United Food and Commercial Workers International Union AFL-CIO-CLC v. Krinos Foods Canada Ltd., 1984 CanLII 1087

[1984] OLRB Rep. November 1587

2944-83-U United Food and Commercial Workers International Union AFL­CIO-CLC, Complainant, v. Krinos Foods Canada Ltd., Respondent

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members A. Grant and B. Armstrong.

APPEARANCES: James Hayes, Vincent Gentile and Stan Henderson for the complainant; E. Rovet G. Kanas and John Moscahlaidis for the respondent.

DECISION OF THE BOARD; November 29, 1984

1. This is a complaint under section 89 of the Labour Relations Act alleging that the grievors, Axel Arana, Ilias Segounis, Ted Pantos, Rosalija Petrovic, Maria Morea and Rita Robibero have had their employment terminated in violation of the Labour Relations Act. Following the hearing and prior to the Board issuing an oral decision, the parties made one final effort to settle this matter. The Board has been advised, however, that these efforts have been unsuccessful.

2. The respondent company is an importer and distributor of Greek specialty foods. The business was begun in 1950 in New York by John Moscahlaidis. In 1963 a small plant was opened in Montreal, and in 1964 in Toronto, the Toronto plant subsequently moving to new premises in 1979. Mr. Moscahlaidis is still President of both the parent company and its Canadian subsidiary, and makes two or three visits each year to the Canadian locations.

3. The grievor Ted Pantos has been with the respondent in Toronto since 1966, and since the move to the new location in 1979 has been the individual responsible for the care of the company's cheeses. It would appear from the evidence of all witnesses (even allowing for a measure of over-statement on Mr. Moscahlaidis' part) that Mr. Pantos has been a good deal less than satisfactory in carrying out that responsibility. It appears that there has not been a trip to Toronto, since 1979, in which Mr. Moscahlaidis has not railed at length at Mr. Pantos over the spoiled condition in which he found the company's cheeses, in particular the feta cheese, which requires constant care and re-brining. At one point, apparently in 1982, Mr. Moscahlaidis left his general manager, George Kanas, with instructions to fire Mr. Pantos. When Mr. Moscahlaidis next returned to Toronto, he asked Mr. Kanas if he had fired Mr. Pantos. Mr. Kanas replied: "Yes, but he doesn't believe me.

4. Mr. Moscahlaidis was aware that Mr. Kanas and Mr. Pantos went back a long way together, and that Mr. Kanas had a great deal of sympathy for Mr. Pantos, but took the view that Mr. Kanas was supposed to be his general manager in Toronto, and accordingly had the responsibility to carry out any firing that had to be done. To bring the seriousness of the situation home to Mr. Pantos, however, Mr. Moscahlaidis composed a letter in Greek from himself for Mr. Kanas to read to Mr. Pantos. The letter, which Mr. Kanas did read to Mr. Pantos, translates as follows:

January 11, 1983

When I came to Toronto and I saw the situation in respect with the feta cheese, I really got sick. The barrels have been left alone as they arrived from Montreal without being brined, and, of course, the cheese was ruined.

I have told Theodore repeatedly to brine the cheese but he did not listen and doesn't give a damn about the enterprise. The only thing he knows is to ask every year to increase his salary and he contributes nothing to the Company.

This situation cannot last longer and inform Theodore that either he must work harder or, better, let him go home, and we will find another person to work for us.

If Theodore decides to work harder and remain with the Company, then I expect him to brine all the barrels with feta cheese and those with the vine-leaves as well every month and generally to look after the refrigerators and the cheeses and to protect the merchandise.

The decision is not ours any longer but Theodore's.

This is my last warning.

