[1980] OLRB Rep. April 391

1491-79-U; 1549-79-U; 1574-79-U; 1606-79-U; 1571-79-R Canadian Union of Public Employees, Applicant/Complainant v. ABC Day Nursery and Kindergarten Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: Ian C. A. Springate, Vice-Chairman and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: Guy Beaulieu and Madeline Anderson for the applicant/complainant; Robert D. Howe, Richard Holmes, and Carol Jewell for the respondent; D. S. Jovanovic, Mary Pastorius and Lucille Emery for the objectors.

DECISION OF THE BOARD; April 22, 1980

1. File Nos. 1491-79-U, 1549-79-U, 1574-79-U and 1606-79-U are complaints under section 79 of The Labour Relations Act which allege that a total of ten grievors were dealt with by the respondent contrary to the provisions of sections 3, 56 and 58 of the Act. File No. 1571-79-R is an application for certification in which the applicant trade union has requested that it be certified as the bargaining agent for a unit of the respondent’s employees pursuant to the provisions of section 7a of the Act.

2. In support of its request to be certified pursuant to section 7a, the union relied upon the same matters raised in the section 79 complaints. On agreement of all parties, the Board first heard the evidence of the parties with respect to the section 79 complaints on the understanding that this evidence would later be taken into account by the Board when considering the union's request that it be certified pursuant to section 7a. Because of this method of proceeding, the group of employees objecting to the application for certification were accorded full standing to participate in that part of the hearing dealing with the section 79 complaints.

3. The respondent operates a modern and highly regarded day-nursery operation in the City of Windsor. At the relevant time it operated three separate nursery schools in Windsor, generally referred to as the Hanna School, the Somme School and the South Windsor School. The respondent’s director is Mr. Richard Holmes. Directly under Mr. Holmes is Miss Carol Jewell, who since April of 1979 has been classified as the respondent’s supervising manager.

[A detailed review of the evidence is omitted.]

59. We turn now to consider the merits of the section 79 complaints insofar as they relate to the ten grievors. Having regard to the provisions of section 79(4a) of the Act, the respondent must satisfy the Board that its actions were in no way motivated by the grievors support for the union. The Board need not find that the respondent's sole reason for its actions stemmed from the grievors' support for the union to find a violation of the legislation, but rather, the respondent must satisfy the Board that union activity played neither a major nor minor role in regard to its decision to terminate and lay off the various grievors. See: Field Lumber Company Limited, [1975] OLRB Rep. Sept. 665; and R. v. Bushnell Communications (1974), 1974 CanLII 559 (ON CA), 47 D.L.R. (3d) 668 (Ont. C.A.). With respect to the difficult task of determining an employer's true motivation, the Board had the following to say in the Fielding Lumber case at page 673:

“However, the Board must only be concerned with the motivation of an employer and cannot pass judgment on the fairness of its actions. The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act - a piece of legislator that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must also be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it.”

60. Two of the first persons to be terminated were Miss Prietz and Miss Janisse. Both of them were active union supporters, and Miss Prietz was the employee most involved with the union's organizing campaign. Although the evidence with respect to certain events is contradictory, it is clear that a number of managerial persons, including Mr. Holmes, had long had serious reservations about the way they performed their jobs and that in the past Mr. Holmes had considered discharging them both. However, despite these facts they had been kept on and only discharged during the currency of the union organizing campaign. The respondent contends this timing of the discharges was coincidental, and that the two were discharged because the respondent felt they would not fit in with its future plans. In this regard, particular stress was put on the Denver test, and Mr. Holmes' feeling that these two employees would not be able to objectively administer it. Against a long-standing concern with their job abilities, this might indeed have been a reasonable basis for Mr. Holmes to decide to terminate their employment when he did. Supporting such a conclusion is the fact that there is no direct evidence that either Mr. Holmes or Miss Jewell were aware of the union organizing campaign when the decision was reached to discharge them. In our view, however, the discharges of Miss Prietz and Miss Janisse cannot be looked at in isolation from the respondent's actions involving the other grievors.

61. Mrs. Weaver was discharged at about the same time as Miss Prietz and Miss Janisse. Mrs. Weaver had been employed by the respondent longer than they had, namely, for four years. It is clear that management was not completely happy with Mrs. Weaver's job performance, and at one point Mr. Holmes had considered discharging her. However, Mrs. Weaver is in a somewhat different position than either Miss Prietz or Miss Janisse. For one thing, Mrs. Weaver was not a teacher but an assistant, and thus did not bear the same degree of responsibility) as they did. Further, many of the issues raised to demonstrate Mrs. Weaver's shortcomings, such as the timing of her lunches, spending time talking to a teacher and the incident with the child who fell off the climber all involved other staff who were not discharged. Mrs. Weaver's situation is also different from that of Miss Prietz and Miss Janisse in that Mr. Holmes did not contend that one of the reasons she was discharged was because he did not feel she could not properly administer the Denver test. Whether or not this was because assistants would not be administering the test, we do not know.

