Ontario Labour Relations Board

[1982] OLRB Rep. December 1869

0756-82-R United Food and Commercial Workers International Union, Applicant, v. Primo Importing and Distributing Co. Ltd., Respondent, v. Primo Employees' Association, Intervener.

BEFORE: R.D. Howe, Vice-Chairman, and Board Members J.A. Ronson and S. Cooke.

APPEARANCES: James Hayes, Vincent Gentile, Ron Lebi and Stan Henderson for the applicant; R. M. Parry, Arthur Pelliccione and Angelo Capozzi for the respondent; M. G. Horan and M. Zangolli for the intervener.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER S. COOKE; December 24, 1982

1. This is an application for certification in which the applicant seeks to be certified without a representation vote, pursuant to section 8 of the Labour Relations Act, as bargaining agent for a unit of the respondent's production employees (including drivers and warehouse personnel).

2. The intervener and the respondent contend that this application is untimely as a result of a collective agreement which they submit was in force between them at all material times. In the alternative, the intervener seeks to be certified as bargaining agent for the employees affected by this application.

3. In support of its application for certification under section 8, the applicant alleges that the respondent has violated sections 13, 64 and 66 of the Act. It further alleges that the intervener is not a trade union within the meaning of the Act, that the Board is precluded by section 13 from certifying the intervener, and that the document which the intervener and the respondent raise as a collective agreement is not a bar to this application because the respondent has participated in the formation and the administration of the intervener contrary to section 48 of the Act.

4. The hearing of this matter was originally scheduled for August 6, 1982 but was adjourned to August 13th on the agreement of the parties, on the condition that any continuation of hearing would not take place during certain weeks in September due to the non-availability of a particular witness. After hearing the submissions of the parties on August 13th with respect to the procedure to be adopted in hearing this case, the Board ruled that it would first call upon the intervener to adduce its evidence (concerning its trade union status and concerning all other outstanding issues), and would then hear the respondent's evidence and the applicant's evidence on all aspects of the case, followed by reply evidence (if any) of the respondent and the intervener. Unfortunately, the matter could not be scheduled for continuation of hearing until late October due to non-availability of the applicant's key adviser for an extensive period of time for medical reasons, non-availability of the aforementioned witness, and previous commitments to other pressing matters by counsel and members of this panel.

5. After the Board had heard the evidence of Marcello Zangolli, the sole witness called by the intervener, and Angelo Capozzi, the respondent's first witness, the parties agreed to argue the following issues on November 17, 1982, on the basis of the evidence of those two witnesses, thereby foregoing their right to call any other evidence concerning those issues:

(1) whether the intervener is a trade union within the meaning of the Act;

(2) whether section 13 of the Act precludes the Board from certifying the intervener; and

(3) whether there is a collective agreement between the intervener and the respondent which renders the applicant union's application for certification untimely.

7. The respondent manufactures and distributes various food products. Although there remains some dispute among the parties concerning the precise composition of the bargaining unit, it appears from the material filed with the Board by the respondent that, at the time of this application, its work force consisted of over 180 non-managerial production and delivery employees. It is common ground among the parties that the bargaining unit should include employees at the respondent's Huxley Road plant and its Marmora Road plant.

8. It appears that the applicant or its predecessor, the Amalgamated Meat Cutters and Butcher Workmen of North America (which merged with the Retail Clerks International Union in June of 1979 to form the applicant) has been attempting to organize the respondent's employees for a number of years. Although the evidence concerning those organizational activities was somewhat sketchy, it is a matter of record that the Amalgamated Meat Cutters and Butcher Workmen of North America filed complaints against the respondent in 1975 under what is now section 89 of the Act (Board File Nos. 1200-75-U and 1784-75-U). It is also a matter of record that a previous certification application (hereinafter referred to as the "earlier application") was filed by the applicant in relation to the respondent's production employees on June 13, 1980 (Board File No. 0570-80-R, which was heard together with File No. 0686-80-U). As noted in paragraph 6 of the decision of the Board (differently constituted) in respect of that application (reported in [1981] OLRB Rep. July 953), some of the (Amalgamated Meat Cutters ...) cards filed in support of that application dated back to 1978. That decision was issued after 16 days of hearing in which the Board heard evidence of 21 witnesses. Since both the applicant and the respondent placed some reliance on that decision during their respective arguments, it is appropriate to quote certain passages which provide an overview of the Board's decision in that matter:

"28. The union's charges of misconduct were particularized in 32 paragraphs, involving 20 separate allegations of unlawful interference with its organizing campaign. Some of these allegations were modified or amended during the hearing; some were settled or withdrawn; and some were not seriously pursued. Most of the charges were not substantiated by the evidence - although in so finding, we do not wish to suggest that they were frivolous. There were some instances of illegal activity, as well as circumstances which could give rise to a reasonable suspicion on the part of employees. On balance, however, we are satisfied that the evidence does not demonstrate the kind of concerted or coordinated campaign of illegal conduct suggested by the union's initial statement of allegations.

30. The latest trade union organizing campaign began in February or March 1980, and resulted in an application filed on June 13. On or about June 6, 1980, Angelo Capozzi, the plant manager, announced the implementation of a new benefit plan. On June 11 or 12, a written statement of the new benefits was provided to all employees. Lauro Longo, an employee of the respondent, testified that the circulation of such documents was unusual, and entirely unexpected. She could recall no previous discussion of any impending changes and told the Board that documents such as those circulated immediately prior to the certification application were unprecedented in her seven years with the company. Angelo Capozzi told the Board however that it was the regular practice of the company to review salaries and benefits every spring after discussions with the employees, and to implement any wage increases early in May. This practice was followed in 1980. There were meetings with the employees beginning in February, and the annual pay increase was implemented in the first pay period in May. The employees were also advised that a revised schedule of benefits would be introduced when appropriate arrangements had been made with a suitable carrier. The decision to improve benefits arose from the earlier discussions and was motivated, at least in part, by a written statement of demands, dated March 14, 1980, which the employees themselves drafted in response to those discussions. This document was signed, inter alia, by Mrs. Longo herself, and demands both a wage increase 'the way it has been done in previous years', and certain benefits (including a dental plan) which were eventually implemented. Only the dental plan is new. All of the other changes are amendments to the existing schedule of benefits. The evidence also indicates that the established benefits have been revised from time to time, and that when this has happened, employees have been given a written statement similar to that circulated early in June.

