The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW Canada) and its Local 112 v. Toromont, a division of Toromont Industries Ltd., 1994 CanLII 9877

[1994] OLRB Rep. August 1149

1016-94-U The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW Canada) and its Local 112, Applicant v. Toromont, a division of Toromont Industries Ltd., Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.

APPEARANCES: Frank Luce, Fizuc Karim and John Amato for the applicant; David Cowling, John Fenton and Jayson Rider for the responding party.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER R. W. PIRRIE; August 9, 1994

1. The name of the responding employer is amended to "Toromont, a division of Toromont Industries Ltd.".

2. This is an application in which the applicant trade union alleges that the responding employer ("Toromont") violated section 73.1 of the Labour Relations Act by using replacement workers during the course of a lawful strike.

3. Upon considering the evidence and representations of the parties at the hearing held on June 27th and 28th, 1994, the majority of the Board, Board Member Grasso dissenting, ruled, orally at the hearing on June 28, 1994, that it was not satisfied that the strike vote held by the trade union in this case was conducted in accordance with the provisions of section 74(4) of the Labour Relations Act, and that the strike in which the trade union is engaged, although lawful, is therefor not a strike to which section 73.1 applies. The Board further ruled that this application must therefore be dismissed.

4. Section 73.1 of the Labour Relations Act provides that:

73.1- (1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them; ("employeur")

"person" includes,

(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and

(b) an independent contractor; ("personne")

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work. ("lieu d'exploitation a l'egard duquel la greve ou le lock-out a lieu")

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be, (a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.

(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lockout is taking place:

1. An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3).

5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.

(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee.

(8) No employer shall,

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

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

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

because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.

(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.

(emphasis added)

5. In this case, the following was common ground.

(a) The trade union was certified as the exclusive bargaining agent of certain employees of Crothers Limited in 1970.

(b) The most recent collective agreement between the trade union and Crothers Limited was effective from February 15, 1991 to February 7, 1994.

(c) Toromont purchased the assets of Crothers Limited in August, 1993 and is, for labour relations purposes, a successor employer of Crothers Limited.

(d) Toromont is the exclusive dealer for Caterpillar products in Eastern Ontario. It has several branches, the largest of which is located in Concord (the Toronto branch), which is also the company headquarters. The (now expired) collective agreement covers the warehouse and service employees at the Toronto branch.

(e) The applicant gave notice to bargain on November 12, 1993.

(f) The applicant applied for conciliation on January 24, 1994. A Conciliation Officer was appointed on February 2, 1994.

(g) The Minister issued a "No Board" report on February 14, 1994.

(h) On February 23, 1994, the applicant gave notice to the company in writing that a strike would begin on March 7, 1994.

(i) A lawful strike began on March 7, 1994, and was continuing as of the date of the hearing herein.

6. The trade union also pleaded that it "... held a strike vote on February 6, 1994, in accordance with s. 74 of the Act, and in excess of 60% of those voting authorized a strike." Toromont pleaded that it "has no knowledge of this material fact."

7. When the hearing convened, Toromont moved that the trade union be required to proceed first and establish that all the statutory preconditions to the application of section 73.1 have been met; namely, that the strike vote which had been held had been conducted in accordance with subsections 74(4)-(6) and that at least sixty per cent of those voting had authorized the strike. Counsel said that this would also give him an opportunity to review the additional particulars and documents which had been delivered by the trade union minutes before the hearing had begun.

8. The trade union opposed this motion. Counsel submitted that section 73.1 clearly provides that the burden of proof in an application like this one is on the employer, and that the Board ought not bifurcate the proceedings, and should not deal with technicalities, but rather should proceed and deal with the merits of the application as a whole. Counsel argued that Toromont should not be allowed to even pursue any issue regarding the conduct and results of the strike vote because it had neither made nor particularized any allegation in that respect. Counsel also said that the Board should be "astounded" at Toromont's position in that respect because in other proceedings, initiated by the employer, it had asserted that this strike was one within the meaning of section 73.1, which should be taken as an admission against Toromont's interest in this case that all the preconditions had been met.

9. By majority decision, Board Member Grasso dissenting, the Board ruled (orally) that it would first inquire into whether the preconditions set out in section 73.1(2) had been met, and that the trade union should proceed first in that respect.

10. The delivery by the trade union of further particulars and documents virtually at the hearing room door did not factor into the Board's determination in this respect. Further, the "other proceedings" referred to by the trade union have apparently been adjourned sine die without any determination of any issue. The Board did not consider that a position adopted by a party in other proceedings, which may never go any further, was relevant to its determination of this motion.

11. Subsection 73.1(2) specifically states that section 73.1 applies during a lawful strike that is authorized by a strike vote conducted in accordance with subsections 74(4)-(6), after the notice to bargain was given or bargaining had begun and in which sixty per cent or more of those voting authorized the strike. A strike vote held in accordance with subsections 74(4)-(6) is mandatory. The section 73.1 prohibition against the use of replacement workers does not apply to a lawful strike which has not been authorized by such a strike vote. This is the only provision in the Act which requires a trade union to hold an internal vote. The requirements of subsection 73.1(2)are not mere "technicalities". Nor are they hurdles constructed by the Board. They are statutory preconditions, imposed by the Legislature, which must be met before the prohibitions against the use of replacement workers apply. It is the statute itself which makes the authorization of the lawful strike an issue. It is not necessary for an employer to do so. Indeed, an employer will usually have little or no information with respect to how a strike vote has been conducted, and the nature of a strike situation as such that it would be counterproductive, from a labour relations perspective, to require an employer to conduct the sort of investigation which would be necessary for an employer to inform itself in that respect. Consequently, if an employer challenges a trade union's right to invoke section 73.1 on the basis that the requirements of subsection 73.1(2) have not been met, the trade union bringing an application under section 73.1 must establish that section 73.1 applies to the strike in which it is engaged, by establishing that these statutory preconditions have been met.

