[1988] OLRB Rep. August 740

2820-87-U United Steelworkers of America, Complainant v. Canadian Feed Screws Manufacturing Ltd. and Chris Vasilev, Respondents

BEFORE: Patricia Hughes, Vice-Chair, and Board Members D. G. Wozniak and K. V. Rogers.

APPEARANCES: Keith Oleksiuk and Brando Paris for the complainant; T. Churchmuch and Chris Vasilev for the respondents.

DECISION OF THE BOARD; August 12, 1988

1. The complainant in this matter, the United Steelworkers of America ("the union" or "the Steelworkers"), alleges that the corporate respondent Canadian Feed Screws Manufacturing Ltd. ("the company" or "Canadian Feed Screws") and the individual respondent, Chris Vasilev ("the employer"), contravened sections 3, 64, 66 and 70 of the Labour Relations Act ("the Act") by terminating the employment of Victor Legaspi and John Tissoon, by the holding of a meeting attended by all employees at which Mr. Vasilev discussed the union and, by amendment granted by the Board at the beginning of the second day of hearing (July 12, 1988), by Mr. Vasilev's assaulting Larry Tapatie, a member of the union's negotiating committee, on the picket line. Dur­ing his testimony, Mr. Vasilev stated that he had asked some of his employees whether they has signed union cards; we have also considered whether such conduct contravenes the Act.

2. The allegations relating to the terminations and the meeting were initially filed in sup­port of the request under section 8 which the union filed with its certification application on Janu­ary 15, 1988. In the event, the union enjoyed the support of 66% of the relevant employees and was certified without a hearing as a result of the parties' signing a waiver of hearing. The allega­tions then proceeded as a separate section 89 complaint. On the first day of hearing, a differently constituted panel made a preliminary ruling only (see decision dated June 30, 1988); evidence and submissions on the merits thus commenced on the second day of hearing before us.

3. Mr. Vasilev is the President and owner of Canadian Feed Screws which has been in operation since November, 1975. On February 8, 1988, the Steelworkers were certified to repre­sent the company's employees (the bargaining unit description was not put before us, but it appears to include the production employees). At that time there were forty-five employees in the unit; at the time of the second day of hearing, there were thirty-seven. Two employees, the subject of this complaint, had been terminated; six other employees, about whom there were neither alle­gations nor other evidence before us, were laid off. Approximately two weeks prior to the continu­ation of the hearing, the union began a strike against the company which was still in effect and which gave rise to the allegation of an assault on the picket line the prior Friday, July 8,1988.

4. The Board's consideration of the allegations in this case are subject to the analysis set out in The Barrie Examiner, [1975] OLRB Rep. Oct. 745, at para. 9:

9. The location of the onus of proof is an important consideration in cases such as this one. The reasons, or reason, behind the discharge of an employee occurring in the context of union activ­ity are best determined by an examination of the objective circumstances surrounding the dis­charge. In other words, the circumstantial evidence surrounding the discharge must be exam­ined and inferences drawn from that evidence. There are two competing inferences that can be drawn - either that the discharge was for some reason totally unrelated to the presence of union activity at or around the time of discharge. The Board must determine which of the two infer­ences is the more probable.

(Also see Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299: "Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by com­mg forth with a credible explanation for the impugned activity which is free of anti-union motive and which the evidence establishes to be the only reason for its conduct".)

5. The picket line incident occurred when Mr. Vasilev was leaving the plant at or near the end of the day. In his car were three employees who had crossed the picket line to go into work during the strike. At the same time, a van driven by the plant manager, Mike Boris, also contain­ing employees who had crossed the picket line, was in the process of leaving the plant. Both vehi­cles stopped.

6. Mr. Vasilev' s version of events subsequent to that point and the union's version, as tes­tified to by Mr. Tapatie and two other employees who were on the picket line at the time, differ in several aspects. No other witness testified with respect to this allegation on behalf of the respon­dents. Generally speaking, we prefer the testimony of the union witnesses on this issue. Taking their evidence, and that of Mr. Vasilev, into account, we find that the picket line incident occurred in the following manner.

