[1981] OLRB Rep. December 1755

1535-81-U Retail, Commercial & Industrial Union, Local 206 Chartered by United Food & Commercial Workers International Union, Complainant, v. Comstock Funeral Home Ltd., Respondent.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members E. J. Brady and D. B. Archer.

APPEARANCES: Alick Ryder, Reva Devins and Charles McCormick for the complainant; Stephen McCormack, Andra Pollak and James Hotston for the respondent.

DECISION OF THE BOARD; December 23, 1981

I. This is a complaint under section 89 of the Labour Relations A ct, alleging a series of unfair labour practices subsequent to the certification of the complainant.

2. The complainant's application for certification was filed May 1, 1981, and the hearing of that application took place on Friday, May 22nd. The application ultimately was limited to the "full-time" employees of the respondent, made up at the time of the following:

Wayne Smith Funeral Director Randy Wilson Funeral Director Victor Surerus Funeral Director Richard Davy Articling Student Barry Simmons Driver, Maintenance Man Cathy Simmonds Secretary to the Home

The complainant's membership count was disclosed as either 4 out of 5, or 5 out of 6, depending upon the inclusion or exclusion of Ms. Simmonds, whose status was in dispute. There was also filed an employee statement in opposition, in support of which Mr. Smith, one of the funeral directors, appeared at the hearing. In assessing the materiality of the statement in opposition, the Board announced that none of the employees who signed the statement had also signed cards in the complainant. Assuming, therefore, that Mr. Smith had signed the statement in opposition in support of which he had attended at the hearing, it was not a difficult feat of logic for the respondent to arrive at the conclusion that the only one of its full-time employees who had not signed a union card was Mr. Smith.

3. On May 25th, the first day back at work, the respondent announced that Mr. Smith was being promoted to "supervisor" (which included a raise in pay). Mr. Smith had considerable managerial background, and was told at the time of his hiring in January of 1981 that advancement to management would be considered. Mr. Smith was in effect appointed to replace Mr. Wilson, who had asked to be relieved of the position of supervisor in February or March of 1981. At that time, the respondent states, Mr. Smith was spoken to about possibly picking up some of Mr. Wilson's responsibilities. His salary, however, was not altered at that point, and no mention was made to any staff members that Mr. Smith had acquired any additional authority. The respondent, while suggesting that it had been its intention to exclude Mr. Smith all along, was unable to explain why Mr. Smith had been included on the respondent's list of employees in the bargaining unit as of the date of the application for certification.

4. Also on May 25th there arose two issues with respect to employee breaks at the Home. The Home at that time was under the ownership of Mr. Maxwell Comstock, with Mr. Donald Marr serving as Senior Manager, and Mr. James Hotston the Junior Manager. Mr. Hotston attended the certification hearing in Toronto on May 22nd and reported the results to the other management members on the weekend. On Monday, Mr. Marr noticed several of the employees of the Home sitting down to have a coffee first thing in the morning. This, Mr. Marr acknowledged, was accepted practice in the Home, so long as there was no work to be done at the time that was "necessary", in the sense of being immediately required. Mr. Marr himself had sat down to have coffee with the employees on such occasions. On this occasion, however, Mr. Marr stated: "From now on, this practice will have to stop. In the future, if there's work to be done, you'll have to do that first". Mr. Marr was unable to recall for the Board what it was that was "necessary" or urgent on that morning, so as to prompt his comment.

5. Later that day, Mr. Hotston discovered Victor Surerus eating lunch at the front desk while waiting for the family of a deceased to arrive. He ordered Mr. Surerus to stop, and stated that henceforth there would be a "new rule" against eating lunch during working hours. Mr. Hotston acknowledged in his evidence that the Home, prior to that, had always been flexible with regard to when employees ate their lunch, since the demands of the business might, on other occasions, require employees to interrupt their scheduled lunch break for the sake of the Home. He stated that the Home may have been "lax" in the past, but agreed that what Mr. Surerus was doing on May 25th was part of a practice which had not been terminated by the respondent prior to that date.

