Amalgamated Clothing and Textile Workers Union v. Chandelle Fashions Ltd., 1981 CanLII 3399

1706-80-U; 1651-80-R Amalgamated Clothing and Textile Workers Union, Applicant, V. Chandelle Fashions Ltd., Respondent, V. International Ladies Garment Workers Union, Intervener.

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: F. Shilton-Lennon, Tony Pileggi, Frank Aquino and George Surdy­kowski for the Amalgamated Clothing and Textile Workers Union; Beth Symes and Len Goguen for the International Ladies Garment Workers Union; M. F. O'Toole and A. Tarka for the Respondent.

DECISION OF THE BOARD;

I

11. This is an application for certification which was heard together with a series of unfair labour practice complaints. The parties before the Board are: The International Ladies' Garment Workers' Union (the "I.L.G."); The Amalgamated Clothing and Textile Workers' Union (the "Amalgamated"); and Chandelle Fashions Ltd. The main application is that of the Amalgamated, which seeks to be certified as the bargaining agent for the employees of Chandelle. The Amalgamated has also filed a complaint under section 79 of the Act, alleging that on October 21, 1980, two of its supporters, Vittoria Bellissimo and Anna Cipresi, were unlawfully laid off because of their trade union activity. This lay off, it is alleged, is part of a scheme of illegal conduct so serious that the Board should certify the Amalgamated pursuant to section 7a.

22. The I. L. G. also represents some of the employees of Chandelle, and has filed an intervention in the certification application. The I. L. G. has filed its own section 79 complaint alleging that on October 21, 1980, two of its key supporters, Lina Bisogni and Lisa Kronquist, were also illegally laid off. The I. L. G. opposes certification of the Amalgamated pursuant to section 7a. The respondent denies that any of these lay offs was related to the employees' trade union activity, and, like the I. L. G., opposes the application of section 7a.

33. It appeared to the Board initially that the appropriate way to proceed was to hear the two applications in sequence, beginning first with that of the Amalgamated, then turning to that of the I. L. G. It soon became apparent however, that all of the proceedings were inextricably intertwined. The Amalgamated proposed to call as its witnesses, the two I. L. G. supporters who had been laid off. Similarly, the I. L. G. indicated that it intended to rely upon the lay offs of Bellissimo and Cipresi. All of the lay offs, it was said, were part of a scheme to frustrate the organizing campaigns of both unions. It was argued that the impact on the other employees was cumulative, and that the facts of all four lay offs were relevant to the determination of the employer's motivation. In the circumstances, the Board considered it appropriate to hear all of the evidence together, and to require both trade unions to proceed first, so that the respondent would be in a position to respond to all of the allegations made against it. We could see no real prejudice to the unions by proceeding in this manner, and it would avoid the possibility of inconsistent findings or having to go through the same evidence twice.

44. The hearing in these matters consumed five days, and the Board heard the evidence of a number of witnesses. All of these witnesses were carefully examined and cross-examined, and consequently, the Board had the opportunity to observe their demeanour, consider the consistency of their answers, and judge the plausibility of their various versions of events. We see little point in reproducing the details of this testimony. It is sufficient in our view, if we set out our findings of fact based upon our assessment of the witness's relative credibility. We might note at the outset however, that on crucial points, we do not accept the evidence of Maria diBartolomeo, the Forelady, or Andrew Tarka, the Production Manager. In particular, we do not accept their explanation for the lay off of the union supporters.

55. Before turning to the facts of the case, it may be useful to set out the chronological sequence in which these proceedings developed before the Board. As we have already noted, on October21, 1980, several employees were laid off. On October 23, 1980 the I. L. C. filed its section 79 complaint. On October 31, 1980 (i.e., after the events which it would later claim made it impossible to ascertain the true wishes of the employees), the Amalgamated filed an application for certification seeking a prehearing representation vote. The Board granted this request and fixed November 28 as the date for the vote. On November 5, the Amalgamated filed its section 79 complaint on behalf of Bellissimo and Cipresi. On November 14 the voters' list was settled at a meeting between the Amalgamated and the respondent. On November 27 the Amalgamated, through its counsel, claimed, without prejudice, that it was entitled to certification pursuant to section 7a. On November 28 the vote was taken. Disregarding the segregated ballots of the grievors in the section 79 matters (which could not affect the outcome in any event) the result of the vote was: 11 employees in favour and 47 employees against the Amalgamated's certification. December 3 was fixed for the first day of hearing into the two union's unfair labour practice complaints.

