United Food and Commercial Workers International Union v. Primo Importing and Distributing Co. Ltd., 1983 CanLII 883

[1983] OLRB Rep. June 959

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 Haves, Vincent Gentile, Ron Lebi and Stan Henderson for the applicant; R. M. Parry, Arthur Pelliccione and Angelo Cap ozzi for the respondent, M. G. Horan and M. Zangolli for the intervenel;

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER S. COOKE; June 28, 1983

1. This is an application for certification in which the applicant (also referred to in this decision as the "union") 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. It is common ground among the parties that if the Board declines to certify the applicant pursuant to section 8, it should direct that a representation vote be taken in order to determine whether or not the applicant is to be certified. The parties are further in agreement that although this matter has come before the Board in the form of a certification application, it is also, in substance, a "complaint alleging a contravention of [the I Act" within the meaning of section 89, which empowers the Board to make appropriate remedial orders in conjunction with a representation vote or a section 8 certificate.

2. In a majority decision dated December 24, 1982 (reported at [19821 OLRB Rep. Dec. 1869) in this matter, the Board, with Board Member J. A. Ronson dissenting, found that an agreement entered into by the intervener and the respondent in July of 1982 was not a collective agreement for purposes of the Labour Relations Act by virtue of section 48 of the Act. The Board further found that section 13 of the Act precluded it from certifying the intervener in the circumstances of this case and, accordingly, dismissed the intervener's application for certification. Although some additional evidence was adduced at the continuation of hearing directed by the Board in that decision, most of the material facts upon which the parties rely in support of their respective submissions at this stage of the proceedings are contained in that decision, a copy of which is attached hereto and marked as Appendix "A".

3. Following the issuance of the Board's decision of December 24, 1983 in this matter, the applicant distributed copies of that decision, together with the following letter (on the applicant's letterhead), to employees of the respondent at the plant gate:

"UNION WINS AT LABOUR BOARD

We are pleased to be able to tell you that the Ontario Labour Relations Board has just released its decision which is entirely in favour of the union on all points argued thus far.

A full copy of the Board order is attached but, in summary, the Board decided:

1. The Primo employees association was supported and assisted by the company. Therefore the association cannot be certified by the Labour Board to represent the workers at Primo.

2. The so-called contract between the Association and the company is NOT a legal contract under the Labour Relations Act.

What this means is that the Labour Boad has rejected the phoney association and the 'so-called contract covering the workers.

The Labour Board has ordered that future dates for hearings be established at which time the union can continue its case to represent the workers. We are hopeful that the Labour Board will now be able to certify a proper union for the Primo workers.

Now that the Labour Board has rejected the phoney association, the union is the only chance Primo workers have to obtain a fair deal from the company. Thank you for your continued support! We will keep you informed as the case progresses!"

The respondent later returned to the employees, without comment, the monies which it had deducted from their paycheques pursuant to the checkoff provision contained in the impugned agreement.

4. At the commencement of the continuation of hearing, counsel for the applicant questioned the status of the intervener to continue as a party in these proceedings in view of the Board's dismissal of its application for certification. However, as indicated by the Board at that time, Mr. Zangolli, the president of the intervener, is an employee of the respondent in the bargaining unit for which the applicant seeks bargaining rights. As an employee directly affected by this application who objects to the union's request for certification, he has status to appear before the Board with counsel and participate in the proceedings. Mr. Horan appeared before the Board as counsel for the intervener and as counsel for Mr. Zangolli. Accordingly, the Board found it unnecessary to determine whether the intervener had status to continue as a party, since Mr. Horan would be entitled to participate in the proceedings to the same extent in his capacity as counsel for Mr. Zangolli, as he would be entitled to participate therein as counsel for the intervener.

5. Vincent Gentile, an International Representative and full-time organizer for the applicant, gave evidence about the union's organizational efforts in respect of the respondent's employees. Between 1975 and November of 1979, the applicant assisted some of the respondent's employees with various work-related matters such as unemployment insurance and workmen's compensation. Although some union cards were signed during that period, there was no "official campaign" until the fall of 1979. That campaign culminated in an unsuccessful bid for certification without a vote pursuant to section 8 (as described in Appendix "A") and a representation vote, held on September 10, 1981, in which 116 ballots were marked against the applicant and 69 ballots were marked in favour of the applicant.

