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

BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

DECISION OF THE BOARD; October 25, 2001

1This is an application for termination of bargaining rights.

2A representation vote was held on September 28, 2001 by order of the Board’s decision dated September 26, 2001. The outcome of the vote was 8-7 against the union. One ballot remains segregated. If counted, that ballot would determine the application.

3The parties are in dispute about whether a second vote should be ordered under the circumstances. The union asserts that a second vote should be ordered because to open the one segregated ballot would reveal the wishes of that employee contrary to union membership secrecy provisions which are contained in the Act. The applicant asserts that no second vote need be ordered because the employees whose ballot is segregated is prepared to have his ballot opened. The employee has signed a letter to the Board to that effect.

4Hearings are currently scheduled in Toronto to deal with the issue. However, the applicant and employer assert that the matter can be argued by way of written submissions. The union prefers an oral hearing.

Decision

5The Board’s general policy, consistently appeared over many years, is not to open a single segregated ballot because to do so would reveal how the employee who cast that ballot voted. Such a result is inconsistent with section 119(1) of the Act. For example, in The Brick Warehouse Corporation, [1996] OLRB Rep. Nov./Dec. 921 the Board ordered a second representation vote in circumstances substantially identical to the one before the Board in this matter.

6Under these circumstances, the Board directs the applicant and the employer to file submissions regarding why the Board ought not to apply the usual practice and order a second vote in this case. Submissions must be filed by October 31, 2001. If it is necessary to hear from the union, the Board will determine at that time whether to receive written argument, or whether to put the entire matter on for oral hearing on a new date, to be scheduled promptly. In the meantime, the hearing dates scheduled for October 29 and 30, 2001 are adjourned.

“Brian McLean”

for the Board