Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 91 v. Nepean Bus Lines Inc., 1990 CanLII 5668

Ontario Labour Relations Board

[1990] OLRB Rep. March 295

2304-87-R; 2305-87-U Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 91, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. Nepean Bus Lines Inc., Respondent; Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 91, affiliated with the International Brotherhood of teamsters, Chauffeurs, Warehousemen and Helpers of America, Complainant v. Nepean Bus Lines Inc., Respondent v. Dave Loney, Objector

BEFORE: S. A. Tacon, Vice-Chair, and Board Members F. C. Burnet and P. V. Grasso.

DECISION OF S. A. TACON, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO: March 14, 1990

1. In a decision dated May 31, 1989, the Board certified the applicant pursuant to section 8 of the Labour Relations Act. Further, the Board found that the respondent had violated the Act in firing four employees (Bill Pilon, Paul Zakutney, Chris Chretien and Mike Bigras) and in not retaining Jean Jahn for some reasonable period to train her replacement; the Board directed the appropriate relief while remaining seized to deal with any disputes arising out of the implementa­tion of the award. The Board's reasons for its decision and the Board's disposition of the remaining allegations were to be dealt with at a later date. As the Board noted, insofar as the improper termi­nations involved continuing liability and insofar as the hearing consumed many months, the Board regarded it as appropriate to issue its decision in a "bottom line" form. Further, in the Board's view, the issuance of a certificate to the applicant would enable the parties to commence their col­lective bargaining relationship without additional delay.

2. The Board subsequently was notified by the applicant that the union wished to withdraw the remaining allegations; the respondent did not object. Accordingly, those remaining allegations were withdrawn. Moreover, the Board expressed the view that no useful purpose would be served by the issuance of the Board's reasons for its earlier decision. Either party could request such reasons within a stipulated period. The applicant did request the reasons for the Board's certi­fication decision and the Board hereby gives its reasons.

3. The Board does not regard it as necessary to set out the able and thorough submissions of counsel. Further, the Board has not attempted to recount in detail the evidence given over the many days of hearing. Rather, only those facts relevant to the Board's conclusions are recounted together with those matters critical to understanding the context in which the litigation arose.

4. In assessing the testimony of the witnesses, the Board has considered the usual factors affecting credibility but does not consider it necessary to resolve every conflict in the testimony which relates to matters which are relatively minor or peripheral to the issues before the Board (such as the alleged threatening telephone call to Pat Jahn). Having weighed and assessed the evi­dence, including the documentary material filed and the relative credibility of the witnesses, in the context of the parties' submissions and what is reasonably probable in the circumstances, the Board makes the following findings. Further comments on credibility are given at appropriate points in the decision but the Board would note at this point that John Raudoy and Mike Bigras were regarded as highly credible witnesses.

5. The respondent operates a bus company which primarily provides transportation for school children and also operates a charter service. The owners are Bill and Iva Stewart.

6. The union organizing campaign started in early November 1987 following several initial discussions between a few employees and John Raudoy, an organizer with the applicant union. A somewhat larger gathering took place on November 10 at a local restaurant. Those present included Raudoy, Pat Jahn, Jean Jahn, Mike Bigras, Paul Zakutney, Chris Chretien and Bill Pilon. One or two other employees were present only briefly. (Pat Jahn was a former employee of the respondent.) The group decided there was sufficient interest to begin signing union cards. Bigras and Chretien were the next to depart. Shortly thereafter, Bill Stewart and Iva Stewart entered the restaurant and observed Pat Jahn, Jean Jahn, Zakutney and Pilon seated with Raudoy. Raudoy left soon after the Stewarts arrived. All but Jean Jahn and Pat Jahn departed in short order, as well. Bill Stewart then walked over to the Jahns and informed Jean Jahn that she would not be required to do her bus route that afternoon nor thereafter. Jean Jahn had earlier given her notice. She had offered to remain until another driver was hired so that she could train her replacement and that offer was, until that point, apparently accepted. Later on November 10, Pilon's employ­ment was terminated and Zakutney's employment was terminated.

