Reasons for decision
Canadian Airport Workers Union,
applicant,
and
Garda Security Screening Inc.,
employer,
and
International Association of Machinists and Aerospace Workers,
bargaining agent.
Board File: 29406-C
Neutral Citation: 2012 CIRB 651
July 20, 2012
By letter dated May 3, 2012, the Canadian Airport Workers Union (the CAWU) again seeks to challenge the results of a representation vote conducted by the Canada Industrial Relations Board (the Board) in March 2012. The vote was conducted to allow the Board to determine whether employees of Garda Security Screening Inc. (Garda) in Toronto wished to be represented by the CAWU or by the International Association of Machinists and Aerospace Workers (IAMAW). The CAWU’s application has been referred to the Board, composed of Ms. Elizabeth MacPherson, Chairperson, and Messrs. Norman Rivard and David Olsen, Members, for determination. Having reviewed the written submissions of the parties, the Board is satisfied that the matter can be determined without an oral hearing and has exercised its discretion under section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) to decide the matter without an oral hearing.
Counsel of Record
Mr. Michael A. Church for the CAWU;
Mr. Michel A. Brisebois for Garda;
Mr. Elichai Shaffir for the IAMAW.
I–Background
[1] On February 23, 2009, the Board certified the CAWU to represent some 1650 Garda employees providing pre-board security screening services under contract to the Canadian Air Transport Security Authority at the Lester B. Pearson International Airport, the Billy Bishop Toronto City Airport and the Buttonville Airport in Ontario (Board order no. 9607-U). The CAWU had won the right to represent this bargaining unit by defeating the incumbent Teamsters Local Union 847 in a representation vote.
[2] In January 2012, the IAMAW filed a timely application for certification, seeking to displace the CAWU as the bargaining agent for this unit. The CAWU raised a number of objections to the IAMAW’s application, which were dealt with by the Board in Garda Security Screening Inc., 2012 CIRB LD 2733 (LD 2733). Pursuant to its powers under section 29(1) of the Code, the Board ordered that a representation vote be conducted by means of electronic voting. The vote was conducted between March 7 and 13, 2012 and the result favoured the IAMAW. An order revoking Board order no. 9607-U and certifying the IAMAW as the bargaining agent for this unit was issued on March 14, 2012 (Board order no. 10233-U).
[3] Following the release of the vote results, the CAWU requested a number of documents from the Board. That request was dealt with in a decision issued on April 25, 2012, Garda Security Screening Inc., 2012 CIRB LD 2785 (LD 2785).
[4] The CAWU now asks the Board to reconsider LD 2785 and raises new allegations regarding an earlier proceeding and the conduct of the electronic representation vote.
II–Positions of the Parties
A–The CAWU
[5] The CAWU suggests that it has recently discovered evidence that could not have been brought to the attention of the Board earlier that, had it been known to the Board, would have caused the Board to arrive at a different conclusion regarding the IAMAW’s application for certification. It further alleges that the Board made errors of law and policy in its original decision (LD 2733) and in LD 2785, and that the original panel failed to respect a principle of natural justice.
[6] The CAWU continues to request that the Board provide it with a list of the names of the individual members of the bargaining unit who voted in the representation vote. It contends that it requires this information in order to investigate whether the employees who were eligible to vote were the individuals who actually voted. It suggests that it has provided the Board with evidence that, in some cases, it was not the eligible voter who attempted to cast a ballot. The CAWU contends that the use of electronic voting makes it difficult for the incumbent union to ensure that it is the eligible voters who actually cast the ballot, and implies that there was voter fraud. The CAWU contends that the Board erred in law and policy when it refused to provide the CAWU with the list of employees who voted.
[7] The CAWU reiterates concerns it had raised previously regarding the membership evidence submitted by the IAMAW with its application for certification, and alleges that at least 70 people had not paid the sign-up fee required under the Canada Industrial Relations Board Regulations, 2001 (the Regulations). The CAWU makes new allegations of wrongdoing by IAMAW organizers and the employer during the IAMAW’s organizing campaign. It alleges that there was a close relationship between Garda and the IAMAW during the run-up to the vote, and that evidence given by an employer witness during hearings held by the Board with respect to an earlier unfair labour practice complaint (Board file nos. 29017-C and 29035-C, reasons for decision in Garda Security Screening Inc., 2012 CIRB 620 (RD 620)) was not truthful and was inaccurate and misleading. As a result, it alleges that the CAWU has been severely prejudiced and subjected to a violation of the principles of natural justice.
