Thames Valley District School Board v. The Canadian Union of Public Employees and its Local 4222, 1999 CanLII 19944

[1999] OLRB REP. JANUARY/FEBRUARY 95

0291-98-PS; 2781-98-U Thames Valley District School Board, Applicant v. The Canadian Union of Public Employees and its Local 4222; Ontario Secondary School Teachers' Federation and The Communications, Energy and Paperworkers' Union (CEP), Responding Parties; Ontario Secondary School Teachers' Federation and its District 11, Applicant v. Canadian Union of Public Employees, Responding Party v. Thames Valley District School Board, Intervenor

Public Sector Labour Relations Transition Act - Representation Vote - Unfair Labour Practice - Board earlier directing representation vote between OSSTF and CUPE in Bill 136 application - Board counting ballots, except for 12 segregated ballots - OSSTF alleging that parties had agreed that segregated ballots would not be counted, and that CUPE and employer seeking to resile from that agreement - OSSTF alleging that subsequent to vote, CUPE ap­proaching individuals who cast segregated ballots and "forcing" them to reveal how they voted -OSSTF alleging that CUPE committing unfair labour practices and violating Public Sector Labour Relations Transition Act and insisting that new vote required - Board accepting OSSTF's allegations as true and provable - Board finding that there was no agreement between the parties not to count the remaining segregated ballots once eligibility had been determined - Board finding that CUPE's post-vote conduct did not violate the Act or compromise the integrity of the balloting - Board rejecting request for new vote and directing that segregated ballots be counted

BEFORE: Inge M. Stamp, Vice-Chair.

APPEARANCES: Susan Ursel, Bev Wilson, Rhonda Grigsby, Wayne Smith and Heather Skolly for Ontario Secondary School Teachers' Federation ("OSSTF"); Peter Thorup and Patrick Dunn for Thames Valley District School Board ("TVDSB"); John Elder, Dana Ivanochko, Matt Graves, Terry Shake/ton, Donna Rhodeu, Jarr Wilkins, Harriet Miller, Randy Corey and Nancy McNeil for The Canadian Union of Public Employees and its Local 4222 ("CUPE").

DECISION OF THE BOARD; January 12, 1999

1These are related matters. Board File No. 0291-98-PS is an application pursuant to section 21(4) and 23 of the Public Sector Labour Relations Transition Act, 1997 ("Public Sector Act") in which a vote was held on November 3, 1998. Board File No. 2781-98-U is a complaint under section 96 alleging CUPE has violated Articles 76, 77 and 73(2) of the Labour Relations Act, 1995 ("Act") and section 23 of the Public Sector Act. The remedy requested by OSSTF is either to let the vote results stand or order a new vote.

2This decision deals with whether the remaining segregated ballots should be counted.

3OSSTF, who is the applicant in the section 96 complaint, asserts these segregated ballots should not be counted for two reasons.

4It is OSSTF's position that an agreement was reached to "discount" these segregated ballots. OSSTF submits the Board should not allow CUPE and the School Board to resile from their agreements not to count these segregated ballots.

5The second ground for not counting is the alleged unfair labour practice by CUPE. CUPE contacted persons whose ballots were segregated after the vote had taken place and obtained information as to how they voted.

6The Board directed the parties to make their arguments on the basis that it accepted all of OSSTF's pleadings outlined in Schedule "A" and the letter dated November 4, 1998 with respect to the "agreement not to count the segregated ballots" and the section 96 allegations. Assuming the allegations are true and provable, was there 1) an agreement not to count the remaining segregated ballots? 2) if there was no agreement should the ballots not be counted because of CUPE's post-vote conduct?

7Dealing first with the question of whether the parties agreed not to count the segregated ballots, it is agreed by the parties there was no written agreement, or waiver. Nor were any of the remaining segregated ballots initialled to indicate they would not be counted. Two of the segregated ballots were agreed to be off the list (not eligible to vote) and initialled by the representatives for each of the parties.