7. Mr. Vasilev motioned Mr. Tapatie to come to his car; Mr. Tapatie, in turn, motioned Mr. Vasilev to come to the picket line. Mr. Vasilev did so and pushed his body against Mr. Tapa­tie's who took up the challenge by giving Mr. Vasilev a strong push which knocked Mr. Vasilev backwards two or three feet. Mr. Tapatie weighs 225 pounds and is a strong man to all appear­ances. Mr. Vasilev, on the other hand, while shorter and lighter than Mr. Tapatie, is wiry in frame and was a championship boxer in his native Yugoslavia. Mr. Vasilev recovered and stepped up very close to Mr. Tapatie's face. The latter, unable, it seems, to resist the opportunity, kissed his employer's nose. (On this point, we note that Mr. Vasilev told us that Mr. Tapatie bit his nose and permitted us to examine his nose for damage. We were unable to see any scratch or scar whatso­ever.) At this point Mr. Tapatie told Mr. Vasilev to "fuck off'. It is common ground that Mr. Vasilev then swung at Mr. Tapatie, making contact with the latter's jaw, causing considerable pain and probably dislocation, and knocking his glasses off. Mr. Vasilev returned to his car and it and the van turned around and left the plant property by another exit.

8. There had also been an incident the day before in the union's trailer when Mr. Vasilev and some of the striking employees, including Mr. Tapatie, had engaged in a discussion about the Tyson-Spinks fight. It is not unusual for Mr. Vasilev to regale the employees with stories about boxing. He suggested he could show the employees how strong a punch could be by knocking a cig­arette out of Mr. Tapatie's mouth. When this suggestion was rejected, he punched the trailer wall, an action described as "joking" by an employee. The mood in the trailer was described by the unton wttness as "friendly" and "alright" and Mr. Vasilev's conduct there is not alleged to be nor does it appear to be a contravention of the Act.

9. In considering whether the picket line incident constitutes a violation of the Labour Relations Act, we take into consideration the reciprocal frustration and irritation these two individ­uals feel towards each other, the reciprocal provocation, the Thursday trailer incident and the sta­tus of Mr. Tapatie as a high profile union official. We find this altercation occurred between two persons of strong personalities who are not on speaking terms. It does not, however, constitute a violation of the Act. We do not believe that this escalating incident which culminated in a punch by the employer is a threat within the meaning of clause 66(c) or section 70 of the Act or violates any other section of the Act. We emphasize that in reaching this conclusion on the facts of this case, we do not wish to be taken to condone the conduct of either participant. Nor do we wish to be taken to be saying that violence by the employer towards persons on the picket line would not raise a very serious suspicion that it was meant to intimidate those employees. But is must be recognized that incidents do occur between individuals who, although coincidentally on opposing sides in a strike, simply irritate and provoke one another. That is what happened here.

10. The termination of Mr. Legaspi must be assessed in light of the events of January 8th, 9th and 13th. By his own admission, Mr. Vasilev terminated Mr. Legaspi on January 8, 1988, for the sole reason that he joined the union. That is clearly a violation of ihe Act. Within two hours, he regretted his action and called Mr. Legaspi, apologized and asked him to come back to work. Mr. Legaspi returned. The next day Mr. Vasilev held the meeting, told the employees that he had fired Mr. Legaspi, why and that he had rehired him. Only one week later, the employer fired him again, this time, he says, because Mr. Legaspi was slow and his work not up to standard. Mr. Legaspi was on probation and since Mr. Vasilev needed to cut his workforce, he chose Mr. Legaspi as an employee whom he was not likely to recall and fired him rather than laying him off. On the advice of his lawyer, Mr. Vasilev sent a telegram dated January 29, 1988, to Mr. Legaspi offering him reinstatement and back pay with interest. Mr. Legaspi had another job, where he is still employed, and did not accept the offer.

11. Even accepting that there was some basis in the quality of his work for selecting Mr. Legaspi for termination in light of a slowdown, Mr. Vasilev has not convinced us that he was not still reacting to the anger and frustration he felt when he found out that Mr. Legaspi joined the union. Nor have we been disabused of our concern that Mr. Legaspi's dismissal and subsequent rehiring were intended as an example to the other employees. On January 7,1988, on the employ­er's own words, there was no reason to let him go; yet only a week later, Mr. Vasilev was so sure he would not recall Mr. Legaspi because of the poor quality of his work that he did not lay him off, but fired him. Mr.Vasilev's explanation does not rebut the inference we draw from that sequence of events and we find that Mr. Legaspi's termination constitutes a violation of the Act as being in part motivated by anti-union considerations (see Pop Shoppe (Toronto) Limited, supra). We did not have submissions or evidence going to a departure from the Board's normal remedy with respect to terminations for violation of the Act. We therefore direct that the respondents reinstate Mr. Legaspi and compensate him for monies lost through their violation of the Act.

