[1980] OLRB Rep. August 1217
0080-80-R Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Applicant, v. National Dry Company Ltd., Respondent, V. Group of Employees, Objectors.
BEFORE: M.G. Picher, Vice-Chairman, and Board Members B. Armstrong and J.A. Ronson.
APPEARANCES: E.G. Posen and Bob Hill for the applicant; Bruce Pollock, Andra Pollock and Elio Madonia for the respondent; Frank Kokkoros for the group of employees.
DECISION OF M.G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER J.A. RONSON; August 7, 1980
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1 )(n) of The Labour Relations A ct.
The respondent is involved in the manufacture and distribution of soft drinks. The application is for the bargaining rights of all employees of the respondent working in its plant at Metropolitan Toronto. Initially the application included truck drivers allegedly employed by the respondent and working out of its plant. The respondent took the position that the drivers were not its employees and that aspect of the application, made in the form of an application under section 1(4) of the Act, was withdrawn during the course of the proceedings.
There are two main issues in this application. The respondent alleges that the application is tainted by the participation of a foreman in the union's membership campaign. The employer submits that the application should be dismissed because of the role of the foreman or, alternatively, that his participation in the union's campaign should cause the Board to hold a representation vote among the employees. The second issue is the voluntariness of a petition circulated in opposition to the application. The petition, filed in a timely fashion, was sponsored by a person whom the union alleges was managerial within the meaning of section l(3)(b) of The Labour Relations Act. On that basis, and on the basis of the circumstances of the document's origination and circulation, the union submits that the petition should be given no weight. It submits that it should therefore be certified outright as the bargaining agent of the employees. An issue collateral to the petition is the employment status of Mr. Frank Kokkoros, a salesman in the respondent's company who was the sponsor of the petition.
The Board first heard evidence in respect of the allegation that the application is tainted by the participation of a foreman in the union's campaign. The union took the position that the alleged foreman, Mr. Giacomo Rondana, is a lead hand and not a foreman. The Board therefore conducted an examination of Mr. Rondana with respect to his duties and responsibilities. It also heard evidence of the company's management structures from two members of management called by the company to testify. The parties also agreed that the Board's determination of Mr. Rondana's status would apply to J. Figueroa, a person who performs the same duties as Mr. Rondana on a separate shift.
The evidence establishes that Mr. Rondana is responsible for a five-man crew in the respondent's shipping department. A substantial part of his time is spent working manually loading and unloading trucks, repairing skids and driving a forklift. He is also responsible for paper work, common to a shipper. Part of his responsibility is to direct the employees in the filling of orders which he subsequently checks.
The evidence establishes that it is within the discretion of Mr. Rondana whether the crew will work overtime, albeit his decision is generally dictated by the volume of work.
When working the night shift Mr. Rondana is the person to whom employees report if they need time off or are required to leave early. They likewise come to him to arrange for a day off in advance, although that decision is ultimately taken by the Traffic Manager, Mr. Emilio Calvitto. The evidence also establishes that Mr. Rondana has exercised the authority to correct and initial employees' time cards.
When Mr. Rondana's group works evenings, as it does every second week, his crew are the only employees on the plant premises. As part of his responsibilities, therefore, he is required to close the plant. He therefore carries the keys to the plant for that purpose as well as to open the plant in the morning when he works on the day shift.
The evidence establishes that Mr. Rondana exercises an effective power of recommendation in respect of the disciplinary discharge or transfer of the employees who work with him. On one occasion he suspected an employee of having pocketed money from a retail sale operation that the shipping department conducted at the time. On the strength of his recommendation management transferred the employee concerned to another department. On a second occasion he informed the Traffic Manager that an employee in the crew was not working to a sufficient standard and recommended that the man be discharged. His recommendation was immediately implemented.
