Ontario Labour Relations Board
[1999] OLRB REP. JULY/AUGUST 749
Patricia Scotland, Pamela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle, Applicant v. Retail, Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Party v Wal-Mart Canada Inc., Intervenor; Wal-Mart Canada Inc., Applicant v. Patricia Scotland, Pamela Girard, Marilyn Farrell, Margaret Cadarian, Marlene Needle, and Retail, Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Parties; Wal-Mart Canada Inc., Applicant v. Retail, Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Responding Party; Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 1000, Applicant v. Wal-Mart Canada Inc., Responding Party; Wal-Mart Canada Inc., Applicant v. Retail Wholesale Canada Canadian Service Sector Division of United Steelworkers of America, Local 1000, Responding Party
BEFORE: Russell Goodfellow, Vice-Chair, and Board Members J.A. Rundle and H. Peacock.
APPEARANCES: George W King, Kimberly Michaelis and Marlene Needle for the individual employees; Stewart D. Saxe, Lisa Kirby, Heidi MacDonald and Don Herman for Wal-Mart Canada Inc.; James Hayes, Mary McArthur and Ed Majewski for Retail Wholesale Canada, Canadian Service Sector Division of United Steelworkers of America, Local 1000.
DECISION OF THE BOARD; August 23, 1999
1This is another decision in the ongoing dispute between these parties as to whether a collective agreement was achieved in respect of employees working at the Wal-Mart store in Windsor. The narrow but highly significant issue here is whether the union announced false results of the ratification vote that was held on December 22, 1997. According to the union, 109 of the 148 employees voting marked their ballots in favour of ratifying the proposed collective agreement and the remaining 39 voted against. This result well exceeds the requirement of greater than 50 percent support established by the statute and, on that basis, the union asserts that a collective agreement was achieved.
2Following the taking of the vote, counsel for the objecting employees filed a petition and 79 affidavits on behalf of employees claiming that they voted against ratification. Hence, and not to put too fine a point on it, it would appear that someone is not telling the truth. Either it is a substantial number of employees (perhaps motivated by fear, a desire to please or, at least, not alienate the employer or the core group of objecting employees, or simply having had second thoughts) or it is the union (perhaps) motivated by a desire not to lose the battle for employee representation without, at least, achieving a first collective agreement). Whichever it is, it seems reasonable to suppose that a resolution of this issue will speak loudly about the integrity of at least one of the parties involved. (In this regard, counsel for the objecting employees' reference to his clients being 'spanked' and sent home to Windsor if they are found to be at fault may be the least that the losing party can expect from the Board and the community generally).
3Perhaps needless to say (although union counsel did not stint from saying it), the union views the objecting employees' allegation as an "outrage" - as one motivated by a desire to forestall a finding that the parties achieved a collective agreement (albeit one that would now have expired in accordance with its terms) - that has never before been levelled against it in its lengthy history of representation in this province. For a number of reasons, counsel argues, the Board should decline to hear the employees' evidence and should rule that the objecting employees and employer have not pleaded an arguable case of a breach of the Act. Counsel's fundamental assertion is that it would undermine, if not destroy, the secret ballot process mandated by the statute. Counsel also asserts, for some of the reasons noted parenthetically above, that such post-vote evidence is inherently unreliable and that it could not, by itself, support a finding of the truth of the allegations made. In the absence of the employees' representations as to how they voted, counsel submits, there is nothing pleaded that could support a finding that the union engaged in "vote rigging".
4Counsel for the objecting employees and employer argue that the requirement for strike and ratification votes to be conducted by secret ballot (subsection 79(7) of the Labour Relations Act, 1995) does not prevent employees from disclosing, voluntarily, how they voted and that the requirement that union membership evidence be held in confidence (section 119) does not extend to whether employees voted for or against a collective agreement or a strike. Moreover, any question as to whether some or all of the employees swore false affidavits is something that is properly determined after the Board has heard the employees' evidence; it is not something that should be determined on the basis of "presumptions".
