Ontario Public Service Employees Union v. The Board of Education for the City of Toronto, 1983 CanLII 843

[1983] OLRB Rep. July 1229

1803-82-R Ontario Public Service Employees Union, Applicant, v. The Board of Education for the City of Toronto, Respondent, v. The Federation of Women Teachers Associations of Ontario, Intervener #1, v. Ontario Secondary School Teachers' Federation District 15, Intervener #2, v. Canadian Union of Public Employees, Intervener #3, v. Ontario Public School Teachers' Federation, Intervener #4, v. Group of Employees, Objectors.

Before: R. D. Howe, Vice-Chairman and Board Member S. Cooke.

APPEARANCES: Chris G. Paliare and Barbara Linds for the applicant; Craig Slater and Susan Cook for the respondent, no one appearing fir the interveners; Elsa Dunn, Donna M. Aberle, Elaine Lichtenberg, Helen Lumb and Jane Leduc for the objectors.

DECISION OF THE R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER S. COOKE; July 22, 1983

1. In a decision dated February 14, [1983] OLRB Rep. Feb. 273 in this application for certification, another panel of the Board chaired by the present Vice-Chairman found the following to constitute units of employees of the respondent appropriate for collective bargaining:

all occasional teachers employed by the respondent in its elementary panel in the City of Toronto, save and except persons covered by subsisting collective agreements ("bargaining unit #1");

all occasional teachers employed by the respondent in its secondary panel in the City of Toronto, save and except persons covered by subsisting collective agreements ("bargaining unit #2").

2. In that unanimous decision, the Board also decided that its usual "thirty day rule" should be applied to determine the number of employees in the bargaining units at the time the application was made, and directed the respondent to file (amended) employee lists containing the information necessary for the application of that rule. Thereafter, the Board appointed Labour Relations Officer V. Robeson to confer with the parties with respect to the amended lists of employees filed by the respondent and to report to the Board thereon.

3. Following meetings on April 6, 13, 27, May 4, and May 17, Ms. Robeson reported to the Board the results of the record checks that she had performed in respect of the applicant's 321 challenges to the amended lists. She also reported that at the May 17, 1983 meeting, representatives of the applicant, the respondent, and the objectors agreed that the continuation of hearing scheduled for May 27, 1983 in this matter would not be necessary, and consented to the Board issuing a decision without a hearing.

4. In a decision dated May 25, 1983, the aforementioned panel of the Board directed that a representation vote be taken of the employees of the respondent in bargaining unit #l, and certified the applicant in respect of bargaining unit #2. Pursuant to that direction, a representation vote was taken on June 9, 1983 in which 87 ballots were marked in favour of the applicant, 54 ballots were marked against the applicant, and 19 ballots were segregated and not counted. (There was also one spoiled ballot.

5. Following the taking of that representation vote, seven persons filed statements of desire to make representations relating to the vote, in accordance with section 70)1) of the Board's Rules of Procedure. Accordingly, a hearing was held on July 13:1983 by the present panel of the Board for the purpose of hearing the evidence and submissions of the parties with respect to the representation vote and all other matters arising out of and incidental to this application.

6. At that hearing, the four objectors who testified before the Board raised a number of concerns about the representation vote. Central to their objections was the fact that, through a clerical error, the "place" of the vote indicated on the Board's (Form 69) Notice of Taking of Vote was "Room 104, Faculty of Education. University of Toronto), 317 Bloor Street West, TORONTO, Ontario, whereas the actual street address at which the vote was taken was 371 Bloor Street West. The Board and its staff sincerely regret any inconvenience which may have been occasioned by that clerical error. However, after carefully considering the objectors' evidence and representations concerning that matter, the Board is not persuaded that the inversion of those two numbers in the address has created a situation in which it is necessary or appropriate for the Board to set aside the representation vote and direct that another vote be taken. None of the four witnesses who testified before us was prevented or dissuaded from voting by that clerical error. One of them "had no difficulty voting" because she had attended courses at the Faculty of Education. She testified that two persons called her after the vote to complain about the address being incorrect. However, those persons did not testify before the Board and we are not prepared to give any weight to that hearsay evidence in the circumstances of this case, as to do 50) would be to deprive the applicant of any opportunity to test the validity of that evidence through cross‑examination. Another of the witnesses went to 317 Bloor Street West and was directed to the proper address after inquiring about the vote at that location. The third witness was the objectors' scrutineer at the vote. She had no difficulty locating the polling place because she "phoned the Faculty of Education before the vote to find out exactly where it was". The final witness also had no difficulty locating the polling place because she too had taken courses there. Thus, there is no cogent evidence that the inverted numbers in the street address prevented anyone from voting at the polling place, which was open from 8:00 a.m. to 8:00 p.m. on the day of the vote. As noted by counsel for the applicant, the bargaining unit consists of intelligent, highly educated individuals who would certainly have the wherewithal to ascertain the correct location by telephoning the Board, the applicant or the respondent, or by making inquiries at the address indicated on the Notice. Moreover, it is reasonable to infer that a number of the persons in the bargaining unit would be familiar with the location of the vote as a result of having taken courses at the "Faculty of Education", as had two of the four witnesses who testified before us.

