Employees' Association of Ottawa-Carleton v. Ottawa-Carleton Catholic District School Board, 1998 CanLII 18394

[1998] OLRB REP. SEPTEMBER/OCTOBER 855

4072-97-PS Employees' Association of Ottawa-Carleton, Applicant v. Ottawa-Carle­ton Catholic District School Board; Service and Commercial Employees, Local 272; Canadian Union of Public Employees and its Local 2357, Responding Parties

BEFORE: Jules B. Bloch, Vice-Chair.

APPEARANCES: James Cameron, and Gerry Poirier for the applicant; John R. Read and Lise Sharp for Ottawa-Carleton Catholic District School Board; Gary Caroline and T Young for Service and commercial Employees, Local 272; Risa Pancer, Joanne Harvey and Wendy Schieman for Canadian Union of Public Employees and its Local 2357.

DECISION OF THE BOARD; September 24, 1998

1. This is an application under the Public Sector Labour Relations Transition Act, 1997 ("the Act").

2. The Board, differently constituted, declared at paragraphs 38, 39, and 40 of its May 22, 1998 decision that a service unit and a maintenance unit are appropriate bargaining units within the meaning of section 22 of the Act:

3. Having considered the submissions and arguments of the parties, the various preferences of the parties, the bargaining relationship in the predecessor employers, and the proposed bargaining unit structures, the Board in these circumstances will order two bargaining units - one service, and one maintenance. This will rationalise the pre existing six bargaining units into two bargaining units. These two units have been shown to function with no labour relations problems caused as a result of such dual existence, and are in themselves substantial bargaining units. These units are certainly appropriate bargaining units within the meaning of section 22 and meet the purposes of section 1 of the Act.

4. With this issue clarified and pursuant to the parties agreement, they should now be able to work out the mechanics of any representation votes that may be required. All bargaining unit employees currently covered by an existing collective agreement will become members of essentially one of the following groups:

SERVICE EMPLOYEES:

• basically office clerical and administration support employers and all educa­tional teaching assistants.

MAINTENANCE EMPLOYEES

• basically maintenance, service and plant employees and bus drivers.

40. In accordance with the parties agreement the matter is directed to the Director of Field Services so the parties with the assistance of a Labour Relations Officer may agree on appropriate bargaining units. A labour relations officer should meet with the parties as soon as possible.

41. A Labour Relations Officer was appointed to deal with all issues relating to the form and content of the vote. On June 9, 1998, the Board, differently constituted, issued a consent order which reflected the parties memorandum of agreement. The Board, made the following comments at paragraphs 3, to 7:

42. On June 1, 1998 the parties to this application entered into two minutes of settlements in which they agreed that the following two bargaining units are appropriate for the operation of the Ottawa-Carleton Catholic District School Board:

Bargaining Unit #1

all office, clerical, technical and administration support employees and all educational teaching assistants employed by the Ottawa-Carleton Catholic District School Board, save and except:

Recording Secretaries

Secretary to the Director of Education

Secretary to the Deputy Director

Secretary to the Administrative Officer

Secretaries within the Secretariat

French Second Language Monitors

Child Care Staff (After School Club

Leaders/Assistants)

Tutors

Students

Human Resources Department Employees

Persons employed in a confidential capacity in matters relating to labour

relations

Supervisors and persons above the rank of supervisor

Professional and Paraprofessional Staff

Persons covered by other collective agreements

Bus attendants

Housekeepers

Lunch Attendants

For the purposes of clarity, staff within the Developmentally Handicapped Program are included in the bargaining unit.

The parties agreed that the following positions (with respect to the above bargaining unit #1) are contested for the purposes of the vote and shall be marked with an asterisk:

Secretaries to Superintendents

Secretary to Manager of Finance

Finance Officer

Payroll Officer

Budget Control Officer

Budget Clerk

Duplicating Services Staff

S.A.S.S.

