[1996] OLRB REP. MARCH/APRIL 297
3943-95-U; 3957-95-U David E. Smith et al (see schedule "B"), Applicant v. Ontario Public Service Employees Union, Responding Party. v. The Crown in Right of Ontario as represented by Management Board of Cabinet, Intervenor; Penny Sue Stewart, Applicant v. Ontario Public Service Employees Union, Responding Party v. The Crown in Right of Ontario as represented by Management Board of Cabinet, Intervenor
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members S. C. Laing and P. V. Grasso.
APPEARANCES: David E. Smith and P. Stewart for the applicants; Paul Cavalluzzo, Louise Rose and Fay Farraday for the responding party; Robert Little and Malliha Wilson for the intervenor.
DECISION OF THE BOARD; April 12, 1996
Board File No. 3943-95-U is an application under section 96 of the Labour Relations Act, 1995 in which the applicant asserts that the responding trade union (the "OPSEU") has violated section 79(9) of the Labour Relations Act, 1995 by establishing a procedure for a ratification/strike vote which was not reasonably convenient and did not provide employees an ample opportunity to cast their ballots.
Board File No. 3957-95-U is an application under section 96 of the Act in which similar allegations are made against the OPSEU. In addition, the applicant asserts that the OPSEU has breached its duty of fair representation under section 74 of the Act.
These two applications both came on for hearing before this panel on February 15, 1996. When the hearing was convened, the OPSEU stated that the concerns of the applicant in Board File No. 3957-95-U had been addressed and moved that that application should therefor be dismissed on the basis that it was moot. The applicant was assured that she would be allowed to cast a ballot at the Olympic Harbour Sailroom voting location at 8:00 p.m. on February 15, 1996, and that attendance at the one half hour information session scheduled to precede the voting was not mandatory. The applicant was satisfied with this, and on the basis of those stipulations was content to withdraw her application. Accordingly, and without objection from the OPSEU the application in Board File No. 3957-95-U was withdrawn with leave of the Board.
The Board then proceeded to hear the application in Board File No. 3943-95-U on its merits. Upon hearing and considering the evidence of the parties, and the representations of the applicant and intervenor, the Board determined that it was not necessary to hear the OPSEU's representations and dismissed the application in a brief oral ruling.
Formerly section 74(6), section 79(9) of the Act provides as follows:
- (9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.
(emphasis added)
The second sentence of section 79(9) is new. It was added when the Act was amended effective November 10, 1995. This application raised for the first time an issue concerning the interpretation of the amended provision, which must be read as a whole.
Ultimately, there was little dispute about the facts material to the application, although there was some dispute about the conclusions that Board should draw from the facts.
The vote in issue in this proceeding concerned the proposed collective agreement tabled by the intervenor employer on or about February 6, 1996. The timing of the vote was dictated by a Board decision in an application under section 36 of the Crown Employees Collective Bargaining Act, as amended, in Board File No. 2629-95-M. After consulting with the parties in that case (the intervenor and responding trade union herein), the Board issued a decision dated November 24, 1995, which provided, among other things, that:
upon the request of the employer the union shall conduct a vote on the Employer's Final Offers on all disputed matters of all applicable bargaining units, including disputed matters, in the central collective agreement (5. 25 CECBA. 1993);
this vote shall be conducted no later than 14 days after the request of the employer, which shall not be made prior to the release of any no Board report in respect of any one of the six bargaining units or the Central Agreement. In any event the vote shall be no earlier than February 1, 1996;
for the purpose of Section 44 and 79 of the Labour Relations Act 1995 ("the Act") this vote shall be conducted in accordance with Section 79 of that Act - and shall also be a ratification vote under Section 44 of that Act;
this vote shall be a strike vote for the purposes of triggering Stage 2 of the selection process of employees to perform essential and emergency services in Appendices A & B of the Central Agreement on Essential Services;
this vote shall be deemed to be a vote, for this round of bargaining only under Section 42 of the Labour Relations Act 1995;
