[1980] OLRB Rep. May 645
2331-79-U 2332-79-U International Woodworkers of America, Complainant, v. B & S Furniture Manufacturing Limited, Respondent.
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Jeffrey Enger and Tony Marcantonio for the complainant; Julia Schmeisz for the respondent.
DECISION OF THE BOARD; May 9, 1980
These two complaints filed under section 79 of The Labour Relations Act in respect of alleged violations of sections 3, 56, 58(a) and (c), and 61 of the Act were consolidated by the Board at the hearing on April 17, 1980, pursuant to Rule 56. The consolidated complaints allege that the grievors, Luigi Cavacece and Vasilios Droulias, were dealt with by L. Schmeisz Sr., President of the respondent contrary to the aforementioned sections of the Act on or about February 19, 1980 and February 20, 1980 respectively, in that Schmeisz did on his own behalf or on behalf of the respondent terminate their employment without notice. A similar complaint on behalf of Concordia Novalta was withdrawn by leave of the Board.
The sole witness who testified on behalf of the respondent was Julia Schmeisz who at all material times was the Secretary-Treasurer of the respondent. She testified that the respondent began to experience financial difficulties in May of 1979 which were exacerbated by a shrinking market coupled with high interest rates and a growing inventory. She stated that the grievors were laid-off for financial reasons and denied that any anti-union sentiment was involved in the decisions.
At all material times, L. Schmeisz Sr., the husband of Julia Schmeisz, was the sole owner and President of the respondent. Their son, L. Schmeisz Jr. was at all material times a Director of the respondent. Julia Schmeisz worked in the office of the respondent and was responsible for matters including bookkeeping, scheduling, sales, payment of employees, hiring, and discharging employees. The actual supervision of the workforce was carried out by her husband and son with the assistance of at least one foreman and one lead hand.
Julia Schmeisz denied having any knowledge of union activity among employees in the plant prior to receiving a telephone call on January 21 or 22, 1980 from an individual who identified himself as an official of the Board and inquired as to whether a notice of application for certification had been received. However, she conceded in cross-examination that if there had been "union talk", it would have been her husband and her son who would have heard it.
Julia Schmeisz testified that Cavacece and Droulias were laid-off because they were not as "flexible" as the employees who were retained since they could not be moved around to jobs other than those which they were performing. She admitted that she did not work on the floor of the plant herself but stated that she relied upon information from her husband, her son, the foreman, and the lead hand about what was going on in the plant. She further indicated that she relied upon this information in awarding pay increases to employees and in deciding which employees should be laid-off.
The grievor Cavacece was hired by the respondent as a cabinet maker helper in September of 1977 at an hourly rate of $3.30 which was subsequently increased to $4.80. He testified that union activity at the plant commenced in late October or early November of 1979. He further testified that he joined the complainant union in December of 1979 and attended several union meetings prior to his lay-off by the respondent, including one meeting in January of 1980 at which he was the first person to arrive and at which he requested a change in the date of the next union meeting to enable him to attend. He spoke in favour of the union at that meeting by relating his previous favourable experience with unionization. It was also his testimony, which was unrefuted, that a week prior to the certification vote (ordered by the Board to be held on February 12, 1980) L. Schmeisz Jr. asked him if he had ever learned that Andreas Brauzeau (an employee who was subsequently laid-off or discharged by the respondent on January 21, 1980 and ordered reinstated by another panel of the Board in separate section 79 proceedings in File No. 1985-79-U), had tried to put a union in the plant. He further testified that Schmeisz told him that a friend who had worked for the union as a union representative for five years had said that the union was "no good". As the result of the certification vote the union was certified by the Board on February 25, 1980 (File No. 1937-79-R). Prior to his "lay-off' on February 19, 1980, Cavacece had been working his regular hours on a steady basis. He testified that the lay-off was totally unexpected since he had been quite busy in his job in the finishing department and that it was a surprise to him to be told by Julia Schmeisz that there was a shortage of work. He further testified that if his job on the press in the finishing department had to be eliminated, he was capable of doing other jobs since he had performed several other jobs in the plant.
The grievor, Droulias, commenced employment with the respondent in 1968 as a cabinet maker helper and was subsequently promoted to cabinet maker. He confirmed that the union's organizational activities commenced in late October or early November of 1979 and stated that he and other employees discusses the union at the plant. He joined the respondent union on December 30, 1979, attended four or five meetings, and spoke in favour of the union at those meetings. He testified that L. Schmeisz Sr. spoke to him about the union on three separate occasions, the first being about the time that the notice of application for certification was posted. At that time, Schmeisz asked him if he knew anything about the union and said: "I think that many people in the plant know about this". Approximately ten days later, Schmeisz told him: "We should have a meeting in the lunch room to find out who knows about the union and who doesn't". A meeting was called in the lunch room the same day by Jim Copping, a lead hand with some supervisory responsibilities. The meeting lasted from approximately 10:15 to 10:50 a.m. and included the grievor's normal ten minute break (from 10:30 to 10:40 a.m.). It was not disputed that this meeting could only have taken place with the approval or acquiescence of management. All employees of the respondent (except members of the Schmeisz family and the foreman) attended this meeting. When one of the piece-workers spoke against unionization at that meeting and asked Droulias what he knew about the union, Droulias said: "This is not really your business because you work piece-work and I don't think you have a right to vote if there is a vote in the plant". In view of this response, it would not have been difficult for Copping to conclude that Droulias was a supporter of the union. Copping also asked employees what they knew about the union and said: "They will cut our bonus for Christmas. They will cut our insurance. We are going to lose more by this". Droulias testified that he understood Copping to be referring to the respondent when Copping used the work "they". About a week before the vote, Schmeisz spoke to Droulias a third time about the union. On this occasion he said that a union is only good for big business and is not good for small business. He asked Droulias how much his last Christmas bonus had been and stated that he would cut the Christmas bonuses.