AN. Technician

Bargaining Unit #2

Maintenance/Service/Plant Employees/Bus Drivers

all maintenance, service and plant employees and bus drivers employed by the Ottawa-Carleton Catholic District School Board, save and except foremen, supervisors and persons above the rank of supervisor, persons employed in a confidential capacity in matters relating to labour relations, and persons covered by other collective agreements.

4. The parties have further agreed that which bargaining agent will represent each of the two bargaining units will be determined by way of a vote.

5. Pursuant to the June 1, 1998 agreements two votes will beheld (one in each of the two bargaining units set out above) on June 19, 1998 at the locations and the times indicated on the attached "Notice of vote".

Bargaining Unit #1 - Office/Clencal/Technical/Administrative/Teaching Assistants

6. Voters in Bargaining Unit #1 will be asked to indicate which of the following bargaining agents they wish to be represented by in their employment relations with the Ottawa-Carleton Catholic District School Board.

CUPE

Employees' Association of Ottawa-Carleton

Bargaining Unit #2 - Maintenance/Service/Plant Employees/Bus Drivers

7. Voters in Bargaining Unit #2 will be asked to indicate which of the following bargaining agents they wish to be represented by in their employment relations with the Ottawa-Carleton Catholic District School Board:

Employees' Association of Ottawa-Carleton

Service and Commercial Employees Union, Local 272.

4. The votes were held on June 19, 1998. After the votes the parties agreed to count the ballots and attempt to resolve all count issues in dispute at that time. This meeting continued into the early hours of the morning of June 20, 1998. Prior to opening the ballot box, the parties signed the certification of conduct of election, which states:

WE the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the date and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.

5. The parties counted the vote on that night, and the Board Officer reported the number of people who voted at each poll. The parties could not resolve all the count issues remaining in dispute and requested a hearing before the Board.

6. On June 26, 1998 the Employees' Association of Ottawa-Carleton (EAOC) wrote the Board requesting that the vote of June 19, 1998 be set aside because:

“…..the Board's Notice of Vote was not posted until the last minute, and was not posted in all the places it should have been. In addition, the doors to several of the polling stations were locked during voting hours- with the result that some voters who attempted to vote were not able to do so.

It is our position that as a consequence of this, the ballots cast on June 19 cannot reflect the true wishes of the majority of the employees in the bargaining unit".

7. On August 25, 1998 a hearing was held before this panel to deal with all issues relating to the counting of the ballots. At that hearing the EAOC requested that the Board deal with the issues raised in its June 26, 1998 request. The Board ruled that it would first deal with the issues relating to the count.

8. During the course of the hearing the parties, with the assistance of the Board, were able to resolve all the count issues. The officer met with the parties, opened the segregated ballots and reported the results of the vote to the Board. The results are reproduced below:

Bargaining Unit #1

Voted: 417

CUPE: 208

EAOC: 193

Bargaining Unit #2

Voted: 264

SCEU: 136 (includes a ballot without a Board stamp)

EAOC: 124

The parties agreed that the ballot which did not have the Board stamp on it would not count; consequently the SCEU vote total was reduced by one vote to 135.

9. After the count was concluded, the EAOC advised the Board and the other parties that it intended to continue the proceeding on the basis of its June 26, 1998 allegations. As well, the EAOC raised a further allegation in respect of an irregularity about the vote count itself concerning a difference of votes cast respecting those who voted as revealed on June 19, 1998 and those who voted as revealed in the June 24, 1998 Board Officers Report of Vote.

10. The Board set September 3, 1998 as the hearing date to deal with the above-referred to allegations pursuant to section 23(19) of the Act, which reads as follows:

11. (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.

12. The parties agreed that the Board would decide the issue based on the parties' submissions. If there was a conflict, between the parties, in respect of any material facts relied on, the evidentiary conflict would be resolved on the basis of the EAOC factual submissions. In effect, the section 23 (19) hearing resembled, with some minor variations, a prima facie-type enquiry.

