[1981] OLRB Rep. April 419
2176-80-R; 2518-80-U Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Applicant/ Complainant, v. A. Stork & Sons Ltd., Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: E. G. Posen and Bob Booth for the applicant/complainant; Philip J. Wolfenden and Harvey Stork for the respondent.
DECISION OF THE BOARD; April 23, 1981
By a decision dated February 3rd, 1981, in Board File No.21 76-80-R, another panel ordered a prehearing vote with respect to certain of the employees of the respondent employer. The vote was taken on February 11th, 1981, and the ballots were counted. In all 36 persons voted, 17 voted in favour of the applicant, 18 voted against the applicant and there was 1 spoiled ballot.
On February 17th, 1981, counsel for the applicant trade union, by a letter, requested the Board to certify the applicant pursuant to section 7a of The Labour Relations Act. On February 18th, 1981, the trade union filed a complaint under section 79 alleging a violation of sections 56 and 58(a) of The Labour Relations Act. In view of the fact that the two applications the certification application request for section 7a relief and the section 79 complaint arise from the same set of circumstances the Board consolidated the applications.
At the hearing in this matter the Board heard the evidence of three employees, Mr. Robert Pineau, Mr. William Scrimshaw and Mr. Alex Hart. Board also heard the evidence of two witnesses for the employer, Mr. Dave Libman and Mr. Joe Columbo.
The applicant relies on two alleged incidents to form the basis of the request under section 7a of the Act. The first involved Mr. Robert Pineau. His evidence is that the week prior to the vote, on the Wednesday, the foreman, Joe Columbo, stopped him late in the afternoon, about 5:30 p.m. or 6:00 p.m. just as he was leaving. Pineau's evidence is that the foreman, Mr. Columbo, told him that if he voted for the trade union he would be dismissed from work and further Columbo told him that he would know how he voted. Pineau's evidence is also that he was affected by this discussion with Columbo. Columbo, on the other hand, in giving his evidence flatly denied ever talking to Pineau about the vote.
The other incident on which the request for section 7a relief is based involves William Scrimshaw and Alex Hart. Both witnesses were together on the morning of February 9th just before work started at 7:00 a.m. in the parking lot. Their evidence is that they were approached by Columbo about the vote which was to occur on the coming Wednesday, and told that if they voted yes their jobs would be terminated. This incident was also plainly denied by the foreman, Mr. Columbo. It is to be noted that if the allegation is accepted it was clearly a breach of the quiet period imposed by the Board for the vote on February 11th, 1981.
The applicant's request for certification under section 7a turns completely on the matter of credibility. From his demeanour as a witness both in direct and in cross examination we are prepared to believe Mr. Pineau in his description of the incident with Mr. Columbo. However, notwithstanding the fact that neither Scrimshaw or Hart were present when the other testified we are of the view that we cannot accept their evidence that they were approached by Mr. Columbo on the morning of February 9th, 1981. We make this finding in part of the basis of their general demeanour under oath and also as a result of serious discrepancies in their evidence under cross examination. These discrepancies were emphasized by the evidence of Mr. Libman, the bookkeeper for the respondent employer. Both Mr. Hart and Mr. Scrimshaw were quite definite that on a certain date they had left work with Paul Smith when in fact Paul Smith was not at work on that day.
In view of the foregoing we are only prepared to accept as fact in this matter the incident between Mr. Pineauand Mr. Columbo. We reject the evidence of Mr. Scrimshaw and Mr. Hart concerning the alleged incident on the morning of February 9th, 1981. This constitutes a single isolated incident and there is no evidence of a pattern of such conduct by Mr. Columbo or any other person on the part of the respondent. In our view this is not sufficient to warrant of the Board exercising its power section 7a, and directing a certification of the applicant without reference to the vote.
However, it is clear that the section 79 complaint must succeed. Mr. Columbo, on behalf of the respondent, has clearly violated sections 56 and 58(a) of the Act by threatening Mr. Pineau with loss of employment. Mr. Pineau was not terminated and did not suffer any economic hardship as a consequence of the threat. It would seem that the only appropriate remedy available to Mr. Pineau and the complainant trade union would be the posting of a Notice to Employees by the respondent acknowledging a violation of section 56 and 58(a) of The Labour Relations Act, together with an undertaking to cease and desist from future violations. In view of the circumstances and the evidence of Mr. Columbo that communications by the employer to the employees were made in English, Italian and Portuguese, we would also direct that the Notice to Employees be posted not only in English but also in Italian and Portuguese in conspicuous places at its place of business including all places where notices to employees are customarily posted, for 60 days following receipt hereof. The Notice is set out in Appendix A.
In view of the evidence of Mr. Pineau that the threat by Mr. Columbo did affect the way he voted, we are also of the view that the appropriate remedy in the present case is to order a new vote. Accordingly, the Registrar will destroy the ballots from the previous vote and will conduct another vote of the employees as directed by the Board in its decision of February 3rd, 1981.
The matter is referred to the Registrar.
Appendix A
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RLATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.
THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:
To ORGAN1ZE THEMSELVES;
To FORM, JOIN OR HELP UNIONS 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 THINGS.
WE ASSURE ALL OF OUR EMPLOYEES THAT:
WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.
THE BOARD IN ITS DECISION OF APRIL 23, 1981 FOUND THAT THE CONDUCT OF MR. JOE COLUMBO IS THREATENING MR. ROBERT PINEAU WITH DISMISSAL IF HE VOTED THE TRADE UNION WAS IN VIOLATION OF SECTION 56 OF THE LABOUR
"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 THS SECTION SHALL BE DEEMED TO DEPRIVE AN EMPLOYEE OF HIS FREEDOM TO EXPRESS HIS VIEWS SO LONG AS HE DOES NOT USE COERCION, INTIMIDATION, THREATS, PROMISES OF UNDUE INFLUENCE.”
THE BOARD ALSO FOUND THAT THIS CONDUCT CONSTITUTED A VIOLATION OF SECTION 58(A) OF THE LABOUR RELATIONS ACT WHICH READS:
"No EMPLOYER, EMPLOYERS' ORGANIZATION OR PERSON ACTING ON BEHALF OF AN EMPLOYER OR AN EMPLOYERS ORGANIZATION,
(A) SHALL REFUSE TO EMPLOY OR TO CONTINUE TO EMPLOY A PERSON, OR DISCRIMINATE AGAINST A PERSON IN REGARD TO EMPLOYMENT OR ANY TERM OR CONDITION OF EMPLOYMENT BECAUSE THE PERSON WAS OR IS A MEMBER OF A TRADE UNION OR WAS OR IS EXERCISING ANY OTHER RIGHTS UNDER THIS ACT."
A, STORK & SONS LTD. HAS BEEN DIRECTED TO POST THIS NOTICE, TO KEEP IT POSTED FOR A PERIOD OF SIXTY DAYS AND TO PERMIT ACCESS TO THE PLANT OF TWO REPRESENTATIVES OE THE CANADIAN UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS FOR THE PURPOSE OF SATISFYING ITSELF OF A. STORK & SONS LTD.’S COMPLIANCE WITH THIS POSTING ORDER,
A. STORK & SONS LTD.
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.