the union may hold a vote on the offers of the employer on matters in dispute in respect of all applicable bargaining units including disputed matters in respect of the Central Collective Agreement to a vote of employees in the affected bargaining units within fourteen days of the union notifying the employer of such a vote or fourteen days from the receipt of the amendments of the employer by the Union described in paragraph 16;
the union shall notify the employer of its intention to hold a vote described in paragraph 15. The employer may amend any of its offers on disputed matters and shall inform the union of such amendment(s) within 48 hours of notification of the union's intention to hold a vote described in paragraph 15. Upon receiving notification from the Union of its intention to hold a vote, the employer will forthwith inform the Union of its intention with respect to whether it will be amending its final offers with respect to any bargaining units. Where the employer informs the union of any amendment(s) to its offers within the above said 48 hours, the union shall hold the vote described in paragraph 6 on those amended offers;
for the purposes of Section 44 and Section 79 of the Act, the vote taken in accordance with paragraph 15 and 16 shall be in accordance with Section 44 and Section 79 of the Act. The vote shall be a strike vote for the purposes of triggering Stage 2 of the selection process in Appendices A and B of the Central Agreement on Essential Services;
where the employees in a bargaining unit vote in favour of the employer's offers in a vote under paragraph 10, 15 or 16, that vote will constitute ratification if such a vote is conducted in accordance with Section 44 of the Act;
where the employees in a bargaining unit vote to reject the employers offers in a vote under paragraph 10 or paragraph 15 or 16 that vote will be a strike vote for the purposes of the applicable bargaining unit, if such vote is conducted in accordance with Section 79 of the Act;
a vote taken pursuant to paragraph 10, 15 or 16 shall be a vote on all issues in dispute by each of those employees in each of those designated bargaining units and the deemed bargaining unit (central) and shall take place simultaneously.
As a result, the vote on the intervenor's February 6, 1996 offer had to be completed by February 20, 1996.
Approximately 65,000 employees were entitled to cast ballots in this vote. These employees are employed in approximately 4,000 work sites spread across the Province of Ontario. There are heavy concentrations of employees in urban areas. Other employees are located throughout the province, some in remote locations.
The OPSEU is administratively divided into seven regions. In Region 5, which includes but extends somewhat beyond the Greater Toronto Area, there are approximately 20,000 employees in approximately 500 workplaces. Within each region there are numerous OPSEU Local Unions, all of which have employees in 4 to 6 bargaining units, all of which are effected by the vote in issue. In this vote, employees were entitled to vote in their bargaining unit and also in the central vote.
In late November and early December 1995, the OPSEU formed several committees to make and oversee the arrangements for the vote which was apparent would have to be held. This included Central Mobilization and Vote Procedures Committees, and also Service Area Co-ordinating Groups which were responsible for facilitating local vote arrangements and ensuring a fair vote. In the result, a vote protocol was developed. This protocol called for a vote to be held over the three day period February 15 to 17, 1996 at various locations across the province. Typically, the arrangements made contemplated a half hour information session followed by balloting in a large venue. Each OPSEU Local Union was assigned a specific time and place for its members to vote.
The applicants in this case are members of OPSEU Local 532, which is in OPSEU Region 5. Originally, members of this Local were advised that they could attend a meeting and vote at 4:00 p.m. on Saturday, February 17, 1996 in the Queen Elizabeth Building on the grounds of the Canadian National Exhibition in Toronto. Subsequently, four additional times on February 17, 1996 were scheduled at the same location.
The applicants were not happy with these arrangements. Their normal work week does not include Saturday, which they alleged is also the case for many other bargaining unit employees. The applicants also asserted that many employees reside in communities other than those in which their workplaces are located, and that the voting locations established by the OPSEU were not located near either their homes or their workplaces. They also alleged that they had been led to believe that they would have the opportunity to vote on a weekday, and that previous votes, and specifically the vote held with respect to the proposed "Social Contract" agreement were held on a weekday at or near employees workplaces. Of the twenty-two applicants, only one, David Smith, took the trouble to attend at the hearing. Mr. Smith was the only witness who testified in support of the application.