13. Section 23(19) gives the Board a broad discretion to not enquire into any allegation of a defect or irregularity in a vote. The Board has the discretion not to enquire into a party's allegations, if the Board is satisfied that, whether or not the alleged defect or irregularity existed, the results of the vote reflected the true wishes of the majority of employees in the Bargaining Unit.

14. In my view, the Board must review the facts and allegations raised by the EAOC, in the context of this proceeding and on that basis decide whether it will enquire into any defects or irregularities raised by the EAOC.

The Context

14. The Act was promulgated to facilitate the fast and efficient re-organization of the broader public service. Section 1 states:

15. The following are the purposes of this Act:

16. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

17. To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.

18. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restruc­turing in the broader public sector and in other specified circumstances.

19. To foster the prompt resolution of workplace disputes arising from restructuring.

20. One purpose of the Act is to foster prompt resolution of workplace disputes arising from restructuring. The operative word in this regard is prompt. It is in this context that the parties proceeded to arrange their affairs in contemplation of the June 19, 1998 vote. The Board had a limited involvement in the form and substance of the vote arrangements.

21. Prior to the votes, the trade union parties engaged in the type of electioneering that one might expect in these circumstances. Each party was given the names and addressees of everyone in the Bargaining Units. Notices about this election were circulated widely. It is clear that everyone involved knew that votes were taking place. All the affidavits tendered by the EAOC make this point clear.

22. The vote proceeded on June 19, 1998 in their normal course. In respect of Bargaining Unit #1, sixty-two per cent of those eligible to vote actually voted. Eighty-five percent of those eligible to vote in Bargaining Unit #2 actually voted.

23. The parties decided on the basis of expedition to count the ballots on June 19, 1998. All parties signed the normal Board certification conduct of election form. None of the parties raised any allegations about the conduct of the vote prior to opening the ballots.

24. On June 26, 1998, after the ballots had been counted and the parties' positions in respect of the segregated ballots had been codified, the EAOC raised allegations concerning the conduct of the vote and requested a new vote.

25. The allegations raised by the EAOC, if found to be true, do not on their own alter the outcome of the vote. If I were to accept that every person who signed an affidavit, asserting that he or she was denied the right to vote either because of a denial of access or because he or she did not see a Board notice, and would have voted for the EAOC, the vote results would not change. To order a second series of votes, I would have to find that the irregularities were fundamental to the vote itself; or in the alternative, that the affidavits were the tip of the iceberg. Consequently. I should then enquire into the allegations, made by the EAOC, to satisfy myself of the proper conduct of the vote.

EAOC's Allegations

The notice allegation

21. The EAOC alleges that the Board's notice was not posted at some of the schools in question. It further asserts that the Ottawa-Carleton Catholic District School Board ("the School Board") failed, in the schools where posting of the notice was effected, to post those notices in a timely manner. The EAOC also asserts that some of its members did not receive actual notice.

22. The affidavit of Gerard Poirier, asserts that on June 17, 1998, Don Moore, a representative of the SEIU contacted him and informed him that the Board notice had not been posted. Mr. Poirier also maintains that he never discussed cancelling the vote as a consequence of the lack of notice.

23. All trade union parties contacted their members using their normal communication avenues in an attempt to put the word out about the vote. The EAOC E-mailed all of its members about the vote. The School Board sent out notice through E-mail about the vote. It is not clear whether the notice sent by the School Board reached all the employees of the School Board.

24. After the vote, the EAOC attempted to contact all of its members to ensure that they all had an opportunity to vote. In the final analysis, the EAOC located three individuals who were prepared to sign affidavits that they did not know about the date of the vote. All three individuals asserted that they did not see a Board notice posted at their school and that they did not know that June 19, 1998 was the date of the vote.