6. Following that vote, counsel for the union advised the Registrar in a letter dated September 16, 1981 that the union would not be seeking to challenge the results of the vote. In that letter he also stated: "The union is in possession of information indicating misconduct both by the employer and objecting employees but will not be relying upon it in this matter." Counsel further indicated that he was advised that the group of objecting employees was "already contemplating forming a company associa­tion", and requested that "any bar contemplated by the Board pursuant to section 92(2)(i) [now section 103(2)(i)[ apply to any application by or on behalf of the employees of the respondent". In an unreported decision dated October 14, 1981, the Board, differently constituted, wrote as follows in rejecting that request:

"4. The applicant contends that because of the protracted nature of these proceedings and the unusual circumstances of the case, the Board should not follow its usual practice of imposing a bar to a further application by the applicant. The applicant further submits that it has been advised that some of the employees intend to form their own employee organization. However, on the basis of the material before us, the Board sees no reason why it should depart from its usual practice. The length of the proceedings results largely from the consideration of allegations made by the applicant but unsubstantiated by the evidence; and we do not think that it is appropriate to modify the Board's usual practice simply because the respondent's employees might choose to form or join another employee organization."

7. Mr. Gentile informed the Board that he did not file unfair labour practices against the respondent in the fall of 1981 because Board notices, even when translated into Italian, do not enable many of the respondent's Italian speaking workers over the age of forty to comprehend the Board's decision, as they are not, in Mr. Gentile's opinion, sufficiently literate to understand "the full text" of such notices. Moreover, Mr. Gentile told the Board that he decided not to file unfair labour practices because he "had a gut feeling" that the union was "going to make it" in their next organizational campaign.

8. Mr. Gentile testified that he "started counting the six months from September 10th" and "showed up at the plant" on March 12, 1983 to renew his organizing efforts. He and other union organizers (who were not employees of the respondent) generally handed out of leaflets to employees at the plant gate once a week, usually on Friday. He described the campaign as "very difficult", "very confusing", and "at times ... very depressing". Mr. Gentile and the members of the union's "plant committee" telephoned and visited many of the respondent's employees at their homes. Most of the employees were visited more than once, and some were visited as many as three or four times. The union made "fair progress" until late April or early May when the Primo Workers' Committee informed the employees of the wage and benefit improvements which that committee had secured through discussions with management. Thereafter, it became increasingly difficult to persuade employees to join the union. Having obtained almost fifty cards in March and April, the union obtained less than ten further cards in May. It did, however, succeed in signing up fourteen employees in June and a further fourteen employees in July. Indeed, it managed to sign eleven employees into membership between July 12 and July 28, following the July 11 meeting at which the intervener, after attempting to take the necessary steps to become a "trade union", purported to accept the respondent's "contract proposal".

9. Mr. Gentile testified that the applicant, acting on legal advice, decided to file this application on July 16, 1982, even though its organizing drive was not yet completed and even though he thought that if organizing had continued for another month, the applicant "would have made it". His explanation for the decision to file the application in July, instead of waiting until August, was: "We knew there was a contract. We didn't know if it was signed or not. We knew there was an association. We didn't know if it was legal or not. We didn't know if the association could even come to the Board. We didn't know where we stood."

10. As indicated aboye, the applicant seeks certification without a representation vote pursuant to section 8 of the Act, which provides:

"Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit."

As has been noted by the Board in many cases, certification can be granted under that section only if three conditions are satisfied:

(1) The respondent must have contravened the Act.

(2) The applicant must have membership support that, in the opinion of the Board, is adequate for the purposes of collective bargaining.

(3) The respondent's contravention of the Act must have resulted in a situation in which the true wishes of the employees are not likely to be ascertained.

11. As indicated in paragraph 32 of Appendix "A", it is abundantly clear that the respondent participated in the formation and administration of the Primo Workers' Committee, and also contributed "other support" to it:

....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 any 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.