7. The next day, November 11, there was another meeting of the union supporters at a dif­ferent restaurant. On November 12, Chretien's employment was terminated. Although Chretien had left the restaurant on the 10th before the Stewarts arrived, Chretien had approached Loney about the union campaign and Loney passed on to the Stewarts the information of Chretien's involvement and the November 10th meeting. By November 12, of the core group of union sup­porters at the restaurant on the 10th, only Bigras remained. Bigras had left the restaurant, as noted, before the Stewarts arrived.

8. Following the initial terminations, the union supporters decided to distribute leaflets outside the respondent's premises on the morning of November 13. The leaflets discussed the union and invited the employees to a union meeting. Three employees (R. Congdon, G. Fairburn and L. Bastien) confronted the union supporters and made clear their vehement opposition to the union. That confrontation was heated. Shortly thereafter, Bastien, Congdon and Pat Ward accom­panied Iva Stewart and Dave Loney to the union meeting which was held at Zakutney's home nearby. The group were refused entry to the meeting but remained outside in their vehicle for some time until the police were called and informed the group they could not continue to watch Zakutney's house. Some employees were observed leaving the meeting and Bigras' van was among the vehicles identified. Bigras was not among those distributing leaflets on the street in front of the respondent's premises. However, as the sole member of the core group remaining, Bigras did approach employees to obtain their support for the union and tried with little success to sign cards. On December 1, Bigras' employment was terminated.

9. On November 15, the respondent called a unusual meeting with its employees. Although the meeting commenced with a brief review of company and school board policies and regulations, the bulk of the meeting was devoted to comments by Iva Stewart about "unions" and the ensuing discussion on that topic. Given the union's withdrawal of several allegations, the Board need not deal further with this meeting to specifically resolve whether the company's comments went beyond the limits of "free speech".

10. The Board also notes that the petition in opposition to the union was circulated on the company's premises. That activity was undoubtedly observed and tolerated by management. How­ever, as the applicant seeks certification pursuant to section 8 of the Act, the Board need not con­sider further this issue either.

11. In dealing with the terminations of Pilon, Zakutney, Bigras and Chretien and the direction to Jean Jahn not to return to work, the jurisprudence is uniform on the appropriate test, which is succinctly stated in the oft-quoted passage from the Barrie Examiner, [1975] OLRB Rep. Oct. 745:

• . the effect of the reversal of the onus of proof is to require the employer to establish two fun­damental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred".

12. The employer's explanation for the terminations of Pilon, Bigras, Zakutney and Chretien and the company's handling of Jean Jahn must be clear and convincing to dispel the natural suspicion which arises from the close proximity of those decisions and the appearance of the Stew-arts at the restaurant on November 10 and their increasing knowledge of the identity of the union organizers. The Stewarts testified that Pilon was discharged for insubordination, the loss of a valid "B" licence, his attitude generally and because of complaints from passengers. Chretien was terminated ostensibly for his refusal to switch school runs, his reluctance to do charters on a regular basis, his bad attitude and rudeness. According to the respondent, Zakutney was discharged for his failure to have a medical and his bad attitude. Finally, Bigras was apparently terminated for rea­sons including his alleged body odour, bad attitude his constant complaining and complaints from passengers and other employees Jean Jahn was not required further as Loney was willing to do her run and did Loney not need to be trained.

13. However, the Board finds that Iva and Bill Stewart were not credible witnesses. Their testimony was riddled with inconsistencies and utterly implausible explanations were given when they were confronted with their earlier contradictory statements. The Board has no doubt that the Stewarts decided to terminate the employees involved because of their union organizing activities. The Stewarts then sought to justify their unlawful conduct by putting forward "acceptable" grounds for the dismissals. For example, "confidential employee histories" were placed in evi­dence, replete with examples of warnings for misconduct, etc. It is readily apparent, however, that these records were created well after the events in question.

