[1981] OLRB Rep. November 1542
0859-81-U Canadian Textile & Chemical Union, Complainant, v. Albert Sliwinski Ltd. c.o.b. as Avon Sportswear, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and H. Simon.
APPEARANCES: Laurel Ritchie, Manuel Cruz and Jack DiPrima for the complainant; D. Wake/v and A. Sliwin for the respondent.
DECISION OF THE BOARD; November 20, 1981
This is a complaint under section 89 of the Labour Relations Act alleging that the grievor, Manuel Cruz, was dealt with by the respondent contrary to the provisions of sections 64, 66, 70 and 80 (formerly sections 56, 58, 61 and 71) of the Act. The complaint arises as the result of a written warning issued by the respondent to the grievor on July 8th, 1981. The complainant contends that the written warning was issued because of Cruz' membership in and support of the complainant. The complainant is seeking, by way of relief, that the written warning be rescinded and that it be removed entirely from the employee's record.
The complainant, in support of its claim that the written warning was issued because of Cruz' membership in and support of the complainant, has alleged that Mr. Albert Sliwin, president and owner of the respondent did:
(a) speak to Cruz and another employee, Jack DiPrima, together on June 4th and accused them of having employees sign applications for membership in the complainant under false pretences and that he told Cruz and DiPrima to remain members of the United Garment Workers of America ("the Garment Workers"), the union which at that time was bargaining agent for the respondent's employees;
(b) shortly after speaking to the two employees on June 4th, call a meeting of all employees on working time and repeat to the meeting his accusation about the two employees' activities; state that the Garment Workers would continue to represent some employees in the plant even if the complainant was certified and that lay-offs and firings could follow were the complainant to be certified; and
(c) threaten the employment security of Cruz on July 8th by referring, after giving him, the written warning, to the prior termination of re-employment without compensation of DiPrima.
The facts set out hereunder are derived from the testimony of Sliwin, DePrima, Cruz and James Goulding. Goulding is shop steward for the Garment Workers and a member of its negotiating committee which was engaged in negotiating with the respondent for the renewal of a collective agreement during most of the times material to this complaint. There were some inconsistencies and differences in the evidence of the witnesses for the respondent and the complainant and the findings of fact reflect the Board's asses nent of all of that evidence, the reliability of the witnesses' recollection of events, their demeanor and relative credibility.
The respondent has been in the business of manufacturing sportswear for more than twenty years. It employed some 400 employees at the time of the complaint. For the vast majority of these employees English is not their first language. According to Sliwin, the languages spoken in the plant by the employees reflected most of the languages spoken today in Metropolitan Toronto. The United Garment Workers of America, as noted above, is the current bargaining agent for these employees and has been for the past three years. The complainant began an organizing campaign amongst these employees at the beginning of June 1981 in order to attempt to displace the Garment Workers as their bargaining agent.
Early in the complainant's campaign Sliwin received complaints from some of the female employees that Cruz and DiPrima had approached them to sign something to do with another union under what the employees thought were false pretences. Sliwin was annoyed by the complaints because he saw them as disruptive of his work and of the operations. He confronted Cruz and DiPrima with the fact that he was receiving complaints and the nature of the complaints as they had been made to him. They denied that they had been doing anything which would mislead employees so he told them to stop whatever it was that they were doing which was causing the complaints. Sliwin allows that he concluded from the complaints that the two employees were supporters of the complainant, but the Board is satisfied from DiPrima's evidence that Sliwin did not try to influence the two employees' support for the complainant. DiPrima admitted that Sliwin did not attempt to talk them out of supporting the complainant, he just told them to stop doing whatever it was that was bothering other employees.
Some time within the next half hour Sliwin was addressing a meeting of all employees which he had announced over the plant's "intercom" system. He told the meeting that he had received complaints from employees that they were being asked to sign something for a union under what they believed were false pretences. He told the meeting that the complaints were interfering with work and that he was not prepared to cope with them. He cautioned the employees that, if they were being asked to sign something, to be sure they knew what it was before they signed it and not to come complaining to him after the fact because there would be nothing that he could do about their problems. The evidence is conclusive that Sliwin did not refer by name to either the Garment Workers or the complainant, nor did he refer by name to Cruz or DiPrima. In fact Sliwin told the employees, according to DiPrima, that he did not care what union represented them.