12. Subsection 73.1(9) of the Act places the burden of proof that an employer has not acted contrary to section 73.1 on that employer. But this does not mean that the evidentiary onus for each and every issue in a s.73.1 application is necessarily on the employer as well. Where a responding employer challenges the authorization of the strike in which the applicant trade union is engaged, it may well make practical sense, as it did in this case, to have the trade union call its evidence on that issue first, particularly since the trade union will generally be the party which is in the best position to do so. This does not mean that a bifurcated hearing is necessary or appropriate in every case. How a particular application should proceed is something which can only be determined in the context of the case which the parties place before the Board. Further, although a trade may not be required to plead particulars of the strike vote upon which it relies, it may be wise for it to do so in order to avoid delays which might result if it does not.

13. In the course of the cross-examination of Fizul Karim, the trade union's plant Chairperson and first and main witness, counsel for the trade union objected to certain questions which seemed to suggest that Toromont had more information about what had gone on at the strike vote than it had let on. The trade union argued that Toromont should have particularized the facts suggested by its questions, and that it was obvious that Toromont had misled the Board by suggesting that it had no information about the strike vote which should cause the Board to reconsider its decision to require the trade union to first establish that the conditions in section 73.1(2) had been met, and that the Board should start the hearing all over again.

14. By majority decision, Board Member Grasso again dissenting, the Board ruled, orally, that the cross-examination with respect of the circumstances and conduct of the strike vote was proper, and that it would not reconsider its previous ruling. The Board accepted the explanation of counsel for Toromont that he had obtained some information regarding the strike vote over the lunch break and was satisfied that, in the circumstances, the facts being suggested to the witness need not have been particularized. The Board also observed that the evidence which Toromont was seeking to elicit in cross-examination was the kind of evidence which the Board expected to have put before it on the issue.

15. On the merits, the trade union argued that no employee has complained about the strike vote because there was nothing wrong with the way it was conducted. Counsel observed that section 74 has been in the Labour Relations Act for over twenty years and submitted that it should be given the same interpretation now as it was prior to the Bill 40 amendments to the Act of which section 73.1 was one. In that respect, counsel argued that section 74 requires nothing more than a ballot which contains nothing on it which might identify the person who cast it. Counsel submitted that the mere possibility that some employees observed how others voted should not negate the validity of the vote, having regard to the manner in which trade unions typically conduct such votes, and further that a concept of the secret ballot is a flexible one which it is appropriate to adapt to the circumstances. The trade union submitted that the evidence showed that most employees did not care if others knew how they were marking their ballots and that the vote results demonstrate strong support for the strike.

16. The evidence before the Board reveals that the trade union held a meeting of the bargaining unit at its hall in Downsview on February 6,1994, one day before the collective agreement actually expired, for the purpose of discussing the collective bargaining negotiations and holding a strike vote. To that end, the trade union posted notices on its bulletin boards at the facilities in which the bargaining unit employees are employed as follows:

NOTICE

LOCAL 112 C.A.W. TOROMONT

SPECIAL MEETING

TO ALL MEMBERS OF C.A.W. 112 UNIT - A meeting will be held on

Sunday, February 6, 1994

The Union Hall

at 10:00 a.m.

This meeting is to inform the membership of what has transpired between your Bargaining Committee and the representatives of the Company with regard to the union proposals.

Your attendance at this meeting is very important as a strike vote will be called.

IN SOLIDARITY.

John Kennedy President Fizul Karim Plant Chairperson Rick Bobins Bargaining Committee Karl Behrmann Bargaining Committee Gord Langley Bargaining Committee Herb Niepalla Bargaining Committee

Although the extent of its efforts is unclear, the trade union also appears to have made some attempt to bring the meeting to the attention of bargaining unit employees who were away from work and might not see the notices. Mr. Karim also testified that he "thought" that some "preballoting" arrangement were made, but we were unable to conclude on the evidence before the Board that that was the case. (In any event, there was no evidence that any ballots were either distributed or cast prior to the February 6th meeting.)

17. The meeting proceeded as scheduled. 110 out of the 145 bargaining unit employees attended. The entrance through which everyone who attended the meeting had to pass was controlled by Tom McNally, the trade union's elections Chairperson, with the assistance of a "sergeant-at-arms". Mr. McNally testified that he personally recognized each person who had entered the hall as a bargaining unit employee. In addition, each person was required to "sign in", and place their employee "clock number" beside their signature. No one was refused admission.

18. The meeting was held in a large meeting room capable of holding approximately 300

people. The other rooms in the building occupied by the trade union, which consist of four offices, a smaller boardroom and a computer room, were locked up and not available for use at the meeting. Mr. Karim conceded that arrangements could have been made to make one or more of these other rooms available.

19. There is a stage at one end of the room in which the meeting was held. A table was set up on that stage. At this table sat five members of the union's bargaining committee, the Local President, and a representative of the National Union. On the floor facing the stage, were rows of ten to fifteen chairs with an aisle on each side. There were no arm rests on the chairs. A large round table was set up off to one side of the stage. The top of this table was level with the stage floor. A ballot box and a number of pens and pencils were placed on this table.

20. The Local President called the meeting to order at approximately 10:15 a.m. After setting out the rules of order for the meeting, there was a review of the collective bargaining situation. Mr. Karim testified that after some "debate", the bargaining committee recommended that strike action be taken and a strike vote was called. There is no evidence of what the debate consisted of.