62. Miss Pernasilici's termination about the same time as the other three involved a somewhat different fact situation. Few specific incidents were raised concerning her work performance, but then she was a relatively new employee. Further, apart from having signed a card she had not been active in the union's organizing campaign.

63. Mrs. Ball and Miss Ryan were terminated on November 9, 1979. Both of them were assistants and not teachers. Again no claim was made about a concern over their ability to apply the Denver test. Instead, reference was made to the fact that Mrs. Ball was frequently heard yelling, that the room she was in was disorganized, and that the children in the room would often be heard crying. However, the evidence is un-refuted that the teacher responsible for the room, Brenda Mitchell, as well as "Kim", the OCAP student, also engaged in some yelling. Further, as the teacher in the room, Ms. Mitchell had primary responsibility for the organization of the room and proper care for the children, and yet while shortcomings in these areas were raised to justify Mrs. Ball's termination, Ms. Mitchell appears not to have been disciplined at all. In addition, although evidence was led with respect to a parent who had complained about yelling in the room and having picked up his child unchanged, no evidence was led to establish that Mrs. Ball had been doing the yelling complained of or that she bore some particular responsibility for the child not having been changed.

64. With respect to the timing of the discharge of Mrs. Ball, a number of points stand out. Firstly, she was discharged on November 9th, after the union meeting of November 6, 1979 which she had encouraged other staff to attend. Further, it is clear that when Mrs. Ball was discharged, Miss. Jewell knew that she had been talking to others about the union meeting. Mr. Holmes, who was on his hunting trip, and Miss Jewell had a telephone conversation on the evening of November 6th, during which Mr. Holmes could have learnt of Mrs. Ball's union activity. Miss Jewell testified that she did not pass on the information about the union to Mr. Holmes because he was on vacation. She admitted, however, that while Mr. Holmes had been on vacation she had discussed both the overdraft situation with him as well as the fact that a parent had decided to withdraw his child. In these circumstances, we feel it highly unlikely that Miss Jewell did not advise Mr. Holmes of the union meeting as well as Mrs. Ball's role in speaking to employees about it.

65. The matters raised by the respondent to explain the discharge of Miss Ryan were, on the main, not very major. Although it is uncontradicted that on one occasion Miss Ryan poorly handled a situation where children had been required to use a staff washroom, the other complaints were essentially that she made comments like "smarten up" and "I haven't got all day", and that she was observed not interacting with the children. There is nothing to indicate that management ever advised Miss Ryan that her language was inappropriate. Further, the evidence establishes that Miss Ryan had been directed by the new teacher in her room not to involve herself with the children as much as she had been doing.

66. The respondent's evidence concerning why it laid off Miss Morin, Ms. Miller and Miss Penny is highly unsatisfactory. Mr. Holmes, who made the decision to lay them off, indicated that the major reason behind the layoff was financial and due to dropping enrolment. In fact, the layoff of the three employees does not appear to have saved the respondent much, if any, money because their layoff required that three supply teachers be employed. Further, at about the same time as the three were laid off, the respondent advertised for new staff and, indeed, less than two weeks after they were laid off (and after complaints had been filed with the Board concerning the layoffs) the respondent recalled both Ms. Miller and Miss Penny. After having heard Mr. Holmes' testimony, including his cross-examination, Miss Jewell indicated that the major reason for the layoff was to see if the staff laid off was the cause of problems in the room where they were working. However, that was not the reason given to the staff by Miss Jewell when she informed them of their layoffs.

67. Miss Raymond was allegedly terminated for her actions on November 9th and for her "attitude". However, on the basis of the testimony of Miss Raymond and Miss Jewell, we are satisfied that the only thing Miss Raymond did on November 9th was to move her personal effects, including a birthday train she had made with her own materials. The evidence comes nowhere close to substantiating Mr. Holmes' claim that she had gone around ripping things off the wall and had disobeyed a direction to leave. No objective evidence at all was led which might indicate a "poor attitude" on Miss Raymond's part. On the other hand, we accept Miss Raymond's testimony that Mr. Holmes stated that he knew she was involved "with this" and that she would be "in just as much trouble as the others". In our view, the only reasonable interpretation which can be put on Mr. Holmes' reference to Miss Raymond's involvement "with this" was her involvement with the union's organizing campaign.

