Judicial recounts… lost ballot boxes… hanging chads: The exercise of democracy is rarely perfect. Given the complexity of organizing a vote, union democracy can encounter the same challenges. It is therefore important to consider what standards are expected in the voting process, especially when union members are voting on matters of significant importance such as a strike mandate.
The Canada Industrial Relations Board considered this issue in Re Chartellier,  C.I.R.B.D. No. 18. The decision is the first instance where the board ruled on the validity of a secret ballot strike vote based on alleged irregularities in the conduct of the vote. The board examined whether there were any irregularities in the conduct of the vote that would render the result invalid.
Re Chartellier involved an application by individual members of the union, the Canada Council of Teamsters, for a declaration that the union's strike vote was invalid. Under s. 87.3(4) of the Canada Labour Code, members of a union may apply to the board for the declaration; however, pursuant to s. 87.3(6) the board may summarily reject the application if it is satisfied that, even if the irregularities were proven, the result of the vote would not be different. The union members alleged that the manner in which the vote was conducted by the union prevented individuals from exercising their right to vote.
The union held two mail-in votes, each involving approximately 8,500 employees across Canada. Both votes were organized by a chartered accountants' firm. The first vote used an employee list provided by the employer, Purolator Courier Ltd. In that vote, the union membership voted to reject the employer's contract offer. The union issued its strike notice. On the strike deadline, a mediation session was held that resulted in a new offer from the employer that was put to a new vote by the union.
In the second vote, the union used its own membership list instead of relying on the employe's list as it had in the first vote. The same chartered accountants’ firm also organized the second mail-in vote.
The vast majority of union members had the opportunity to vote; however, the process was not without problems. Approximately 110 employees allegedly did not receive the ballot, and the applicants insisted that the membership list was incomplete and error-filled.
The union admitted that the membership list used for the second vote was "not perfect" and that some members were unable to vote. It insisted that the membership received ample opportunity to request a ballot if one had not been received, but some individuals waited too long before asking for one.
The board concluded that even if the irregularities had occurred and some employees were prevented from participating in the vote, the outcome would not have been any different. The result of the vote had shown a difference of 426 votes in favour of accepting the employer's revised offer (and rejecting the strike mandate). The applicants therefore failed to convince the board that the irregularities would have made such a difference so as to change the outcome of the vote.
It was important to the board that the union took reasonable steps to safeguard the integrity of the vote and that the resulting irregularities were not voluntary or intentional. The board's reasons suggest that unions should ensure that their membership lists used in votes are complete, the vast majority of members receive the ballot and sufficient time be provided to members to request a ballot, if necessary. Whenever possible, unions should use a neutral third party to organize the vote.
If the strike vote is challenged, the primary focus is on whether the irregularities would have affected the outcome of the vote. Therefore, evidence confirming the number of members affected and the impact is extremely important. A narrow vote will also be more susceptible to challenge.
Wide-scale votes will often experience problems. These challenges may, in fact, affect an individual member's ability to participate in the democratic process of his or her union. A standard of perfection is not required – so long as the "hanging chad" does not affect the outcome, votes will stand.
Craig Stehr practises labour and employment law at Nelligan O'Brien Payne LLP in Ottawa.
[This article is reprinted with permission and first appeared in the May 2009 issue of The Lawyers Weekly.]