66. Chandelle Fashions, as its name suggests, is a manufacturer of ladies wear, with factory facilities in the City of Toronto. Its production pattern is cyclical, reflecting the changing seasons and the associated changes in clothing styles. With new lines, patterns, and designs, comes the necessity of setting new "piece rates" for the employees. This process inevitably is finalized. This is what happened in the spring and fall of 1980. Andrew Tarka, the new Production Manager, was considered less responsible to these employee concerns than his predecessor, and it is this which prompted the employees to seek trade union representation.

77. The Amalgamated began organizing at Chandelle in early October 1980. The first union card was signed on October 3,1980. The union's principal contact inside the plant was Vittoria Bellissimo who was personally acquainted with Tony Pileggi, a full-time organizer for the Amalgamated. Bellissimo kept in contact with Pileggi throughout the organizing campaign. She gathered names and addresses in the plant, and during coffee breaks and at lunch periods, spoke to other employees about the advantages of supporting the Amalgamated. Since she openly discussed the union with many of the employees, Bellissimo assumed that her support for the union would be fairly well known among the employees in the bargaining unit.

88. Organizing activities were also undertaken by Pileggi and Frank Aquino, another Amalgamated organizer, who called on the employees at their homes in an effort to persuade them to sign membership cards. Progress was slow but steady. Eventually the Amalgamated was able to acquire 31 membership cards from among the some 65 employees then in the bargaining unit. Because of changes in the employee compliment there were some 61 employees in the unit at the time of the certification application, of whom about 26 had signed cards for the Amalgamated.

99. Throughout the same period, the I. L. G. was also attempting to organize the employees of Chandelle. Its campaign started a little later, but followed much the same pattern. Its principal inside contacts were Lisa Kronquist and Lina Bisogni. Kronquist is the wife of the President of the Toronto Joint Board of the I. L. G., and through her husband arranged for the support of several I. L. G. organizers. Because most of the respondent's employees speak Italian, Kronquist enlisted the help of Lina Bisogni, who assisted her throughout the campaign. Together they secured the names and addresses of employees (by selling lottery tickets), spoke to employees in the plant, distributed union cards, and maintained contact with the I. L. G.'s outside organizers. The latter, sought to visit the employees in their homes just as the Amalgamated organizers were doing. Again, the evidence indicates that Kronquist and Bisogni were quite open in their discussions with other employees, and consequently that their support for the union would have been well known to many of the employees in the bargaining unit.

1010. Both unions had some success. The Amalgamated started first, and eventually solicited more membership cards; however, the I. L. G.'s claim that it was the most appropriate union to represent workers in the ladies' garment industry also seems to have had considerable impact. Of the some 25 or 26 Amalgamated members who were in the bargaining unit on the date the Amalgamated applied for certification, nine later signed I. L. G. cards, and seven of these signed I. L. G. cards within a few days of having signed an Amalgamated card and before the actual application for certification was made. There is no evidence of any improper conduct on the part of the I. L. G. and it would appear that many of the Amalgamated's early supporters later switched their allegiance. Moreover, the I. L. G. continued its campaign right up to the date of the representation vote, claiming that the Amalgamated was bound to lose, and that the I. L. G. was the best union to represent employees in the ladies' garment industry. This campaign may partly explain the Amalgamated's poor showing in the representation vote. Prior to the vote (excluding the segregated ballots) the Amalgamated had membership cards for only 23 of the employees who subsequently cast ballots, and nine of these have also signed I. L. G. cards.

1111. The lay offs on October 21 brought both organizing campaigns to a dramatic halt. The evidence from the organizers for both competing unions was consistent on this point. Persons who were formerly receptive or had indicated they would supply names or other tangible support for the union, were now no longer interested — in some cases citing a fear for their job security. The Board recognizes that hearsay quality of some of this evidence, but the fact remains that both unions were making some progress prior to October 21, but in the weeks after October 21 neither was able to persuade new supporters to sign membership cards. The Amalgamated contends that the lay off also influenced employees to vote against it in the representation vote.