"John Moscahlaidis"

5. Notwithstanding this letter, the situation with the cheese was, on Mr. Moscahlaidis' next visit in April, "terrible". By this time, the complainant union had filed an application for certification of the Toronto employees. Mr. Moscahlaidis testified that, having had a union in New York for 25 years, he was not particularly concerned about that, and told Mr. Kanas it was "his baby" to handle. While there is evidence that Mr. Kanas received a caution at this time from the labour counsel he retained in Toronto that it was not a good time to be terminating employees, there is no evidence that this advice was ever discussed or a factor with Mr. Moscah­laidis in deciding not to fire Mr. Pantos at that point. Rather, Mr. Moscahlaidis was about to depart for Europe, and, after railing at Mr. Pantos in the usual way, he agreed with Mr. Kanas to give Mr. Pantos until the end of the summer to rectify his performance.

6. Mr. Moscahlaidis testified that when he returned at the end of September, the situation with the cheese was worse. At that point, Mr. Moscahlaidis says he decided he could no longer leave the matter in Mr. Kanas' hands, and wrote to Mr. Pantos the following termination letter:

October 3, 1984.

Mr. Theodore Pantos

c/o Krinos Foods Canada Ltd.

251 Doney Crescent

Concord, Ontario L4K lB1

Dear Mr. Pantos:

Many times during my previous visits to Toronto I told you personally that

I am not satisfied with your work but Mr. George Kanas always intervened

on your behalf and stopped me from terminating your employment with

KRINOS-TORONTO.

On January 11, 1983 the situation that I found in the cheese department was intolerable. Many barrels of cheese and olives were completely spoiled due to your negligence. The place was filthy and I decided to write to you and, specifically, in Greek for you to clearly understand my feelings.

During my April visit, again I told you, orally, that you must change your attitude toward KRINOS if you want to continue our relationship. You must take care of the cheeses, clean all the coolers, and generally show some interest in your work.

I came to Toronto again after six months on September 29 and 30, and I found the following at the section of the business that you are responsible for:

1. The floors of all the coolers were filthy and cigarette butts were all over. When you were present and we were talking, I personally picked up from the floor many cigarette butts.

2. Racks and pipes were all over the coolers. They were filthy and had not been cleaned for months. If I were a health inspector, I would have closed this plant down on the spot. We went around together and I pointed to you all of the above. I asked you why? NO COMMENTS were made on your part.

3. Many tins of cheese were lying around and I asked you why they were not repacked since all cheeses are extremely perishable and especially the Feta. Your answer was that they had just come in. I knew from the exterior condition of the tins that your statement was not correct. I went to the office and I found out that this merchandise came into the plant on June 6 and June 15, entry numbers 1864 and 1981.

I did not stay to see the condition of the cheese, but I am sure that in many of the tins part or all of the cheese is completely spoiled.

4. Similarly, in the small cooler, were two barrels laying around for months with the cheese completely spoiled. Despite my many warnings of the past, my letter, and my oral warnings in April, you did nothing! You obviously do not care about this company. Therefore, you leave me with no other alternative that to tell you that it is better, to seek other employment. Your services are not desired by this company as of Friday October 28, 1983.

Very truly yours,

KRINOS FOODS INC.

John Moscahlaidis

And then:

Notwithstanding the company's view that your employment has been termi­nated for a cause, enclosed you will find a cheque for the amount of eight weeks salary, less normal deductions, which is being given to you to fulfill the requirements of the employment standards act.

However, this payment is made gratuitously and without admission of liability either at law or under the said employments act.

The words at the end were typed on by Mr. Kanas on the advice of Toronto counsel.

6. All of the other grievors in this complaint were let go on November 30, 1983, when the jar-line on which they were employed was permanently closed down. The evidence of Mr. Moscahlaidis is that the jar-line was opened at the new Toronto plant as an experiment, but that it proved to be wholly uneconomical in the face of the cut-rate selling prices of the Toronto area. That evidence is not challenged by the complainant. Rather, the complainant submits that the respondent deliberately manoeuvred all of the union supporters on to the jar-line so that they would be the ones to go when the jar-line had to be closed down.