As the Board observed in Upper Canadian Furniture Limited, 119811 OLRB Rep. July 1016, at paragraph 38:

"Even where an employer does not sow the seed of an employee association, its active support for the association may become a potent form of interference in contravention of section 56 [now section 64] of the Act. Given their economic dependence on their employer, employees may be readily swayed by employer conduct, even where subtle, which indicates support for an association over a competing union."

Similar comments are applicable to employer support for an employees' committee, such as occurred in the present case.

12. At paragraph 34 of Appendix "A", the majority of the present panel found "that the 'taint' of employer support which was so blatantly conferred upon the committee by the respondent, flow[ed] through to the [Primo Employees'] Association" in the circumstances of this case. Moreover, the respondent's voluntary recognition of the intervener was found to constitute further 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, [19791 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 to thereby chill, if not destroy, the organizing campaign of the unrecognized trade union."'

For the reasons set forth in paragraph 28 of Appendix "A", we also find that a desire to thwart the applicant's ongoing organizational activities formed at least part of the respondent's motivation for entering into what purported to be a collective agreement with the intervener on July 26, 1982, effective from April 25, 1982 until April 30, 1984.

13. Under the circumstances, the respondent's support for the intervener and its "predecessor", the Primo Workers' Committee, clearly contravened section 64 of the Act which provides:

"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."

The respondent not only intentionally supported the intervener and the committee that preceded it, but also thereby intentionally interfered with its employees' selection of a trade union as their bargaining agent, contrary to section 64 of the Act. Thus, the applicant has established the first of the aforementioned three conditions which must be satisfied before certification can be granted under section 8 of the Act.

14. The second condition has also clearly been satisfied. During the organizing campaign which preceded this application, the union succeeded in signing 83 of the 182 unchallenged persons included in the bargaining unit for purposes of the count. (There are also an additional eight persons whose inclusion on the employer's list has been challenged by the applicant on the ground that they exercise managerial functions within the meaning of section 1(3)(b) of the Act. Those challenges have not yet been resolved since the lengthy examination proceedings in respect of the duties and responsibilities of those eight persons have been halted, pending disposition of the applicant's request for certification under section 8.) Thus, the union has the membership support of over 43 per cent of the employees in the bargaining unit (and may have the support of over 45 per cent, depending upon the outcome of its challenges). As indicated by the Board in Skyline Hotels Limited, [19801 OLRB Rep. Dec. 1811, at paragraph 63, what "membership support adequate for the purposes of collective bargaining" will mean in

terms of percentages must vary with the facts of each case, and no single catalogue of criteria can be laid down. One pertinent consideration is the stage at which the employer's contraventions of the Act occurred in the union's organizing drive. If the contraventions occurred at or near the beginning of the organizing campaign, the Board may be persuaded to find a certain level of support (such as 30 per cent in the Skyline case) to be adequate for purposes of collective bargaining even though that same level might not be found to be adequate where the contraventions did not occur until a point at which the campaign was close to being "spent". (For a summary of some of the other factors which have been considered by the Board in assessing the "adequacy" of the membership support enjoyed by a trade union, see Manor Cleaners Limited, 119821 OLRB Rep. Dec. 1848 at paragraph 21.)

15. In the present case, the respondent's contraventions of section 64 commenced prior to the union's most recent organizing campaign and continued throughout that campaign. Notwithstanding that illegal employer interference, the union succeeded in increasing its documented level of support among the employees from approximately 37 per cent (at the time of the vote in September of 1981) to over 43 per cent (as of July 28, 1982, the terminal date fixed for this application, and the date which the Board determines to be the time for the purpose of ascertaining membership under section 103(2)(j) of the Act). Thus, there is clearly a substantial and workable "core" from which the applicant can seek to muster additional support if it is granted the right to engage in collective bargaining with the respondent. Accordingly; having regard to all the circumstances, the Board is of the opinion that the applicant has membership support adequate for the purposes of collective bargaining.