Mr. Smith testified that upon reading the notice the OPSEU caused to be posted advising members of Local 532 of the voting arrangements for that Local, he and a number of his colleagues made telephone calls to various people at the OPSEU to question the arrangements, and in the case of some of them to try to make alternate arrangements to cast their ballots. Indeed, ten of the applicants made such requests, five of which had been granted as of the morning of the hearing.
Although he questioned the voting arrangements, Mr. Smith did not ask to be allowed to vote at a different time or place, even though he knew that others had done so and that there was a voting location near his workplace which he passes daily on his way to and from work.
Mr. Smith stated that it was inconvenient for him to travel from his home in Oshawa on a Saturday to cast his ballots at the C.N.E. in Toronto because. he does not normally come to Toronto on Saturday. Mr. Smith conceded that he has travelled to Toronto on Saturdays or Sundays in the past for entertainment purposes but said that the voting arrangements didn't fit in with his plans for Saturday, February 17, 1996. He offered no explanation for not making a request to be allowed to vote at another time or place other than that he had to fill out a form to do so, and he didn't know if his request would be granted.
The approximately 65,000 employees affected by the ratification/strike vote which this application concerned have not previously had a right to strike. The OPSEU was faced with organizing a vote which would give this large number of employees scattered over 4,000 workplaces across the province ample opportunity to vote at a reasonably convenient time or place, all within fourteen days. In order to manage this rather daunting task, the OPSEU formed committees at various levels, developed a voters' list for each Local which is circulated in each workplace so that necessary corrections could be identified and made, and arranged times and places for everyone to vote. In making voting arrangements, the OPSEU considered and tried to balance the logistical problems of holding a vote for such a large number of voters over such a large geographic area in a relatively short period of time, against the need to meet the requirements of the Labour Relations Act, 1995 and provide the employees with sufficient information and an adequate opportunity to vote. In the larger urban centres, like Toronto, the OPSEU was faced with a problem of finding large meeting locations near major concentrations of employees on very short notice, and with scheduling meetings so that knowledgeable and informed people could provide up-to-date information to employees who wanted it so that all employees would have a reasonable opportunity to make an informed decision and cast their ballots accordingly. The resulting vote arrangements were quite diverse and are set out in a 33 page voting schedule which forms part of the evidence before the Board. In making the vote arrangements, the OPSEU attempted to accommodate the needs of shift workers, employees with special work arrangements, employees in remote locations, the needs of physically challenged employees, and individual circumstances. In that latter respect, the evidence before the Board indicated that many individual requests for a change in voting time or place had been granted. There was no evidence that any had been refused. Among the reasons which the OPSEU accepted in allowing such requests were hockey tournaments, curling bonspiels, weddings, family commitments, travel plans, and religious reasons. Indeed, what it came down to was that any bargaining unit employee who presented him/herself at any open voting location would be allowed to cast his/her ballots, subject to those ballots being segregated pending a check on the entitlement of the employee to cast them.
It is true that the OPSEU did not publicize either the fact that employees could request permission to vote at other than the assigned time or place or that employees could simply appear at a voting location and cast their ballots. In the circumstances, that was quite understandable. It was important that the OPSEU do its best to ensure the integrity of the voting process. This required the OPSEU to exert direction and control over that process, including when and where people could vote. Without the sort of structure which the OPSEU developed in this case, chaos may well have ensued, bringing with it the possibility of an unreliable vote result.
Section 79(9) of the Act requires a vote like the one in issue in this application to be conducted in a manner which provides employees with an ample opportunity to cast their ballots at a reasonably convenient time and place. Mr. Smith conceded that the legislation does not create any hard and fast rules in that respect and that a trade union has some leeway in the way it structures a vote. However, he argued that the amendment to the previous provision now contained in section 79(9) has introduced an additional standard such that convenience to employees must be given primary consideration.
