet known at this stage - even though educated guesses may sometimes prove to be accurate - there is less incentive, than after the count, to grasp at straw objections in order to avoid an unfavourable outcome. Indeed, there is always the risk that objecting at this time will negate an election that the objector won. In short, the uncertainty which prevails before ballots are tallied has a sobering influence on those who might otherwise cloak concerns over the outcome in manufactured objections to the propriety of the election.

17. What should be the Board's response to waivers entered into through inadvertence? To set a waiver aside whenever a mistake is made would be to dangerously undercut the objectives identified above. Moreover, some mistakes do not deserve relief. Consider, for example, an employer or a union that -unknown to the other party - errs in calculating the hours worked by an individual, then agrees that this person is eligible to vote as a full-time employee, but after the count discovers the error and objects to the election on this ground. Even though this objection is one of substance - the person concerned is not a member of the bargaining unit - finality ought not to be compromised to rescue a mistaken party from its own carelessness.

18. Similarly, in United Plastics Components Ltd., supra, another panel of the Board stated at page 1640, para. 17:

A Board is naturally skeptical when allegations of earlier misconduct are raised only after the outcome of a representation vote is known. The Board is not prepared to permit a party losing a representation vote to cast about for any basis upon which to set aside the vote. If improprieties occurred which could have been discovered through due diligence and founded a complaint before the Board, those improprieties could well have been remedied before the vote was conducted. Or, the ballot box could have been sealed pending the outcome of the hearing into the allegations and a new vote directed, if necessary, after the appropriate relief had been ordered. The "due diligence" standard, then, prevents a party from having "two kicks at the can".

17. In this case, of course, it is the position of the Teamsters that these general principles do not apply or, in the alternative, that it exercised due diligence in raising its concerns prior to the vote having been conducted and the waivers signed. The Board does not agree.

18. While the evidence is that Mr. Papineau may well have raised a question with the Board Officer about the employees who might not be able to vote as a result of the changed times, the Board cannot find that any representation was made, or agreement struck, as to the possibility of a re-vote. The variable nature of Mr. Papineau's statements, the direct contradiction of these state­ments by Mr. Lajoie, the absence of any cross-examination of Mr. Lajoie on this point, the failure to refer to the representation or agreement in the statement of desire or to raise or record it when the "consent and waiver" and "certification of conduct of election" forms were signed, all tell against the Teamsters' position. While it bears noting that the Board's Returning Officers are not in a position to promise re-votes, had such a representation been made it is not too much to expect someone in the position of Mr. Papineau to have sought to record it as part of the wavier process. In the circumstances, therefore, the Board will not direct a second vote.

19. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

20. Having regard to the agreement of the parties, the Board further finds that all employ­ees of Alexandria Sash & Door Co. Limited employed at Alexandria, Ontario and at Lochiel, Ontario, save and except foremen, supervisors, those above the rank of foremen and supervisors, office staff and persons regularly employed for not more than twenty-four (24) hours per week~ constitute a unit of employees of the responding party appropriate for collective bargaining.

21. The Board is satisfied that not less than thirty-five per cent of the employees of the responding party in the bargaining unit were members of the applicant at the time the application was made.

22. On the taking of the pre-hearing representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant.

23. A certificate will issue to the applicant.

24. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.