[1997] OLRB REP. JANUARY/FEBRUARY 134
2825-96-R Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, Applicant v. Small Fry Snack Foods Inc., Responding Party
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Mike McCreary and John Malcolm for the applicant; F. J. Bennett, D. Hiscocks, P Decarie and George Maxwell for the responding party.
DECISION OF THE BOARD; January 24, 1997
- This is an application for certification. A representation vote was held on December 9, 1996. The responding party (hereafter referred to as "the company") requested that a new vote should be held on the basis that two employees who wished to vote did not receive notice of the hours the vote was to be held and were therefore deprived of the opportunity to cast a ballot. The Board denied the company's request for a new vote and directed that a certificate be issued to the applicant (hereafter referred to as "the union") in a "bottom line" decision dated January 20, 1997. The following are the reasons for that decision.
The Facts
The Board and the parties agreed that submissions should be presented with respect to this issue on the basis of the "best case" for the company without calling any viva voce evidence. This decision is therefore based on the assumption that the following facts are true.
In its application received by the Board on December 2, 1997, the union requested that a representation vote be held within five days and during the hours of 5:30 am. to 7:30 am. In its response to the application, the company agreed with the hours for the vote proposed by the union.
The Board's decision and Notice of Vote and Hearing were received by the company after business hours on Thursday, December 5. The Board's Notice of Vote and Hearing (Form T-5) indicated that the vote would take place at three separate locations from 5:45 am. to 7:00 a.m. on Monday, December 9. The company posted the Notice (Form T-5) and the decision sometime on the morning of Friday, December 6. However, two employees had already left for their duties away from the facility by the time of the posting. They did not return to the workplace and were not expected to return until the morning of Monday, December 9, the day of the vote.
On the basis of the requested hours for the vote stated in the application and agreed to in the response, the two employees believed that the polls would be open from 5:30 am, to 7:30 a.m. The Board does not require that a response to an application for certification be posted, so it is unclear how the employees learned the information contained in the response. However, for the purposes of this argument, it was accepted that the parties' agreement on the proposed hours for the vote had come to the employees' attention and that they relied upon it.
The two) employees arrived at the workplace to) vote on Monday, December 9 at 7:10 am. and found that the Board's Returning Officer had already closed the poll and departed.
Seventeen out of the twenty-one employees on the voters' list for this bargaining unit cast ballots. It is possible that two additional ballots might have meant a different result when the ballots were counted. No employees have made submissions to the Board complaining that they have not had an opportunity to vote.
Submissions of the Parties
The company argues that it is entitled to have its employees' wishes with respect to union representation canvassed in a fair and reasonable way. In this case the company claims that two of its employees reasonably relied on the parties' agreement as to when the vote should be held and as a result of the Board's procedures, were not given any notice that the voting hours would not be those agreed to. The company submits that the Board's procedures have caused this unfairness in two ways: the Board's Notice and its decision were not received until after business hours on Thursday and could no)t therefore be posted before the employees left the facility for work on Friday morning. Furthermore, neither the decision nor the Notice directed attention to the fact that the hours for the vote were not the same as those agreed to by the parties. The two employees have therefore been deprived of the opportunity to cast a ballot through no fault of their own and a new vote should therefore be held.
The union argues that the company has no standing to raise this matter and that it could only be raised by an affected employee. As no employee has come forward with this concern, the company's objection should be denied. The applicant argued further that it was the company's own actions that led to the problem as it should have ensured that the decision and Notice of Vote and of Hearing were posted on Friday morning before the employees left the facility. The union submitted that there was nothing wrong with he Board's procedure in this case. In every case there are some employees who do not manage to vote and the Board should note that seventeen employees out of twenty-one did vote in this case. The union relied on the Board's decision in PH. Atlantic Plumbing & Heating Division of 629629 Ontario Limited, [1991] OLRB Rep. Jan. 97.
Decision of the Board
The Board decided not to order a new vote in the circumstances as there was sufficient notice to the employees. In making this decision, the Board has taken into account that no employee has come forward and complained that he or she was deprived of the opportunity to vote. In the Notice of Application (Form T-2), as well as the Notice of Vote and Hearing (Form T-5) and the Notice of Report of Board Officer (Form T-36), employees are advised that if they wish to say something about the application they should file submissions with the Board.
The Board has also considered the Act's certification scheme in reaching its conclusion. The Labour Relations Act, 1995 requires the Board to hold a vote within five days of an application for certification being received, where possible. In that time frame an application must be served and filed, a response must be served and filed, the Board must review the materials and issue a decision ordering a vote. Administrative and sometimes adjudicative decisions and arrangements must be made as to where and at what times the vote will be held. As a result of these time frames, it is not uncommon for the Board's Notice of Vote and of Hearing to be posted only one day, in this case one working day, prior to the vote. The employees are, however, given notice that a vote is pending because the Notice of Application (Form T-2), as well as the application must both be posted. The Board's Notice of Application indicates that a vote will normally be held within five days of the application date. The employees, however, are not given notice of the actual date and time and place of the vote until the Board's Notice of Vote and Hearing is posted and are expected to) keep themselves informed as to when that posting occurs and the information it contains. Nothing is considered final until the Board's decision and the Notice of Vote are issued to the parties. Employees are specifically advised that all final information regarding the vote will be provided to them by way of posted notice one or two days before the vote in the Notice of Application which states as follows:
VOTE ARRANGEMENTS
The Board will consider the bargaining units proposed by the applicant and the employer and will then determine the voting constituency, which is the group of employees who will vote.