31. We are satisfied that in revising its benefit package, the company was following its established practice, and responding to its employees' demands. There is nothing improper in its conduct in this regard

32. There is much more substance to the union's contention that some of the respondent's foremen were involved with the circulation of the petition opposing the union. Orfeo Bizzoto, the principal petitioner is a senior employee and a close friend of Gilbert Giacomini, his foreman. Bizzotto told the Board he has been involved in organizing campaigns. On June 17, the day notice of the certification application was posted Bizotto was out of town making a delivery; but he discussed the union with Giacomini on the telephone. He returned late in the afternoon, and the very next morning approached Lou Picinni, the traffic manager, to ask for a few days off for 'special personal business'. Picinni admits that he discussed Bizotto's proposed 'vacation' with Giacomini, that he knew about the possibility of an anti-union petition, and that he even regarded them as 'common practice' in certification applications. He maintained however, that he was unaware of opposition to the union, did not see the petition in the plant, never actually saw anyone signing the petition, and did not know Bizotto was involved. We do not accept these assertions. We find that Picinni and Giacomini were aware of both the purpose of Bizotto's request and his subsequent activity. Indeed, we accept the union's evidence, and find as a fact, that Bizotto was regularly on the company premises promoting the anti-union petition, and was in and out of Picinni's and Giacomini's office during the time when he was 'on vacation'.

33. The Board has no doubt that there was unlawful interference with employee rights in at least one instance. That instance involved Gilbert Giacomini, the driver foreman, and Toni Spadafora, a driver with the respondent for more than 16 years. On Friday, June 20th, Spadafora was summoned to Giacomini's office where he was told that he must 'vote against the union' or the company would 'close its doors', and that Orfeo Bizzoto was outside the plant with the petition that he must sign. Spadafora signed. This incident not only constitutes a breach of sections 56, 58 and 61 of the Act, but also strengthens the inference that Giacomini at least, was closely associated with the circulation of the petition, and was actively assisting Bizzoto to solicit support.

34. Bizzoto himself was not above intimidatory comments if it served his end. He led Sergio Grenci to believe that he was acting on behalf of the company and suggested that if he (Grenci) did not sign the petition he would have problems, be placed on a black list, and eventually discharged. Grenci signed the petition. We find that Bizzoto's comments constitute a breach of section 61 of the Act, although we are not satisfied that he was acting on behalf of the respondent and do not attribute this particular threat to it.

35. The foregoing constitute the only specific breaches of the Act which, in our view, were sustained on the evidence. We do not think it is necessary to deal further with those allegations which were not borne out by the facts.

36. Is the respondent's breach sufficient to justify the issuance of a certificate pursuant to section 7a; or, to address the principal issue directly, can the true wishes of the employees be ascertained by a Board-supervised secret ballot vote? In answering that question it is helpful to compare the situation here with that in cases such as Radio Shack [19791 OLRB Rep. Dec. 1220, Skyline Hotel [1980] OLRB Rep. Dec. 1811, K-Mart [1981] OLRB Rep. Jan. 60 or Norseman Plastics [1979] OLRB Rep. April 385. Here there are no discharges, demotions, transfers or layoffs. There are no 'captive audience' or small group meetings. There are no speeches or anti-union leaflets. There is no overt surveillance or any systematic attempt to identify, isolate or discriminate against union supporters. There is no evidence of widespread threats or other coercive activity attributable to the respondent. The evidence simply does not demonstrate a co-ordinated or concerted campaign of illegal conduct, and the illegal conduct which did occur was not prompted by any direction from above, but happened despite the explicit instructions of senior management that foreman were not to involve themselves in activity for or against the union. Not only were senior management not involved, Arthur Pelliccioni, the vice-president and general manager, was considered to be an honourable man, respected by both supporters and opponents of the union.

37. We accept the union's contention that many of its supporters were fearful that the company would close or they would be blacklisted if they continued to support the union. We also accept that rumours to this effect were circulating in the plant and that such speculation would necessarily be fueled by the threats made by Bizzoto and Giacomini. In all the circumstances however, we are satisfied that an appropriate remedial order fashioned pursuant to section 79, will be able to create an atmosphere in which the true wishes of the employees can be ascertained by a Board supervised representation vote. In a bargaining unit of this size employees need not fear that their preferences will be made known; and if the general manager assures them that they will not be subject to reprisals from over-zealous foremen, we are satisfied that a vote can be fairly conducted. Accordingly, the Board directs the respondent to post at its place of business, copies of the attached notice ('appendix'). Copies of such notice, to be furnished by the Registrar, shall, after being duly signed by Arthur Pelliccione, be posted immediately and the posting must be maintained for a period of 60 consecutive working days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to ensure that such notices are not altered, defaced, or covered by any other material. Representatives of the complainant union shall have reasonable access to the respondent's premises to ensure that the respondent has complied with this directive. The Board also directs the respondent to mail, without comment, a copy of this notice to all employees in the bargaining unit and to all of the respondent's managerial personnel."

That representation vote, which was held on September 10, 1981, was directed by the Board (in the exercise of its discretion under section 7(2) of the Act) notwithstanding the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the material time, because although a number of the applicant's members, who had signed membership cards and paid $1.00 in respect of initiation fees more than one year prior to the application, had within one year prior to the application signed a written confirmation, reaffirming their membership in the applicant, they had not "made a recent monetary payment to the Union or confirmed their continued support in a manner more tangible than a simple written statement". (Thus, it was unnecessary for the Board to determine whether or not the petition filed by the objectors in that case was "voluntary".)