12. The firing of Mr. Tissoon is somewhat more difficult. He was not an active union organ­izer. Nor was he one of the employees whom Mr. Vasilev questioned about signing a union card, although he might have found out that Mr. Tissoon had signed a card from other sources (there was no evidence that that was in fact the case, however). But it is difficult to avoid the implications of the timing of Mr. Tissoon's termination: the same day as Mr. Legaspi and a mere week after the meeting. Therefore, even though we are satisfied that Mr. Vasilev had concerns about Mr. Tis­soon's work, we are not satisfied that the firing of Mr. Tissoon was not intended to show the employees during the union's organizing campaign they were vulnerable to loss of employment. Reinstatement and compensation are appropriate remedies.

13. The day after firing Mr. Legaspi the first time, Mr. Vasilev, after staying at the plant all night to think about the appearance of the union in his plant, called a meeting of employees who were told to go to the cafeteria as they arrived for work at 7:30 a.m. on January 8, 1988. Mr. Vasi­1ev, the owner, and Mr. Boris, the plant manager, both addressed the meeting. The employer says that he wanted to know what he had done wrong; he told us that he no longer felt the sense of betrayal and frustration he experienced when he found out about the union the day before. He said he no longer believed the union was organizing his employees because he was considered a "bad man". In order to find out why the union was organizing, he says, he directed that Trevor Whittaker, one of the main organizers, be called to the meeting from his home where he was on compensation for an injury. Mr. Whittaker, having called the union, went to the meeting but did not arrive until possibly the halfway point.

14. Part of the meeting involved Mr. Vasilev's and Mr. Boris' addressing the employees and part involved the employees' telling him what problems they had in the plant or with their working conditions, such as inadequate ventilation, being deducted half an hour's pay when late, not being paid for coffee breaks, and lack of training, safety concerns and so on. Overall, with respect to the union, the employees were given a mixed message. Mr. Vasilev told them there was no money for a raise in pay, even if the union was successful. He also related a previous conversation in which he had said he would close the plant down if the union was successful, but said he had changed his mind. He explained he had fired a man the previous night - Mr. Legaspi - but then recognized he was wrong and rehired him; he apologized to him again in front of the employees at the meeting. But he also told the employees that he was an immigrant, as it seems, are many of them, and had never joined the union. He made it clear he had put a great deal into his company and suggested that the employees could have him or a union. On the other hand, he said if the union could increase production, he would join it himself (it was pointed out to him that as management, he could not). He informed the employees (incorrectly) that 90% of Canadian businesses are union­ized and are successful. He suggested that a union might help them deal with some of their prob­lems, such as deductions when late and unpaid coffee breaks. He made it clear that he had opposed the union in the past and gave an ambiguous message about his feelings as the time of the meeting. Most importantly, he identified union members such as Mr. Legaspi, and organizers, such as Mr. Whittaker, and required the latter to justify their actions. In our view, the meeting consti­tutes a violation of the Act as an interference with "the formation, selection or administration of a trade union or the representation of employees by a trade union" under section 64 of the Act. We observe in regard to Mr. Vasilev's reason for calling the meeting that such motive is irrelevant: "[i]nterference, whether deliberate or inadvertent, whether well-intentioned or ill-intended is interference": Nalco Boats Manufacturing, [1976] OLRB Rep. Nov. 710. We add that the same is true of ambivalent or erratic interference. Similarly, in our view, the conduct must be assessed at the time it occurred and it is irrelevant that the union was able to sign up 66% of the employees: interference does not have to be successful to constitute a violation of the Act.

15. Finally, Mr. Vasilev admitted that he had telephoned employees and asked them if they had joined the union; he asked Mr. Legaspi not only that, but also who the chief organizer was. Subsection 111(1) of the Act protects the confidentiality of records "that may disclose" whether a person is a member of a union or not or wishes to be represented by a union or not; it also states that

no person shall, except with the consent of the Board, be compelled to disclose whether a per­son is or is not a member of a trade union or does not desire to be represented by a trade union.

Underlying the application of subsection 111(1) is the Legislature's intent to safeguard the identity of persons who support the union and the identity of persons who oppose the union. Employees' belief that their preference is free from scrutiny by either the employer or the union is integral to the free choice with respect to union representation contemplated by the Preamble to the Act. The significance of that protection is obviously lost if employers may ask employees whether they have joined.