14. This is not to say that the persons in question were necessarily model employees. Nor were they "long-service" employees. Zakutney did procrastinate in arranging his medical. It may well have been annoying that Chretien did not readily agree to switch runs or to do regular char­ters. Pilon did present some operational difficulties because of his licence classification. However, Zakutney was not given a deadline for submitting his medical. Chretien was not told he had to switch runs and do charters regularly or face dismissal. Pilon could have continued on some runs even with his downgraded licence and, given the high turnover of drivers, it is probable he could have been assigned work until his licence difficulties were resolved or, at least until he had a rea­sonable opportunity to correct the problem. The Board has no hesitation in concluding that the real reason they were discharged was because of the respondent's desire to thwart the union's orga­nizing drive by ridding itself of those persons identified as union supporters. The Stewarts simply seized on the shortcomings of those employees to cloak their anti-union animus. With respect to Bigras, the purported "reasons" for his termination were entirely specious. The company's deci­sion regarding Jean Jahn was likewise without credible foundation. Jean Jahn drove her usual bus run on the morning of the 10th and was told not to return that afternoon to complete her run when she was seen at the restaurant with the union organizer. The Board does not believe that "coinci­dentally" a replacement driver was found in the interim, a replacement who need not follow the usual routine of accompanying the regular driver to learn the route.

15. Quite simply, the respondents have not given a satisfactory explanation for their decisions regarding the terminations or their treatment of Jean Jahn. The only reasonable conclusion from the circumstances, the testimony and the documentary material is that the respondent acted contrary to sections 64, 66 and 70 in this regard and the Board so finds.

16. Section 8 of the Act reads:

17. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support ade­quate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

18. It is appropriate to set out the following excerpt from Di-Al Construction Limited, [1983] OLRB Rep. March 356:

.certification pursuant to the provisions of section 8 of the Act was designed as both a deter­rent to illegal employer interference in union organizational campaigns, as well as a device to provide a meaningful and effective remedy in those areas where an employer's interference has operated to destroy the free selection process guaranteed by section 3 of the Act. The wording of the section makes clear that certification under section 8 can only be granted if three condi­tions are satisfied, namely:

(i) The Act has been violated.

(ii) The true wishes of employees are not likely to be ascertained in a representation vote, or otherwise.

(iii) In the opinion of the Board, the applicant has membership support adequate for the purposes of collective bargaining.

See also J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027; Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443; Cambridge Canadian Foods Inc., [1987] OLRB Rep. March 319; General Metal Products of Windsor Limited, [1985] OLRB Rep. Nov. 1596; Toronto Fabricating Co., [1985] OLRB Rep. Oct. 1528; Primo Importing and Distributing Co. Ltd., [1983] OLRB June 959; Trulite Industries Limited, [1983] OLRB Rep. May 821; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972; K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60; Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811; and Radio Shack, [1979] OLRB Rep. March 248.

18. For the reasons given above, the Board has found that the respondent has contravened the Act and, thus, the first condition necessary to certification pursuant to section 8 is satisfied.

19. The Board next deals with the second element, namely, that the contraventions must have resulted in a situation wherein the true wishes of the employees are not likely to be ascertained through a representation vote. Substantial employer misconduct is required to justify this extraordinary remedy of certification pursuant to section 8: Radio Shack, supra, upheld 79 CLLC ¶14,216 (Ont. Div. Ct.); Ex-Cello Wildex, Canada, [1977] OLRB Rep. June 370; Manor Cleaners, [1982] OLRB Rep. Dec. 1848. The Board does, however, look to the cumulative impact of the employer's illegal activities: K Mart Canada Ltd., supra; Robin Hood Multi-Foods Inc., supra. In this case, there were illegal terminations of the all union organizers (Pilon, Bigras, Zakutney, Chretien) and the unlawful refusal to retain Jean Jahn for a reasonable period to train her replace­ment. As well, the Board notes the attempt by Iva Stewart to attend the union meeting and the tension amongst the employees who actually showed up at the union meeting. There is no doubt the employer misconduct was substantial. The cumulative impact was even greater. The Board must assess whether the remedies which could be directed with respect to the violations of the Act would effectively "restore the atmosphere" to the point where the union could continue to conduct its campaign. The Board does not consider that possible in the instant case. Viewed objectively, it is reasonable to conclude that the employees would have been so intimated by the respondent's unlawful conduct that remedial directions for the section 89 violations would not dispel the chilling effect. The Board concludes that their true wishes are not likely to be ascertained in a representation vote.

