[1987] OLRB Rep. May 793

3326-86-FC United Steelworkers of America, Applicant v. Walter Tool and Die Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members I. M. Stamp and H. Peacock.

APPEARANCES: Keith Oleksiuk for the applicant; Erwin Walter for the respondent.

DECISION OF THE BOARD; May 1, 1987

1. In a decision dated March 27, 1987 regarding this application under section 40a of the Labour Relations Act, the Board wrote as follows:

1. This is an application under section 40a of the Labour Relations Act for a direction that a first collective agreement be settled by arbitration.

2. Having regard to all of the evidence and the submissions of the parties, the Board, pursuant to section 40a(2) of the Labour Relations Act, hereby directs the settlement of a first collective agreement between the applicant and the respondent by arbitration. Our reasons for this decision will issue at a later date.

Our reasons for issuing that direction are contained in this decision.

2. On June 6, 1986, the Board, differently constituted, certified the applicant as the bar­gaining agent for "all employees of the respondent in the City of Barrie, save and except foremen, persons above the rank of foreman, office, clerical and sales staff'. In an unreported decision dated June 6, 1986 concerning that certification application (Board File No. 0432-86-R), the Board wrote, in part, as follows:

2. This is an application for certification. Although both a complaint under section 89 of the Labour Relations Act and this application were before the Board at the hearing, the parties agreed that the Board should proceed first with the application for certification.

3. Mr. Erwin Walter, the representative of the respondent, made a preliminary motion by which he submitted that this application be dismissed. He reiterated the submissions made in his state­ment attached to the respondent's reply. He contended that the unique nature of the respon­dent's business, the composition of its work force and its training programs made union repre­sentation of the majority of its employees wholly inappropriate. After hearing the submissions from the respondent's representative, the Board invited comments from counsel for the object­ing employees. Following receipt of those submissions, the Board did not find it necessary to call upon counsel for the applicant and dismissed the motion made by the respondent.

6. Following the issuance of the Board's ruling with respect to the appropriate bargaining unit, the representative of the respondent indicated to the Board that while he accepted the Board's decision he wished to leave the hearing. The Board advised the respondent's representative that if he did leave, the Board would likely proceed in his absence, unless we were persuaded by him not to. The representative of the respondent agreed that the Board should proceed with this matter after he leaves. However, before leaving, the representative of the respondent asked leave of the Board to make the following statement to the Board at the hearing:

"As of June 15, 1986, Walter Tool and Die Ltd. will cease to exist and will only be consisting of the following employees: two set-up men, two material handlers, and one quality control person for the next period of one year to wind up all its affairs and to fulfill outstanding contracts in the production area. The tool room will continue to work for one year to fulfill its contracts as well as to finish off the apprenticeship of the last apprentice.

I myself will go thereafter in retirement and I am sorry that the jobs which could have been saved for Ontario and this country are lost. I do not believe that it is possible to work with a union affiliated unit because it is against my personal character to do so. I issue this statement now in order to save everyone in this room effort, time and mon­ey."

After making that statement, the respondent's representative withdrew from the proceedings.

10. The Board advised the parties present at the hearing that it appeared to the Board that 24 of the 34 employees in the bargaining unit as of the application date were members of the applicant as of the terminal date. Therefore, the Board was satisfied that more than fifty five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on May 23, 1986, the terminal date fixed for this application and the date which the Board determined, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

11. The Board then disclosed to the parties the number of persons who had signed statements in opposition to the applicant and the number of persons who had also signed statements with­drawing their statements in opposition and reaffirming support in the applicant. Counsel for the group of objecting employees asked for a brief recess. Upon counsel's return, counsel for the group of objecting employees advised the Board that after discussions with his clients, and after considering all of the evidence presented to the Board and the statements made by the repre­sentative of the respondent during the hearing, his clients had instructed counsel to withdraw their objection to the certification of the applicant. Counsel also suggested that the Board pro­ceed as it saw fit now that the objections to the certification in the applicant had been withdrawn by his clients.

13. In the absence of any submissions as to why the Board should exercise its discretion pur­suant to section 7(2) of the Act to order a representation vote, the Board advised the parties present that it was satisfied that it was appropriate in this case to certify the applicant. There­fore, a certificate will issue to the applicant.

