[1999] OLRB REP. MARCH/APRIL 352
2766-98-R Communications, Energy and Paperworkers Union of Canada Local 87-M, Southern Ontario Newspaper Guild, Applicant v. Toronto Star Newspaper Limited, Responding Party
BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. A. Rundle and R. Montague.
DECISION OF CHRISTOPHER J. ALBERTYN, VICE-CHAIR, AND BOARD MEMBER R. MONTAGUE; April 21, 1999
This is a reconsideration application in respect of a decision by the Board on November 23, 1998 ordering that the ballots cast in a representation vote be counted and not sealed. A bottom line decision was issued on November 26, 1998 in respect of the reconsideration application. What follows are the reasons for our decision. Our decision of November 26, 1998 has been superseded by a decision of the Board (differently constituted) on November 27, 1998. Since then both parties have made submissions on whether the ballots should be counted. Those submissions were addressed separately in a decision dated January 6, 1999. These are the Board's reasons for coming to its decision of November 23, 1998 and for subsequently reconsidering that decision on November 26, 1998.
The responding party ('the employer') contended that the Board should order the ballot box sealed because it gave notice under section 8.1 of the Labour Relations Act, 1995 ('the Act') and because, it contended, the Board should exercise its discretion under section 8 of the Act to seal the ballot box on account of the dispute between the parties as to whether the persons eligible to vote are dependent or independent contractors.
Section 8.1 reads as follows:
8.1 (1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.
(2) A notice under subsection (1) must include,
(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;
(b) the employer's estimate of the number of individuals in the bargaining unit described in the application for certification; and
(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's estimate of the number of individuals in the bargaining unit the employer proposes.
(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.
(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.
(5) The following apply if the Board receives a notice under subsection (1):
The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.
If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10(2).
Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.
If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.
If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,
i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and
ii. the Board shall determine the number of individuals in that unit.
After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).
If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
If the percentage determined under paragraph 6 is 40 per cent or more,
i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and
ii. the Board shall either certify the trade union under subsection 10(1) or dismiss the application under subsection 10(2).
As we interpret section 8.1, it may not be sufficient for an employer merely to give notice under section 8.1 to have the Board seal the ballot box. The Board must be satisfied that there is a material difference between the employer and the applicant union as regards the elements prescribed in subsection 8.1(2). In other words, there must be some labour relations purpose to be served consistent with the policy scheme and objects of section 8.1 before the Board will order that the ballot box be sealed. A reflexive and immediate sealing of the ballot box following the Board's receipt of a section 8.1 notice could lead to the absurd result of ballot boxes being sealed when the applicant union has clearly established, on the material it has filed and on the employer's estimate, a numerical entitlement to a representation vote in a potentially appropriate bargaining unit. Subsection 8.1(4) must be interpreted in light of the provisions of 8.1(2) and 8.1(5) of the Act if that result is to be avoided.
In deciding upon whether to seal the ballot box, the Board may make its decision on the basis of the material before it, as provided in Rules 43x.2:
Notice under Section 8.1
43x.2 Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations, the Board may decide any matter under Section 8.1 of the Act without an oral hearing.
It is useful to consider what obtained before the passing of Bill 31, which introduced section 8.1, and identify the mischief the Bill sought to remedy.
Under subsection 8(3), when determining whether to direct the taking of a representation vote, the Board must have regard only to the information provided by the union applicant. That remains the case, notwithstanding the introduction of section 8.1.
Frequently, when dealing with a certification application, the Board was faced with a situation in which the union's estimate of the number of employees in its proposed bargaining unit differed somewhat from that of the employer. Sometimes the union's application and its related information (the membership evidence and list of names provided under subsection 7(13)) revealed that the union's membership exceeded 40 percent of its estimate of the number of employees in the bargaining unit, even though its support may have been less than 40 percent of the actual numbers of employees in the bargaining unit. In such circumstances a vote would have been ordered and the union might have been successful in the representation vote (or more likely, it would have failed to establish its representivity).
