Ontario Labour Relations Board
[1983] OLRB Rep. June 974
1166-82-U Mrs. Odete Fonseca and Others, Complainants, v. Rolistamp Manufacturing Ltd., Respondent
BEFORE: G. Gail Brent, Vice-Chairman and Board Members M. Eayrs and B. L. Armstrong.
APPEARANCES: Maria Rodrigues for the complainant, E. L. Stringe; Q. C., H. Huber and J. Hofmann for the respondent.
DECISION OF THE BOARD; June 16, 1983
The complainants have complained that they were dealt with by the respondent contrary to sections 66 and 70 of the Labour Relations Act. The essence of the complaint is that they allege that they were indefinitely laid off effective July 9, 1982 because they were union supporters.
There are three separate categories into which the evidence can be organized in order to examine the allegations. They are: (A) the business conditions which prevailed at the time of the layoff; (B) the union organizing activity and the history of litigation arising there from; and (C) the complainants' evidence regarding the effect of (B) on their being laid off. We believe that examining the evidence under these three categories will allow the evidence to be put in the proper perspective.
(A) Business Conditions at the Time of the Layoff
There was no dispute on this evidence. The respondent is engaged in the business of doing press and assembly work of automobile parts which it supplies to the major North American automobile makers. It is a wholly owned subsidiary of Magna International. Four of the parts which it was making and assembling were for the grill of the General Motors (hereinafter G.M.) 1/2 ton light pickup truck. Those parts were being made under contract with G.M., and the respondent was required to bid on the job every time there was a change in the moldings. These quotes were requested by G.M. at the relevant times. In September or October, 1981, after such a request, G.M. informed the respondent that its quote was too high. The respondent submitted another quote lowering its price; however, G.M. still considered the price to be too high and awarded the contract to a manufacturer located in the United States, near Detroit. That manufacturer has no connection with either the respondent or its parent company. Since new car production started in August, the respondent's contract with G.M. was finished in July, 1982.
On or about June 25, 1982 Mr. Huber, the respondent's general manager, told all of the assemblers that they would be laid off. This was followed by a letter (Exhibit #2) which informed them that the respondent had lost the G.M. grill work and had been unable to find any other assembly work to replace it. All of the complainants were assemblers. There were twenty-three assemblers employed by the respondent at that time and all of them were laid off. Only two of the assemblers, none of whom were complainants, were employed assembling another part - small anodized clips for the Chrysler Cordoba produced by another manufacturer. Those two assemblers were also laid off.
At the same June 25th meeting Mr. Huber also told the press operators that, because of the poor business conditions, their hours would be reduced from forty-eight to forty hours per week. He also said that he hoped that there would not have to be any further layoffs. None of the complainants were press operators and there was no evidence that any of them could operate the press.
The respondent's evidence was also that in January or February, 1982 it had laid off approximately nine people who were employed on the Escort and Lynx windshield assembly. These layoffs flowed from the decision of the respondent to allow the anodizer, Friedel Manufacturing, to do the assembly work in order to meet quality control concerns. At the request of Friedel, the respondent supplied those employees with directions about how to find Friedel, which was interested in hiring them to do the work. Those employees were subsequently hired by Friedel. At that time Friedel had no corporate connection with the respondent. In August, 1982 Friedel was purchased by the respondent's parent company, Magna. The respondent testified that it could not offer the same opportunity to the twenty-three assemblers laid off in July because it had completely lost the G.M. contract.
The respondent's evidence was that since July, 1982 it had hired no new assemblers to replace those laid off. Mr. Huber also said that in 1981, at its peak, the respondent employed one hundred and twenty-five employees. He said that in September, 1982, when the complaint was filed, there were sixty-eight employees. Aside from the nine laid off in January or February, 1982 and the twenty-three employees laid off in July, 1982, the respondent has also lost a fair number of employees, whom it did not replace, through attrition. Mr. Huber testified that once it was clear that the G.M. contract was being lost no new employees were hired to replace those who quit. Mr. Huber said that he would recall the employees laid off if he had work for them.
(B) History of Union Activity and Litigation Arising There from
There is no doubt that Mrs. Fonseca, one of the complainants, was the chief organizer for the union, the United Electrical Workers, in its campaign to be certified as bargaining agent for the respondent's employees. There is also no doubt that the respondent knew of Mrs. Fonseca's involvement well before the 'layoff in July, 1982.
