3063-98-PS Service Employees’ International Union, Local 210, Applicant v. Conseil scolaire de district des écoles catholiques du sud-ouest; Service Employees’ International Union, Local 220, Fédération des enseignants et enseignantes des écoles secondaires de l’Ontario and Le Syndicat Canadien de la fonction publique, Responding Parties

0771-99-U Syndicat international des employées et employés de service and Fédération des enseignants et enseignantes des écoles secondaires de l’Ontario, Applicants v. Conseil scolaire de district des écoles catholiques du sud-ouest and Le Syndicat Canadien de la fonction publique, Responding Parties

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Allen Gottheil and Colombe Beauregard for Fédération des enseignants et enseignantes des écoles secondaires de l’Ontario; John Elder, Daria Ivanochko, Denise Carter and Denise Bondy for Le Syndicat Canadian de la fonction publique; S. Margot Blight and François Lee-Daigle for Conseil scolaire de district des écoles catholiques du sud-ouest; no one appearing for Service Employees’ International Union.

DECISION OF THE BOARD; January 21, 2000

1This is an application pursuant to section 22 of the Public Sector Labour Relations Transition Act (the PSLRTA) and a complaint pursuant to section 96 of the Labour Relations Act (the LRA).

2The Service Employees International Union (the SEIU), on behalf of both Local 210 and 220, brought the PSLRTA application for a determination of the number

the newly created Catholic French language board , Conseil Scolaire de district des écoles catholiques de sud-ouest (the employer or the school board). At the time of the application, the parties were faced with the daunting task of melding the staff and programs that had been part of 6 geographically disparate Catholic school boards. At the start of the proceeding, 5 trade unions represented employees in 17 bargaining units. This proceeding did not concern classroom teachers.

3Through the efforts of the parties, and with the assistance of the Board's Labour Relations Officers, significant progress towards resolution was made. The Ontario Public Service Employees Union (OPSEU) advised the Board and the parties on December 10, 1998 that it was no longer asserting bargaining rights for any of the employees, and would not be participating. SEIU, Local 220 advised the Board and the parties on December 23, 1998 that it was no longer asserting bargaining rights for any of the employees, and would not be participating further.

4On March 29, 1999, all the remaining parties: the school board, SEIU Local 210, the Canadian Union of Public Employees (CUPE) and the Ontario Secondary School Teachers' Federation (OSSTF) reached agreement that a single bargaining unit of support staff was appropriate. Having regard to the parties' agreement, on April 14, 1999, the Board directed that a representation vote be held among all the affected employees to determine which trade union would be the bargaining agent for the new merged bargaining unit. The Board directed that SEIU, Local 210, CUPE and OSSTF be on the ballot. Around May 11, 1999, SEIU Local 210 decided to support the OSSTF, and take itself out of the race, so the SEIU did not appear on the ballot. The vote was held on June 15, 1999. CUPE won the vote. CUPE received 111 votes, the OSSTF 62.

5On June 11, 1999, that is, before the vote was held, the SEIU and the OSSTF made a joint complaint pursuant to section 96 of the LRA, alleging the CUPE and the school board had violated sections 70, 71, 72, 76 and 77 of the LRA. Although I will set out the allegations in more detail, essentially, SEIU and OSSTF complain that the employer denied leaves to SEIU members to enable them to campaign on behalf of the OSSTF, while at the same time, allowed leaves to CUPE members. In addition SEIU and OSSTF allege that the school board allowed CUPE members to use school time and materials to campaign, contrary to the school board's April 22, 1999 direction to all the unions. This activity, it is argued, should cause the Board to find that the employer unlawfully interfered in the representation vote, and the Board should conclude that the representation vote held on June 15, 1999, does not reflect the true wishes of employees. Although a range of remedial relief is sought, principally, SEIU and OSSTF ask the Board to order a new vote.

6At the time it made its application, the SEIU and OSSTF asked the Board to seal the ballot box in the upcoming vote. By decision dated June 14, 1999, the Board declined the request.

