3681-99-R Canadian Union of Public Employees, Applicant v. Guelph Wellington Association for Community Living, Responding Party v. Frances Kee, Shelly Dano, Maureen Peats-Bond, Monique Lee and Gena Mortenson, Intervenors.
BEFORE: Russell Goodfellow, Vice‑Chair.
APPEARANCES: B. Sheehan and M. Graves for the applicant union; Stephen J. Goodwin and Bob Butella for the responding party employer; Peter A. McSherry, Frances Kee, Shelly Dano, Maureen Peats-Bond, Monique Lee and Gena Mortenson for the intervenors.
DECISION OF THE BOARD; August 25, 2000
- This is an application for certification. A hearing was held in this matter on April 26, 2000. At the conclusion of the hearing the Board ruled that the notice that had been provided to employees of the certification vote was sufficient and that the alleged conduct of a trade union official in the course of the organizing campaign could not possibly constitute an unfair labour practice or require the holding of another vote. The Board then certified the applicant on the basis of the vote results. These are the reasons for the Board’s decision.
Notice of Vote
The bargaining unit consists of approximately 342 support workers who perform their services at approximately 25 locations in the Fergus, Mount Forest and, to a much greater extent, Guelph areas. The application was filed on March 14, a Tuesday, and the employer filed its response on March 16, a Thursday. The Board issued its vote decision on Friday, March 17. That decision directed the holding of the vote on Tuesday, March 21 at the following times and locations: Fergus - 7:30 a.m. to 8:00 a.m.; Mount Forest - 9:30 to 10:30 a.m.; and Guelph – 12:00 p.m. to 3 p.m. and 5:00 p.m. to 8:00 p.m.
Unfortunately, the Board issued its vote decision and established the polling times without regard to the employer’s response. Although the employer had filed its response in a timely manner, it was not placed before the panel that made the decision. When the employer became aware that its views as to the appropriate polling times had not been considered, it asked for “reconsideration” of the Board’s decision and that the following times that had originally been proposed in its response be substituted: Fergus – 11:30 a.m. to 1:00 p.m.; Mount Forest – 9:00 a.m. to 10:30 a.m.; and Guelph – 3:00 p.m. to 6:30 p.m. The Board received the employer’s request on Friday afternoon and dealt with it on Monday. On that day the Board rejected the request, stating that “… the arrangements made by the Board provide greater access to the polling stations to employees than those proposed by the responding party”. Nevertheless, the Board chose to adopt the sequence suggested by the employer and went on to exchange the Fergus and Mount Forest polling times.
It was the position of the employer and the intervening employees that prospective voters were not afforded an adequate opportunity to cast their ballots. The problem was said to lie in the polling times and, in particular, in the fact that the Fergus and Mount Forest times were changed less than 18 hours prior to the opening of the polls. The employer noted that of the 119 employees whose names appeared on the voters’ list at Fergus and Mount Forest (approximately 43 of whom, the union submitted, were not entitled to vote) only 56 employees, or 47 per cent, voted. The employer contrasted this with the 152 of 223 ballots (68 per cent) cast at the Guelph polls and invited the Board to conclude that more people wished to vote than were able to do so and that the reason that they were unable to do so was because of the timing. The five intervening employees (all of whom managed to vote at the Fergus or Mount Forest locations) added that the notice problem was compounded by the fact that the application had been filed during the March school break. The intervenors believed that the applicant manipulated the timing of the application and of the polls to frustrate the voting intentions of the Fergus and Mount Forest employees.
There can be no doubt that the Board erred in overlooking the employer’s response and that a change in polling times that is made less than 18 hours prior to the opening of the first polls raises questions about the adequacy of the notice and its effects on employees’ voting opportunities. In other words, the argument of the employer and intervenors were by no means fanciful. Having said that, however, the Board was not persuaded that the “problems” were to such an extent as to call into question the legitimacy of the vote results so as to require the holding of another vote.
First, and perhaps mostly significantly, the Board found that any deficiencies in the formal notice of the vote were more than offset by the parties’ own efforts to communicate the necessary information to employees. The employer acknowledged at the hearing that it supplemented the posting of the formal notices with phone calls or e-mails to all or virtually all of the eligible employees advising them of the polling times and locations. If direct contact was not made, messages were left wherever possible. This fact, together with the following, were critical to the Board’s decision: the nature of the workplace (this is a 7-day a week, 24 hour a day operation – albeit consisting of many part-time employees –thereby enhancing the possibilities of both formal and informal communication of the vote); the fact that the campaign leading up to the vote appears to have been open and well-publicized on both sides (also contributing to more open lines of communication); the amount of time allowed for the polls (here the amount of polling time exceeded the amount suggested in the Board’s guidelines); the availability of alternate polls if problems arose with respect to any one poll (here employees could vote at any one of three polls in any one of three locations at different times during the day); the voter turnout (here, depending on the disposition of the union’s challenges, the overall turnout was between 61 and 68 per cent – a very respectable number); the margin of “victory” (here it was 116 to 91 – again, an appreciable amount); and the fact that no employees who were unable to vote attended the hearing to voice their concerns or wrote to the Board to complain (this despite the somewhat unusual fact that the employer issued a memo to all employees following the vote inviting them to communicate any concerns that they might have with respect to the conduct of the vote, in particular with the voting times, to the Board). The only individuals who responded to this invitation, approximately ten in number, appear to have cast ballots.
Having regard to all of these factors and, in particular, to the employer’s own very comprehensive efforts to provide employees with notice of the vote, the Board concluded that the vote results should stand.
Conduct of the Union
The intervenors and, initially, the employer also challenged the union’s right to be certified on the basis of certain alleged misdeeds by union representatives during the course of the organizing campaign. At the hearing, however, only one such occurrence was pressed, and that by the intervenors alone. Counsel for the intervenors indicated that a union official engaged in a somewhat heated exchange with one of the intervenors at a union organizing meeting. The subject of the exchange was whether another employee had been fired because of her support for the union or for performance-related reasons. The dispute was alleged to have culminated in the organizer telling the intervenor to “sit down and be quiet”, adding that she had “alienated herself quite enough”. Several other employees, most of them intervenors, were said to have witnessed this exchange.
Assuming that the exchange took place as described, it may constitute inconsiderate or rude behaviour on the part of the union official, or it may not. What it could not possibly constitute, however, is an unfair labour practice or a threat to the integrity of the vote. Without wishing to seem insensitive to the intervenors’ concerns or oblivious to the importance of collegiality in a workplace such as this one, the Board notes that union organizing campaigns are seldom the proverbial “tea parties” for which some might hope. More importantly, the Board has always placed great confidence in the ability of employees to withstand a reasonable degree of pressure from both sides. Needless to say, that confidence is strengthened by the secrecy of the ballot box.
Accordingly, and for all of these reasons, the Board dismissed the employer’s and intervenor’s challenges to the vote and certified the applicant.
"Russell Goodfellow"
for the Board