Concetta Fallico et al v. International Ladies' Garment Workers' Union, 1982 CanLII 980

Ontario Labour Relations Board

[1982] OLRB Rep. December 1942

0992-82-R Concetta Fallico et al, Applicants, v International Ladies' Garment Workers' Union, Respondent, v. Third Dimension Mfg. Ltd., Intervener

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and C. A. Ballentine.

APPEARANCES: Michael G. Horan and Concetta Fallico for the applicants; A. M. Minsky, S. Tatrallyay and Tom Abrahams for the respondent; E. L. Stringer, E.L. for the intervener.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE; December 14, 1982

1. This is an application for a declaration terminating bargaining rights, pursuant to the provisions of sections 57(2) and (3) of the Labour Relations Act. The intervener employer is a manufacturer of knitwear, and occupies three floors of a building on Adelaide Street West in the City of Toronto. The employer filed an intervention and was represented by counsel at the hearing, but did not otherwise appear before the Board in this matter.

2. The evidence in support of the application was given by the two leading petitioners, Concetta Fallico and Julie Turnbull. They testified that they had become dissatisfied with what the trade union was doing for them, and with having to pay $8.50 a month in union dues. Mrs. Turnbull in particular had been a member of the union's bargaining committee but had resigned in disgust during the most recent set of negotiations because she did not feel that the union was getting anywhere. The evidence is that all of the employees talked about their dissatisfaction with the union together, but that no one had any knowledge of what to do about it. Mrs. Fallico testified that she went to see her friend and neighbour, Mary lorfida, who was educated in this country, about the problem, and that Mrs. Iorfida told her that she would have to go to the Labour Board to find out what papers were necessary. Mrs. Fallico says that she reported this back to the other employees, and that Mrs. Turnbull volunteered to go to the Board, because she spoke English (the bulk of the employees speak either Italian, Portuguese or Chinese). In contrast, Mrs. Turnbull testified that it was her own idea to go to the Labour Board to find out how to terminate the union, that she knew that you had to go to the Labour Board to find something like that out, and that no one, including Mrs. Fallico, had to tell her. It might be noted here that all witnesses except Mrs. Fallico were excluded from the hearing other than while testifying.

3. In any event, Mrs. Turnbull, together with another employee who was Portuguese, attended at the Labour Board one day to obtain information. Mrs. Turnbull presumably was. told that she had to fill out a form, that other employees had to sign a statement in front of a witness, and that she would ultimately have to attend at the Board for a hearing. Unfortunately, Mrs. Turnbull took what was said to mean that the other employees were required to sign the statement in front of someone at the Labour Board, and to attend the Board hearing. This is of course not necessary, and Mrs. Turnbull's misapprehension was unfortunate, but this is what she reported back to the other employees at the plant. Sometime thereafter, it was decided that August the 10th would be the day that employees would attend at the Board to sign their statement. And that is what they did. What is significant, however, is the manner in which the employees left the plant. August 10th was a working day. Shortly before 10 o'clock that day some 68 employees, being approximately three-quarters of the bargaining unit, downed their tools, got dressed, and punched out. The petitioners Mrs. Fallico and Mrs. Turnbull testified that they did not ask permission from anyone in the company to leave, nor, to their knowledge, had anyone else. Mrs. Turnbull's own supervisor watched her leave, but said nothing. The petitioners testified that they had no idea how long they would be gone, and were not concerned about it. Mrs. Thrnbull testified that the employees got up to leave on the spur of the moment, and that no one came around to tell them when to go. She later qualified this by saying that there may have been a rumour circulating in the factory since 9:30 that this was the day they were going.

She said it took the employees approximately 5 to 10 minutes to go through the process of putting their tools away, dressing, and punching out. Mrs. Fallico, on the other hand, testified that the departure on the 10th was arranged at lunchtime on the day before, with her and other employees circulating amongst the employees on each of the three floors to advise them of the time for departure. In any event, the employees left work at 10 o'clock and walked as a group from Adelaide Street to the Labour Board, completed their petition, and returned to the factory sometime after 12 o'clock. Some punched back in at that time, others waited until the end of the lunch-hour at 1 p.m. Once again the petitioners testified that no one from management asked them any questions when they returned, nor did they see anyone else being asked. But to the end of their testimony both petitioners denied that management had any idea what the employees were doing that morning.