In June, 1981 the United Electrical Workers applied for certification for a single bargaining unit which included the employees of the respondent and those of two other divisions of Magna. The Board determined that this was not an appropriate bargaining unit, and, what is relevant for our purposes, decided that the respondent's employees would constitute a separate bargaining unit. The Board also decided that there was insufficient evidence of membership to certify the union for the respondent's employees and dismissed that aspect of the application. Shortly thereafter the union applied for certification as the bargaining agent for the respondent's employees. A pre-hearing vote was held in October, 1981. The union made allegations against the respondent in a letter dated October 26, 1981, and the Board proceeded to hear those allegations on November 25, 1981. The hearing commenced that day but did not conclude. Between the first day of hearing and the date set for the continuation the union notified the Board, on December 28, 1981, that it was discontinuing its action and that the vote could be counted. The vote was counted in January, 1982 and the Board's decision of January 19, 1982 indicated that the union lost the vote.
It would appear that there was a group of petitioners who opposed certification and who appeared at the hearing with its own lawyer. The union's allegations against the respondent did not include employer involvement in the petition.
There have been no applications for certification made since that time, and there is no evidence to suggest that there has been any union organizing activity in the plant since then.
The union is not a party to these proceedings.
(C) The Complainants'. Position Regarding the Connection between their Union Activity and the Layoff
All of the complainants who testified were union supporters and suggested that there was an attempt on the part of the respondent to save the jobs of five employees who were opposed to the union by transferring them from assembly to the press shortly before the layoff. The respondent's evidence was that it had never done that, and that it did not allow assemblers to bump into the press operator classification. Mr. Huber said that the press operator classification is more skilled than the assembler classification and carries a higher rate. Mr. Huber did say that in August, 1980 four assemblers were transferred to become press operators on the Lynx and Escort job, which was a newly acquired job. One of those four was C. Nunnes, who was mentioned by the complainants as one of those transferred to avoid being laid off.
Along with C. Nunnes the complainants alleged that Guimar Camara, an employee named Jesuina, Mr. F. Silva, and L. Leal were all transferred so that they would not be laid off. The complainants were firm in their assertion that this occurred shortly before the layoff, but much of their evidence about dates was sketchy. Ms. Da Costa testified that she used to work unwrapping parts but was transferred to assembly. Two employees she could only identify as Alzira and Guimar, both of whom had more seniority than she did then, began to do the unwrapping work. It would appear from her evidence that this transfer occurred in March, 1982 after she had injured her finger, and that Alzira, at least, like Ms. Da Costa, was not a press operator. Ms. Carvalho once worked at the press machines but was unable to say whether or not she was a press operator. She testified that she had surgery in May, 1981 and had returned to work on July 26, 1981. She said that at that time she was put on assembly and that sometime during her absence Jesuina had been moved to the presses to do her former job. Ms. Muniz could not recall when any of the five were moved from assembly because "they were working there a long time", maybe two or three months before the layoff. She also said that C. Nunnes was moved first, then Jesuina, and the other three later. Ms. Pereira did not testify about the transfer.
All of the complainants testified about activities which occurred at or around the time of the certification applications and the votes. They described heated exchanges between pro and anti-union groups; they described the conduct of the respondent's bus driver in failing to pick up Ms. Fonseca; and they described other conduct in connection with the bus. All of the conduct described was so described with the suggestion that the respondent was the guiding and planning force behind these actions. In assessing this evidence it cannot be forgotten that the union chose not to pursue its allegations of anti-union conduct against the respondent.
The only witness who described anything that was said to her around the time of the layoff was Ms. Da Costa. She said that one of her fellow employees said to her that it was right that they were being laid off because they were stupid. She also said that two days before she received notice of layoff one of the employees asked her when she was moving. Ms. Da Costa said that she did not know what to make of that remark at the time, but later decided that the employee was making fun of her and knew that she was about to be laid off. Neither of these remarks was made by a "boss".
There was considerable dispute about the amount of assembly work and overtime being done at the plant. The respondent's evidence, briefly summarized, was that there was overtime done up to July 9th so that the G.M. parts could be shipped before the contract ended. It was also the respondent's evidence that any assembly work being done after July, 1982 had been done by some press operators on light duties on a couple of Fridays to supply replacement parts. The respondent said there has been no overtime since July 9th. The complainants said that they had heard from some employees still at work that there was overtime worked in August.
Conclusions
It is undeniably the right of the employees to choose to be represented by a union. This right cannot be interfered with by an employer, and an employer cannot discriminate against employees on the basis of their union involvement. It is the duty of this Board to scrutinize the respondent's actions to determine whether the decision to lay off these employees was influenced in any way by their union involvement.
