4861-97-R Labourers’ International Union of North America, Local 183, Applicant v. Mason Homes Limited, Responding Party.
0248-98-U Labourers’ International Union of North America, Local 183, Applicant v. Mason Homes Limited, Responding Party.
0078-99-U Labourers’ International Union of North America, Local 183 and Hugh Peddle, Applicant v. Mason Homes Limited and Gordon Mason, Responding Parties.
BEFORE: D. L. Gee, Vice-Chair, and Board Members J. Knight and G. McMenemy.
DECISION OF THE BOARD; February 1, 2000
1By decisions dated November 3 and December 10, 1999, the Board directed the filing of submissions on how the Board ought to proceed in light of the Board’s determination that Mr. Ashton was an employee in the bargaining unit. In addition, the applicant was directed to respond to the responding party’s position that Board File No. 0078-99-U ought to be dismissed on the basis that it did not make out a prima facie case. Such submissions have now been filed with the Board.
2Having reviewed the submissions, it is the panel’s determination that Mr. Ashton’s ballot cannot be counted. Rather, a further representation vote must be conducted. The counting of Mr. Ashton’s ballot would reveal how he voted. As the following quote from Megatech Electrical Ltd., [1999] OLRB Rep. March/April 257 indicates, when faced with the prospect of counting a single ballot and thereby revealing how the individual who cast the ballot voted, the Board has, in virtually all instances, ordered the conduct of a further representation vote:
The scheme of the Act requires the Board to conduct a representation vote, in order to determine the wishes of employees in the bargaining unit with respect to trade union representation. The Act envisages a secret ballot vote, and specifically protects the secrecy of employee choices (see section 119). However, the counting of Mr. Quackenbush's ballot would, in the circumstances of this case, reveal how Mr. Quackenbush voted. So, what to do?
The Board, when faced with a similar situation in Empco Fab Ltd., [1980] OLRB Rep. Oct. 1391, directed that another representation vote be taken in order to preserve the confidentiality of the wishes of the individual in question. The Board noted in that case at paragraph 6:
All employees who participate in a representation election are entitled to a secret ballot vote. The parties before this Board know that when they agree to count the ballots in circumstances such as those in the instant case they run the risk of the Board directing another representation vote in order to protect the secrecy of the wishes of the employees who cast segregated ballots. See Corporation of the Township of Chinguacousy, [1973] OLRB Rep. July 380 and Super City Discount Foods Limited et al, [1971] OLRB Rep. March 175.
Similarly, in Daheim Nursing Home Limited, [1980] OLRB Rep. Nov. 1639, the Board stated at paragraph 4:
Strong feelings for or against are not uncommon when a union seeks to be certified as the bargaining agent in a particular work place. No matter which way their sympathies may lie the disclosure of the wishes of individual employees during the certification process can subject them to pressure and recrimination at the hands of their employer and to ostracism at the hands of their fellow employees. That is why the right of confidential selection must remain paramount in the certification process whether it be through the secret ballot or through the confidentiality of membership evidence and statements of employee opposition filed with the Board, expressly protected by section 100(1) [now 119] of The Labour Relations Act. That right must be jealously safeguarded if employees, employers and unions are to retain confidence in the certification process administered by this Board.
To the same effect, see: Omstead Foods Ltd., [1987] OLRB Rep. Feb. 264; The Brick Warehouse Corporation, [1996] OLRB Rep. Dec. 921 and Metric Contracting Service Corporation, [1996] OLRB Rep. Nov. 996.
- When faced with this situation, the Board has virtually always exercised its discretion under section 111(5) to hold a further representation vote. And in my view, that is the result which should obtain in this case.
3The panel has further determined that the application in Board File No. 0078-99-U does make out a prima facie case and accordingly the responding party’s request to have it dismissed is hereby denied.
4In the event the applicant is successful in either or both of Board File No. 0248-98-U or Board File No. 0078-99-U, it is possible that the applicant may be awarded remedial relief that is appropriately obtained prior to the conduct of a second representation vote. It is also appropriate for a determination to be made with respect to the responding party’s request to add two names to the voters list prior to the conduct of a second representation vote.
5Accordingly, the Board directs as follows:
(1) The responding party is directed to file submissions with the Board in support of its argument that it should be permitted to add names to the voters list after the vote has been conducted no later than February 29, 2000. For the sake of clarity, the Board only wants submissions on the issue of whether the responding party should be permitted to add names to the list and does not want submissions on what the two individuals in question were doing on the date of application. Submissions and evidence with respect to what the two individuals were doing on the date of application would only be entertained by the Board if the Board determined that the responding party was able to add their names to the voters list. The applicant is directed to file its submissions in response with the Board no later than March 31, 2000. The responding party is directed to file its reply submissions, if any, no later than April 14, 2000.
(2) The Registrar of the Board is hereby directed to list all three of these Board Files for hearing on May 29, June 28 and 30, 2000 at which time the Board will hear the parties evidence and submissions on all issues remaining in dispute at that time. The hearing will commence at 9:30 a.m. each day and will take place at the Board’s offices located at 505 University Ave., 2nd floor, Toronto, Ontario.
6This panel is seized.
“D. L. Gee”
for the Board