Parties

3009-00-PS Prescott-Russell Services to Children and Adults, Applicant v. Ontario Public Service Employees Union, Local 426, United Steelworkers of America, Ontario Secondary School Teachers Federation and Canadian Union of Public Employees, Local 3954, Responding Parties.

BEFORE: Caroline Rowan, Vice-Chair.

APPEARANCES: Daryn Jeffries and Raymond Lemay for the applicant; Maureen Doyle, Angèle Cadieux, Suzanne Hébert-Vaillant and Linda Kernohan for Ontario Public Service Employees Union; David Doorey, David Lipton, Johanne Wilson and Guy Leroux for the United Steelworkers of America; no one appearing on behalf of Ontario Secondary School Teachers Federation and Canadian Union of Public Employees.

DECISION OF THE BOARD; September 5, 2001

Decision

1. This is an application under section 21, 22 or 23 of the Public Sector Labour Relations Transition Act, 1997 (the “Act”).

2. Further to the direction of the Board dated June 1, 2001, a further representation vote was held in this matter on June 6 and June 7, 2001 in respect of the following bargaining unit of employees of the applicant:

all employees of Prescott-Russell Services to Children and Adults in the United Counties of Prescott-Russell, save and except supervisors, persons above the rank of supervisor, executive assistant for community development, payroll and accounting staff, confidential secretaries, computer co-ordinator, computer technician, contract employees and students employed pursuant to an education program, practicum or internship.

Clarity Note: Contract employees as defined under Article 1.01(b) of the collective agreement between OPSEU and The Children’s Aid Society of Prescott-Russell effective from July 1, 1997 to June 30, 2000 are excluded from the scope of the bargaining unit.

3. A further consultation was also held on August 15, 2001 to consider the outstanding issues in dispute between the remaining affected parties: United Steelworkers of America (“Steelworkers”), Ontario Public Service Employees Union (“OPSEU”) and the applicant, Prescott-Russell Services to Children and Adults. At that time, the Board heard the parties’ submissions regarding OPSEU’s challenge to the Labour Relations Officer’s determination that one of the ballots cast in the representation vote was spoiled. The Board then rendered the following oral ruling to the effect that the ballot in issue was not spoiled and should be counted in favour of OPSEU:

Having considered the submissions of the parties, the Board has firstly determined that OPSEU is not precluded from raising its challenge to the officer’s determination that the ballot in issue is spoiled. Although there is a factual dispute between the Steelworkers and OPSEU as to whether or not OPSEU verbally agreed with the officer’s determination that the ballot was spoiled on the day of the vote as contended by the Steelworkers, there is no dispute that OPSEU raised its objection in writing within the time period stipulated by the Board for setting out the issues in dispute.

In addition, none of the parties objected to OPSEU raising the issue of the spoiled ballot in their responding submissions. The Steelworkers concede that they raised this objection for the first time today prior to the commencement of the consultation and the applicant took no position on the issue. In all of the circumstances, the Board is unable to find that OPSEU is precluded from raising its challenge to the officer’s determination at this time whether or not it verbally suggested otherwise at the time of the vote.

With respect to the issue of whether the ballot in question is in fact spoiled, it was not disputed that the test for determining whether or not a ballot should be counted in a representation vote conducted by the Board is that set out in the National Starch and Chemical Co., [1968] OLRB Rep. June 285 decision at paragraph 6. [The relevant portions of that paragraph read as follows]:

6. ... On representation votes conducted by this Board, ballots should be counted where the choice of the voter is clearly indicated on the face of the ballot and the identity of the voter is not disclosed. Where these two tests are satisfied, even though the ballot has not been marked with an “X”, there is no reason to discard the ballot as a spoiled ballot.]

In the present case, the ballot in question is shaded in the circle beside the name Ontario Public Service Employees Union and is also marked with an “X” beside the name OPSEU and next to the circle. There is no marking anywhere else on the ballot and in particular no marking in the circle beside the name United Steelworkers. The ballot does not in any way indicate or suggest the identity of the voter and therefore the only issue is whether or not the choice of the voter is clearly indicated on the face of the ballot.

In the Board’s view, the choice of the voter is clearly indicated on the ballot and is in favour of Ontario Public Service Employees Union.

The ballot in issue is similar to that in issue in the Success Display Limited, [1971] OLRB Rep. October 636 decision cited by OPSEU wherein the voter in a termination application made two markings on the ballot. One “X” in the space opposite the word “Yes” and another “X” over the word “Yes”. Although the ballot was not marked in the precise manner stipulated in the instructions on the ballot, the Board found in circumstances similar to those in our case that the intention of the voter was clearly indicated on the face of the ballot and was to vote “Yes”. The present case is also distinguishable from the facts in DSI Industries Inc. [2001] OLRB Rep. January/February 56 cited by the Steelworkers in that the placement of the word “no” beside the word “yes” in that case raised an ambiguity concerning the intention of the voter. There is no such ambiguity created by the placement of the markings in the present case.

The Board therefore finds that the ballot in issue is not spoiled and should be counted in favour of OPSEU.

Pursuant to the parties’ agreement, an officer will proceed to count only the two additional ballots of: Judith Gour and Marielle Lapensee

4. After the Board delivered this ruling, the remaining affected parties confirmed their agreement in writing with respect to the resolution of the remaining issues in dispute. Their memorandum dated August 15, 2001 setting out that agreement reads as follows:

3009-00-PS

Prescott-Russell Services to Children & Adults

• and -

OPSEU, Local 426

• and -

USWA

• and -

OSSTF

• and -

CUPE, Local 3954

Whereas the Board has ruled that the current count pending the outstanding ballots is 91 in favour of OPSEU, Local 426 & 89 in favour of USWA.

The parties agree to the following:

1. An LRO shall count the ballots of Judith Gour and Marielle Lapensee.

2. The parties agree that all other ballots are not relevant & shall not be counted by the Board. This agreement is without prejudice to the parties positions should another vote be required.

3. In the event both are in favour of USWA, the Board shall hold another vote. If both are not in favour of USWA, the Board shall declare that OPSEU, Local 426 hold the bargaining rights for this unit.

Signed at Toronto, August 15, 2001

“Raymond Lemay” . “Angèle Cadieux” . “David Lipton” .

Raymond Lemay Angèle Cadieux David Lipton

For the employer For OPSEU For USWA

5. On the taking of the representation vote a majority of votes was cast in favour of Ontario Public Service Employees Union, Local 426.

6. Having regard to the agreement of the affected parties dated August 15, 2001 and to the results of the representation vote, the Board appoints Ontario Public Service Employees Union, Local 426 as the bargaining agent of the employees of the applicant in the bargaining unit referred to at paragraph 2 above.

7. Accordingly, under subsection 23(9) of the Act, any bargaining rights possessed by Ontario Secondary School Teachers Federation, United Steelworkers of America and Canadian Union of Public Employees, Local 3954 are hereby terminated.

8. The applicant is directed to post copies of this decision where it is most likely to come to the attention of all employees who may be affected by it. These copies are to remain posted for 30 days.

9. The Registrar will destroy the ballots cast in the representation votes taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of the 30 day period.

“Caroline Rowan”

for the Board