7. The case is a little unusual in that, from the time of the initial campaigning for the vote directed by the Board, the employees have been visibly split into two identifiable "camps". Particularly after the vote was lost by the union, the four female supporters of the union, all of them being grievors here, were snubbed by the other female employees and always ate their meals on their own. Mr. Kanas, the general manager, verified in his evidence that this visible split amongst the employees had taken place, and that he had been informed after the vote that Mr. Pantos and Mr. Segounis were supporters of the union as well. Mr. Kanas testified that he was not aware of any other employee falling within this group of union supporters, and that it "could be" that his own demeanor towards this group had changed as well. But notwithstanding this, and the fact that all of the grievors except Mr. Pantos (who had been fired) were the employees on the jar-line when it closed, the evidence simply does not bear out the complainant's theory that the grievors were deliberately manipulated into that position by the company. Mrs. Petrovic and Mrs. Robibera had been hired into these positions, as had Mrs. Morea, who was again recalled into that position in August of 1983. Mr. Segounis, another of the Union's group of supporters, had been designated from the outset as the "leader" in charge of the jar-line, and it was he, not the company, who directed Mr. Arana to report to the jar-line after the latter's recall in August. The recall of both Mrs. Morea and Mr. Arana to existing vacancies was pursuant to the terms of settlement of a section 89 complaint before the Board, and Mrs. Morea was recalled a short time after another female employee on the jar-line, Mrs. Marsili, was transferred to a vacancy in the fyllo department. The recall of Mrs. Morea was to be on the basis of seniority. Mrs. Marsili, the employee transferred to the fyllo line, has only marginally less seniority than either Mrs. Robibera or Mrs. Petrovic, and more than Mrs. Morea. The Board finds on the evidence that when the supervisor of the fyllo department, Mr. Alexakis, found that he needed another employee in his department, it was left to him to select "the best person available", and his choice of Mrs. Marsili was based solely on his own assessment of her, in accordance with company practice. Mr. Kanas was not involved at that initial point, but only became involved when he learned of the need to hire an additional employee for the jar-line. At that point, Mr. Kanas decided that Mrs. Morea should be recalled in accordance with the earlier terms of settlement. On all of the evidence, the Board does not find that the particular staffing of the jar-line as of November 30th was the result of anti-Union animus.

8. The complainant also challenges the fact that when the jar-line did come to be closed on November 30th, the employees there were not allowed to exercise their seniority to bump into jobs elsewhere in the plant. The complainant acknowledges that it is dealing with a non-union plant, but points to the terms of settlement of the section 89 complaint as recognizing with respect to the recall of Mrs. Morea and Mr. Arana the principle of seniority. On the evidence, however, that is not the way that lay-offs have historically been handled. Except when only a part of a department was being sent home, the lay-offs have always been by department, and no re-arranging of the work force by seniority has ever taken place. None of these prior lay-offs involved the permanent closure of a line, and hence are not equivalent to the present terminations, but they are the best indication available of how this company looks at the problem. We in general find nothing suspicious, therefore, in the way in which the lay-off of November 30th was handled; that is, with the whole department which had become redundant being the ones to be let go.

9. The one exception to this is the case of Mr. Segounis. Mr. Segounis had a great deal of experience in the respondent's operation, and generally had been used by the respondent to start up and to provide the leadership in particular areas of the plant. In light of his experience and apparent value to the respondent, the failure of the respondent to move Mr. Segounis elsewhere in the plant when the jar-line closed down requires further explanation. The evidence that Mr. Kanas gave was that in 1982 and early 1983 he had formed the suspicion that Mr. Segounis was stealing from the company, and was happy to have an excuse to lay him off in November, rather than have to confront him on the theft allegation. But no mention of this consideration was made in the company's lengthy reply to this complaint, nor at any time prior to Mr. Kanas giving his evidence. If in fact this suspicion was a consideration at all for Mr. Kanas, we do not accept his evidence that it was a significant one. Rather, we find it more consistent with the way other supporters of the union were treated after their lay-off (discussed infra) that Mr. Segounis' union affiliation was, consciously or otherwise, the controlling factor in Mr. Kanas' decision to lay Mr. Segounis off.

