[1999] OLRB REP. JULY/AUGUST 666
2875-98-PS; 0444-99-U; 0533-99-U The Northwest GTA Hospital Corporation, Ontario (formerly Peel Memorial Hospital, Georgetown and District Memorial Hospital and Etobicoke General Hospital), Applicants v. Ontario Nurses' Association, The Canadian Union of Public Employees; Service Employees International Union, Local 204; Ontario Public Service Employees Union; Association of Allied Health Professionals: Ontario; Canadian Union of Operating Engineers and General Workers, Responding Parties; Ontario Public Service Employees Union, Applicant v. The Northwest GTA Hospital Corporation, Ontario (formerly Peel Memorial Hospital, Georgetown and District Memorial Hospital and Etobicoke General Hospital), Responding Parties; Service Employees International Union, Local 204, Applicant v. Canadian Union of Public Employees, and Northwest GTA Hospital Corporation, Ontario, Responding Parties
BEFORE: David McKee, Vice-Chair.
APPEARANCES: Richard Blair and Tracey Mussett for OPSEU; John Elder, Dana Ivanochko and Mohan Swaminathan for CUPE; Sean Fitzpatrick, Linda Micks and Janice Chase for SEIU; Janice Baker and John Kuhne for The Northwest GTA Hospital Corporation, Ontario.
DECISION OF THE BOARD; July 27, 1999
1File 2875-98-PS is an application under the Public Sector Labour Relations Transition Act, S.O. 1997, c.21 ("the Act") made by the Northwest GTA Hospital Corporation, Ontario ("the Hospital"). As a result of the decisions of this Board (differently constituted) on April 30, 1999 and May 26, 1999, various representation votes were held.
2The April 30 decision determined the composition of the various bargaining units, including those which are the subject of this decision. In that decision the Board made directions about the conduct of the votes, and about how the bargaining agents could have access to the Hospital facilities and the employees for the purpose of electioneering.
3Certain issues have arisen with respect to three of these votes, leading to the two applications under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.l ("the LRA").
4In the unit described as the "Paramedical! Professional Full-Time unit", a majority of the ballots were cast in opposition to the Ontario Public Service Employees Union ("OPSEU"). OPSEU filed a complaint with respect to the conduct of the Hospital prior to the vote, alleging that the results of the vote therefore did not reflect the true wishes of a majority of employees in the bargaining unit. The matter came on for hearing July 14, 1999. The parties advised me at that time that they had entered into Minutes of Settlement which were filed with me.
5Pursuant to these Minutes of Settlement, any bargaining rights held by OPSEU in respect of employees in the Paramedical/Professional Full-Time unit are hereby terminated. The application in Board File 0444-99-U is terminated on the basis of the Minutes of Settlement.
6The remaining two representation votes which are the subject of a request under the Act and the unfair labour practice complaint in Board File 0533-99-U are described as the "Service Full-Time unit" and the "Service Part-Time unit". In both bargaining units, a vote was conducted among the Canadian Union of Public Employees ("CUPE"), the Service Employees International Union, Local 204 ("SEIU") and the Canadian Union of Operating Engineers and General Workers ("CUOE") on May 13, 1999. In the Service Full-Time unit, a majority of votes was cast in favour of CUPE. In the Service Part-Time unit, no union received a majority. A run-off vote was conducted between CIJPE and SEIU and the ballot box was sealed.
7On May 20, 1999 SEIU filed an application under section 96, alleging a violation of section 70 of the LRA by CUPE and the Hospital as a result of certain alleged activity which took place in a period preceding the votes. In Board File 2875-98-PS, the SEIU seeks the same relief based on the same facts. SEIU asks the Board to conduct new representation votes in both units and to grant other relief in respect of those new votes.
8CUPE and the Hospital have asked the Board to decline to inquire into the complaints on the basis of section 23(19) of the Act. In addition, the Hospital took the position that section 70 of the LRA had no application to a vote conducted under section 23 of the Act. It was common ground among all parties that, whatever the effect of section 70 of the LRA, all issues with respect to the conduct of the vote and specifically whether the Board could or should disregard the results of a representation vote and order a new vote were governed exclusively by sub-sections 23(18) and (19). These sub-sections provide as follows:
- (18) No order of the Board appointing a bargaining agent shall be set aside on the ground of any defect or irregularity in a vote if the Board is satisfied that the results of the vote reflect the true wishes of the majority of the employees in the bargaining unit.
(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.
The motion to dismiss the application by SEIU under sub-section 23(19) was argued on that basis.
