[1983] OLRB Rep. November 1843
1182-83-R; 1183-83-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant, v. Cosa Nova Fashions Ltd. and Cosa Nova Fashions Ltd., carrying on business as Harolds Furs, Respondent, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members B. Armstrong and W. H. Wightman.
APPEARANCES: A. M. Minsky, F DaSilva and J. Watson for the applicant; Barbara G. Crosby, Maurice Tousson and Isaac Bennitah for the respondent; Barry Edson for the objectors.
DECISION OF THE BOARD; November 8, 1983
These are two applications for certification both filed August 31, 1983. Board File No. 1182-83-R is an application made with respect to a unit consisting of certain part-time employees of the respondent. The companion application in Board File No. 1183-83-R affects full-time employees. The Board's file indicates that notices to employees (Form 7) with respect to each application were posted by the employer on September 7, 1983. The terminal date fixed in each application was September 12, 1983. No employees sought to intervene in either application prior to that date.
By agreement dated September 19, 1983, the applicant and respondent settled an unfair labour practice complaint filed earlier by the applicant union and resolved certain issues arising in these certification applications. The parties agreed that not less than thirty-five per cent of the employees of the respondent in each of the voting constituencies agreed upon were members of the applicant at the time the applications were made. They further agreed that the Board direct that a pre-hearing representation vote be taken of the employees of the respondent in the part-time and full-time bargaining units described as follows:
Full-time unit
all employees of the respondent in the Municipality of Metropolitan Toronto save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, designers, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
Part-time unit
all employees of the respondent in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, and designers.
Having regard to this agreement of the parties, the Board ordered the agreed upon vote in a decision dated September 22, 1983.
In accordance with the Board's usual practice, arrangements were made for the conduct of the vote in consultation with the parties. The vote took place on September 30, 1983.
With respect to the part-time unit, none of the four persons on the agreed upon voters' list cast ballots.
With respect to the full-time unit, the revised voters' list contained the names of 274 employees. Excluding segregated ballots, 218 ballots were cast, although only 217 names were checked off on the revised voters' list. In addition a total of 17 persons not named on the voters' list attended and requested the opportunity to vote, and their ballots were segregated in accordance with the Board's usual practice in that regard.
At the conclusion of these votes, the scrutinisers for each of the parties certified that the balloting was fairly conducted and that all eligible voters had been given an opportunity to cast their ballots in secret. The parties further consented to an immediate counting of the ballots cast, other than the 17 segregated ballots which the parties agreed were to be investigated only if they were pertinent to the outcome. In consenting to an immediate count, the parties expressly waived any objection as to regularity and sufficiency of the balloting. Of the 218 unsegregated ballots, 8 were spoiled, 115 were marked in favour of the applicant and 95 were marked against the applicant.
Notice of the report of Returning Officer in Form 71 was posted and given to the applicant and the respondent and to the firm of Rovet & Associates, who intervened in these proceedings on behalf of a group of full-time employees by letter dated October 7, 1983. On behalf of ten named employees~ Mr. Barry A. Edson of that firm sought the opportunity to make representations relating to the representation vote pursuant to section 70 of the Board's Rules of Procedure. The thrust of the complaint was contained in two paragraphs, which read as follows:
I am advised that employees were brought to the polling place by department and that the employees whom we represent whose names did not appear on the list were not brought to the polling station to vote. When the employees inquired as to when they would be voting, they were advised that the voting had already been completed and the ballots were counted....
Given that the results of the vote were 115-95 with 17 segregated ballots, the votes of our clients are of material importance in the disposition of the certification proceedings. We have, therefore, been instructed to request that the Board convene a hearing on this matter and that our clients be given the opportunity to cast ballots in these proceedings before this matter is finally disposed of by the Board.
On notice to Mr. Edson as well as to the other parties to these proceedings, the Board convened a hearing on November 8, 1983 to consider the requests set out in Mr. Ed-son's letter. At the outset of that hearing, the Board invited Mr. Edson to outline for us the facts he felt he could establish in evidence in support of his request. Counsel for the applicant trade union asked the Board to refuse to hear the evidence offered and dismiss this request for relief, on the ground that the facts alleged, even if proved, would not warrant action by the Board. Having regard to the nature of the allegations and the argument tendered by Mr. Edson, counsel for the employer supported the position taken by the applicant trade union.
At the hearing of November 8, 1983, Mr. Edson advised the Board that three of the employees named in his letter of October 7th had withdrawn their objections. The remaining seven objectors were: Franca Buffone, Pina Deliso, Jenny Chong, Ali Khan, Vana Papadoupoulos, Tony Pasqueli, Patricia Vavaroutsos.
