Ontario Labour Relations Board
[1999] OLRB REP. JULY/AUGUST 614
1018-99-R Masonry Council of Unions Toronto and Vicinity, Applicant v. Heathwood Homes Limited, Responding Party
BEFORE: David A. McKee, Vice-Chair, and Board Members G. Pickell and G. McMenemy
DECISION OF THE BOARD; August 20, 1999
1The style of cause is hereby amended to reflect the correct name of the responding party: "Heathwood Homes Limited".
2This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 ("the Act"). Pursuant to a decision of the Board (differently constituted) dated July 7, 1999 a representation vote was held on July 9, 1999. The parties agreed that there were two persons in the bargaining unit on the application date and that both of them were entitled to vote. Both of them did vote. There was one ballot marked in favour of the applicant and one spoiled ballot.
3At the conclusion of the representation vote, the parties were asked to complete and sign the certification worksheet. An issue has arisen with respect to one of the matters set out in that worksheet. Paragraph 16 of the certification worksheet was completed as follows:
- Having regard for the ballot count results, the parties are agreed the application will be dismissed.
[x] Yes [ ]No
The certification worksheet concludes with an acknowledgement as follows:
The parties...
Acknowledge that the parties are bound by the most recent agreements made and set out in this report and consent to the Board issuing a decision based upon this report, without a hearing before a panel of the Board, subject to the right of any party in the five (5)working day period following the vote, to make representations (or to respond to representations made by another party) about any new matter they may be entitled to raise.
This document was executed by representatives of the applicant and of the responding party.
4On the same day, the applicant wrote to the Board indicating that the tick-mark under the "Yes" box at paragraph 16 had been marked in error. It contended that the box ought to have been marked "No" and that the applicant was entitled to be certified in a bargaining unit. The responding party replied by denying the applicant's right to vary any matter agreed to on the worksheet and asked that the application be dismissed.
5We do not agree with the applicant that the Board ought to permit parties to change their positions as set out in the certification worksheet simply because they have discovered an error Speed and certainty of certification applications will be severely compromised if parties are able to revisit issues endlessly on the basis of a discovery of an alleged error. Errors may range from simple inadvertence (which appears to be alleged in this case) to a mistaken understanding of the facts about certain employees, or persons alleged to be employees, or indeed a misunderstanding of the Board's practice or of the provisions of the Act. The possibilities in even the most routine application for certification are almost infinite. Further, the willingness of one party to sign off on a certification worksheet and not pursue certain issues may be based on its perception of the position that the other party has taken. There is nothing wrong, for example, with "Party A" concluding that "Party B" has taken a less than advantageous position and further deciding not to raise issues of its own in order to ensure that "Party B" does not change its position before the certification worksheet is signed. In such circumstances, there would be no obligation on the part of "Party A" to communicate its perception of the various positions and its calculations to "Party B". Although this does not appear to have happened in this case, to allow one party to revise its position simply encourages the other party or parties to discover a number of other positions that they might or ought to have raised at the time of the vote as well. To permit parties endlessly to re-visit issues settled in a certification worksheet would undermine the entire process of concluding certification applications in as speedy and certain a manner as possible.
6However, the worksheet is nothing more than the agreement of the parties. The Board is still obliged to determine such applications on the basis of the Act. The agreement of the parties may shape in a very large manner the way in which the Board determines such applications, but it is the Board rather than the parties which must ultimately apply and interpret the statute. In this case, had there been any doubt about the legal effect of these vote results, we might well have concluded that the applicant's "error" is simply its understanding or view of the effect of the Act or Board policy. However, there is no doubt about the effect of this vote: more than fifty per cent of the votes cast were cast in favour of the applicant. Spoiled ballots are not treated as ballots cast. This is settled law: Arrow Timber Co. Limited and Lumber & Sawmill Workers Union, 1973 CanLII 608 (ON HCJDC), [1973] 3 OR 285 (Divisional Court) and Maidstone Manufacturing Inc., [1995] OLRB Rep. Mar. 388 (Divisional Court). Upon finding that more than fifty per cent of the ballots cast were cast in favour of the applicant in a representation vote, the Board must issue a certificate to the applicant regardless of the agreement of the parties.
7We note as well the parties have agreed on a bargaining unit description as follows:
all construction labourers in the employ of Heathwood Homes Limited in the Regional Municipality of Durham (except for the Towns of Ajax and Pickering), the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of victoria, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
Again, we note parenthetically that this is the only bargaining unit that the Board would have found appropriate in this application, given that both members of the bargaining unit were agreed to be construction labourers, and that any agreement by the parties to any other bargaining unit description would have been ignored by us.
8There are no further issues in this application. A certificate will issue to the applicant.