9. The sole witness called in the present case by counsel for the intervener in support of his contention that the intervener is a "trade union within the meaning of the Act was Marcello Zangolli. Mr. Zangolli is a truck driver who has been employed by the respondent for about six years. He had no involvement in the applicant's earlier application or the Board hearings that were held in relation to that application. He became involved in the process which ultimately culminated in the formation of the intervener, at the request of Orfeo Bizzoto and Toni Palmisano, two employees of the respondent who were actively involved in the earlier application as opponents of the applicant. As noted in paragraph 42 of the decision in that matter (as quoted above), Mr. Bizzoto, another truck driver employed by the respondent, was the "principal petitioner" in those proceedings. Mr. Palmisano, who works in the respondent's shipping department, was also identified in that decision (at paragraph 36) as "one of the petitioners". The involvement of those two individuals in those proceedings was also confirmed by the evidence adduced before the Board in the present case.

10. Mr. Zangolli told the Board that prior to the (September 10, 1981) vote, Messrs. Palmisano and Bizzoto asked him at work if he would attend a meeting on the Friday before the vote (September 4, 1982) to speak to the drivers and the members of the shipping department about forming an employees' committee. It was his evidence that because he speaks both English and Italian, they wanted him to serve as a translator at that meeting, which was held at the home of another employee. That meeting, which continued for about two hours, was attended by approximately 20 to 25 of the respondent's employees, many of whom speak Italian. No supervisors were present. Most of the discussion at that meeting was about forming an employees' committee, although "a couple of people" suggested that an employees' association should be formed. This was the first time that Mr. Zangolli had ever heard the idea of an employees' association being discussed. Mr. Zangolli told the Board that employees expressed the view at that meeting that the applicant was going to lose the representation vote but that employees "would still like to organize [themselves]" in an effort to improve communications and relations between the employees and the respondent, and in an effort to equalize the wages being paid to persons performing the same jobs for the respondent but receiving different wages.

11. It was Mr. Zangolli's evidence that the conclusion reached at that meeting was that if the applicant union did not win the vote, the employees would attempt to form a committee. He also testified that after the applicant lost the vote (in which 116 ballots were marked against the applicant and only 69 ballots were marked in favour of the applicant), "things were pretty hot, a lot of people were upset, so we just let it cool off for a while". However, in early October when employees began to inquire about what was happening with the committee, Messrs. Zangolli, Bizzoto and Palmisano, together with two other employees (Domenic Giambattista and Nelson Consentino) who had been involved in the earlier application as opponents of the applicant's bid for certification, went to see Michael Horan, the lawyer who had represented the objectors before the Board in the earlier application. Mr. Zangolli testified that the purpose of meeting with Mr. Horan in early October was to obtain advice on how to form and run an employees' committee. Although Mr. Zangolli favoured the formation of an employees' association rather than a committee, it was decided by the majority of those in attendance that they would "give the committee a chance" on the basis that after they had gained some experience with the committee, they might "go with an association later on".

12. After meeting with Mr. Horan, some of those employees met with management and indicated that they wanted to form a committee to be recognized by the respondent, and wanted management to meet with Mr. Horan concerning that matter. Mr. Zangolli was not in attendance at that meeting because his job duties had taken him to the U.S. at that time. After that meeting, the following "bulletin" was posted in the plant on the company bulletin boards in late October:

"Following the recent vote at our plant there was much discussion about the formation of a worker's [sic] committee. A few of us have taken it upon ourselves to pursue this situation further. We have had a meeting with the Company and they have agreed to recognize a committee of workers composed of representatives from each department.

The representatives will deal with the worker's [sic] problems relating to their jobs and they will meet regularly with the Company to discuss these matters. The areas of discussion will include grievances, wages, holidays, benefits and other terms and conditions of employment. Each employee is encouraged to review any of these matters with his department representative who will take the matter up with management. We have received permission to conduct a few meetings at work to explain to you how this committee will work.

In the meantime and in order to get things started we have appointed temporary representatives from each department. These people have agreed to help for now but it is certainly open to any department to hold elections if other persons wish to act as representatives.

We hope to convene our first meeting very shortly and we welcome general suggestions from any worker. For now, specific problems should be directed to the following representatives:

Drivers Orfeo Bizzoto Shippers Tony Palmisano Hazelnut, Cheese, Oil, Coffee Domenic Giambattista Macaroni Department Michele Miceli Franco Sepe Elicia Pace Teresa Corasaniti Maintenance Constantino Frisoli Meat Department Nelson Consentino Mill Virginio Darin Drivers Marcello Zangoli Shipping (Marmora) Giovanni Crolla

We believe that this committee will be most helpful to all of the workers and we urge all employees to give us your support and co-operation.

PRIMO WORKER'S COMMITTEE"

That bulletin was drafted by Mr. Horan. Having regard to all of the circumstances, we infer that it was posted on the respondent's bulletin boards with the consent of management. Although some of the "temporary representatives" who had been appointed "to get things started" may subsequently have been elected by employees in the departments which they purported to represent, others such as Mr. Bizotto were never elected but nevertheless remained members of the committee. Mr. Zangolli's explanation for Mr. Bizzoto's continued presence on the committee was that "because he was one of the original founders of the committee, he should be on it".

13. On November 5, 1981, Mr. Horan wrote a letter to the respondent in which he requested an opportunity to meet with management "to discuss matters of mutual concern" to management and the Primo Workers Committee. As a result, management apparently met with the Committee later that month, but it is unclear from the evidence what was discussed at that meeting.

14. Mr. Zangolli's testimony concerning the "meetings at work" mentioned in the "bulletin" quoted above was:

"In December the people weren't sure what we were trying to do so around December we asked Mr. Horan and some of the plant managers to get together with the people to explain what it was about. The meetings started right after that in December I think."