The respondent carries on business in two buildings across the street from one another at numbers 420 and 479 Wellington Street West, in the City of Toronto. They are employees affected by these applications who work in each of those two buildings. In making arrangements for the conduct of the vote, the parties provided for a polling place at 420 Wellington Street West in the third floor design room to be open from 8:00 a.m. to 10:00 a.m., and for a polling place to be open on the second floor at 479 Wellington Street West from 10:30 a.m. to 12:00 o'clock noon, all on Friday September 30, 1983. A Notice of Taking of Vote (Form 69) was prepared in a number of copies. Under the title "Secret Ballot", Form 69 provides as follows:
The vote shall be by secret ballot. The Returning Officer will issue a ballot to each eligible voter presenting himself to vote at his proper po1l-ing place. The voter will mark his ballot in secret in a polling booth, fold it and deposit it in the ballot box provided at the polling place. The Returning Officer is the proper person to whom inquiries should be directed by employees who are in doubt as to their eligibility to vote or as to the voting procedure.
(emphasis added)
Under the hearing "Eligible Voters" the From 69 prepared in connection with these applications provide as follows:
Persons eligible to vote are:
FULL TIME UNIT:
All employees of Cosa Nova Fashions Ltd. and Cosa Nova Fashions Ltd. carrying on business as Harolds Furs in the Municipality of Metropolitan Toronto (on September 12, 1983) save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, designers, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
PART TIME UNIT:
All employees of Cosa Nova Fashions Ltd. and Cosa Nova Fashions Ltd. carrying on business as Harolds Furs in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period (on September 12, 1983) save and except assistant supervisors, persons above the rank of assistant supervisor, office, clerical and sales staff, and designers.
(Employees in the voting constituencies who voluntarily terminate their employment or are discharged for cause between September 12, 1983 and the time the vote is taken, will not be eligible to vote).
And under the heading "TIME AND PLACE OF TAKING VOTE", the form provided as follows:
Voters may cast ballots at their proper polling place at any time during the period in which voting is to take place. The vote will be taken at the following time and place:
Date: Friday, September 30, 1983.
Hours: 8:00 a.m. to 10:00 a.m.
10:30 a.m. to 12:00 noon
Place: COSA NOVA FASHIONS
420 Wellington Street,
3rd Floor, Design Room,
TORONTO, Ontario.
COSA NOVA FASHIONS
479 Wellington Street West,
2nd Floor, Lining-Holding Area,
TORONTO, Ontario.
And in accordance with the Board's standard form, this notice contained the following sentences:
VOTERS ARE ENTITLED TO VOTE WITHOUT INTEREFERENCE, RESTRAINT OR COERCION.
THIS IS AN OFFICIAL NOTICE OF THE BOARD AND MUST NOT BE REMOVED OR DEFACED UNTIL THE VOTE HAS TAKEN
PLACE.
Counsel for the employer advised us that copies of the Form 69 referred to in the next preceding paragraph were posted in both buildings occupied by the respondent. With respect to the building at 420 Wellington Street West, where all seven of Mr. Edson's clients worked, notices were posted at the security station at the entrance to the building, at the receiving door, outside both the mens' and ladies' washrooms on the second floor, beside the time-clock, elevator and ladies' washroom on the third floor, and at the time-clock, freight elevator and ladies' washroom in the basement. Employees could not enter or leave 420 Wellington Street without passing the security station at which one of these notices had been posted. The evidence of Vavaroutsos and Pasqueli would be that they had seen these notices posted on the floor on which they normally work, which is also the floor where the polling place was located on September 30th. Chong works in the same department as Vavaroutsos, but does not recall seeing notices. Khan and Papadoupoulos work in close proximity to Pasqueli. They do not read English. Buffone and Deliso work in the shipping area one floor below the floor on which the other five employees normally work. They would deny seeing any notices posted outside the washrooms on that floor. Except as just indicated, Mr. Edson conceded he had no evidence to call which would otherwise contradict the evidence which the employer was prepared to call with respect to the locations at which the Board's Form 69 had been posted. Mr. Edson also conceded that all seven of his clients were aware on September 30, 1983 that a vote was in progress with respect to union representation.
The allegations on behalf of Buffone and Deliso were that they are shipping clerks employed in the shipping area. On the morning of the vote they inquired of their supervisor as to whether or when they would vote. Their supervisor told them that if they were going to be given an opportunity to vote they would be called up to the polling area on the floor above. The shippers who work in the shipping area were called up to the polling area. Buffone and Deliso were not called. Their work area is separated from the shippers' work area by racks of clothes. In the afternoon of September 30th they asked their supervisor when they would get to vote. At the point the supervisor told them that the vote was over and the ballots had been counted.
Khan, Pasqueli and Papadoupoulos all work in close proximity to one another in an area which is close to the area in which polling took place at 420 Wellington Street West. Pasqueli and Khan saw people going to vote, and were waiting for their turn to go. Pasqueli saw a managerial employee with a voters' list instructing people to come to vote "by department". Neither of them was directed to go and vote.
On the morning of the vote, Papadoupoulos saw people going to vote. She asked her supervisor whether she could vote. He supervisor told her she could not. Asked whether Papadoupoulos took the supervisor's response as a command rather than an expression of opinion, Mr. Edson conceded that the supervisor's response to her question was not taken by her as a command but, rather, as opinion or information.