Bill 31 does not change the Board's consideration of whether or not to order a representation vote. That authority is still founded in the Board's assessment of the membership evidence provided by the applicant union under subsection 7(13). Subsections 8(2) and 8(3) direct the Board to order a representation vote if the determination of more than 40% is made under 8(2) based only on the information provided by the union pursuant to 8(3). What has changed is what the Board does with those cases in which the union's estimate of the number of employees in its proposed bargaining unit differs from that provided by the employer and the employer files a timely notice of disagreement. In such circumstances, subsection 8.1(4) directs the Board to seal the ballot box in the representation vote if requested to do so by the employer.
In most certification applications there is some divergence between a union's estimate and the employer's estimate of the number of employees in the union's proposed bargaining unit. That divergence may or may not be numerically significant. In some cases the union's membership evidence will establish that the union has provided proof of more than 40 percent support on its own estimate and on the employer's estimate and list of employees. But, in other cases, that will not be the situation. The union will show over 40 percent support of the number in its estimate of the size of the bargaining unit, but it will not show such support in relation to the number (by comparison with the employee list) provided by the employer.
Bill 31 prevents a union which does not actually have more than 40 percent support in its proposed bargaining unit from being able to enjoy the benefits of a representation vote. Bill 31 achieves this purpose by requiring the sealing of representation ballots in circumstances in which doubt is created by the information provided in the response as to whether the union has the requisite initial support. There is no delay in the holding of quick representation votes - that is the reason why the decision to hold a representation vote is still founded completely upon the information contained in the union's application. In other words, the legislature did not seek to have the resolution of any disputes between the parties as to the number and identity of employees in the bargaining unit determined by the Board as a condition precedent to the holding of a representation vote. To do that would have resulted in significant delays in the holding of representation votes. Instead, the legislature elected to deal with the mischief in a manner which did not impede the holding of the representation vote. The vote would be held, but its counting would be delayed until the actual number of employees in the bargaining unit proposed by the union, if the unit could be appropriate (see 8.1(5)4), has been determined. The ballot box would be sealed until that determination.
If the Board were to give literal effect to the provisions of subsection 8.1(4) it would seal the ballot box in every case in which there is a discrepancy between the union's estimate and the employer's figure of the number of employees in the union's proposed bargaining unit and a section 8.1 notice has been received from the employer. That would obtain even where there is clearly no material difference between the employer's and the union's estimates.
A strict application of subsection 8.1(4), without regard to the balance of section 8.1 and the certification process in the statute, would require in all of these cases that the representation vote ordered by the Board be sealed. Applications which could be readily disposed of once the count was announced after the representation vote might be subject to litigation and ultimate resolution after a hearing before the Board on a moot issue. (It would be moot because the result would be known in advance.) What is normally a relatively quick and unencumbered process would become lengthy, costly and complicated and only for the purpose of resolving an issue which would have absolutely no impact on the outcome of the application. One of the reasons expedition is prized in labour relations is that the early, efficient resolution of differences prevents uncertainty, suspicion and conflict. There is no need to seal the ballot boxes in certification applications where there may be a dispute about precise numbers, but no issue that the applicant has the requisite actual support. The statutory purpose of section 8.1 is achieved without doing so. To seal the ballot box would create the absurd result of delaying resolution of these applications, burdening the Board with numerous unnecessary hearings, creating uncertainty among the parties and increasing their cost and inconvenience. The legislature could not have intended those results. It is for this reason that the Board has interpreted the provisions of subsections 8.1(2) and 8.1(4) in light of the provisions of subsection 8.1(5) and with due regard to the mischief which inspired Bill 31.
The Board will generally not seal the ballot box in cases where the difference between the union's estimate of the number of employees in its proposed bargaining unit and that provided by the employer is not numerically significant and if the union's proposed bargaining unit (under subsection 8.1(5) paragraphs 3 and 4) "could be" appropriate for collective bargaining. The representation vote will proceed and be counted soon afterwards. An example will suffice. Let us say that the union's estimate of the number of employees in the proposed bargaining unit is 10, and let us say that the union produces 10 membership cards as proof of membership. It clearly has considerably over 40 percent membership support in its proposed bargaining unit. The employer files an 8.1 notice because there is a difference in its estimate. It suggests there are 11 employees in the union's proposed bargaining unit and it provides a list of employees. The Board checks the list of employees against the alphabetical list of employees provided by the union under Board rule 43r (b) and finds that all 10 employees on the union's list are also on the employer's list. There is therefore no doubt that the union has more than 40 percent membership support. In this example, the Board will not seal the ballot box because it can determine in advance that the purpose of section 8.1 has been satisfied.
