[1998] OLRB REP. MAY/JUNE 481
4339-97-PS; 4361-97-PS Utility Workers of Canada, Applicant v. Toronto Hydro-Electric Commission, Canadian Union of Public Employees, Local 1, Canadian Union of Public Employees, Local 11, Canadian Union of Public Employees, Local 208; and International Brotherhood of Electrical Workers, Local 636, Responding Parties; Canadian Union of Public Employees, Local One. Applicant v. Toronto Hydro-Electric Commission, International Brotherhood of Electrical Workers, Local 636, The Utility Workers of Canada, Canadian Union of Public Employees, Local 11 and Canadian Union of Public Employees, Local 208, Responding Parties
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; May 7, 1998
As directed by the Board in its decision of April 15, 1998, submissions have been filed with the Board by Canadian Union of Public Employees Local 11 ("Local 11") and Canadian Union of Public Employees Local One ("Local One") concerning objections to the votes which were held on March 24, 25 and 26, 1998. Utility Workers of Canada has advised the Board that it is withdrawing its objections on the basis that they appear to be numerically irrelevant. No submissions have been received from Canadian Union of Public Employees Local 208.
Local 11 has two bases on which it objects to the vote results. First, its members are asking why the "OLRB did not conduct the vote as specified in the original minutes as to vote days and vote locations" and "why the OLRB did not afford them the same equal right to vote on alternate days in other locations". According to Local 11, this creates a prejudice and its members are requesting that it be corrected. Second, Local 11 asserts that Local One engaged in conduct which resulted in the rights of members to vote for who they wanted to vote for, or not to vote at all, being infringed.
As indicated in the Board's decision of April 15, 1998, subsection 23(19) of the Public Sector Labour Relations Transition Act, 1997 (the "Act") provides as follows:
(19) The Board is not required to enquire into any allegation of a defect or irregularity in a vote if the Board is satisfied that, whether or not the alleged defect or irregularity existed, the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit.
Concerning the first basis on which Local 11 challenges the votes, it is apparent that even if all members had voted at the poll and on the date assigned to their local, as Local 11 asserts should have occurred, Local One would still have won the votes. It is equally apparent that even if all Local 11 members who did not show up to vote had been aware that they could vote at an alternate poll and in fact did so, and voted in favour of Local 11, Lacal One would still have won the votes. Accordingly, assuming Local 11 to be correct in its assertion that members were required to vote at the poll and on the date assigned to their local, the fact that some members voted at the wrong poll or other members were not aware that they would be permitted to vote at an alternate poll, had no impact on the outcome of the votes.
Local 11 asserts that numerical relevance is only one aspect of this challenge. Local 11 encourages the Board to enquire into this issue on the basis that the "OLRB is viewed as impartial and thorough in the conduct of affairs in reference to labour relations in the province of Ontario". The Board's primary task in relation to the conduct of votes is to ensure that vote results reflect the wishes of the majority of the employees in the bargaining unit. Where the Board is satisfied that such is the case, the Board does not enquire into challenges raised as to the conduct of a vote. To do otherwise would consume the Board's resources in enquiries that, regardless of the outcome, could have no impact on the result.
Local 11's second basis for its challenge to the vote results is based on an allegation of conduct on the part of Local One which is particularized for the first time in its submissions to the Board dated April 20, 1998. Paragraph 8 of the Board's decision of March 17, 1998 indicates as follows:
In the event an issue arises concerning the conduct of the vote which any party or person wishes to raise with the Board, such party or person must file written submissions with the Board, and deliver them to the other parties (addresses of the parties appear in the Registrar's letter that was posted with the Board's decision of February 23, 1998) so that they are received within fie days (not including weekends and holidays on which the Board is closed) of the date on which the vote is taken.
Accordingly, the second basis on which Local 11 challenges the vote results is clearly out of time.
In addition to being untimely, it is my determination that even if Local One did engage in the alleged conduct, it was not improper and accordingly there is no need to enquire into Local 11's allegations. The essence of Local 11's allegation is that Local One left phone messages for members who "were told who it was that was calling and then they would explain the voting locations, times and what the ballot would look like. In the explanation of the ballot it was stated that C.U.P.E. Local One was the first name on the ballot and 'you will place an X in that box"'. Further, Local 11 cites an example of a student who attended at the po11 visibly agitated and indicated that she had been called four times in the past half hour and told she had to vote. The student was informed by the returning officer that she did not have to vote if she did not want to. She left without voting. I see nothing improper in the communication left on members' answering machines. The vote conducted was a secret ballot vote at which members were free to express their true wishes. The actions of the student indicate that, although members may have felt pressured to show up and vote, they were still free to exercise their right not to do so. In the context of the secret ballot votes which were conducted in this case, there is simply nothing in Local 11's allegations which causes me to suspect that members were denied the opportunity to express their true wishes in the votes which took place on March 24, 25 and 26, 1998.
For the reasons set out above, it is my determination that the Board will not enquire into any of the objections raised by any of the parties to the results of the votes which were conducted on March 24, 25 and 26, 1998. I am satisfied that the results of the votes reflect the true wishes of the majority of the employees in the bargaining units.
Accordingly, having regard to the results of the votes, I declare that Canadian Union of Public Employees, Local One represents the employees in the following two bargaining units:
INSIDE EMPLOYEES (this unit includes all bargaining unit employees currently described as 'inside', 'salaried', or 'unit 2' under their respective existing collective agreements)
OUTSIDE EMPLOYEES (this unit includes all bargaining unit employees currently described as 'outside', 'hourly', or 'unit 1' in their respective existing collective agreements.
All bargaining rights with respect to employees in the above-noted two bargaining units held by any bargaining agent other than Canadian Union of Public Employees Local One are hereby terminated.
The Registrar will destroy the ballots cast in the votes taken in this matter following the expiry 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 Toronto Hydro-Electric Commission is directed to post copies of this decision in all locations where it previously posted materials relating to this application. These copies are to remain posted for a period of 30 days.