[1988] OLRB Rep. May 534
2878-87-R Ontario Secondary School Teachers' Federation, Applicant v. The Board of Education for the City of Toronto, Respondent v. Ontario Public Service Employees Union, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members D. A. MacDonald and B. L. Armstrong.
DECISION OF THE BOARD; May 26, 1988
In a decision dated March 30, 1988, the Board directed the taking of a pre-hearing representation vote in this matter. A large number of persons are the subject of dispute and since the applicant may or may not enjoy the support of thirty-five per cent of the employees of the respondent in the voting constituency, the ballot box was sealed. As is customary, the Board directed that if any of the disputed individuals attended to vote, he or she was to be allowed to vote and his or her ballot segregated. The parties are to address the status of the disputed individuals at a hearing scheduled for after the vote.
The vote was held on April 19, 1988 and the day fixed for making representations on a variety of matters, including the conduct of the vote, was April 29, 1988. On April 28, 1988, the Board received a letter from one of the employees in dispute, Mr. Richard Hooker, expressing concern about the vote procedure and in particular, about the procedure involved in segregating ballots. We are satisfied that Mr. Hooker's letter constitutes a timely statement of desire to make representations in a matter relating to the representation vote, pursuant to Form 72 "Notice of Report of Returning Officer Where Board has Directed that Ballot Box be Sealed" and subsection 70(2) of the Board's Rules of Procedure. Mr. Hooker does not request a hearing. Accordingly, we are dealing with Mr. Hooker's statement without a hearing or further notice to the parties or employees.
Mr. Hooker's concerns are as follows: he cannot reconcile the instructions on the "Notice of Taking of Vote" not to mark his ballot in a manner that would reveal his identity with the fact that his number on the voters list also appeared on the brown envelope containing the white envelope into which his ballot had been placed; he believes there may be serious results for the livelihood of persons whose ballots are segregated of a ballot's not being kept secret; he cannot understand why he was on the voters list when his eligibility to vote was challenged and why he was not informed of the challenge before he voted; he does not know who challenged his eligibility or when or why it was challenged; he wonders why the disputes could not have been resolved prior to the vote; and he asks whether the Board intends to accept the results of the vote "as final".
This application was made under section 9 of the Act, the pre-hearing representation vote provisions. Those provisions envision a two-stage procedure: in the first stage, under subsection 9(2), the Board determines a voting constituency and where there is the requisite appearance of support, may (and usually does) direct the taking of a pre-hearing representation vote among the employees in the voting constituency. The Board does not determine matters in dispute at this stage in order to satisfy the underlying purpose of these provisions: a speedy vote. If the issues in dispute are such that their resolution could result in the Board's dismissing the application, the Board directs that the ballot box be sealed. That direction will be given, for example, where the applicant has not previously been found to be a trade union within the meaning of clause l(l)(p) of the Act, where the Board's jurisdiction to hear the application is challenged or where there is a contention that the application is untimely, among other circumstances. The Board directs that the ballot box be sealed because it does not want to reveal the results of a vote where the application may be dismissed even though the applicant was successful in vote, in other words, for a reason unrelated to the outcome of the vote.
The ballot box is also sealed where the eventual determination of the bargaining unit may mean that the applicant did not enjoy the support of thirty-five per cent of the employees in that unit at the time the application was made. In this case, the parties have agreed on the description of the bargaining unit, but not on the composition: as stated above, there are a large number of persons whose inclusion in the bargaining unit is in dispute. Depending on how many of these persons are eventually included in the unit, the union may or may not satisfy the precondition for counting the pre-hearing representation vote. The vote will be counted if the Board is satisfied that "not less than 35 per cent of the employees in [the] bargaining unit were members of the trade union at the time the application was made", pursuant to subsection 9(4) of the Act. If the Board is not so satisfied, the vote will not be counted and the application dismissed.
The voting constituency is designed to include all persons (or categories of employees) who might be included in the bargaining unit the Board ultimately finds to be appropriate: that is, in order to ensure an appropriate bargaining unit can be created from the voting constituency. Therefore, all persons who might be in the bargaining unit are entitled to vote. Where individuals (or categories of employees) are in dispute, they are allowed to vote despite the fact that their inclusion in the bargaining unit is being challenged because the Board may decide they are to be included in the unit; on the other hand, the Board may find they are not to be included in the unit. By segregating the ballots of persons in dispute, either outcome can be easily accommodated: if the person is included in the unit, his or her ballot will be counted, but if he or she is not included, his or her ballot will not be counted. Because this is a pre-hearing vote, there is no alternative since the vote, under the scheme of the Act, occurs prior to the Board's determination of the status of the persons in dispute.
The actual ballot marked by any voter, including one in dispute, contains no marks identifying the voter. Where a ballot is to be segregated, it is placed in a white envelope which also contains no identifying marks. The white envelope is in turn placed in a brown envelope which does indicate whose ballot is inside the white envelope inside the brown envelope. A brief moment's thought will indicate why that identification is necessary. Suppose that voters A, B and C are in dispute and their ballots have been segregated. The Board determines that A and B should be included in the unit, but that C should not be. The ballots of A and B will be counted; C's ballot will not be counted (but will be destroyed). Without some identifying mark on the brown envelope, there would be no way of knowing which ballots to count. We know which brown envelopes contain A's ballot and B's ballot, however. When the Returning Officer counts the segregated ballots, he or she will remove the white envelopes from the brown envelopes, remove the ballots from the white envelopes and mix them up so that no one, including the Officer, knows which ballot came out of which white envelope or which white envelope came out of which brown envelope. Only then will the Officer see how the ballots are marked. No one knows which ballot was marked by A and which by B. Indeed, the Board is so concerned about protecting the secrecy of the ballot that where a single segregated ballot will determine the outcome of a vote, the Board will order a new vote rather than count the ballot and reveal the preference of the employee. (See The Board of Education for the City of Toronto, [1983] OLRB Rep. July 1229, para. 6 and Bayly Engineering Limited, [1979] OLRB Rep. June 471, para. 6 for a description of the segregated vote process.)
The names of the persons in dispute, and the reason for the challenge, were included in appendices to the Board's decision directing the vote. The names were underlined on the voters list.
On the basis of the above description of the Board's procedure, it is evident that the secrecy of the ballot is maintained where ballots are segregated, even though of necessity it must be possible to distinguish segregated ballots which are to be counted and those which are not. The danger to which Mr. Hooker averts with respect to the livelihood of persons whose ballots are segregated thus does not arise. His name was included in the list of eligible voters so that should he be found to be in the bargaining unit, he would have had an opportunity to vote. As the decision of March 30, 1988 indicates, Mr. Hooker was one of many persons (approximately one hundred) whose inclusion in the bargaining unit was disputed. In Mr. Hooker's case, Appendix A to the March 30th decision indicates that he is being challenged as having temporarily withdrawn from the respondent's secondary panel. His status and that of the other disputed persons will be resolved at a hearing scheduled for after the vote which notice will be given and persons wishing to make submissions on that issue may do so. That is the nature of the pre-hearing vote process vote first and resolution of disputes following.
We note that even if we determine that Mr. Hooker is included in the unit, it will not be possible to count his ballot since he chose to tear it up when he was not satisfied with the Officer's explanation of the segregated ballot.
As for whether the Board accepts the outcome of the vote as final, the disposition of this application awaits the hearing into the status of the disputed individuals. However, nothing in Mr. Hooker's statement warrants our directing another vote in this matter.