1212. There is no doubt that the respondent was aware of the union's organizing campaign well before the lay offs. Tarka testified that he learned of the presence of a union from a truck driver some time in the week of October 14, and was also told about the union by a cutter as early as October 15. Maria diBartolomeo testified that she learned of the union's organizing campaign on Friday, October 17 when she was telephoned at home by an employee who had been visited by the union. On Monday, October 20, before the commencement of work, two other employees told her that they too had been visited by the union. All of this information was conveyed to Tarka, who told her to keep her eyes and ears open for any further signs of union activity. Tarka suspected, (correctly as it turned out), that the core of union supporters was to be found among the single needle operators. He told the Board that he suspected all of these operators "to a lesser or greater degree", and admits that he and diBartolomeo discussed who might be union sympathizers. He further admits discussing the matter at some length with Arnold Grandili, the Head Cutter. Tarka and Grandili ran through the whole list of employees in an effort to identify union supporters and determine who might be inclined to vote in favour of the union in a representation vote. Grandili identified Lisa Kronquist as a potential supporter, because her husband was an I. L. G. union official; yet Tarka urges the Board to accept his assertion that it "never occurred to him" that anyone in the plant might be a "leader" or particularly active, and he never sought to identify the union s inside organizers. His conduct suggests the contrary, and we simply cannot believe his evidence on this point.

1313. The evidence indicates that Maria diBartolomeo followed Tarka's instruction to the letter. That morning (October 21) Vittoria Bellissimo was five minutes late, and was greeted with the rather curious comment "have you been to a meeting". Later diBartolomeo was observed going from machine to machine talking to the operators, then periodically reporting to the office. This pattern of conduct was unusual in that Mrs. diBartolomeo was not bringing work to the operators and taking it away as she normally did. Arnold Grandili was also observed making a rather unusual number of visits to the office. The same day, a number of women approached Lisa Bisogni to tell her that Maria diBartolomeo was inquiring about the union, and whether they had been visited or signed cards. Anna Cipresi (who works beside Vittoria Bellissimo) told the Board that diBartolomeo had asked her not only about her own union support, but also about that of Vittoria and others. On October 21, Lina Bisogni was also subjected to what she considered to be unusual scrutiny. The Forelady seemed to be watching her carefully, and always seemed to be present when she was talking to other employees. That day too, the respondent insisted upon strict compliance with its rule against bringing handbags on the shop floor — a rule which has not been insisted upon before or since. We are satisfied that on October 20, the day before the lay off, Maria diBartolomeo was attempting to ascertain which employees were union adherents, and it would be surprising if the three high profile organizers — Lisa Kronquist, Lina Bosogni and Vittoria Bellissimo — did not come to her attention. All three were laid off the next day together with Anna Cipresi, who not only signed a union card but, perhaps significantly, works beside Vittoria Bellissimo.

1414. The activities of diBartolomeo and Grandili were not the only unusual events of October 20, 1980. That afternoon there was a meeting in Tarka's office attended by diBartolomeo, Grandili, Mr. Hoogenboom, the company Controller, and Mr. and Mrs. Hegendorfer, the respondent's owners. A meeting such as this was unprecedented and was the subject of some comment among the employees. Maria diBartolomeo was not in constant attendance. She left the meeting periodically to speak to various employees and was visibly upset.

1515. None of the grievors attended the meeting, but it is admitted that the union was one of the principal topics of discussion. The Hegendorfers were "bewildred, surprised and disappointed" at the prospect of a trade union — a reaction which was similar to that of Tarka, the Production Manager. Once more, the management speculated about who might be interested in supporting the union, and diBartolomeo, Grandili, Tarka and the owners ran through the entire list of employees trying to determine who might be union sympathizers. As we have already mentioned, the very next day the three principal union sympathizers were laid off.

1616. The necessity of a lay off was also discussed at the October20 meeting. Tarka asserts that there was a disparity between the projected sales and the actual sales; but the Board was given little indication of the basis for this projection and it is interesting to note that Tarka's concern about over-production is contemporaneous with this first knowledge of the union s organizing attempts. There were no sales data presented to the Board, nor any indication that the company was experiencing financial difficulties. Tarka testified that sales were up over previous periods, and in the months immediately preceding the lay off the respondent had hired single needle operators and was continuing to search for employees to work on serging machines. The grievors were busy when they were laid off, and the shelves were full of work yet to be done. None of the cutters was laid off, and there was still overtime in other parts of the plant. Tarka sought to explain this apparent anomaly by asserting that there was a surge of work requiring serging machine operators; but his own statistics do not demonstrate any dramatic shift of product mix and he was only able to pick out three of the respondent's dozens of styles which were done entirely on the serging machine, and three others which were primarily serging. Moreover, in cross-examination he acknowledged that some of the styles which he had identified as being done exclusively on a serging machine had a single needle piece work rate associated with them. Tarka also told the Board that the respondent's fall lines were different from its earlier lines in that they had an unusually high preparation of heavily constructed or tailored garments; but on cross-examination he admitted that garments such as these could not be made on serging machines.

