1742-01-R Mike Kilby, Applicant v. United Food & Commercial Workers Union, Local 175, Responding Party v. The Hostess Frito Lay Company, Intervenor.

BEFORE: Anthony Brown, Vice-Chair.

DECISION OF THE BOARD; December 6, 2001

1. This is an application for termination of bargaining rights under the Labour Relations Act, 1995 (“the Act”).

2. A representation vote was held on September 28, 2001 as directed by the Board on September 26, 2001. The outcome of the vote was 8-7 against the responding party union. One ballot remains segregated and uncounted. If counted, the ballot would determine the outcome of the application.

3. The parties disagree about whether a second vote should be ordered under the circumstances. The applicant asserts that a second vote is not required because the employee whose ballot is segregated has consented to have the ballot opened. The union urges that opening the segregated ballot would reveal the wishes of the employee, contrary to the secrecy provisions in the Act.

4. On October 25, 2001, the Board directed the applicant and employer to file written submissions, by October 31, 2001, about why the Board should not follow its usual practice and order a second vote.

5. The intervenor employer filed submissions dated October 30, 2001. It asserts that the circumstances in Brick Warehouse Corporation, [1996] OLRB Rep. Nov./Dec. 921 in which the Board ordered a second vote where there was a single deciding uncounted ballot, are distinguishable from the facts in the present application. In Brick Warehouse, the single uncounted ballot arose from a decision of the Board determining who was entitled to vote. In the instant application, the uncounted ballot arose from the responding party’s position about the employee’s eligibility. The union challenged the eligibility before the vote and then did not attend the vote, when the issue could have been clarified. The employer asserts that a party should not be allowed to resile from an agreement or representation made during the course of a certification or decertification application. It submits that, here, the responding party seeks to resile from a representation made during the decertification process that resulted in the segregation of the ballot.

6. The employer also submits that the union’s conduct is an abuse of process, and that the union is gerrymandering the proceedings in such a way as to defeat the democratic expression of the employees’ wishes. The union seeks to use its absence at the vote and subsequent change of position to defeat the democratic process. The union only finalized its position on the segregated ballot for tactical reasons, after learning of the result of the vote to that point.

7. The applicant cites several decisions in support of its position, including C.E.Jamieson & Co. (Dominion) Ltd., [1987] OLRB Rep. July 953, Highland Packers Ltd., [1994] OLRB Rep. April 434, Versa Services Ltd., [1996] L.V.I. 2746-7, Runnymede Development Corp., [1987] OLRB Rep. 1305, Marriott Management Services, [1994] OLRB Rep. 1018, and Martha’s Garden Inc., [1997] OLRB Rep. 891.

8. The applicant filed his submissions on October 31, 2001. The submissions outline the chronology pertaining to the circumstances giving rise to the segregated ballot. Prior to the vote, the union challenged Paul Koevoet’s eligibility to be on the voter’s list. The vote was held on Friday, September 28, 2001 at several locations. No representative of the union was present at the Thunder Bay polling station. On the Monday following the vote, the applicant wrote to the Board and conceded the union’s challenge to Mr. Koevoet’s eligibility and agreed that his ballot should not be counted. On the same date, the union wrote to the Board and acknowledged that it had challenged Mr. Koevoet’s eligibility but was now satisfied as to his eligibility to vote. Mr. Koevoet has been employed by the intervenor since August 15, 2001. He has signed a written consent authorizing the opening of his ballot.

9. The applicant submits that the circumstances justify a departure from the Board’s usual policy of not counting a single segregated ballot. The applicant agrees with the employer that the union should not be permitted to resile from its position prior to the vote. It states that the Board does not have a formal policy or rule for opening of segregated ballots and should do what makes labour relations sense in the unique circumstances of this case. The applicant observes that section 119(1) of the Act permits a person to be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union. Section 119(1) does not preclude the voluntary disclosure of a person’s desire to be represented by a trade union and is of no force in these circumstances. However, the Act does give the Board authority to count the segregated ballot. The secrecy provisions in the Act do not supersede a person’s right to have his or her ballot counted. The Brick Warehouse decision is distinguishable on the facts. Here, the union changed its position after discovering the result of the vote. The union did not have a representative at any of the polling stations or at the counting of the ballots. The union now seeks to rely on its own inaction. A second vote would not replicate the procedure called for in an application for termination, which offers the protection of a 5-day window between the application and the vote. The Board should exercise its discretion to open the segregated ballot.

10. The responding party union filed two letters in reply to the submissions of the applicant and employer. It explains that Mr. Koevoet was originally challenged by the union because he was a “new name” on the list of employees. After some investigation, the union determined that he was a recent hire and therefore withdrew its challenge. There was no agreement among the parties as to the employee’s voting status, and therefore nothing from which to resile. The union agrees that section 119(1) has no application in the present case. However, section 63(10) of the Act requires ballot secrecy whether the employee consents to be identified or not. The reasoning in Brick Warehouse should be applied. The union further asserts that its representative, Ms. Flank, was in contact with the Board officer(s) during the course of the day of the vote and did participate in the process. However, the union’s representative, Mr. Kalka, who attended the Thunder Bay Airport, failed through a communication error to make contact with the Board officers.

Decision

11. The Board thanks the parties for their detailed submissions. The Board has carefully considered the parties’ submissions. The Act requires that a representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made. In the instant application, even assuming that there might be circumstances in which a single deciding ballot should be counted, the Board’s view is that ensuring the secrecy of the ballot by holding a second vote outweighs the considerations argued by the applicant and employer as summarized above.

12. The Board directs that a second representation vote be taken of the individuals in the following bargaining unit, as described in the collective agreement that covered the employees affected by the application:

all employees of the Hostess Frito-Lay Company in the geographic district of Thunder Bay, or who have an employment relationship with the Hostess Frito-Lay Company place of business in Thunder Bay, save and except supervisors, those above the rank of supervisor, office and clerical staff.

13. All employees in the bargaining unit on September 21, 2001, the application filing date, will be eligible to vote.

14. The vote will be held on December 11, 2001. Other vote arrangements will be as determined by the Registrar and set out in the attached Notice of Vote. Voters will be asked to indicate whether or not they wish to be represented by the responding party in their employment relations with the Hostess Frito-Lay Company.

15. The employer is directed to post copies of this decision and of the “Notice of Vote” at the locations where the notices pertaining to the first vote were posted originally. These copies must remain posted for 30 days.

16. Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for termination of bargaining rights, other than status disputes, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 5: Status Disputes in Termination Applications (Non-Construction).

17. The matter is referred to the Registrar.

"Anthony Brown"

for the Board