The Board will seal the ballot box in circumstances in which the mischief which Bill 31 sought to eliminate is present. Thus, as occurs in some cases, if the difference between the union's estimate and the employer's estimate is numerically relevant, or if there is significant doubt as to whether the union's proposed bargaining unit could be appropriate, then the representation vote will proceed (if the union has over 40 percent membership evidence in respect of its estimate), but the ballot box will be sealed until the actual determination of the number of employees in the union's proposed "could be" bargaining unit (or, if the union's proposed unit could not be appropriate, in the appropriate unit ultimately determined by the Board under section 9) has been made and the union's membership evidence has been compared to the list of employees within that unit. If then the information proves that the union did not actually have over 40 percent membership support, the application will be dismissed, the vote will be treated as a nullity and the ballots will be destroyed. That is done because the union will be shown not to have had the prerequisite membership support to enable it properly to initiate the certification process. If, on the other hand, the union's membership evidence proves to show more than 40 percent of the actual number of employees in the bargaining unit, then the ballots cast in the representation vote will be counted.
Under subsection 8.1(5), the legislature contemplated that, notwithstanding the Board's receipt of a section 8.1 notice, the ballot box might not be sealed. (Subsection 8.1(5), paragraph 2 and subparagraph 8(i) deal with circumstances where the Board did not order the ballot box sealed after receiving a notice under section 8.1).
If the Board is able to determine from the numerical discrepancy between the parties on the information provided by both parties prior to the order of the representation vote that the union has the actual requisite support, then that determination can be made at the start of the process, rather than later as envisaged in subsection 8.1(5). In a sense, the Board anticipates a decision it knows it will come to eventually.
There are other reasons for the Board's pragmatic approach to section 8.1. The normal and usual expectation of a vote in a democratic society is that those interested in the vote are informed of the outcome, as soon as possible after the close of the poll. The early knowledge of the outcome adds legitimacy to the voting process. Variations from this norm should be the exception, not the rule. Indeed the Board's experience to date suggests that, even applying Bill 31, the sealing of the ballot box is the exception not the rule. Besides the democratic reasons for an early count of a vote, there is a practical reason why a vote should usually be counted. The union may be unsuccessful in the representation vote and knowledge of that result will put an end to the application, then and for a year following, avoiding an unnecessary hearing, which would otherwise involve cost to the parties and the unnecessary consumption of the Board's limited resources.
As stated in The Corporation City of Toronto, [1996] OLRB Rep. July/Aug. 552:
Our final comments concern the Board's inclination, where at all possible, to count the ballots so that the "quick vote" is followed by a quick result. There are several reasons for doing that.
It is important to recognize that a vote in the workplace is not a neutral event. Nor is it obvious that a vote taken but not counted is more corrosive to workplace relationships than a vote counted but not given effect because of legal limitations. Common sense suggests that since voting is such a familiar exercise in democratic societies and since it is now a key element in the certification process, it may be quite troubling (or incomprehensible) for the employees who have cast their ballots, if those ballots are not counted - particularly at the urging of a union or employer that for its own reasons does not want the vote results to be disclosed. In what other democratic setting are votes taken but not counted?
It appears to the Board that if a vote is taken, employees expect that their ballots will be counted; and unless the number of segregated ballots is so numerous that the vote results will be unhelpful, or the employees' identity cannot be kept secret, there is no reason that the employees' wishes should not be disclosed. Their expectation interest is at least as important to recognize as the tactical concerns of the union or employer. And from a purely practical perspective (which includes cost to the parties and the public) in a significant number of cases, counting the ballots often reduces or eliminates the need for litigation. (See for example: Knob Hill Farms, [1995] OLRB Rep. March 303 where costly litigation turned out to be entirely academic because the union ultimately lost the vote. That litigation could have been avoided altogether by simply counting the ballots in the first place.)
