International Ladies' Garment Workers' Union v. 341857 Ontario Ltd.

[1983] OLRB Rep. April 516

1930-82-R International Ladies' Garment Workers' Union, Applicant, v. 341857 Ontario Ltd. carrying on business as Don's Sportswear, Respondent, v. Group of Employees, Objectors

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: B. Fishbein, H. Stewart and E. Ziemba for the applicant; D. Jane Forbes-Roberts for the respondent; no one appearing for the objectors.

DECISION OF PAMELA C. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER W. F. RUTHERFORD; April 14, 1983

1. This is an application for certification.

2. By a decision in this matter dated February 15, 1983, the Board concluded that the statement of desire filed in opposition to the trade union's application was not a voluntary expression of the views of its signatories. The Board then relisted the matter for a continuation hearing to entertain evidence and submissions relating to the respondent employer's charges against the union's membership evidence.

3. The charges against the union's membership evidence relate to two employees, Ms. Nanda Sukhnandan and Ms. Carmella Rossi. Although the union did not file membership cards for these employees, the Board entertained the charges because if proven, and depending on the circumstances, they could taint the reliability of other membership cards.

4. The Board has carefully reviewed the evidence relating to the union's initial approach to Ms. Nanda Sukhnandan and its subsequent attempt to collect the $1.00 membership fee. Having assessed the quality of the evidence presented and the credibility of the respective witnesses, the Board is compelled to conclude that the union did not engage in wrongdoing or exert undue pressure on Ms. Sukhnandan. Important segments of Ms. Sukhnandan's evidence were internally inconsistent. Her testimony, therefore, does not establish a probable account of what happened. Moreover, her answers were frequently evasive and non-responsive. In contrast, the union's witnesses were forthright in their testimony. The Board was given no cause to doubt the veracity of their evidence.

5. The Board accepts from the evidence that Ms. Sukhnandan willingly signed a membership card when she was first approached by the union. The Board is satisfied that the union representative, Mr. E. Ziemba, did not knowingly or intentionally mislead Ms. Sukhnandan about either his identity or the effect of signing a membership card. The Board has strong reservations about whether Ms. Sukhnandan was in fact confused by his approach, but if she was, we conclude that there was no reasonable basis for it. The Board further accepts that Ms. Sukhnandan willingly sought to find sufficient change in her purse to pay the membership fee immediately after she signed the card. She even permitted Mr. Ziemba to help her count out her change. When it was clear she did not have the required change, Ms. Sukhnandan and Mr. Ziemba arranged that he would visit her home to collect the money.

6. It is obvious that Ms. Sukhnandan had a change of heart between the time she signed the card and the point when Mr. Ziemba and his associate, Mr. H. Steward, came to her home to collect the $1.00 membership fee. The Board rejects outright that either union representative threatened Ms. Sukhnandan with the loss of her job if she did not pay the $1.00. In examination-in-chief Ms. Sukhnandan asserted without apparent reservation that the threat had been made by Mr. Ziemba. In cross-examination she stated that she couldn't recall which of the two union representatives attending at her home had made the threat. If the threat had actually been made the Board would expect, in the circumstances, that Ms. Sukhnandan would have been able to recall which of the two union representatives, both of whom were sitting before her at the hearing, said she would lose her job if she didn't pay the $1.00. This lapse and the overall inconsistent, non-responsive nature of her testimony, coupled with the credible denials of the two union representatives, satisfy the Board that the union did not threaten Ms. Sukhnandan in an effort to persuade her to pay the $1.00 membership fee. Further supporting the Board's assessment of the evidence is the improbability of the following: Ms. Sukhnandan's brother testified to having heard the alleged threat. The next day he called the company to ask the owner if he knew that the union was trying to get in. He admits, however, that during his conversation with the owner he did not mention the alleged threats. The strong probability is that if such threats had been made, Ms. Sukhnandan's brother would have mentioned them. The fact that he didn't, supports the Board's conclusion that they were not made. The Board further rejects the suggestion that subsequent to the home visit, Mr. Stewart threatened that he would send Ms. Sukhnandan's card to the employer if she refused to pay the $1.00.

7. We turn now to Ms. Carmella Rossi. The employer alleges that on a visit to Ms. Rossi's home, Mr. Ziemba threatened some four consecutive times that the union would "remember her and her husband" because she would not sign a card. Having carefully assessed the evidence of the union and the witnesses testifying against the union (Ms. Rossi and her son), we readily conclude that the union did not engage in any wrongdoing. It is unnecessary to review herein all the details of the conversation. The alleged threat, however, simply does not emerge plausibly from Ms. Rossi's own testimony. Moreover, the facts she set out as surrounding the alleged threat are, in a number of important aspects, inconsistent with the testimony of her son. The four union witnesses who were present at the time of the alleged threat, each testified in a convincing and straightforward manner to what was said during the exchange. The Board accepts their uniform denial that anything improper was said.

8. The Board does not consider Ms. Rossi's subsequent threat against Mr. Ziemba which was made at the plant a few days later as probative of the alleged threat against her. The threat she made was, "You give me trouble, someday I'm going to kill you." She confirmed in her testimony that when she said this she said it as a joke.

9. Having regard to the evidence in its entirety the Board is fully satisfied that no threats or undue influence were brought to bear on either Ms. Sukhnandan or Ms. Rossi.

10. For the reasons set out above the Board concludes that the union did not engaged in any wrongdoing in its membership campaign. The Board, therefore, dismisses the charges filed by the employer.

11. In its decision dated February 15, 1983 the Board found, having regard to the agreement of the parties, that all employees of the respondent in Metropolitan Toronto, save and except foreperson, persons above the rank of foreperson, 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, constitute a unit of employees of the respondent appropriate for collective bargaining.