The members of management who attended those meetings were Angello Capozzi, who is the respondent's Vice-President in charge of manufacturing, and Arthur Pelliccione. Mr. Capozzi testified that after the committee was formed he attended, at the request of Mr. Palmisano, two meetings of employees from certain departments and told the employees in those departments that Mr. Palmisano was part of the committee and that the company had recognized the committee. Mr. Capozzi estimated that, in total, between thirty-five and fifty-five employees were present at those two meetings. Mr. Capozzi also confirmed that management permitted Mr. Horan to attend at the plant in the fall of 1981 to meet with employees about forming a committee. During cross-examination, counsel for the applicant asked Mr. Capozzi if that meeting was held during working hours. Mr. Capozzi's reply was:

"They asked me if they could have a meeting. They didn't say whether it was working hours or not. I didn't go into details. I presume it was [held during] lunch hour, but I'm not sure."

15. The "representatives" listed in the aforementioned bulletin met with the employees in their respective departments during working hours, with the consent of management, "to find out what the problems were". The employees' committee (hereinafter referred to as the "committee") then met with management once or twice a month from December 1981, to July 1982, to discuss various employment matters such as wages, seniority, a classification system, a trip system, and a retirement savings plan.

16. Prior to 1982, members of management had an established practice of meeting with employees in individual departments before giving pay increases. In the words of Mr. Capozzi, the purpose of those meetings was "to arrive at some understanding as to what the increases should be". Those meetings were held prior to the first pay day in May since the increase was generally included in the first May paycheque. However, in 1982 management departed from that practice by meeting with the members of the committee rather than meeting with the employees in individual departments.

17. When the committee met with management on December 4, 1981, it "brought up the question as to how to raise money for [the committee's] lawyer". Management replied that this was the committee's "own affair" and that it was "up to them to arrive at an understanding". Although management thus refused to provide direct financial support for the committee, it did give the committee permission to hold weekly meetings on the respondent's premises and also authorized the holding of "general meetings" of the committee in the "old shipping office". Moreover, members of the committee were paid for the time which they spent at committee meetings when those meetings were held during working hours. The minutes of the December 4th meeting, which were taken by management, record, among other things, that it was "the general consensus that, if any worker wished to speak to Management, they [sic] may do so but they will be encouraged by same to resolve problems through Committee". It is clear from those minutes, as confirmed by the testimony of Mr. Capozzi, that by December 4, 1981, the respondent had recognized the committee as a representative of the employees of the respondent. Although management requested that the committee have a representative on it from each department, management took no steps to determine whether the majority of its employees had in any way authorized the committee to represent them before the respondent recognized the committee. Indeed, Mr. Capozzi was unable to offer any explanation for the respondent's decision to recognize the committee other than stating: "We were approached. We had meetings. We wanted to recognize them." Mr. Capozzi did, however, admit in cross-examination that he was aware that most of the people on the committee were opposed to the applicant.

18. The second meeting of management and members of the committee was held on January 8, 1982. At that meeting each "department representative" put forward requests for pay and benefit increases, and other improvements in terms and conditions of employment. In late February or early March of 1982, the committee adopted a constitution that had been drafted for them by Mr. Horan, and elected (or acclaimed) Mr. Bizzoto as president, Mr. Palmisano as vice-president, Mr. Giambattista as treasurer, and Mr. Zangolli as recording secretary. On February 24, 1982 Mr. Horan forwarded to the committee, and to counsel for the respondent, a draft of the "proposed agreement" that he had prepared at the request of the committee. That draft was subsequently used by the committee and the respondent as a basis for further negotiations.

19. The six month "bar", which the Board (in a decision dated October 14, 1982 in the earlier application) imposed on the applicant after it lost the aforementioned representation vote, expired on April 14, 1982. In early March of 1982, the applicant renewed its organizational campaign in respect of the respondent's employees; Vincent Gentile, a representative of the applicant, and other supporters of the applicant attended at the respondent's premises a number of times to distribute pamphlets to workers entering and leaving the premises, and to sign up employees as members of the applicant. Mr. Zangolli and Mr. Capozzi were each aware of those organizational activities. In his testimony before the Board, Mr. Capozzi indicated that management was aware that representatives of the applicant "were distributing leaflets outside at the front of the plant". He went on to state that management has "been aware of an organizing campaign on or off for fifteen years." He conceded in cross-examination that he was not surprised when Mr. Gentile resumed his organizing activities because he had "no reason" to expect that Mr. Gentile would not be back. Under the circumstances, it is reasonable to infer that the applicant's ongoing organizational activities were common knowledge among employees and management of the respondent at all material times.

20. In or about May of 1982, a memorandum written in Italian on the respondent's stationery was posted in the plant by the committee. The purpose of that memo, which was also posted in English, was to inform employees of the following improvements in wages and benefits which the committee had secured through discussions with management. The applicant's translation of that document, the accuracy of which was not disputed by the respondent or the intervener, reads as follows:

"We, of the Committee, would like to inform you that after several weeks of discussion with the management regarding annual raises, benefits, vacations etc., we have been able to secure the following the first pay period of May.

A) Basic pay increase of $.90 per hour;

B) Pay vacation reduction of one year (from 7 year to 6 year — continuous service on/or before June 30 of vacation year) to entitle employee to 3 weeks vacation equal to 6% of gross annual earnings.

C) Pay festive days one day, namely New Year's Eve, has been obtained.

D) Registered retirement savings plan (R.R.S.P.) The company will contribute 2% of gross annual earnings to a maximum of $400 per year per employee towards a R.R.S.P.

E) Safety Shoes: The company will pay $40 rather than $20 towards 2 pairs of safety shoes per year.

F) Uniforms: The company will pay 70% rather than 50% towards the acquisition of driver and driver helper uniforms. The laundering of smocks for packaging oil and cheese and NCCITA will be paid for by the company.

Believing to have done our utmost in honestly representing all the employees of Primo, we, of the Committee, would like to express our thanks for your suggestions and cooperation. THANK YOU.