1717. While the grievors were laid off certain "homeworkers" were not. It is clear from the respondent's own evidence that although homework was reduced somewhat in late fall, these employees continued to work. When the grievors were recalled they observed homeWorkers bringing in completed garments. Initially, Tarka testified that some single needle operators had to be laid off because homeworkers were given priority in recognition of their long association with the company. Later however, he told the Board that "the plant comes first". In December, when the grievors were recalled, homework was almost entirely curtailed. Why did the plant not "come first" in October when the grievors were laid off?

1818. Tarka testified that the decision to lay off employees was made at the meeting of October 20 but the number and selection of employees was left to him. He made his decision on the evening of October 20 or on the way to work on the morning of October21. The criteria for selecting those who would be laid off are, to say the least, bizarre.

1919. The evidence establishes that lay offs of any kind are extremely unusual at Chandelle. Until at least May or June of 1980 over-production, if it occurred, was dealt with either by cutting back on homework, or by flexible work sharing arrangements. The first real lay off occurred in May or June of 1980 when approximately six employees had to be laid off. At that time it is agreed that the following procedure was used:

1. Homework was reduced or eliminated.

2. The employees who had recently been hired were laid off.

3. The Forelady canvassed workers for volunteers; that is, employees who were prepared to accept a lay off with associated Unemployment Insurance benefits.

4. The remainder of the employees shared the reduced volume of work and participated in a "rotating lay off' scheme in which each employee lost only one or two days work throughout the entire lay off period.

The above described method of accommodating production cutbacks was implemented by Maria diBartolomeo and is consistent with the general industry practice.

2020. Tarka had not direct involvement in the June lay off. This, he said, was because he had no personal knowledge of the employees at that time; but on cross-examination, it was apparent that his knowledge was little better in October 1980. Although he suggested that Bellissimo and Cipresi had been chosen because of their lost time or work performance, it was evident that he was entirely unaware of their performance relative to other employees and, such objective evidence as there is before the Board, suggests that the grievors' performance is as good as, or better than, that of other potential candidates for lay off.

2121. For the October 21 lay off, Tarka did not consult with the Forelady. He did not consider accommodating the alleged over-production by reducing homework. He did not canvass for volunteers; indeed, an employee who had asked to be laid off was retained, while the grievors who wanted to work were laid off! He did not consider work sharing. Seniority, he said, never entered his mind — despite the fact that the company was anxious to retain the services of experienced single needle operators. He did not even consider the entire list of single needle operators. In cross-examination, he admitted that there were individuals who were not considered who had less experience and less seniority than some of the grievors. Even skill and ability were not key criteria, for, Tarka said, two individuals were struck from his proposed lay off list because they had less experience than the grievors and would be less likely to complain. The grievors were chosen because they were "complainers" or employees which Tarka thought the company could "do without". They were chosen, he said, because of their "character''.

2222. There is no doubt in the Board's mind why the grievors were selected for lay off. The individuals on the list were either known to be, or likely to be, trade union supporters. Even Norma Harris who ultimately was not laid off, was a "leader" in complaining about the piece work rates and thus, one who could reasonably be suspected of supporting the union. Having regard to the totality of Tarka's evidence the manner in which it was given and, in particular, his performance under cross-examination, we are satisfied that we should not accept his explanation for the reason why the grievors were laid off. On the contrary, we find that they were laid off because of their trade union activity.

2323. We are fortified in our conclusion that the grievors' lay off had little if anything to do with the respondent's production needs, by the manner in which they were recalled. At the time of their lay off, there was no indication of whether or when they would be recalled. Tarka freely admitted that he would have preferred not to have recalled them at all. As late as Friday, November 28, 1980, counsel for the respondent advised the applicant that the grievors were still on "indefinite lay off' and that there was no immediate prospect for recall. Of course, if they were about to be recalled it is arguable that they would have been entitled to vote. But on the following Monday, the day before the commencement of the unfair labour practice hearing, Tarka instructed Maria diBartolomeo to telephone the grievors to advise them of their recall — even though according to the respondent's own evidence the first week in December was the slowest of the season with work in process at its annual low. The grievors testified that when they returned to work they were much less busy than when they were laid off. We are satisfied that the grievors' recall, like the lay off itself, was not motivated by the respondent's production requirements but rather its assessment of how to deal with the representation vote, and the forthcoming Labour Relations Board hearings.

2424. Having regard to the foregoing, the Board finds that Vittoria Bellissimo, Anna Cipresi, Lisa Kronquist and Lina Bisogni, were laid off by the rspondent because of their trade union activity contrary to sections 56, 58(a), 58(c) and 61, of the Labour Relations Act.

