[1985] OLRB Rep. December 1810
3273-84-U; 3274-84-OH Communications, Electronic, Electrical Technical and Salaried Workers of Canada, Complainant, v. Super Plastics Corporation Limited, Respondent; Rasphal Kali Rai, Complainant, v. Super Plastics Corporation Limited, Respondent
BEFORE: Judge R. S. Abella, Chairman, and Board Members I. Stamp and W. F. Rutherford.
APPEARANCES: Elizabeth J. Shilton Lennon, Sheila McIntyre and Jeff Smith for the applicant; and W Thornton and W. Reszytniak for the respondent.
DECISION OF THE BOARD; December 20, 1985
These are complaints under section 89 of the Labour Relations Act and under section24 of The Occupational Health and Safety Act. There are two complaints before the Board, one alleging that the respondent violated sections 64, 66 and 71 of the Act, with respect to Harpal Dhaliwal and Jarnail Singh, and one alleging violation of section 24 of The Occupational Health and Safety Act with respect to Rashpal Kali Rai. These proceedings were consolidated at the commencement of the hearing on consent of the parties.
The union filed an application for certification on February 19, 1985. Notice of this application was posted on February 22, 1985, with the terminal date fixed for February 28, 1985. A certificate was issued by the Board on March 8, 1985. (File No. 3083-84-R). The conduct about which the union complains took place between February 22 and March 8,
The union alleges that Harpal Dhaliwal was laid off, and that Jarnail Singh had his overtime reduced for union activity; and that Rashpal Kali Rai was terminated for union activity and in contravention of The Occupational Health and Safety Act
Super Plastics manufactures garden hose and carpet runners. Its president is Walter Reszytniak, an employer who almost singlehandedly built up the company over 9 1/2 years and is actively involved in all aspects of the plant. He has a workforce of 88 employees, and the plant operates 24 hours daily with 3 shifts. Many of his workers are immigrants who have renewable work permits.
He learned of the union organizing campaign when the Form 6 arrived in the mail notifying him that an application for certification was before the Board.
Reszytniak was taken aback by the union campaign. In January 1985 he had held a meeting of employees to tell them what benefits, including a raise, OHIP and medical benefits he expected to be able to offer and was, as a result, both surprised and upset to learn that an application for certification was being brought. In his own words, he felt as if "someone hit me over the head with a hammer". He immediately sought legal advice and called a meeting of his plani manager, Frank Porto, his plant foremen Guillermo Pezzi, George Valdez, and Roshdi Soluman, and notified his shift supervisors. By his own admission he expressed his concerns about how the union would interfere with his ability to maintain flexibility and productivity. He wanted the employees to have "all the facts" before they decided on union representation, including the possible impact of unionization on his flexibility. He claimed in his evidence that although he wanted his employees informed, he did not specifically authorize any of his managerial staff to organize a petition against the union.
Harpal Dhaliwal
Harpal Dhaliwal was hired in October 1983 as a driver. He was on a work permit which was due to expire on March 5, 1985. His job was to pick up raw materials from other locations and to make deliveries of the finished products to local stores for consumer purchase. On average, he worked 55-60 hours per week and, until he was laid off on March 5, had never been off work at Super Plastics.
Dhaliwal, with Jarnail Singh and two other employees, was one of the key union organizers. On the weekend of February 16, these 4 employees visited other employees in their homes and obtained signatures on union membership cards. The application for certification was sent to the Board on Monday, February 18th.
At the end of his shift late in the afternoon of February 22nd, Dhaliwal went to see Reszytniak, as he usually did, to see if there was any other work to be done that day. During this brief conversation, Dhaliwal stated that Reszytniak asked him if he knew who had been responsible for the union organizing. Dhaliwal claimed not to know because, he said, he knew Reszytniak would not be in favour of the union and feared reprisals against employees who had joined. According to Dhaliwal, Reszytniak then told him that a union was no good, was harmful to companies, and that he did not want a union at Super Plastics.
On Monday, February 25, Reszytniak drove Dhaliwal to the garage to pick up his truck and asked him if he attended a meeting of the employees interested in the union over the weekend. When Dhaliwal said that he had been in Montreal and had missed the meeting, Reszytniak asked him if he had heard what had happened at the meeting. Dhaliwal replied that he was not very interested in unions.