12. The Board further found in that decision, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on January 26th, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

13. Moreover, as set out above, the Board concluded in its February 15th decision that the statement of desire filed in opposition to the union's application was not voluntary.

14. In these circumstances and in view of the Board's dismissal of the employer's charges against the union, the Board certifies the union as the exclusive bargaining agent for the employees in the bargaining unit set out above.

15. In closing, the Board records the ruling it made at the outset of its initial continuation hearing into the charges filed by the employer. Counsel for the employer requested that the Board adjourn its hearing because the owner of the respondent was on a golf holiday in Florida. The union would not consent to the adjournment. Counsel for the employer acknowledged that the owner was not required to give evidence. She stated, however, that he was her sole adviser. We note that the employer left for his holiday approximately one week after he had been formally advised of the date set for the continuation of the Board's hearing. Apparently he went, notwithstanding the hearing, because his companions were relying on his presence in the golf tournament. It is said that they would not have been able to enter the tournament if he dropped out.

16. The Board's policy with respect to the granting of adjournments was stated as follows in Nick Masney Hotels Limited, [19681 OLRB Rep. Nov. 833 at pp. 834—835:

... [T]he Board's practice [is] to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party, e.g., where it is proven that a witness essential to the party's case is unable to attend because of serious illness. It has not been the practice of the Board to grant adjournments merely for the convenience of counsel, as was the basis of the request in this case.

The Board's refusal to grant an adjournment in Nick Masney was upheld on appeal by the Court of Appeal of Ontario. In Regina v. O. L. R. V, ex parte Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), 1970] 3 O.R. 461 the Court endorsed the Board's adjournment policy and made the following observations concerning the need for expedition, particularly in certification proceedings. At pp. 465—466 Laskin J.A., speaking in the Court said,

This Court cannot say, as Addy, J., could not say, that the refusal of an adjournment to the employer in the present case amounted to a denial of natural justice. The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to a union, to employees and to an employer since the certification is merely the first step in an often laborious collective bargaining process. When, as here, adequate notice has been given of a hearing date and an opportunity afforded to make representations, the failure of a party to secure an agreement for an adjournment, where it has not been misled by another party to that other's advantage and where the Board has stood above the negotiations and has properly followed its own rules, fashioned for the protection of all parties, there is no denial of natural justice to support a successful resort to certiorari against the Board.

Similarly, in Re Flamboro Downs Holdings Ltd. and Teamsters, Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 99 D.L.R. (3d) 165 the Ontario Divisional Court upheld the Board's refusal to grant an adjournment with the following comments at pp. 168—169:

In the case of a request for adjournment, [the Board] is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interest of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so.... It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act, 1971 (Ont.), c. 47, and afford the parties the opportunity to be present and be represented, if they wish, by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

We are all agreed that it cannot be said in the circumstances of this case that the Board conducted itself in an arbitrary fashion in denied natural justice.

[emphasis added]

17. The facts before the Board in Montgomery Elevator Company Limited, [1978] OLRB Rep. Jan. 83 bear a marked similarity to the instant situation. In the course of that matter the Board denied an adjournment for a party whose witness was "unable" to attend the hearing. The witness had made a prior arrangement to visit his parents in Florida and left on his trip notwithstanding his prior knowledge of the established hearing date and the opposing party's failure to agree to the requested adjournment. At p. 85 the Board made the following comment:

We note that the applicant was aware on November 23rd of the lack of agreement on an adjournment and that it would have still been open to the witness to either change his scheduled visit dates or alternatively to have made arrangements to interrupt his visit by one day. Exercise of this latter alternative, in today's transportation availabilities, cannot be considered an unusual one.

(See also the Board's decisions in General Bearing Service Ltd., [1980] OLRB Rep. Aug. 1200; Canada Dry Bottling Company (Kingston) Ltd., [1978] OLRB Rep. Nov. 976; Baycrest Centre of Geriatric Care, [1976] OLRB Rep. Aug. 432 and St. Elizabeth Nursing Home, [1972] OLRB Rep. Apr. 378.

18. As clearly endorsed by the Courts in the quotations set out above, expedition is a particularly important consideration in certification proceedings. Obviously, though, the need for expedition cannot deny a party its entitlement to natural justice. In the instant circumstances the Board was not prepared to adjourn a certification proceeding simply because the company's adviser, who had been informed of the Board's hearing date approximately a week before his departure, felt compelled to attend a golf tournament in Florida. The Board cannot schedule and reschedule its hearings for the convenience of one party's adviser. While it may be natural to try to avoid having to make certain choices, the Board is of the opinion that in this instance the company's adviser was required to choose between attending the golf tournament the day of the hearing and advising counsel at the hearing. Having regard to the Board's general policy concerning adjournments which is designed for the protection of all parties, and the circumstances surrounding the adviser's absence in this instance, the Board was not prepared to delay the certification proceeding by acceding to the requested adjournment, and the majority of the Board, with the Board Member Ronson dissenting, so ruled.

19. Having regard to the foregoing a certificate will hereby issue to the union.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I would order a vote. The evidence leads me to believe that Mr. E. Ziemba threatened Carmella Rossi and her husband. The fact that frustration may have led to an outburst of temper on Mr. Ziemba's part, does not detract from the serious effect of the threat. Mrs. Rossi took the remark seriously: she countered several days later by threatening Mr. Ziemba's life is anything should happen to her family.

2. Mr. Ziemba's direct involvement with a substantial number of membership cards leads to doubt about the entire union membership evidence, and I would order a vote.