2525. On October 24, 1980, three days after the lay off of the unions' key inside organizers, the respondent's owners held a meeting of the employees just before the end of their ordinary work day. This meeting was addressed by the Hegendorfers who discussed both the union organizing campaigns and the employees' terms and conditions of employment. On the basis of the evidence before us, we cannot conclude that the statements made to the employees contravened sections 56 or 61 of the Labour Relations Act. They didn't have to. Only three days before the respondent had "even handedly" eliminated the principal proponents of each of the two contending unions. We do not think that this message would be lost on the other employees.

II

2626. The Amalgamated contends not only that the respondent has contravened the Labour Relations Act, but also that the character of that contravention is so serious, and of such enduring quality, that the Board should issue it a certificate pursuant to section7a of the Act. It is argued that the employer's unfair labour practices constitute an explicit threat to the job security of all employees who might otherwise be disposed to support a trade union. This conduct, it is argued, justifies the issuance of a certificate despite the fact that its rival was equally wronged, and that at the time of the respondent's illegal conduct a significant portion of the Amalgamated's support was drifting to the I. L. G. As we have already noted, if one disregards the membership cards of employees who left the respondent's employ prior to the application, and if one gives effect to the apparently voluntary change of heart of some of the Amalgamated's supporters (perhaps in response to the I. L. G.'s claim to be the "best" union to represent ladies garment workers), we are left with a situation in which the Amalgamated's core support does not differ significantly from that of the I. L. G. And, taken together, the support of the two unions barely constitutes a majority of the respondent's employees.

2727. The I. L. G. opposes the issuance of a certificate pursuant to section 7a both because of its own support among the employees, and because, it is argued, the Amalgamated cannot apply for a prehearing representation vote, acquiesce in the taking of that vote, then urge that the vote be disregarded and a section 7a certificate be issued instead. The respondent joins the I. L. G. in its "waiver” argument, and also maintains that the preconditions for a certificate pursuant to section 7a have not been met. In order for the Board to accede to the Amalgamated's request we must be satisfied that:

(a) the respondent employer has contravened the Act;

(b) the contravention is of such nature that the true wishes of the employees are not likely to be ascertained in a representation vote or otherwise; and

(c) that the Amalgamated has membership support adequate for the purposes of collective bargaining.

If all these conditions are met section 7a gives the Board the discretion to issue a certificate.

2828. We do not accept the contention that by requesting and participating in the "prehearing" representation vote the Amalgamated thereby waived its right to subsequently rely on section 7a. There was certainly no express waiver, and even though the section 7a allegations were filed prior to the vote, the Amalgamated agreed only that the ballots should be counted "without prejudice" to its position on the section 7a issues. None of the other parties made any objection to this procedure — perhaps because they, like the Amalgamated, recognized that the result of the vote itself might be relevant to the section 7a matter, and that there were sound practical reasons for conducting the vote, and counting the ballots. If the Amalgamated had been successful, the section 7a request would have been academic, and it would have been unnecessary to engage in what turned out to be protracted proceedings. A "prehearing" vote is precisely that — a vote conducted in advance of a hearing on the issues which may arise on a certification application. One of these is the applicability of section 7a, and we do not think the Amalgamated is precluded from raising it.

2929. There is no doubt that the respondent's conduct in this case is of a particularly serious nature threatening employee job security in a manner which would seriously undermine their support for any trade union and prejudice the ability of the employees to freely express their wishes in the November 28 vote. The respondent's careful search for union sympathizers and its subsequent laying off the key supporters for both unions, could convey but one message to the employees. Support for any union might result in their termination. This is precisely the kind of conduct which might justify the imposition of section 7a.

3030. The competing policy considerations which underlie section 7a are aptly set out by the British Columbia Labour Relations Board in commenting upon a similar provision in its own statute. In International Brotherhood of Boilermakers, Lodge 359 and Forano Limited [1974] 1 Can. LRBR 13 at page 20 the Board observed:

"Certification without a vote creates a real disincentive to the use of these kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct. Someone who intends to secure a favourable vote from the employees ends up with exactly the opposite result. However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining."