25. The EAOC submits that in this case, there are employees who did not receive actual notice and consequently, the Board should adopt its obiter in Small Fry Snack Foods Inc., [1997] OLRB Rep. Jan. 134. At paragraph 10 and 11 of this decision the Board said the following:

26. 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.

27. 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 posed 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 except 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]

26. The vote held on June 19, 1998 was the product of the restructuring of Bargaining Units at the School Board. All trade union parties participated in the vote arrangements. In fact all vote arrangements were agreed to beforehand. All trade union parties began the electioneering process prior to the vote. Every member of the Bargaining Units knew that there was going to be a vote. The EAOC affidavits reflect that even those who did not vote, knew that a vote was going to be held. All members of the Bargaining Units would have expected the vote to be held prior to September 1998. The vote was in fact held on June 19, 1998, the last day of classes. It is clear that Board notice in this context does not serve the same purpose as Board notice in the certification process. This case is distinguishable from Small Fry Snack Foods Inc., cited above because the policy reasons for Board notice in a certification setting is different from the policy reasons in a restructuring context. In a restructuring context, where the parties themselves have made all the voting arrangements, including the timing of the vote, Board notice plays a less important role than in a certification context.

27. In a restructuring context like this one, all trade union parties have an interest in ensuring that as many of their members as possible show up to vote. In fact, each trade union party sent out notice to all of its members which included the date of the vote. The affidavits submitted to the Board on behalf of the three individuals who did not know about the date of the vote, assert that they knew that a vote was taking place in the merged school board. It is never expected that everyone will get actual notice of the Board vote, only that everyone will have a reasonable opportunity to have received notice. The vote was held on the last day of school. It is hard to fathom a scenario where a reasonable person, who knew that there was going to be a vote prior to the end of the school year, and wanted to vote, would not enquire about the vote. This enquiry could take the form of asking a colleague, his or her own trade union, or the employer.

28. Assuming for the purpose of this hearing that the allegations raised in the affidavits of William Oliver, Brenda McConnell and Matthew Lessard are in fact true, I would find that the irregularities about the deficiencies in the posting of the Board notice, would not lead me to enquire into this vote. I find that the vote reflects the true wishes of the majority of the employees in the Bargaining Unit. Assuming that the individuals who signed the affidavits would have voted for the EAOC, their votes would not have changed the outcome of the vote.

The Access Allegations

29. The EAOC alleges that during the course of the vote on June 19, 1998 the front door of St. Paul High School was locked for a period of time during that afternoon. Further, the EAOC alleges that at least one voter had to enter the building "by putting her hand through a broken window on an exit door from the staff room and pushing the panic bar from the outside". However, other doors at St. Patrick's High School were open during the vote. The EAOC also asserts that at Lester B. Pearson High School, the door closest to the poll was locked, although, other doors were left open. In terms of actual prejudice, the EAOC relies on the affidavits of Janice Rennick and Scott Schwind, who state that they were unable to vote at St. Paul High School as the front doors were locked between 4:15 p.m. and 4:30 p.m. on June 19, 1998.

30. The EAOC relies on Re Controverted Elections Act (N.S.), [1992] N.S.J. No. 33 (NSSC­TD); MacDonald v. District of Invermere (1985) 30 M.P.L.R. 25 (B.C. Co. Ct.) and Hatch v. Oakland (Rural Municipality) 1910 CanLII 282 (MB KB), [1910], 14 W.L.R. 309 (Man) for the proposition that it is a fundamental defect in the conduct of a vote if polls are not kept open during the required times. They assert that this defect goes to the heart of the voting process and consequently the Board has no option but to hold another vote.

31. The above-cited cases are distinguishable from the facts before me. In the cases cited by the EAOC, the election was conducted pursuant to a statute or a by-law which mandated that the polls be open during specific times. In each of the cases the polls were closed by the persons in charge of the poll during statutorily-mandated voting hours. The process itself was deficient and consequently the courts found that unnamed individuals were potentially deprived of their democratic right to vote. In the case before me there are no allegations in respect of the Board closing any of the polls during voting hours. The allegation concerns two voters who were faced with a closed front door at St. Paul High School. There is no assertion that either of the voters attempted to enter through another door or ring the door bell. In my view, all voters who wanted to vote in this election could have done so with minimum effort.