6. The next day, May 26th, Mr. Davy, the articling student, was let go.

7. On May 28th, Barry Simmons, the driver/maintenance man, received a written reprimand threatening him with discharge if his attitude and appearance did not improve by June 1st. Mr. Simmons had been spoken to on a number of occasions in the past, but the respondent acknowledges that this is the first time at the Home that an employee had ever received a reprimand in writing. The respondent also acknowledged that the threat of dismissal was an "escalation" in its response, notwithstanding that Mr. Simmons' conduct had been at essentially the same level since the beginning of 1981.

8. A further complaint filed in this matter had to do with the installation of time clocks at the Home on June 8th. Mr. Hotston testified that the use of time clocks had been under consideration for a couple of years, and that their purpose was to record information required by the Coroner's office as to time spent on pick-ups. The use of time clocks is specifically mentioned in some of the collective agreements for this industry, and indeed subsequently came to be included in the complainant's proposals for the present negotiations. The employees, however, were unaware of the purpose of the time clocks when they were introduced on June 8th, and Mr. Hotston acknowledges they would have thought their purpose was to have employees punch in and out for their shift. Notwithstanding that the employees' concerns were communicated to the respondent by Mr. Wilson, the respondent made no attempt to explain to the employees what the purpose of the time clocks was to be.

9. On June 8th Mr. Wilson was given a warning on broad grounds pertaining to his work as a funeral director, and was terminated on June 9th.

10. Victor Surerus, the third of the original funeral directors, was involved in disciplinary action on August 31, 1981, and apparently placed on indefinite suspension.

11. The section 89 proceedings began in Toronto on September 3, 1981, and all of the above incidents formed the subject matter of complaints before the Board when the proceedings resumed in Peterborough on October 5th for three more days of hearings. During the course of the first day, however, the parties were able to reach a settlement on all of the matters in dispute, as a result of which all of the complaints before the Board were withdrawn. The terms of the settlement are, of course, of no concern to the Board. From this development, however, it must have appeared to the complainant that the respondent had finally accepted the relationship, and was prepared to get on with the amicable negotiation of a collective agreement.

12. But it was not to be. On October 8th the respondent, without in any way alterting the complainant, served Barry Simmons, the driver, with a notice of layoff, and advised Cathy Simmonds, the secretary, that she effectively had a choice of accepting a new position of confidential secretary outside the bargaining unit, or being terminated. As indicated, not a word was said to the complainant in the settlement discussions three days before in regard to these pending new developments.

13. At the hearing of the fresh section 89 complaint which these developments predictably spawned, the complainant claimed the right to adduce evidence of all of the allegations contained in its prior complaints, on the sole basis that they were relevant in demonstrating through a pattern of conduct the anti-union animus necessary to sustain the present complaint. The complainant conceded that it was precluded by the settlement from seeking any form of relief with respect to the prior complaints, and made it clear that it was not attempting to do so.

14. The position of the respondent was that labour-relations policy dictated that when parties resolve complaints pending before the Board, they are entitled to know that the subject matter of those complaints will not subsequently have to be "re-litigated". For the Board to rule otherwise, the respondent argued, would be to create a disincentive to the settlement process itself. The respondent added that parties may have any number of reasons for settling in a given case, and that the Board ought not therefore to draw any negative inferences from the fact that a settlement was made.

15. The Board appreciates that any number of reasons may prompt a party to settle rather than litigate an issue, and for that reason has never sought to draw any inference whatever from either the fact of a settlement or the terms of the settlement themselves. Indeed, in the absence of a claim of non-compliance, it is doubtful whether the latter could be properly before the Board at all. On the other hand, the settlement of a particular complaint does not obliterate the fact that certain events, whether or not forming a part of such other complaint, did happen. And if those events are arguably relevant to either support or defend a fresh complaint arising from subsequent developments, the events themselves continue to be provable and admissible in evidence.