21. Mr. McNally then handed out ballots in the following form:

LOCAL 112 CAW

BALLOT

YES

ARE YOU IN FAVOUR

OF STRIKE ACTION

NO

IN ORDER TO SUPPORT

OUR DEMANDS FOR A

JUST AND EQUITABLE

CONTRACT SETTLEMENT

(MARK BALLOT WITH AN X)

He did so by walking up and down the rows of chairs and handing a single ballot to each bargaining unit employee present. The only instruction given to employees was that they were to mark their ballot and deposit it in the ballot box on the table by the stage. There was no instruction or indication given that the vote was to be by secret ballot.

22. The evidence before the Board reveals that many employees marked their ballots at their seats using a pen or pencil of their own, or one which they borrowed from someone sitting near them. These employees then walked up and placed their ballots into the ballot box. Other employees went up to the ballot box, marked their ballots at the table the ballot box was on and placed their ballot in the box.

23. The bargaining committee, the Local President and International Representative apparently remained seated at the stage table, overlooking the ballot box table, throughout most or all of the balloting. Mr. Karim testified that he watched the ballot box and was sure that no one had placed more than one ballot into the box. He said that other people seated with him also watched the ballot box. Three or four of them sat closer to the ballot box than Mr. Karim.

24. Employees who marked their ballots at the ballot box table did not necessarily do so individually. At times three, four, or five employees marked their ballots at or about the same time, while small groups of other employees stood nearby chatting about the vote.

25. The evidence before the Board reveals not only that it is probable that the manner in which ballots marked by employees at their seats was observed by others, but that at least one bargaining unit employee, who testified before the Board, actually saw how an employee beside him marked his ballot. It is also clear that employees who marked their ballots at the ballot box table did so under the scrutiny of the union's bargaining committee, Local President and International Representative, and in circumstances where other employees had the opportunity to observe how they marked their ballots as well.

26. All 110 employees cast ballots. 97 ballots were marked in favour of a strike, 12 were marked against the strike, and 1 ballot was spoiled.

27. Everyone who testified said that this strike vote was conducted in the same way as numerous previous strike or ratification votes. In addition, there is no evidence that any bargaining unit employee has complained to anyone about the manner in which the vote was conducted.

28. Subsections 74(4)-(6) of the Labour Relations Act provide that:

74.- (4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.

(5) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.

(6) Any vote mentioned in subsection (4) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.

29. We were satisfied that the notice of the strike vote given by the trade union gave bargaining unit employees adequate and sufficient notice of the strike vote. Nor was there anything in the setting or atmosphere of the meeting itself which gave us cause for concern. It is unreasonable to suggest that employees are entitled to be entirely free of pressure in such situations. Pressure is a part of everyday life, and all decisions of any significance are made in the context of various and sometimes extreme pressures. This is especially true of labour relations situations, particularly when strike action is being contemplated. Decisions relating to strike actions are generally made in highly charged circumstances, and no one expects a trade union meeting to be conducted in "tea party" or laboratory conditions.

30. However, the Labour Relations Act does require that strike votes "... shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed". Although it need not have done so, the Legislature felt it necessary to emphasize that strikes to which the replacement worker provisions of section 73.1 apply must be authorized by a strike vote conducted in this manner by specifically referring to subsections 74(4)-(6) in section

73.1(2).

31. It might be argued that the Legislature could have said that a strike vote must be by secret ballot and that because it chose instead to say that it "shall be by ballots cast in such a manner that the persons expressing their choice cannot be identified with the choice expressed", it intended something other and perhaps less than a secret ballot would be sufficient. In RCA Limited, [1981] OLRB Rep. Aug. 1159, the Board reviewed the history of what is now section 74(4), and the policy considerations underlying it, and the issue to which it is addressed:

32. The section touches in some measure the long debated question of the extent to which there should be public regulation of the affairs of trade unions. As a representative organization a trade union is in a unique situation. A political party or any voluntary association can, and usually does, restrict to its members the right to participate in meetings, to vote and to otherwise influence policy. Originally that is how unions functioned. Unions have, however, become more regulated by existing labour relations statutes in the conduct of their internal affairs. (See, generally, Wilson, Political Organizations, New York, 1973 pp. 119-20.) In part because of the considerable power a union can exert over the lives of the employees it represents, notably through control of the grievance process, closed shop agreements and the hiring hall, the Legislature, like the law making bodies of other jurisdictions, has gradually developed safeguards in a number of general practices and procedures used by unions in the representation of employees. The statutory duty of fair representation, requirements for the disclosure of financial statements, the regulation of union trusteeships and the requirement of secrecy in strike and ratification votes are examples of those developments as reflected in the Act today.

33. In the United States breaches of trust and serious instances of corruption, albeit in a small minority of unions, were brought to public attention by the report of the McLellan Committee in 1957. In 1959 the United States Congress responded by the passage of The Landrum-Griffin Act requiring, among other things, that union members be guaranteed the right to vote, by secret ballot, in union elections at least every three years. Citing past abuses in its preamble, the Act also established a bill of rights for union members, protecting among other things, the freedom of speech and assembly of union members and providing safeguards against disciplinary actions without due process. (See, generally, Bok and Dunlop, Labor and the American Community, New York, 1970, pp. 64-91.)

34. During the same period in Britain public concern was aroused by a series of prominent court cases involving union electoral malpractices. (See C. H. Rolph, All Those in Favour? The E. T. U. Trial, (London 1962)). The U.K. Royal Commission on Trade Unions and Employers' Associations 1965-68 (The Donovan Report), (June 1968) articulated the need for greater public accountability in the affairs of unions, commenting (at para. 1069), "Because of the connection between union membership and members' livelihoods trade unions cannot be regarded simply as voluntary clubs from the members' point of view." The Commission made extensive recommendations including the establishment of a public authority to review complaints of electoral malpractice in union elections and to provide redress from internal union procedures that violate standards of natural justice.