7. The objectors also contended that the voters list did not include the name of every person who teaches in the respondent's elementary panel as an occasional teacher. After devoting substantial time and effort to resolving the numerous challenges to the employer's (amended) list of employees in the bargaining unit on the date of the application, and with a view to facilitating the taking of a vote before the end of the 1982-83 academic year, the parties, including a representative of the objectors, agreed on May 17, 1983 that the revised employer's list which had emerged from that process would be used as the voters' list, on the understanding that any other occasional teachers who wished to vote would be permitted to cast segregated ballots, with their eligibility to vote being determined at a later date, if necessary. Accordingly, the Board's vote direction, as set forth in the aforementioned decision dated May 25, 1983 and in the (Form 69) Notice of Taking of Vote, indicated that all occasional teachers employed by the respondent in its elementary panel in the City of Toronto on May 17, 1983, (the date of the voters list would be eligible to vote, with the exception of any such teachers who voluntarily terminated their employment or were discharged for cause between May 17, 1983 and the date the vote was taken. That Notice was posted at each of the respondent's elementary schools (and was also mailed to each person on the voters' list). One of the objectors testified that some persons were offended by the fact that their votes were segregated. The Board has a longstanding practice of segregating ballots cast by persons whose eligibility to vote is disputed by a party. Each person is instructed by Board's Returning Officer to place his or her ballot inside a white envelope on which is printed "SECRET BALLOT") and to seal the white envelope. The sealed white envelope is then placed inside a brown envelope. The brown envelope is then sealed and the name of the person whose secret ballot it contains is written on the outside of the brown envelope so that the secret ballot can be distinguished from other secret ballots by the Returning Officer. Those segregated ballots remain in the custody of the Returning Officer and the Board. Where the Board rules that some or all of the segregated ballots are to be counted, the Returning Officer removes from the brown envelopes the white envelopes containing the ballots which are to be counted and discards the brown envelopes. The Returning Officer then opens the white envelopes, removes the ballots, mixes them and counts them in a manner which maintains the secrecy of all such ballots. In the event that a segregated ballot is not counted, it is destroyed by the Board. There is no evidence that there was any material departure from that usual practice in the present case. The use of segregated ballots is virtually inevitable in a bargaining unit of this size and scope, and would in all probability have been more extensive in the present case but for the aforementioned agreement concerning the voters' list. Thus, the segregation of 19 of the 161 ballots cast in the representation vote does not constitute a legitimate basis for setting aside that vote.

8. The objectors also expressed dissatisfaction with the application of the Board's "thirty day rule" in the circumstances of this case. However, as indicated above, that rule was found to be applicable for the detailed reasons set forth in the (February 14, 1983) unanimous decision issued by the aforementioned panel of the Board after hearing and considering the submissions of the parties, including the submissions of counsel for one of the objectors who attended at that hearing. Moreover, the application of that rule did not preclude other persons who felt that they should be entitled to cast a ballot in the representation vote, from doing so.

9. Some of the objectors also alleged that the applicant had contravened the Registrar's direction that all interested persons "refrain and desist from propaganda and electioneering" from midnight of Sunday, June 5, 1983, until the taking of the vote. However, there was no cogent evidence adduced before the Board in support of those allegations.

10. Having carefully considered all of the evidence and the submissions of the parties, the Board is satisfied that none of the matters of which the objectors complain would prevent the true wishes of the employees in the bargaining unit from being freely indicated in the representation vote. Accordingly, the Board, in the exercise of its discretion under 103(5) of the Act, declines to direct that a further representation vote be taken.

11. As indicated above, on the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant. (Since the segregated ballots would not affect that result even if all of them were marked against the applicant, it is unnecessary to determine whether or not the persons who cast segregated ballots were eligible to vote.)

12. A certificate will issue to the applicant in respect of bargaining unit #I.

13. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of thirty days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such thirty day period.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. I associate myself with the majority of the panel with respect to the comments intended to allay concerns over the practice of segregating disputed ballots and the assurance of confidentiality which the Board practice assures. Nor can I disagree with the conclusion to apply the "30-30" rule in this rather unusual case. An alternative might have been to apply the construction industry rule which makes eligible only those persons at work on a specific date determined by the Board and I presume this would have been even less satisfactory or understandable to the objectors.

2. However, the uniqueness of the situation, particularly in terms of the difficulties which the various interested parties apart from the respondent employer would have in establishing contact with the affected employees, leads me to feel that in ordering a vote it is incumbent upon us to make every possible effort to ensure that persons eligible to vote are indeed aware of their eligibility, aware of the time and place of voting and able to inform themselves or be informed of the views of the various parties.

3. In these circumstances any irregularity, including the improper address of the voting location on Form 69, takes on heightened importance in my view.

4. While there is some arguable question as to the actual size of the proper voting constituency, it is clear that by any reasonable measurement these "occasional teachers" would number in the hundreds and that the total ballots cast represented a fraction of the constituency which would be too small in my view to have given confidence that the voting result was a fair indication of the wishes of the majority. I am reinforced in this belief through evidence that the applicant had a clear advantage over the objectors and other interveners in making contact with eligible voters.

5. I would have ordered a new vote with the expectation that a larger turnout of voters would have yielded a more credible result.