[1995] OLRB Rep. July 931

1108-95-U United Food and Commercial Workers International Union Local 175, Applicant v. Budget Car Rentals Toronto Limited, Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members S. C. Laing and D. A. Patterson.

APPEARANCES: Georgina Watts, Theresa Suppa-Magee and Jim Hastings for the applicant; M. E. Geiger, June Hagan, Les Dickens and Barry Prentice for the responding party.

DECISION OF THE BOARD; July 12, 1995

1. This is an application under section 73.1 of the Labour Relations Act in regards to a strike of the Budget Car Rental counter attendants and car jockeys at Pearson International Airport. At a point when the hearing of this matter had commenced, but not finished, the strike ended

as a new tentative collective agreement was ratified. Nonetheless, the parties have asked us to render a decision on the issue on which we had completed evidence and argument, i.e. whether or not the vote taken to authorize the strike met the conditions of section 73.1(2) and sections 74(4) to (6).

2. Section 73.1 provides that an employer is prohibited from using replacement workers under the conditions set out therein. A pre-condition is a strike vote as set out in section 73.1(2) which reads as follows:

73.1(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.

Section 74(4),(5),(6), which are incorporated in the above sub-section, provide as follows:

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.

3. We have carefully considered all the evidence and argument made, although for the sake of brevity, we have only set out the most salient points here.

4. We heard a number of witnesses concerning the conduct of the vote and the following are our factual findings. Where there was a conflict in the evidence which needed resolving, we note our resolution of that conflict.

5. The bargaining unit in question consists of car jockeys and counter representatives. The car jockeys move cars around the airport for cleaning, fuelling and delivery to clients, while the counter representatives deal with members of the public concerning car rentals.

6. Negotiations between the parties resulted in a tentative agreement which was subject to ratification by the parties. A ratification vote was held by the union on June 7, 1995 and the tentative agreement was defeated by a large majority. Four days later on June 11, 1995, a strike vote was held in which authorization to go on strike was achieved with a similarly large majority, over 80 percent.

7. Notices of the strike vote were posted at the various locations where Budget employees work some time on Friday, June 9, 1995. The exact time of posting is not clear from the evidence, but there is reliable evidence that they were posted at the latest by 5:30 p.m. The notices indicated the time and location of a strike vote meeting to be held at 9:30 a.m. on Sunday, June 11, 1995. After 5:30 p.m. the notices in the areas frequented most often by the counter representatives were amended to indicate that there would also be a meeting at 3:30 p.m. on the same day. As well, at least one member of the bargaining committee also called some people to tell them of the strike vote.

8. There are 67 people in the bargaining unit. On the day set for the vote, over 80 percent, or 54 people, voted. This was facilitated by the fact that the employer allowed people on the day shift on Sunday to have time off to go and vote if they wished to. No employee has complained about lack of notice or the manner in which the vote was conducted.

9. The large majority of the people who voted did so at the 9:30 a.m. meeting. There were 51 people in attendance in a hotel meeting room that was approximately 25 x 24 feet. Chairs were set up in theatre style with an aisle down the middle. The room was somewhat crowded and some people were standing. At the front of the room was a small table where the two business agents, Theresa Suppa-Magee and Brian Noonan, were seated throughout the first meeting. In the corner behind them was a chair with a ballot box on it about seven feet from the first row of chairs. The ballot box was of a sufficiently rigid construction that people could put the ballot on the top of the box and mark it. Pens were provided.

10. The evidence before the panel establishes that each person who appeared to vote was a member of the bargaining unit. They each signed in and were provided with a ballot one at a time at the table by the business agents. On a balance of probabilities, the Board finds that people voted by going up to the box with their back to the audience marking their ballot and putting it in the box. Although the business agents sometimes glanced in the direction of the voting in order to ascertain whether it was time to send another voter over, we are persuaded that they did not have the opportunity to actually see how people marked the ballots.

11. Similarly, we are persuaded that the audience was not in a position to see how people marked the ballots unless the voter had decided to show how he or she marked the ballot to the audience. There is no evidence that anyone did so, and both Jane Carter, a member of the bargaining committee, and Theresa Suppa-Magee testified no one did.

