Ontario Labour Relations Board
Citation: [1998] OLRB REP. MAY/JUNE 420 File No.: 2764-97-R Date: May 28, 1998
Between: Labourers' International Union of North America, Local 183, Applicant v. Dunbury Homes (Holly) Ltd., Responding Party
Before: G. T Surdykowski, Vice-Chair.
Appearances: John Moszynski, Al Bremner and Luis Tores for the applicant; Daryn Jeffries and Philip Litowitz for the responding party.
Decision of the Board
The name of the responding employer is amended to "Dunbury Homes (Holly) Ltd." ("Dunbury").
This is an application for certification in the construction industry. A representation vote has been ordered, held and counted.
The employer submits that notwithstanding that the sole ballot cast in the vote was marked in favour of the applicant, the application should be dismissed pursuant to subsection 11(2) of the Labour Relations Act, 1995, which provides that:
(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:
A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.
The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.
In the alternative, the employer submits that the Board should hold another vote.
There were two employees at work in the bargaining unit on October 24, 1997, the certification application date. Accordingly, they are the only employees in the bargaining unit for purposes of this application (see, Ken Anderson Electric Inc., [1996] OLRB Rep. Sept./Oct. 846). Both bargaining unit employees testified before the Board as Dunbury's witnesses at the hearing held on May 21, 1998. When the company closed its case, the union elected to call no evidence.
In the result, the two bargaining unit employees were the only witnesses. Adam Keeping is the employee who did not vote. Although the company withdrew its allegation of bad faith, it asserted that this employee was denied an adequate or reasonable opportunity to vote as a result of misrepresentations by the union. Bill Rowbottom is the employee who did vote. Dunbury alleges that the applicant's conduct improperly influenced him to vote in favour of the union, and that the manner in which he marked his ballot is not a reliable indicator of his true wishes.
Upon considering the evidence before the Board, and the representations of the parties, I am not satisfied that either is the case.
Adam Keeping presented as a self-assured, mature young man who has his head squarely on his shoulders. He has been employed by Dunbury as a labourer since he finished school in mid-June 1997.
Mr. Keeping was first approached by representatives of the applicant while attending a "propane course". Subsequently, in or about early October 1997, Allan Bremner and Luis Tores (both of whom are Business Representatives employed by the applicant union) approached him at the job site. They provided Mr. Keeping with two booklets which explained what the union is, who it represents and what it stands for, and what it does. Subsequently, the applicant's representatives asked Mr. Keeping to sign a "card" (which is generally understood in the labour relations community to be an application for membership in a union), indicating that the employees could expect to receive a wage increase and a benefits package if the applicant was certified. It is apparent that Mr. Keeping did not simply swallow the sales pitch which was given by the union's representatives because in addition to reading the material he was given, he discussed the matter with his father and with friends, in an effort to find out more about what unionization meant and involved.
Mr. Rowbottom is 60 years old, and obviously not inexperienced in the ways of the world. He has been employed by the company as a labourer since mid-September 1997. Mr. Rowbottom first heard about the applicant's possible interest in Dunbury when Mr. Keeping told him about being approached by union representatives at the propane course. Subsequently, Mr. Rowbottom was also approached on the job by Al Bremner and Luis Tores, who tried to persuade him to sign a card as well.
Mr. Rowbottom testified that he and Mr. Keeping discussed the matter. Indeed, Mr. Rowbottom said that he and Mr. Keeping got into a "little fight" or "row", not about whether they should seek union representation but about when they should do so. Although he supported the idea of unionization, Mr. Rowbottom was in no rush and preferred to wait until Christmas. Mr. Keeping, on the other hand, expressed the view that they should either "do it now or not at all". It appears that Mr. Rowbottom thought it would be "safer" to wait until Christmas, while Mr. Keeping was more nonchalant and considered that "if you lose this job, there will be another." Neither party explored what either employee meant by this.
In due course, this application was filed, and by decision dated October 29, 1997, the Board (differently constituted) directed that a representation vote be held on November 3, 1997.
