Ontario Labour Relations Board

[1994] OLRB Rep.. April.434

3402-93-R United Food & Commercial Workers International Union, AFL, dO, CLC, Applicant V. Highland Packers Limited, Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF THE BOARD; April 20, 1994

1. This is an application for certification. By decision dated February 1, 1994, the Board (differently constituted) ordered that a representation vote be taken of the employees of the responding party (hereinafter "the employer") in the bargaining unit. The representation vote was held on February 24, 1994. Prior to the last day for the filing of statements of desire to make repre­sentations regarding the taking of the vote, the applicant wrote to the Board and raised two objec­tions with respect to the taking of the vote. Counsel for the employer has responded to those objections and, at the request of the Board, further information was furnished to the Board by the parties.

2. The union requested in its statement of desire that an oral hearing be convened to inquire into the objections raised. The employer resists this request, and asks the Board to decide the objection on the basis of the written materials before it. In our view, it is unnecessary to con­vene an oral hearing to deal with the objections raised by the union. The Board has the jurisdic­tion, pursuant to section 104(13) of the Labour Relations Act, to determine its own practice and procedure, as long as the parties are given a full opportunity to present their evidence and to make their submissions. The Board is satisfied that such a full opportunity has been provided to the par­ties to this application. In our view, it would be an inappropriate use of Board resources to sched­ule this case for an oral hearing, in light of the objections raised by the union, which are outlined directly below.

3. By way of background, on February 1, 1994, the parties met with a Board Officer to make arrangements for the taking of the vote. As part of that process, the parties agreed to a voter's list composed of 31 individuals. The voter's list contained the following acknowledgment made by the parties:

"The Parties hereby agree that the foregoing list of 31 employees constitutes the list for pur­poses of the vote"

This list was signed by a representative of both the union and the employer.

4. On the date of the vote, two individuals were struck from the voter's list on the consent of the parties. They did not vote, but the remaining 29 employees on the voter's list each cast a bal­lot. As well, during the course of the representation vote, one Irma Sasse, described as "Food Service/Meat Packer", attended at the place designated for voting and asked to vote. Her name was not on the voter's list. Ms. Sasse was provided with a ballot and cast her vote. However, pend­ing determination of her eligibility to vote, Ms. Sasse's ballot was segregated.

5. Subsequent to the casting of ballots, the scrutineers present on behalf of the parties each executed a "Certification of Conduct of Election" form in which they certified "that the bal­loting was fairly conducted and that all eligible voters were given an opportunity to cast their bal­lots in secret..." Furthermore, the representatives of the parties at the count executed a Consent and Waiver Form which reads, in part, as follows:

"WE the undersigned hereby consent to an immediate counting of the ballots~ cast at the repre­sentation vote directed by the Board and held on February 24, 1994.

We the undersigned hereby agree that the following persons:

Irma Sasse

are eligible for inclusion in the bargaining unit and that their ballots should be counted;

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

Once this Consent and Waiver Form was executed the ballot of Ms. Sasse was added to the 29 other ballots cast. The Board notes here that Mr. Fisher, the union's organizer and representative at the count, acknowledges in his written materials that prior to agreeing to the inclusion of the ballot of Ms. Sasse he spoke to the union's scrutineer, a bargaining unit employee, who told Mr. Fisher that Ms. Sasse had been an employee of the employer for 18 years.

6. When the ballots were counted there were 14 votes in favour of the applicant, 14 votes against the applicant, and two spoiled ballots.

7. The union now objects to the results of this representation vote, and asks the Board to order a further vote, on the following grounds:

(a) that Irma Sasse ought not to have voted. The applicant advises that subsequent to the vote it was brought to its attention that Ms. Sasse is a member of management; and

(b) that one Duranka Krbavac was not on the voter's list, but ought to have been, as she is an employee of the employer in the bargaining unit.

The Board will deal with each of these grounds below.

8. With respect to the eligibility of Ms. Sasse, we note that it is the employer's position that Ms. Sasse is not an individual who exercises managerial functions, and that she was properly entitled to vote. In our view, however, it is not necessary to make that determination for the pur­poses of our decision. In C. E. Jamieson & Co, (Dominion) Limited [1987] OLRB Rep. July 953, the employer attempted to change its earlier position regarding the eligibility of two voters in the face of a representation vote which had resulted in a tie with five segregated ballots at issue. The Board made the following observation at paragraph 6 of its decision:

9. As the Board stated in Union of Canadian Transport Employees, [1985] OLRB Rep. Oct.

1541:

"This Board has consistently held that parties should not be permitted to later resile from agreements made in earlier stages of certification proceedings: see, for example, Diasons Press Limited, [1964] OLRB Rep. Aug. 215; Bertie District High School Board, [1964] OLRB Rep. Aug. 231, Warner Brothers Distributing (Canada) Limited, [1974] OLRB Rep. Dec. 883; and, J. J'₅ Restaurants Limited, [1977] OLRB Rep. July 465

For the same reasons that the Board will not allow parties to resile from their representations or agreements made in earlier stages of a certification proceeding, we take the view that the inter­vener employer cannot now resile from its agreement made at an earlier stage of this decertifica­tion proceeding. It would be both inequitable and an abuse of Board proceedings to allow the intervener employer to now assert the eligibility to vote of two employees whom it previously maintained before the Board were not properly within the bargaining unit. Indeed, the Board has acted upon that prior representation. As noted above, neither of these two employees has chosen to participate in this proceeding, and neither of them is asserting that he ought to have been eligible to vote. We are not prepared to conclude that the fact that they voted must mean that they felt they were properly in the bargaining unit. As we will not allow the employer to now assert the eligibility of Juan and Manuel Cuevas to vote, and as neither of them asserts it, they remain ineligible and their ballots shall be destroyed and not counted.

9. We are of the view that the same general principle applies to this matter. The parties, at the completion of the voting, agreed to open the ballot box and count the ballots immediately. Before doing so the parties agreed, in writing, to include the ballot of Ms. Sasse, and confirmed that agreement by way of execution of the Consent and Waiver. Once the ballots are counted it is, in our view, both inequitable and an abuse of Board proceedings to permit the union to challenge the status of Ms. Sasse. Its opportunity to challenge her status was waived by the union and the applicant cannot now resile from its agreement.

10. With respect to the union's objection regarding Ms. Krbavac, in our view similar con­siderations apply. We are not convinced, on the materials placed before us, that Ms. Krbavac was eligible to cast a ballot at the representation vote. However, even if Ms. Krbavac were eligible to vote, we are of the view that, at this late date, it would be inequitable and an abuse of the Board's proceedings to order a new vote on the grounds urged by the applicant. Prior to the taking of the vote the parties agreed to the composition of the voter's list. Ms. Krbavac's name was not on that list, nor was there any suggestion that her name ought to have been on that list until after the vote had been completed and the results learned by the parties. The parties' scrutineers certified that all eligible voters had had an opportunity to vote and, in contrast to Ms. Sasse, Ms. Krbavac did not present herself at the poll to vote. In our view, it is now improper for the applicant to request a second representation vote, as the opportunity for asserting that Ms. Krbavac was an eligible voter has long since passed.

11. Accordingly, we decline to order a second representation vote as requested by the applicant.

12. On the taking of the representation vote directed by the Board not more than 50% of the ballots cast were cast in favour of the applicant.

13. The application is therefore dismissed.

14. The Board will not entertain an application for certification by the applicant with respect to any of the employees of the responding party in the bargaining unit within the period of six months from the date hereof.

15. The Registrar will destroy the ballots cast in the 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.