[1997] OLRB REP. JANUARY/FEBRUARY 2
2461-96-R Brock University Faculty Association (Unincorporated #2), Applicant v. Brock University, Responding Party
BEFORE: Christopher Albertyn, Vice-Chair, and Board Members S. C. Laing and I. Redshaw.
DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER J. REDSHAW; February 6, 1997
This is an application for certification.
On November 20, 1996 the Board ordered a representation vote.
The university explained that certain of its faculty members affected by this application were on sabbatical and unpaid leave and were unlikely to be present at the representation vote which the parties agreed should be held on the university's campuses on November 26, 1996. The university requested that those faculty members be permitted the opportunity to vote by mail-in ballot. The university was prepared to bear the administrative costs occasioned by the mail-in ballot. The faculty association opposed the request.
In the Board's decision ordering the vote, a majority of the Board decided not to grant the University's request for a mail-in ballot. What follows are the reasons for that refusal.
The university relied upon the Board's decision in Halton Roman Catholic Separate School Board, [1986] OLRB Rep. July 962. It argued that where the employment status of an employee is not in question, that employee should not be disenfranchised merely because their absence from the university coincides with the date on which the ballot is to be held. The slight delay in the final count of the ballot and the additional administrative tasks occasioned thereby should not, in the university's submission, defeat the entitlement to vote of employees who will be affected by the outcome of the vote.
When considering the university's submission, we have taken account of the following competing considerations. On the one hand, the Board considers the undesirability of accepting that, by force of circumstance, certain employees affected by the outcome of the ballot will be excluded from the vote through no fault of their own. They could participate and be counted by being given the opportunity of a mailed-in ballot.
On the other hand, the university's request must be considered in context. The principle which it invokes is that in all circumstances in which an employee is, by force of circumstance, to be away from the polling station, s/he should be entitled to a mailed-in ballot. The Board must consider what that would entail. It would mean that in virtually every certification (and, by extension, termination) vote, some employees would be entitled to a postal vote, whether they be on vacation, on sick leave, extended leave, maternity leave, paternity leave, sabbatical leave or unpaid leave or, indeed, not scheduled to work on that day. The university takes the position that the principle should apply to those persons whose employment status is not in dispute. But why should that be? Why should someone who is in fact an employee (as subsequently determined to be so by the Board), whose status is initially disputed, not also be entitled to cast a mail-in vote, the count of which would be suspended until his! her status were determined by the Board?
If a postal vote is to be permitted in all such cases, then the question may arise as to whether other forms of non-standard balloting should be permitted, such as advanced po11s and perhaps proxy votes. If the Board were to pursue the route of creating a voting opportunity at any cost, then nonstandard forms of balloting, besides mail-in votes, should perhaps also be sanctioned.
The impact of adopting the principle advanced by the university would be a massive additional burden upon the Board's administration, with which it simply could not cope. A plethora of non-standard forms of balloting and their frequent use would create an administrative nightmare for the Field Services division of the Board, which conducts the representation votes. However, this administrative concern is not the crucial consideration. The relevance of describing the anticipated administrative difficulties is on account of the impact they would have upon the Board's capacity to fulfill a central statutory mandate. If non-standard forms of balloting were routinely permitted, the effect would be a significant delay in the holding of representation votes. That effect is directly counter to one of the core features of Bill 7, that representation votes occur quickly so that the parties are faced with a minimum period of uncertainty and so that the potential for disputes to arise concerning conduct between the application date and the voting date is kept to a minimum.
The Board may, under section 8(5) of the Act, direct that a representation vote occur other than within 5 days of the date the application for certification was filed with the Board. The Board will make such a direction only in very limited circumstances, for example, where the parties agree, as in this case, to a later voting date. The Act prescribes quick representation votes for sound labour relations reasons. The legislature intends that the necessary uncertainty in the labour relations of those affected by a certification application and the potential for vote related misconduct are kept to a minimum.
Under section 8(1) of the Act, the Board is empowered to determine the voting constituency of those who will be eligible to participate in the representation vote. That power is akin to the power exercised by the Board under previous versions of the Labour Relations Act when it determined which employees would be included in the list for the purpose of the count to establish a union's representativity.
The Board exercised that power during the period from approximately 1950 to 1995, in non-construction certification applications, by applying the 30/30 rule. That rule excluded certain people from the count, although those persons were legally employees, but not actively at work during the period which the Board determined as reasonable in the circumstances. There were compelling labour relations policy reasons for making the exclusion, important among them being the Board's desire to give the parties a simple and clear "rule of thumb" by which to determine a difficult case and thereby avoid litigation as to who should, and should not, be entitled to be counted. In a sense competing democratic considerations were assessed and the Board concluded that the inclusion of everyone who had even a remote employment relationship with the employer would undermine another important democratic value, that certainty and finality follow expeditiously upon the expression of interests by those who were easily determined to be employees.