5The Board is deeply concerned about the issues raised by the union and, in particular, about the incentives created by a decision that would allow (to borrow union counsel's phase) to "exit polling". What if the margin in favour of ratification was one or two? How difficult would it be for persons in the position of the objecting employees to gamer enough support to call into question the results of a vote in cases such as that? What finality will there be to strike and ratification votes if exit-polling or post-vote petitions or affidavits are allowed? What about the hand of the employer? How difficult will it be for its role and influence to be positively identified? (Indeed, is a "positive identification" necessary or should the Board rely on conventional understandings about the nature of the employer-employee relationship?) What kind of precedent would a decision in favour of hearing this evidence create for other types of votes - the most obvious being strikes but also, perhaps, certification? What, ultimately, does this say about the secrecy of the balloting process? What level of confidence can employees enjoy in the secrecy of their ballots if it is understood that a post-vote petition can be circulated for their signature which may, through an application to the Board or otherwise, become known to the employer?
6These are but some of the exceedingly difficult issues raised by the Board's receiving the proposed evidence to which it does not, at present, have all of the answers. Despite counsels' best efforts to ground their positions in existing Board case-law, the issue here is really one of first impression. As union counsel's submissions suggest, allegations of this kind are truly unprecedented. In view of that fact, and given the way in which this issue comes before the Board, we believe that these questions are better left to be addressed, as necessary, at a later stage. Accepting, as we must for purposes of this argument, the facts as pleaded by the objecting employees and employer, a majority of employees have come forward voluntarily to swear that they did not vote for ratification when the union says that they did. These employees have already asserted under oath that, in effect, a fraud has been perpetrated upon them by their union. In this case, and at this time, we are prepared to hear the employees' evidence. While the Board considered (and raised with the parties at the hearing) the possibility, for example, of requiring a threshold of some other facts being established that would, by themselves, disclose a prima facie case of a breach of the Act before we would entertain (or consider entertaining) the employees' evidence, the development of any such standard or the setting of any such approach is better left until the evidence in this case has been heard.
7Accordingly, hearings will resume in Windsor on Monday and Tuesday, September 20 and 21, 1999 commencing at 10:00 a.m. The parties will no doubt wish to meet with the case-management Vice-Chair beforehand to discuss possible approaches to the evidence and any other issues that may arise as a result of this decision.
ADDENDUM OF BOARD MEMBER J.A. RUNDLE; August 23, 1999
I agree that the respondent trade union's prima facie motion fails.
I disassociate myself from the lengthy and gratuitous obiter in the decision. It is not the Board's role, before hearing the evidence, to speculate on a parties motive, comment on the substantive issues or suggest a remedy.
The Board should be concerned about any allegation of fraud being perpetrated on its processes. The allegations contained in the application are serious, a fact that I am confident is not lost on the parties, all of whom are represented by capable experienced counsel. Allegations of fraud are not novel to the Board and this case, as with all cases before the Board, should be dealt with on the basis of the evidence before it, not on the basis of idle speculation.
The one fact the decision omits, is that the vast majority (as in the instant case) of strike and ratification votes are conducted solely by the trade union, while all certification, termination, and final offer selection votes are conducted by officers of the Ontario Labour Relations Board. This omission becomes curious when reading the litany of questions posed in paragraph five (5) of the decision. While I did not attend a meeting where the questions in paragraph five (5) of the decision might have been discussed clearly some of them are of no relevance to the instant case, while others that are of "deep concern" to the Board seem to question the propriety of the Board "looking behind" a vote conducted solely by the trade union. Isn't it ironic that this employer was certified under the then section 11 provisions of the Act, on the basis that the Board conducted vote did not reflect the true wishes of the employees because of the actions of the employer? The Board is now being asked by a number of employees to decide whether a vote conducted solely by the trade union, reflects the true wishes of the employees or has there been trade union interference in the reporting of the vote results.
The Board at the time of the first vote had no reservations about looking behind a Board conducted vote yet in the instant case expresses "deep concern" about looking behind a union conducted vote - a vote in which the union has a vested interest in the outcome. The Board must be equally 'deeply concerned' with alleged trade union actions that interfere in the expression of the employees' true wishes as the Board is with alleged employer interference.