16. Counsel for the respondents conceded that Mr. Vasilev's asking employees whether they had signed a union card, constituted a violation of the Act, but argued we should not find a violation because the union had not alleged such a violation and because the information gained was "not used to the detriment of any employee in the unit". Since Mr. Vasilev voluntarily admit­ted that he had made the calls, the failure of the union to make the specific allegation is not an issue. As for whether the information was used to the detriment of the employees, Mr. Legaspi found himself fired solely for that reason and even though he was rehired, neither he nor any other employees, could be sure that once Mr. Vasilev had time to consider the matter again, the same thing would not recur. In any case, in our view, the mere asking of employees whether they had signed a union card, regardless of the answer or the effect, constitutes a violation of the Act.

17. On the basis of the foregoing, the allegations that the respondents violated the Act with respect to the picket line incident are dismissed. Also on the basis of the foregoing ,we declare that Chris Vasilev and Canadian Feed Screws Manufacturing have violated sections 64, 66 and 70 of the Act by the firing of Victor Legaspi on January 13, 1988; the firing of John Tissoon on January 13, 1988; the holding of the meeting on January 8, 1988; and by Mr. Vasilev's asking employees whether they had joined the unton.

18. We hereby direct that the respondents

(a) cease and desist from contravening sections 64, 66 and 70 of the Act;

(b) reinstate and compensate Victor Legaspi and John Tissoon for all lost wages and benefits sustained by them as a result of his firing on January 13, 1988, with interest thereon in accordance with Practice Note 13;

(c) permit the Union to hold a meeting with the employees in the bargaining unit in the cafeteria of the corporate respondent, within two weeks of this decision, such meeting to be held for a period of one hour during each shift without interference by or the presence of the respondents, including any member of management;

(d) post copies of the attached notice, marked "Appendix" after being duly signed by Chris Vasilev, on behalf of himself and the corporate respondent, in conspicuous places on the premises of the corporate respondent, for a period of sixty days, take reasonable steps to ensure the notices are not altered, defaced or covered with other material and give a representative of the union reasonable access to the premises for the purpose of ensuring the respondents have complied with this posting requirement.

19. We remain seized with respect to the amount of compensation owing Mr. Legaspi and Mr. Tissoon if the parties cannot reach an agreement.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LAROUR RELATIONS BOARD IN WHICH THE BOARD FOUND THAT WE HAD VIOLATED THE ONTARIO LABOUR RELATIONS ACT BY FIRING VICTOR LESASPI ON JANUARY 7, 1988 AND JANUARY 13, 1988, BY FIRING JOHN TISSOON, BY ASKING EMPLOYEES WHETHER THEY HAD SIGNED UNION CARDS AND THE IDENTITY OF UNION ORGANIZERS AND BY HOLDING THE MEETING OF EMPLOYEES ON JANUARY 8, 1988.

ALL EMPLOYEES ARE GIVEN THESE RIGHTS BY THE LANOUR RELATIONS ACT:

To ONGANIZE THEMSELVES;

TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY OF THESE THINGS

To REFUSE TO DIVULGE TO ANYONE, INCLUDING THEIR EMPLOYER, WHETHER THEY HAVE SIGNED A UNION CARD OR TO DIVULGE TO ANYONE, INCLUDING THEIR EMPLOYER OF THE UNION, WHETHER THEY OPPOSE THE UNION.

WE ASSURE OUR EMPLOYEES THAT:

WE WILL NOT INTERFERE WITH THESE RIGHTS;

WE WILL REINSTATE VICTOR LEGASPI AND JOHN TISSOON AND PAY COMPENSATION TO THEM FOR THE LOSSES THEY SUSTAINED WHEN WE VIOLATED THE ACT;

WE WILL PERMIT THE UNION TO ENTER THE PLANT IN ORDER TO HOLD A MEETING WITH THE EMPLOYEES IN THE CAFETERIA FOR A PERIOD OF ONE HOUR ON EACH SHIFT WITHIN TWO WEEKS OF THIS DECISION WITHOUT ANY MEMBER OF MANAGEMENT BEING PRESENT OR INTERFERING IN SUCH MEETINGS.

CANADIAN FEED SCREWS MANUFACTURING LTD.

PER:

PRESIDENT

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 80 consecutive working days.

DATED this 12^th day of AUGUST, 1988.