16. It remains for the Board to determine whether the respondent's contraventions of the Act have resulted in a situation in which the true wishes of the employees are not likely to be ascertained, and, if so, whether the Board should exercise its discretion under section 8 to certify the applicant without a representation vote. In support of his client's application for certification pursuant to section 8, counsel for the union asked the Board to beware of becoming "jaundiced" by the "bad cases" which represent the "sewer of labour relations", and to look at section 8 in the context of this application and labour relations in the 1980's. He submitted that "the development of phony labour relations associations is a real blight on the labour relations landscape and a sophisticated threat to the labour movement

17. In Manor Cleaners Limited, supra, the Board wrote as follows concerning the purpose of section 8 of the Act:

"The purpose of section 8 is aimed at redressing the rights of employees and their trade union when an employer has committed breaches of the Act so flagrant as to inhibit the ability of the employees to freely choose whether or not they wish to be represented by a trade union, be it by way of signing cards or by way of casting a ballot in a representation vote. (See District of Algoma Home for the Aged (Algoma Manor), [19791 OLRB Rep. April 269; Viceroy Construction Company, Limited, [19771 OLRB Rep. Sept. 562; Lorain Products (Canada) Ltd., [19771 OLRB Rep. Nov. 734). Normally a violation inhibiting employees' ability to choose is where the job security of employees is threatened (see Dylex Limited, 119771 OLRB Rep. June 357; Sommerville Belkin, [19801 OLRB Rep. May 796; A. Stork and Sons Ltd., [19811 OLRB Rep. Apr. 419; Straton Knitting Mills Limited, [19791 OLRB Rep. Aug. 801; Riverdale Frozen Foods Limited, 119791 OLRB Rep. April 338). Section 8 was designed to eliminate a respondent's 'reward' for breaches of the Act which have resulted in a depressed membership evidence such that so few cards were signed either that certification without a vote cannot occur or that a vote never could have been ordered in the first place (see Skyline Hotel Limited, supra, at paragraphs 61 and 62). Section 8 is not intended to be a 'punishment' for the respondent (see Radio Shack, [1974] OLRB Rep. Dec. 1220), nor intended to allow an applicant to advance a campaign for members beyond its normal course (see District of Algoma Home for the Aged, supra)."

As earlier noted by the Board in the Skyline case, supra, the competing policy considerations which underlie a provision such as section 8 were aptly described by the British Columbia Labour Relations Board in International Brotherhood of Boilermakers, Lodge 359 and Forano Limited, [19741 1 Can LRBR 13, at page 20:

"....Certification .without a vote ... creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct.... However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means .... I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used..."

18. The circumstances which have generally triggered the application of section 8 were reviewed as follows in The Globe and Mail Division of Canadian Newspapers Company Limited, 119821 OLRB Rep. Feb. 189:

"60. The Board has found in a number of cases that the employer, in violating the Act, made threats to the continued security of his employees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascertained. An employee is unable to express his true wishes where he had been told by his employer, either expressly or impliedly, and had reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, Lorraine Products (Canada) Ltd., 11977] OLRB Rep. Nov. 734, Riverdale Frozen Foods Limited, 11979] OLRB Rep. April 338, Straton Knitting Mills Limited, 11979] OLRB Rep. Aug. 801, Somerville Belkin lndustries Limited,] 1980j OLRB Rep. May 791 and A. Stork and Sons Ltd., 119811 OLRB Rep. April 419.)

61. The Board has also applied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice. In these circum­stances the Board is forced to the inevitable conclusion that the true wishes of the employees are not likely to be ascertained. (See re Radio Shack, supra, K-Mart, supra, Skyline Hotels Limited, supra and Robin Hood Multi Foods, 119811 OLRB Rep. July 972.)"

62. This is not the first case in which the Board has been asked to certify a trade union pursuant to section 8 where an employer has contravened section 64 of the Act by supporting an "in-house" employees' organization in order to draw employee support away from that trade union. In Horn eware Industries Limited, 119811 OLRB Rep. Feb. 164, the employer was found to have interfered with the selection of a trade union by employees contrary to section 64 [then section 561 of the Act, by "proposing the establishment of an employee committee where none had existed before, and then dealing with the committee with respect to working conditions, ... so as to draw employee support away from the applicant trade union and towards the committee". In that case, as in the present case, the committee was permitted by management to conduct its affairs during working hours and to make use of company bulletin boards. In rejecting the trade union's request for certification without a vote on the basis of the employer's contravention of section 64 of the Act, the Board wrote:

