[1982] OLRB Rep. November 1718
0983-82-R Angela Lopardo, Applicant, v. The International Ladies' Garment Workers' Union, Respondent, v. Sigal Shirt Company Limited, Intervener.
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members C.G. Bourne and H. Kobryn.
APPEARANCES: Nicolas Canizares for the applicant; S. B. D. Wahl, H. Stewart and
R. Sutherland for the respondent; Barry Edson for the intervener.
DECISION OF THE BOARD; November 2, 1982
This is an application for a declaration that the respondent, at the time a recognition agreement was entered into, was not entitled to represent the employees in the bargaining unit. The Board by its decision dated October 8, 1982, dismissed this application and stated that reasons would follow. These are the reasons.
Originally the application was founded upon three grounds:
There was a denial of natural justice regarding the rights of employees as neither the Respondent nor the Employer advised the employees that a voluntary recognition agreement would be signed. Accordingly the employees were denied their right to make submissions to the Ontario Labour Relations Board prior to recognition.
On June 25, 1982 (amended) the date the voluntary recognition agreement was entered into the Respondent did not enjoy the majority support of the employees in the bargaining unit. Accordingly the voluntary recognition of the Respondent is invalid.
The Employer and the Respondent entered into the voluntary recognition agreement for their own separate purposes and neither party took into consideration the wishes and desires of the employees in the bargaining unit.
After hearing extensive opening statements and after a Labour Relations Officer met with the parties, the applicant withdrew grounds #1 and #3 because the applicant was satisfied there was no "sweetheart" deal and that the employees in the bargaining unit had received sufficient notice of proceedings so that intervention could have taken place. With regard to ground #2 the applicant was prepared to admit the bona fides of the respondent's membership cards and the intervener's list of employees on payroll as of June 25, 1982, the agreed date upon which the recognition agreement was entered into. On the basis of this the applicant acknowledged that as of June 25, 1982 there was membership support in the form of membership cards in the respondent for 46 of the 87 employees in the appropriate bargaining unit. While acknowledging that this amount of support would in the normal course lead the Board to conclude that the respondent was entitled to represent the employees in the bargaining unit, the applicant requested the Board to make an unusual decision in this case. Relying on section 60(2) the applicant requested the Board to exercise its discretion to hold a representation vote.
Not surprisingly, both the respondent and the intervener argued strongly that no vote should be held. The respondent went further than merely requesting that the instant application be dismissed and sought an order of this Board confirming the agreement of the respondent and intervener entered into on June 25, 1982 and confirming the "representative status" of the respondent to represent employees.
The facts necessary to the Board's determination are that On June 30, 1982 the Board "endorsed for the record" in OLRB File Nos. 2328-81-U, 2382-81-R and 2631-81-U Minutes of Settlement between the respondent and the intervener. Among other matters settled the intervener recognized:
..... the International Ladies' Garment Workers' Union as the bargaining agent for all employees of the Sigal Shirt Company Limited in Metropolitan Toronto, save and except forepersons, persons above the rank of forepersons, office and sales staff, mechanics, designers, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period. For purposes of clarity Laurenio Amaral and Achilles Recchia are forepersons;"
and acknowledged that as of June 25, 1982 the respondent represented the majority of the employees in the bargaining unit described above. The Minutes of Settlement also recorded the acknowledgement by both parties that the entering into of the settlement served as notice to bargain in accordance with the Act. The other matters dealt with amounted to the resolution, on a without prejudice basis, of issues raised in a number of unfair labour complaints pursuant to section 89 both before and after a certification application filed February 17, 1982.
Both the respondent and intervener do not want this settlement disturbed by the holding of a representation vote. The respondent claims that if a vote were ordered it would be required to resurrect settled section 8 and section 89 applications. This result would fly in the face of the desirable and fostered policy of the Board to encourage parties to settle their differences.
The Board is not prepared to upset in these circumstances a settlement of representation rights and other related matters between these parties. The applicant has not offered the Board any evidence upon which the Board could act to exercise its discretion and order a vote pursuant to section 60. Indeed in light of the applicant's admissions noted in paragraph 2 above, the Board is hard pressed to imagine what evidence the applicant could call to persuade us that a vote was necessary.
We have also declined to make the confirmatory orders requested by the respondent. An order confirming the agreement entered into by the respondent and intervener on June 25, 1982 would appear to be unnecessary in light of the previous Board decision endorsing for the record such agreement. As to the requested order regarding "representative status", the Board has determined that this could be regarded by some as a form of certification. At this point in time the respondent is a bargaining agent which has been voluntarily recognized by the intervener and, as such, is a different position than a bargaining agent which has been certified (see for example sections 5 and 61 of the Act). If the respondent had been applying for certification with the membership support noted above as of June 25, 1982, it would not be entitled to certification without a vote unless it could show circumstances justifying this under section 8 (see for example K-Mart Canada Limited [1981] OLRB Rep. Jan. 60 and cases cited therein). The respondent should not be permitted, through a response to a section 60 application, to gain certified status which could only have been achieved through the regular procedures of the Board, to improve its position beyond that of June 25, 1982.
For all these reasons the Board has dismissed the application.