These considerations are particularly apposite in the present case. Here the Board is faced with a novel situation, for both competing unions have been the object of the employer's unlawful activity and both organizing campaigns have suffered. Each union had a substantial core of support among the employees prior to the employer's unfair labour practices, and both found their efforts to organize frustrated. (The I. L. G. has continued its organizing efforts and, it was not until some months later, that it has been able to marginally increase its support.) Only the Amalgamated was able to achieve the bare thirty-five per cent necessary to apply for certification, but even that thirty-five per cent includes a significant number of individuals who, after signing Amalgamated cards, signed a new membership card evidencing support for the I. L. G. It is always difficult to assess the dynamics of an organizing campaign, but on the basis of the evidence before us, it appears to the Board that there was a significant shifting of support towards the I. L.G. This process was occurring well before the Amalgamated's application or the terminal date, and well in advance of the respondent's unfair labour practices. In consequence, the I.L.G.'s support cannot be regarded as a mere response to the Amalgamated's organizing activities. The I.L.G.'s campaign was an entirely independent undertaking, with its own roots, network of supporters, and particular claim to employee allegiance. It may well have matured had the employer's illegal conduct not intervened. Indeed, the I.L.G.'s claim for certification pursuant to section 7a may be just as strong as that of the Amalgamated, for its campaign was subverted before it could even achieve the bare thirty-five percent required to seek a place on the ballot in a prehearing vote! Section 7a is an extraordinary remedy, and an inauspicious beginning to a bargaining relationship in any circumstances, and surely one should hesitate before invoking that section in the unusual circumstances of this case.

3131. In a situation where two competing unions are equally damaged by an employer's unfair labour practices, both have the support of a significant but minority group of employees and both have a claim to the application of section 7a, we do not think it is appropriate to issue a section 7a certificate to one of them. To do so would be to foist a trade union not only upon a group of uncommitted employees who may or may not want a union, but also upon a group of employees who may well prefer another union. A more appropriate Board response, in our view, is a liberal exercise of our remedial authority under section 79, in order to counteract the adverse impact of the employer's illegal conduct and restore each of the unions insofar as possible to the position it would have been in had that conduct not occurred. Compensation for the grievors is not sufficient. It will not undo the chilling effect on other employees of the respondent's unfair labour practices. As the Board noted in Valdi Inc. [1980] OLRB Rep. August 1254 at page 1269:

"However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected with backpay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist for those occasions where he will not. (Indeed, if the experience in the United States indicating that only a small percentage of NLRB reinstated employees have the courage or will to return to work is applicable in Ontario, our reinstatement remedy may be never less effective than this.

See Stephens and Chaney, "A Study of the Reinstatement Remedy under the National Labor Relations Act"[1974],25 Lab. L.J. 31. However, one principal difference between the NLRB and the Board is the greater speed with which remedies may be mobilized and finalized under Ontario's Labour Relations Act. This factor may be an important difference to the effectiveness of our reinstatement orders.) We would add that our concern for remedial effectiveness is not limited to situations where employers are respondents. Trade unions have important obligations under the statute as well and individual employees who are mistreated by them must also be assured of future lawfulness. One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements. This remedy, in the usual form of a posting of a notice for sixty days in a conspicuous location(s) in the workplace, was first developed by the Board in Radio Shack, supra, although its origin in labour law is ancient. See for example: The Falk Corporation [1940], 308 U.S. 453, 5 LRRM 677 at p. 682; Bradford Dyeing Association [1940], 310 U.S. 318, 6 LRRM 703 at p. 715. In more exceptional cases the posting of a notice will be insufficient and mailing, publishing, and reading of notices may be directed in order to redress the impact of unfair labour practices in question. See Radio Shack, supra, at p. 1270. See also Comment, Labour Remedies [1968], 54 Virginia L. Rev. 38 at p. 48. And more generally, Comment, NLRB Remedies — Moving Into The Jet Age [1975], 27 Baylor L. Rev. 292. However, we believe the posting of notices should not be confined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear forjob security will be lessened with the realization that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confusion or ill-will created by a situation which has been equitably resolved."

3232. The instant case calls for a remedy which will redress the damage done to the (competing) organizing campaigns of both unions, and will assure all of the employees that they need not fear termination or lay off because of their association with either the Amalgamated or the I. L. G. Both unions had a legitimate claim to the allegiance of the employees, and it must be clear to those employees that they are free to support either union without fear of reprisal. We recognize that in restoring the situation to what it was prior to the employer's unfair labour practice, we are restoring the parties to a situation in which two unions are aggressively, and to some extent successfully, competing for the allegiance of the respondent's employees. It may be that as a result of this intense rivalry neither union will ultimately be successful in securing majority support. But this is precisely the situation in which they found themselves prior to the respondent's unfair labour practice.

3333. Having regard to the foregoing, the Board issues the following remedy:

(a) The Board declares that the respondent unlawfully has laid off Lisa Kronquist, Lina Bisogni, Anna Cipresi and Vittoria Bellissimo because of their trade union activity, contrary to sections 56, 58(a), 58(c) and 61 of The Labour Relations Act.