7There were further developments before the matter got to hearing. On October 12, 1999, the SEIU sought leave to withdraw its unfair labour practice complaint in Board File No. 0771-98-U and to discontinue its participation in Board File No. 3063-98-PS. None of the other parties have objected, but at this point, the Board is not inclined to give leave to withdraw in either matter, because the SEIU is the applicant in both. Of course, OSSTF is also the applicant in Board File No. 0771-98-U, so there is not real procedural difficulty, because one applicant remains. But the SEIU is the only applicant in Board File No. 3063-98-PS. The other parties would be prejudiced if the Board granted leave to withdraw at this stage. The Board will merely note the SEIU's request, and its desire to participate no further.

8One further development should be noted. On the day of hearing, counsel for the OSSTF indicated that his client was no longer seeking any remedies against CUPE. While the OSSTF still relies on all the allegations made against CUPE members or representatives, it relies on them only as proof of the employer's actions. In other words, while CUPE has been the beneficiary of the employer's alleged unlawful actions, it is an innocent beneficiary. The OSSTF further amended in pleadings on the hearing date to include the following:

On October 8, 1999 during a professional development day, several employees in the bargaining unit indicated that it they had had the information about the OSSTF that they have today, it would have changed the way they voted on June 15, 1999.

9At the hearing convened on December 8, 1999, the parties agreed that I would hear and decide the preliminary issue that had been previously raised by CUPE, and echoed by the school board. CUPE and the school board argued that even if all the allegations are proven, the applicant has not made out a prima facie case for the primary remedy it seeks, the holding of a new representation vote.

10For the purposes of the motion, all of the allegations made by the OSSTF are assumed to be proved.

11On April 22, 1999, the employer issued a letter to all the bargaining agents directing them not to use school time for the campaign. On May 12, 1999 the day after the SEIU advised all parties that it was no longer participating in the vote, it requested leave, pursuant to the collective agreement, for two members to engage in union business for two weeks so they could campaign for the OSSTF. The supervisor of one employee advised him verbally on May 14, 1999 that the leave had been approved, and a replacement found.

12But on May 14 or May 17, 1999, the employer's Director of Human Resources spoke to the SEIU's 2^nd Vice President in which he questioned the reason for the leave. The SEIU representative indicted that it was to campaign for the OSSTF.

13On May 17, 1999, the Director of Human Resources advised the SEIU representative that the leaves were denied because SEIU was no longer on the ballot and the employer was not granting leaves for SEIU members to campaign for the OSSTF. The Director further said that replacements were not available, contradicting what one of the employee's supervisors had told him. The SEIU representative argued that it was for the union , not the employer, to decide what was union business, but the employer continued to deny the leaves. In the past SEIU members have been granted union leave to participate in federal and provincial election campaigns, which are not school related activities. The SEIU has filed a grievance with respect to the refusal of the leaves.

14On June 9, 1999, CUPE requested and was granted leave for three of its members to campaign. They approached employees during class time and have had some employees removed from classes to campaign. This was observed on at least three occasions, and in circumstances where the school principal ought to have known the activity was taking place. In addition, a member spent the first part of a day in a campaign meeting, taking her away from her assigned student, who made a complaint.

15Further, the CUPE members have used the employer's supplies, and copiers, during work time, to prepare and distribute campaign materials, contrary to the employer's direction of April 22, 1999. One Educational Assistant spent almost an entire day in the school's office using the copier, envelopes and fax machine to prepare and distribute materials. Given that she was away from work and in the office nearly the whole day, the principal of the school ought to have known of her activities. In contrast, OSSTF has limited its contact to non-working hours.

16Counsel for CUPE submitted that the OSSTF had pleaded nothing which should cause me to doubt that the representation vote reflects the true wishes of employees, and that is the only issue that matters. The starting point, counsel set out, is section 23 of the PSLRTA which sets out a complete code for the conduct of representation votes. Section 23(19) is the most relevant part:

The Board is not required to enquire into any 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 reflects the true wishes of the majority of employees in the bargaining unit.

17In this case, counsel for CUPE argues, there is no connection pleaded between the conduct and the outcome of the vote. The applicant has not pleaded that the denial of leaves was notorious or that the campaigning by CUPE members during school time was known throughout this geographically disparate bargaining unit. What happened, essentially, counsel for CUPE argued, is that CUPE got more opportunities to campaign, and the OSSTF got fewer. That is not enough to establish that the vote does not reflect the true wishes of employees.