68. Had the respondent taken action against only certain of its employees, such as Miss Prietz and Miss Janisse, it might well have been able to establish to the satisfaction of the Board that it had acted on the basis of long-standing concerns about their job performance, coupled with a concern of their ability to participate in the respondent's planned future programs and that the fact that the discharges occurred during a union organizing campaign was merely coincidental. However, the evidence put forward to justify the respondent's actions in discharging or laying off other union supporters became progressively less credible. For example, if the respondent's evidence is to be believed, Mrs. Ball was terminated primarily for yelling and for the way in which the room she was in was operating, even though Mrs. Ball was not in charge of the room and the other two staff members in the room also yelled at times. The respondent's reasons for discharging Miss Ryan were even less convincing, particularly in light of the fact that one of the reasons put forward was that she did not involve herself sufficiently with the children, even though she had been specifically directed to lessen her involvement with the children. Mr. Holmes' testimony that he laid off Miss Penny, Ms. Miller and Miss Morin primarily for financial reasons was shown to be untrue. We are also satisfied that the reasons he advanced to explain Miss Raymond's discharge were not the true reasons for her discharge. Having regard to Mr. Holmes' comments to Miss Raymond, we are in fact satisfied that she was discharged because Mr. Holmes suspected, correctly, that she had played some role in the union's organizing campaign. Further, on the basis of Miss Raymond's testimony we are satisfied that Mr. Holmes indicated to her that other employees had been in "trouble" because of their union involvement.

69. Taking into account Mr. Holmes' comments to Miss Raymond, the false reasons advanced by Mr. Holmes to justify the layoff of three employees, as well as the unconvincing reasons put forward to justify the discharges of certain other employees, we are led to the conclusion that Mr. Holmes' actions were motivated, at least in part, by anti-union considerations. This in turn throws into serious doubt the evidence of Mr. Holmes that he acted free from anti-union considerations even with respect to those among the grievors who the respondent might otherwise have had legitimate cause to terminate. It also throws into serious doubt his claims concerning his lack of knowledge of the union's organizing campaign. This being the case, we are not satisfied that the respondent has met the evidentiary onus placed on it under section 79(4a) with respect to any of the grievors, and accordingly we find that the respondent's actions with respect to each of the grievors involved a violation of section 58 of the Act.

70. Having regard to this conclusion, the Board directs that the respondents reinstate in employment, with compensation for loss of earnings, the following grievors, namely: Elizabeth Prietz, Debra Janisse, Mary Weaver, Betty Pernasilici, Elaine Ryan, Joan Ball, Nicole Morin, and Lu Anne Raymond. The respondent is further ordered to compensate the grievors Joyce Miller and Mary Sue Penny for loss of earnings between the time of their layoff and their recall. In every case, the compensation is to include interest on lost income calculated in accordance with the principles set out in the Hallowell case, Board File 0905-79-U, decision dated January 21, 1980. The Board will remain seized of this matter in the event the parties are unable to agree on the amount of compensation involved.

71. We turn now to consider the application for certification.

72. The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

73. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Windsor, Ontario, save and except secretary to the director, supervisors and persons above the rank of supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.

74. At the hearing the Board indicated that it was prepared to accept certain membership evidence whose acceptability had been put into issue. This membership evidence consists of combination applications for membership and receipts. The application portion indicates over the employee's signature that the employee in question is applying for membership in the union, tendering a dollar "as payment of the initiation fee", and authorizing the union to be the employee's exclusive bargaining agent. Just below this is the receipt portion which reads "on behalf of the above mentioned union, I hereby accept this application and acknowledge receipt of $ as payment of the initiation fee and first monthly dues", followed by a signature on behalf of the union. The space beside the dollar figure on the receipt is not filled in. Ms. Anderson, who signed all but two of the cards in this condition on behalf of the union, testified that in every case she did in fact receive a dollar from the employees. In that the face of each of the cards indicates that the employee involved tendered $1.00 as payment of an initiation fee and the receipt portion indicates receipt of some amount as payment of "the initiation fee", we are satisfied that the card as a whole indicates that a dollar initiation fee was paid. Ms. Anderson's oral evidence substantiates that the dollar was in fact paid, and accordingly we are prepared to accept this evidence of membership in those cases where Ms. Anderson acted as collector. For the purposes of these proceedings we will assume no weight should be given to the two remaining cards in this condition where someone else acted as the collector.

75. Taking into account the alterations to the list of employees made necessary by the Board's determination with respect to the section 79 complaints, the Board is satisfied that there were 61 employees in the bargaining unit on the date of the making of the application. The applicant filed acceptable evidence of membership with respect to 31 of these employees that is on behalf of approximately fifty per cent of the employees in the bargaining unit.