On February 25th, in Dhaliwal's presence, Mike Kostick, a foreman, asked another employee, Wilfred MeCalla, to sign an anti-union petition. MeCalla refused, and Kostick asked Dhaliwal what he thought about the union. When Dhaliwal said he thought it was necessary, Kostick advised him that he had already collected 25 names for the petition and had been given the week off by Reszytniak to collect signatures for the petition.
The next day, Thesday, February 26, as Dhaliwal and Jarnail Singh were cleaning up beside the main office at the end of their afternoon shift, Reszytniak approached both of them, put his hands on their shoulders and confided that these two employees were his friends and like younger brothers to him. He urged them not to go against him and to speak to the other employees with whom he could not as easily converse because of language barriers, about how damaging a union could be. He told them that without a union, he could provide benefits and keep them busy all year round and asked them to "think it over".
On Wednesday morning, Dhaliwal went to the main office to discuss a work-related matter with Reszytniak. During this conversation Reszytniak reminded him that many of the employees were on work permits giving them permission only to work at Super Plastics. He asked Dhaliwal if he wanted to see those people unemployed. Dhaliwal replied that he did not, reminded Reszytniak that his own work permit expired on March 5, and asked if that meant he would not be getting a job letter to renew his permit. Reszytniak said he would have to think about it because there were so many changes to be made.
Dhaliwal then went to see the office secretary from whom job letters were, customarily, automatically given. He was told to come back later after she had had a chance to speak to Reszytniak. When he came back 3 hours later, the secretary told him Reszytniak wanted to speak to him before he got the letter. At the end of the day, he went to see Reszytniak who told him he did not know if he could give a letter because he did not know if there would be enough work. They then had a two hour conversation during which Reszytniak showed Dhaliwal a number of documents, including job evaluations and papers outlining proposed organizational and personnel changes, explained his concern that unionization would interfere with the ability to implement those changes, advised him that he might hire outside contractors to do Dhaliwal's work, suggested that since it was a seasonal business the plant might for the first time be closed summers with attendant layoffs if a union came into the plant, and urged Dhaliwal to call a meeting that day to speak to the employees about changing their minds and signing a petition against the union. Dhaliwal was told that they would discuss his job letter after he had tried to talk to the employees as Reszytniak had requested.
After this meeting, Dhaliwal talked to Jarnail Singh and they agreed to proceed with the certification application notwithstanding Reszytniak's suggestion. The next morning, Thursday, February 28, as Dhaliwal arrived at work at 7:30 a. in., he was approached by Reszytniak in the presence of George Valdez, a foreman and asked what had happened. When Dhaliwal said that the employees still wanted a union, Reszytniak told Dhaliwal that he had heard the contrary, and that his information was that only Dhaliwal and Jarnail Singh wanted the union.
On Friday, March 1, Dhaliwal requested the job letter twice from Reszytniak and was told the letter would be ready Monday. On Monday, March 4, Reszytniak was not at work, could not be reached at home, and had not left instructions for a letter to be prepared. One of the foremen, Frank Porto, suggested to Dhaliwal that he go to immigration the next day and have them call the office to confirm his employment status. At the immigration office the next day, the immigration officer phoned Super Plastics and as a result of what she was told, advised Dhaliwal that she could not issue a work permit to him. He personally called his employer and was told that Reszytniak was not there and that Porto was unavailable.
The next day, unable to work at Super Plastics without a permit, he applied for and was hired by another company as a driver. With this job letter, he returned to immigration where he was able to obtain an "open permit" which permitted him to work anywhere. On Wednesday, March 7, he returned to Super Plastics~ advised Reszytniak that he had an open permit and could work for him. He was told that the truck he had been driving was too expensive to repair and that contracts would henceforth be made with cartage companies to perform Dhaliwal's work. Reszytniak told him he had the option of working for 10 to 15 hours weekly or being laid off. Dhaliwal was laid off when he said he could not work only 10 or 15 hours per week.
Reszytniak admits talking to Dhaliwal about the union, admits that he confided his displeasure about the union to him, and acknowledges telling him that he hoped the employees "did the right thing". He stated that he had spent $6,000 during 1984 on repairs for the truck driven by Dhaliwal and that it made more economic sense to hire cartage companies who had their own drivers than to continue to repair the truck driven by Dhaliwal .Jarnail Singh
Jarnail Singh has been employed at Super Plastics since 1982 as a mechanic's helper on the day shift. He is on a work permit and is presently an applicant for refugee status. He is the assistant to the mechanic, Mike Kostick. Singh acknowledges that he and Harpal Dhaliwal were the key union organizers at Super Plastics and that he was responsible with Dhaliwal for getting other employees to sign union cards.