35. The need for special statutory protections for the individual rights of union members was a natural consequence of the limitations of the common law. Traditionally the common law courts did not embrace the prospect of litigation over internal union matters. (See Summers, Legal Limitations on Union Discipline (1950), 64 Havard Law Rev. 1049 at p. 1051.) Gradually, however, as union membership became a more critical commodity, through theories grounded in contract, tort and the prerogative writs, courts in both the United Kingdom and Canada fashioned judicial remedies for individuals aggrieved by the internal actions of their union (e.g. Lee v. Showmen's Guild of Great Britain, [1952] 1 All E.R. 1175 (CA); Orchard v. Tunney, [1957] S.C.R. 436; Stern v. Seafarer's International Union of North America, [1961] 5CR. 682; and see, generally, E.E. Palmer, Task Force on Labour Relations (Study No. 11), (The Woods Report) Queen's Printer, Ottawa, 1970, at pp. 313-26.) There appear to be no reported cases, however, of individual actions in the courts to enforce secret ballot strike or ratification votes.

36. Recourse to the courts by individual union members was ultimately perceived as too costly and too slow to redress the grievances of rank and file workers (see e.g. The Donovan Report, para. 644). It became increasingly felt that the common law doctrines were neither sufficiently clear nor sufficiently responsive to labour relations realities, and that special legislation would be more appropriate. In this regard the Task Force on Labour Relations (Queen's Printer, Ottawa, 1968), (The Woods Report) made a number of recommendations (see pp. 149-55; see also Task Force on Labour Relations, (Study No. 11), at pp. 71-107, 137-57). Following the view expressed in The Donovan Report, The Woods Report concluded that in light of the public interest in industrial relations stability generally and the extensive control exerted by trade unions over the rights of individual members, a certain amount of public accountability and regulation of internal union affairs was necessary. At. p. 149 the Report commented:

Today, many interests of trade unions are vested in the legal framework of collective bargaining, including monopoly bargaining rights. They can no longer claim the status of private associations whose internal affairs are solely their concern. They have become quasi-public bodies, if not public institutions, and the public has acquired an interest in their internal operations.

The report specifically recommended that although strike votes and ratification votes should not be mandatory, legislation should provide that when such votes are held they must be by a form of ballot that preserves secrecy. The specific observations and recommendations of the Task Force Report are instructive for what they reveal of the policy considerations underlying legislation like section 74 of the Act. They are more closely examined below.

31. A number of jurisdictions, including Canada, had already legislated in the area of union voting procedures before the McLellan and Donovan inquiries in the U.S. and the U.K. or the Woods Report in Canada. In New Zealand, for example, section 191(1) of The Industrial Conciliation and Arbitration Act, 1954, first enacted in 1947, provided: ". . .no. . .strike shall take place until the question whether the strike shall take place has been submitted to a secret ballot of those members of the union who would become parties to the strike...". That provision was coincident in time with The Taft Hartley Act (Labour Management Relations Act - 1947) in the U.S. which allows for a government conducted strike vote under certain conditions in strikes that are deemed to constitute a national emergency.

32. The first laws governing the conduct of strike votes in Canada and the U.S. appear to have come in the form of emergency wartime legislation during World War II. Order in Council P. C. 7307 (in force from September 1941 to September 1944) authorized the Minister, if he deemed that a work stoppage would hinder war production, to order a supervised strike vote before a union could lawfully strike in any undertaking within the constitutional jurisdiction of the Parliament of Canada. In the U.S. The Smith - Conally Act (War Labour Disputes Act) (57 Stat. 163, 78th Congress U.S.A.) enacted similar provisions and remained in force until December 28, 1945, (see, Anton, Government Supervised Strike Votes, (C.C.H. Canadian Ltd. pp. 10-130).

33. In Canada strike vote legislation was enacted in the post war period in two provinces. The Alberta Labour Act, 1945 provided that as a precondition to a lawful strike a strike vote must first be conducted under the supervision of the Alberta Board of Industrial Relations. With certam amendments that requirement remains in effect today. (See, S.A. (1980), Chapter 72., s. 87 and s. 90. A similar provision was enacted in British Columbia. The Industrial Conciliation and Arbitration Act, S.B.C. 1947, c. 44, s. 75(1) required a secret ballot vote supervised by the B.C. Labour Relations Board as a precondition to a strike. In 1954 British Columbia's revised law, The Labour Relations Act, S.B.C. 1954, c. 17, s. 50(1) continued the requirement of a secret ballot vote before a strike, although under the new Act government supervision was only at the request of one of the parties. That provision remains in effect. (See s. 81(1) of the Act.)

34. Section 74 of The Ontario Labour Relations Act as it presently exists originated as section 25(3) of The Labour Relations Amendment Act, 1960, S.O. 1960 c. 54. It then provided:

A strike vote taken by a trade union shall be by ballots cast in such a manner that a person expressing his choice cannot be identified with the choice expressed.

It was subsequently amended in 1970, after The Woods Report, to also require secret balloting in any vote to ratify a proposed collective agreement. Consistent with the recommendation of The Woods Report the section does not require a union to take a ratification vote.

35. The requirement of section 74 and its underlying purpose, is to be distinguished from the amendment of the Act in 1975 (S.O. 1975, c. 76,s. 7) adding section 34(d) whereby the Minister may, after the commencement of a strike or lock our order that a ratification vote be held where he is of the opinion that it is in the public interest to do so. It is also to be distinguished from the recent amendment (SO. 1980, c. 34, s1) adding section 34e which gives an employer, other than in the construction industry, the right to have one supervised ratification vote among its employees on its last offer, before or after a strike has commenced, (see Wilson Automotive, [1980] OLRB Rep. Sept. 1337 and Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583.)