16. The Board's approach to this situation can be seen in the case of Craft line Industries Limited, [1977] OLRB Rep. April 246. There it was the respondent employer who was asking the Board to draw an inference from the fact that several previous complaints against it had been either settled or withdrawn. The Board commented on that submission and as well on the extent to which evidence common to both the prior and current complaints was admissible, at paragraph 5:

The Board is not prepared to find that the complainant has engaged in an abuse of process by virtue of having filed a series of section 79 complaints against the respondent which have either been settled or withdrawn. The practice and procedures of the Board are designed to encourage settle­ment as an alternative to litigation. The parties are free to settle on whatever basis is mutually acceptable to them and in the circumstances of this case the Board is not prepared to infer that the previous complaints have been frivolous ones solely designed to force concessions at the bargaining table. The Board would point out, however, that the evidence adduced in respect to the prior complaints will be admitted for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity.

The settlement of a complaint continues to be advantageous to a party for all of the reasons one would normally contemplate settlement. But a party is not entitled to think that by the settlement of a particular complaint, it thereby obliterates the past, and can act thereafter with relative impunity. Rather, having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement. For the foregoing reasons, the Board ruled orally at the hearing that it would admit evidence of facts pertaining to the prior complaints on the basis set out in Craftline. The parties then agreed to have the Board simply adopt its transcript of evidence from the prior proceedings.

17. With respect to the layoff of Barry Simmons, Mr. Hotston arrived at the Home on October 8th, and observed Mr. Simmons raking leaves in a strong wind. Mr. Simmons explained that he had no other work to do that day. The evidence of the respondent is that business had been down substantially for the past four to six weeks. Mr. Hotston testified that with the reinstatement of Victor Surerus, there simply was not enough work for the existing complement of staff. The letter to Mr. Simmons makes much of this point, and is less than subtle as to where it places the blame for the layoff. The letter reads:

Dear Barry:

As you are aware, Comstock Funeral Home Ltd. recently absolved a number of disputes which had been outstanding between the union and the company, and as a result of this settlement, Comstock Funeral Home Ltd., has reinstated Victor Surerus to his former position.

Unfortunately, Comstock Funeral Home Ltd. is now over-staffed and I must regretfully inform you that you are laid off, effective 4.30 p.m. Oct. 8, 1981.

I am hoping that business will pick up and we will be able to recall you in the very near future.

18. The respondent has in fact hired three new employees since the complainant's certification. One employee was hired as a funeral director in July following the discharge of Randy Wilson, and another as a funeral director in September following the suspension of Victor Sererus. In both instances the respondent was faced with unfair labour practice complaints at the time of the hirings. In addition, a third employee was hired in July, originally, on a part-time basis, but now on a full-time basis since August. This employee will be registering next fall in the Funeral Services Education Program at Humber College en route to becoming a licensed funeral director. Mr. Hotston testified that Simmons was the one to go because he is the only one limited in his qualifications to driving the limousine and performing general maintenance jobs around the Home. He added that those jobs are presently being shared by whoever is available in the Home, as has always been the case.

19. The matter of Cathy Simmonds' exclusion is somewhat different, in that even though equally ill-timed with the layoff of Barry Simmons, the respondent's concerns were at least raised with the complainant at a point well in advance of the upheaval in the Home. The respondent at the time of certification took the position that Ms. Simmonds had to be excluded as a confidential secretary to the Home's officers, but was persuaded to accept for the time being an agreement which included her in the unit. Shortly after the certification, counsel wrote a letter to the complainant which dealt at length with the respondent's concerns and intentions over Ms. Simmonds. The letter reads in its material respects:

At this time, we also wish to clarify the issue of Miss Cathy Simmonds in order that there be no misunderstanding about her status in the months ahead. You are aware that the full time bargaining unit (including Miss Simmonds) constitutes six persons. You are also aware that our client sought the exclusion of Miss Simmonds due to her position of "secretary to the Home" — your Union took exception to this exclusion and accordingly Mr. J. Bowman of the Board was appointed to review Miss Simmonds' duties and responsibilities. When the parties met with Mr. Bowman on June 22nd, we explained our client's position to him in some detail. This explaination included:

(i) A review of her current duties and responsibilities.

