[1985] OLRB Rep. December 1818
1257-85-R B. Harrison, Applicant, v. Ontario Public Service Employees Union, Respondent, Children's Aid Society of the Regional Municipality of Waterloo, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members R. J. Gallivan and K. V. Rogers.
APPEARANCES: Moira Robertson, Betty Harrison and Barbara VanNorman for the applicant; R. Ross Wells for the respondent; Andrea Esson and Peter Ringrose for the intervener.
DECISION OF THE BOARD; December 10, 1985
This is an application to terminate the respondent's union bargaining rights. In a decision dated October 9, 1985, a differently constituted panel of the Board directed that a representation vote be conducted to determine whether a majority of the employees in the bargaining unit represented by the respondent wished its bargaining rights terminated. That representation vote was conducted on October 21, 1985. Sixteen ballots were cast; eight were marked in favour of the respondent and eight against. One of the voters now asks that the results be set aside and a new vote directed, because she made a mistake in marking her ballot. The relevant facts are not in dispute.
Before the representation vote was conducted, a notice to employees in Form 69 was posted on the employer's premises. That notice described the arrangements for the conduct of the vote and displayed a sample of the form of ballot which would be given to voters. The question on the ballot was:
In your employment relations with Children's Aid Society of The Regional Municipality of Waterloo do you wish to be represented by Ontario Public Service Employees Union?
Voters were offered the options "Yes" and "No". Beside each of those two words is a circle; a voter need only place a mark in one or other of the circles to signify his or her choice.
Moira Robertson, an employee in the bargaining unit, attended to vote. She marked her ballot, submitted it to the Returning Officer and left the polling area. Within a matter of minutes, without having spoken to anyone or reviewed any document, Ms. Robertson realized that the question on the ballot she had just read and marked was not "do you wish to terminate the bargaining rights of ..." but "do you wish to be represented by .. ." She had marked her ballot "yes". She realized that was the wrong answer to the question asked, since what she wanted was that the respondent's bargaining rights be terminated. She returned to the polling area immediately. She told the Returning Officer and scrutineers that she had made a mistake. They informed her that her ballot had already been placed in the ballot box and that all she could now do was raise the issue in a letter to the Board. She did, and the matter was listed for hearing.
Although aware that the Board's Notice of Taking of Vote in Form 69 had been posted, Ms. Robertson had not examined that notice before attending to vote. She did not seriously contend that the form of ballot was misleading. Indeed, it was clear enough that she both remembered and correctly understood it within minutes after leaving the polling area and without any further examination or consultation. As she put it, she had "misread the question for that split second and ticked the wrong box." She blames no one but herself for the mistake, but feels others opposed to the union should not "suffer" for her mistake.
When the conditions described itt subsection 57(3) of the Act are satisfied, the outcome of an application under section 57 to terminate the bargaining rights of a trade union is determined by the percentage of ballots cast in a representation vote which are cast in opposition to the trade union, in accordance with subsection 57(4). The balloting is conducted in secret, so as to best ensure the free expression of the wishes of those voting. The value of this process would be totally undermined if it were open to any party to have the Board inquire into the subjective state of mind of any voter at the time of his or her vote.
In RSLS Inc., [1982] OLRB Rep. June 921 dealt with a termination application in which there was an argument about the effect to be given to a ballot which had been "spoiled" with an indication that was neither a "yes" or "no" answer to the question posed. An employee's affidavit had been placed before the Board, and it appears the Board was invited to take the allegations in the affidavit into account in determining the effect to be given to the spoiled ballot. In that context, the Board made these observations:
. . The Board must determine the freely expressed wishes of the employees and there should be no encroachment upon the secrecy of the balloting. Anything other than a simple answer to the question posed, carries with it the potential for revealing employee wishes which the whole process is designed to keep secret. The Board cannot embark upon an inquiry into 'what the employee really meant" without undermining the very secrecy which the voting process purports to guarantee. (See Form 69).
The Board has no inclination whatsoever to inquire into what the objecting employee "really meant" by his abstention - especially since neither the applicant nor respondent has raised any complaint about the conduct of the balloting. To undertake such inquiry would not only prejudice the secrecy of the representation vote but would also open the door to an inquiry whenever an employee seeks to explain the motivation behind his spoiled ballot. We see no reason to undertake such inquiry given the explicit instructions given to all employees and the clear and obvious choice open to them when they cast their ballot. ...
The representation vote in this case was properly conducted. The only alleged error was that of an individual voter. We feel the remarks of the Board in RSLS Inc., supra, are equally applicable here. To them we would add the observation that if a vote could be set aside as a result of one voter's confessing that he or she misunderstood a question which is unambiguous on its face, then the Board would be obliged to consider an allegation by one voter that other voters misunderstood the question and voted "wrong". It is a short step from that invasion of privacy of the polling booth to an inquiry into the quality of thought devoted to the response of a voter to a question he or she did understand. An employee's entitlement to have her vote count does not and should not depend on her satisfying the Board that she knew what she was doing or made the "right choice". The voter's right to unquestioned acceptance of the choice she expresses carries with it responsibility for the choice expressed and its consequences. We are not prepared to give theballots cast in the vote of October 21, 1985, any significance other than the significance they have on their face. We so ruled orally at the hearing of this matter on November 22, 1985. We hereby confirm that ruling.
- Notice of the report of the Returning Officer was given in a timely fashion to the applicant, respondent and intervener. The intervener employer acknowledges receipt of the standard letter from the Board requiring that it post a copy of the notice addressed to employees and that it complete and return a Return of Posting card to indicate the date on which posting was effected. That card was not returned to the Board, and no one present at the Board's hearing of November 22, 1985 could confirm that the notice to employees of the Returning Officer's report had ever been posted. Accordingly, we direct that:
(a) the Returning Officer shall prepare a fresh notice of his report of the vote conducted October 21, 1985, with a revised deadline for submissions calculated in accordance with the Board's Rules of Practice;
(b) The Registrar shall forward that fresh notice and a Return of Posting card to the intervener employer under cover of a letter containing the usual instructions, which letter shall be copied to the applicant and respondent; and,
(c) the intervener employer is hereby directed to post the notice of report of the Returning Officer and complete and return the Return of Posting card forthwith after receipt.