PRIMO WORKERS COMMITTEE"

21. Mr. Zangolli testified that he "started pushing" the idea of an employees' association again around April or May of 1982 when, the committee having been unable to reach agreement with the respondent concerning sick days, "some of the guys said the committee won't work because we don't have anything to fight the Company with". (That sick leave was indeed a contentious issue is confirmed by the fact that, in early June, management received a petition which appears to have been signed by approximately 50 of the respondent's Marmora Road plant employees, protesting that the respondent's decision to eliminate sick days was unfair.) It was also around that time that the committee prepared and circulated authorizations by which employees could authorize the respondent to deduct 25C per week from their wages for remittance to the committee. Although many employees signed those authorizations, they were not given to management because the committee decided that "if anyone had to pay any dues, it should be all of the employees". Thus, no money was deducted from wages to finance the activities of the committee.

22. After the committee had negotiated certain improvements in wages and benefits, they decided to arrange for them to be incorporated into a written agreement. In the words of Mr. Zanolli, "We had the benefits but we wanted them in writing, so we got together with [Mr. Horan] and he handled it by getting together with the Company lawyer, I guess." It was also Mr. Zangolli's evidence that after they discussed that matter with him, Mr. Horan "came back to them with a document from the company", to which certain changes were subsequently made, primarily in relation to seniority (which the committee wanted to be "departmental seniority plus company-wide seniority" rather than merely departmental seniority as proposed by the respond­ent). It appears from the correspondence filed with the Board by the respondent that Mr. Parry forwarded the Company's written proposals for a collective agreement to Mr. Horan on June 8, 1982. Although the evidence is rather sketchy concerning the matter, it appears that counsel for the respondent used the "proposed agreement" forwarded to him on February 24, 1982 by Mr. Horan, as the basis for preparing those written proposals. After meeting with representatives of the committee to review those proposals, Mr. Horan forwarded the committee's counter proposals to Mr. Parry on June 21, 1982. At a bargaining meeting on June 29, 1982, the committee, which was represented by Mr. Horan, Mr. Palmisano and Mr. Giambattista, reached agreement with the respondent on a number of issues, including a company offer "to pay a $100 bonus to employees employed on April 25, 1982 who are still employed on date of ratification". On July 6, 1982 Mr. Parry forwarded to Mr. Horan a copy of a draft collective agreement which he described as being "the Company's offer to the Workers' Committee on behalf of all of the employees in the bargaining unit agreed upon.”

23. Mr. Zangolli told the Board that although agreement was reached on the contract in June, some of the members of the committee were not satisfied because they were of the view that the committee would be unable to do anything about it if the contract was broken by the respondent. It was also his evidence that after meeting with Mr. Horan to discuss the advantages and disadvantages of forming an association, they decided "in mid or early June" to form an association so that they would have the power to enforce their contract. Following further meetings with Mr. Horan, members of the committee distributed the following notice to employees outside the plant after working hours on July 8th:

"NOTICE TO ALL NON-SUPERVISORY EMPLOYEES

A very important meeting for all non-supervisory employees of Primo will be held on Sunday July 11th at 9:30 a.m. at St. Philip Neri Church Hall (next to the Church), 2100 Jane Street, Toronto.

The meeting will only be open to employees of Primo and the purpose of the meeting is to consider the following items:

1. A report from the Workers Committee.

2. Consideration of a proposal to pass a Constitution and form our own Employees' Association (union).

3. Consider and vote upon a contract proposal from the Company.

All employees are strongly urged to attend this meeting.

PRIMO WORKERS COMMITTEE"

24. Approximately 78 employees of the respondent attended the July 11th meeting. Also in attendance was Mr. Horan who recorded the minutes of the meeting. After calling the meeting to order, Mr. Zangolli read the following report (in both English and Italian):

"Following the union vote last Fall a number of workers got together to form a Committee to review matters of concern to all Primo employees. Representatives were elected from each of the departments to meet together and with the Company to discuss problems that affect all of us. We are aware that there were legitimate worker concerns that were not being protected under the old system and we decided that we would try to do something about it.

We have had a great many meetings with the Company over the last eight months and we have settled many workers complaints. We have also been involved in negotiations with the Company; the results of those negotiations are known to all of you and amongst other things we are proud of the sizeable raise that we negotiated for the workers. That raise looks better and better all the time particularly when we look around us and see layoffs, wage roll­backs, and raises of only 6%.

We have been negotiating for other things besides money. We have also been negotiating for a seniority system, a grievance procedure, and for the same working conditions for all Primo workers. Those discussions have been continuing from last Novem­ber right up to last week.

As you know the Workers' Committee is an informal group of employees who have been attempting to help all of the Primo workers. We have been accused of many things by the Food Workers. That union that most of us voted against last Fall, have been calling names, and acting like little children. We on the other hand have been busy trying to get better wages, benefits and working conditions for you the workers. We think that we have done a pretty good job so far and there has been no cost to you the workers.

Much has been said about what a great job the Food Workers have done at Lancia. We know that that is not true because the figures speak for themselves. Look at the schedule attached to this letter if you don't believe us. You will see that Primo workers do much better without the Food Workers. Do they have an RRSP program at Lancia? Of course not.

We do realize however that there are certain benefits that come with having a contract with the Company — a legal contract that we can enforce if the Company does not keep its end of the bargain. It is for that reason that we your Committee think it would be better if we could legally protect your rights with our own contract. In order to do that however we have to have a legal organization which we would like to call an Employees' Association. This Association would have all of the powers of a union under a contract but not any of the drawbacks that come with having outsiders like the Food Workers involved. This Association would have a Constitution, have meetings, elect officers, and be committed to do many of the things that the informal committee of workers has done up until now. More important though it would enter into a legal contract with the Company to protect grievance rights, offer job security, and protect seniority.

The Committee has been considering whether or not to take this step of forming an association. We have consulted a lawyer and he has explained all of the benefits of an association to us. He is here today to answer any questions that you may have about an association. We the Committee would like to go on record as recommending the formation of the Employees' Association.

The Committee has negotiated the basis of a contract with the Company and we have an offer from the Company the details of which we will explain to you in a few moments. That offer can be accepted by the association which we propose to form and we will than have a legally enforceable contract.

We have to, however, take one step at a time and the first step is to form the association. Once this is done we can describe the details of the proposed contract to you, provide a summary of the contents of the document and if the majority of you vote for acceptance of that contract we will then have a legally enforceable contract with the Company.