A fundamental purpose of the section l(3)(b) exclusion from collective bargaining of persons employed in a managerial capacity is to avoid the conflict of interest that would be inherent if persons whose first loyalty must be to the company are also required to be represented and participate in the furtherance of a union's interest. While in this case Mr. Rondana is clearly close to the line between a foreman and a lead hand, particularly having regard to the extent of the physical labour he performs, the Board is satisfied that when his duties and responsibilities are viewed as a whole, having particular regard to the power of effective recommendation that he has in respect of discipline, the Board finds that he does exercise managerial functions within the meaning of section l(3)(b) of The Labour Relations Act. He is, as the company submits, a foreman.
That, however, does not dispose of the section 12 issue. Section 12 of the Act provides as follows:
"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."
That provision is intended to prevent the certification of unions which are in less than an arm's length relationship with the employer. In other words, it is aimed at preventing the establishment of "sweetheart unions". It is not uncommon for persons in the gray area at the fringes of management, like Mr. Rondana, whose precise employment status is not clear until a determination is made by this Board, to get involved, sometimes deeply, in a union. (See Toronto Children's Aid [1976] OLRB Rep. Nov. 651; Kelly Funeral Homes Limited, [1973] OLRB Rep. Feb. 87; 5. D. Adams Welded Product Ltd., [1978] OLRB Rep. April 353). Less often, but occasionally, persons of clearly managerial rank lend their support to a union s campaign to organize their employees. (See Casimir, Jennings and Appleby, [1978] OLRB Rep. June 507 affirmed in an unreported decision of the Supreme Court of Ontario (Divisional Court) dated July 11, 1978). That, of itself, does not raise a section 12 bar to certification, nor does it necessarily cast any doubt upon the validity of membership evidence. Where the evidence establishes that the foreman or manager was clearly acting contrary to the employer's interests and would have been seen to be so motivated by any reasonable employee, the fundamental concern about a "sweetheart union" underlying section 12 of the Act does not arise. When that is the case the section 12 bar to certification does not arise and there is no reason to presume, absent substantial evidence to the contrary, that the employees were subjected to undue influence in their decision to join a union.
The evidence in the instant case establishes that Mr. Rondana was a vociferous supporter of the union. He collected 12 of the 40 membership cards filed on behalf of the applicant. The evidence is also clear that during the course of his activities Mr. Rondana openly acted contrary to the interests of his employer by supporting the union campaign. He was seen to be so acting by the employees with whom he had contact. A number of employees testified and virtually all of them reflected the view that the company would not be pleased with Mr. Rondana's efforts to unionize its plant. This is not, therefore, a situation where it can be said in any real sense that the company lent any support to the applicant union. There is, moreover, no evidence to suggest that Mr. Rondana exercised any undue influence by virtue of his duties during his support of the union. For the foregoing reasons, at the hearing, the Board dismissed the section 12 allegation and declined, on the strength of the evidence before it, to view the membership evidence as tainted by Mr. Rondana's involvement. The Board therefore declined for that reason, to order a representation vote.
The petition in opposition to this application was sponsored by Mr. Frank Kokkoros, a sales representative of the respondent. A preliminary question was the employment status of Mr. Kokkoros, as the union alleged that he exercised managerial functions within the meaning of section l(3)(b) of The Labour Relations Act. The evidence establishes that Mr. Kokkoros is responsible for approximately fifty per cent of the respondent's sales. He deals exclusively with the chain store accounts, working almost entirely by telephone out of an office in the plant premises. He shares the office with Mr. Emilio Calvitto, the respondent's Traffic Manager.
As a salesman he occasionally receives customer complaints about the conduct of drivers who deliver the respondent's soft drink products to customers' stores. While he may sometimes bring those complaints to the attention of the driver concerned, he does not issue any discipline nor recommend any particular action to members of management. If a particular sales account is jeopardized, he does bring the driver's conduct to the attention of management. There is no evidence, however, that he has ever exercised any power of effective recommendation nor any direct authority in respect of discipline. Having regard to the totality of the evidence in respect of Mr. Kokkoros' responsibilities, including certain administrative and clerical functions that he performs, the Board is satisfied that he does not exercise managerial authority within the meaning of section l(3)(b) of The Labour Relations Act and that he is not employed in a confidential capacity in respect of labour relations.