(b) The Board directs that the respondent forthwith compensate each of the grievors for all wages and benefits lost during the period when they were unlawfully laid off. Such compensation shall bear interest calculated in the manner set out by the Board in Hallowell House [1980] OLRB Rep. January 35. The Board will remain seized of this matter in the event that any dispute arises with respect to the calculation of the amount owing to each of the grievors.

(c) The respondent is directed to cease and desist from discriminating against union supporters in any manner whatsoever, and, in particular the respondent is directed to refrain from unlawfully laying off or threatening to lay off union supporters.

(d) The Board directs the respondent to post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places at its place of business where the notices are most likely to come to the attention of the employees in the bargaining unit. The respondent shall keep these notices posted for 60 consecutive days. Reasonable steps shall be taken by the respondent to ensure that the notices are not altered, defaced or covered by any other material. Reasonable physical access to all such premises shall be given by the respondent to two representatives of each of the two unions involved in this matter, so that they may satisfy themselves that this posting requirement has been and is being complied with.

(e) The respondent is directed, at its own expense and without comment, to deliver a copy of the attached notice marked "Appendix" after being duly signed by the respondent's represen­tative, to each employee in the bargaining unit.

(0 The respondent is directed to provide each of the unions forthwith with a list of the names and addresses and telephone numbers (if available) of employees in the bargaining unit, and to keep such list updated from time to time for one year, or until one of the unions has been certified as the employees' bargaining agent, whichever shall first occur.

(g) The respondent is directed to permit each of the unions access to the respondent's premises during two consecutive lunch periods so that the representative of each union can address the employees. These four lunch period meetings shall take place out of the presence of any member of management and shall alternate between the two unions involved, beginning with the Amalgamated.

(h) Each union must be given full access to the respondent's bulletin boards or other places in which notices to employees are posted, so that the two unions will be able to post their own literature directed to the employees. Such right of access must continue for a period of one year, or until one of the unions has been certified whichever first occurs.

3434. The representation vote conducted on November 28, 1980 is hereby set aside and a new representation vote is ordered. Such representation vote shall not take place until the Board's remedial order has been fully complied with, but in any event, not later than three days after the last lunch hour meeting. The purpose of the representation vote is to give the employees an opportunity to indicate whether or not they wish to be represented by the Amalgamated Clothing and Textile Workers Union. Those entitled to vote will be all employees on the day hereof who do not voluntarily terminate their employment or are not discharged for cause between the date hereof and the date fixed for the taking of the representation vote.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE TO ALL EMPLOYEES IN ORDER TO COMPLY WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD. THAT ORDER WAS MADE AFTER A HEARING IN WHICH ALL INTERESTED PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE UNLAWFULLY LAID OFF LISA KRONQUIST, LINA BISOGNI, VITTORIA BELLISSIMO, AND ANNA CIPRESI CONTRARY TO THE ONTARIO LABOUR RELATIONS ACT. THE BOARD HAS ORDERED US TO COMPENSATE EACH OF THESE EMPLOYEES FOR ALL OF THE WACFS WHICH THEY HAVE LOST AS A RESULT OF THEIR UNLAWFUL LAY OFF, THE BOARD HAS ALSO DIRECTED US NOT TO INTERFERE WITH OUR EMPLOYEES RIGHT TO JOIN OR NOT TO JOIN A UNION, AND HAS ORDERED US TO INFORM ALL OF OUR EMPLOYEES OF THEIR RIGHTS.

THE ONTARIO LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THE RIGHT:

(A) TO FORM OR JOIN A TRADE UNION OF THEIR CHOICE;

(B) TO ENGAGE IN COLLECTIVE BARGAINING CONCERNING THEIR TERMS AND CONDITIONS OF EMPLOYMENT;

(C) TO REFUSE TO DO ANY OF THESE THINGS.

THESE RIGHTS ARE GUARANTEED BY LAW. WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS.

• WE WISH TO ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT LAY OFF OR DISCRIMINATE AGAINST EMPLOYEES IN ANY WAY BECAUSE THEY WISH TO SUPPORT A TRADE JNION. WE WILL COMPENSATE LISA KRONGUIST, LINA RISOGNI, ANNA CIPRESI AND VITTORIA BELLISSIMO FOR THE MONEY THAT THEY HAVE LOST AS A RESULT OF THEIR LAY OFF.