8The parties and the Labour Relations Officer proceeded with the count. Each party had one or more scrutineers present for the count. At one point there were 30 segregated ballots. Agreement was reached on 15 of the 30 segregated ballots. That left 15 segregated ballots. Of those two were agreed off and initialled by all the parties. At the end of that process it was agreed there were 13 segregated ballots. It is also agreed that when the parties/scrutineers left the room where the count took place there were 13 uncounted and segregated ballots and 2 "initialled and agreed off the list" ballots.

9OSSTF in its pleadings as they relate to the "agreement" sets out the sequence of events after the vote and the circumstances under which the count took place.

10OSSTF asserts that when it made certain statements with respect to the segregated ballots the other parties by their silence have acquiesced and have in fact agreed not to count the remaining segregated ballots. OSSTF asserts the following paragraphs in Schedule "A" are indicative that an agreement was reached not to count the ballots:

17. The LRO began by indicating that the parties had to determine what was going to be done with the segregated ballots. More than one time, the LRO indicated that the parties had to make a decision before they left the room, about what to do with the segregated ballots.

18. Initially, the parties went over all the ballots and compared them with the voters' list. There were approximately 15 (fifteen) voters who were found on the voters' list; the parties agreed that all of those ballots would be counted with the other ballots.

19. With respect to one of the ballots, CUPE indicated that the person was an EA, on leave, who was teaching. When CUPE indicated that the person was on an official leave of absence, OSSTF agreed that the voter was eligible to vote and the ballot should be counted.

20. The parties then discussed the 15 (fifteen) remaining ballots. Two (2) of those ballots were OSSTF members who were hired after the "cut-off' date of September 21, 1998.* All parties, including the OSSTF, agreed that those ballots would not be counted. *(at the hearing the parties advised the Board the cut-off date is September 23, 1998)

21. In respect of the 13 (thirteen) remalning ballots, OSSTF took the position before all of the parties, that if the person was not on the list the vote would not be counted.

22. As each ballot was reviewed, CUPE and the TVDSB made no objections when the ballot was put aside because the person could not be found on the voters' list. They made no indication that they intended to deal with those ballots in any way at a later point.

23. With respect to some ballots, although CUPE and the TVDSB stated that the person had been employed for some time, no mention was made that the count should be delayed or that any further information would be tendered at a later time in respect of those ballots.

24. Again, throughout the process, no objections by either CUPE or the TVDSB were made when OSSTF stated that "the person is not on the list", and the ballot was put aside.

25. At some point during the meeting, Heather Skolly, clarified OSSTF's position and stated that, "If it [a votel was one of our members, and they were not on the list, their vote would not be counted either." This statement was accepted by CUPE and the TVDSB, neither of whom made a response to this statement.

26. When all the ballots were sorted, it was announced that there were ballots to be counted in one pile, and in the other pile there were "discounted" or segregated ballots which would not be counted.

11OSSTF submits the statement of Heather Skolly in paragraph 25 of Schedule "A" above is evidence that there was an agreement and that CUPE and TVDSB by their lack of response accepted that CUPE's remaining ballots would not be counted either. It is OSSTF's position that CUPE knew or should have known that these persons were left off the list of eligible voters and they had an obligation to raise that issue before OSSTF agreed to count the ballots.

12CUPE denies there was an agreement not to count and that it changed its mind once it found out how the segregated ballots voted.

13Counsel for TVDSB asserts the pleadings do not make out any agreement not to count or any estoppel. There was no conduct or pattern of conduct or silence which would have caused OSSTF to rely on, to its detriment, by agreeing to count the ballots.

14OSSTF asserts it relied to their detriment on the agreement not to count the remaining ballots. It is OSSTF's position had they realized that there was no agreement they would have asked that the ballot box be sealed pending the resolution of these matters. It is not clear what that detriment would be other than a hearing would have been held without knowing the count with respect to the unchallenged voters.

15In the context of this vote and the Board's usual process there needs to be more than an absence of a response to statements such as those outlined above to reach a conclusion that there was an agreement not to count the remaining segregated ballots. The Board finds that no agreement was made not to count the remaining segregated ballots once eligibility had been determined.

