[1983] OLRB Rep. September 1457
0638-83-U Labourers' International Union of North America, Local 506. Complainant, v. Global Demolition Ltd., Respondent
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Chris G. Paliare and Michael Mihajlovic for the complainant; Norman A. Keith and Steve Teperman for the respondent.
DECISION OF THE BOARD; September 26, 1983
This is a complaint filed under section 89 of the Labour Relations Act in which the Labourers' International Union of North America, Local 506 ("the union") has alleged that Global Demolition Ltd. ("the employer") has violated sections 64, 66, 70 and 79 of the Act with respect to the six grievors named in the complaint. At the commencement of the hearing into the complaint, Steven Mixemong was added as a grievor and during the course of the proceedings, the union withdrew its allegations with respect to Randy Adams and Joseph Mandamin. Therefore the grievors who remain as parties to this complaint are Jacob A. Aibens, Kenneth E. Sandy, Henry Pitawanakwat, John J. Pejko and Steven Mixemong.
The union alleges that the five grievors were discharged on June 22nd because they supported the union in its successful effort to be certified as their bargaining agent. The complaint contains detailed allegations concerning the conduct of the employer's president, Steven Teperman, from a time shortly after the application for certification was made until the discharge of the five employees. The union contends that his conduct constitutes a violation of the Act by the employer.
The findings of fact herein are from the evidence of Teperman, the only witness who testified at the hearing. After hearing his evidence, counsel for the union advised the Board that the union would not be calling any evidence because, in counsel's view, the employer had failed to satisfy the onus placed upon it in a complaint of this kind; a reference no doubt to the burden of proof placed on an employer by section 89(5) of the Act, when there is a complaint that a person has been dealt with contrary to the Act with respect to his employment, opportunity for employment or conditions of employment, that the employer did not act contrary to the Act. The Board's often quoted decision in Barrie Examiner, [1975] OLRB Rep. Oct. 745 described the nature of that burden in the following terms:
"What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof 'that any employer ... did not act contrary to this Act'. In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd. [1974] O.L.R.B. 450. In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, 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."
- In terms of assessing whether the employer has acted out of anti-union motivation and therefore contrary to Act, the Board has described its task in the following manner in its decision in The Ontario Educational Authority, [1976] OLRB Rep. Nov. 721 at page 724:
The Board in assessing the employer's explanation, must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, the employment history of the grievor and his involvement in trade union activity, unusual or atypical conduct by the employer following upon knowledge of trade union activity, the timing of the termination or other alleged unlawful activity vis-a-vis the employer's knowledge of trade union organization and of course the credibility of the witnesses. (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278);
and further at page 725:
Similarly, the Board cannot allow a legitimate reason to mask an anti-union motive. The Board has long held that anti-union motive does not have to be the sole reason or even the predominant reason underlying the activity complained of for the Board to find that the Act has been violated. This approach has received judicial approval in the Bushnell Decision [1974] OR (2d) at page 442, affirmed at 1974 CanLII 559 (ON CA), 4 OR (2d) 288. Accordingly, the Board must be prepared to examine all of the evidence circumstantial and otherwise, for the purpose of drawing inferences as to the credibility of the explanation put forward by the employer and in so doing it must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct. (See Pop Shoppe (Toronto) Limited [1976] OLRB Rep. June 299).
- The employer's defense to the complaint is that the alleged discharges on June 22nd were in fact lay offs made for bona fide business reasons, untainted by any anti-union motive. The complaint and the employer's defense raise two questions for the Board:
(a) is the reason given by the employer for the lay off the only reason; and
(b) was any anti-union motive attached to the employer's selection of those employees who were laid off.
With respect to the first question, the Board is satisfied on the evidence before it that there were bona fide business reasons for laying off the five grievors on June 22nd. The remaining part of the question is whether that was the only reason for the lay off or whether any anti-union motive played a part in the decision. It is not disputed that the union filed an application for certification on or about June 7, 1983. The employer started in business in November 1982 and at that time the business consisted of Teperman, its president, and a secretary. The employer obtained its first job on March 17th, 1983 and as a result of that job, obtained some further work with the same client (hereinafter referred to as the Donway job). The employer's contract called for that work to be completed by June 30th at the latest, with an understanding between the client and the employer that the client could ask for earlier completion. Teperman also obtained two other jobs which were executed in May and June, each with separate clients unrelated to the first one. The last of these two jobs was finished by June 10th. Teperman failed to get two other jobs on which he had been bidding, one with his original client on the Donway job and the other with a prospective new client. Teperman learned that he had failed to get both jobs immediately prior to the lay off in question here.
The application for certification was made and processed pursuant to the construction industry provisions of the Act which do not require the Board to hold a hearing. Teperman first learned of the application on June 14th when he was contacted routinely by a Board clerk who was enquiring into whether notices to employees about the application had been posted as required. The employer had not received the Board's material by that date. A certificate ultimately issued to the union on June 20th. In response to a question from Teperman, the Board clerk informed him that he would need to supply the Board with a list of names of the employer's employees and specimen signatures which the Board required in order to compare them with the signatures on the membership evidence filed by the union. Teperman had the list prepared and then took a photocopy of it which he presented to each employee and asked the employee to place his signature next to his name. Teperman told them that this was part of the evidence which he had to supply to the Board. In examination-in-chief, Teperman volunteered the information that he had approached each employee individually on the job to get the signatures and at the same time asked each one if he had signed a union card. He told the Board that he had done this out of curiosity and not to threaten the employees. He stated also that he did not say anything to the employees about being laid off or fired if they refused to say whether they had signed union cards. Teperman disclaimed any knowledge that any person whom he had laid off had been involved in organizing his employees. He had seen a Local 506 organizer drive onto the Donway site and then leave it as soon as he saw that Teperman was on the site.