On Friday, February 22nd, when the Form 6 was posted at the plant, he was asked by Mike Kostick whether he knew about the union. Singh said that he did not want to participate in this activity. Kostick then went into Reszytniak's office eight or nine feet away and after an hour came out and said to Singh that the union was not good for the plant and that they did not want the union at Super Plastics. He also reminded him that he worked on a work permit and that Reszytniak issued the job letters. Singh replied that he had already signed for the union and that he believed that the union was better for the employees and would never go against the union. Reszytniak then came out of his office and said to Singh that he had no more overtime or any weekend work for Singh.
Singh used to work an average of 15 hours per week overtime. During the two week period ending February 9th, 1985, he had worked 38 hours overtime; during the two week period prior to February 23rd, 1985, he worked 20 hours overtime. After February 22nd, 1985, he was given no more overtime.
On Monday, February 25th, 1985, Singh was working alone in the machine shop early in the morning when Reszytniak approached him and asked if he knew anything about the union and who had organized it. When Singh said that he did not know who was responsible Reszytniak explained to him that the union was no good, that Singh would have to pay the union monthly dues, and that Reszytniak's plans for the operation of Super Plastics would be incapable of implementation if the union were certified. Singh replied that he signed for the union and that he had not changed his mind about joining the union.
On February 26th, 1985, he and Dhaliwal were approached by Reszytniak who requested that they phone people and get them to sign a petition against the union. Singh never had any further conversations with Reszytniak about the union.
Rashpal Kali Rai
Rashpal Kali Rai has been at Super Plastics since February 1980. He is a landed immigrant. He was first hired as a material handler and then in 1981 was assigned to the compounding machine. After one month working on this machine, he got sick. He was taken home from work by his brother and went to his doctor the same morning. He was away from work for one week and reported the accident to the Worker's Compensation Board. He obtained a letter from his doctor indicating that he was allergic to the fumes.
When Kali Rai returned to work, he showed his foreman, Pezzi, the doctor's letter. He was advised by Pezzi that if he took Worker's Compensation he would be fired. As a result, Kali Rai did not send anything further to Workers' Compensation. He did, however, advise Pezzi that he was allergic to the compounding machine and as a result Reszytniak told Kali Rai that he would no longer have to work at the compounding machine. He was then assigned to the knitting machine where he worked until June of 1984.
To the best of Kali Rai's knowledge there were no other accidents with respect to the compounding machine except one incident in 1983 when it was his understanding that an employee named Ajit Dewal was sick for one month as a result of working on the compounding machine.
In June of 1984, at his own request and with the consent of Reszytniak, Kali Rai was off work for several months to enable a friend of his to work at his job for a period of five months. When he returned in November of 1984, he worked on the tow motor and assisted on the needle machine.
Between 1981 and 1984 he occasionally worked on the compounding machine but only for periods of ten or fifteen minutes while other workers were on breaks.
On January 7th, 1985, there was an accident at Super Plastics resulting from fumes. Five employees were taken to the hospital as a result of this accident and an Occupational Health and Safety Inspector was called. The plant was closed for one and a half shifts until the inspection had been completed and the problem rectified. During the inspection, the compounding machine was not in operation and, as a result, there is no reference to it on the report of the Occupational Health and Safety Inspector. It was Kali Rai' s observation that the accident was caused by the compounding machine, but the Company's position is that it was in fact caused by the tow motor which was repaired. Kali Rai was not injured in the accident of January 7th, 1985.
Shortly after the accident, Kali Rai was advised by Porto that he had to come to the office and was told that he was a member of the Occupational Health and Safety Committee. This Committee had no meetings but he was told to sign some papers.
Kali Rai never saw any of the reports of the Safety Inspector, nor did any of the other employees called to give evidence by the union. None of the employer's witnesses could recall whether or not the reports were posted and the employees were never notified officially as to the cause of the accident.
On Monday, February 25th, 1985, Kali Rai was approached by Kostick as he started his morning shift. Kostick asked him if he knew about the union and Kali Rai said that he did. Kostick asked him if he had signed a union card and Kali Rai replied that he had.
