The Ontario Labour Relation Board’s Decision in C.H.C.W. v. Stratford Shakespearean Festival Foundation of Canada, 2000 CarswellOnt 2637

BACKGROUND

An application for trade union certification was brought by Canadian Health Care Workers (hereinafter “CHCW”) to represent the employees of The Stratford Shakespearean Festival Foundation of Canada. These employees were, at the time represented by Service Employees International Union Local 220 (hereinafter “SEIU”), and subject to a collective agreement. As such, prior to CHCW’s application for certification during the collective agreement’s open period, CHCW for several months conducted an organizing campaign. On CHCW’s application, a differently constituted Board ordered a representation vote. The vote was eighteen (18) to nine (9) in favour of SEIU.

After the vote, it was made clear to the Labour Relations Officer who was taking the vote that CHCW intended to file an unfair labour practice (ULP) complaint with regard to SEIU’s organizing campaign conduct. The complaint was based on the foregoing allegations:

• numerous misrepresentation or falsehoods circulated by representatives regarding the operation of the CHCW;
• misinformation regarding the legal impact of the decertification of SEIU;
• misrepresentations and defamatory statements regarding the character of the CHCW leadership, such as the president of CHCW committed fraud; and
• SEIU intimidated employees at the CHCW meeting before the representative vote took place.

THE ONTARIO LABOUR RELATIONS BOARD’S DECISION

Decision of Patrick Kelly, Vice-Chair and Board Member D.A. Patterson:

To begin their analysis, the Board reinforced the general principle that employees are reasonable and sensible with the ability to make decisions in their own self interest, and therefore do not require intervention. Nevertheless, the Board, in their consideration, outlined the exceptions to this general rule. The exceptions include, not having “meaningful opportunity to reply and thus to impair the employees’ freedom of choice and thereby call into question the weight to be accorded to the results. It is not every unanswerable claim which will cause the Board to intervene. However, in those instances in which a claim is made, which is in fact false and which relates to a significant factor which would be involved in the voter’s final evaluation of the issue on which he is voting, and which the other party has not had adequate opportunity to dispute, the Board will act by ordering a new representation vote.” (page 8 citing Graduate Assistans’ Assn. v. McMaster University, [1979]OLRB Rep. 685 at para 11). Further, the Board may intervene when false allegations interfere with an employee`s ability to assess critically their options and therefore able to cast a representative vote But this usually does not include campaign propaganda which is misleading, exaggerated or false.

The Board noted that the approach described above has been taken previously where there are allegations of improper conduct, such as defamation. Specifically, relying on Flewelling v. U.S.W.A., [1984] O.L.R.B. Rep. 19 (Ont. L.R.B.) at p. 21:

the Board does not normally interfere with a vote preceded by propaganda which is speculative, exaggerated, mis-leading or even false. The board recognizes that in representation votes as in other electoral processes voters must be presumed capable of assessing critically the conflicting arguments often present by the interests which compete for their votes
…
We have no jurisdiction to award compensation for or punish publishers of defamatory statements. The jurisdiction lies elsewhere. Our concern is with a vote in which employees were asked to say whether they wished to continue to be represented by the respondent.

Further, the Board noted that there was a reasonable timeframe for CHCW to particularize the allegation, but failed to provide substantial information which the Board could rely.

Moving to the second issue, the Board considered whether the true wishes of the employees were so compromised that the vote was not representative. The Board assessed the alleged inflammatory statements made about CHCW leadership. The timing and the extent of the alleged conduct were of more concern to the Board than the conduct itself.  The Board found that CHCW had ample opportunity to call the attention of employees to the alleged defamatory statements and/or misrepresentations made by SEIU and rebut them before the representative vote.

With less than fifty (50) per cent of the employee’s ballots were cast in favour of CHCW and finding no exceptional reason to warrant intervention, the Board dismissed CHCW’s application for certification. The Board in accordance with the Ontario Labour Relations Act, 1995 S.O. 1995, c. 1, Sched. A (hereinafter the “Act”) held that they would not consider another application for certification by CHCW.
Opinion of Board Member J.A. Rundle:

Although Board Member Rundle agreed with Vice-Chair Kelly, she took the time to note that “[t]his is as ugly an inter-union cat fight as one can imagine.” (p. 11). Despite this characterization, she explained that the Board’s role in the application for certification process is a supervisory one and not as an arbiter of campaign fighting. The focus of the Board is to protecting the entitlements under the Act and not settling squabbles and in-fighting which does not interfere with these entitlements.

OUR THOUGHTS

The above ruling gives a clearer outline to the role of the Board in trade union certification. It is unlikely that any campaign conduct, even blatant misrepresentations, will induce the Board to intervene in an application for trade union certification. The Board generally will not involve themselves in the campaign process unless the behaviour is beyond egregious.

The Board places a large amount of confidence in an employee’s possession of all the faculties necessary to make a decision despite any campaign propaganda. Meaning, it is advisable for competing union organizing campaigns to take steps to combat any misconceptions or misrepresentations before the representative vote, rather than wait and hope for the Board to intervene retroactively.