9At the end of argument, I gave the following "bottom-line" ruling:
This is a bottom-line decision. My reasons will follow in writing. The motion made by CIJPE and the Hospital to dismiss the complaint made by SEIU seeking new votes in the service Full-Time unit and the service Part-Time unit is granted. I am satisfied that despite any irregularities in the process leading up to the vote, the results of the vote reflect the true wishes of the majority of the employees in both bargaining units. Since this was the essence of the section 70 complaint and no useful labour relations purpose would be served by any declaratory relief (if any is available) under section 70 of the Labour Relations Act, 1995, that application is dismissed. In File 2875-98-PS, CUPE will be appointed the bargaining agent for the Service Full-Time unit. I order the ballots cast in the Service Part-Time unit run-off vote to be counted.
These are the reasons for my decision.
10The sole issue for the Board in this sort of application is whether or not the results of the vote reflect the true wishes of the majority of employees in the bargaining unit. Whether any party has violated the terms of the Board's order setting up the vote or indeed any sections of the Act or the LRA, is relevant only insofar as such violations may establish that the results of the vote do not reflect the true wishes of employees. I agree with counsel for SEIU that this is an objective test. It is not based on the subjective views of the most gullible or the most firm voter, but on an assessment of whether the events which occurred would objectively lead to the conclusion that a reasonable employee would be unable to express his or her true wishes in a secret ballot because of these events. It is therefore neither necessary nor relevant for SEIU to plead or adduce evidence dealing exclusively with the perception or belief of individual employees.
11On this basis, I am not satisfied that any of the allegations made by SEIU in its application or subsequent correspondence, if true, would lead me to conclude on the balance of probabilities that the true wishes of the employees in the two bargaining units were not reflected in the results of the representation vote.
12In Georgetown, the allegations are as follows. Pursuant to the decision of April 30, 1999, the SEIU had arranged for a meeting with employees on Friday, May 7 between 1:00-3:00 p.m. This meeting was interrupted first by a fire alarm which required all persons in the room to vacate it for some five or ten minutes. Second, the Hospital required SEIU to leave the room at 2:15 p.m. for the purposes of a meeting to be held by the Hospital for employees in the Professional/Paramedical Full-Time unit. These facts are not disputed by the Hospital, although certain explanations were offered as to the reasons for truncating the meeting.
13The Hospital was wrong in truncating the meeting, particularly because it had already been disturbed by a false fire alarm. However, there is no allegation that there were actions taken or words said in the process of terminating the meeting which would render a reasonable employee who was at the meeting or who might have attended the meeting after it was cut short to form any conclusion or to feel coerced, intimidated or threatened in any way, or promised anything which would impair that employee's ability to freely exercise his or her choice with respect to bargaining agent in the vote held May 13.
14In this respect, the issue of delay raised by CUPE and the Hospital has some validity. Paragraph 19 of the Board's April 30 decision states as follows:
- Each bargaining agent will have two opportunities to meet with all employees on the Employer's premises, but outside of normal work hours. This will likely mean that each bargaining agent will schedule four meetings with the affected employees to cover off both shifts, but that is left to the discretion of the bargaining agents. The bargaining agents can use Employer bulletin boards to advertise the time and location of the meetings.
15In other words, after the disrupted meeting was over, SEIU still had the right to require the Hospital to schedule another meeting, independent of any obligation to make up for a less than satisfactory meeting on May 7, and to use the Hospital bulletin boards to communicate the time and place of such a meeting. SEIU chose not to do so. SEIU states that it lacked the time and resources to schedule another meeting. The most reasonable inference I can draw is that on May 7 SEIU decided that the disruption of its meeting would not significantly affect the results of the vote among the bargaining unit members at Georgetown (who were all represented by CUPE) and chose not to place any priority on redeploying its resources to set up a second meeting before the vote. Only after the results of the vote were known did SEIU complain to anyone. Accordingly, even though there is an admitted irregularity in a process mandated by the Board leading up to the vote, I am satisfied that the results of the vote nonetheless reflect the true wishes of the majority of employees in the bargaining unit, and the vote will not be set aside on this ground.
16At the Etobicoke site, the allegation made by SEIU is that CUPE exceeded the number and duration of the opportunities to distribute leaflets set out in paragraph 21 of the April 30 decision. That decision states:
- Each bargaining agent can hand out leaflets at the Employer's workplace entrances (except Emergency) on two occasions of two hours each. The bargaining agents will negotiate a schedule for distribution and inform the Employer.