Droulias testified that he was told of his lay-off by L. Schmeisz Jr. on February 20, 1980, and that the reason given initially by Schmeisz was that there was "not enough work". However, he further testified that when he questioned this by stating that all of the other employees who were not being laid-off had been hired by the respondent after he was hired, Schmeisz said: "You know why. Because you support the union".
Section 79(4a) of the Act provides:
(4a) On an inquiry by the Board into a complaint under subsection 4 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or emloyers' organization did not act contrary to this Act lies upon the employer or employers' organization.
Accordingly, in this case the burden of proof is on the respondent to establish on the balance of probabilities that it did not act contrary to the Act.
- In the Barrie Examiner case , [1975] OLRB Rep. Oct. 745, the Board stated:
"... the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred".
Similar considerations are applicable to lay-offs. In Tillotson-Sekisui Plastics Limited, [1979] OLRB Rep. Oct. 1027, a case involving a complaint in respect of the lay-off of twenty-three employees, the Board stated (at paragraph 11)
"This matter falls within the ambit of section 79(4a) which places the burden of proof in a complaint such as this upon the employer. The Board referred to the nature of the onus which falls to the respondent in these matters in the Pop Shoppe (Toronto) Limited case [1976] OLRB Rep. June 299, wherein at paragraph 4 the Board stated:
'Section 79(4a) of The Labour Relations Act places the legal burden upon the employer in complaints such as the one before us, to satisfy the Board, on the balance of probabilities, that it has not violated the Act. In order for the Board to find that there has been no violation of the Act it must be satisfied that the employer's actions were not in any way motivated by anti union sentiment; the employer's actions must be devoid of 'anti-union animus.' (See the Bushnell case (1974), 4 O.R. (2d) 332.) The employer cannot engage in anti union activity under the guise of just cause or under the guise of business reasons. Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti union motive and which the evidence establishes to be the only reason for its conduct. (See Barrie Examiner [1975] OLRB Rep. Oct of 745 and The Corporation of the City of London [1976] OLRB Rep. Jan.
99.)'"
- After carefully reviewing all of the evidence, we are not satisfied that the respondent's decision to lay-off the two grievors was devoid of anti-union motive. The failure of the respondent to call as witnesses the three members of management (L. Schmeisz Sr., L. Schmeisz Jr., and Copping) who are alleged to have made the anti-union statements set forth above and who would be the only members of management capable of testifying from their own observation, knowledge, and experience concerning the "flexibility" of the grievors as compared with other employees who were not laid-off, justifies the Board in drawing the inference that their evidence would have been unfavourable to the respondent's case or at least would not have supported it (see Sopinka and Lederman, The Law of Evidence in Civil Cases (1974) 535-537). In inferring a result adverse to a party's cause as a result of that party's failure to call a particular witness, the Board, in McGregor Hosiery, [1976] OLRB Rep. Oct. 583 at paragraph 31, relied upon the decision of Lerner J. in Holmes v. Alexon, 1974 CanLII 677 (ON HCJ), 7 O.R. (2d) 11, and quoted the following passage from the head note of that case:
"Where a party or witness fails to give evidence which was within his power to give and by which relevant facts might have been elucidated, the court is justified in drawing the inference that the evidence which might have been given would have been unfavourable to the party to whom the failure is attributed."
(See also Beaver Engineering Limited, [1973] OLRB Rep. Jan. 57, para. 10; and F. G. Bradley Co. Ltd., [1973] OLRB Rep. June 342, para. 18). Although the party against whom the inference is drawn may explain it away by showing circumstances which prevented the production of the witnesses (see Murray v. Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499, 506 (Sask. C.A.)), the statements by Julia Schmeisz that the family "can't afford to have them sitting here all day without pay" and that they were unnecessary witnesses because she speaks for the respondent, which statements were the only explanations provided to the Board concerning the failure of these members of management to testify, do not suffice in our view to explain away the inference in the present case. Accordingly, the Board has no reason to disbelieve the grievors' uncontradicted recitation of the anti-union statements attributed to those members of management.
Having regard to all of the evidence, the Board concludes that the respondent has failed to discharge the onus placed upon it by section 79(4a) of the Act and we accordingly find that each of the grievors had been dealt with by the respondent contrary to the Act.
The Board therefore orders:
(i) that Luigi Cavacece and Vasilios Droulias be reinstated by the respondent forthwith;
(ii) that Luigi Cavacece and Vasilios Droulias be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act; and
(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in the Hallowell House Limited case (Board File No. 0905-79-R), decision dated January21, 1980).
- The Board remains seized of this matter in the event that a dispute arises over the implementation of this award.