This completes the report of the Workers' Committee from its initial involvement last November right up to the present time. We would now like to move on to a consideration as to whether or not you wish to form an Employees' Association and if so we would then like to proceed to a consideration of the summary of the contract that has been offered.

PRIMO WORKERS' COMMITTEE"

25. Following discussion of the merits of establishing an association and discus­sion of the draft constitution, including "a lot of argument" over the constitutional provision (Article 13) requiring approval of ninety per cent of the membership of the Association for any "affiliation, merger, amalgamation or transfer of jurisdiction", the employees present at the meeting unanimously voted to "constitute themselves as a trade union to be known as the Primo Employees' Association" and approved the draft constitution. (Although Mr. Zangolli said that he did not know if the purpose of Article 13 was to "make it impossible for the Association to merge with another union", he conceded that it would not be possible "to have more than ninety per cent of the employees of Primo at the same meeting at the same time".) Sixty-eight persons then applied for membership in the Association and each paid $1.00 on account of initiation fees and dues. There followed an election of members to various positions on the Executive Board of the Association, after which the following summary of the "offer by the Company" was read in both English and Italian:

"1. TERM

A two year contract starting on May 1, 1982 and ending in April 1984 with new wages to be negotiated in April 1983 for the second year of the contract.

2. WAGES

You already have the 90¢ per hour increase for the first year and we have been able to negotiate a further payment of $100.00 per person for all employees upon ratification of the contract.

3. RRSP

The Company will contribute 2% of annual wages up to a maximum of $400.00 to an RRSP for each worker. This pension plan offers maximum flexibility [sic].

4. PAID HOLIDAYS

We have negotiated one extra paid holiday (New Year's Eve) so that we will now have 11 paid holidays not 10 as before.

5. VACATION PAY

The Company is offering 6% now after 6 years not 6% after 7 years as it was previously.

6. SAFETY SHOES

The Company is offering a $40.00 allowance towards the purchase of a pair of safety shoes (formerly $20.00).

7. UNIFORMS

The Company will pay 70% not 50% of the cost of uniforms for drivers, driver's helpers and shippers (new). The Company will also pay the cost of cleaning of smocks for employees in Macaroni packaging, cheese packaging and nocita departments.

8. WORK WEEK

The standard work week is now 40 hours with no loss of pay for those who previously worked 42'/2 hours per week.

9. OVERTIME

Overtime will now be paid for 40 hours and after 8 hours in one day (new).

10. JOB CLASSIFICATIONS

The Company is going to provide job classifications and descriptions for all employees working at Primo.

11. SENIORITY

Seniority will be recognized in cases of promotion and layoff in order to protect the older employees and offer job security to the workers.

12. WAGE EQUALIZATION

The Company will be standardizing rates of pay for workers who do the same job in order to avoid any unfairness which has existed in the past.

13. LEAVE OF ABSENCE

A clause in the contract will allow leaves of absence for extended trips, etc.

14. BEREAVEMENT PAY

A clause in the contract will protect days off for workers upon the death of someone in their immediate family.

15. JURY DUTY

A clause in the contract will protect workers usual wages for time spent serving on a jury.

16. GRIEVANCE PROCEDURE AND ARBITRATION

Legal procedures in the contract to protect your rights to grieve any violations of the contract by the Company."

26. Following a discussion of the contents of that summary, a secret ballot vote was taken of all employees present (both members and non-members of the Associa­tion) in which 50 persons voted in favour of the contract and 13 voted against it. (There were also three spoiled ballots.) After the membership meeting adjourned, a meeting of the Executive Board was convened to elect the officers of the Association (pursuant to Article 7.07 of the Constitution). At that meeting, Mr. Zangolli was acclaimed President, Mr. Palmisano was acclaimed Vice-President, Mr. Bizzoto was acclaimed Secretary, and Mr. Giambattista was acclaimed Treasurer. Mr. Zangolli asked Mr. Palmisano to inform the respondent that the agreement has been "ratified", and upon returning from a two-day trip, Mr. Zangolli, "just to be sure", personally told Mr. Pelliccione "that the contract was accepted and that [the employees] had formed an association." Mr. Capozzi confirmed that Mr. Palmisano notified the respondent on Monday July 12, 1982, that the collective agreement had been ratified. However, it was also his evidence that "it was from Mr. Parry's office that [he] heard that an association has been formed". On July 21, 1982 a letter from Mr. Horan was delivered to Mr. Capozzi "to confirm" that "the Primo Employees' Association which was formed on July 11th, 1982, ratified the contract proposal delivered to [Mr. Horan] from the office of Mr. Parry on July 6, 1982." Mr. Capozzi also told the Board that he was unaware that there was any thought of an association until after it had been formed. Upon receiving notification that the agreement had been ratified the respondent paid to each employee $100, the amount that was added to the package at the aforementioned bargaining session on June 29, 1982.

27. Although Mr. Zangolli told the Board (in cross-examination) that he did not consider the effect which forming an association could have on the applicant's organizational activities, and did not discuss that matter with any of the other members of the committee, he conceded that the matter had been discussed with Mr. Horan at a time which he was unable to specify. He also testified that by May of 1982. he understood that the signing of a collective agreement with the respondent by an employees' association could prevent the applicant from being certified. When asked if the main reason for having an association was to try to prevent the applicant from becoming certified, Mr. Zangolli said that he did not know what motivated the others, but that his personal objective was to form an association, not to prevent certification of the applicant. However, he also testified that he understood that the intervener was a rival of the applicant. Although we accept Mr. Zangolli's evidence that a desire to prevent the applicant from being certified was not his personal motivation for supporting the formation of the intervener, it is reasonable to infer under the circumstances that such a desire was at least part of the motivation which prompted most, if not all of the other members of the committee, to actively support its formation.