"14. For a trade union to be certified under section 7a [now section 8], it is not sufficient that the Board conclude that the employer has contravened the Act. Rather, in a case such as this, the Board must also be satisfied that the true wishes of employees are not likely to be ascertained by way of a representation vote. In the instant case, the statements and actions of [management] would have made it clear to employees that the respondent did not desire to have its employees represented by a trade union and that the respondent would prefer to deal with its employees through an employee committee. However, the respondent's preference in this regard is not likely to have come as a surprise to any reasonable employee. Employees do not expect employers to welcome the unionization of their work forces and a clear indication of this fact by an employer, standing by itself, is not likely to have an unduly coercing influence on employees."

The Board concluded (at paragraph 15) that a remedial order to redress the employer's breach of section 64 of the Act would enable the employees to express their true wishes in a representation vote:

When all of these considerations are taken into account, we feel that if the applicant trade union is given an opportunity to address employees during their working hours so as to provide it with an opportunity to counter the effect of the respondent's earlier inter­ference with employee rights through its support for the employee committee, and with the posting of the attached notice, made an appendix of this decision, employees will in fact be able to express their wishes in a representation vote conducted by the Board."

The Board also directed the employer to "cease and desist from supporting an employee committee as a way of seeking to draw employee support away from the applicant trade union."

20. Similarly, in Upper Canadian Furniture Limited, [1981] OLRB Rep. July 1016, the Board was asked to grant a section 8 certificate where an employer, which was aware of a union organizational drive in respect of its employees, permitted various activities in relation to the formation of an employees' committee to take place on company premises during working hours, including the holding of a meeting of all employees and the posting of a notice on the company bulletin board. After reviewing the pertinent jurisprudence, the Board concluded that the employer's conduct constituted "inter­ference in the free selection of a trade union" contrary to section 64 of the Act. However, it declined to grant a certificate to the union under section 8 of the Act because it was satisfied that the true wishes of the employees could be ascertained through a representation vote "taken following the imposition of substantial remedies designed to neutralize the impact of the employer's violation of the Act". To rectify the adverse impact of the employer's unfair labour practice, the Board ordered the following (at paragraph 49):

"(i) That the employer post copies of the attached notice marked 'Appendix' in both English and Portuguese as supplied by the Board in equal numbers, in conspicuous places on its premises, including commonly used bulletin boards, where it is likely to come to the attention of the employees; that the notices be posted until the conclusion of the representation vote ordered herein, that reasonable steps be taken to insure that the said notices are not altered or defaced or covered by any other material; that reasonable access be given by the respondent to a representative of the International Woodworkers of America so that the union can satisfy itself that this posting requirement is being complied with;

(ii) That at least two representatives of the union be given an opportunity forthwith, and before the taking of the representation vote, to hold a meeting of all employees, without loss of pay, on the company's premises during working hours, such meeting to be allowed a minimum time of one hour. The union may, if it so desires, bring a person to the meeting for the express purpose of translating for employees who speak Portuguese;

(iii) That the union be permitted reasonable access to the bulletin boards where notices to employees are regularly posted until the imposition of the silent period preceding the representation vote ordered by the Board herein;

(iv) That the employer at its own expense send a copy of the Appendix in both English and Portuguese as supplied by the Board to the home address of each employee in the bargaining unit; and

(v) That a representation vote be held among the employees in the voting constituency. All notices concerning this vote are to be posted in both Portuguese and English as provided by the Board."

21. In support of his argument that the true wishes of the respondent's employees are not likely to be ascertained, counsel for the applicant referred the Board to Propair Inc., a Canada Labour Relations Board decision dated April 26, 1982, (C.L.R.B. File 565-156). That case arose out of a situation in which, following a sale of a business by an employer ("Fecteau") whose employees were represented by a Teamsters local, and an intermingling of those employees with a smaller group of employees for whom an employees' association held bargaining rights, the C.L.R.B. directed that a vote be taken of all the intermingled employees to permit them to choose between the Teamsters and the association. A week and a half later the successor employer ("Propair") entered into a collective agreement with the association in respect of all the intermingled employees. This prompted the Teamsters to ask the C.L.R.B. to rescind the vote order and declare the Teamsters to be the bargaining agent for all of the employees in question (pursuant to the Canada Labour Code equivalent of section 63(6) of the Labour Relations Act). In granting that request, the C.L.R.B. found that by negotiating a collective agreement with the association, the successor employer "clearly indicated to the employees where its preference lay" and interfered with the representation of its employees by a trade union. The Board also wrote (at pages 21 and 22 of its decision):

