Ontario Labour Relations Board
[1998] OLRB REP. JULY/AUGUST 568
2702-97-U Phyllis Fournier, Applicant v. United Steelworkers of America, Responding Party v. Burns International Security Services Limited, Intervenor
BEFORE: Christopher Albertyn, Vice-Chair.
APPEARANCES: Ian Werker and P. Fournier for the applicant; Robert Healey, Fil Falbo and Stuart Deans for the responding party; Richard J. Nixon and John Coletti for the intervenor.
DECISION OF THE BOARD; August 5, 1998
This is an application under section 96 of the Labour Relations Act, 1995 ('the Act') alleging a violation of sections 44(b), 74 and 79(7), (8) and (9) of the Act by the responding trade union ('the Union').
Burns International Security Services Limited ('the intervenor') was granted intervenor status in the application.
A decision with brief reasons was issued at the hearing of this matter on February 9, 1998, dismissing the application. What follows are the reasons for that decision.
The Union and the the intervenor entered into Minutes of Settlement on June 20, 1997. That settlement was the result of protracted litigation, discussions and negotiations between the Union and the intervenor, involving the complex resolution of several long-standing differences between the parties. The Minutes of Settlement resolved all outstanding issues between them, including matters over which they had been in dispute for some considerable period. The Minutes of Settlement incorporated four collective agreements (one for the Sudbury bargaining unit, one for the Ottawa bargaining unit, one for the Southwestern Ontario bargaining unit and one for the Provincial bargaining unit). The Minutes of Settlement were conditional upon the employees in each of the four bargaining units ratifying the Minutes of Settlement by July 30, 1997.
The applicant was employed by the intervenor in the Southwestern Ontario bargaining unit.
The only issue in the case was whether or not the Union provided adequate notice to employees in the Southwestern Ontario bargaining unit of the ratification vote which was to be held before July 30, 1997.
The intervenor's employees do not have a central, common place of work. They work on sites belonging to the intervenor's clients. For the ratification vote to be broadly representative, notice to employees must be given in a manner other than by the posting of a notice at the intervenor's premises.
The Union gave individual written notice to all of the employees for whom it had a record of an address. It also caused an advertisement to be published in all of the local newspapers of the cities and towns in which the votes were to be held. In respect of the Southwestern Ontario bargaining unit, the cities and towns were Windsor, Chatham, Sarnia, London, Tillsonburg, Woodstock, Brantford, St. Catharine’s, Hamilton, Cambridge, Kitchener and Burlington.
The applicant fell within the Tillsonburg area and she received individual notice of the ratification vote. The notice informed employees of the date, times and location of the vote in the various towns.
The advertisement of the ratification vote appeared in the 'Tillsonburg Independent' on July 11, 1997. The applicant did not see it.
The applicant cast a ballot in the ratification vote held at Tillsonburg on July 16, 1997.
The applicant's complaint was not that she did not receive notice of the vote; her complaint was that she was told by four fellow employees that they did not receive individual notice of the vote and they did not see the advertisement of the vote and so did not participate in it. The applicant provided no details of those who did not receive notice, nor of those who failed to participate in the vote by reason of their non-receipt of the notice. The applicant's belief is that notice in a newspaper was simply inadequate. The applicant sought that a new ratification vote be ordered.
The intervenor pointed out the considerable prejudice which would be caused by the ratification vote being set aside. The ratification vote was in favour of accepting the Minutes of Settlement concluded between the Union and the intervenor. The effect of the ratification was that the Union was certified for all of the four bargaining units of the intervenor in Ontario. If the ratification vote in the Southwestern Ontario bargaining unit were set aside, then there would not have been compliance by the Union with the terms of the Minutes of Settlement and all of the consequences flowing from those Minutes would potentially be jeopardized. There was the possibility of the Board case between the Union and the intervenor being revived. More than 50 hearing days had occurred when the Minutes of Settlement were concluded and, in the words of the intervenor's counsel, the Union and the intervenor had only "begun to scratch the surface" of the issues between them in that time. Were the ratification vote set aside, and if the dispute between the parties were revived, considerably more days of the Board's time would be required. Also, following the ratification vote, the Union and the intervenor had acted in terms of the collective agreements which were concluded as part of the Minutes of Settlement and the many acts done under those agreements might have to be reversed, were the ratification vote found to have been inadequate. Hence, it was made clear that the setting aside of the ratification vote had some very serious consequences for the Union and the intervenor.
The Union pointed out the delay in the applicant filing the application. The ratification vote in Tillsonburg was held on July 16, 1997. The ratification vote as a whole was completed by July 30, 1997. The Union and the intervenor acted forthwith upon the ratification and implemented the Minutes of Settlement and the collective agreements which were part thereof. The application was brought on October 21, 1997, over 3 months after the vote which offended the applicant. The Union argued that the application should be dismissed on account of the applicant's delay in bringing the application, alternatively that the delay should be weighed in the measurement of the relative prejudice to the parties of setting aside or not interfering with the ratification vote. As stated (at paragraph 31) in Marriott Management Services [1994] OLRB Rep. July 857, at 863, "it is not necessarily the length of a delay that holds significant labour relations consequences, but the intervening events which occurred during the period of delay." The applicant explained the delay in bringing the application as being the consequence of her learning of the outcome of the ratification vote only some significant time later.
Counsel for the intervenor pointed out that of a bargaining unit of approximately 1300 employees (in the Southwestern Ontario bargaining unit), the applicant was the only complainant in respect of the ratification vote and she herself had voted. Counsel contended that the applicant did not have a direct or practical interest in the matter and that her altruistic pursuit of the application on behalf of unnamed or unknown others was not sufficient to sustain a legal interest in the application.
The applicant's counsel argued that the applicant, a former shop steward, had an interest to ensure that the ratification vote was conducted democratically, and if information came to her attention which suggested that that was not so, she could legitimately request the Board to require a new ratification vote.
A ratification vote is primarily an internal matter between a union and its members. That is part of a union's and its members rights to freedom of association. However, given that there is a statutory obligation upon a union to conduct a ratification vote, the Board will scrutinize the adequacy of such a vote. The Union is obliged to make reasonable efforts to inform employees who are entitled to vote in a ratification vote of the date, time and venue of the vote. That obligation was fulfilled in this instance. The applicant and many other employees of the intervenor received individual notice of the ratification vote. The Union gave public notice to the employees of the intervenor by timely newspaper advertisements. In circumstances where there is no common workplace for employees, there is always a risk that some employees will not get notice of a ratification vote. The Board will assess whether the steps taken by the union concerned were reasonable in the circumstances. In my view the Union took reasonable steps in this case to bring the ratification vote to the attention of employees of the intervenor in a timely manner. None, barring the applicant, appeared to be discontent with the ratification vote, or else they would have joined her in the application. Her own interest in the matter was purely altruistic for she had no concerns in respect of notice to her personally of the vote. That somewhat remote interest, in respect of persons who remain unnamed and unspecified, and the lack of substantive evidence to back her concerns, were not sufficient, in my view, to cast doubt on the validity of the ratification vote.
In these circumstances I was not satisfied that there was sufficient substance to the applicant's complaint to warrant the Board's interference with the ratification vote. That view was enhanced by the substantial prejudice to a considerable number of people which might have resulted were the ratification vote to have been set aside. I found that the notice to employees of the ratification vote was in compliance with the provisions of the Act and I therefore concluded and ordered that the Board inquire no further into the application and that it be dismissed.