Amalgamated Clothing and Textile Workers Union — Toronto Joint Board v. Addidas Textile (Canada) Ltd., 1980 CanLII 752

[1980] OLRB Rep. May 639

1804-79-R Amalgamated Clothing and Textile Workers Union — Toronto Joint Board, Applicant, v. Addidas Textile (Canada) Ltd., Respondent.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members H.J.F. Ade and O. Hodges.

APPEARANCES: James Hayes, Jack Matraia, Tony Pileggi and Frank Aquino for the appli­cant; S. C. Bernardo and Werner W. Syndikus for the respondent.

DECISION OF THE BOARD; May 29, 1980

1. The name "K & K Clothing Company Limited" appearing in the style of cause of the Board's decision of January 23, 1980 as the name of the respondent is amended to read: "Addidas Textile (Canada) Ltd."

2. The Board certified the applicant trade union in a decision dated January 23, 1980. By letter dated January 31, 1980 the respondent company seeks reconsideration of the Board's decision to certify the applicant. The respondent alleges that the membership evi­dence relied upon by the trade union was obtained through the support of management offi­cials, including the general manager, the plant supervisor and two foreladies, contrary to sections 12 and 56 of the Act. The matter was put on for hearing on May 1, 1980.

3. The parties agreed that the letter to the Board from counsel for the respondent dated January 31, 1980 and the letter in reply from counsel for the union dated February 7,

1980, with certain agreed amendments and additions, would constitute an agreed statement of fact in this matter. The relevant portions of the respondent's letter of January 31, 1980, with the additions inserted, read as follows:

On or about December 3, 1979, a management official of the Company, Ir­magaard Krause, was terminated. Shortly thereafter George Krause, the general manager of the respondent and the #1 person in the plant, and the husband of Irmagaard Krause told the supervisor of the company that the Company should have a Union. Upon that suggestion the supervisor (Mr. Cabral) immediately telephoned Jack Matraia, a union representative, and informed him that the employees of the company wanted a trade union. Matraia stated that a Union organizer would call him. On Tuesday, Decem­ber 4, 1979 a Union organizer, Tony Peleggi, telephoned the supervisor at the plant located at 650 King Street West and arranged a meeting with him. At approximately 1:00 p.m. that day Peleggi met with the supervisor just outside the plant and gave him a number of Union applications for member­ship cards. The supervisor then took the cards back into the plant and gave them to two foreladies. The two foreladies had been previously told by the supervisor that the general manager was behind it and that there would be no trouble from the Company in distributing the cards. The foreladies then proceeded to ask employees to sign Union membership cards on Company time during working hours in the plant. The employees were requested by the foreladies to come in small groups to a washroom where the signing took place. The employees asked about the Company and were told that the supervisor had said that there would be no problem with the Company and that the supervi­sor had obtained the cards from the Union for them to sign. They were also told that George Krause knows about the union.

The foreladies delivered some membership cards and collected money to the supervisor on December 4, 1979. The supervisor told them to hurry and ob­tain more cards. On Wednesday, December 5th Peleggi telephoned the su­pervisor to enquire about the organizing and urge him to hurry up. The su­pervisor talked to the foreladies and indicated that the Union was in a hurry and for them to sign up the remaining employees. The remaining cards were delivered to the supervisor by the foreladies approximately 12:00 a.m., noon, December 5, 1979. Virtually all of the employees of the respondent except those who were absent signed union membership application cards.

At the request of the supervisor, Peleggi came to the plant and obtained the documents and money that day. On December 4, 1979 an application for cer­tification was filed for the respondent's employees working in the plant at 650 King Street West, Toronto (File No. 1709-79-R). The terminal date in that application was December 13, 1979. Sometime after the Company had posted the Form 5 notice to employees, Peleggi telephoned the supervisor at the plant and told him that the first application was improper because the fo­reladies had obtained the membership evidence for the Union from the em­ployees. That same day, the supervisor told the foreladies that they would have to sign the cards again.