In considering whether the petition sponsored by Mr. Kokkoros is a voluntary expression of the employees who signed it, the Board must have concern for the perception employees have of Mr. K okkoros' role in the plant. He shares an office with the Traffic Manager. He is responsible for half of the company's sales. It is not uncommon for him to give instructions to foremen Rondana and Figueroa when there is a problem about how to fill a particular order if certain stock is missing or where there has been some error made in filling an order. While Mr. Kokkoros' functions may be clerical or administrative without being managerial, it is clear that he is perceived by other employees as being in a position of special proximity to management.
Mr. Francisco Leandro, a mechanic employed by the respondent, testified that he was approached by Mr. Kokkoros to sign the petition. Mr. Leandro's evidence, which the Board accepts, is that Mr. Kokkoros said to him that if he did not sign the petition against the union he would be "sent away". Similar evidence was given by Mr. Wheeler. Although Mr. Wheeler is a truck driver and is not part of the bargaining unit in light of the union's late amendment of the application, his testimony is nevertheless significant. At the time of the petition the ultimate composition of the bargaining unit was not known. The evidence is clear that both the union organizers and Mr. Kokkoros canvassed the drivers just as they did the plant employees.
Mr. Wheeler testifies that on one occasion he and Mr. Kokkoros had touched on the subject of the union in a conversation in Mr. Kokkoros' office. During that encounter Kokkoros asked Wheeler to tell him who was behind the union and the location of a union meeting that was to take place on the following Sunday. Mr. Wheeler did not give him the information. When Wheeler asked him why he wanted to know, Kokkoros replied that if the union came in it would not matter to him because he was part of management. He explained that he was just curious.
Mr. Kokkoros spoke to Wheeler a second time, this time during the circulation of the petition. The date of this encounter is significant in that it goes to the credibility of Mr. Kokkoros' testimony. Mr. Kokkoros testified that he got the idea of the petition from the Form 5 "green sheets" giving notice of the application for certification, which were posted in the plant on April 17, 1980. According to his testimony he did not have knowledge of how to oppose the union before that time. Mr. Wheeler's evidence is firm that Mr. Kokkoros was circulating his petition on either April 15 or 16, 1980, at a time prior to when the company would have posted the notice to the employees about the application for certification.
During that encounter Kokkoros asked Wheeler to sign the petition. He told him that he had quite a few signatures and that he had no doubt that he could get other drivers to sign. He explained that he could get them fired, especially those who had been employed for less than three months. He assured Wheeler that he had nothing to fear because he had been employed for more than three months.
The evidence establishes that in the circulation of his petition Mr. Kokkoros engaged in threats to the job security of individual employees amounting to breaches of section 61 of The Labour Relations A ct. On the basis of such evidence the Board can attach no weight whatever to the petition which Mr. Kokkoros sponsored. That document does not therefore cause the Board to order the taking of a representation vote among the employees in the bargaining unit.
Having regard to the agreement of the parties the Board finds that all employees of the respondent employed at, or working out of the company's plant at Metropolitan Toronto, save and except foremen, supervisors and persons above the rank of foreman and supervisor, and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on April22, 1980, the terminal date fixed for this application and the date which the Board determines under section 92(2)(j) of The Labour Relations A ct, to be the time fixed for the purpose of ascertaining membership under section 7(I) of the said Act.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER B.L. ARMSTRONG:
In concur with the majority that no weight should be attached to the petition against the application for certification.
1 also concur with the disposition of the application by the issuance of a certificate to the applicant union on the basis that more than fifty five percent of the employees of the respondent in the bargaining unit were members of the applicant at the time of the application.
However, I dissent from the majority decision to include Mr. Kokkoros in the bargaining unit. On the basis of all the evidence, I am of the view that, Mr. Kokkoros is exercising managerial functions within the meaning of Section l(3)(b) of The Labour Relations Act. I would have to excluded him from the bargaining unit.