3. The section 89 complaint referred to in that decision and a second section 89 complaint were heard by another panel of the Board on July 2, 1986. In its decision dated July 29, 1986 (re­ported in [1986] OLRB Rep. Aug. 1167) respecting those complaints (File Nos. 0580-86-U and 0632-86-U), that panel of the Board wrote, in part, as follows:

3. After hearing the evidence and the submissions of the parties the Board issued the following oral decision:

Having heard the evidence, the allegations and the submissions of the parties, the Board finds the respondents [Walter Tool and Die Ltd. and Erwin Walter] and each of them in breach of the Ontario Labour Relations Act and specifically sections 64, 66 and 70 thereof and the Board hereby so declares. In addition, the Board orders that the respondents:

(a) cease and desist from any and all further violations of the Act;

(b) post copies of the notice to be prepared by the Board, and which shall refer to the rights of workers and obligations of employers and specifically the duty of an employer to bargain in good faith and with the union and make reasonable efforts to achieve a col­lective agreement, in the usual places and to be delivered by the respondents by regular prepaid first class mail to all persons employed by the respondent as at May 15, 1986;

(c) grant the complainant reasonable access to the company's prem­ises during working hours for the purposes of holding one meet­ing with bargaining unit employees;

(d) pay to each employee who did not request a leave of absence in order to attend at the certification hearing on May 30, 1986 their

regular wages for that day;

(e) forthwith reinstate Earl Devoe to employment and to the posi­tion that he held at the time of his layoff on June 15, 1986 with compensation for all lost wages until the date of reinstatement, such compensation to include interest calculated in accordance with the Board's formula;

(f) forthwith reinstate Mike Leinweber to his employment and to the position that he held at the time of his layoff on June 6, 1986 or to a comparable position if that position is no longer available for just cause, with compensation for lost wages and benefits from the date of layoff to the date of reinstatement, such com­pensation to include interest calculated in accordance with the Board's formula;

(g) any compensation to be paid to any person is to be subject to deduction for mitigation by them.

The Board remains seized with any difficulty arising out of the implementation of its decision.

11. The only evidence heard by the Board was that of Mr. Walter who took the witness stand himself. Mr. Walter candidly and forthrightly admitted and accepted as correct the allegations made by the complainant in Appendix "B" of the complaint as amended. Set out in full, these allegations are as follows:

The complainant states that:

1. On May 12, 1986 the complainant submitted an application for certification for a bargaining unit of employees of the respondent.

2. On May 15, 1986 Steve Banks, an organizer for the complainant, received a call at approximately 9:45 a.m. from Erwin Walter, president of the res­pondent. Mr. Walter advised Mr. Banks that handicapped employees in the employ of the respondent would be terminated from employment and that temporary employees would be put on layoff. Other employees would be replaced by robots with any remaining employees to be put on salary. Mr. Walter also stated that he would build a plant in the United States of America and close the Barrie facility. Mr. Walter referred to the year 1971 stating that in that year a union organized his business in Toronto and that he closed the plant and sold it. Mr. Walter also advised Mr. Banks that he (Mr. Walter) was going to type a letter and take it to the employees to keep the union out by showing their objection to a union. In addition, Mr. Wal­ter made reference to obtaining the services of a lawyer and beating the union by stalling.

3. On May 15, 1986 Mr. Erwin Walter spoke to Mr. Steve Banks by phone at approximately 12 noon. At that time and in a subsequent telegram on May 15, 1986 to Frank Berry, staff representative of the complainant, Mr. Wal­ter advised the complainant that Mr. Walter intended to hold a vote of employees on May 20, 1986 without the involvement of the Labour Rela­tions Board.

4. On or about May 20, 1986 a letter signed by Mr. Walter was distributed to employees of the respondent. A copy of this letter is attached as Exhibit 1 to this Appendix.

5. On May 23, 1986 the respondent posted a notice in the workplace a copy of which is attached thereto as Exhibit 2 to Appendix" B". In this notice the respondent advised the employees that due to an Application for Certifica­tion the respondent was closing down production between It p.m. Thurs­day, May 29th and 11 p.m. Sunday, June 1st.

6. All bargaining unit employees of the respondent were laid off by the res­pondent without pay from May 29, 1986 at 11 p.m.

7. On or about May 26, 1986 at approximately 8:50 a.m., Mr. Erwin Walter spoke to several employees of the respondent in the lunchroom at the res­pondent's premises. Mr. Erwin told the employees gathered that he made enough money and could close the respondent's operation at any time.