B–The IAMAW
[8] The IAMAW submits that the CAWU’s application is simply another effort to obtain reconsideration of the Board’s original decision to conduct a representation vote, an effort that has already been dismissed by the Board in Garda Security Screening Inc., 2012 CIRB LD 2748 (LD 2748), issued on March 12, 2012. The IAMAW argues that the Board does not, as a matter of practice and policy, entertain multiple applications for reconsideration (see Air Canada, 2004 CIRB 305), and the CAWU’s most recent application should be dismissed on that ground alone.
[9] The IAMAW also submits that there are no grounds on which to reverse the Board’s decision in LD 2785, and that to do so would undermine the important labour relations principle regarding the need for finality of Board decisions. It points out that the application for reconsideration was filed almost two months after the IAMAW’s certification order was issued. In that time, stability has been restored in the workplace. The IAMAW argues that no labour relations purpose would be served by undermining the progress that has been made.
C–Garda
[10] The employer argues that the CAWU’s reconsideration request should be summarily dismissed for two reasons. First, the employer points out that the application is untimely, as it was filed more than 21 days after LD 2733, in which the Board ordered that a vote be conducted. Second, the application amounts to a second request for reconsideration of the same decision, and raises essentially the same issues that the Board dealt with in LD 2748 and LD 2785. Like the IAMAW, Garda reminds the Board that, as a matter of policy, the Board does not entertain multiple applications for reconsideration of its decisions.
III–Analysis and Decision
[11] There are a number of aspects to the CAWU’s most recent request for reconsideration. The first deals with the Board’s decision to conduct a representation vote (LD 2733). Secondly, the CAWU suggests that the evidence of a witness in an earlier Board proceeding was not truthful. Lastly, the CAWU raises new allegations about events that it claims occurred during the conduct of the vote.
A–The Decision to Conduct a Representation Vote
[12] The Board has ruled previously on the CAWU’s allegations regarding the sufficiency and veracity of the membership evidence that resulted in the Board’s decision to order a representation vote (see LD 2733 and LD 2748). All of the CAWU’s allegations were carefully examined and considered by the Board at the time those decisions were made. The CAWU provided no evidence to support its allegations, either at the time it initially challenged the decision or more recently. Simply repeating its original allegations and speculations does not satisfy the CAWU’s evidentiary burden.
[13] It should also be pointed out that the Code provides the Board with broad powers regarding the conduct of representation votes. Section 29(1) of the Code reads as follows:
29.(1) The Board may, in any case, for the purpose of satisfying itself as to whether employees in a unit wish to have a particular trade union represent them as their bargaining agent, order that a representation vote be taken among the employees in the unit.
(emphasis added)
[14] As the Board has already considered and dismissed the CAWU’s various allegations concerning the evidence that lead to its decision to hold a representation vote, the matter is res judicata. Accordingly, this portion of the application is dismissed.
B–Testimony in Board File Nos. 29017-C and 29035-C
[15] The CAWU alleges that it was severely prejudiced by untruthful, inaccurate and misleading testimony given by employer witnesses during a hearing held by the Board in respect of a number of unfair labour practice complaints that the CAWU filed against Garda in October 2011. In those complaints, the CAWU alleged that Garda was providing IAMAW representatives with privileged access to the employees, in an effort to aid the latter’s organizing efforts. Hearings were held on December 22 and 23, 2011, and an interim order was issued on December 28, 2011.
[16] The CAWU now suggests that the employer’s witnesses were not truthful or accurate when they stated that they did not know or were not involved with the IAMAW officials who were instrumental in the organizing campaign, and as to how and when one of the IAMAW organizers obtained an employee list from the employer. It suggests that the evidence that the employer provided to the Board was, at the least, misleading with respect to the nature of the relationship between Garda and the IAMAW, and that this constitutes a violation of the principles of natural justice.
[17] During the hearing of the unfair labour practice complaints, the CAWU had every opportunity to test the credibility of the witnesses called by the employer through cross-examination. Following the hearing, the Board found the employer guilty of contravening section 94(1) of the Code (employer interference in the administration of a trade union or the representation of employees by a trade union) and issued appropriate orders to remedy this contravention (RD 620). Neither party sought reconsideration or judicial review of the Board’s decision.