36. In interpreting section 74 it is important to bear in mind its history and its limited purpose. There are a number of provisions in the Act respecting voting by employees, including representation votes in certifications, (ss. 7, 8), terminations (ss. 49, 51, 52), votes to resolve conflicting bargaining rights on the sale of a business (s. 55(8) and the strike and ratification votes provided by sections 34(d) and 34(e). Section 74 is the only section in the Act in respect of votes conducted by a trade union. That reflects a clear legislative intention, consistent with the recommendations of the Royal Commissions reviewed above, to avoid undue interference in internal trade union matters.

37. Two predominant purposes appear to underlie the section: the promotion of industrial relations peace by reducing the likelihood of disputes and strikes that do not have the voluntary support of employees, and the protection of the ability of employees to exercise their privilege to vote on a strike or a contract ratification free from coercion or undue influence caused by any undue concern that their choice on a ballot will be known to others.

38. There has been less than full acceptance of the belief that secret ballot strike votes and ratification votes will reduce the incidence of strikes on the theory that rank and file employees are less prone to want a strike than their union leaders. The Donovan Report rejected that view in the face of empirical evidence, some of it emanating from the experience in Alberta and British Columbia, supporting the opposite conclusion. (see, the Donovan Report, para. 428) and see also Anton, supra, pp. 144-52; Bok and Dunlop supra at p. 78). There is considerable evidence to suggest that union leaders are generally more prone to seek stability and settlements and avoid confrontation than the rank and file employees that they represent. Partly on that basis the Donovan Report, like the Woods Report following it, declined to recommend that ratification votes and strike votes be mandatory. Both commissions accepted that to the extent that strike votes conduce to strike mandates, brinkmanship is promoted by mandatory stike [sic] vote legislation. In their view such legislation too often forces a situation in which union negotiators have less freedom to move, thereby increasing rather than reducing the likelihood of disagreement between unions and management in bargaining. Under The Labour Relations Act, therefore, the decision whether a ratification vote will be held and the timing of such a vote is left entirely in the discretion of unions, save in the exceptional circumstances of sections 34d and 34e.

39. The prevailing purpose of section 74 must be seen as providing a minimum of protection to employees to insure that the voting rights which they exercise in ratification and strike votes are unfettered by coercion, intimidation and undue influence. Strike and ratification votes can, as in the instant case, be hotly contested within a bargaining unit. In light of the history canvassed above, there can be little doubt that section 63(4) was specifically designed to eliminate the mischief of voice votes or votes by an open show of hands at union meetings called to resolve issues of strike or ratification. While abuses were not frequent, (see, Woods Report, Study No. 11, supra, pp. 149-150; Anton supra, pp. 88-90), the section emphasizes the paramount interest in all cases of protecting the individual's right to vote secretly.

40. The wording of the section is deliberately general. Section 74 speaks of ballots, but does not require that they be cast at a meeting or that a ballot box be used. That is in keeping with the realities of collective bargaining. In some bargaining units ratification votes may have to be conducted over a period of days covering a number of locations or a wide area. Sometimes a union will require the expedient of mailed ballots. The omission from section 74 of any detailed rules on balloting procedures is a recognition that beyond eliminating the mischief described above, it is undesirable to unduly restrict a union's latitude to conduct its own affairs. It is also unrealistic to expect union meetings to be models of parliamentary democracy. The section is therefore limited to requiring a union to take adequate steps to shelter employees from the abuses of open voting.

41. In its present form section 74 is responsive to a number of the concerns expressed in the report of Woods Task Force which, at p. 153, made the following observations and recommendations:

There is no question that employers, unions, employees and the government as custodian of the public interest all have an interest in the issue of ratification votes. Nevertheless, in our view the question of ratification votes is primarily the business of unions. The problem presented by the tactical element is not one that is amenable to legislation. Were it so, we would have given more weight to the view that ratification votes should be banned. The element that is susceptible to control is the form that the ratification vote takes. The public interest in the system of collective bargaining justifies regulation to ensure a vote that fairly represents the judgement of the constituents. We therefore recommend that where a ratification vote is taken, it be by secret ballot and that the constituents have maximum access to the ballot.

To these ends we recommend that the ballot be taken at the entrance to the work place or work places or by mail, that steps be taken to ensure the secrecy of the ballot, and that the employer's right to put his views to the electorate be preserved. Knowledgeable mediators and conciliators can play a useful function in advising the parties on the timing and form of ratification votes.

42. The Act leaves in the hands of a union the decision whether to hold a ratification vote internally. It does not establish any detailed rules to be followed on the taking of a vote save that it be by a form of secret ballot. As section 74 is framed, subject to the condition of secrecy, there is a necessary allowance for considerable flexibility in the time, place and method by which a ballot is taken. Section 74 is clearly worded to allow employees maximal access to the voting process. In our view it should not be construed as precluding multilocation balloting, balloting outside of a union meeting or balloting by mail or some other form of conveyance where that is appropriate. The work "manner" in the section is to be given a broad and liberal construction consistent with the intention of the section.

(emphasis added)

The Board then went on to conclude that:

53. The complainant argues that the mere possibility of identification offends the section. We cannot agree. To accept that argument is to reduce the section to an unduly narrow standard. Abuse is possible in any election no matter what precautions are taken. Having regard to the purpose of the section and the context in which it applies the more appropriate approach is to examine whether the manner in which a ballot is conducted gives rise to a perception among reasonable employees of a real likelihood that individual choices will be identified, so as to cause the kind of apprehension that can materially inhibit the expression of the true wishes of the individuals in the bargaining unit. That question can only be answered in individual cases by closely examining all of the circumstances.