On or about December 14, 1979 during the Christmas party at the plant the supervisor told the general manager that the Union organizers were outside the plant and the general manager immediately left to speak with the union representatives. As the employees were leaving the plant from the Christ­mas party they were approached by 7 or 8 Union organizers and signed Union membership documents on the sidewalk at the door of the plant, some in the presence of the general manager. The union representatives also approached the foreladies who signed membership documents in the pres­ence of other employees. On December 17, 1979 the Union withdrew its ex­isting application for certification and filed a new application for certification (File No. 1804-79-R). On or about January 15, 1980 the general manager at­tended at the Ontario Labour Relations Board hearing in the above referred to application as a representative of the Company. At the hearing it was indi­cated that the Union had filed 104 membership documents and that 98 of those documents corresponded with the respondent's list of 115 employees. The Board indicated that a certificate would be issued. Upon returning to the plant after the hearing the general manager ordered one of the members of the bargaining unit to purchase a bottle of liquor. When the employee re­turned with the liquor to the general manager's office, the general manager stated in the presence of the supervisor 'let's celebrate' and that 'they had won'. The general manager also that day spoke to the employees in the plant and told them that 'they had won.

The relevant portions of the applicant's letter of February 7, 1980, with the additions insert­ed, read as follows:

On or about December 3rd, 1979 one Arnold Cabral telephoned Jack Matr­aia who is Manager of the Toronto Joint Board and explained that people working at K & K were interested in the union. Cabral stated that his wife worked in one of the union shops. Mr. Matraia invited Cabral to attend at his office, which he did later in the day. Cabral told Mr. Matraia when asked, that he looked after the cutting room which had three or four workers and worked on the table with them doing the same work. Mr. Matraia assumed that Cabral was a lead hand. Cabral was given blank membership cards and strict instructions that they were not to be signed during working hours al­though solicitation on lunch hours would be acceptable.

During the meeting, the subject of the discharge of Mrs. Krause was raised. Mr. Matraia explained that if she were a member of management he could only bring it up during negotiations, if the union were to be certified, but such a matter could not be part of any formal proposal.

The following day Cabral telephoned Mr. Matraia and requested more cards. Mr. Tony Pilleggi, an organizer with the union, then attended outside the plant at lunch hour and gave him more cards as requested. Mr. Pilleggi, in accordance with union practice, took custody of cards signed to date and the dollar payments. The application for certification was filed on December 4th 1979.

On December 11th, 1979 Mr. Cabral was invited to have dinner with Mr. Matraia and Mr. Sam Fox, Co-Director of the union. During the course of dinner it became clear to the union representatives that there had been some participation by foreladies in the solicitations of cards filed with the Board.

On or about the following day representatives of the union contacted our office and explained that foreladies may have been involved. The union im­mediately accepted our advice that, although they had been innocent of any irregular solicitation, an application based upon cards obtained in this man­ner should not be left with the Board. The union acted promptly and without hesitation. Pilleggi advised Cabral that the first application would have to be withdrawn. Mr. Matraia then requested that virtually the entire union staff attend out­side the premises of the respondent on December 14th, 1979 in order to so­licit membership support from employees leaving the plant.

New cards were signed and dollars collected. The staff were not familiar with the faces of the many people leaving the plant and signed up anyone who in­dicated support of the trade union, including 6 or 7 foreladies.

Additionally, union representatives attended at various employees' homes where cards were also signed and statutory payments collected.

While solicitation of union membership was taking place on December 14th, Mr. George Krause did come out and approach Mr. Matraia. Mr. Matraia led Mr. Krause 40 feet away (in view but out of hearing) and advised him that he could not speak with him as he was working and that he could not discuss anything with him. Krause was coming from a Christmas party and he had obviously been drinking. Mr. Matraia had met Krause about ten or twelve years ago and they were known one to the other but had not been in contact for years until this period. On December 11th Krause did meet privately with Mr. Matraia in the union office and ask if he could help his wife. There was absolutely no discussion whatsoever about the union on this occasion.

On December 17th the union formally withdrew its first application [Board File No. 1709-79-R] and filed a second one with entirely fresh membership evidence. Ultimately, in the ordinary course, the union was certified by the Board and holds a certificate dated January 23, 1980. ..."