• IF THE EMPLOYEES CHOOSE A TRADE UNION TO REPRESENT THEM. WE WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEE SUPPORTING THAT UNION, AND WE WILL BARGAIN IN GOOD FAITH WITH THE UNION, AND MAKE EVERY REASONABLE EFFORT TO CONCLUDE A COLLECTIVE AGREEMENT. IF AN UNDERSTANDING IS REACHED, WE WILL SIGN A CONTRACT WITH THE UNION OF THE EMPLOYEES' CHOICE,

CHANDELLE FASHIONS

PER (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this I7TH day of JULY . 19 81

Appendice

Legge sui Rapporti Lavorativi

AVVISO AGLI IMPIEGATI

Affisso per Ordine della Commissione

deli 'Ontario per i Rapporti Lavorativi

ABBIAMO PUBBLICATO QUESTO AWISO A TUTTI I DIPENOENTI PER ADEMPIERE UN ORDINE DELL'CNTARIO LABOUR RELATIONS BOARD. L'oRDINE E STATO EMESSO IN SEGUITO AD UN UDIENZA, DURANTE LA QUALE TUTTE LE PARTI INTERESSATE NANNO AVUTO MODO DI PRESENTARE I LORO ARGOMENTI. L'ONTARIO LABOUR RELATIONS BOARD HA CONCLUSO CHE LA DITTA HA AGITO ILLEGALMENTE, SOSPENDENDO DAL LAVORO LISA KRONQUIST, LINA BISOGNI, VITTORIA BELLISSMO E ANNA CIPRESI, CONTRO QUANTO E PRESCRITTO DALLA LEGGE CHE REGOLA I RAPPORTI DI LAVORO, L’ONTARIO LABOUR RELATIONS ACT, IL BOARD CI HA OROINATO DI COMPENSARE CIASCUNA DI QUESTE DIPENDENTI PER TUTTO IL SALARIO PERSO IN SEGUITO ALLA SOSPENSIONE ILLEGALE DAL LAVORO. IL BOARD CI HA ANCHE DATO DIRETTIVE DI NON IMPEDIRE AI NOSTRI DEPENDENTI DI ESERCITARE IL LORO DIRITTO DI ADERIRE O MENO A UN SINDACATO, E CI HA ORDINATO DI INFORMARE TUTTI I NOSTRI DEPENDENTI CIRCA I LORO DIRITTI.

LA LEGGE "ONTARIO LABOUR RELATIONS ACT” DA A TUTTI I DIPENDENTI IL DIRITTO:

(A) DI FORMARE UN SINDACATO O DI ADERIRE AL SINDACATO DI PROPRIA SCELTA;

(B) DI CONDURRE TRATTATIVE COLLETTIVE PER QUANTO RIGUARDA I SALRI E LE CONDIZIONI DI LAVORO;

(C) DI RIFIUTARE DI FARE LE COSE ELENCATE SOPRA.

QUESTI DIRITTI SONO GARANTITI DALLA LEGGE.

NOI NON FAREMO NULLA PER IMPEDIRE IL LIBERO ESERCIZIO DI QUESTI DIRITTI.

• VOGLIAMQ ASSICURARE A TUTTI I NOSTRI DIPENDENTI CHE NESSUNO SARA SOSPESO DAL LAVORO O CHE RICEVERA IN QUASIASI MODO TRATTAMENTI SPAVOREVOL I SOLO PERCNE VUOLE ADERIRE AL SINDACATO E SOSTENERLO. RISARCIREMO LISA KRONQUIST, LINA BISOGNI, ANNA CIPRESI E VITTORIA BELLISSIMO DEL DANARO CHE ESSE HANNO PERSO IN SEGUITO ALLA LORO SOSPENSIONE DAL LAVORO.

• SE I DIPENDENTI SCEGLIERANNO UN SINDACATO CHE LI RAPPRESENTI, NOI NON TRATTEREMO IN MODO DIVERSO DAGLI ALTRI DIPENDENTI COLORO CHE DECIDERANNO DI ADERIRE AL SINDACATO, E NEGOZIEREMO IN BUONA FEDE CON IL SINDACATO E FAREMO OGNI RAGIONEVOLE SFORZO PER GIUNGERE AD UN ACCORDO PER UN CONTRATTO COLLETTIVO. SE SI GIUNGERA AD UN ACCORDO, NOI FIRMEREMO IL CONTRATTO CON IL SINDACATO SCELTO DAI DIPENDENTI.

CHANDELLE FASHIONS

FIRMATO (RAPPRESENTANTE AUTORIZZATO)

Questo e un avviso ufficiale della Commissione e non si

deve rimuovere o sfregiare.

Questo avviso deve rimanere affisso per 60 giorni di lavoro consecutivi.

17 LUGLIO 1981