Similarly, for some considerable period prior to Bill 7, in the construction industry, the Board determined that the appropriate constituency for determining representativity was those employees at work on the application date. The rule that those at work on the application date has served sound labour relations purposes in the construction industry. Since Bill 7, the standard which informed that rule has continued to be applied. Those at work on the application date may participate in the vote, others may not. See in this regard the decision of the Board in Ken Anderson Electrical Inc., (File No. 0550-96-R and 1001-96-U, dated September 18, 1996 unreported) j[now reported at [1996] OLRB Rep. Sept/Oct. 8461, particularly paragraphs 18 to 35, which explain the history and rationale for the Board's approach.
All of these rules for determining the voting constituency potentially have the effect of depriving some individuals who by another measure may be employees with the opportunity to have a say over whether they will be represented by a particular collective bargaining agent. But, in each instance, the Board determined that, in order to fulfill the statutory scheme for ascertaining a union's entitlement to be certified, the harm to the interests of those arguably, remotely or tenuously associated with the employer was outweighed by the assertion of the interests of those whose employment status was substantially unassailable, and who were immediately available to express their preference so as to enable the Board to give prompt effect to that preference.
In like manner, in this instance, the Board took account of the labour relations implication of necessarily delaying representation votes if the Board were routinely to authorize non-standard forms of representation balloting. The Board has had to balance the opportunity to vote with the union's entitlement to a quick vote, which is a peremptory requirement of the Act. The compromise reached is that which, in the Board's view, best fulfills the statutory scheme for determining a union's entitlement to be certified.
Besides the above considerations, once employees who cannot be present at the vote are routinely entitled to a mail-in or other non-standard ballot, the Board would likely be faced with a new range of potential litigation, determining such issues as to whether the absent employee was really unable to attend at the poll, and whether an absent person who wishes to cast a mail-in vote was really an employee. Of course, the question of an individual's employment status may be in issue regardless of the inclusion or non-inclusion of mail-in ballots. The inclusion of mail-in ballots merely increases the likelihood of status disputes because the group of persons included by mail-in ballots have an obviously peripheral relationship to the employer. The result of such litigation would be to effectively nullify or preclude the statutory direction for quick and determinative representation votes.
Hitherto, having regard to the above considerations, the Board has accepted that, although desirable to ensure the fullest participation in the ballot by the voting constituency, it will usually order mail-in votes only in very limited circumstances, for example where the nature of the work of the affected employees requires their dispersal far from the employer's premises where the vote would customarily be held. Only in such limited circumstances or where there are compelling reasons and where to hold the vote at the employer's premises or some fixed location gives no reasonable opportunity for a significant proportion of the voting constituency to cast its vote, or on the agreement of the parties, will the Board order a mail-in ballot. None of those circumstances apply in this application.
Finally, this is not the first time the Board has faced this question in this context. The issue of mail-in ballots has been raised previously in other certification votes in universities and in general the Board has taken the position that it will not order a mail-in vote for faculty absent on account of sabbatical or other leave.
Accordingly, the Board ruled that it would not grant the university's request for mail-in ballots.
DECISION OF BOARD MEMBER S. C. LAING: February 6, 1996
With all due respect to my colleagues, a Board decision which effectively thwarts employees' democratic rights can only, in my opinion, be characterized as fundamentally flawed.
The provisions of Bill 7 clearly set out a legislative intent which would have bargaining rights in certification applications determined through representation votes of affected employees.
There is no question that the employees at issue are affected employees. There is also no question that to deny those affected employees an opportunity to vote through a mail-in ballot was to deny them the opportunity to participate in the representation vote in which they had an equal interest with all other faculty who fell into the bargaining unit.
The myriad of potential cases where the Board may receive a request for a mail-in ballot are unnecessarily canvassed at paragraph 7 of the majority decision. What is germane to this request are the facts of this case.
In the circumstances of this case, there exists no practical administrative inconvenience to the Board. The university was to provide the necessary address labels and lists which would have allowed the Board to conduct the mailing.
It is incumbent upon the Board to ensure that all affected employees (if practically possible) are given the opportunity to participate in a representation vote. As such, in this case, those faculty on sabbatical and leave ought to have been permitted to vote through a mailed-in ballot.