4. The company argues that the Board should find a violation of sections 12 and 56 of the Act and dismiss the application. The company argues in the alternative that the Board should give no weight to the membership evidence and dismiss the application. The com­pany argues in the alternative that if the Board does not dismiss the application on either of the alternative grounds put forward by it, at the very least it should revoke the certificate and direct the taking of a representation vote. The company maintains that in the circum­stances of this case the re-signing of employees should not affect the Board's determination. The company maintains that it was open to the union to withdraw its first application prior to re-signing the respondent's employees and to advise the employees of the reason for the withdrawal. The company argues that instead, the union chose to re-sign the respondent's employees prior to withdrawing the first application and in so doing intended to capitalize on the management support which it had acquired in signing the respondent's employees in the first instance. The company argues that on the evidence it must be found that the em­ployees continued to believe that the company supported and encouraged their membership in the applicant union when they signed cards the second time and further that the re-signing was conducted in a manner designed to foster this belief.

5. The union argues that the general manager of the company was not acting in the interests or on behalf of the company but as an employee who was upset with the company for terminating the employment of his wife. The union relies on Japamco Company Limited, [19791 OLRB Rep. Feb. 106, Children's Aid Society of Metropolitan Toronto, [19761 OLRB Rep. Nov. 651 and Casimir Jennings and Appleby, [1978] OLRB Rep. Feb. 130, in support of the proposition that support tendered to a trade union by a management person acting on his own and not on the instruction of or in the interests of the employer or­ganization does not trigger the application of section 12 of the Act. If Mr. George Krause had been acting on behalf of the company, it is the position of the union that the company cannot now attempt to traffic on its own wrongdoing. In this case, however, the union maintains that he was acting on his own. The union further maintains that whatever taint at­tached to the initial application was purged when the union resigned the employees. The union argues that the employees would have known that the first application was unsatisfac­tory when asked to sign a second time and pay a second dollar. The union maintains that in the real world of the garment industry it has to move quickly to re-sign the employees and that its decision to move quickly cannot be found to create a section 12 bar to the applica­tion. In the event the Board decides to direct the taking of a representation vote the union asks the Board to hold the vote the day following the release of its decision in order to elimi­nate any electioneering by the employer.

6. Section 12 of the Act stipulates:

"The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has con­tributed financial or other support to it or if it discriminates against any per­son because of his race, creed, colour, nationality, ancestry, age, sex or place of origin."

The purpose of the section, in keeping with the scheme of the Act, is to maintain the neces­sary arm's length relationship between employers on the one hand, and trade unions, as rep­resentatives of employees, on the other. In applying section 12, the Board has drawn a dis­tinction between support tendered by the employer, either directly or through persons holding managerial positions within his organization, and support tendered by persons who occupy management positions but act on their own initiative against the employer's interest in support of the interests of the employees. Although a question may arise in these latter circumstances as to the voluntariness of the membership evidence, the necessary arm's length relationship between employer and trade union may not be undermined in a manner which requires the~ automatic application of the section 12 bar. In rejecting the automatic ap­plication of section 12 in these circumstances (as in the Leamington Hospital case, [19731 OLRB Rep. June 376) the Board stated at para. 14 of the Children's Aid Society case, supra:

..... The Board recognizes that in the modern organizational setting interests of individual persons deemed to be managerial are not necessarily coinciden­tal with those of the employer. If the evidence establishes that such persons acted on behalf or in the interests of the employer then undoubtedly the sec­tion 12 bar would apply. If, however, the evidence establishes that the per­sons were acting not on behalf of the employer but contrary to the wishes and interests of the employer (see Air Liquide case (1964) CLLC 16,002) then it cannot be said that the employer has participated contrary to section 12, or section 56 for that matter. Similarly if the evidence establishes that the dis­puted persons have been acting in their self interest rather than on behalf of or in the interest of the employer, then again section 12 should not be activat­ed."

