In Jim Pattison Industries Ltd., operating under the firm name of Jim Pattison Toyota, BCLRB No. B140/2000, the Employer applied under Section 60(2) seeking to have IWA, Local 1-3567′s pre-strike vote set aside. The Union’s Returning Officer had permitted four employees to vote at times and/or places other than those provided for in the notice of poll and had refused to permit three employees to vote based on his belief that they were outside of the bargaining unit. When other employees expressed concern that Steve Young, one of three who had been turned away by the Returning Officer, ought to have been permitted to vote, the Vice-President of the Union surveyed the employees present to determine how Young might have voted and then cast a “no” vote on behalf of Young. The result of the vote was 19 in favour of a strike mandate and 10 opposed. The Board ruled that the Returning Officer had breached the Regulation in allowing the four advance ballots to be cast. An advance poll maybe set, but it must comply with the Regulation. The Officer also erred in refusing to permit the three employees to vote. Regulation 13(2)(e) does not permit a union-appointed returning officer to determine questions of eligibility, but merely to resolve eligibility disputes in the sense of settling or solving them for the time being, whether by double sealing or other means. Even if proxy votes were permissible in the Section 60 context, the vote cast on behalf of Young was not authorized by Young and neither the Vice-president nor the Returning Officer was operating under a bona fide belief that authorization had been given. The public survey conducted to determine how Young might have voted was not only fundamentally inconsistent with voter privacy and secret balloting, it was seriously destructive of the solemnity of the voting process. Further, the Union had filed with the Board a Return of Poll signed and certified by the Returning Officer. One of the ballots there recorded as issued and returned was the “proxy” vote, notwithstanding that the ballot in question was not issued to Young nor any other employee. The Board held that the conduct of a pre-strike vote can be sufficiently problematic that it should be set aside notwithstanding that the majority outcome remains a matter of mathematical certainty. A vote may be cancelled simply for its lack of integrity and inconsistency with the principles of the Code or policies of the Board. In particular, where the integrity of the voting process is thrown into question to the extent that it cannot be said that the vote taken is, on the whole, capable of fulfilling the policy purposes underlying Section 60(1), it may be set aside on that basis. The panel declined to apply Section 156 to relieve the Union from the irregularities. In the circumstances of the case, the cumulative effect of all of the flaws identified in the vote is such that it would be inconsistent with the Code to regularize and uphold the vote under Regulation 20. The Employer’s application was allowed, the vote was declared invalid for purposes of Section 60(1) and strike notice served pursuant to the vote were declared null and void.
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