10. With respect to the other laid-off grievors, the company in December of the same year acquired a candy-line business from an outside family, and along with the members of that family, incorporated that business into its plant. When in January the former owners of the candy-line indicated to Mr. Kanas that they needed additional unskilled employees to cut and pack on that line, Mr. Kanas told them to go out and hire anyone they knew. As a result, a male employee was hired on January 11, 1984, and two females on January 23 and 30. Mr. Kanas conceded in his evidence that, in retrospect, there was no reason why the employees laid off from the jar-line could not have been re-hired to do that work, if Mr. Kanas had "turned his mind" to it. We find that the only reason why Mr. Kanas failed to "turn his mind" to it was his distaste for these former employees because of their support for the union. The company also hired a janitor and a cheese helper on March 19, 1984, both being jobs Mr. Kanas concedes Mr. Arana was capable of doing. Once again we find that it was Mr. Arana's union affiliation which stood in the way of Mr. Arana being considered.

11. The case of Mr. Pantos is more difficult. While the support of certain employees for the union we find was clearly a factor that was influencing Mr. Kanas, the concern over Mr. Pantos arose from Mr. Moscahlaidis, and it was clearly Mr. Moscahlaidis who decided ultimately to take the step of firing Mr. Pantos on his own. Mr. Kanas was the senior manage­ment official most directly associated with the Toronto employees and responsible for their actions; it is not inconceivable, therefore, that any sense of "betrayal" or resentment on the part of Mr. Kanas concerning the employees' efforts to bring a union into Toronto did not extend to the level of Mr. Moscahlaidis in New York.

12. Mr. Moscahlaidis' own evidence is that he had lived with a union in New York for many years, and was not overly concerned about the fact that efforts were being made to organize a union in Toronto, treating it rather as a matter for the manager responsible for Toronto to deal with. There is nothing in the evidence to suggest anything to the contrary. While the Board is not naive in assessing the response of employers to pending unionization, nothing the company did in April, when Mr. Moscahlaidis visited the location and the application had already been filed, demonstrated an anti-union animus on the part of Mr. Moscahlaidis. Rather, Mr. Moscahlaidis appears to have paid very limited attention to matters in Toronto prior to his departure for Europe, and left matters generally to be dealt with upon his return. Had the letter of January 11 not made it evident that Mr. Moscahlaidis' patience was finally running out, before any union organizing activity had taken place on the part of anyone, the timing of Mr. Pantos' discharge alone would have made it extremely difficult for the respondent to satisfy the reverse onus upon it. But that letter, together with the corroboration by various other employees who testified, including fellow grievors, of the problems Mr. Moscahlaidis had had with Mr. Pantos, the lack of any discernible anti-union reaction to the certification attempt on the part of Mr. Moscahlaidis himself, and the absence of any involvement of Mr. Moscah­laidis in the "tainted" handling of the other grievors by Mr. Kanas, persuades the Board to accept Mr. Moscahlaidis' explanation of why the letter of January 11th was not acted upon until September. The complaint with respect to Mr. Pantos is accordingly dismissed. The Board need not deal, therefore, with the respondent's argument concerning the complainant's delay of almost six months in characterizing the discharge of Mr. Pantos as an unfair labour practice and placing the matter before the Board.

13. The foregoing are the essential findings which the Board has been called upon to make with respect to liability in these proceedings. Counsel for the complainant suggested in argu­ment that once that were done, the parties themselves might be in the best position to work out the appropriate remedies which should flow. Given the number of grievors and the variations in their claims, that suggestion appears to us to have considerable merit, notwithstanding the substantial efforts already undertaken by the parties, in the absence of a definitive Board ruling, to settle this matter between them. The parties will accordingly be afforded an opportunity to agree upon the appropriate manner of implementing the effects of this decision, with the Board remaining seized in the event that the parties are not able to do so.