18In The Northwest GTA Hospital Corporation, [1999] OLRB Rep. July/August 666, the Board decided that the focus of the inquiry is on whether the vote represents the true wishes of employees:

The 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 section of the Act [the PSLRTA] 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 the 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.

19In a reconsideration decision in the same matter (September 29, 1999), the Board wrote:

The applicant equates the phrase "activity which leads an employee to vote in a manner which does not express his or her true wishes" with "activity which influences those wishes which are expressed in a vote". They are not the same thing. Activity which prevents employees from expressing their true wishes is activity which causes them to vote in a manner inconsistent with their genuinely felt desires. Activity which influences the wishes of employees may change those true wishes from support for one union to support for another union, but does not prevent the expression of those true wishes, however they were formed or influenced.

20Counsel for CUPE characterized what the OSSTF is complaining about as a loss of opportunity to influence. The newest allegation alleges that if it had more opportunity to campaign, it could have changed the minds of voters. But The Northwest GTA Hospital Corporation decisions make clear that a loss of an opportunity to influence does not result in the conclusion that employees were prevented from expressing their true wishes in a vote. And counsel added, even if the Board were to conclude on the basis of the applicant's pleadings that the employer's activities signaled a preference for one union over another, that conduct still does not meet the test.

21In the labour relations domain, the Board has regularly considered whether representation votes reflect the true wishes of employees, and has only set them aside where satisfied that the critical faculties of employees were overwhelmed, (see for example, Atlas Specialty Steels, [1991] OLRB Rep. June 728) a standard that has not been met in this case.

22Counsel for CUPE asked me to remember the context; a highly unionized environment where CUPE already represented the majority of employees. The conduct alleged, when measured within that context, should leave no doubt that the vote reflected the true wishes.

23Counsel for the employer adopted the arguments of CUPE. In addition, counsel added that given the allegations, the Board had to conclude for the purposes this argument that the employer had breached the LRA and committed an unfair labour practice in denying leaves to one union, while granting them to another. She noted that in The New Dominion Stores case [1993] OLRB Rep. Sept. 880, one of the cases relied on by OSSTF, the Board found allegation of similar conduct made out a prima facie breach of the LRA. But, since there is no allegation that the employer's conduct prevented employees from expressing their true wishes in the representation vote, even assuming the employer committed an unfair labour practice, the applicant's request for a second vote must fail. There is no allegation, counsel argued, that employees knew about the employer's decision to deny the leave, and in this school board of 31 workplaces spread across 25,000 square kilometers, the Board cannot assume that word would have traveled.

24Most important, even if the employer's actions could be perceived as signaling a choice of one union over another, there are no allegation of coercion or intimidation of employees, no activity that overwhelmed employees' ability to vote in accordance with their true wishes.

25While it is possible that the freeing up of the SEIU members would have resulted in more votes for the OSSTF, as The Northwest GTA Hospital Corporation reconsideration determined, an activity which influences voters' choice does not equate with one which prevents them from expressing their true wishes.

26In response, counsel for the OSSTF pointed out that one factor which distinguishes this case from others challenging PSLRTA votes, is that the applicant complained about the conduct before the vote was held and the result known. It was the Board's choice to open the ballot box and reveal the result, an outcome the applicant had sought to avoid.

27In this case, counsel argued, the employer's denial of the leave to SEIU, while granting it to CUPE is serious for two reasons. First, it did more than state the employer's choice; the employer acted on its choice, and highlighted the power and influence it had; granting a leave to one union, while denying it to the other. The New Dominion Stores case (above) dealt with a smaller situation; rival unions campaigning for the support of employees, and the granting of leaves to the members of one union, while denying them to another. In determining whether to grant interim relief, the Board found that the allegations made out a prima facie case that such conduct was "unlawful discriminatory activity" and a breach of the LRA. The Board went on to say:

This is not an internal union matter. Rather, this is a question of ensuring that the rights of employees and union under the Labour Relations Act are protected. It is a question of ensuring that the employees have the ability to choose freely between potential bargaining agents, and that potential bargaining agents have not been unfairly discriminated against with respect to access to employees.