We did not agree.
Section 79 of the Act deals with what is first and foremost an internal trade union issue: the taking of strike and ratification votes. Prior to the amendments to the Act in November 1995, it was up to a trade union to decide for itself whether to take any such votes, though if it did, what was then section 74 of the Act established certain minimum standards which such votes had to meet; that is, all employees in the bargaining unit affected, whether or not members of the trade union were entitled to an ample opportunity to participate in a vote which had to be by secret ballot. In dealing with an application which challenged propriety of a ratification vote in The Great Atlantic & Pacific Company of Canada Limited, [1995] OLRB Rep. Feb. 178, the Board commented that:
The Board's decisions interpreting section 74 have made it clear that, although a union is not required to hold ratification votes, if it does, it must comply with the sections. The purpose of the provisions has been set out most extensively in R.C.A. Limited, [1981] OLRB Rep. August 1159. As the Board there pointed out, the sections provide a minimum of protection, in a procedural way, but the wording is deliberately general. This is to be understood against the background of the statute's otherwise general approach - which is not to regulate closely the internal affairs of trade unions, except to the extent that they breach the duty of fair representation or referral set out in sections 69 and 70.
On the facts of this case as pleaded by the complainant, a case for the remedy of overturning the provincial ratification vote was simply not made out. The length of time between the posting of the notice and the meeting was not unduly short in the context of collective bargaining, which often runs on very tight timelines. A similar length of time of notice was found not to be a basis for interference in Inter-Bake Foods Ltd., [1981] OLRB Rep. August 1145, even where there was a substantial amount of confusion as to the date of the meeting. No similar factor was pleaded here. There as well, people had plans which they did not wish to change, and thus did not attend the ratification meeting. The Board there held that the fact that many employees were inconvenienced by the timing of the meeting did not disclose a violation, and it is my view that the same is true of the facts pleaded before me. A requirement that the union hold out for the convenience of all 10,000 employees before scheduling a ratification vote is simply too impractical to impose. Nor is it illegal to hold the vote on a holiday, unless there were additional facts pleaded from which one could infer illegality. There are no such additional facts before me.
The November 1995 amendments to the Act make strike votes mandatory, except in the construction industry, (sections 79(3) through (5)). (Ratification votes are now also mandatory for negotiated collective agreements in other than the construction industry: section 44.) All strike and ratification votes must be by secret ballot and all such votes must be conducted in a manner such that all employees in the bargaining unit affected, whether or not members of the trade union concerned have an ample opportunity to cast their ballots. In addition, all such votes, other than those conducted by mail, must now also be held at a time (or times) and place (or places) which are "reasonably convenient". Whether or not this latter addition to what use to be section 74(6) and is now section 79(9) of the Act is a legislative response to Board decisions like The Great Atlantic & Pacific Company of Canada Limited, supra, it is apparent that ample opportunity and reasonable convenience are not necessary the same thing, and that the intent of the addition is to raise the standards which both mandatory and discretionary trade union votes must meet. Consequently, while such votes remain primarily internal trade union matters and trade unions continue to have considerable latitude in the manner in which the organizing conduct such votes, they are subject to greater Board scrutiny than before.