During the period between the certification application date and the day of the vote, the union's representatives continued their contact with the two employees. In that respect, Mr. Keeping was told by the union that the vote would be conducted between 7:00 and 8:00 a.m., on Monday, November 3, 1997. This was incorrect. Although the union's application requested that the vote be conducted between 7:00 and 8:00 a.m., the voting arrangements which the Board settled on had the single poll open for only half an hour, from 7:00 to 7:30 a.m. (which is consistent with the Board's practice when the number of employees eligible to vote is obviously very small). However, the union's representatives also suggested to Mr. Keeping that he check the Board's notices for information concerning the vote arrangements, and he was also urged, both by them and by others (including persons who it appears more probably than not were associated with the company) to come to work at 7:00 a.m. in order to vote. Mr. Keeping testified that he did look for the Board's notices but could not find them. It appears that he did not ask anyone where the notices were or otherwise pursue the matter, and he was under the impression that he had until 8:00 a.m. to vote.
In any event, when the day of the vote came, Mr. Keeping slept in. When he did get up, he had difficulty starting his car. After 15 to 20 minutes he was able to start it, and as he was about to leave for work, at approximately 7:35 a.m., he received a telephone call from one of the union's representatives (Luis Tores) urging him to come and vote.
When Mr. Keeping finally arrived at the job site at 7:40 to 7:45 a.m. he was met by Mr. Tores who told him that he was too late to vote, which was of course true.
The employer is quite right when it submits that employees must be given a reasonable opportunity to cast a ballot in a certification application vote. I am satisfied that the voting arrangements made in this case gave the two employees a reasonable opportunity to vote. That is not really the question. The question is whether Mr. Keeping was misled by the union into missing his opportunity and was therefore in effect denied a reasonable opportunity to vote.
On the evidence before the Board, there is no doubt that the union misinformed Mr. Keeping about the time of the vote. I am satisfied that this was an innocent misrepresentation, apparently based on the unwarranted assumption that the vote would be held during the time requested by the union. It is clear that the union's representatives did not intend to mislead Mr. Keeping or to keep him from voting. On the contrary, they requested that he check the Board's notices for the voting arrangements, they urged him to vote, and they urged him to come to work early in order to do so.
I am satisfied that the union's innocent misrepresentation in this case did not have the effect of denying Mr. Keeping an appropriate opportunity to vote. First, he could have done more than he did to locate the Board's notices in that respect than he apparently did. He could, for example, have asked someone where they were. (Although Mr. Rowbottom also testified that he saw no Board notices, there was no suggestion by either the employer or the union that the company did not post the Board's notices as directed.) Second, although Mr. Keeping wanted and intended to vote, the union's innocent misrepresentation had nothing to do with his missing his opportunity to do so. The union's misrepresentation did not cause him to sleep in. It did not cause his car not to start. In short, nothing the union did caused Mr. Keeping to miss his opportunity to vote.
In any vote, whether under the Labour Relations Act, 1995 or otherwise, there is a time when the polls open and a time when the polls close. As a general matter, if a person is unable to present himself at a poll during voting hours he will miss his opportunity to vote. That is equally the case in votes under the Labour Relations Act, 1995, unless the times during which the polls were open are unreasonable, or a person is caused to miss the opportunity to vote by conduct intended to have that result.
I have already concluded that the voting arrangements presented the employees with a reasonable opportunity to vote in this case, and also that the union's misrepresentation was both innocent and could have been verified (or in this case, corrected). Further, there is no reason to think that the union's misrepresentation caused Mr. Keeping to miss his opportunity to vote. There is no reason to think that he would not have slept in or that his car would have started if the union had given him accurate information or no information at all.
The Board is therefore satisfied that Mr. Keeping had an adequate and reasonable opportunity to vote, and that there is no cogent reason to give him another.
I turn now to Dunbury's other allegations. Mr. Keeping and Mr. Rowbottom both testified that the union's representatives did not specifically tell them how to vote. However, it is clear that the employees understood that the union wanted them to vote for certification. That should surprise no one since that is why a union applies for certification.