On June 16th, Teperman spoke to his employees as a group during the lunch period. This was the terminal date for the application, that is the day by which the union had to file its membership evidence, the respondent its reply and lists of employees and any employee who was going to oppose the application, a statement of desire in opposition to the union. Teperman expressed his views with respect to what he saw as being the advantages and disadvantages of a union. He told the employees that he had been informed by the person from the Board that employees could file a petition if they did not want the union. He stated that, if they felt as he did, they could file a petition, but since he thought it was already too late, that day being the deadline, if the application came to a vote they could express themselves in the vote. Teperman reiterated these remarks to the employees at lunch time on June 18th.
There was no allegation in the complaint with respect to any meeting or discussion with employees on June 18th, but the particulars in the complaint include allegations that Teperman made statements which individually or collectively constitute violations of the sections of the Act contended in the complaint. Each of these allegations either was rebutted by Teperman's testimony to the Board's satisfaction or was not pursued by the complainant in its cross-examination of Teperman. In the result, the Board is left with the admitted fact that Teperman inquired of his employees whether they had joined a union and the fact that he laid off employees on June 22nd, allegedly because they were supporters of the union.
There is an internal inconsistency in Teperman's evidence with respect to when he asked his employees whether they had signed union cards. As noted above, in his examination-in-chief, he volunteered the information that he had spoken to the employees at the same time that he gathered their specimen signatures. During his cross-examination, in reply to a question about talking to the employees at lunch time on June 16th, he replied that it was then when he asked the employees about their union membership and that he did not ask about that matter when he got the specimen signatures. While this raises a doubt of just when he asked them about their membership support, it does not alter the fact that he did ask them. It is not critical to this decision whether it was June 14th or June 16th and whether it was done individually or in a group. The Board is not prepared to discount the rest of Teperman's testimony, as union counsel contends it should, based on that single inconsistency, having regard for its nature, the manner in which the testimony was given and his general demeanor as a witness.
The facts relevant to how Teperman selected employees for lay off on June 22nd are as follows. On June 20th, the employer was close to completing demolition of the last building on the Donway job so Teperman instructed his foreman to select a five-man crew and take it to a job site on Adelaide Street on June 21st to start work there. This job was one of the two new jobs which Teperman had expected to get. The foreman selected the persons who are the five grievors herein. During the evening of January 20th, Teperman was advised by the developer on the Adelaide Street job that the demolition work had been given to his general contractor. When the men showed up at that site on the morning of June 21st, there was no work for them so they were told by Teperman to report back to the Donway job site. That day all of the demolition work was completed and only clean up work remained. That clean-up work required six employees. Teperman decided to keep the two students whom he had hired through Canada Manpower and for whom the employer was entitled to receive some wage subsidies. He went over the time cards of the remaining employees with his foreman and reviewed their performance in terms of attendance, punctuality and reliability. Teperman testified that he and his foreman picked in this fashion the persons who were to be laid off and who are the grievors herein. He admits that he had been prepared to keep these persons employed on the Adelaide Street job, but explained that he was prepared to do so because he had been unable to hire any persons who were any more reliable. The employer retained four employees in addition to the students. They worked on clean-up of the Donway job site from June 22nd until June 28th. On June 28th the employer laid off the two students and three of the four other workers. The fourth one was the employee who had been trained to operate a hydraulic backhoe which was used on the site and who was retained until July 8th before being laid off.
Teperman testified that, when he was selecting those employees to be retained and those employees who would be laid off, he did not consider their union affiliation. If he had wished to do so, he would have been unable to because he had no knowledge of what it was. It is interesting to note that the Board's decision certifying the union, which is in evidence here, issued on June 20th. Since it was a decision without hearing under the construction industry provisions of the Act, the decision indicated, anonymously, the number of membership cards which the union had filed in support of its application. There were 11 in this case. The employer had only 12 employees on the date of the application so it would know from that decision that only one of its employees did not support the union. There is no evidence before the Board either way as to whether the employer had received that decision by the time Teperman was deciding which employees to lay off and which employees to retain. In either circumstance, Teperman either did not know which of his employees supported the union or knew that all but one did support it, without knowing who the exception was. Therefore there was nothing in Teperman's knowledge which would enable him to distinguish, in terms of their support for the union, those employees who were laid off from those employees who kept in employment. Nor is there any evidence before the Board from which it could establish directly or by inference that Teperman had such knowledge.
While the Board is concerned that Teperman, when he learned of the application, approached employees and asked each one of them if they had joined the union, there is nothing in his subsequent actions which would cause the Board to infer that it was because of their refusal to tell him whether they supported the union or because an application for certification had been made, that he laid off the five grievors and retained the other employees.
The employer, through its President, Steven Teperman, has come forward and given a credible explanation of its conduct and actions. That explanation included a rebuttal of the allegations set out in the complaint except for Teperman's admissions of having asked the employees whether they were members of the union. The employer's explanation withstood, to the Board's satisfaction, the test of cross-examination. Therefore, in the absence of contrary evidence and having regard for all of the evidence before it, the Board finds that the employer has met both elements of the test set out in the Barrie Examiner decision, supra. In the result, the Board finds that the employer's decision to lay off five employees on June 22nd and its selection of those employees who were to be laid off were made for bona fide business reasons and did not involve an anti-union motivation.
The complaint is dismissed.