Ontario Labour Relations Board
[1983] OLRB Rep. August 1375
0646-83-R International Ladies' Garment Workers' Union, Applicant, v. Vogue Brassiere Incorporated, Respondent, Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.
APPEARANCES: S. B. D. Wahl and H. Stewart for the applicant; Brian P. Smeenk, F Piltz E. Lazarich and J. Priebe for the respondent; Barbara Kirk and Dawna Martin for the objectors.
DECISION OF THE BOARD; August 17, 1983
The name of the respondent is amended to read: “Vogue Brassiere Incorporated.”
This is an application for certification.
The Board finds that the applicant is a "trade union" within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds all employees of the respondent in Cambridge, Ontario save and except supervisors, persons above the rank of supervisor, office and sales staff, designers, mechanics, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation penod, to be a unit appropriate for collective bargaining.
The applicant filed membership evidence well in excess of the level normally required for certification without a vote. There were, however, charges filed by the employer with a view to impugning the quality of that membership evidence, and the weight which the Board ought to place upon it. There was, in addition, a statement in opposition filed by a large number of employees in the bargaining unit. In view of the number of persons signing that statement who had previously signed membership cards upon which the applicant relies, the statement in opposition is material to the enquiry before the Board.
The Board ruled that it would first deal with the charges against the membership evidence filed by the employer. These had to do with the conduct of one of the applicant's major organizers in this campaign, Mr. Ed Ziemba. The charges were essentially that Mr. Ziemba brought improper considerations to bear on one Delia Reposo in attempting to persuade her to sign a membership card. Specifically, Mr. Ziemba is challenged for engaging in certain discussions with Ms. Reposo concerning the possible purchase of her car, and also the possible securing of a job for her boyfriend, Manny Frigoso, who was also present for the conversation. The employer contends that Mr. Ziemba secured an improper "conditional" payment from Ms. Reposo insofar as Ms. Reposo agreed to sign a card and pay her dollar only on the understanding that the applicant would in fact file an application for certification with the Labour Board the next day. The Board heard the employer's evidence with respect to these charges, and issued the following oral decision.
The issues raised by the employer's charges bring into play two fundamental principles with respect to Board certification. The Board has many times emphasized that it requires the highest standards of integrity from individuals engaged in trade union organizing, particularly in view of the "hearsay" nature of the evidence upon which the Board must rely. On the other hand, the whole basis for the Board's acceptance of hearsay evidence in this regard is to provide objective and confidential evidence of employees' wishes, without the necessity of a full investigation into the thought process of every employee in each case. The Board must continue to supervise the organizing process carefully. However, the Board has, given the nature of that process, been reluctant to impose unrealistic standards on organizers with respect to styles or degrees of "salesmanship". The test which the Board has developed has most recently been set out and considered in the case of Leon's Furniture [1982] OLRB Rep. March 404, where the Board noted, at paragraph 11:
The Board has drawn the line of regulation between salesmanship and improper conduct at fundamental misrepresentation, coercion and intimidation.
Beyond that line, the Board recognizes that an employee's decision ultimately to sign a card can be the product of a number of factors, and the Board is not prepared to engage, as a general rule, in ex post facto analyses of what it was specifically that motivated the employee to sign in each particular case. (Compare Baltimore Aircoil [1982] OLRB Rep. October 1387.) In the absence of conduct that crosses the bounds of acceptable salesmanship, in other words, the card which the employee has signed is allowed to speak for itself.
The Board finds that Mr. Ziemba's conduct in this case did not cross the bounds of acceptable salesmanship. The possibility of purchasing Ms. Reposo's car, or finding a job for her boyfriend, were not made conditional upon Ms. Reposo signing a card, and the Board need decide here what its response would be if they were. With respect to the car, after considerable discussion, it was Ms. Reposo's evidence that Mr. Ziemba simply told her that he would "speak to his daughter and get back to her". With respect to the job, Mr. Frigoso himself explained to Mr. Ziemba the reasons for his skepticism at Mr. Ziemba's ability to produce, and the Board finds that Mr. Ziemba undertook to do no more than to try - which he did. Neither witness, the Board finds, was under any illusion as to the extent of Mr. Ziemba's undertaking, although both were naturally hopeful that Mr. Ziemba might ultimately come through.
With respect to the "conditional" payment, the Board has never said that any kind of condition attaching to an application for membership destroys the value of that application. The cases cited by the employer all go no further than to establish that it is improper to establish a condition that the individual receive his or her dollar back if the application for certification is not successful, or, put another way, if not enough cards are obtained. That was not the point of the condition in this case. Mr. Ziemba in the course of his solicitation of Ms. Reposo assured her that he had enough cards already and that he did not really need her card at all. Ms. Reposo, through previous experience with organizing campaigns, believed that Mr. Ziemba was bluffing, and wanted to make it clear to him that she was not so naive. She therefore challenged him to back up his statement that he already had sufficient cards to be certified. Mr. Ziemba responded to this challenge by indicating that he was prepared to file his application for certification with the Board the very next day. He went on to reinforce his sincerity by saying that if he failed to follow through with his undertaking, he was prepared to give Ms. Reposo her dollar back. He added that he would give Ms. Reposo this undertaking in writing, and proceeded to do so. This condition, we find, was simply a result of the sparring that was going on between the two over Mr. Ziemba's sincerity, and in any event is not inconsistent with the fundamental purpose of employees signing a card: i.e. to be used to file an application for certification with the Board. It is also a condition which would, to the employees’ knowledge, be fulfilled or not well before the terminal date for indicating any change of heart by the employee.
Having heard the evidence, therefore, the Board can find no compelling basis to conclude other than that Ms. Reposo decided, after considerable coaxing, to voluntarily sign an application for membership, fully aware of all the material facts and what it was that she was doing. The Board finds no basis to the challenge raised against the applicant's membership evidence and will proceed to entertain the evidence concerning the statement in opposition filed in this matter.
There was also filed in conjunction with this organizing campaign a section 89 unfair labour practice complaint against the employer. This complaint, the Board was advised, raises a number of factual issues which may be deemed by one or the other of the parties to be relevant both to the question of the voluntariness of the petition, and, if ultimately material, to the question of the applicant's section 8 request for certification. The Board accordingly accepted the agreement of the parties to at this stage consolidate the instant certification file and the section 89 complaint, being Board file No. 0811-83-U. There was, at the same time, some discussion before the Board of the specific procedure to be adopted in dealing with the remaining issues. Noting the agreement of the parties that a different panel would be proceeding with the remainder of the issues in order to expedite scheduling, the Board at this point went no further than to indicate that the issue of the "petition" would be dealt with next, and that the proceedings will resume, therefore, with the tendering of the petitioners' evidence concerning the origination and circulation of the statement in opposition.