The allegation of SEIU is that CUPE in fact leafletted on May 3, 4, 6, 7, 11, 12, and 13 and that on at least one of those occasions did so for four hours. Although CUPE disputes some of the allegations for the purposes of this motion, I shall take all of them to be true. SEIU argued that this activity was similar to activity by a union which breached the "silent period" imposed by the Board routinely prior to 1983 on votes and certification applications. In such cases, where a union breached the silent period, the Board frequently ordered a new vote.
17The analogy is not applicable to a vote held under section 23 of the Act. In two of the decisions referred to by counsel, the purposes of the silent period was described as follows:
"Its primary object is to ensure that, so far as possible, the vote will be conducted in an atmosphere of calm and that the employees who are to participate in the vote shall not be subjected to partisan pressures and influences as the voting day approaches. The Board's view has always been that at that point the individual employees should be left free to make a purely personal decision as to how he should vote".
(Anderson Metal Industries Inc., [1981] OLRB Rep. Apr. 415 at para. 9.)
"Where, as here, the Registrar's prohibition against propaganda and electioneering during the quiet period has been breached by persons not acting under the direction or control of either of the parties, the mere fact that the breach has occurred does not automatically justify the setting aside of the results of the vote and the directing of a new representation vote ... rather the Board seeks to determine whether or not the breaches of the prohibition were intended to influence the outcome of the vote, and also whether or not there were in fact likely to influence the outcome of the vote
(Tend-R-Fresh Plant United Co-Operatives of Ontario, [1977] OLRB Rep. Jan. 22.)
18In fact, the Board abandoned this policy (which was created by the Board rather than by statute) as unnecessary. It has never been reinstated. The experience of the Board over the last fifteen years is that employees may well be exposed to electioneering propaganda right up to the day of voting, and that electioneering may indeed influence those voters, but that such influence is not equivalent to conduct which creates a situation in which the vote is not likely to disclose the true wishes of the employees in the bargaining unit (see Allied Signal Automotive of Canada Inc., [1989] OLRB Rep. Sept. 927). The standard adopted by the Legislature in the Act is set out in sub-sections 23(18) and 23(19) and is not the test that was previously applied to the silent period.
19In this case the conduct complained of is excessive campaigning. This campaigning may well have influenced some voters in favour of CUPE. It may have annoyed others and caused them to vote against CUPE. Whatever its effect, the mere fact of campaigning in excess of the time permitted by the Board does not, in and of itself, lead me to the conclusion that voters were unable, in a secret ballot vote, to exercise their free choice as to their bargaining agent. Accordingly, I am satisfied that any breach with respect to the leafletting did not prevent the results of the representation vote from reflecting the true wishes of the majority of employees in the bargaining unit.
20Finally, SEIU has complained of events at the Peel location which took place on May 12, 1999, the day before the vote. A pamphlet was photocopied and circulated. It purports to be from SEIU urging voters to choose CUPE in the election held the next day. It purports to indicate that this is the choice of SEIU and provides the accurate telephone numbers of the office for employees wishing to verify this fact. In my view, no reasonable employee receiving this pamphlet would conclude that the SEIU was urging voters to choose CUPE as their bargaining agent. The photocopy is obviously a "cut and paste" production. Voters might conclude that it was a prank or might believe that CUPE was up to some improper behaviour. Indeed, SEIU pleads in its application "SEIU further submits that a reasonable inference may be made that these fake leaflets were produced or distributed by a CUPE representative or supporter". It is extremely unlikely that any voter, no matter how gullible, would be influenced by the pamphlet to believe that the SEIU was urging its members to support CUPE. This allegation could not impair the ability of the results of the vote to reflect the true wishes of the majority of the employees in the bargaining unit.
21Accordingly, I will not inquire into the allegations of irregularities in the vote.
22I have some sympathy for the feelings of outrage on the part of SEIU. They have governed themselves by a particular set of rules and they perceive others have not. However, the focus of sub-sections 23(18) and (19) is not the wrongdoing of other parties, but the wishes of the members of the bargaining unit. The statute deals with a particular type of extraordinary amalgamation in the public sector and mandates a reorganization of bargaining rights in the new entity. Ultimately, of course, the wishes of employees underlie any union's bargaining rights. This statute is concerned only with whether those wishes were freely expressed. Once I have concluded that they were, the statute directs the Board to take no further action other than to count the ballots.
23The Board appoints CUPE as the bargaining agent in the Service Full-Time unit.
24The votes in the Service Part-Time unit were counted on July 19, 1999. On the taking of the representation vote in the Service Part-Time unit, a majority of votes was cast in favour of CUPE. The Board appoints CUPE as the bargaining agent in respect of the Service Part-Time unit.