16The second reason why OSSTF asserts these ballots should not be counted is CUPE's violation of both the Public Sector Act and the Labour Relations Act, 1995 which put the integrity of the secrecy of the ballot box in issue. The sections that are alleged to be violated are sections 73(2), 76 and 77 of the Labour Relations Act, 1995 and section 23(15) of the Public Sector Act. These provisions state as follows:

73. (2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargalning unit or any of them.

74. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refraln from exercising any other rights under this Act or from performing any obligations under this Act.

75. Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refraln from becoming or continuing to be a member of a trade union.

23.(15) A vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

17Other relevant Bill 136 provisions are sections 23(9), (13), (16), (17), (18) and (19) of the Public Sector Act which provide:

23.(9) When an order is made under subsection (1) determining that a bargaining agent represents the employees in a bargaining unit, the bargaining rights of every other bargaining agent with respect to the employees in the bargalning unit are terminated.

23.(13) The Board shall determine the practices and procedures to be used in conducting a vote under this section. The voting must be conducted so as to ensure that one of the choices or candidates on the ballot ultimately receives more than 50 per cent of the votes cast.

23.(16) The Board shall by order determine the choices and candidates for bargalning agent that are to appear on the ballot and shall do so in accordance with its practices and procedures.

23.(17) The Board may determine, in its discretion, who is eligible to vote.

23.( 18) No order of the Board appointing a bargaining agent shall be set aside on the ground of any defect or irregularity in a vote if the Board is satisfied that the results of the vote reflect the true wishes of the majority of the employees in the bargalning unit.

23.(19) The Board is not required to enquire into any allegation of a defect or irregularity in a vote if the Board is satisfied that, whether or not the alleged defect or irregularity existed, the results of the vote reflect the true wishes of the majority of the employees in the bargalning unit.

18OSSTF asserts that as of the day of the vote OSSTF is the bargaining agent and therefore CUPE violated section 73(2) by interfering with their bargaining rights when they contacted the persons whose ballots were segregated and obtained information as to how they voted. For the purpose of the argument the Board accepted the pleadings in Schedule "A" which allege that the affected persons were "forced" to disclose who they voted for and that in some cases they were called during working hours.

19Counsel for CUPE submits section 23(9) of the Public Sector Labour Relations Transition Act, 1997 speaks very clearly as to when the Board makes the order as to who is the bargaining agent. As of today CUPE remains the bargaining agent and cannot be seen to interfere with OSSTF's bargaining rights by contacting its own members with respect to the vote.

20It is common ground that the persons whose ballots were segregated were members of CUPE and were part of CUPE's bargaining unit prior to the vote. Until the Board declares otherwise the persons are members of CUPE. They were contacted by their bargaining agent. While in the circumstances it may not have been wise to make such enquiries, section 73(2) does not apply in these circumstances. There is no interference by another trade union. While OSSTF, without counting the segregated ballots, would have been declared the new bargaining agent this does not make them the bargaining agent at the time these inquiries were made. There having been no agreement with respect to the segregated ballots, the final determination as to who will represent the bargaining unit is still outstanding.

21OSSTF alleges violations of section 77 and section 76. Section 77 deals with persuading an employee during working hours to become a union member (or not) or to continue to be in the union. Since CUPE is the bargaining agent (until declared otherwise) I find section 77 has no application in these circumstances.

22This brings us to section 76. OSSTF alleges CUPE's conduct was coercive and intimidating. There is a risk of possible retaliation and resulting detriment to OSSTF. It is suggested by OSSTF that by CUPE coercing voters to tell how they voted and if it should become apparent that some of these CUPE members are OSSTF supporters, they may face a backlash from CUPE should they win the vote.

This in turn would be detrimental to OSSTF's future campaigns for support in any other vote situations between these two parties.

23OSSTF argued that the secrecy of the ballot and the voting process is an entitlement under provisions of both Acts and the Board must protect the integrity of its process. Counsel for OSSTF submits in these circumstances where the Government directed the amalgamations of these bargaining units, the integrity of the vote is absolutely necessary. CUPE's action cast the integrity of the confidenti­ality in doubt.

24OSSTF submits there is a balancing of competing interests, the right of the individuals to vote and the secrecy of the ballot box. If the vote is not allowed to stand the only appropriate remedy is another vote.