28. The instant application was filed by the United Food & Commercial Workers International Union on July 16, 1982. The document which the intervener and the respondent assert to be a collective agreement that renders the applicant union's certification application untimely, was not signed by the intervener until July 26, 1982, but purports to be effective from April 25, 1982 until April 30, 1984 (and from year to year thereafter in the absence of notice of intention to terminate or amend the agreement). Mr. Zangolli's explanation for the delay in signing it was that he was out of town "a couple of times" and that "there was a few mistakes in the contract about uniforms for drivers so we went through that again." Mr. Capozzi told the Board that an agreement had "not totally" been arrived at by April 25 and that "some changes were made after that date". His explanation for April 25 being specified as the commence­ment date of the collective agreement was that the wage increases had been agreed to by that date in conformity with the respondent's usual practice of "paying the wage increases to employees the first pay day in May". He confirmed that at the time they signed the impugned agreement, management was aware of the present certification application. However, he stated that they signed because "there was an offer made and it was accepted". When asked in cross-examination if he knew in July of 1982 when he signed the contract that it might make it very difficult or impossible for the applicant to organize the plant, he replied, "We had made an offer and it was accepted. The fact that it would make it difficult for the applicant was not the reason." Indeed, Mr. Capozzi, after giving several rather evasive answers, ultimately stated that he was not aware that a collective agreement between the intervener and the respondent could prevent the applicant from being certified. However, having regard to his demeanour while testifying and other factors relevant to the assessment of his credibility, the Board does not find that statement to be believable. Under the circumstances, we find that Mr. Capozzi was at all material times well aware of the effect which a valid subsisting collective agreement could have on an application for certification by the United Food and Commercial Workers Union.

29. The agreement in question contains a dues check-off provision. Although the respondent has been deducting dues pursuant to that provision, it has not remitted any such dues to the intervener as it is holding them in trust pending the outcome of this application, on the advice of counsel. (The intervener has grieved the respondent's failure to remit those dues to it, and has taken steps to refer that matter to arbitration.) When asked in cross-examination how the Association has been funding itself, Mr. Zangolli told the Board that the Association has not yet received any bills. He was unable to tell the Board how the 16 days of hearing concerning the earlier application were financed by the petitioners.

30. The Labour Relations Act prohibits the Board from certifying any organiza­tion which has received employer support and precludes any such organization from entering into a valid collective agreement for the purposes of the Act. The rationale which underlies those legislative provisions was explained as follows in Tn-Canada Inc., [19811 OLRB Rep. Oct. 1509:

"The bargaining process between employers and employees always implies, in addition to their common interest, some degree of conflict between the immediate economic interests of the bargain­ers — the payer and the receiver of wages. This conflict of interest will necessarily co-exist with their common interest in the welfare of the enterprise from which they both derive their income; and we do not mean to suggest that harmonious relations do not exist between employers and trade unions. But short-run conflicts of economic interest are inevitable, and if they are to be resolved through the process of collective bargaining, it is highly inappro­priate for the agency which represents one party to the bargain, to be in any measure under the influence of the other. Collective bargaining by its very nature requires an arm's length relationship between the bargaining parties, and there are a number of statutory provisions designed to ensure that this is the case. These include the following:

l-(3) Subject to section 90, for the purpose of this Act, no

person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

13. 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.

14. An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,

(a) if an employer or an employers' organization partici­pated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or

(b) if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of em­ployees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. Sections such as these have been part of the legislative scheme since the first Labour Relations Act, and sections 13 and 48 are perhaps the most significant. Their effect is abundantly clear. The Board is prohibited from certifying any organization which has received employer support and such organization cannot conclude a valid collective agreement within the meaning of the Act. Section 46 permits the parties to a collective agreement to include a dues deduction provision or a provision allowing union officials to attend to union business on company premises or company time, but these exemptions involve commonly negotiated devices to promote the orderly administration of an established bargaining relationship, and it is significant that the Legislature considered it necessary to mention them specifically in order to remove any question concern­ing the potential conflict with section 48. There may be other forms of employer-employee cooperation in an established bargaining relationship which do not compromise the independence of the employee bargaining agency, and consequently do not raise the mischief which these sections were designed to avoid. Each case must be considered on its own facts."

See also Canada Crushed Stone, [1977] OLRB Rep. Dec. 806, in which the Board stated that the "broad purpose of [section 13 of the Act], simply stated, is to preserve the integrity of the collective bargaining process by barring the application of any trade union which, because of employer support, does not owe its sole allegiance to those whom it seeks to represent".

31. The Board has found in a number of cases that an employer which allows employees the gratuitous use of its premises to conduct a meeting for the purpose of forming an employees' -association thereby provides support of the type contemplated by section 13 of the Act (see, for example, Faultless-Doerner Manufacturing Inc., [1980] OLRB Rep. Feb. 214; Ado Compunders Inc., [1979] OLRB Rep. Sept. 845; Crowe Foundry Limited, [19691 OLRB Rep. May 218; Basic Structure Steel Fabricators Limited, [19661 OLRB Rep. March 888; Kemp Products Limited, [1966] OLRB Rep. Apr. 39; 5. W Fleming and Company Limited, [1964] OLRB Rep. June 144; Burlington­ Nelson Hospital, [1962] OLRB Rep. Nov. 285; and Kenora District Home for the Aged, [1960] OLRB Rep. Apr. 28). Similarly, the fact that an employer permitted notices of such meetings to be posted on its bulletin board(s) has also been found to be relevant in determining whether section 13 precludes the Board from issuing a certificate (see, for example, Crowe Foundry Limited, supra, and Kenora District Home for the Aged, supra).

