[1996] OLRB Rep. May/June 367
0397-96-R Service Employees International Union, Local 204 Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C., Applicant v. Citipark Inc., Responding Party
BEFORE: G. T Surdvkosvski, Vice-Chair, and Board Members S. C. Laing and R. Montague.
APPEARANCES: James Haves, Linda Micks, Alleti Ferens and James Webber for the applicant; David Cowling, Caroline East, Glenn Hatznah and Peter Osborn for the responding party.
DECISION OF THE BOARD; June 18, 1996
This is an application for certification.
By decision dated May 8, 1996, the Board (differently constituted) directed that a representation vote be taken in the application.
In accordance with the Board's decision or during the vote, the responding employer filed a statement of representations and asserted that the Board should dismiss this application pursuant to section 11(2) of the Labour Relations Act, 1995, as follows:
STATEMENT OF REPRESENTATIONS
A vote was held in the above-noted matter on Saturday, May 18, 1996 between the hours of 7:00 am, to 8:30 a.m. and between the hours of 3:00 p.m. to 5:00 p.m.. The vote was conducted in a room off the lobby on the main floor of the office building which contains the Ontario Labour Relations Board.
Linda Micks ("Micks") who is an officer, official or agent of the Applicant trade Union attended at the vote. Micks did not, however, act as a scrutineer at the vote. Rather, Micks stood outside of 400 University Avenue and accosted individuals as they came to attend at the vote.
There were three people who voted in the morning session of the vote. In the afternoon session, 16 people attended to vote. Again, in the afternoon, these people were accosted by Micks outside of 400 University Avenue. Each person was stopped and Micks spoke with them on average of 10 minutes each.
Caroline Sothern ("Sothern") complained to the Labour Relations Officer. Sonny Udasco about the conduct of Micks. The Officer indicated to Sothern that he did not view the conduct as appropriate, however, he could do nothing about it was it was outside the premises. The Officer further indicated that the Employer would have an opportunity to make representations about the conduct of the Applicant surrounding the vote and advised Sothern to do so.
Micks returned into the polling area and attended at the counting of the ballots at approximately 5:05 p.m.. Of the 19 ballots that were cast. 18 ballots were cast in favour of the Applicant and one ballot was spoiled.
It is the submission of the Responding Party that the Applicant's conduct constitutes a violation of Section 76 and 87(2) of the Laboor Relations Act, 1995.
It is the submission of the Responding Party that as a result of the contravention of the Act by the Applicant the representation vote which took place on May 18, 1996 did not likely reflect the true wishes of the employees in the bargaining unit. The Responding Party submits that as a matter of policy the Board should condemn conduct of a partison nature by one party directly adjacent to the polling area. It is submitted that the intimidation of having an officer or official of one of the parties attend outside of the polling area and accost individuals as they approach the voting area is the type of conduct which deprives employees of the ability to freely express their true wishes. The unanimity of the vote and the fact that Micks spoke with each voter as further suggests that the nature of the interchange between Micks and the voters deprived the employees of their ability to freely express their true wishes.
The Responding Party requests that in light of the Applicant's violation of the Act that the Board should dismiss the Application pursuant to Section 11(2) of the Act.
On June 10, 1996, a hearing was convened to deal with the responding employer's statement of representations.
On considering the statement of representations, and the submissions of counsel at the hearing, the Board ruled, orally, that the responding employer had failed to make out a prima facie case for doubting the validity of the representation vote as an expression of the true wishes of the employees or for the relief it sought. The Board therefor dismissed the responding employer's request.
Taking the employer's allegations at their highest, it has done no more than assert that on the day the vote was held and outside of the building where the polling station was located, a representative of the applicant trade union "accosted" or "stopped" employees coming to cast their ballots and spoke with them for an average of ten minutes each. On the plain and ordinary meaning of its own words, the employer asserts no more than that the applicant's representative approached and spoke to potential voters. There is nothing in the employer's pleadings which supports its subsequent bald assertion that the union's representative had intimidated, coerced or otherwise improperly affected the voluntary expression of the wishes of any employee who sought to exercise his/her right to cast a ballot in this vote, or which suggests either that voters were deprived of the ability to freely express their true wishes or that the result of the vote does not reflect the true wishes of those employees.