28Counsel for OSSTF argued that in this case, the Board recognized the impact on employees when the employer signals a preference for one union over the other. The Board also recognized the second argument on which the OSSTF relies. Access to employees is crucial if a union wants to win over people, and the opportunity for employees to meet personally with a union's "inside" organizers is critical to success. In this case the denial of the leaves cost the OSSTF the work of 2 persons for 10 days. In the circumstances of this case, the lost campaigning opportunities were even more critical because the workplaces are so far apart, and demand a lot of travel time to meet groups of employees. The consequences of that lost campaign time is proven by the statements of employees in October that if they had the information about the OSSTF that they now have, they would have voted differently in June.

DECISION

29In The Northwest GTA Hospital Corporation the Board set out two important principles; that where the remedy is the holding of a new representation vote, the sole issue to be determined is whether the conduct complained of prevented employees from expressing their true wishes. The second important principle set out (particularly cogently in the reconsideration decision) is that conduct which influences decision-making is not the same as conduct which overwhelms decision-making, and it is only conduct which overwhelms decision-making that will lead the Board to conclude that the vote did not represent the true wishes of employees.

30These are not new concepts. Throughout its history and jurisprudence the Board has assessed the likely impact of improper conduct on the vote process. The Board has applied the principles it has developed to the votes conducted pursuant to the PSLRTA. The only (arguably) different considerations in PSLRTA matters is that those votes are held in highly unionized workplaces. In that context, the Board may conclude that employees are less vulnerable and less likely to be influenced by employer misconduct.

31Turning to the facts of this case, assuming that the employer's denial of the leaves to the SEIU, while granting them to CUPE is an unfair labour practice, I am not satisfied that the employer's conduct would have overwhelmed the decision-making of the employees in the bargaining unit. I could conclude the vote reflects the true wishes of the majority of employees. First, there is no allegation that the denial of the leaves was notorious among the employees, nor am I prepared to assume that it was given the large distances between workplaces. Second, it was members of the SEIU, who were denied leave. SEIU was not on the ballot. If the employer was trying to signal a message of support for CUPE over the OSSTF, it was not a clear message. And it not a reasonable inference to be drawn from the pleadings.

32While it is unfortunate that CUPE employees were not stopped when they used school time and resources to campaign, again, I am not satisfied that the conduct was so widespread or notorious to cause me to conclude that it overwhelmed employees' critical faculties when they voted.

33I agree with counsel for the employer that the OSSTF is really complaining about its loss of opportunity to campaign, and greater opportunities for CUPE. The Board in The Northwest GTA Hospital Corporation said that a loss of a potential to influence did not amount to a conclusion that employees lost the opportunity to express their true wishes in a secret ballot vote. Again, while the denials of the leave may be found to be unfair labour practices, I cannot conclude that the result of the unfair labour practice was a vote that did not reflect the true wishes of employees.

34The Board concludes that the applicant has not made out a prima facie case for the holding of a further representation vote. Consequently, there is no reason to delay confirming the vote results in Board File No.3063-98-PS and the consequences that flow.

35On June 15, 1999, a representation vote was held with respect to the following bargaining unit:

tous les employé(e)s du Conseil scolaire de district des écoles catholiques du sud‑ouest à l'exception des superviseurs, et les personnes au dessus du rang de superviseur, gérant de l'entretien, gérant de l'informatique, adjointe de direction, psychologue en chef, préposés aux avantages sociaux, préposée aux ressources humaines.

36On the taking of the representation vote a majority of votes was cast in favour of Canadian Union of Public Employees (“CUPE/SCFP”).

37Accordingly, under subsection 23(9) of the Act, any bargaining rights possessed by Service Employees International Union, Local 210 or the Ontario Secondary School Teachers Federation (“OSSTF/FEESO”) in respect of employees who are now in the bargaining unit are hereby terminated.

38The Board appoints the Canadian Union of Public Employees (“CUPE/SCFP”) as the bargaining agent in respect of the aforementioned bargaining unit.

39The responding employer is directed to post copies of this decision where it is most likely to come to the attention of all employees who may be affected by it. These copies are to remain posted for 30 days.

40The Registrar will destroy the ballots cast in the representation vote following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of each 30 day period.

41If the OSSTF desires to pursue the allegations in Board File No.

0771-98-U, it should contact the Registrar to schedule the matter. This panel is not seized.

“Mary Ellen Cummings”

for the Board