20. Finally, the Board considers the third element, whether the membership support is ade­quate for purposes of collective bargaining.

21. It is useful to refer to a relevant passage in Manor Cleaners Limited, supra, at this point:

22. The issue of whether membership strength is adequate under section 8 has been found by the Board in prior cases not to be simply a question of numbers or percentages. In Viceroy Construction Company Limited, [1977] OLRB Rep. Sept. 562, the Board stated at paragraph 22:

No arbitrary percentage can be arrived at that will apply in all cases. The Act requires the Board to determine what is adequate membership support by the light of its opinion depending on the facts of each case. In forming its opinion in any case the Board must have regard for all the circumstances.

Some of the circumstances or factors which have been considered by the Board in assessing "ad­equacy" are:

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, supra; District of Algoma Home for the Aged (Algoma Manor), supra;

(2) the circumstances surrounding the cards signed prior to the employer interference and the number of cards signed (Lorain Products, [1977] OLRB Rep. Nov. 734);

(3) the existence of a full-time unit which showed membership sufficient to support collective bargaining by its part-time counterpart (Robin Hood Multifoods, [1981] OLRB Rep. July 972; Windsor Airline Limousine Limited, [1981] OLRB Rep. Mar. 398);

(4) the severity of the employer conduct insofar as it related to the number of cards signed - "the chilling effect" (K-Mart, [1981] OLRB Rep. Jan. 60);

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) (Sommerville Belkin, supra).

In assessing adequacy the Board must engage in some measure of speculation regarding the union's prospects of successfully engaging in the sequel to certification, collective bargaining. If the union can and has mustered the totality of its support in the bargaining unit, certification under section 8 should not be used to foist union representation on those employees who would not have chosen this freely for themselves. The assessment must be taken with care (see Skyline, supra, at paragraph 62).

22. In the instant case, the union filed membership cards in respect of approximately 25% of the persons in the bargaining unit, 11 of 44 persons. That level of membership support was achieved in just two or three days of organizing. The solicitation of cards was brought to an abrupt halt by the mass terminations of Chretien, Pilon and Zakutney and the direction to Jean Jahn not to return to train a replacement. The union was left with only one employee organizer (Bigras) who was himself terminated once his union activities were known. The conduct of the respondent was egregious and the "chilling effect" of that conduct had a dramatic impact on the union's orga­nizing ability. The Board notes Bigras' testimony that he approached employees after the initial wave of terminations but they were reluctant to get involved. Only one card was signed after November 13, the day the union conducted its leafletting and Iva Stewart tried to attend the union meeting. It is not surprising that the employees "got the message" that union support might adversely affect their continued employment. As noted in the passage quoted, consideration of adequate membership support is not a mechanical exercise with any specific arithmetical "cut off' point. Rather, the Board looks to all the circumstances. In the instant application, the Board has concluded that substantial additional membership support would probably have been obtained but for the unlawful conduct of the respondent. While the level of membership support in the instant case is marginally less than in other reported cases, the respondent's unlawful conduct was excep­tionally severe and occurred at the inception of the union s campaign. The Board's approach is aptly set out in Trulite Industries Limited, supra.

23. The competing policy considerations which underlie section 8, are aptly set out by the British Columbia Labour Relations Board in commenting on a similar provision in its own statute. In International Brotherhood of Boilermakers, Lodge 359 and Forano Limited (1974) Can. L.R.B.R. 13, the Board observed at page 20:

Certification without a vote.. - creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct... However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employee through the normal means... It think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used. - -

25. As the above comments indicate, the wishes of the employees are always the Board's primary concern, and the remedy is not meant to be punitive; moreover, where support is not really there, the Board would not be placing the union in an enviable position by granting a cer­tificate. Without the support of the employees the union would have a difficult time negotiating a collective agreement, and it would ultimately face the prospect of a termination application. On the other hand, the Board must not hesitate to consider the provisions of section 8 when it is the employer's own misconduct that impairs the Board's ability to ascertain with more certainty what the wishes of the employees really are. As the British Columbia Board went on to say:

The Board must not be afraid to use it [the certification remedy] when it appears appropriate. The Legislature conferred it for the very good reason that there is another equally serious risk to employee freedom. The majority in a unit may really want collective bargaining but have been intimidated from choosing it openly. The only way they will get it, is for the Board to certify the union...