25Counsel for OSSTF cited a number of cases dealing with the principle of not allowing parties to resile from their agreements with respect to who is on the list for the purpose of the vote. Since there was no agreement by acquiescence or otherwise these cases do not assist. OSSTF argued that CUPE should have raised its challenges in a timely fashion and cited a number of cases dealing with that issue. There is nothing in these circumstances which would be described as making timely challenges. The vote had been taken, persons who believed they were eligible to vote voted, the Labour Relations Officer and the parties and their scrutineers were counting the ballots (over 400 of them) and there were some segregated ballots to be sorted out. The cases cited are not of assistance.

26The remaining cases deal with the protection of the secrecy of the ballot. The cases cited are: Empco-Fab Ltd., [1980] OLRB Rep. Oct. 1391; Cutler-Hammer Canada Limited, [1965] OLRB Rep. June 200; Daheim Nursing Home Limited, 111980] OLRB Rep. Nov. 1639; SGS Supervision Services Inc., 11981] OLRB Rep. Oct. 1471; Polmar Tile Company, [1970] OLRB Rep. May 206; Zimmerman et al. of Stauffer-Dobbie, Manufacturing Co. Ltd. v. Textile Workers Union of America v. Stauffer-Dobbie Manufacturing Co. Ltd., ¶118,147, 59 CLLC 1789; Omstead Foods Limited, 111987] OLRB Rep. Feb. 264; The Brick Warehouse Corporation, [1996] OLRB Rep. Nov./Dec. 921; Super Ciiy Discount Foods Limited and Loblaw Groceterias Co., Limited and Union of Canadian Retail Employees, [1971] OLRB Rep. Mar. 174.

27All of these cases deal with the protection of the secrecy of one ballot. By counting that one ballot the confidentiality of how that person voted would be made known. In those cases the Board directed a new vote. None of these cases deal with a run-off vote between two bargaining agents in these circumstances.

28Counsel for OSSTF urges the Board to direct a new vote. Counsel refers to Cutler-Hammer Canada Limited (supra) where the one person waived his right to secrecy and the Board refused to count the one segregated ballot to avoid possible "pressures and undue influence by one of the parties to the vote to have him request that his ballot be counted." Counsel submits while there is more than one segregated ballot here the confidentiality of the ballot box has been breached by CUPE's coercive conduct. One party has knowledge as to how those segregated ballots have been cast. CUPE should not be rewarded for their conduct. Counsel cited paragraph 4 of Daheim (supra) for the principles of safeguarding the right of confidential selection:

Strong feelings for and agalnst are not uncommon when a union seeks to be certified as the bargalning agent in a particular work place. No matter which way their sympathies my lie the disclosure of the wishes of individual employees during the certification process can subject them to pressure and recrimination at the hands of their employer and to ostracism at the hands of their fellow employees. That is why the right of confidential selection must remain paramount in the certification process whether it be through the secret ballot or through the confidentiality of membership evidence and statements of employee opposition filed with the Board, expressly protected by section 100(1) of the Labour Relations Act. That right must be jealously safeguarded if employees, employers and unions are to retain confidence in the certification process administered by this Board.

29Counsel for CUPE asks the remaining segregated ballots be counted. Even if CUPE's actions taken as proven are a violation of the Labour Relations Act, 1995 there is no way those actions could have influenced the freedom of choice of voters on November 3, 1998. Counsel submits the pleadings in OSSTF's Schedule "A" do not show there was an agreement. Where there had been an agreement the parties signified it by initialling the ballots. There were 467 ballots and 15 left segregated. It was a reasonable expectation to count the ballots.

30CUPE agrees with the important principle of the secrecy of the ballot when taking represen­tation votes but as the Board has said many times the principle purpose is to protect employees when exercising their right to vote from pressures which would inhibit their freedom of choice (see RCA Ltd., 111981] OLRB Rep. Aug. 1159).

31CUPE submits a number of the cases cited deal with a single segregated ballot in the case of a tie vote where counting that ballot would reveal the choice made. Those cases deal with representa­tion votes to determine if employees would be represented by a union. There are different considerations in a representation vote between two trade unions where at the end of the day all of the employees will be represented by one trade union or the other. During the course of the electioneering both trade unions will have identified many of their supporters and be aware of non-supporters in the bargaining unit. In this case both trade unions have waged a very active campaign.