Section 8.1 of the Act must be interpreted in light of these labour relations considerations.
The employer referred to Everest Restoration Ltd. [1998] OLRD No. 3206 and Karsen Kartage and Konstruction (1994) Ltd., [1998] OLRD No. 3191 as authority for the proposition that the Board always seals the ballot box under section 8.1 of the Act. Those cases do not stand for that proposition.
In light of the above the Board would not seal the ballot box on account of the provisions of section 8.1 of the Act.
The employer suggested that the ballot box should be sealed under the Board's discretion in section 8 of the Act. It referred to the case of the Teamsters and Sun Media Corporation (Board File No. 0672-98-R) in which that was done over a dispute which is ostensibly similar to that in this case. In this case the employer contends that the persons who were to be balloted are independent contractors; the applicant union argues that they are dependent contractors, and hence employees. In the Sun Media case the parties were in dispute as to whether all, or merely some, of the wholesalers are independent contractors. The ballot box was sealed in that case in large measure because of some level of confusion on the part of the applicant as to which wholesalers it contended were dependent, and which independent, contractors. That is not true of this case.
In this case, in our decision of November 23, 1998, the Board decided not to seal the ballot box because it appeared that the parties were taking the position that all of the persons were either in, or out, of the bargaining unit. However, the employer clarified, in its reconsideration request, that some persons could be independent contractors, and others dependent contractors. In these circumstances it appeared that the individual status of each eligible voter might be in dispute. This changed the position. The Board's expectation, on the basis of the employer's representations in its response, was that what applied to one distributor would apply to all. However, in light of the information provided by the employer in its reconsideration request, that expectation was no longer accurate. The possibility then existed that some of those in the voting constituency might be found to be dependent contractors or employees and others may be found to be independent contractors. The employer's challenge to the status of those eligible to vote could have affected every single person casting a ballot because each of them might ultimately be found to be a dependent or an independent contractor or an employee. The employer asked that the ballots cast be individually segregated on that account. In our bottom line decision we accepted that, under these circumstances, it made sense that each and every ballot cast be segregated. It also made no sense to count the ballots. Accordingly, in our decision of November 26, 1998, we ordered that the ballot box be sealed and the ballots segregated.
Our original decision was amended accordingly.
DECISION OF BOARD MEMBER J. A. RUNDLE; April 21, 1999
I dissent.
A plain reading of the sections 8 and 8.1 of the Labour Relations Act, 1995 requires the Board to seal the ballot box, when as in the instant matter, an employer has given notice that it disagrees with the trade union's estimate of the number of individuals in the unit described in the application for certification.
Subsection 8.1(4) requires the Board to seal the ballot box unless the trade union and the employee agree otherwise (my emphasis). I disagree with the majority's interpretation of "may", "shall" and must in the present context. The words of subsection 8.1(4) clearly dictates that the Board shall not count the ballots unless there is agreement between the litigating parties. It is only in this context that paragraph 2 of subsection 8.1(5) has meaning: if the parties had agreed to have the ballots counted the Board would have been exempted from the requirement to seal, the ballots could readily be counted, and the application dismissed if the union had not met the statutory requirements for a successful application. It should be noted that the order of the sections contemplates that a consideration under subsection 8.1(5) will occur after the vote. The vote still occurs within the S day time frame or in whatever time frame the Board deems appropriate.
I find it surprising that the majority has taken upon itself the need to read in a "reasonable ground" standard to give effect to a section 8.1 notice. There is nothing in the statute upon which to base such a standard. Similarly, the notion of a "numerically significant" divergence between the numbers estimated by the union and those proposed by the employer is a misleading one — a notion that finds no resonance anywhere in the statute. Subsection 8.1(2) is a notice from the employer of a disagreement with the material facts contained in the application for certification. The employer has a right to make submissions regarding the issue it has raised which may not be quite as simple as the majority contemplates. That right to make submissions cannot be waived by the Board.
The majority persists in justifying the ratio of Corporation of the City of Toronto [1996] OLRB Rep. July/Aug. 552 for which there is no longer any statutory foundation.
The Board has an obligation to conclusively determine the appropriateness of every vote cast.