[1983] OLRB Rep. October 1651
0754-83-R Hotel Employees Restaurant Employees Union, Local 75, Applicant, v. 470469 Ontario Limited, c.o.b. as Golden Griddle Restaurant, Respondent, v. Group of Employees, Objectors.
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members L. C. Collins and J. A. Ronson.
DECISION OF THE BOARD; October 20, 1983
- By decision dated August 10, 1983, the Board directed a representation vote of all employees of the respondent at its Golden Griddle Restaurant, 45 Carlton Street in the Municipality of Metropolitan Toronto, save and except supervisors, those above the rank of supervisor, office staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period. The Hotel Employees, Restaurant Employees Union, Local 75 (the "union") won this election. However, 470469 Ontario Limited (the "employer") contends that ballots were cast by four people who were not entitled to vote. The employer asks that the election be set aside and another vote conducted. At a meeting with a Labour Relations Officer, held on August 5th, the parties agreed to a voters' list. The four people in dispute were not included on the list. The parties agreed not to include Paul Michalik and Collin Walker. Irene Gantner and K. Ng were not discussed at this time, apparently because they were not employed until after the application for certification was filed. After the parties signed the list, the following notation was added by the Board:
Any employee whose name does not appear on the voters' list or challenged voter who feels that he or she is entitled to vote should take this matter up with the returning officer during the vote.
The voters' list was subsequently posted at the work place.
(emphasis added)
- On the day of the election, the four people in question approached the returning officer and asked to cast ballots. The ballots they cast were initially segregated. A subsequent investigation of their work records disclosed that they all worked more than twenty-four hours per week. The parties then executed a waiver document — Delaine Foster, a law student signed it on behalf of the employer — agreeing that the four persons in question were eligible to vote:
WE the undersigned hereby consent to an immediate counting of the ballots cast at the representation vote directed by the Board and held on August 25, 1983.
WE the undersigned hereby agree that the following persons:
Paul Michalik, Collin Walker, Irene Gantner, K. Ng.
are eligible for inclusion in the bargaining unit and that their ballots should be counted;
AND WE hereby waive any objections as to the regularity and sufficiency of the balloting.
At this point, the segregated ballots were mixed with the rest and the vote was counted.
Putting the voters' list and waiver document to one side, the parties are now agreed that three of the employees in question were eligible to vote because they were employed for more than 24 hours per week, and that Walker was not entitled to vote because he was a student employed during the school vacation period. Apparently, no one on the day of the vote adverted to even the possibility that Walker might be a student.
The employer argues that the voters' list was "frozen" on August 5th and was thereafter subject to alteration only to delete employees who quit or were discharged before the election. In the alternative, counsel suggested that only persons not consciously omitted from the list by agreement of the parties could be added. Finally, and again in the alternative, counsel argued that Walker's vote should be disregarded because he was not a member of the bargaining unit. Counsel for the union contends the Board should not look behind the waiver agreement. Turning to the agreed voters' list, counsel claims that although it is binding upon the parties to it, this list cannot bind the Board or employees.
We do not accept the employer's contentions that the voters' list agreed to on August 5th could not be expanded, or alternatively, could not be enlarged by adding persons consciously excluded at the outset. This line of argument ignores the method by which voters were added to the original list on the day of the election — by mutual consent of the parties in the form of the waiver. As a general rule, an agreement between union and employer, made on election day, overrides an earlier agreement between the same two parties.
In other words, the August 5th agreement was superceded by the waiver, unless it was defective. As Michalik, Gartner and Ng were entitled to vote, by virtue of being members of the bargaining unit, the waiver was not deficient with respect to them. That leaves Walker who was not a member of the bargaining unit; was the waiver defective insofar as it applied to him?
A general policy of enforcing waivers serves the purpose of finality. From the moment a waiver is executed, the parties are assured that the result of the vote will not be overturned. A union that wins an election is quickly granted a certificate and so is able to immediately call management to the bargaining table. In the converse situation, an application for certification is promptly dismissed, freeing an employer to deal directly with the work force. Whatever the outcome, the parties can conduct their affairs accordingly, secure in the knowledge that any expectations or acts of reliance generated by the election will not be rudely unsettled. Finality would be served equally well by enforcing waivers signed either before or after ballots are counted. But only a waiver executed in advance of the count serves another purpose. As the election result is not yet known at this stage — even though educated guesses may sometimes prove to be accurate — there is less incentive, than after the count, to grasp at straw objections in order to avoid an unfavourable outcome. Indeed, there is always the risk that objecting at this time will negate an election that the objector won. In short, the uncertainty which prevails before ballots are tallied has a sobering influence on those who might otherwise cloak concerns over the outcome in manufactured objections to the propriety of the election.
What should be the Board's response to waivers entered into through inadvertence? To set a waiver aside whenever a mistake is made would be to dangerously undercut the objectives identified above. Moreover, some mistakes do not deserve relief. Consider, for example, an employer or a union that — unknown to the other party — errs in calculating the hours worked by an individual, then agrees that this person is eligible to vote as a full-time employee, but after the count discovers the error and objects to the election on this ground. Even though this objection is one of substance — the person concerned is not a member of the bargaining unit — finality ought not to be compromised to rescue a mistaken party from its own carelessness.
The case at hand is not exactly the same as in this illustration. In the example, attention was focused, at the time of the agreement, on the precise issue over which the mistake was made. But in the case at hand, the employer considered the hours worked by Walker and not his status as a student. However, the difference between the two situations is only one of degree. Walker's eligibility to vote was put into question, and the employer through inadvertence failed to address an obviously relevant criterion. In these circumstances, we decline to release the employer from its waiver.
A certificate will issue to the applicant.