Having regard to all these considerations, the Board finds that the union has demonstrated mem­bership support adequate for collective bargaining.

23. The applicant has satisfied all the requisite elements in a section 8 application. The Board, for foregoing reasons, exercises its discretion pursuant to section 8 of the Act and, as noted in its earlier decision, certifies the applicant as bargaining agent for:

all employees of the respondent in the Regional Municipality of Ottawa-Carleton employed for not more than twenty-four (24) hours per week save and except supervisors, those above the rank of supervisor and office staff.

24. In its earlier decision, the Board directed the reinstatement of Pilon, Zakutney, Bigras and Chretien and their compensation for all losses flowing from their unlawful termination. With respect to Jean Jahn, the Board concluded that the respondent's decision not to retain her for a reasonable period to train her replacement was for reasons prohibited by the Act. The Board has remained seized to resolve any disputes arising out of the implementation of this award. The Board has found violations of sections 64, 66 and 70 of the Act in the respondent's conduct towards Pilon, Zakutney, Bigras, Chretien and Jean Jahn. Given that the applicant withdrew any remaining alle­gations and relief claimed in Board File 2305-87-U, the Board does not consider it useful at this juncture to make further findings or direct further relief.

DECISION OF BOARD MEMBER F. C. BURNET: March 14, 1990

1. Respecting the issue of a section 8 certification, I do not believe the three conditions precedent to applying section 8, and described in the majority award, have been fulfilled. Eleven signatures of forty-four employees of an operation which is both part-time and seasonal, and which experiences a 100% turnover rate in six months, is not persuasive evidence that a viable basis exists for collective bargaining.

2. Secondly, in the circumstances of this case, I do not believe that the true wishes of employees could not be determined by a secret ballot, promptly called and properly supervised. The union should have the advantage of employee meetings on company time and property to sell its case and the employees would have the evidence of these hearings that they are protected from unfair practices. Above all, they would have the assurance of the anonymity of a secret ballot supervised by the Ministry. The alternative is to transfer the decision to the Board, on the false and rather arrogant presumption that a Board can more accurately read the minds of 44 distant strangers than the strangers themselves are capable of expressing. I would accordingly have denied the application and ordered a prompt secret, supervised ballot to be preceded by meetings of employees on company time and property to allow the union exclusive opportunity to solicit support.

3. Respecting the issues of reinstatement and reimbursement, in the case of Mr. Bigras, I think the stated reasons for his discharge were not substantial and even if proved, warranted correction and reinstruction, not discharge. I would reinstate with full compensation.

4. Mr. Zakutney failed to provide a required medical after six requests in the first month of his employment. His reasons were patently manufactured. Nevertheless, given his belated compliance when faced with the fact of discharge, I would reinstate but without compensation.

5. Mr. Chretien sought to organize his job schedules around a second job. Management attempted to accommodate him to a reasonable degree, without however tying up vehicles needed on other runs. His rejection of these arrangements and insistence of controlling his own scheduling would justify termination of one even well beyond the probationary stage of his employment, which Mr. Chretien was not. However, as there was doubt concerning his claim of no notice, I would reinstate without compensation, subject to his acceptance of runs normally required by the business.

6. Mr. Pilon, also a probationary employee, was hired as a "B" driver, with a temporary licence, but was unable to get it validated by the Ministry of Transport because of earlier misdemeanours. He cannot legally be reinstated by the Board to the job for which he was hired, and there is no reason why the company should be required to make arrangements for him on some lesser job. That decision properly lies with the company, and I would not reinstate.