Mr. Keeping said that the union did not make him any promises. But of course, the union's representatives did tell him, and also Mr. Rowbottom, that the employees could expect to receive better wages and benefits if the union was certified. This may not have come in the form of a "promise", but it was a representation. But Dunbury does not point to this as a basis for its request that the application be dismissed or another vote be held. After all, this is typically part of a union's approach when it seeks to organize employees (and indeed a union is often able to achieve some improvements for employees in that a respect).
Dunbury's complaint focuses on two other representations. Mr. Keeping testified that he was told that if the application did not succeed, the union would not be able to protect the employees, and that if he or they were laid off or fired the union could not "defend" them or find them work elsewhere. Instead, the employees would be left on their own. Mr. Rowbottom testified that he felt pushed or "harped upon" and that he was told that "if you don't sign a fucking card, you will never get a job in Barrie" (or words to that effect).
As the employer points out, the Board has long employed an objective test when called upon to assess the conduct of a trade union in an organizing drive or application for certification; that test being the effect that the conduct under consideration would probably have on the reasonable ordinary employee (see, for example, Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611; Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444; and Davis Distributing Limited, [1994] OLRB Rep. Sept. 1190).
That being the case, the Board will not usually entertain a parade of employee witnesses called to testify about their subjective perceptions or opinions about the very issues which are before the Board, and which are therefore for the Board to determine. However, it goes without saying that the Board's assessment of the conduct complained of must include a consideration of the context and all the relative circumstances, and it is apparent from the jurisprudence that the Board will listen to what employees have to say about what they understood was being said. (See, Centro Mechanical Inc., [1996] OLR.B Rep. Sept./Oct. 762, where the Board dismissed an application for certification under section 11(2) of the Act.) The weight that the Board will give such subjective evidence when it applies the objective test will depend on the circumstances of the particular case, and the Board's assessment of the reliability of such evidence.
Both of the employees in this case testified that they did not feel threatened by anyone. Mr. Keeping said that all that the union was saying to him was that it could not be there to represent or protect him if it was not certified, and that his father told him exactly the same thing. Mr. Rowbottom said that the statement cited in paragraph 24, above, was made in the context of a fifteen minute conversation, and that in that context he took it to mean that if he was not a union member he could not get other union work, which was something he was interested in.
While he was testifying about the statement complained of by the employer, Mr. Rowbottom made the following unsolicited comment:
"What are you going to do, it didn't cost nothing, and I am going to get pushed down some stairs by my fellow employee?"
The offhanded manner in which this comment was made, the way that Mr. Rowbottom shrugged as he made it, and my observation of the two employees in the hearing room suggest to me that this was an "oh what the hell" kind of exaggeration arising out of the "row" between the two employees, and indicates that Mr. Rowbottom became resigned to signing a card and supporting the application. It was clear from Mr. Rowbottom's evidence that he did not in fact feel physically (or otherwise) threatened.
In the result, I am not satisfied that any of this constitutes a violation of the Act. Did the union's representatives apply some pressure to the employees to obtain their support? Of course they did, but that is neither unexpected nor the issue. The Labour Relations Act, 1995 guarantees employees the right to freely choose whether or not they wish to be represented by a trade union that seeks to do so. The Act does not guarantee freedom from pressure in that respect. (Can-Eng Metal Treating Ltd., supra; Centro Mechanical Inc., supra.)
There is nothing in the Act which precludes a union from trying to sell itself to employees it seeks to represent. That is how unions organize. Similarly, the Act specifically protects an employer's freedom to express its view of unionization, so long as it does not use coercion, intimidation, threats, promises or undue influence to do so (section 70). It is implicit in the Act that unions have a concomitant right.
Pressures of varying degrees and kinds are a normal part of everyday life. Choosing whether or not to be represented by a trade union is a significant decision. But most if not all of life's significant decisions are made under some pressure, sometimes extreme pressure. Indeed, the more significant a decision is perceived to be, the more pressure tends to be associated with it.