32Counsel for CUPE cited the following cases where the secrecy of the choice does not take precedence over the right of employees to choose in a representation vote: Mollenhauer Limited, 111989] OLRB Rep. Oct. 1050; Mollenhauer Limited, [1989] OLRB Rep. Nov. 1112; The Corporation of the Township of Chinqeacousey, [1973] OLRB Rep. July 380; Mike's Painting & Decorating Ltd., [1991] OLRB Rep. Jan. 67.

33In Chin qeacousey (supra) the Board refused to direct a new vote when a concern was raised that 3 segregated ballots if counted may reveal how those persons voted. In Mollenhauer (#1) (sup ra) the Board in paragraph 6 stated:

6. In any case in which the voting constituency is small or where a small number of ballots is cast, there is some danger that counting the ballots will reveal how those who cast them voted. For example, if only two people are eligible to vote (or only two people cast ballots) there is a fifty per cent chance that both voted the same way and that that will be disclosed when the ballots are counted. Similarly, if three people are eligible to vote (or only three people cast ballots) there is twenty-five per cent chance of such disclosure, if four people are eligible to vote (or only four people cast ballots) there is a 12.5 per cent chance of such disclosure, and so on. It is only when eight people are eligible to vote (or only eight people cast ballots) that there is a less than one per cent chance that they will vote in a manner such that how they voted will be revealed. (We also observe that in circumstances where non-segregated ballots are counted and the margin of votes between the options with respect to which the vote was held is less than the number of segregated ballots cast by persons who are subsequently found to have been entitled to vote, it is possible that the way they voted will be revealed.) The vagaries of employment in the construction industry are such that it is not uncommon for there to be fewer than eight people in a voting constituency or for fewer than eight people to cast ballots in a vote. There is nothing in the legislation or otherwise which requires either that more than one person be eligible to vote or that more than one ballot be cast before a representation vote is "valid". While revelations of the manner in which any person has voted should be avoided if possible, secrecy of the ballot box should not be made an absolute objective. Nor, in the Board's view, should such secrecy take precedence over the right of employees to choose to be or not to be represented by a trade union and to express those wishes in a representation vote. Such questions are best answered by those eligible employees who decide to cast ballots.

34The second decision in Mollenhauer (supra) deals with the employee who cast the sole ballot and who requested it not be counted. The Board had this to say in paragraph 4 and 5 of that decision:

4. We are not insensitive to the concerns of employees who find themselves in a situation like this one. The Board does its best to malntain the secrecy of employee wishes. However, it is well known that that is not always possible. While the unfortunate result of counting the single ballot is that the wishes of the employee who cast it will be revealed, that, by itself, is no reason to not count it. Nor are we persuaded that there is any other cogent reason to not count the ballot cast in this application in the circumstances.

5. Finally, we observe that section 80 of the Labour Relations Act provides that:

80.-(l) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person; (b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose pecuniary or other penalty on a person, because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

Let there be no misunderstanding. The protections of section 80 apply equally to persons who participate in a Board proceeding by casting a ballot in a representation vote as they do to persons who participate in other ways. We assure all concerned that the Board will respond quickly and appropriately to any allegation that the employee who cast the ballot in this case has been the victim of any improper conduct as a result of his participation in the proceeding.

35With respect to the complaint under section 76 counsel for CUPE refers to Mike's Painting & Decorating Ltd. and paragraph 7 of that decision stating:

7. With respect to the allegations that the union had breached section 70 of the Act, in order for such a breach to have occurred there must be conduct which amounts to intimidation or coercion, linked with an exercise of rights under the Act. Paragraphs 1, and 3 to 13 of the Complalot, deal with this alleged breach. The conduct set out in paragraphs 3 to 13 which we have assumed (for purposes of this ruling) both occurred and was undertaken on behalf of the union, did not amount to threats, intimidation or coercion within the meaning of section 70. Employees will be subject to some pressure or persuasion of both views during a union's organizing campalgn. To find the behaviour alleged as constituting an unfair labour practice would be to find illegal much of the behaviour involved in organizing campalgns and in campaigns in opposition to the union. The facts set out in the Complaint do not allege a threat or coercion of the sort that is impermissible within the meaning of section 70.