76. On the basis of the union's membership position, the Board, pursuant to the provisions of section 7(2) of the Act, would normally direct the taking of a representation vote. The applicant, however, has requested that it be certified pursuant to the provisions of section 7a which reads as follows:

"Where an employer or employer's organization contravenes this Act so if at the true wishes of the employees of the employer or of a member of tie 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."

77. As noted earlier, the parties were in agreement that evidence led with respect to the section 79 complaints would be taken into account when considering the applicant's request that it be certified under section 7a. The respondent and the union elected to call no further evidence with respect to the union's request that it be certified pursuant to section 7a. The group of objectors, however, chose to lead certain evidence. Some of this evidence was referred to earlier, namely, the testimony of a number of employees that they did not regard Mr. Holmes’ statements at the staff meeting on November 13, 1979 as being referable to the trade union. The other evidence related to a statement of desire or "petition" in opposition to the trade union signed by twenty-five employees in the bargaining unit, three of whom had earlier applied to become members of the trade union. One of the union members who signed the petition was Miss Brenda Johnston, a bus driver. Miss Johnston signed the petition alter two employees circulating the petition, namely Miss Mary Pastorius and Miss Debbi Shank, advised her that if the union got in the respondent would either close its doors or cut back its staff, including the bus drivers. Miss Johnston testified she signed the petition because she felt if she did not do so, she would lose her job.

78. The Board has already determined that the respondent violated section 58 of the Act by discharging and laying off the ten grievors. The evidence establishes that the discharges and layoffs created considerable concern among employees that they also might be let go. Miss Jewell referred to the cook who approached her and told Miss Jewell that she could have anything she wanted so long as she did not get fired. Concerns of employees for their job security would likely have been heightened by Mr. Holmes' comments at the staff meeting of November 13th. During the meeting Mr. Holmes never mentioned the word union, but in our view, many employees would have taken his statement about closing the schools over the "atmosphere" to be a less than veiled threat to close the schools due to the presence of tie trade union. In light of all of these facts, we are satisfied that the respondent's unlawful activities would likely affect the ability of employees to vote in a representation vote in accordance with their own free wishes. Accordingly, the Board is satisfied that the true wishes of the employees in the bargaining unit are not now likely to be ascertained by a representation vote.

79. The final condition which must exist before the Board may certify a trade union pursuant to section 7a is that the union have support adequate for collective bargaining. The union submitted evidence of membership on behalf of approximately fifty per cent of the employees in the bargaining unit. As already indicated, three employees who had signed union cards subsequently signed a petition in opposition to the union, although one did so only out of fear for her job. Even if we were to accept that the other two employees no longer support the union, nevertheless, based on the degree of support for the union indicated by the documentary evidence of membership before us, we are satisfied that the trade union has membership support adequate for collective bargaining.

80. In that preconditions exist for the Board to certify the trade union pursuant to section 7a, a certificate will issue to the applicant union.

81. In the circumstances of this case the respondent is directed to post a copy of the attached notice marked "Appendix", after being duly signed by the respondent's representative, in a conspicuous place in each of its three schools where it is likely to come to the attention of the employees, and to keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the union so that the union can satisfy itself that this posting requirement is being complied with.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

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 hearing in which we, the Union and a group of objecting employees all participated. The Ontario Labour Relations Board found that we violated The Labour Relations Act by discharging and laying off a number of employees because thy engaged in union activities.

The Act gives all employees these rights:

To organize themselves;

To form, join and participate in the lawful activities of a trade union;

To act together for collective bargaining;

To refuse to do any and all of these things.

We assure all of our employees that:

WE WILL NOT do anything that interferes with these rights.

WE WILL NOT discharge or lay off employees because they have selected the

Canadian Union of Public employees as their exclusive bargaining representative.

WE WILL offer to reinstate the following persons: Elizabeth Prietz, Debra Janisse, Nary Weaver, Betty Pernasilici, Elaine Ryan, Joan Ball, Nicole Morin, and Mary Sue Penny. We shall pay these eight employees, as well as Joyce Miller and Mary Sue Penny, for any earnings they lost as a result of our discrimination against then, plus interest.

WE WILL bargain with the Canadian Union of Public Employees as the duly certified collective bargaining representative of our employees in the bargaining described below, and if an understanding is reached we will sign a collective agreement with the union.

The bargaining unit is:

all employees of ABC Nursery and Kindergarten Limited in Windsor, Ontario save and except secretary to the director, supervisors and persons above the rank of supervisor.

ABC DAY NURSERY AND KINDERGARTEN LIMITED

Dated Per: (Authorized Representative)

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

This notice must remain posted for 60 consecutive working days.