The Board will also consider the requests of the union and the employer as to where and when the vote should be held.
In the next few days, the Board will direct your employer to post a Notice of Vote and of Hearing" beside this notice, setting out the date and time of the vote, the location(s) of the polling place(s), and the voting constituency.
Normally, the vote will be held five (5) days (not counting weekends and holidays on which the Board is closed) after the application for certification is filed with the Board. You should expect the Notice of Vote to be posted one or two days prior to the date of the vote.
TO ENSURE THAT YOU ARE INFORMED OF THE VOTE ARRANGEMENTS, YOU SHOULD CHECK THIS SPACE REGULARLY FOR FURTHER POSTINGS.
[emphasis in original]
- In this case the company argues that the employees relied on the parties' agreement that the hours of the vote would be from 5:30 a.m. to 7:30 am. There is no reason why that should be the case. The Board asks the applicant to propose hours for the vote and the responding party to agree or to propose alternative ones. There is nothing in the application or response or the Board's Notice of Application that asserts that the polling hours will be those proposed. In fact, the Notice of Application says only that they will be considered and the time of the vote posted at a later date. The Board does try to accommodate the parties' proposals but is constrained by administrative concerns, including the availability of Officers to conduct the vote. The Board's Officers may have to conduct several votes in one day and the Board will take into account, among other things, how many people are expected to vote at a poll in order to) determine how long it should be open. The Information Bulletin #2 "Instructions Regarding the Making of Vote Arrangements" provided to the parties in a certification application states as follows:
If the parties agree on vote arrangements, the Board will typically attempt to accommodate the proposals made by the parties. However, if in the Board's view the arrangements will be too costly or do not adequately allow employees the opportunity to vote, the Board may set the date(s), time(s) and location(s) of the vote without regard to the parties' agreement.
HOURS OF VOTE: In proposing the hours for the vote the parties must seek to balance the need for an economical use of the Board's resources and the general rule that hours of the vote should be arranged so that most employees have the opportunity to vote during regular working hours.
Generally, not more than one hour should be allowed for each sixty (60) eligible voters.
In this case, thirty-five to thirty-eight employees in the originally proposed bargaining unit were expected to vote at three separate locations. The Board considered it appropriate to hold the vote within the hours proposed by the parties but not for the full two-hour period. That decision was reasonable in these circumstances.
- In B & B Electric Co., (decision of the Board dated December 4, 1996, unreported) [now reported at [1996] OLRB Rep. Nov/Dec. 907], the Board had occasion to comment on the expectation that all employees receive actual notice of a representation vote as follows:
It should surprise no one that each and every person who might possibly be affected does not receive actual notice of each and every application for certification, or of each and every representation vote which is held, in a timely way. The Board, relying as it must on the trade union and employer involved in an application for certification to do the things which they are obliged by statute or directed by the Board to do, does what it can to bring the application and proceedings in it to the attention of the person who may be affected. However, it is readily apparent that time is of the essence and the "quick vote in every case" certification system established under the Act (see Burns International Security Services Limited, [1996] OLRB Rep. April 192; The Corporation of the City of Toronto, (Board File No. 2603-95-R, decision dated July 3, 1996, to be reported at [1996] OLRB Rep. for July/Aug.) and it is inevitable that not every person affected will receive actual notice in every application for certification. There are any number of reasons why affected persons, generally employees, may not receive actual notice. For example, it is entirely normal, particularly in the construction industry, for persons to be absent from the workplace for vacations, medical reasons, or for other reasons. No workable certification system can guarantee that everyone affected by an application for certification will receive actual notice of the application. This is particularly true in a fast vote in every case system like the one the Board is charged with administering under the Act.
Further, this is no different from other situations in which notice is given in a manner which does not include personal service and which therefore cannot guarantee actual notice to persons whose rights may be affected. For example, various kinds of legal notices are routinely published in newspapers, and in the Ontario Reports (which are not widely read by persons who are not legal professionals). More to the point, actual personal notice is not necessarily given to everyone who may be entitled to vote in Municipal, Provincial, Federal or other elections.
This Vice-Chair agrees with the above comments and found that sufficient notice of the vote was provided in this case. Seventeen out of twenty-one employees in the bargaining unit finally agreed to by the parties did vote. The two employees who relied on the parties' agreement with respect to the proposed voting hours did so at their own peril and in disregard of the Board's own instructions set out in its Notice of Application. The Board at no point held out that it was bound in any way by the proposed hours. The employees knew a vote would be held on or after December 6 by the Board's notices and it was incumbent on them to keep themselves informed as seventeen of them appear to have done. And again the Board notes that it is the employer, not the employees, who asserts that an unfairness occurred in these circumstances. For all of the above reasons, the Board declined to order a new vote and directed that a certificate by issued to the applicant.
In its decision dated January 20 the Board should have explained for the benefit of the employees that the parties agreed on the bargaining unit outlined in that decision after the vote.
The responding party employer is directed to post copies of this decision immediately adjacent to the Board's decision of January 20.