(See also Edwards and Edwards Ltd. 52 CLLC ¶ 17,027, Municipality of Casimir, Jennings and Appleby, supra, Japamco Company Limited, supra and York Steel Construction Limited, decision dated January 24, 1980, unreported, Board file No. 1501-79-R.) The pur­pose of the section is to prevent the certification of a trade union which is party to a "sweet­heart deal" with an employer or is the recipient of employer support so that it does not owe its sole allegiance to those whom it is certified to represent. The Board has consistently ap­plied the section having regard to its underlying purpose.

7. Mr. Krause, the general manager of the company, initiated the union's organizing campaign and directed the plant supervisors and foreladies in the carrying out of the initial campaign. The company finds itself in a difficult situation. If Mr. Krause was acting on be­half of the company or its interests, the company's application for reconsideration must be seen as an attempt to capitalize on its own wrongdoing. If, on the other hand he was acting on his own and against the company's interest, the support tendered may not be support within the meaning of section 12. Mr. Krause did not act on instructions from his superiors or from the principals of the company. Indeed, we were advised at the hearing that Mr. Krause is no longer with the company. While we can only surmise as to his motive, it is clear that he did not act in the interests of the employer. He was, however, the senior representa­tive of the company stationed at the plant with obvious independent discretion in matters re­lating to the day-to-day direction of the operation. If the union had not moved to re-sign the company's employees in support of a fresh application for certification and had proceeded to deal with Mr. Krause as representative of the company, the imposition of a section 12 bar, on reconsideration, may well have been appropriate.

8. However, in this case, the union re-signed the employees of the respondent fol­lowing the filing of the initial application and did so without the direct assistance of anyone connected with the company. The membership evidence submitted in support of the second application was obtained by union organizers outside working hours and outside the plant. It is clear that this company and this union are not party to a "sweetheart deal" and while the union could have withdrawn its first application prior to re-signing the respondent's employ­ees, we are satisfied that in re-signing and collecting a second dollar the applicant attempted to extricate itself from the compromising situation created by the unsolicited assistance given by Mr. Krause. The mischief which section 12 is designed to deal with does not exist in this case. Without at this point considering whether the circumstances under which the em­ployees signed membership documents in support of the second application gives rise to a doubt in the mind of the Board as to the true wishes of the employees, the Board is satisfied the union did not enjoy employer support within the meaning of section 12 of the Act in con­nection with the application which resulted in the issuance of the certificate.

9. The Board is given discretion under section 7(2) of the Act to direct the taking of a representation vote even when satisfied that more than fifty-five per cent of those in the bargaining unit are members of the trade union. As a matter of practice the Board exercises its section 7(2) discretion in favour of a vote when a statement of desire in opposition to the certification of a trade union is proven to be a voluntary expression and contains a sufficient number of signatures which overlap with those appearing in the union's membership evi­dence so that a question arises in the mind of the Board as to the true wishes of the employ­ees who have signed membership cards in support of the trade union. When reference is had to the circumstances under which the initial organizing campaign took place in this case, to the failure of the union to withdraw its initial application prior to resigning the respondent's

employees, to the fact that foreladies were signed along with bargaining unit employees and to the fact that Mr. Krause was in the general vicinity when the re-signing took place, a doubt exists in the mind of the Board as to the true wishes of those who signed membership cards in support of the union's second application for certification. This Board has long rec­ognized that even subtle employer support or tacit approval to the circulation of an anti-union petition can thwart free expression. The circumstances surrounding the re-signing of the respondent's employees give rise to the same concerns with respect to free expression. Accordingly, the Board hereby exercises its discretion under section 95(1) of the Act to re­voke the certificate granted by decision dated January 23, 1980. Furthermore, the Board hereby exercises its discretion under section 7(2) of the Act to direct the taking of a secret ballot representation vote.

10. All employees of the respondent in the Municipality of Metropolitan Toronto, save and except foremen, foreladies, persons above the rank of foreman and forelady, su­pervisors, sales and office staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

11. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

12. There is nothing before the Board as would cause it to abridge the normal time frame for the taking of a representation vote as requested by the applicant.

13. The matter is hereby referred to the Registrar.