Some years ago, it was the Board's practice to impose a "silent period" prior to a vote. This required the parties, including the affected employees, not to engage in propaganda or electioneering with respect to the vote for 72 hours prior to the day of the vote or on the day of the vote itself. The Board's experience with the "silent period" was not a positive one. Indeed, the Board eventually concluded that the "silent period" created more problems than it solved (see, for example, Tops Food Market, [1982] OLRB Rep. Dec. 1951). Eventually, in November 1984, the Board formally changed its policy and issued a formal policy statement as follows:
BOARD POLICY RELATING TO THE SILENT PERIOD
In July of 1983, the Board reviewed its policy relating to the normal 72 hour "silent period" preceding a representation vote and was of the opinion that litigation over alleged breaches of the “silent period" often prolonged certification proceedings unnecessarily. The Board concluded that the imposition of a "silent period" before a representation vote should be dispensed with, but considered it advisable to implement this change of policy for a trial period of one year. Having closely monitored the impact of the change during this trial period, the Board has decided to adopt the policy of not imposing a 'silent period", as its regular practice. The Registrar of the Board, nevertheless, retains the right under section 68(j) of the Board's Rules of Procedure to impose a “silent period” in particular cases.
The Board reiterates that the dispensation of the "silent period" should not be seen as permitting “wide open" campaigns by parties to a vote. Rather, it is intended to eliminate litigation over technical violations. The Board will, of course, continue to deal with any submissions or complaints alleging that a representation vote has been improperly affected by the conduct of the parties or other persons.
Since then, the Board's practice has been to hold votes without imposing a silent period, and there has in fact been relatively little litigation arising out of electioneering prior to a vote.
Even in the "silent period" era, the mere presence of a trade union or employer representative near a polling area, whether their presence was extraneous or not, did not necessarily cause the Board to conclude that the vote was not likely to disclose the true wishes of the employees. Nor did propaganda or electioneering outside of the "silent period" necessarily have such an effect. (See, for example, Anderson Metal Industries Inc., [1981] OLRB Rep. Apr. 415; Associated Tube Industries Ltd., [1981] OLRB Rep. Dec. 1705; Windsor Machine & Stamping Limited, [1982] OLRB Rep. May 791.)
There was no silent period imposed in this case. There is nothing either generally or under the Labour Relations Act, 1995 which prohibits propaganda or electioneering with respect to a vote under the Act. Indeed, the use of propaganda in electioneering to influence voters is a common feature of votes in a democratic society. That is the case generally, and, as the Board's "outside of the silent period" jurisprudence demonstrates, has also long been the case under the labour relations legislation of this province.
Under the present Act, it is more important than ever, that the Board, and the parties and employees, have confidence that the results of a vote under the Act reflect the true wishes of the employees. This does not mean that people cannot be seen, or that they cannot speak to employees about the vote. Nor does it mean that people, be they representatives of the employer, representatives of a trade union, or employees themselves, can do or say whatever they wish. Propaganda and electioneering are one thing; intimidation, coercion or undue influence is quite another. The former is permissible; the latter is not.
Whether the line between acceptable and improper conduct has been crossed will depend on the circumstances, including who did or said what, where, to who, and in what circumstances. Anyone who wishes to impugn the results of a vote under the Act bears the onus of stating and proving their case. The Board will not engage in, and will not allow anyone else to engage in, a fishing expedition in that respect.
In this case, all that was alleged by the employer is that a representative of the applicant stopped and spoke to voters outside of the building in which the polling station was located. There is nothing obviously wrong with that. There was no suggestion on what was said, or circumstances which might arguably suggest that the union representative did or said something which could arguably have intimidated, coerced or unduly influenced voters. In that respect, for example, the mere fact that the vote result was what it was does not by itself suggest that the union representative did or said anything improper.
There are no other issues between the parties.
Accordingly, having regard to the materials filed and the agreement of the parties, the Board finds that:
all employees of Citipark Inc. in Metropolitan Toronto employed for not more than 24 hours per week and students employed during school vacation, save and except supervisors, maintenance foremen and auditors, persons above the rank of supervisor, maintenance foremen and auditors, office and clerical staff, and persons in bargaining units for which any trade union held bargaining rights as of May 3, 1996,
constitutes a unit of employees appropriate for collective bargaining.
For the purposes of clarity, the Board notes that the parties have agreed that employees in the classification of "special constable" are excluded from the bargaining unit so long as the employees in that classification perform the same and included duties and responsibilities of the auditor classification.
More than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
Accordingly, a certificate will issue to the applicant.
The Registrar is directed to destroy the ballots cast in the representation vote taken in this application following the expiration of 30 days from the date hereof, unless a statement requesting that the ballots not be destroyed is received by the Board from an interested party before then.