4. It should be noted that counsel for the petitioners was at the disadvantage of having been retained not only after the first day of hearing, but at a point where Mrs. Fallico, who retained him, was still in the course of completing her cross-examination. Counsel therefore exercised his own discretion in keeping his discussions with Mrs. Fallico to a minimum. Mrs. Fallico was immediately followed on the witness stand by Mrs. Turnbull. In examination in chief, counsel posed to Mrs. Turnbull the following questions with respect to the August 10th exodus:

How did you come to be off work that day?

I punched my clock.

Did you tell your supervisor where you were going?

No.

Did your supervisor ask?

No.

How long were you away?

Approximately an hour.

Did you have any discussion with your supervisor as to where you went?

No.

Are you allowed to punch out and go off whenever you want?

Sure.

Are you on piece work?

No.

Are you paid by the hour?

Yes.

Are you paid for time out?

No.

Later in the examination counsel returned to the question of Mrs. Turnbull's supervisor (Rosanna) watching her leave, and asked the following questions:

What did Rosanna say when you got up and left?

Nothing. That's not her business.

When did you come back?

I came back before lunch.

Did Rosanna come up and ask you where you had been?

No.

Did you see her come up and ask any others?

No.

Do you have any explanation for that?

It was not a part of her business. Rosanna doesn't pay her dues.

Did she know where you were going?

No.

Of similar interest are the answers which the initial petitioner, Mrs. Fallico, gave to Union counsel on cross-examination:

Were you concerned how long you would be away that day?

Why should I be worried?

Did you think it would make any difference to anybody?

I don't think so.

Were you not concerned that the company might be unhappy to have so many people leave?

How could I know?

I'm asking you if you cared.

I cannot say. I don't know what the company was thinking.

But you weren't concerned?

No. Whatever we wanted to do, we did it voluntarily.

Mrs. Fallico went on to concede that it is normal for someone who is going to be absent due to sickness or a doctor's or dentist's appointment to let the company know. She added that it has not always been possible to phone the company at the time, and that in circumstances such as that, nothing has happened.

5. Subsequent to August 10th, an additional 7 employees who had been on holiday approached Mrs. Fallico and signed her petition. Mrs. Fallico testified that none of this occurred during working hours, but rather was all done in the morning or at lunchtime. Union counsel then asked why it was not done during working hours. Mrs. Fallico responded: "Because during your working hours you have to work".

6. The only witness called by the respondent trade union was Mr. Daniel Ubogi. Mr. Ubogi had been employed at Third Dimension as a cutter without interruption for 2'/2 years. He was an active union supporter from the start, and a member of the union's negotiating committee. He testified that the owner, Mr. Milton Wallace, called him into his office around April or May of 1982 and indicated that he did not want the union in the shop. He says Mr. Wallace suggested that Mr. Ubogi ought to go to the Department of Labour and find out what papers were needed to get the union out. Mr. Wallace is alleged to have added that if Mr. Ubogi lost any time, he would be paid for it. Mr. Ubogi went on to testify that he was subsequently approached by a second senior management person, Mrs. Seville Pollack, with the same suggestion. He says he told both of them that he did not know if he could do that. Mr. Ubogi acknowledges that he told no one about these approaches at any time prior to August 11th. On August 10th, after the bulk of the employees left to go to the Labour Board, Mr. Ubogi says that Seville Pollack came out on the floor and looked around the corner where Mr. Ubogi works to observe which of the employees had remained at their tables. He added as well that the foreman was sitting at his usual table next to the time-clock when the employees punched out. The evidence of Mr. Ubogi was not contradicted.

7. The principles applicable to this kind of termination application have been stated by the Board many times, with necessary attention to the words employed by the Legislature in drafting these sections of the Act. The Act provides:

57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

(emphasis added)

The use of the word "voluntarily" in the section makes it necessary for the Board in every case to satisfy itself that the petition or statement filed in support of the application represents a reliable expression of employee wishes, reasonably free om a concern that their expression one way or the other will come to the knowledge of their employer. On the other hand, employer knowledge that a petition is being taken up against the union, or the recognition by employees that an employer would prefer to be without a union, are not in themselves matters which disturb the Board. See Parkers Dye Works and Cleaners Limited, [1974] OLRB Rep. Dec. 859, at paragraph 37; Cooper Weeks Limited, 11967] OLRB Rep. Aug. 455.