"Clearly, the fact that Propair and the Association have entered into a collective agreement will work to the Association's advantage because it can always impress upon the employees that it achieved something, whereas its rival did not even manage to bargain. As we stated earlier, we cannot blame the Association for entering into a collective agreement or criticize it for trying to gain the allegiance of the former Fecteau employees. The fact remains, however, that because of the favouritism showed by Propair, we are convinced that the vote announced on January 4, 1982, if held, could not reflect the freely expressed will of the employees affected. We are also convinced that the situation could not improve, even if we postponed the vote, because the collective agreement would still be uppermost in the minds of the employees."

Thus, the Board concluded that it would be "impossible to hold a free vote" under the circumstances (and proceeded to certify the Teamsters since that union represented nearly seventy per cent of the intermingled employees).

22. The Propair case is distinguishable from the instant case in that the employees' association with which the successor employer entered into a collective agreement in that case was a bona fide trade union, which had earlier been certified to represent a unit of employees that made up almost a third of the intermingled employees, and which was legally capable of entering into a valid collective agreement; it was not an employer supported entity like the intervener which has been found by the Board to be uncertifiable and incapable of entering into a collective agreement for purposes of the Labour Relations Act. In the Propair case, the representation vote which the C.L.R.B. had planned to conduct would have called upon employees to choose between the Teamsters and the association as their bargaining agent. In those circumstances, the fact that the association had succeeded in negotiating a collective agreement which could be immediately implemented if the association won the vote, while the Teamsters, on the other hand, had been unable to even persuade Propair to bargain with it, might indeed have made that collective agreement "uppermost in the minds of the employees". By way of contrast, a representation vote in the present case would not call upon the respondent's employees to choose between the applicant and the intervener, as we have found the intervener to be an employer supported organization which cannot be certified. Moreover, the "collective agreement" which the intervener purported to enter into with the respondent in July of 1982 would be quite unlikely to be "uppermost in the minds of employees" since that document was found not to be a collective agreement for the purposes of the Act in the aforementioned Board decision, of which many if not all of the employees were notified (in quite emphatic, non-legal terminology) by the applicant early in 1983. Further notice to the employees concerning the uncertifiability of the intervener and its incapacity to enter into a collective agreement for purposes of the Labour Relations Act will be provided by the Board notice which will be required to be posted in conspicuous places on the respondent's premises in connection with the representation vote.

23. We are also satisfied that any continuing adverse effects of the respondent's contraventions of the Act can be adequately remedied by directing the respondent to provide the applicant with access to plant bulletin boards and with access to its employees through a meeting held during working hours on company premises without loss of pay. Those remedies, which we find to be appropriate in the circumstances of this case to redress the respondent's unfair labour practices, will go a long way toward restoring the atmosphere which existed prior to the respondent's illegal conduct, and will also unequivocally demonstrate to the respondent's employees that this Board has the power to ensure that the labour relations "rule of law" is maintained in the workplace.

24. In declining to certify the applicant pursuant to section 8, we have also taken into account the fact that it is far from certain that the applicant would had achieved membership support in excess of 50 per cent. The applicant did succeed in raising its level of support from 37 per cent (as of September 10, 1981) to over 43 per cent (as of July 28, 1982), and we are satisfied on the balance of probabilities that, but for the chilling effect of the respondent's contraventions of section 64, the applicant would have achieved membership support of not less than 45 per cent (irrespective of the aforementioned challenges). However, it is evident that there are also a number of employees who have been opposed to the applicant since the onset of its initial organizational campaign in respect of the respondent, and that employee opposition to the applicant does not stem entirely from the respondent's illegal activities in the present case and in the applicant's previous certification application. Thus, the issuance of a section 8 certificate in the circumstances of the present case might have the unfortunate effect of foisting upon the employees in question a bargaining representative which a majority of them do not want. Such result would be unfortunate not only for the employees and the respondent, but also for the applicant because, as observed in paragraph 62 of the Skyline case, supra, "where the support is not there, the Board is scarcely placing the trade union in an enviable position by sending it off with a certificate".