36Counsel for CUPE referred to paragraph 44 of GSW Inc., [1990] OLRB Rep. May 535 where the Board talks about the range of permissible "social pressure" in the context of an organizing drive.

37Counsel for CUPE submits there are no pleaded violations which should cause the Board not to count the segregated ballots and requests the Board determine eligibility of the segregated ballots and direct that they be counted accordingly.

38Counsel for the TVDSB submits this is a numbers' game. The cases provided by the union deal with employers trying to gerrymander the list. In recent years the Board's practice and notices regarding the conduct of the vote and the process following the vote has been to open the ballot box and count. Ballots are segregated until eligibility to vote is determined. All the parties are agreed if these individuals had been on the list they would have been counted. The individuals were employed by the School Board prior to the agreed cut off date and it is their statutory right to vote.

39Counsel for TVDSB submits there is no reason for the Board to depart from its usual practice to count the ballots. CUPE's conduct cannot lead to a re-vote of a bargaining unit of 800 people. The issue of confidentiality arises in small bargaining units of 5 or 7 or 10 employees. For example when all 10 vote the same way the secrecy is not completely sacrosanct. There is no way to know if the information obtained by CUPE is the truth. Counsel requests the Board assist the parties in reaching a prompt resolution to find out who the bargaining agent is.

40In response counsel for OSSTF submits the issue of the confidentiality is not only before the vote but after and before the final count. This is now a small group of employees who are in issue. OSSTF to its detriment agreed to count the votes, there is a possibility that OSSTF supporters could be identified. This could have been prevented had the entire ballot box be sealed. It is OSSTF's position that CUPE by its conduct tainted the vote and requests either a new vote or the vote stands as is (without counting the segregated ballots) as the appropriate remedy.

41This part of the decision deals with OSSTF's second reason why the remaining segregated ballots should not be counted. There are no cases on point. There are competing interests and rights which are to be protected. The question is in light of CUPE's conduct as set out in Schedule "A" should the remaining segregated ballots be counted? Earlier in this decision I found there was no agreement with respect to not counting the segregated ballots. Did the conduct of CUPE violate section 23(15) and does CUPE's conduct call for the remedy requested by OSSTF?

42It is clear and not disputed the information obtained by CUPE from certain persons was done after the vote took place. There is no issue with respect to their ability to freely choose their bargaining agent. It is not clear at all what the detriment is to OSSTF by the conduct of CUPE. The persons who were questioned, it is agreed, were members of CUPE and until the Board declares otherwise CUPE is still their exclusive bargaining agent. Is the fact that some or all of these persons have lost their guarantee of secrecy under section 23(15) vis-a-vis their bargaining agent sufficient grounds to lose their statutory right to have their vote counted? OSSTF raised a number of potential problems how this information could be used against the individuals if for example they are identified as an OSSTF supporter. OSSTF raised the possibility that because of the small remaining numbers to be counted there is a risk of revealing how some of those persons voted.

43No one is disagreeing with the principles involved here. However, when faced with a list of hypothetical problems versus the reality of denying persons their right to vote one has to carefully consider the circumstances. How likely is it that the conduct of CUPE is going to result in the dire consequences predicted by OSSTF and therefore require the remedies requested. This is about whether these persons are entitled to vote in these circumstances. If in fact all of the questioned persons affirmed their support to CUPE and the count reflects this, there is no issue. If some said they supported CUPE and in fact voted for OSSTF it is unlikely that information will be disclosed by the count. Regardless of who will represent the employees in this bargaining unit at the end of the day if anyone is discriminated against by any of the parties because his/her choice has become known there is ample remedy available under the provisions of the Labour Relations Act, 1995.

44Having considered all of the circumstances, I direct that the segregated ballots of those persons who were employed by the Thames Valley District School Board before the agreed cut-off date be counted.

451 remain seized with any outstanding issues.

46The matter is referred to the Manager of Field Services for the counting of the ballots.