On Tuesday, February 26th, 1985, he was informed by Pezzi as he started his morning shift that he had to work on the compounding machine. When Kali Rai reminded him that he had gotten sick in 1981 from working on the compounding machine, Pezzi did not respond. Kali Rai told him that he works only on the tow motor and knitting machines and did not want to work on the machine that had made him ill. Pezzi simply responded that he was obliged to work on the compounding machine and when Kali Rai asked him why they weren't using the regular worker on that machine, he was told by Pezzi that she had to do other work that day. Pezzi and Kali Rai got into an argument during which Pezzi advised him that if he refused to work on the compounding machine, he would be terminated. As 10:00 that morning he came to talk to Reszytniak and requested his job back. Reszytniak's secretary advised him that Reszytniak did not have time to talk to him and he was given a separation slip indicating that he had quit. When he attempted to argue with the secretary that he was fired rather than quit, she simply handed back his separation slip to him. He was not able to speak to either Reszytniak or any foreman about the reasons for his termination. It was Kali Rai's perception that he was fired because of union membership and that Reszytniak was responsible for the firing because all such decisions in the plant were made by Reszytniak. Zorawar Singh
Zorawar Singh has been at Super Plastics since February 1981 as a general labourer. He became a knitting machine operator six months later and was continued on that job. He is on a work permit. He knew from Jarnail Singh that there was a union being organized and he signed a union card. He was a night shift worker.
On Friday, February 22nd, and almost every day the following week, he had conversations with George Valdez, a foreman. Valdez explained to him that since he was the senior worker on the night shift, his influence was strong with the other employees. Valdez asked him to sign a petition so that everyone on the night shift would sign. He was told that if there was no union he would get more overtime work and a raise. Zorawar Singh refused to sign the petition, and advised Valdez that the union organizers were his friends and he refused to go against them.
On Monday, February 25th, he arrived at work close to midnight and encountered Valdez. Valdez advised him to go next door to the machine shop because someone wanted to talk to him. He and the seven employees he arrived at work with went to the machineshop where Kostick and Piara Singh were conducting a meeting. Piara Singh asked the workers to sign the petition but was told by the workers that they were not interested in talking to him about it and went back to the plant. Sometime later that night Valdez approached Zorawar Singh and asked him to go to the main office with him. In the office, Valdez, Kostick and Piara Singh were present and asked him to sign a petition. He advised them that he had already indicated that he refused to sign and asked them not to bother him anymore. He went back to work and observed that four or five other night shift employees were called into the office one at a time.
Zorawar Singh's work permit was due to expire on February 28th, 1985. When he asked Pezzi, his foreman for a letter, Pezzi said he would talk to the secretary about it. It is Kali Rai '5 evidence that he was given a letter from the secretary regarding Zorawar Singh's work permit before February 26th, but that it was taken away from him by Valdez. When Zorawar Singh reminded Valdez that he had been told by Kali Rai that Valdez had his job letter, Valdez told him that Reszytniak had said that he would have to get the letter from the office. Zorawar Singh refused to go to the office because he thought that if he went, Reszytniak would make him sign a petition.
As a result of the exchange with Valdez, he called the immigration office and was informed that he no longer needed a job letter if he was still working at Super Plastics.
On February 27th, 1985, Reszytniak advised Zorawar Singh that he would not give him a job letter because there was no more work for him. He accused him of being misguided by the union organizers and of following them blindly. Reszytniak, according to Zorawar Singh, was very angry during this conversation.
On February 28, 1985, he went to the Immigration Office and got a work permit notwithstanding the absence of a job letter. On Saturday morning he was called into Reszytniak's office and was advised by him that there was no more work for him. When he told Reszytniak that he had a work permit anyway, Reszytniak advised him that it made no difference whether he had a work permit, that as the owner of the company it was his decision as to who his employees were, and advised him to attend at the office for a separation slip. That morning he did attend at the office and obtained his separation slip which shows the reason for the lay-off as being "shortage of work".
Two weeks later he was recalled to work and the union has accordingly abandoned its application with respect to Zorawar Singh. It was Zorawar Singh's feeling that he was being laid off because of his union activities, since out of the six men working on knitting machines, only one had more seniority than he, yet he was the only one laid-off.
