[1994] OLRB Rep. March 334
1968-93-R International Union of Elevator Constructors Local No. 90, Applicant v. Windsor Elevator Service Inc., Responding Party v. Construction Workers Local 53, CLAC, Intervenor
BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; March 7, 1994
This is an application for certification pertaining to the construction industry.
This application was filed on September 16, 1993. A hearing commenced on November 22, 1993 and was scheduled to continue on November 30, 1993. Prior to the continuation of the hearing, the parties agreed to the taking of a representation vote. The Board appointed a Labour Relations Officer to assist the parties in making voting arrangements. Upon receiving the Vote Arrangement Report from the Labour Relations Officer, the Board directed the taking of a representation vote in which voters would be asked to indicate whether or not they wished to be represented by the applicant or the intervenor in their employment relations with the responding party.
The vote was conducted on December 17, 1993. Prior to the vote, the standard Notice of Taking a Vote was sent to the responding party for posting in conspicuous locations for the benefit of voters. With the notice is a sample ballot which in this case appeared as follows:
A Returning Officer of the Board supervised the taking of the representation vote. The Returning Officer's Report of the Vote discloses that five persons cast ballots. Three ballots were marked in favour of the applicant, one ballot was marked in favour of the intervenor and one segregated ballot was not counted.
Within the time for filing objections to the vote, an employee in the bargaining unit filed a complaint relating to the vote. His counsel's letter setting out the substance of his complaint reads as follows:
We are the solicitors for Michael Nagj of 207 Langlois, Apartment No. 4, Windsor, Ontario.
Mr. Nagj is an employee of Windsor Elevator Service Inc. As a result of his involvement in a representation vote on December 17, 1993, he wishes to file the following complaint before the Board.
On December 17, 1993, a representation vote was conducted at the offices of Windsor Elevator Service Inc. Four members of the bargaining unit voted on the issue of representation. The two competing trade unions were the International Union of Elevator Constructors - Local 90 (hereinafter referred to as "IUEC") and the Construction Workers Local 53, CLAC (hereinafter referred to as "CLAC"). In addition to the employer and members of the two trade unions, the vote was supervised by an officer of the Ontario Labour Relations Board.
Our client's complaint stems from the fact that he did not understand the ballot presented to him. He advises that- the instructions on the ballot ""mark opposite your choice" were confusing to him. He was of the view that he was to not mark his choice but rather that he was obliged to mark the ""opposite" trade union to his choice. Apparently, he asked twice for instructions but was never given same.
As a result, inadvertently he voted contrary to his wishes which resulted in a three to one vote in favour of the IUEC. If his vote had reflected his true intention, it would have totally changed the result.
Mr. Nagj asks that the Board in its inherent jurisdiction, to:
Review the proceedings to determine their propriety and fairness;
Appoint an officer of the Board to investigate the proceedings and to gather evidence surrounding the vote in order to make an appropriate determination regarding the procedural fairness of the representation vote;
Order that the vote be retaken; and/or
Order that the decision in favour of the IUEC be reversed.
Mr. Nagj reserves the right to raise further allegations / complaints which may come to light as a result of the ensuing investigation.
We would ask you to kindly attend to our client's complaint at your earliest convenience. We would be pleased to attend at your convenience when and if required.
The Board advised the parties of this objection and requested their comments. In dealing with this objection, the Board has considered the written representations of the parties'.
The essence of Mr. Nagj's complaint is that he found the instructions on the ballot confusing and thought he was obliged to mark the opposite trade union to his choice. Having considered Mr. Nagj's representations, the Board is satisfied that it is appropriate in the circumstances to dismiss his objection.
As indicated earlier, the Notice to Employees of the Taking of a Vote is posted in the workplace as well as a sample of the actual ballot with the appropriate names filled in. Any employee who has difficulty in understanding the instructions on the ballot or the choice that he or she is requested to make has sufficient time in advance of the vote to make the necessary inquiries.
The type of ballot used in this case has been used by the Board in representation votes for a very long time. We are satisfied that the form of the ballot and the instructions contained therein are not ambiguous. Any confusion on the part of Mr. Nagj cannot be attributed to the form of the ballot or the instructions given to voters.
Mr. Nagj made a mistake in marking his ballot. The circumstances before us are not unlike those before the Board in the the Children's Aid Society of the Regional Municipality of Waterloo, [1985] OLRB Rep. Dec. 1818. In that case a voter misread the question asked in a termination vote and ticked the wrong box. Although the situation in the case before us is not completely analogous, the following comments of the Board are of assistance:
5.... The balloting is conducted in secret, so as to best ensure the free expression of the wishes of those voting. The value of this process would be totally undermined if it were open to any party to have the Board inquire into the subjective state of mind of any voter at the time of his or her vote.
In RSLS Inc., [1982] OLRB Rep. June 921 dealt with a termination application in which there was an argument about the effect to be given to a ballot which had been "spoiled" with an indication that was neither a "yes" or "no" answer to the question posed. An employee's affidavit had been placed before the Board, and it appears the Board was invited to take the allegations in the affidavit into account in determining the effect to be given to the spoiled ballot. In that context, the Board made these observations.
. . The Board must determine the freely expressed wishes of the employees and there should be no encroachment upon the secrecy of the balloting. Anything other than a simple answer to the question posed, carries with it the potential for revealing employee wishes which the whole process is designed to keep secret. The Board cannot embark upon an inquiry into "what the employee really meant" without undermining the very secrecy which the voting process purports to guarantee. (See Form 69).
. . The Board has no inclination whatsoever to inquire into what the objecting employee "really meant" by his abstention - especially since neither the applicant nor respondent has raised any complaint about the conduct of the balloting. To undertake such inquiry would not only prejudice the secrecy of the representation vote but would also open the door to an inquiry whenever an employee seeks to explain the motivation behind his spoiled ballot. We see no reason to undertake such inquiry given the explicit instructions given to all employees and the clear and obvious choice open to them when they cast their ballot....
The representation vote in this case was properly conducted. The only alleged error was that of an individual voter. We feel the remarks of the Board in RSLS Inc., supra, are equally applicable here. To them we would add the observation that if a vote could be set aside as a result of one voter's confessing that he or she misunderstood a question which is unambiguous on its face, then the Board would be obliged to consider an allegation by one voter that other voters misunderstood the question and voted "wrong". It is a short step from that invasion of privacy of the polling booth to an inquiry into the quality of thought devoted to the response of a voter to a question he or she did understand. An employee's entitlement to have her vote count does not and should not depend on her satisfying the Board that she knew what she was doing or made the "right choice". The voter's right to unquestioned acceptance of the choice she expresses carries with it responsibility for the choice expressed and its consequences...
- Counsel indicates that his client twice asked for instructions but was never given same.
We note that the CLAC representative commented in his written submissions that he was satisfied
with the Board Officer's instructions to a voter. In any event, there has been no suggestion that the
Board Officer or anyone else mislead Mr. Nagj in any way.
Having regard to the above we are not prepared to give the ballots cast in the vote of December 17, 1993, any significance other than the significance they have on their face.
The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 141(1) of the Act on April
12, 1978 the designated employee bargaining agency is the International Union of Elevator Constructors.
On 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.
Section 146(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
……the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 146(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 13 above in respect of all journeymen and apprentice elevator constructors of Windsor Elevator Service Inc., in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen and apprentice elevator constructors of Windsor Elevator Service Inc., in all other sectors of the construction industry excluding the industrial, commercial and institutional sector of the construction industry, the Counties of Essex and Kent, the County of Lambton, save and except non-working foremen and persons above the rank of non-working foreman.
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.