8. On or about May 28, 1986 bargaining unit employees of the respondent were advised of a lay off effective June 8,1986.

9. On May 30, 1986 a panel of the Ontario Labour Relations Board convened in Boardroom C to hear the complainant's Application for Certification (Board File: 0432-86-R). The panel of the Board consisted of Mr. H. Freedman, Vice-Chairman of the Board, and members Kobryn and Wight­man. Before that panel of the Board and at approximately 2:45 p.m. on May 30, 1986, Mr. Walter who is a principal shareholder of the respondent and who served as the respondent's spokesman, told the Board that the res­pondent would cease to exist as of June 15, 1986, except for five production staff who would wind up the business and except for the "tool room", both of which would continue for one year to fulfill contractual and apprentice­ship obligations.

10. Mr. Walter further advised that the reason for his decision was that it was not possible for him to work with a union affiliated bargaining unit because it was against his personal character to do so.

The complainant alleges that the action of the respondent constitutes violations of sections 3, 64, 66 and 70 of the Labour Relations Act.

12. In addition, Mr. Walter openly stated that he would not negotiate or otherwise deal with the applicant or any other union, that he would reject any bargaining proposal made by the com­plainant, and that, if the complainant were to give up its bargaining rights the company would carry on operating as before and that if it did not the company would be closed down and the company's employees would lose their jobs. He specifically confirmed the statement made in a letter dated May 20, 1986, a copy of which was sent to all employees and to the complainant (Exhibit 6) that "the day a union is certified in Walter Industries [sicl I will cease to be associ­ated with the company in any capacity and will liquidate my investment." In addition, Mr. Wal­ter on several occasions stated that his position was "unshakable" and "immovable".

17. Having heard the evidence and the submissions of the parties, the Board has no difficulty in concluding that the respondents and each of them is in violation of the Act and specifically sec­tions 64, 66 and 70 thereof.

18. Stating publicly and directly to the employees that the respondents will not deal with the complainant or any other trade union, and indeed the company will close down unless the com­plainant abandons its bargaining rights and the bargaining unit employees, is a flagrant anti-union position.... There is no room in this province for such conduct or for such threats which are clearly contrary to both the letter and the spirit of the Labour Relations Act.

20. That the uniqueness of the company makes it unsuitable for collective bargaining was an argument made by the respondents in the certification proceedings before this Board to a differ­ently constituted panel (Board File No. 0432-86-R) where it was rejected. Having been previ­ously decided, this issue is not properly raised before the Board in the context of these com­plaints. There is, in any event, no merit to that argument for the reasons given in the earlier decision.

26. The Board has considered the assertions of the respondents that Mr. Devoe and Mr. Lein­weber were not laid off as a result of any anti-union animus in the light of the admissions that both of them were known to be union organizers, that they were laid off because of a shortage of work even though there was work available for them to do (indeed the very work that Mr. Devoe had been doing immediately prior to his layoff was, at the date of the hearing, being done by someone else) and the attitude of the respondents towards the applicant and trade unions in general as evidenced by the statements and admissions referred to above. It is com­mon in cases such as this for an employer to assert that a termination of employment, however labelled, was not motivated by any anti-union animus. Consequently, the Board is required to draw its own conclusions with respect to the employer's motivation and in so doing must draw inferences from the evidence, including any anti-union posture adopted by the employer. It is also clear that anti-union animus need form only a part of the motivation for the employer's actions (see Barrie Examiner, [1975] OLRB Rep. Oct. 745, DeVilbiss (Canada) Ltd., [1975] OLRB Rep. Sept. 678, Hallowell House Ltd., [1980] OLRB Rep. Jan. 35, Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755, among others). In addition, under section 89(5) of the Act, the onus is on the respondents to satisfy the Board that there was no anti-union animus. The respondents have failed to discharge that onus and, in any event, the Board is satisfied on the basis of the evidence before it that there was anti-union animus involved in the decision of the respondents to "lay off" both Mr. Devoe and Mr. Leinweber.

29. After the Board had rendered its oral decision, Mr. Walter made the statement that all that the Board had ordered would be done but that the Board had just shut down the Company. We are constrained to remind Mr. Walter that, upon being given notice to bargain, the Company is required to bargain with the complainant and make every reasonable effort to make a collective agreement. Furthermore, any intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or cease to be a member of a trade union or to refrain from exercising any other rights under the Labour Relations Act constitutes a violation of the Act and, if brought before the Board, will be dealt with appropriately.

