0954-01-R United Steelworkers of America, Applicant v. Stellarc Precision Bar Inc., Responding Party.

BEFORE: Brian McLean, Vice-Chair

DECISION OF THE BOARD; August 3, 2001

1. This is an application for certification.

2. By decision dated July 3, 2001 the Board directed that a representation vote be held. The vote took place on July 5 and 6, 2001.

3. Although there were disputes regarding the status of employees to cast ballots, those issues have been resolved by the parties.

4. There is one issue remaining to be decided. The employer asserts that the Board ought to order a second representation vote because, in its view, the vote results are “tainted” and raise questions as to the reliability of the final result. The employer relies on the fact, that following the representation vote, the Labour Relations Officer who supervised the vote, asked the employer scrutineer to leave the room so that the Officer could discuss segregated ballots with the union scrutineer in an effort to resolve the issues which were then outstanding. The employer left the room. In doing so he left the union scrutineer and the Officer in the room with the then, unsealed, ballot box. The employer was out of the room for approximately seven minutes. The ballot box was then sealed. These facts are not disputed by the union.

5. The employer makes the following argument which is taken verbatim from its submission:

The respondent does not, and cannot, make any direct allegation of impropriety by the Board Officer. However, what is known and indisputable is that a representative of the respondent employer was asked to leave the room and did so, immediately, without the ballot box being sealed and with the applicant's business agent still being in the room.

The Ontario Labour Relations Board, through the Labour Relations Act, is mandated to process and conduct certification applications in an expeditious manner and is required by law to do so through a "quick vote" process. This process, presumably, is the most expeditious manner and method by which the true wishes of employees will be ascertained.

Having regard to the statutory nature of the vote process, and to the essential reliance on the unfettered wishes of employees, it is submitted that any process which results in an unsealed ballot box being left in the presence of one interested party is inherently flawed.

Neither the applicant nor the respondent in a certification application should be permitted to remain in the room with an unsealed ballot box even in the presence of a Board Officer.

It should be clear that there is no suggestion of impropriety by the Board Officer. None the less, the very fact that one interested party was permitted to remain in the room with an unsealed ballot box in the absence of the other raises substantial procedural concerns which, in these circumstances, ought to result in a setting aside of the existing vote and the ordering by the Board of a new vote.

In these circumstances, the defect in the process is substantive. It is not merely a matter of the rights of the parties, but the perception of the rights of the parties which, in the respondents' submission, is sufficient to require the holding of a new representation vote.

6. The union resists the employer’s request. It requests that the Board dismiss the employer’s objection because it does not disclose a prima facie case ground for the relief claimed.

Decision

7. The purpose of a secret ballot vote is to ascertain the true wishes of the employees regarding representation by the applicant. The Board has safeguards to ensure the integrity of the process, including blinds where employees can cast their ballots in secret, a ballot box, and scrutineers for each party. In addition the Board uses different coloured ballots for each representation vote and “stamps” each ballot as it is handed to each voter. In order for a party to “stuff” a ballot box, which is the concern advanced indirectly by the employer, a party would have to either steal ballots from the Officer at the vote and then stamp them or guess at the colour of ballots to be used at that vote and forge a Labour Board stamp on them. Clearly, it is unlikely that anyone would ever be successful at such a ploy even in the absence of the Labour Relations Officer.

8. Of fundamental importance to safeguarding the integrity of the process is the Board’s Labour Relations Officer. The Officer’s presence, along with the safeguards mentioned, guarantees that no one can tamper with the process. In this case, had the union’s official (or anyone else) been left alone with the ballot box the outcome might (or might not) be different. But that is not the case here. The Officer was with the union scrutineer at all times, thereby ensuring that there was no impropriety. In order for the Board to have any concern about the situation in this case, there would have to be an allegation made about the conduct of the Board’s Labour Relations Officer. Such allegations are not being made.

9. In absence of allegations against the Board’s Labour Relations Officer, the employer’s objections must be dismissed. The presence of the Officer guaranteed the integrity of the process and satisfies the Board that the ballots cast reflect the true wishes of the employees.

10. Accordingly, the hearings scheduled for August 7 and 8, 2001 are hereby cancelled.

11. A decision certifying the trade union will follow.

“Brian McLean”

for the Board