On the basis of all the evidence, it is clear that Reszytniak objected to the union being organized at Super Plastics. The issue before the Board is whether his conduct went beyond the parameters of an employer's right to express his or her opinion about the existence of a union. After observing the demeanour of the witnesses and hearing their evidence, where there was conflict, the Board found the evidence of the complainant more credible than that of the respondent.
Most of Reszytniak' s work force were on work permits. There is no doubt from the evidence that Reszytniak and his foremen knew who the key union organizers were, and that they were unhappy about their refusal to cooperate in Reszytniak's wish that the organizing campaign be stopped. Although several of the employees at Super Plastics had work permits which were due to expire around the time of the organizing campaign, the only people whose work or terms of employment were affected, were those Reszytniak and his foreman were able to identify as being key union supporters. Knowing the fragility of the work permit situation and the determinative role Reszytniak played in the renewal of such permits, pressure was applied on these employees to attempt to dissuade them from union membership on threat of losing their jobs or overtime. It must be concluded that it was no mere coincidence that Harpal Dhaliwal, Jarnail Singh, and Rashpal Kali Rai were dealt with in the way that they were. Given the timing of their termination, lay-off, and the refusal to permit overtime work, there can be no conclusion other than that this conduct was motivated by an anti-union animus on the part of the employer. Nor can there be any doubt that Reszytniak was fully aware of the conduct of his foremen in attempting to stop the union and that he condoned their activities.
Although there was undoubtedly a problem with the truck driven by Harpal Dhaliwal which resulted in expenses to Super Plastics, there was no evidence from the employer to show that the use of cartage companies to replace Dhaliwal was in fact a cost saver. On several occasions in the previous year, the truck had broken down and Dhaliwal was used to other capacities by Super Plastics. In addition, there had been conversations between Reszytniak and Dhaliwal in which proposals were made to purchase another truck for him. When an employer attempts to rely on the defence of shortage of work to justify conduct which can otherwise be tainted by the possibility of anti-union animus there is a burden on the employer to show that the conduct is more consistent with the economic factors than it is with the anti-union animus. In this case, we are satisfied that the economic factors were not the main reason for Dhaliwal's lay-off, but that the pattern of the employer's conduct during this two week period indicated it was more consistent with the wish to prevent the union from being certified and to punish those who were responsible for its introduction at Super Plastics.
Similarly, this pattern of conduct, including the organization of a petition with several days off work being given to plant foremen to organize the anti-union campaign, points to an anti-union animus in the suspension of overtime work for Jarnail Singh. Although there is no question that overtime was substantially reduced for all employees for a two month period at Super Plastics, nontheless Jarnail Singh was the only one who was offered no overtime notwithstanding the fact that he had been an employee who had worked more overtime than most at the plant.
It is not clear from the evidence whether the accident on January 7th at Super Plastics which resulted in the intervention of the Occupational Health and Safety Inspector was caused by the compounding machine. Nonetheless, it was Kali Rai's perception that the compounding machine was in fact responsible. Moreover, he had himself been injured by this machine in 1981 and as a result had not been required to do a full shift on this machine since then. He reasonably assumed that the compounding machine was damaging to his health, and was therefore entitled to refuse to work at this machine. The employer, knowing of his previous accident, was not entitled to insist that he undertake work which he knew was potentially damaging to Kali Rai ' s health. It is clear from the evidence that there was no Occupational Health and Safety Committee at the plant which was in any way functional and that employees were not advised of their rights under the Act. Nor were any measures formally taken by any Committee at the plant to ensure the implementation of the Occupational Health and Safety Act. Having identified Kali Rai as one of the union supporters, and notwithstanding that the company had accommodated his health concerns by alleviating him of the responsibility of working at the compounding machine since his accident in 1981, there can be no other conclusion but that the company was attempting to punish him for his union membership in violation both of the Labour Relations Act and of the Occupational Health and Safety Act.
The parties had indicated at the commencement of the hearing that should the Board find a violation of the Act, they wished the opportunity to make representations to the Board as to remedies and damages. This panel will therefore remain seized of this case to permit the parties to make their submissions if they are unable to agree.
The Board having concluded on the basis of all the evidence and the relevant case law cited by counsel, that the employer did not discharge his onus under section 89 to satisfy the Board that the allegations were due to other than an anti-union animus, the Board hereby finds that Super Plastics Corporation Limited has contravened sections 64 and 66 of the Labour Relations Act as well as section 64 of The Occupational Health and Safety Act.