54. We are satisfied that in this case the evidence does not disclose a violation of section 74 of the Act. The section requires a secret ballot vote. That is what the union conducted, consistent with requirements of its own constitution. Specially printed ballots were used. Instructions were given that they should be folded, obviously for the purpose of protecting secrecy. Steps were taken to insure voters a reasonable measure of privacy as they marked their ballots. The ballots were handed out, collected and counted exclusively by three employees whose trust and integrity are unquestioned. From the time the vote was called until the result of the vote was certified in writing by the scrutineers no union officer had any contact with the ballots. Save in the instance of one employee who made a deliberate show of spoiling his ballot, there is no evidence to suggest that the choice on any employee's ballot was seen or that there was any reasonable likelihood that it would be seen. The fact that a less honourable person than Mr. Todd could, by some deliberate act of bad faith, has violated his trust and identified the choice of some employees, does not invalidate what in fact occurred.

55. Counsel for the company stressed that the closeness of the vote makes this a hard case. Clearly the closeness of a given vote cannot affect our interpreation of section 74 and the standard to be applied. Being satisfied that the standard required of section 74 has been met, all that we can conclude from the evidence of the result of the vote is that on the issue of

ratification the employees were closely divided. We agree with counsel for the company that the outcome of a vote in a given complaint under section 74 might have some bearing on the exercise of the Board's remedial discretion under section [91] of the Act. That discretion comes into play however, only once a violation of the section has been established. In this case it has not.

56. For the foregoing reasons the complaint is dismissed.

(emphasis added)

32. The Board in RCA Limited, correctly in our view, saw section 74(4) as a legislative attempt to alleviate the pressures on employees faced with making a choice in strike or ratification situations by requiring that employees be given an opportunity to vote secretly. That is, section 74(4) is a legislative requirement that strike and ratification vote be by secret ballot.

33. Accordingly, the onus is on a trade union which holds a strike or ratification vote to structure that vote in such a way which provides employees with an opportunity to mark and cast their ballots in secret. It is not appropriate that a strike or ratification vote be structured in a way which puts the onus on employees to take steps to ensure the secrecy of their ballots. If an employee, having been given an opportunity to vote secretly chooses to make a display of him/herself or his/her ballot, that is up to that employee (and does not operate to invalidate a vote). But an employee must have that clear opportunity, free from the prying eyes of others, and without having to make obvious special efforts to do so him/herself. In other words, a trade union must structure a vote so that it is by secret ballot which employees can opt out of, rather than by some sort of open vote process which requires employees to individually opt in to a secret ballot.

34. We gave little weight to the fact that the trade union had conducted previous strike or ratification votes in substantially the same manner as it did in this case since none of them had previously been subjected to the same scrutiny as this vote. Nor was there any indication that any of those votes were mandatory, which this vote, for purposes of this application, was. The Board must focus on what happened in this case, in which it is clear that it was not only highly probable that the bargaining committee, Local President and National President, who had recommended a strike action, and other employees, saw and were seen to see the choice other people made on their ballots; the evidence is clear that this did in fact happen.

35. Whether or not it is onerous to require a trade union to conduct strike and ratification votes by secret ballot, this is what the statute does. In any event, as the RCA Limited case demonstrates, it is neither onerous nor difficult for a trade union to do so. There are numerous ways of accomplishing this, without necessarily resorting to the procedures followed in Municipal, Provincial or Federal elections, although the Board is aware that some trade unions follow procedures substantially similar to those in public political elections in some internal election or vote situations.

36. In this case, we were not satisfied that the trade union had conducted the strike vote it relied on in accordance with the requirement of section 74(4) of the Labour Relations Act. The trade union did not take adequate steps to protect the employees' right to vote secretly. On the contrary, the procedure adopted by the union was a kind of open ballot, held under the scrutiny of union officials and other employees, where voters were subjected to the coercive effects of open votes which subsection 74(4) is intended to prevent. This was not a secret ballot vote, which is what subsection 74(4) requires. We therefore dismissed this application as aforesaid.

37. The day after the Board gave its oral decision dismissing this application, the trade union applied for reconsideration under section 108(1) of the Labour Relations Act. Counsel (not Mr. Luce) for the trade union describes the basis for its request for reconsideration as follows:

38. The union seeks a reconsideration on two grounds:

a) the decision and this request raise significant and important issues of Board Policy;

John Entwistle Construction Limited [1979] OLRB Rep Nov. 1096

Consolidated Bathurst Packaging Ltd. [1990] 1 S.C.R. 282

b) the summary manner in which the decision was made does not reflect an adequate consideration of the serious policy issues raised in the Board's consideration of s.74(4) of the Act. The union has not had a previous opportunity to raise an objection on this basis.

Bairoda Masonary Inc. [1994] OLRB Rep Mar 204

17. The union submits that the Board ought to reconsider its decision in view of the serious policy issues implicit therein.

In particular, the union submits that the Board ought not to take on a role as the regulator of internal unions procedures to an extent which is not expressly mandated by the legislation.

38. Section 108(1) of the Labour Relations Act provides that:

108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

This provision gives the Board a broad discretion to reconsider any of its decision. However, the same provision, and legal and labour relations considerations, also demand that the Board operate from the premise that a Board decision should be final and conclusive for all purposes unless there is good reason to change it. Accordingly, the Board will generally not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or a party seeks to make representations which it has had no previous opportunity to make. Section 108(1) is not intended to provide an opportunity for a party to reargue its case, either de novo or as a form of appeal.