7. In addition, the Board has noted the practical distinction which time and other intervening factors may create in assessing a petition which accompanies a termination application, as opposed to one which arises at the time of initial certification. In Northern Telecom Canada Limited, [1979] OLRB Rep. Apr. 330, for example, the Board cited an earlier comment in N. J. Spivak Limited, [1977] OLRB Rep. July 462, as follows at paragraph 10:

Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certifi­cation of the same union, and having regard to the purpose of section 49, [now 57], the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application filed under section 49 of the Act.

The Board is still required, however, to make an objective finding of "voluntariness" of the statement on the basis of the evidence which it has before it. In the Northern Telecom case itself, for example, the Board went on in the following paragraph to state:

The Board must decide if the signing of this statement on company premises and with supervisors in the general vicinity on the morning of February 19th was done in such circumstances as would cause a reasonable employee to conclude that management was involved and might become aware of who signed and who did not. If the Board makes this finding it would make the further finding that the statement does not represent the true wishes of those who signed.

8. Where the petition activity in fact takes place during working hours, the Board has noted that mere indulgence on the part of management may be sufficient to destroy the petition as a reliable expression of the employees' own wishes. This is because, once again, employee perception is the key, and a "hands-off' approach by management in circumstances where that would be unusual can convey to employees, deliberately or otherwise, that management is somehow connected to the petition. As the Board observed in Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759, at paragraph 36:

The only problem with [even an innocent] employer deciding as a blanket policy to take "two steps back" is that, depending on the circumstances, it may create a misperception of management in­volvement which becomes fatal to the petition.

9. In Morgan Adhesives, [1975] OLRB Rep. Nov. 809, the Board found that the unimpeded circulation of a petition during working hours, in circumstances where the employees themselves would feel management knew what was going on, was fatal to the petition:

10. In the instant case all but two of the seventy-two signatures appearing on the petition were affixed on company premises and during working hours. This fact is not of itself fatal to the petition. The evidence taken as a whole however, supports the inference that the employees of the respondent company would logically have assumed that management supported the petition, albeit in a tacit manner, and that the names of those refusing to sign the petition would become known to management.

11. In Armatage Motors Limited, [1970] OLRB Rep. Apr. 69, the Board found the following:

12. In this matter a statement of desire was filed. It appears that during the course of working hours the persons who signed the statement of desire received permission from their foreman to leave the premises whereupon they left the premises as a group and attended at their lawyers office for the purpose of signing the statement of desire.

13. Since the Board is concerned with the voluntary wishes of the employees we are of the opinion that in these circumstances any employee who remained on the premises while the remaining employees left the premises to sign the statement of desire, would be subject to the scrutiny of the foreman. In these circumstances it would have been extremely difficult for an employee to refuse to attend to sign the statement of desire knowing that such refusal might come to the attention of management. In addition it would appear that permission having been obtained for an on behalf of these employees that the employees would be under the impression that management approved and consented to their actions. In these circumstances we are not prepared to accept the statement of desire as reflecting the voluntary wishes of the employees.

And similarly in Hobart Brothers of Canada Limited, [1974] OLRB Rep. Feb. 85, the Board stated in part:

5. The petition was prepared by the objector's lawyer subse­quent to the posting of the Notice of Application for Certification provided by the Board. The petition was signed in the respondent's cafeteria during working hours by employees who in turn left their respective work stations without seeking leave of their supervisor and without question or hindrance by anyone in management. This forbearance by management can only have been interpreted by the employees as silent acquiescence in the use of its premises and time by the committee.

6. In the circumstances outlined above, it is plain that the refusal of any employee to at least go to the cafeteria would have been a clear betrayal of such an employee's position with respect to the petition as indeed would have been a refusal to sign once an employee had yielded to the virtually compulsory attendance in the cafeteria.