The question here is whether the union subjected the employees to undue or improper pressure, such that they were either threatened, intimated or coerced into supporting the application, or such that the vote result is an unreliable indicator of the employees' true wishes.
In that respect, I observe that since Mr. Keeping did not cast a ballot, and I have concluded that nothing the union did prevented or dissuaded him from doing so, the statements complained of appear not to raise a section 11(2) issue. Further, to the extent that it might be argued that the statements complained of raise a question concerning the reliability of the union's membership evidence, upon which the Board relied in order to direct a representation vote which was held, both the certification scheme in the current Act in general and subsection 8(9) in particular suggest that such an issue cannot be raised.
But whether or not that is the case, I am not satisfied that the statements complained of constitute a violation of the Act, or otherwise raise any question concerning the reliability of the representation vote which has been taken.
It is true, as Dunbury points out, that threats to employees' physical well-being or job security are contrary to the Act and can (and often will) cause the Board to invoke the provisions of section 11 of the Act. In this case, the Board is satisfied that no one was threatened with physical harm. The Board is also satisfied that the employees' understanding of what was said to them was both reasonable and correct, and that the union made no threat to either employees' job security. As part of its "sales pitch", the union suggested to the employees that they could get them better wages and benefits, protections and job security they would not have without the trade union, and opportunities for employment with other union employers. That is all it did. Not only are these the standard advertised benefits of unionization, there is much to suggest that, in the construction industry at least, a construction trade union can usually deliver some benefits in these respects. What happened here is entirely different from cases like Walter E. Selck of Canada Limited, [1964] OLRB Rep. June 138 and Aurora Steel Service Limited, [1986] OLRB Rep. Mar. 301 where the union in each case threatened that if it was certified employees who had not supported it would lose their jobs.
I observe also that Mr. Keeping at least also had discussions with Dunbury's site supervisor concerning the application and specifically concerning the wages and benefits which the employees must expect to receive if the applicant was not certified.
I am satisfied that there was nothing improper in anything that the employer's site supervisor said in that respect, or in anything that the union's representatives said in their perhaps more intensive salesmanship.
Finally, Dunbury submitted that the Board could not give effect to the result of the vote because only one ballot had been cast. The employer's argument in that respect was based entirely upon the use of the words "by the employees" [emphasis added] in subsection 10(1) of the Act. Subsection 10(1) provides that:
- (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
There is no merit to this argument.
First, clause 28(j) of the Interpretation Act provides that:
(j) words importing the singular number or the masculine gender only include more persons, parties or things of the same kind than one, and females as well as males and the converse.
That is, where a statute uses the singular, it also applies to the plural and vice-versa.
Second, the Act specifically requires that every bargaining unit in an application for certification consist of more than one employee (subsection 9(1)). There is no minimum ballots cast requirement. All vote results requirements are expressed in terms of percentages. Nor should it be otherwise. Employees in a bargaining unit have a right to vote, but they do not have an obligation to do so. An employee who declines or misses his opportunity to vote leaves his labour relations fate in the hands of the employees who do vote. Where only one employee votes, that employee's wishes are determinative, whether there were two, ten or one hundred employees eligible to vote, but who for whatever reason do not do so. As in every democratic vote, the results are determined by those who vote, not by those who do not.
In the result, the Board is satisfied that there is no reason not to give effect to the results of the vote taken in this application.
As I have already indicated, the sole ballot cast was marked in favour of the applicant union. Accordingly, more than fifty per cent of the ballots cast were cast in favour of the union, and pursuant to subsection 10(1) of the Act, the applicant is therefore entitled to be certified.
A certificate shall therefore issue to the applicant for the bargaining unit determined by the Board in the October 29, 1997 decision; namely:
all construction labourers in the employ of Dunbury Homes (Holly) Ltd. in all sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Application and of Vote" posted previously. These documents must remain posted for a period of 30 days.