39. There is nothing in the trade union's request for reconsideration on the merits of the Board's decision, including any issues of "Board Policy" which could not have been raised at the hearing on June 27 and 28, 1994. Indeed, as the trade union itself states (at paragraph 11 of Schedule 1 to its request for reconsideration application): "The parties made full argument on the issues, including the propriety of the strike vote and all issues associated with the interpretation and application of section 74(4) of the Act.

40. Further, this was not a lengthy or complex case. The Board heard the evidence and representations of the parties in approximately five and one-half to six hours of actual hearing time.

The Board gave complete and careful consideration to that evidence and those representations. There is no merit whatsoever to the trade union's assertion that the fact that the Board was able to come to a decision within an hour after the hearing concluded suggests that the Board failed to do so. The Board decided not to give reasons for its decision orally at the time it gave its decision because all members of the panel wanted an opportunity to structure their reasons carefully, in recognition of the significance of the decision to the labour relations community as well as to the immediate parties.

41. Finally, this is not a "Board Policy" case as such. It is a case which required the Board to interpret and apply the provisions of sections 73.1(2) and 74(4)-(6), not some unspecified "Board Policy". Nor did the Board take upon itself "a role as the regulator of internal unions [sic] procedures to an extent which is not expressly mandated by the legislation." On the contrary, section 73.1(2) and subsections 74(4)-(6) operate together to require the Board to review the manner in which a trade union which seeks the benefit of the replacement worker provisions in section 73.1 set up and conducted the strike vote(s) required by section 73.1(2). This is not a role which the Board has taken on on its own; it is a role which the legislation requires the Board to play.

42. In the result, the majority of the Board is satisfied that there is no merit whatsoever to the applicant's request for reconsideration. The majority is satisfied that there is no reason for the Board either to hold a further hearing, or to in any way reconsider its decision to dismiss this application. The trade union's request in that respect is therefore dismissed.

DECISION OF BOARD MEMBER P.V. GRASSO:

1. I have read the decision of the majority, and I respectfully dissent.

2. With respect, I feel that the result in this case is simply not consistent with the case law. In earlier decisions that dealt with subsections 74(4)-(6), the Board has been reluctant to intervene in internal union affairs and set an unrealistically rigid standard in the conduct of strike and ratification votes. I feel that the majority is doing here what the Board has previously said that it would not. It has set out on a course of detailed regulation which goes far beyond the abuses at which the provisions were aimed and which requires every trade union, however small, to operate as a model of electoral proficiency in the conduct of each internal strike and ratification vote.

3. As the majority has pointed out, the central case interpreting section 74(4) is R.C.A. Limited ([1981] O.L.R.B. Rep. Aug. 1159). In R.C.A., the complainant employee, who was a long time union opponent, argued that a strike vote held violated what is now subsection 74(4) of the Act. The vote was held in a rented meeting hall, and the table on which employees marked their ballots did not have a screen. The scrutineer was standing close enough to the table so that, had he tried, he could have seen how employees voted, although he made no such attempt. As well, there was no ballot box. Instead, the ballots were piled on a table in front of the scrutineer, where they were later counted.

4. The Board dismissed the complaint. It was held that the omission of any detailed rules on balloting procedures in section 74 is a recognition that, beyond sheltering employees from the abuses of voice votes and votes by an open show of hands, it is undesirable to unduly restrict a union's latitude to conduct its own affairs. Rather, the Board held that the Legislature intended that unions should be afforded considerable flexibility in the conduct of strike votes. The test set out was an objective one, because the Board felt that such a test could be adhered to by small as well as large unions. The test is whether, in the circumstances, a reasonable employee would have a substantial reason to fear that her ballot would not remain secret: a mere possibility of identification is not enough. Further, because of its reluctance to intervene in internal union affairs, the Board held that the procedure used should not be considered to have violated section 74(4) unless it is patently unfair or unreasonable.

5. In dismissing the complaint, the Board emphasized the fact that no employee, including the complainant, objected. to the voting procedure at the time of the vote. Further, none of the employees who testified before the Board stated that they felt worried that others would see how they voted. The Board held that if an employee was worried about her vote becoming known to others, she could have shielded the ballot with her hand.

6. Although my learned colleagues have already quoted extensively from R.C.A., I would also like to quote some relevant passages:

7. In interpreting section 63(4) [now 74(4)], it is important to bear in mind its history and its limited purpose. There are a number of provisions in the Act respecting voting by employees [,but section 74(4)] is the only section in the Act in respect of votes conducted by a trade union. That reflects a clear legislative intention, consistent with the recommendations of the Royal Commissions reviewed above, to avoid undue interference in internal trade union matters.

8. The prevailing purpose of section [74(4)] must be seen as providing a minimum of protection to employees to ensure that the voting rights which they exercise in ratification and strike votes are unfettered by coercion, intimidation & undue influence. Strike and ratification votes can, as in the instant case, be hotly contested within a bargaining unit. In light of the history canvassed above, there can be little doubt that section [74(4)] was specifically designed to eliminate the mischief of voice votes or votes by an open show of hands at union meetings called to resolve issues of strike or ratification. [Section 74(4)] emphasizes the paramount interest in all cases of protecting the individual's right to vote secretly.

9. The wording of the section is deliberately general. Section [74(4)] speaks of ballots, but does not require that they be cast at a meeting or that a ballot box be used. That is in keeping with the realities of collective bargaining. . . The omission from section [74(4)] of any detailed rules on balloting procedures is a recognition that beyond eliminating the mischief described above, it is undesirable to unduly restrict a union's latitude to conduct its own affairs. It is also unrealistic to expect union meetings to be models of parliamentary democracy. The section is therefore limited to requiring a union to take adequate steps to shelter employees from the abuses of open voting.