25. For the foregoing reasons, the Board hereby declares that the respondent has contravened section 64 of the Act. To rectify the adverse impact of the respondent's contraventions of the Act, the Board orders that the respondent:

(1) cease and desist from participating in the formation or administra­tion of, and providing other support for, the intervener, the Primo Employees' Committee, or any other committee or association of employees;

(2) permit at least two representatives of the applicant to hold a meeting on the respondent's premises with all employees in the voting constituency, out of the presence of any member of management, during normal working hours forthwith, before the taking of the representation vote ordered by the Board herein, without loss of pay, such meeting to be a minimum of one hour in length;

(3) provide the applicant with reasonable access to bulletin boards where notices to employees are regularly posted, until the conclusion of the representation vote ordered by the Board herein; and

(4) post copies of the attached notice marked Appendix "B" in both English and Italian as supplied by the Board in equal numbers, in conspicuous places on its premises, including commonly used bulletin boards, where they are likely to come to the attention of the employees, and keep the notices posted until the conclusion of the representation vote ordered herein; that reasonable steps be taken by the respondent to ensure that the said notices are not altered, defaced or covered by any other material; and that the respondent give a representative of the applicant reasonable physical access to its premises so that the applicant can satisfy itself that this posting requirement is being complied with.

26. As indicated above, the parties are in agreement that if the Board declines to certify the applicant pursuant to section 8, the Board has jurisdiction in the circumstances of this case to direct that a representation vote be taken in order to determine whether or not the applicant is to be certified. Having regard to the agreement of the parties and the desirability of placing the applicant as nearly as possible in the position which it would have been in but for the respondent's contraventions of the Act, the Board directs that a representation vote be taken of the employees of the respondent in the following voting constituency:

All employees of the respondent in the Municipality of Metropolitan Toronto, save and except forepersons, persons above the rank of foreperson, office and sales staff, persons regularly employed for not more than 24 hours per week, and students employed during the school vacation period.

All notices concerning the representation vote are to be posted in both English and Italian, as provided by the Board.

27. All employees of the respondent in the voting constituency on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

28. The following persons whose employee status is challenged by the applicant (which contends that they exercise managerial functions) shall be permitted to cast segregated ballots in the representation vote:

Gaetano Barone

Giacinto Calabria

Teresa Corasanite

Domenic Giambattista

Peter Mingram

Elecia Pace

Antonio Palmisano

Camilla Pasquini

29. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

30. The Board remains seized of this matter in the event that a dispute arises over the implementation or interpretation of the Board's order.

31. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. A majority decision on certain issues was released to the parties on or about December 24, 1982. On April 6, 1983 the Board reconvened the parties to hear further evidence and submissions. On that day I read to the parties my reasons for dissenting from the majority decision. Those comments were mainly directed toward certain allegations made by the applicant union against the professional conduct of counsel for the employer and the employer association, - allegations which have been dropped by the union in the continuation of the proceedings.

2. It seems to me that the Board is using an adversarial test when it examines the circumstances of this case. Furthermore it allows the applicant union a vested interest in the representation of the bargain unit, even when the applicant is not attempting to actively organize the plant.

3. According to the evidence the Primo Employees' Association is a trade union within the definition found in the Labour Relations Act. That finding is separate and quite distinct from the issue of whether or not it is entitled to be certified.

4. The applicant union lost a vote at the plant which wasn't even close. In those circumstances, to say that the employees cannot try to set up their own organization and bargain with their employer is to give the established applicant union a substantial advantage when it once again appears at the plant gate. To employees, it means that if you are going to set up your own union, you had better foster an adversarial relationship with your employer from the start. And, if an established trade union appears on the scene, the relationship you have fostered with your employer will be in jeopardy, if your approach to labour relations in any way differs from the concept accepted by this Board.