There is no evidence to contradict the respondent's evidence about the loss of the G.M. contract and the effect that had on the respondent's business. There is undeniably a casual connection between the loss of the assembly work and the decision to close down the assembly line and to lay off the assemblers. There is no evidence to support any conclusion that the respondent was in any way connected with the company which successfully outbid it or that it purposely set out to lose the contract as a pretext for closing down its assembly operation.
The earliest the respondent knew that it was facing difficulties retaining the G.M. contract was in September or October, 1981. The allegation that the respondent purposely transferred five anti-union assemblers to the press operation must be examined in light of that date. There is no evidence to contradict Mr. Huber's evidence that C. Nunnes was moved to the press in August, 1980 - approximately one year before the respondent was in danger of losing the G.M. work. Assuming that the complainants' evidence is correct, there is no evidence to suggest that the five people who were identified were moved from assembly in a group. The evidence suggests that the second of the group of five to move was Jesuina, and that this occurred sometime between May and July, 1981. Again, this was before the respondent knew that the G.M. contract would be lost. Not only that, but the move seemed to be connected with Ms. Carvalho's absence from work for surgery, and there is no evidence to the effect that Ms. Carvahlo either asked for or was able to do her former job after her return to work. There is also no evidence to suggest that she was denied her former job after requesting it back. The next move appears to have occurred sometime in March, 1982 and involved two employees identified as Alzira and Guimar. Assuming that Guimar is Guimar Camara, one of the five identified, then we are left with the fact that Alzira is not one of the group of five. This move occurred after the respondent knew that the G.M. contract was going to be lost but it also involved the transfer of someone other than one of the five identified. There is also some suggestion that the move may have been connected somehow with Ms. Da Costa's injured finger. The most we know about the other two is that they were moved some months before the layoff.
Given the different times when the moves were made, it is unlikely that there existed any organized plan to transfer anti-union employees to another job to save their jobs in the face of the impending layoff. There is no such pattern which emerges as probable from the evidence. Moreover, any inference concerning such a plan that can be drawn from the evidence is severely strained when it is seen that at least two of the five were transferred well before the respondent knew that it had lost the G.M. contract and could find no assembly work to replace it. Therefore, we cannot conclude that the respondent purposely set about to protect anti-union employees from the impending layoff.
There is no evidence concerning any anti-union activity after the time of the vote in October, 1981. Assuming, for the sake of argument, that the respondent was responsible for that 1981 activity, we are still faced with the problem of tracing a link between what occurred in and around October, 1981 and the layoff in July, 1982. This is made all the more difficult, if not impossible, by the fact that the union dropped the allegations of unfair labour practice made in connection with those very activities on which the complainants rely. Given that the union did not pursue those allegations in 1981, we are left with two possible inferences: either there was no basis in fact for the allegations or the union did not serve its supporters' interests properly. If the former is the case, then there is no basis for concluding that there was any anti-union animus on the respondent's part. If the latter is the case, then there is still the problem of the remoteness between those actions during the organizing campaign and the layoff. There is just nothing to suggest any anti-union actions once the result of the vote was known, and there is certainly no evidence, outside of the layoff itself, to the effect that any of the complainants suffered any discrimination because of their support for the union during the period between October, 1981 and July, 1982. Moreover, there is credible, undisputed evidence concerning the respondent's loss of the job which the assemblers were doing and of the consequences that had both on its business and also on the number and type of employees it required after July, 1982. Given that evidence coupled with the facts (a) that the union chose not to pursue its allegations concerning the respondent's October 1981 behaviour, leaving us with the inference that there was no wrongdoing by the respondent, and (b) that there was no cogent evidence of any anti-union activities by the respondent between October, 1981 and July, 1982, we must conclude that the respondent has met its obligation under the Act and has satisfied the burden of proving, on balance, that the layoffs were not motivated by any anti-union animus.
For all of the reasons set out above, the complaint is dismissed. The complainants did a fine job of representing themselves at this hearing. It would certainly appear that they do not agree with the union's decision to drop the charges made against the respondent in October, 1981. That may really be the heart of the matter before us. For their sake, one must accept that the union's decision was based on an assessment of the situation which led to the conclusion that the allegations were without substance. To do otherwise would be a sad comment indeed on the way the union treated the trust which these complainants placed in it. We have no basis for concluding that the union betrayed that trust. The complainants must therefore accept, no matter how reluctantly, that their employment was not jeopardized by the exercise of their right to join a union.