32. I cannot find on the basis of the affidavits of Janice Rennick, Scott Schwind and Bruno Gagnon that there were any access irregularities that would persuade me to enquire into this vote.

The Count Allegations

33. These allegations relate to the number of persons who voted on June 19, 1998. In particular, the EAOC alleges that on the night of June 19, 1998 the Labour Relations Officer announced that 414 persons had voted in Bargaining Unit #1. The Board Officer's Report of Vote dated June 24, 1998 reflects that 417 persons voted in Bargaining Unit #1. However, there were never any discrepancies concerning the ballots cast in Bargaining Unit #1. With respect to Bargaining Unit #2, the EAOC alleges that on the night of June 19, 1998 the Labour Relations officer announced that there were 264 people who voted in Bargaining Unit #2 and 266 ballots cast. The report of June 24, 1998 reflects the results of the announced vote report. There is a further irregularity alleged by the EAOC concerning an unofficial ballot. When the ballot box of Bargaining Unit #2 was opened the parties found a ballot that did not have the Board's stamp on it. The parties subsequently agreed that this ballot would not count for the purpose of the count.

34. The discrepancy in respect of the number of persons who voted on June 19, 1998 is a matter of the reconciliation of the voters list. It is important to note that the number of ballots cast in Bargaining Unit #1 has remained consistent throughout the process. The irregularity complained of is not signifi­cant. In the final analysis, the number of persons who voted tallies with the number of ballots counted. I do not find any reason to enquire into this matter. Further, I find that the vote reflects the true wishes of the majority of the employees in the Bargaining Unit.

35. In respect of Bargaining Unit #2, there is a discrepancy between the number of persons who voted and the number of ballots counted. This discrepancy existed on the night of June 19, 1996. At all times, the number of ballots counted was 266. The parties on the night of the vote were aware of the discrepancy that existed between the ballots counted and the number of persons who voted. There are no allegations of stuffed ballot boxes or other irregular conduct affecting this vote. In view of the fact that there are no allegations about the impropriety of the vote, I am of the view that any discrepancy that exists is a bookkeeping issue, and not one that goes to the fundamental nature of the vote. Thus, I do not find any reason to enquire into this vote. Further, I find that the vote reflects the true wishes of the majority of the employees in the Bargaining Unit.

Conclusion

36. The EAOC asserted at the beginning of this hearing that in looking at all the deficiencies and irregularities in combination, I should hold a new vote because I could not be satisfied that the vote reflects the true wishes of the majority of the employees in the Bargaining Unit. The Board manages hundreds of votes per year. Very few of those votes result in irregularities. Of those few votes, the irregularities usually do not in and of themselves constitute deficiencies of such a nature that the vote is necessarily compromised. The EAOC asserts that the lack of notice combined with the access problems should lead me to be worried that there are a whole group of persons who did not get to vote.

37. I have no doubt that the EAOC has diligently attempted the find individuals who did not get an opportunity to vote because of lack of notice or denial of access. The EAOC has only been able to turn up five persons. The votes of those persons would not affect the results of the votes. I do not believe that the irregularities complained of are significant enough to justify an enquiry into the complaints on the basis that these five individuals are the tip of the iceberg.

38. In the circumstances of this case and for the reasons given above, the Board will not enquire into the allegations pleaded by the EAOC. The Board is satisfied that, regardless of whether or not the alleged defects or irregularities existed, the results of the vote reflect the true wishes of the majority of the employees in the Bargaining Units.

39. The Board declares that CUPE and its Local 2357 is the bargaining agent for Bargaining Unit #1 and that SCEU and its Local 272 is the bargaining agent for Bargaining Unit #2.