5. There is no property right to a bargaining unit, nor do established unions obtain a proprietary right to a unit before this Board. The intervener employees' association has status as a trade union and has a valid collective agreement with the employer. That collective agreement is a bar to this application and I would order it to be dismissed.

[Appendix A omitted]

Appendix “B”

The Labour Relations Act

NOTICE TO MPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A SERIES OF HEARINGS IN WHICH WE, THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AND THE PRIMO EMPLOYEES ASSOCIATION PARTICIPATED. IN A DECISION DATED DECEMBER 24, 1982, THE BOARD FOUND THAT THE APRIL 25, 1982 TO APRIL 30, 1984 AGREEMENT WHICH WE ENTERED INTO WITH THE ASSOCIATION IN JULY OF 1982 WAS NOT A COLLECTIVE AGREEMENT FOR THE PURPOSES OF THE LABOUR AFIATIONS ACT, AND FURTHER FOUND THAT THE ASSOCIATION COULD NOT BE CERTIFIED, BECAUSE WE HAD PARTICIPATED IN ITS FORMATION OR ADMINISTRATION, AND CONTRIBUTED OTHER SUPPORT TO IT AND THE EMPLOYEES' COMMITTEE WHICH PRECEDED IT. IN THE SUBSEQUENT DECISION IN WHICH IT ORDERED US TO POST THIS NOTICE, THE BOARD FOUND THAT BY ENGAGING IN THOSE ACTIVITIES. WE CONTRAVENED SECTION 64 OF THE LAOUR RFIATIONS ACT, BY INTENTIONALLY INTERFERING WITH OUR EMPLOYEES FREE SELECTION CF THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES.

TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION

TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING

TO ACT TOGETHER FOR COLLECTIVE BARGAINING

TO REFUSE TO DO ANY AND ALL OF THESE,

TO INSURE THAT A UNION WILL REFLECT EMPLOYEE WISHES, THE ACT REQUIRES THAT IT BE INDEPENDENT OF MANAGERIAL SUPPORT OR INFLUENCE. IF IT IS NOT, IT CANNOT BE CERTIFIED TO REFRESENT EMFLOYEES, AND CANNOT ENTER INTO A COLLECTIVE AGREEMENT FOR PURPOSES OF THE LABOUR RELATIONS ACT.

WE ASSURE ALL OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THE RIGHTS LISTED ABOVE.

WE WILL NOT ENGAGE IN ANY CONDUCT WHICH INTERFERS WITH THE EMPLOYEES FREE SELECTION, ORGANIZATION OR ADMINISTRATION OF THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION.

WE WILL NOT PARTICIPATE IN THE FORMATION OR ADMINISTRATION OF ANY EMPLOYEES' ASSOCIATION OR COMMITTEE IN CONTRAVENTION OF THE ACT.

WE WILL PERMIT THE UNION TO HOLD A MEETENG WITH ALL EMPLOYEES IN THE VOTING CONSTITUENCY, WITHOUT LOSS OF PAY, ON COMPANY PREMISES AND DURING WORKING HOURS, AS ORDERED BY THE BOARD.

WE WILL PERMIT THE UNION REASONABLE ACCESS TO THE BULLETIN BOARDS COMMONLY USED TO POST MESSAGES TO EMPLOYEES, UNTIL THE CONCLUSION OF THE REPRESENTATION VOTE ORDERED BY THE BOARD.

WE WILL ALLOW THE EMPLOYEES THROUGH THE TAKING OF A REPRESENTATION VOTE ORDERED BY THE BOARDTO FREELY DECIDE WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,

IF THE MAJORITY OF EMPLOYEES VOTE IN FAVOUR OF THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION AND THE BOARD CERTIFIES THE UNION AS THE EMPLOYEES REPRESENTATIVE, WE WILL BARGAIN IN GOOD FAITH WITH THE UNION AND MAKE EVERY REASONABLE EFFORT TO MAKE A COLLECTIVE AGREEMENT,

PRIMO IMPORTING AND DISTRIBUTING CO. LTD.

PER: (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

THIS NOTICE MUST REMAIN POSTED UNTIL THE CONCLUSION OF THE REPRESENTATION VOTE ORDERED BY THE BOARD

DATED this 28TH day of JUNE . 1983