[18] The CAWU has failed to file any affidavits or other evidence to support its most recent allegations regarding the December 2011 hearings. In the Board’s view, the CAWU’s allegations are both unsubstantiated and untimely and do not constitute adequate grounds on which to revisit the decisions contained in RD 620, LD 2733 or LD 2748.
C –The Conduct of the Representation Vote
[19] The integrity and credibility of the voting process is of primary importance to the Board and the labour-management community, as Board decisions based on the results of such votes have considerable implications for employers, employees and bargaining agents. Accordingly, the Board takes allegations of voting irregularities very seriously.
[20] In this case, the CAWU suggests that the use of electronic voting makes it difficult for the incumbent union to ensure that it is the eligible voters who actually cast the ballots. It claims that it provided the Board with “specific evidence” that, in some cases, it was not the eligible voter who attempted to cast the ballot, and argues that it requires the names of those who voted in order to conduct its own investigation.
[21] However, contrary to the CAWU’s claims, it has never provided the Board with specific evidence of voter fraud. In a letter to the Board’s Regional Director for Ontario dated April 5, 2012, the CAWU stated:
We have been provided with at least one example of an employee who had another employee vote on her behalf.
[22] No further specifics were provided to support this assertion. On April 11, 2012, the Board’s Regional Director advised the CAWU that, without further specifics, she was unable to address the CAWU’s submissions. Despite being given the opportunity to do so, the CAWU did not provide the Board with any evidence to support this allegation.
[23] Ordinarily, the Board would not give any further credence to claims based on mere speculation and innuendo. However, given that the Board’s introduction of electronic voting technology is relatively recent, the importance that the Board attaches to the integrity of the voting process, and the fact that this is the first complaint alleging a problem with the use of the technology, the Board has conducted its own in-depth review of the electronic process that was used in this case.
[24] As is customary, the Board’s Regional Director reviewed the process with the parties prior to the conduct of the vote. All parties were provided with the list of eligible voters prior to the commencement of the vote. An important part of the process involves issuing a personal identification number (PIN) to eligible voters, which allows them to vote using the telephone or Internet. Each PIN can only be used to vote once. Fifty-seven (57) PINs were disabled prior to the start of the vote on March 7, 2012, as the parties had agreed that these employees were not eligible to vote. The parties were invited to send representatives to the Board’s offices to view the start of the vote and the Board’s auditing activities, and the CAWU was represented by Mr. Artan Milaj. No concerns were raised regarding the voting process at that time.
[25] The Board’s Regional Director was in daily contact with the Intelivote Systems Inc. call centre during the voting period. At no time did the call centre receive any calls from anyone alleging that they had tried to vote but were unable to do so because their PIN had been used by someone else. The call centre did receive four calls in which the caller claimed that the CAWU was asking people for their PINs and/or forcing people to vote in the presence of a CAWU representative. The Board’s Regional Director followed up with these callers, who were unable to provide any specifics to support their allegations. The callers were requested to advise anyone who had been subjected to pressure of this nature to call the Board’s Regional Director in confidence. No such calls were received.
[26] Immediately following the counting of the vote on March 13, 2012, all parties, including the CAWU, were provided with the Board’s Certificate of Result of Vote, the Scrutineers’ Certificate, the Vote Count Detail, an Event Summary and the Intelivote Officer Summary and Attestation. No concerns were raised regarding the conduct of the vote at that time.
[27] Following its investigation, the Board is satisfied that the electronic voting process presents no greater issues than does a regular mail ballot. While there is nothing to prevent an eligible voter from giving their PIN number to another individual, and thus allowing that individual to vote on their behalf, this is no different than a proxy vote and may explain the CAWU’s allegation that an employee had another employee vote on her behalf.
[28] In order to prevent any future attempts to compromise the integrity of the electronic voting system, the Board declines to provide full details of all of the safeguards that are in place to prevent voter fraud in its electronic votes. However, having conducted a thorough investigation of its own, the Board is satisfied that appropriate safeguards are in place to ensure that only those who are eligible to vote are provided with the opportunity to do so and concludes that there is no merit to the CAWU’s allegations regarding the conduct of the vote. In the future, the Board will require actual evidence of voter fraud, rather than mere speculation or unfounded allegations, before it will engage in the extensive, in-depth investigation that it conducted in response to the instant application.
[29] For all of these reasons, the CAWU’s application for reconsideration of the representation vote that resulted in the certification of the IAMAW is dismissed.
[30] This is a unanimous decision of the Board.