12. Employer counsel challenged the credibility of Jane Carter, the witness who gave evidence that the voters voted with their backs to the audience. He also suggested that the most logical thing for a voter to do in such a crowded circumstance would be to mark the ballot against the wall. Although there are some inconsistencies between the evidence of Ms. Carter and Ms. Suppa-Magee, notably about whether or not people were allowed to leave the room during the voting, we are not persuaded that we should reject Ms. Carter's evidence wholesale. On the point in question about whether or not people voted with their backs to the audience, her evidence is corroborated at least in a general way by Ms. Suppa-Magee's. Ms. Suppa-Magee's evidence was that the audience was instructed that it was a secret ballot and that were to go into the corner individually to vote. The manner of giving out the ballots clearly indicated that it was not a public ballot.

13. There was a second meeting at 3:30 p.m. which was structured in a similar manner except that it was only attended by about three people and Mr. Noonan was the only business representative present. After that meeting, the ballots were counted without incident.

14. The requirements of section 73.1(2) are designed to make sure that in order to get the benefit of the replacement worker provisions, a union must have obtained the support of a significant majority of voters. An ample opportunity to vote for all members of the bargaining unit, whether members of the union or not, must be given and the ballots must be cast in such a manner that a person's choice cannot be identified with any individual voter. In this case, there is no dispute that the vote was held after bargaining had begun or notice to bargain was given, or that 60 percent of those voting authorized the strike. Rather, the employer questions whether the manner

of notice allowed ample opportunity to vote and whether the vote was conducted so that the persons voting could not be identified with their choice.

15. On the issue of notice, employer counsel argued that the union is required to give notice in a way that every member of the bargaining unit knows about the vote and has an opportunity to be at the vote. It is submitted that employees who were off Friday, Saturday and Sunday (approximately six) could not have seen the notice and that there is no reliable evidence that the notices were posted prior to the end of the Friday day shift. The union argued that the notice was sufficient. We are asked to take into account the fact that employees were told at the ratification vote meeting on June 7 that there would be a separate strike vote, as well as the speed with which the workplace "grapevine" would carry news of a strike vote. In the union's view, the turnout at the strike vote speaks for itself that members of the bargaining unit were well aware of the vote.

16. We are of the view that all of the circumstances of this case warrant a finding that members of the bargaining unit had ample opportunity to vote and that notice was sufficient. We have no evidence that anyone did not get notice. The number of people who showed up to vote establishes that notice was received by a very large majority of the bargaining unit. We are not of the view that the possibility that some people did not get notice directly from the posted notice warrants an inference that there was not ample opportunity to vote or sufficient notice of the vote.

17. On the issue of secrecy of the ballot, employer counsel stressed the wording of section

14(4), "cannot be identified", indicating that there should be a strict test. He relied on Toromont Industries Ltd., [1994] OLRB Rep. Aug. 1149 for the proposition that the onus is on the union to establish that the strike vote meets the Act's requirement. After setting out the history of sections 74(4) to (6) as reviewed in RCA Limited, [1981] OLRB Rep. Aug. 1159, the Toromont decision holds as follows:

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.

The majority, Board Member Patterson dissenting on this point, agrees with the Toromont decision and its interpretation of the requirement of a secret ballot.

18. We are satisfied here that the union provided a secret ballot process that the employee could opt out of rather than the reverse. The facts before us are substantially different than those in Toromont, cited above, where there was evidence that an employee did see how another voted, and the set up of the voting was such that members of the bargaining committee and union representatives could scrutinize people making their ballots. As well, there was no instruction that the ballot was to be secret and people did not vote one at a time.

19. This is not to say that the union could not have done more to ensure secrecy of the ballot. A screen and a table much like those used in provincial elections would have left little room for doubt about whether the physical arrangements in this case provided secrecy. However, we are satisfied that the evidence is persuasive on the balance of probabilities that the ballots were cast in a manner that the vote of the employees could not be identified with the person who voted.

20. Various assertions were made by employer counsel about activities of certain members of the bargaining committee after the conclusion of the first tentative agreement coupled with the unusually high level of rejection of a tentative agreement which was to have been unanimously recommended for ratification. We are not of the view that it would be helpful at this point to set them out here. Suffice it to say that we were not of the view that the evidence was sufficient to impact on our finding that the vote met the requirements of the Act.

21. We have provided these reasons at the request of the parties for their future guidance. Since the strike is now over, it is unnecessary to consider this application any further, and the matter is hereby terminated.