Ontario Labour Relations Board
[1994] OLRB Rep. November 1592
1561-94-R Service Employees' Union, Local 210, Applicant v. The Canadian Red Cross Society (Ontario Division), Responding Party
BEFORE: Pamela Chapman, Vice-Chair.
APPEARANCES: Luiza Monteiro, E. R. Durham, Ken Brown, Ray Drouillard, Barb Parent and Bev Clifford for the applicant; Tim Liznick, Mary-Kay Croft, Sheila Gordon and Janice Laflamme for the responding party.
DECISION OF THE BOARD; November 23, 1994
1This is an application for certification.
2By decision dated August 23, 1994, the Board directed that a representation vote be taken of the employees in the agreed upon bargaining unit.
3Subsequent to the taking of the vote, representations were received from the responding party ("the employer") concerning alleged improprieties by the union and its supporters on the days of the voting. As a result, a hearing was scheduled.
4At the hearing, the parties advised the Board of an error in the bargaining unit description set out in the Board's decision of August 23, 1994. Given the parties' agreement on this error, the bargaining unit description is hereby amended to read as follows:
all Homemakers employed by The Canadian Red Cross Society (Ontario Division) at its Windsor Essex County Branch in the County of Essex, save and except supervisors, persons above the rank of supervisor, office and clerical employees and persons in bargaining units for which any trade union held bargaining rights as of August 2, 1994,
5At the hearing on this matter on November 21, 1994, the Board issued the following oral ruling:
In the circumstances of this case, and in particular considering the distance travelled by both parties' witnesses to attend at this hearing, which is scheduled to continue day to day, I find it appropriate to provide a brief bottom-line decision, with reasons to follow.
Having considered the representations of both parties with respect to the preliminary objections made by the union, I am satisfied that signing the "Consent and Waiver" form precludes the employer from relying on alleged union improprieties which it was aware of on the date of the vote in order to set aside the representation vote. Given that the employer was aware of all but one of the allegations at the time that the form was signed, it had an obligation to bring its concerns to the attention of the union and the Board prior to the counting of the ballots, so that the ballot box could have been sealed. The failure to do so means not only that the employer was aware of the union's success in the vote at the time it brought forward these allegations, but also that the results of the vote were disseminated to employees, thus prejudicing the prospects for a second vote if one were to be ordered.
In any event, I have also concluded that the allegations made by the employer in its letters of October 3 and November 4, 1994, even if presumed true, would not lead to the granting of the remedy requested by the employer, that is either the dismissal of the application for certification or the ordering of a new vote. The test for the over-turning of a representation vote as applied by the Board is whether or not the actions complained of destroy the secrecy of the ballot or are coercive so as to prevent the true wishes of the employees from being expressed, viewed by the reasonable voter who is possessed of critical faculties, the ability to assess issues and make inquiries. I am satisfied that in the circumstances alleged, a reasonable voter possessing these attributes would have felt capable of expressing a free choice in a secret ballot, and as such the allegations, which I presume to be true for the purposes of this ruling, would not result in the directing of a new vote.
A decision will issue containing my reasons for this ruling. In the meantime a certificate will issue to the applicant.
6On the taking of the representation vote directed by the Board more than fifty per cent of the ballots cast were cast in favour of the applicant.
7A certificate will issue to the applicant.
8The 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.