4. The applicant gave the respondent written notice to bargain, pursuant to section 14 of the Act, by letter dated July 7, 1986 from Frank Berry, the applicant's Regional Representative who was the sole spokesperson for the applicant throughout the bargaining process. Mr. Berry also requested and obtained from the respondent a seniority list and information concerning existing wage rates and benefits. He also forwarded the applicant's collective agreement proposals to Mr. Walter for his perusal prior to the first negotiating session. The respondent, through Mr. Walter, accepted some of the provisions proposed by the applicant and proposed a number of amend­ments, additions, and deletions.

5. When Mr. Berry attended at the respondent's premises for the purpose of holding a meeting with the bargaining unit employees pursuant to part (c) of the Board order quoted above, Mr. Walter called him into his office and gave him a "Plant Employee Listing" which listed fifteen persons as members of management, two persons as apprentices, and eight persons as bargaining unit employees. During their conversation on that occasion, Mr. Walter told Mr. Berry that the fif­teen employees had all been made members of management and would not be in the bargaining unit. He also stated that the two apprentices could not be in the bargaining unit. He further indi­cated that five of the aforementioned eight persons could not be in the bargaining unit because they were mentally handicapped individuals who had guardians. With respect to the remaining three employees, Mr. Walter told Mr. Berry that although they were then in the bargaining unit, they would be management trainees excluded from the bargaining unit in 1987. After reviewing that list with Mr. Berry, Mr. Walter expressed the view that continued involvement with the res­pondent's employees would not be financially worthwhile for the applicant as it would not have any members. He also asked Mr. Berry, "Why don't you go away and leave me alone?"

6. After leaving Mr. Walter's office, Mr. Berry went into the plant and invited a number of employees who were operating machines to meet with him. Most of them declined by stating that they were members of management. Only five employees met with Mr. Berry, including one person whom Mr. Berry described as being "very vocally anti-union", some persons whom other employees identified as being mentally handicapped, and a summer student. The student suggested the names of two employees on the other shift as potential members of the union bargaining com­mittee. However, when Mr. Berry learned a few days later that the student had been discharged by the respondent, he decided not to have any employee volunteers participate with him in collective bargaining as he "felt it would jeopardize their jobs and lead to further complications". (We make no finding concerning the legality of that discharge, as that matter is not in issue before us in these proceedings.) Mr. Berry advised Mr. Walter of his decision, and declined Mr. Walter's offer of a second opportunity to meet with employees.

7. The first bargaining session was initially scheduled for September 11. However, Mr. Walter agreed to postpone it for five days at Mr. Berry's request. When they met on September 16, the parties reached agreement on some matters, but were unable to agree on a number of important items, including various aspects of seniority, union security, and the grievance proce­dure. They were also unable to agree on the respondent's proposal that apprentices be excluded from the bargaining unit and covered by a separate collective agreement. Another major point of contention was the applicant's proposal that persons excluded from the bargaining unit be pre­cluded from performing bargaining unit work. During discussions concerning those proposals, Mr. Berry indicated that he planned to consult with counsel concerning certain matters raised by Mr. Walter. However, Mr. Berry did not subsequently follow through with that plan. After Messrs. Berry and Walter had discussed their respective positions on September 16, Mr. Walter told Mr. Berry that unless the applicant was prepared to abandon its proposal that persons excluded from the bargaining unit be precluded from performing bargaining unit work, there could not be a col­lective agreement and there would be no sense in having any further bargaining sessions. Mr. Berry understood that to mean that the bargaining session scheduled for October 7 was cancelled. Accordingly, he did not meet with Mr. Walter that day.

8. After carefully considering the situation, Mr. Berry applied for conciliation on October

28. As a result of that application, Conciliation Officer J. Leonard was appointed to confer with the parties and endeavour to effect a collective agreement, pursuant to section 16 of the the Act. Mr. Leonard convened a conciliation meeting in Barrie on or about November 27. Mr. Walter was accompanied at that meeting by two employees, who gave Mr. Leonard a petition bearing nine sig­natures below the following sentence:

We the employees of Walter Tool & Die Ltd. demand to have a free and democratic representa­tion vote which was not given during the time of certification.