10. In its present form section [74(4)] is responsive to a number of the concerns expressed in the report of Woods Task Force which, at p. 153, made the following observations and recommendations:

There is no question that employers, unions and employees and the government as custodian of the public interest all have an interest in the issue of ratification votes. Nevertheless, in our view the question of ratification votes is primarily the business of unions... The public interest in the system of collective bargaining justifies regulation to ensure a vote that fairly represents the judgement of the constituents. We therefore recommend that where a ratification vote is taken, it be by secret ballot and that the constituents have maximum access to the ballot. [pp. 1168-1169]

47. Unions are associations of employees which vary greatly in size and sophistication. In the interpretation of section [74(4)] the Board should strive to apply a standard which can be readily adhered to by any union, whether it be a large international or a small local. It would in our view depart from the intention of the section and take it far beyond the mischief against which it was aimed to require every trade union to operate as a model of electoral proficiency in the conduct of each internal ratification vote. There is obviously something of an honour system in any system of balloting. Voters can generally expect that other voters and voting officials will respect their privacy when a secret ballot is being conducted. There is no reason, absent compelling evidence to the contrary, why that presumption should be any less valid when a group of employees conduct a secret ballot through the union.

48. In giving content to the requirement for secrecy in section [74(4)] the Board should respond to situations which give rise to a genuine basis for concern. By the same token it should not give undue attention to fanciful or technical objections unsupported by substantial evidence. In assessing the manner of balloting under section [74(4)] the Board must therefore apply an objective standard. It must determine whether in all the circumstances a reasonable employee would have substantial reason to fear that his ballot would not remain secret.

49. The complainant argues that the mere possibility of identification offends the section. We cannot agree. To accept that argument is to reduce the section to an unduly narrow standard. Abuse is possible in any election no matter what precautions are taken. Having regard to the purpose of the section and the context in which it applies the more appropriate approach is to examine whether the manner in which a ballot is conducted gives rise to a perception among reasonable employees of a real likelihood that individual choices will be identified, so as to cause the kind of apprehension that can materially inhibit the expression of the true wishes of the individuals in the bargaining unit. That question can only be answered in individual cases by closely examining all of the circumstances. [pp. 1171-1172]

50. The test set out in R.C.A. Limited was applied in Northover v. Inter-Bake Foods Ltd. ([1981] O.L.R.B. Rep. Aug. 1145). In dismissing the section 74(6) complaint in that case, the Board made the following observations:

51. In the circumstances, we are satisfied that all the bargaining unit employees were given a reasonable opportunity to participate in the secret ballot vote and we do not agree that section 63 [now section 74] was intended to set down a rigid standard of trade union procedure for strike and ratification votes. Nothing done in the instant case strikes us as so patently unfair or unreasonable to merit intervention under this section. See RCA Limited, [1981] O.L.R.B. Rep. Aug. 1159. To intervene in the instant case would set this Board on a course of detailed regulation we are reluctant to embark upon. Trade union democracy is amply suited to handling controversy of this kind.

The Board's approach in R.C.A. has also been followed by the British Columbia Labour Relations Board (see, for example, Canyon Aerial Tramways Ltd. & HR.C.E.B. U., Local 40 (16 July 1982), Annotated B.C. L.R.C. (Vancouver: Butterworths, 1993) 5:3014).

8. The Board recently dismissed another section 74(4) complaint in Katkic v. C.A.W., Local 1285. ([1991] O.L.R.B. Rep. Feb. 223). In Katkic, employees attending the strike/ratification vote meeting were handed a ballot when they entered the rented meeting hall. Employees took the ballots to their seats and listened to the union's analysis of the proposed collective agreement. During that discussion, which lasted one hour, the union President indicated that the ballot boxes were at the front of the room and employees should cast their ballots before leaving. Prior to the vote, the President also called for a motion that the settlement be approved. The motion was made, seconded, and approved by a show of hands. The Board held that section 74(4) was not violated since, in its opinion, the show of hands only served to formally conclude discussion and did not affect the secret ballot vote.

9. It remains to apply the R.C.A. test to the facts before us. To reiterate, the test looks at all the circumstances of the vote, and considers whether a reasonable employee would have a substantial reason to fear that her ballot would not remain secret: a mere possibility of identification is not enough. Further, the Board should not intervene unless the procedure used was so patently unfair or unreasonable that it merits intervention.

10. I am generally in agreement with the facts of this case as set out in the majority decision, with the exception of paragraph 25, which states that "It is also clear that employees who marked their ballots at the ballot box table did so under the scrutiny of the union's bargaining committee... ." With respect, I have formed a different conclusion on this point. In my opinion, the evidence did not establish that the Committee 'scrutinized' the voting employees, but rather that from where they were sitting, they were capable of seeing how the employees voted if they looked.

11. Based on these facts and applying the R.C.A. test, I am of the opinion that a reasonable employee would not have felt that her ballot have remained secret. Even if I am wrong in this regard; the procedure used was not so patently unfair or unreasonable that it merits attention. To require more would ignore the realities of collective bargaining and would force unions to operate as models of electoral proficiency. As the majority has conceded, none of the employee witnesses felt inhibited in expressing their personal choice nor did they feel uncomfortable with the voting arrangements. Rather, the testimony suggests that most of the employees did not care whether or not others knew how they voted. Also, there was no suggestion that employees could not have shielded their ballots.

12. For all of the foregoing reasons, I feel that the strike vote held by Local 112 of the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada on February 6, 1994, was conducted in accordance with the provisions of subsection 74(4) of the Labour Relations Act, and is therefore a strike vote to which section 73.1 applies.

13. In view of my decision on the merits of the case, I would have granted the Applicant the request for reconsideration.