"Reasonable convenience" has been added as a specific factor to consider when the propriety of a ratification or strike vote has been placed in issue before the Board. However, the legislation does not require that this factor be given some sort of super added status or special consideration. Further, neither section 79(9) nor anything else in the Act suggest that it is only the convenience of bargaining unit employees which must be considered. That is, in considering whether a strike or ratification vote is being or has been held at a reasonably convenient time and place, the Board must consider all of the relevant circumstances, including the interests and convenience of the trade union, and not just the convenience of employees individually or as a group. Accordingly, what is "reasonably convenient" within the meaning of section 79(9) of the Act will depend on the circumstances of each case, and an objective assessment of a trade union's conduct in those circumstances. Further, a trade union is not required to make the best or most reasonably convenient vote arrangements. In most cases, there will be a range of arrangements which are reasonably convenient, and so long as the time(s) and place(s) for voting fall within that range, the requirements of section 79(9) will be satisfied. Neither section 79(9) or anything else in the Act gives any employee a "right" to have a strike or ratification vote conducted during working hours, at his/her workplace, or near his/her residence (whether or not s/he resides in a community other than where s/he works). The fact that a vote is taken at a time or place other than any of these does not necessarily mean that it will not be considered to be reasonably convenient.
In this case, the applicants, through Mr. Smith, asserted that there were general systemic problems with the OPSEU's organization of the vote such that the arrangements made were not reasonably convenient for many bargaining unit employees. However, the evidence before the Board did not support either that general assertion, or the applicant's assertion that the voting arrangements for Local 532 were not reasonably convenient. 26.?On the contrary, the evidence showed that the OPSEU was faced with a ratification/strike vote in a very large bargaining unit spread over the entire province in a relatively short period of time, that it went about organizing the vote in a sensible way recognizing that it had to accommodate many diverse employee needs while preserving the integrity of the voting process, and that it was responsive to the needs and circumstances of individual employees. The applicant's complaint about what they alleged was a lack of information in that latter respect rang rather hollow in light of the fact that ten of them actually applied to be permitted to vote at other than one of the five times allotted to Local 532 to accommodate their individual circumstances, while Mr. Smith knew that he could do so but didn't. On the evidence, it appears that the OPSEU was willing to accommodate any individual or group circumstances, even without a specific application if a bargaining unit employee sought to vote at any open voting location. 27.? Indeed, Mr. Smith conceded in argument that the OPSEU had turned its mind to its obligations under section 79(9) and had addressed individual circumstances. Although he continued to maintain that the OPSEU had done too little too late in that respect, he was unable to suggest what more the OPSEU could have done in that respect, or what it was that the OPSEU had done or was prepared to do was either contrary to or did not meet the requirements of section 79(9) of the Act. Further, he abandoned the remedies sought in the application and was unable to suggest any other. Instead, he suggested that the Board should itself structure a remedy, for a breach which he alleged but could not identify. In short, even Mr. Smith had very little to say in support of the application.
Accordingly, having regard to the evidence before the Board, and the representations of the applicant (the intervenor quite properly in the circumstances taking no position with respect to how the application should be decided), the Board was satisfied that the voting arrangements made by the OPSEU for the ratification/strike vote in this case, and particularly the times and places scheduled for the voting, afforded employees an ample opportunity to cast their ballots and were reasonably convenient having regard to all the circumstances. The Board was satisfied that no violation of section 79(9) had been made and the application was therefor dismissed.
Finally, we note that the Board received several faxes from persons reporting to the employees entitled to cast ballots in the vote in issue before the Board herein. Some arrived prior to the hearing on February 15, 1996 and some after. None of the persons whose names appear on these communications appeared before the Board. None of the letters constitute a proper application to the Board. Nor could any of them been considered by the Board to have been "evidence" in this proceeding. Finally, because one of the fax communications requests a Board "investigation" we wish to point out that the Board is a quasi-judicial administrative tribunal, not an investigatory body. The Board adjudicates labour relations disputes brought before it between parties adverse in interest. Those parties are obliged to properly state and present the respective cases to the Board, generally in a formal legal proceeding where evidence is presented under oath and legal argument is made.
The Registrar is directed to advise the individuals who sent faxes to the Board with respect to the applications herein of the steps they must take in order to bring any complaint they have with respect to the voting issue before the Board. In cases where more than one person's name appears on a fax the person whose name appears first is the one with whom the Registrar should communicate, as a representative of all the persons whose names appear on it.