32. If the organization which was intervening in these proceedings were the Primo Workers' Committee, there would be no doubt whatever that section 13 would preclude the Board from certifying it and that, by virtue of section 48, any agreement between it and the respondent would be deemed not be a collective agreement for the purposes of the Labour Relations Act. That the respondent participated in the formation or administration of the committee, or contributed financial or other support to it, is abundantly clear from the facts set forth above. The respondent not only permitted the committee's lawyer to attend at the plant to meet with employees about forming a committee (without even inquiring whether or not the meeting would be held during working hours), but also authorized the holding of meetings during working hours at which members of the committee, accompanied and supported by at least one high ranking member of management, explained the operation of the committee. Manage­ment also gave the committee ready access to the plant bulletin boards for the purpose of communicating with employees, and paid committee members for the time spent at committee meetings when those meetings were held during working hours. Although management requested that the committee have a representative on it from each department, management "recognized" the committee without taking steps to determine whether the majority of the employees in the respondent's workforce had authorized the committee to represent them. Furthermore, when the respondent recognized the committee, management knew that the majority of the "representatives" on the committee were opposed to the applicant, and also knew that, in all probability, the applicant would renew its organizing efforts within a few months. Under the circum­stances, we are satisfied that the adverse effect which employee support for a committee could have on any such organizing efforts by the applicant was apparent to management, and was at least one of the factors which prompted management to recognize and otherwise support the committee.

33. Although the Board has recognized that such things as the use of company premises for meetings and the movement within the work setting of employee representatives may become part of an accepted practice as a collective bargaining relationship matures after certification, it has also noted that prior to certification, such practices generally fall within the ambit of section 13. See, for example, Smith Beverages Limited, [1975] OLRB Rep. Dec. 956, in which the Board wrote (at pages 959-960):

"Before proceeding the Board would point out that the incumbent association has carried on a relationship with the respondent com­pany as the certified bargaining agent of its employees for a number of years. A co-operative spirit may, and very often does, develop between the parties as a collective bargaining relationship matures which in no way lessens the union's effectiveness to represent the bargaining unit employees. The Board refers to such things as the use of company premises for meetings, the use of company offices by union officials, the movement within the work setting of union stewards, the interview of new employees by stewards and even dues check off. Prior to certification any of these manifestations of an on-going relationship could serve as a bar pursuant to section 12 [now section 13] of the Act. Subsequent to certification, however, these activities may be provided for in a collective agreement or may become part of an accepted practice between the parties but they in no way diminish or destroy the status of the trade union."

(See also Milltronics Limited, [1981] OLRB Rep. Oct. 1435, and Tn-Canada Inc., supra., ) In the circumstances of the present case, the privileges bestowed upon the members of the committee by management did not arise from the maturation of a collective bargaining relationship after certification or voluntary recognition of a bone fide trade union. Thus, they fall within the prescriptions set forth in sections 13 and 48.

34. The organization intervening in these proceeding is not Primo Workers' Committee, but rather the Primo Employees' Association. Nevertheless, having regard to all of the circumstances, the Board is satisfied that the "taint" of employer support which was so blatantly conferred upon the committee by the respondent, flows through to the Association. Near the beginning of his testimony, Mr. Zangolli, the president of the intervener, told the Board, "The Primo Workers' Committee was the predecessor of the Primo Employees' Association". That management of the respondent also perceived the Association to be very closely related to the committee is abundantly clear from the fact that management purported to permit the Association to accept an offer which management had made not to the Association, but rather to the committee. The strong nexus between the committee and the Association is also evident from the total overlap of the persons who occupied offices in, and provided direction for, each organization (cf. Beef Terminal Limited, [1969] OLRB Rep. Aug. 613). The close connection between the committee and the Association is also apparent from the manner in which the formation of the Association was sandwiched between the committee report, in which the members of the committee expressed considerable pride in the fact that the committee had obtained an "offer" from the respondent, and then purported acceptance of that offer by the Association through a vote of the employees in attendance at the founding meeting of the Association. Thus, the Association's principal "selling point" was the offer which the employer supported committee had obtained from. management, and which the committee asserted (in its report) could "be accepted by the association which we [the committee] propose to form". In view of the close relationship between the committee and the Association, no reasonable employee would make a meaningful distinction between the two organizations in terms of employer involvement and support. Moreover, the Association took no effective steps to disassociate itself from the committee and its employer supported activities; indeed it readily embraced the benefits of those activities. By taking those benefits, it also took the burdens, including a substantial legacy of employer support.

35. In addition to the history of employer support which tainted the Association due to its close ties with the committee, the intervener also received direct support from the respondent in July of 1982 in the form of voluntary recognition in the shadow of the applicant's renewed organizing drive and (July 16, 1982) application for certification. As stated by the Board in Trent Metals Limited, [1979] OLRB Rep. Aug. 827, at paragraph 8:

"The Board can think of no more meaningful support in the context of a bi-union contest of membership ... than the extension of recognition to one of the two unions. The effect of such recognition is to indicate the employer's desire to deal with that union to the exclusion of the other and thereby chill, if not destroy, the organizing campaign of the unrecognized trade union."

36. For the foregoing reasons, the Board finds that the April 25, 1982 to April 30, 1984 agreement entered into by the intervener and the respondent in July of 1982 must, by virtue of section 48 of the Act, be deemed not to be a collective agreement for the purposes of the Labour Relations Act. The Board further finds that section 13 of the Act precludes the Board from certifying the intervener in the circumstances of this case. The intervener's application for certification is therefore dismissed.

37. In view of the foregoing, it is unnecessary for the Board to determine whether the intervener is a trade union" within the meaning of the Act (See Tn-Canada Inc., supra, and York University, [1975] OLRB Rep. Feb. 127). It is also unnecessary to determine the effective date of the aforementioned agreement.

38. Counsel for the applicant asked the Board to find that counsel for the intervener and counsel for the respondent had personally contravened the Act in the circumstances of this case. However, in view of the conclusions which we have reached under sections 13 and 48, it is unnecessary for the Board to make any finding in that regard. Moreover, if counsel seeks to have the Board make such a finding, it is incumbent upon him to duly comply with the requirements of section 72(1) of the Board's Rules of Procedure. It is inappropriate for such a request to be made for the first time during final argument of the case, as occurred in the present proceedings.

39. This matter is referred to the Registrar to be listed for continuation of hearing for the purpose of hearing evidence and representations with respect to the applicant union's application for certification under section 8 of the Act, and with respect to all other matters arising out of and incidental to this application.

40. The decision of Board ,Member J.A. Ronson will follow.