On the morning of the vote, Vavaroutsos asked the designer for whom she worked as a sample maker whether she could vote. The designer told her she could not. It is not clear whether the designer involved in this conversation is a supervisory employee. Whether she is or not, Mr. Edson conceded that Vavaroutsos did not take the designer's answer as a command but, rather, as opinion or information.
Chong also works in the design department with Vavaroutsos. She is one of the employees who alleges she did not see the notices with respect to the vote. There is no allegation that she was given any misinformation by anyone. The allegation on her behalf is simply that she was not called to vote.
None of the employees represented by Mr. Edson alleges that anyone interfered with their having access to the polling station at the building in which they work or, indeed, for the polling station in the building across the street. There is no allegation they were physically prevented either from attending either polling station or from the reading the notices posted in the building. There is no allegation that they were instructed not to attend to vote or that they sought and were refused permission to do so.
It was common ground that none of the seven employees represented by Mr. Edson was named on the revised voters' list employed in connection with the vote and posted at various locations on the premises at 420 Wellington Street West. The respondent employer conceded that all seven were employees at all times relevant to their eligibility to vote, and that they did fall within the bargaining unit. The respondent trade union was not prepared to concede those facts. We dealt with the respondent's motion on the assumption that these employees might have been entitled to vote.
In answer to a question from the Board, Mr. Edson explained how the employees he represented had gotten together to retain him. He said Buffone learned "through general discussion in the plant" that she was part of the unit. She and Pasquale associate. They together located others. By October 4, 1983, the second business day following the vote, they had prepared a petition of some kind, written in English, which some of the seven signed, including Papdoupoulos. Papdoupoulos, it will be remembered, suffers from the disability that she neither reads nor writes English. Mr. Edson explained that Papadoupoulous can speak and understand a certain amount of spoken English and that she had had the petition explained to her before she signed. It was apparent that, once aroused, Mr. Edson's clients could discover their rights, overcome language difficulties and act quickly and decisively. In view of their apparent opposition to union representation, it is unfortunate for them that they did not take such an active interest in this application at an earlier point in time.
After affording counsel full opportunity to argue the merits of Mr. Edson's application on the assumption he could establish all of the facts alleged, the Board issued the following oral ruling:
Having carefully considered the submissions of counsel, we are satisfied that we need not hear the evidence Mr. Edson seeks to introduce. Mr. Edson has told us what that evidence would establish, if accepted. We are satisfied that we would not grant his clients relief even if all of their allegations were proved.
Mr. Edson conceded he could not contradict the evidence the employer would tender concerning the extensive posting of the Board's Notice of Taking of Vote. Put at its highest, the evidence tendered by Mr. Edson would establish that some employees did not see these notices, while others saw but were unable to read them because of language difficulties. This evidence would not overcome the effect of the employer's proposed uncontradicted evidence with respect to posting, which is that the Board would conclude that notice was adequate. In this regard we do also note Mr. Edson's concession that the seven employees for whom he still acts were all aware on September 30, 1983 that a vote was taking place.
If we heard the evidence tendered by Mr. Edson and accepted all of it, we could still not escape the conclusion that all his clients had had a reasonable opportunity before the vote to read the Notices and make whatever inquiries might be appropriate with respect to the instructions set out therein.
We agree with Mr. Minsky that the language of the Board's Notice is as clear as it could reasonably be in its direction that any concern about voter eligibility be addressed to the Returning Officer. The employees who addressed questions of this sort to persons other than the Returning Officer cannot fairly be heard to say that the Board has somehow failed in its duty to them.
As to the words and conduct of supervisory personnel alleged by Mr. Edson's clients, it is clear that this conduct does not go so far as to amount to an active interference with the rights of any of them to approach the Returning Officer with their concerns.
Each participant in the certification process has an obligation to actively protect and represent his or her particular interests. There is no evidence tendered to suggest that the opportunity to do so was denied any of the employees Mr. Edson represents.
We do wish to note that the interests of these employees were most ably represented by Mr. Edson, who advanced every argument reasonably available on the facts as he understood them.
In the result, the Board will not entertain or provide for the casting of any ballots other than those cast on September 30, 1983, and will not order a second vote.
We hereby confirm that ruling.
Having regard to the outcome of the representation vote in the part-time unit described in paragraph 2 of this decision, the applicant's application for certification with respect to that bargaining unit is dismissed.
With respect to the full-time bargaining unit described in paragraph 2 of this decision, it is apparent that the applicant's entitlement to certification would be unaffected by any result of the counting of the segregated ballots or of the resolution of the discrepancy between the number of unsegregated ballots cast and the number of names checked off on the voters' list.
Having regard to the agreement of the parties referred to in paragraph 2 hereof, the Board is satisfied that not less than thirty-five per cent of the employees in the full-time bargaining unit described in paragraph 2 of this decision were members of the trade union at the time the application was made.
As more than fifty per cent of the ballots cast in the representation vote with respect to the full-time unit are in favour of the trade union on any view of the matter, a certificate will issue to the applicant trade union with respect to that bargaining unit.