[1981] OLRB Rep. November 1605
1175-81-R Vick Diorenzo, Applicant, v. United Electrical, Radio and Machine Workers of America and its Local 512, Respondent, v. Matsushita Industrial Canada Limited, Intervener
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and J. A. Ronson.
APPEARANCES: R. B. Cumine, Q. C. and V. Diorenzo for the applicant; A. E. Jenkyn, F. Davis and A. Rees for the respondent; J. R. Hassel, H. Hemas and E. Tomajko for the intervener.
DECISION OF THE BOARD; November 16, 1981
1This is an application for termination of the respondent union's bargaining rights. The parties are agreed that the application is timely. The principal issue before the Board is whether not less than forty-five per cent of the employees represented by the respondent have voluntarily signified in writing that they no longer wish to be represented by the union.
2The intervener, Matsushita Industrial Canada Limited ('Matsushita") operates a plant in the Municipality of Metropolitan Toronto. The respondent union has been the bargaining agent of its employees for about eighteen months. By a decision dated April 8, 1980, the Board certified the respondent as the employees' bargaining agent, following a pre-hearing representation vote in which 116 employees indicated support for the respondent, and 75 employees indicated their opposition. This substantial dissenting group may be significant in light of subsequent events; for it is apparent that a significant core of the intervener's employees remained unconvinced about the benefits of trade union representation. Their numbers were augmented by new employees or employees who, for one reason or another, came to doubt the value of the union.
3In support of this application, the applicant filed a series of petitions signed by some 70% of employees currently represented by the respondent. The form of the petition unequivocally indicates that the signatories no longer wish to be represented by the union in their employment relationship with the intervener. The issue before the Board is whether this series of petitions, signed by at least 150 of the intervener's employees, is a voluntary expression of their wishes.
4Vick Diorenzo, the nominal applicant in this matter, has been opposed to the union from the outset — a fact which was known around the plant. In the months preceding this application, various employees had indicated their own dissatisfaction to him and expressed an interest in displacing the union when it became timely to do so. A number of meetings were held to enlist supporters and canvass the depth of employee opposition to continued union representation. Eventually, the objectors contacted a solicitor who prepared the petition documents supporting this application, and explained how the signatures on that petition should be solicited. In particular, the solicitor suggested that the document should not be circulated on company premises or company time, and that neither Diorenzo nor any other "group leader" should be involved. The solicitor explained the importance of a rigid adherence to these "rules" in order to avoid any question concerning the voluntariness of the petition.
5Following the meeting with the solicitor, the petition documents were distributed to various employees who had indicated their willingness to help. Because of the size of the plant and the number of employees who had little facility with the English language, it was necessary to enlist a number of individuals from various ethnic backgrounds to actually circulate the document. Each of these individuals was instructed that such circulation should not take place on company premises or company time, that there should be no threats or promises, and that persons who might conceivably be perceived as "managerial" should not be involved.
6Much of the evidence adduced before the Board, over several days of hearing, concerned the solicitation of signatures on the petition. Each of the employees involved gave evidence concerning the circumstances under which each of the signatures was obtained. In many cases, this evidence had to be adduced through an interpreter, and each case, the witness was carefully cross-examined. Not surprisingly, there were some inconsistencies and lapses of memory. The recollection of the witnesses called by the applicant did not always coincide with that of the union's witnesses who gave evidence, and, we are satisfied that one witness, Francis Aird, was not being candid about the location where the signatures he witnessed had been solicited. So anxious was he to convince the Board that he had "followed the rules", and that no signatures had been solicited at the plant, that he was prepared to fill in lapses or gaps in memory with total fabrications. But this does not undermine the general thrust of the evidence; nor would it be surprising, or even particularly significant if some of the signatures were obtained at the plant so long as they were not obtained with the assistance, or in the presence of members of management. There is no such evidence. On the contrary, when the evidence is viewed in its totality, we are satisfied that the petition was circulated in circumstances which do not detract from its voluntariness.
7The union contends that Vick Diorenzo, the applicant, and the key individual in originating the termination application, is a member of management and, consequently, not entitled to initiate these proceedings. In the alternative, the union argues that Diorenzo could reasonably be perceived as "managerial", so that the Board should, in any event, doubt the voluntariness of the employee expression in opposition to the union. The union makes a similar argument with respect to one Lito Dahill. The union alleges that in several instances, Dahill participated in discussions with employees about the petition and encouraged them to sign it.
8Diorenzo and Dahill are "group leaders" ("lead hands") who exercise certain co-ordinating and supervisory functions vis-a-vis other members of the bargaining unit. There are about 15 groups leaders in all. There are varying numbers of employees in each "group". But the group leaders are clearly members of the bargaining unit. Their position is expressly recognized by the collective agreement which establishes a group leader premium. All of the group leaders pay union dues. Some of the group leaders signed the petition; others did not. One of the group leaders (with some 22 employees in his group) is a union steward/Diorenzo has occupied his position for several years (i.e. prior to the union's certification) and at no time before the present proceedings has the union ever claimed that he was managerial. Finally, even if the evidence of the union's witnesses is accepted in its entirety (and we have some doubts about the credibility of some of it), it is clear that Diorenzo and Dahill's role was entirely peripheral to the circulation of the petition documents. When the evidence is considered as a whole, the Board cannot accept the union's submissions with respect to Diorenzo and Dahill.
9On the basis of all of the evidence before it, the Board finds that not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the union. Accordingly, pursuant to section 57(3) of the Act, the Board directs that a representation vote be taken so that it may satisfy itself whether a majority of the employees desire that the right of the trade union to bargain on their behalf should be terminated.
10The bargaining unit which the respondent represents is described as follows:
"all employees of the intervener at its plant at 1475 The Queensway, Toronto, Ontario. or any other television plant within the Municipality of Metropolitan Toronto, save and except forepersons and supervisors, persons above the rank of foreperson and supervisor, office and support staff, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.
Those entitled to cast a ballot in the representation vote will be all employees of the intervener in the bargaining unit on the date hereof, whose employment is not terminated between the date hereof and the date on which the vote is taken.
11Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with the intervener.
12The matter is referred to the Registrar.