Mr. Walter then handed Mr. Leonard the following letter (on the respondent's letterhead), and stated that there would be no negotiations until after a representation vote was taken:

November 27, 1987

Attention: J. Leonard Mediator

Before we even start these contract negotiations and get involved in wasting tax payers money contrary to their wishes to live in a free and democratic society, I would like to make the follow­ing statement:

"Since the day that the first persons were approached to sign the union cards as well as during the hearing procedures for certification of the union local, it was shown very clearly that the union nor [sic] the ministry of labour was willing to have a free and democratic vote held by the employees of Walter Tool and Die. The employees approached me many times complaining that they do not have the finances to hire a lawyer and fight the labour relations board and the union.

As long as this representation vote is not held, I consider just as all employees within this com­pany the certification as illegal because it is imposed against the free will of the people.

If a vote is held and it is proven that the employees, by majority, wish to have a union then fair

open and honest negotiations will be guaranteed."

(signed) "Erwin F. Walter"

No bargaining occurred that day as Mr. Walter adamantly maintained the position that there would be no further bargaining until a representation vote had been taken.

9. In December, Mr. Walter, another member of management, and some of the employ­ees of the respondent formed a committee for labour law changes and sent a letter to various per-

sons in government requesting that the Labour Relations Act be amended to require that a repre­sentation vote be taken in all certification applications.

10. By letter dated December 17, 1986, G. R. Thompson, the Deputy Minister of Labour, advised the parties that the Minister had decided not to appoint a conciliation board. No further negotiations occurred between that time and the hearing of this application because Mr. Walter remained steadfast in his position that no bargaining would take place until a representation vote had been taken.

11. In opposing the applicant's request for a direction that a first collective agreement be settled by arbitration, Mr. Walter asserted that there can never be a collective agreement covering the respondent because of the uniqueness of its business. As noted above, that argument was con­sidered and unanimously rejected by the panel of the Board which heard and decided the appli­cant's certification application. It was also unanimously rejected by the panel which heard the aforementioned section 89 complaints. We are also of the view that this "uniqueness" does not in any way relieve the respondent of its legal obligations under the Labour Relations Act. Moreover, section 40a(2) does not give the Board a discretion with respect to directing the settlement of a first collective agreement by arbitration where the process of collective bargaining has been unsuccess­ful because of one or more of the conditions or circumstances listed in parts (a) to (d). That subsec­tion provides as follows:

The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the res­pondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

[emphasis added]

Thus, where the process of collective bargaining has been unsuccessful because of one or more of the conditions or circumstances listed in parts (a) to (d), section 40a(2) requires the Board to direct the settlement of a first collective agreement by arbitration. (See, generally, Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005; Mansour Rockbolting Limited, [1986] OLRB Rep. Oct. 1346; and Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Dec. 1628.)

12. In the instant case it is abundantly clear that, as contended by counsel for the applicant, the process of collective bargaining has been unsuccessful because of the refusal of the respondent employer to recognize the bargaining authority of the applicant trade union. As noted above, Mr. Walter candidly told the Board panel which heard the aforementioned certification application, "I do not believe it is possible to work with a union affiliated unit because it is against my personal character to do so." During the hearing of the aforementioned section 89 complaints, he openly stated before another panel of the Board that he would not negotiate or otherwise deal with the applicant or any other union, that he would reject any bargaining proposal made by the applicant, and that if the applicant did not give up its bargaining rights, the company would be closed down and the company's employees would lose their jobs. Any doubt which the respondent's acceptance pf some of the applicant's bargaining proposals may have created concerning the continuance of the respondent's refusal to recognize the bargaining authority of the applicant has been completely eradicated by the position adopted by the respondent, through Mr. Walter, in conciliation. As noted above, at the conciliation meeting convened by Mr. Leonard, Mr. Walter stated unequivocally that there would be no negotiations until after a representation vote was taken. Moreover, he continued to steadfastly maintain that position in the intervening period between that conciliation meeting and the hearing of this application.

13. In view of our conclusion regarding the applicability of section 40a(2)(a), it is unneces­sary for the Board to determine whether or not the respondent adopted an uncompromising bar­gaining position without reasonable justification, or failed to make reasonable or expeditious efforts to conclude a collective agreement.

14. For the foregoing reasons, it appeared (and still appears) to the Board, on the basis of all of the evidence and the submissions of the parties, that the process of collective bargaining has been unsuccessful because of the refusal of the respondent employer to recognize the bargaining authority of the applicant trade union. Accordingly, the provisions of section 40a(2) required the Board to direct the settlement of a first collective agreement by arbitration, as we did in the afore­mentioned decision dated March 27, 1987.