There was no further problem with respect to Cruz after that meeting until July 8th, the date on which the written warning was issued to him. That morning, four employees complained to Goulding that Cruz was bothering them to vote against the settlement terms which had been negotiated between the Garment Workers and the respondent and they asked Goulding to stop Cruz from bothering them in this manner. Goulding decided that this was a complaint between employees and not a complaint between employees and the employer, the type of complaint which he was accustomed to dealing with. He surmised that Cruz would more likely pay attention to Sliwin than to himself. Therefore he contacted Sliwin's secretary and arranged to see Sliwin that same morning. Goulding left Sliwin's office after having related the employees' complaint to him. Sliwin responded by calling Cruz to his office and issuing the written warning to him. When Cruz asked why he was getting the written warning, Sliwin told him that there had been further complaints of him bothering employees. Cruz denied that he had done anything and inquired as to who had made the accusations. When Sliwin told him that the complaints had been made to Goulding and that Goulding had related them to him, Cruz asked Sliwin to call Goulding in. Sliwin did so immediately and Goulding repeated the complaints just as he had related them to Sliwin.
These facts establish to the Board's satisfaction that Sliwin was responding to complaints emanating from his employees when he spoke to Cruz and DiPrima on June 4th, when he spoke to the employees at the meeting he called shortly thereafter and again on July 8th when he issued the written warning to Cruz. Sliwin did not tell or otherwise indicate to Cruz and DiPrima either when he was speaking to them directly on June 4th or when he was speaking to the employees at the meeting that they should stop their activities in support of the complainant. While it is equally clear that he did tell them to stop doing whatever it was that was causing employees to complain to Sliwin, there is no evidence from which the Board is prepared to infer that this was a veiled threat to cease their activities on behalf of the complainant. Sliwin called the June 4th meeting of employees for the purpose of advising them that he was receiving complaints from some employees who were claiming that they were being misled into signing some document for a union. He cautioned them that, if they were being asked to sign anything, to be careful to know what it was and not to come complaining to him afterwards since he would be unable to help them and he was not prepared to cope with a lot of complaints. The complainant's evidence about this event not only does not establish any contravention of the Act, it corroborates the evidence of Sliwin and Goulding that Sliwin said nothing at the meeting about either union and he limited his remarks to the cautionary statements just referred to. When complaints about Cruz surfaced anew on July 8th, Sliwin responded to the complaints as related to him by Goulding with the written warning which was issued to Cruz. He did so because he believed from what Goulding had told him that Cruz was the cause of these renewed complaints.
While these facts, in the Board's view, show Sliwin to have acted impetuously and to have over-reacted to the complaints, his reactions are not so out of proportion to the nature of the complaints as to cause the Board to infer that his actions were motivated, even partially, by anti-union sentiment. Since there is no direct evidence that Sliwin holds anti-union views and there is no other no other evidence from which the Board could make that inference, the Board is satisfied that the respondent issued the written warning to Cruz for the reasons stated and those reasons did not include any anti-union motive.
Accordingly the complaint is dismissed.
Respondent counsel had taken a preliminary position that the Board should dismiss the complaint because it failed to disclose any cause of action, or in the alternative, if the Board heard and dismissed the complaint, counsel asked the Board to find that the complaint was so frivolous and without merit as to be an abuse of the Board's process and for that reason urged the Board to award costs against the complainant as a deterrent to such abuses. the Board's long-standing general practice is not to award costs against an unsuccessful applicant. Even were the Board prepared to do so in a case of flagrant abuse, it would not do so in this case. For, while the Board has found the complaint to lack sufficient merit to succeed, the Board does not find it so lacking in merit as to be a flagrant abuse of the Board's process. Therefore the Board declines to assess costs against the complainant as requested by respondent counsel.