(ii) A review of her anticipated duties and responsibilities an explanation of why we were not prepared, as of May 22nd, to argue that Miss Simmonds should be excluded, bearing in mind jurispru­dence re Section l(3)(B) of the Act.

(iii) An explanation that with the advent of a certified bargaining agent, Miss Simmonds' duties and responsibilities, as the only secretary to the Home, would be amended to include a continuing active role in personnel and labour relations matters. In due course she will be advised in this regard and at such point in time an application for her exclusion from the bargaining unit will be made pursuant to Section 95(2) of the Act.

(iv) A review of her "sensitive" duties relating directly to confidential matters of the Home.

We understood that our position was made clear to your counsel, Mr. Wohl, and that he appreciated why no issue was made on May 22nd relating to Miss Simmonds and why the issue would be pursued pursuant to Section 95(2). It is unfortunate that this matter could not be decided on May 22nd and that it will necessitate a hearing before the Board in order to be conclusively resolved.

There is no evidence before the Board as to "why no issue was made on May 22nd", and the respondent did not, as it suggested in the letter, pursue the avenue of a section 95(2) application to determine the propriety of exclusion.

20. The initiatives of the respondent producing this final complaint must be viewed in the light of the entire history of matters between the parties. Counsel for the respondent characterizes the various complaints brought against it as largely trivial in nature. What the Board sees, however, is an unfortunate example of an essentially mature and flexible employer adopting a petty and vindictive stance towards its employees as a result of their opting for collective bargaining. It is the response of the employer, in other words which has produced the "trivial" nature of some of these complaints. Having regard to the timing and sequence of the various events, as well as the provisions of section 89(5) of the Labour Relations Act, the Board is satisfied that the respondent has engaged in a persistent pattern of anti-union conduct in response to its employees' decision to become organized. The Board recognizes that it is dealing with a small employer in a largely unorganized service industry, and does not expect the employer to welcome the advent of a bargaining agent. The employer is required, however, to maintain its response within the permissible limits of the Labour Relations Act.

21. With respect to the layoff of Barry Simmons, the Board is not persuaded that the timing of the layoff and the selection of Mr. Simmons were not affected, at least in part, by anti-union animus. That, as the Board has noted in a host of cases, is sufficient to render the respondent's conduct unlawful. See, for example, Barrie Examiner, [1975] OLRB Rep. Oct. 745, at paragraph 17; R. v. Bushnell(1974), 1 .O.R. (2d) 442; Pop Shoppe Toronto Limited, [1976] OLRB Rep. June 294. Given the respondent's treatment of the members of the bargaining unit following certification, together with the fact that no mention was made in discussions with the complainant only three days earlier that the settlement obtained by the union would be used to justify a further layoff, the Board simply does not believe the explanation put forward by the respondent for its conduct on October 8th, and finds the layoff of Mr. Simmons to be in violation of section 66(a) of the Act. Mr. Simmons is therefore entitled to be reinstated with back pay.