7. The bulk of the cases just referred to were certification cases, but the problem that the Board was faced with is too fundamental to be ignored even on a termination application. There is no evidence before the Board that a single supervisor or member of management made any inquiry of employees either before or after the fact of their mass departure from the workplace in the middle of the working day. On the contrary, the evidence that the Board does have indicates that no inquiries were made. This demonstrates beyond a doubt to the Board, as it must have to the employees at the factory, that management was fully aware of the reasons for the departure that day, and sanctioned it. And, more importantly, it would have been equally obvious to employees at the time that their decision to support or not to support the anti-union activity would be manifestly apparent to the company, both by the physical presence of dissenters remaining in the workplace, as well as by a subsequent review of the time cards to confirm who had not punched out. The employees were, in other words, literally being asked, in front of their employer, to "stand up and be counted". This kind of pressure may well be withstood by employees of particular fortitude or conviction, but on the whole must have the effect of undermining the "voluntariness" of employee conduct, insofar as such conduct is to have any reliability for the Board in ascertaining employee wishes. Once this open declaration of support was solicited, and recognizing the linkage between management and the petition which the circumstances must have forged in employees' minds, the Board does not find it surprising that all of those who attended at the Labour Board on August 10th were prepared to affix their signatures to the petition, and to again declare themselves by attending the Labour Board hearing en masse, as they unfortunately believed they were required to do. The polling of employee wishes under circumstances such as these does not, under the scheme of the Act, cause a trade union's bargaining rights to be put to the test of a representation vote.

8. As well, the natural inferences in this case are so overwhelming that the continued denials of the petitioners, Mrs. Fallico and Mrs. Turnbull, of management's knowledge, or of their assumption of management's knowledge, only serve to under­mine their own credibility. And if the Board finds, as it does, that it cannot believe the petitioners, there remains no evidence whatsoever upon which the statement of desire can satisfy the onus of voluntariness. Compare Canadian Gypsum Limited, [1980] OLRB Rep. Oct. 1368; Textrim Limited, [1980] OLRB Rep. Nov. 1702; Leamington Vegetable Growers, [1974] OLRB Rep. June 402.

9. For the foregoing reasons, the Board finds that it can give no weight to the statement of desire filed in support of this application, and the application is dismissed.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. I would have thought the natural human reaction of an employee who is pressured by an employer to sign a petition would be to look for an opportunity to retaliate and that employers would be cognizant of this potential.

2. In my view even employees who were not particularly sympathetic to a labour union which represented them would be inclined to resent employer attempts at interference and to express that resentment at the earliest and safest opportunity.

3. What better opportunity could there be to retaliate than in the protected atmosphere of a government-supervised secret ballot?

4. It is reasonable to assume that votes are conducted by the government in a manner such that even employees who may have no understanding of the legislation or their rights must recognize that the secrecy of their ballot decision will be fully protected by the authority of the State.

5. It follows that interference of an improper nature by an employer would be counter-productive in that it would only serve to solidify union support. By the same token, serious labour relations consequences can also result when the Board errors in its perception of the wishes of a substantial group of employees, even if they represent a numerical minority of the bargaining unit, for they too are entitled to suspect that their view would attract majority support in a secret ballot vote. Those whose petition has been disallowed, and who thus have been denied a vote on the basis of representations from the union claiming to represent them, will distance themselves from union supporters and the issue will continue to fester.

6. I cannot disagree with the majority in their recitation of the facts and their conclusion that the employer probably knew what was going on, nor with their reservations as to the credibility of some of the petitioners. However, I cannot help but think that the pre-occupation of the Legislature is to provide means whereby the voluntary and true wishes of employees can be determined at the time of application, as well as at subsequent intervals after bargaining relationships have been established.

7. Perhaps in the infancy of union/management relations in Ontario it was appropriate for the Board to adopt a paternalistic and condescending attitude towards employees by conducting witch-hunts into the origination, circulation and custody of petitions on the grounds that the "spectre of an all-powerful employer would follow them even into the sanctity of a government-supervised polling booth" (I here paraphrase obiter from an earlier decision which seemed to view Canadian society as an ongoing class struggle). In the Canada of 1982, however, I would place much more confidence in the ability of individual employees to make up their own minds even in the face of pressures from either side, be they subtle or overt.

8. I would view a petition for a certification vote in the same light. As long as we had before us identifiable signatures of a number sufficient to satisfy the union that a vote was worthwhile, I would be disposed to so order. I would not require that the signatories be members of the union or have made application for membership. I would not require evidence as to how the signatures had been obtained and I would not require that monies have been paid and receipted as evidence of the employees' desire to have the union represent them. The mere existence of the petition supporting the union and calling for a certification vote would be sufficient to entitle the employees and the union to an expeditious vote and, as a minimum, interim certification, assuming the results warranted and the union so requested.

9. Given this view of petitions as mere triggering devices to the dispositive event of a secret ballot vote, I would not apply the Board's current tests of voluntariness and would therefore have directed a vote in this case.