22. The situation regarding Cathy Simmonds, as the Board noted earlier, is different. The concerns which the respondent had over the inclusion of its only secretary in the unit were expressed early, and were not without some foundation. The respondent agreed to wait, however, until her collective bargaining responsibilities became more imminent, and the Board must be circumspect in drawing a negative inference against the respondent because of that. While it was pointed out that both Mr. Hotston and his wife have some ability to type, the respondent is entitled to have the work of the Home performed by the employees of the Home. Having regard to the fact that Ms. Simmonds is the only secretary in the Home, and to the express reservations of the respondent at the time it agreed to leave Ms. Simmonds in the bargaining unit, the Board is not prepared to find that the decision to remove the secretarial position from the bargaining unit, at precisely the point that the respondent said it would have to, is tainted by anti-union animus. Whether the exclusion is ultimately a sustainable one, on the basis of the duties and responsibilities of the position, is not the issue in the present case. It is only the issue of motivation that is before us. The most that can be said of the respondent's conduct in this regad is that, as with the layoff, the decision of the respondent to proceed when it did on Ms. Simmonds, without consulting or even alerting the trade union with whom it had just, it appeared, "cleared the air", was not only guaranteed to produce litigation, but demonstrates a labour-relations insensitivity that is likely to damage this employer's credibilty at the bargaining table. The complaint with respect to Ms. Simmonds, however, must be dismissed. The Board does so on the basis of its finding that the removal of Ms. Simmonds from the bargaining unit was motivated by genuine business considerations, and not a desire on the part of the respondent to remove Ms. Simmonds from the protection of the complainant and the Labour Relations Act. Should facts arise subsequently which cast doubt on this conclusion, it remains open to the complainant to request reconsideration of this decision from the Board in the normal way.

23. The Board hereby directs the respondent to forthwith offer to reinstate Barry Simmons as a full-time employee of the Home, and to pay Mr. Simmons compensation for all loss of wages and benefits suffered as a result of his unlawful layoff, with interest in accordance with Board Practice Note No. 13. The Board will remain seized of this matter in the event the parties are unable to agree upon the amount of compensation so payable.

24. The respondent is further directed to sign and post a notice in the form of the Appendix hereto attached, in a place at the Home where employees are able to see it, and to keep this notice posted for 60 consecutive working days. Reasonable steps shall be taken by the respondent to ensure that the said notice is 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 complainant to satisfy itself that this posting requirement has been and is being complied with.

25. The complainant has requested, in the light of the flagrant and persistent conduct of the respondent, that it be compensated for its costs of litigating this matter before the Board. The Board has already expressed its opinion of the manner in which the respondent has handled itself. Having regard, however, to the complainant's mixed success with respect to this complaint, and more so to the reasons given in Radio Shack, [1979] OLRB Rep. Dec. 1220, the request for costs is denied.

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 UNTARID LABOUR RELATIONS BOARD, ISSUED AFTER A SERIES OF HEARINGS ACCUSING THE COMPANY OF UNFAIR LABOUR PRACTICES THE BOARD HAS POUND THAT WE VIOLATED THE LAROUR RELATIONS ACT, WE WANT OUR EMPLOYEES TO KNOW THAT:

THE ACT GIVES ALL EMPLOYEES THE RIGHT

(A) TO ORGANIZE THEMSELVES;

(B) TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNIONS

(C) TO ACT TOGETHER FOR COLLECTIVE BARGAINING, AND

(o) TO REFUSE TO DO ANY AND ALL OF THESE THINGS, IF THEY WISH.

WE ASSURE ALL C~ OUR EMPLOYEES THAT:

WE WILL NOT 00 ANYTHING TO INTERFERE WITH THESE LAWFUL RIGHTS THAT ALL EMPLOYEES ENJOY,

WE WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEES FOR PARTICIPATING IN THE LAWFUL ACTIVITIES OF THE UNION, OR FOR ENGAGING IN FREE COLLECTIVE BARGAINING WITH US THROUGH THE UNION,

WE WILL OFFER TO REINSTATE BARRY SIMMONS IN FULL-TIME EMPLOYMENT IMMEDIATELY, WITH FULL BACK—PAY AND INTEREST.

WE WILL BARGAIN IN GOOD FAITH WITH THE UNION AS THE DULY CERTIFIED COLLECTIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND MAKE EVERY REASONABLE EFFORT TO MAKE A COLLECTIVE AGREEMENT,

COMSTOCK FUNERAL HOME LTO.

PER:

MANAGER

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.

DATED this 23RD day of DECEMBER 19 81