United Brotherhood of Carpenters and Joiners of America, Local Union 27 v. Romatt Custom Woodwork Inc., 1990 CanLII 5850

[1990] OLRB Rep. August 894

1619-89-R; 1620-89-U United Brotherhood of Carpenters and Joiners of America, Local Union 27, Applicant v. Romatt Custom Woodwork Inc., Respondent; United Brotherhood of Carpenters and Joiners of America, Local Union 27, Complainant v. Romatt Custom Woodwork Inc., Respondent.

BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. Gibson and H. Kobryn.

APPEARANCES: Brian Sheehan, Conrada Guerrero and Ron Balkissoon for the applicant/complainant; Donna Gallant and Man De Monte for the respondent.

DECISION OF THE BOARD; August 9, 1990

1. Board File No. 1619-89-R is an application for certification which makes a request for section 8 relief. Board File No. 1620-89-U is a related section 89 complaint alleging that the respondent has violated sections 64, 66 and 70 of the Labour Relations Act (the "Act").

2. The complaint alleges that the respondent laid off nineteen employees on September 27, 1989 in violation of the Act. There is a related dispute as to whether two more employees were laid off or had quit their employment. The trade union (the "applicant") states that as a result of the lay-off the true wishes of the employees in the certification application are not able to be ascertained and asks the panel to apply section 8 and certify the applicant.

3. The respondent (the "company") concedes that it violated the Act in laying off employees on September 27, 1989 upon learning of the union's organizing campaign. However the respondent asserts that the lay-off was planned to occur on September 29, 1989 and argues that this is not an appropriate case for the Board to apply section 8, although it concedes that other remedies may well flow from the respondent's admitted violation of the Act.

4. Much of the evidence that the panel heard throughout the hearing was directed at the issue of whether or not a lay-off was in fact planned for the 29th of September and to the issue of who would be subject to any lay-off.

5. The respondent is a manufacturer of cabinet doors used primarily in the new housing construction industry. The company has been operating since the middle of 1982. Over the years it grew quite quickly until in May of 1989 it employed over ninety people. However, over the summer of 1989 the company experienced a marked decline in orders. We heard evidence from the respondent's accountant, its controller, the majority owner Mr. De Monte, and received documentary information concerning the company's financial position. Although the company does not appear to have been at risk as an ongoing operation, we are satisfied that there was considerable need for reassessing its operations. Not unlike many small companies which grow quickly, the respondent lacked adequate financing, maintained a high inventory of finished product, and high accounts receivable. As a consequence, the company was subject to ongoing cash flow problems and in that sense was highly leveraged. So long as the company continued to expand its sales this financial position may not affect the company's operations. However, in the summer of 1989 a number of factors conspired to reduce sales.

6. In July and August of 1989 orders dropped by almost one half from the previous months experience. In addition, the company received cancellations of orders already placed. One large customer cancelled orders as a result of its own production slow down and another customer went out of business. In June the respondent had found it necessary to issue promissory notes to two suppliers for amounts totalling in excess of $225,000.00.

7. The company, and more particularly Matt De Monte the majority owner, had not dealt with a downturn in business before. It became apparent to him over the summer that with reduced orders he would not be in a position to employ the same number of employees. Over the summer Mr. De Monte was hopeful that this was a very temporary state of affairs. However it is also apparent that his optimism was not shared by either his accountant or his controller.

8. In early September 1989 Mr. De Monte met with his foreman Mr. Diep and together they went through the plant, assessing each area's work load and work force in anticipation of a lay-off. The controller, Ms. Proto, had provided Mr. De Monte with a computerized list of employees for his use at this time. Mention of a lay-off was made to Mr. Scarimbolo, Mr. De Monte's partner.

9. Mr. De Monte planned to lay-off employees on September 29, 1989. It marked both the end of a month and it was a pay day. Although he suggested that it would not have been possible to implement the lay-off in time for the first pay period in September, it is apparent that when it did in fact occur it was implemented in one day.

10. On September 26, 1989, at the end of the day, Mr. De Monte received a copy of a union leaflet announcing a union meeting for the evening of September 27 at 5:00 p.m. and inviting all Romatt employees to attend. Upon receiving that document and learning of the union's organizing campaign in the workplace, Mr. De Monte implemented the lay-off as of the next day September 27, 1989. We heard considerable evidence concerning the creation of the Records of Employment for the affected employees. It is clear that twenty-five percent of the employees in the proposed bargaining unit were provided with notice of lay-off at the end of the day of September 27, immediately prior to the convening of the union meeting. The respondent concedes that it committed an unfair labour practice in violation of the Act in implementing the lay-off on September 27th.

11. The real question in this case is what remedy ought to flow in the overall circumstances as a result of this admitted violation of the Act. On balance, we are satisfied that a lay-off was in fact planned. We are further prepared to accept Mr. De Monte's testimony that it was planned for September 29th. Although that date was not disclosed to anyone prior to the actual occurrence of the lay-off, Mr. De Monte gave his evidence in a straightforward and credible manner, and notwithstanding a lengthy cross-examination. It is also consistent with the other evidence concerning the financial position of the company and the slow down in orders. Although the orders were reduced over the summer, the effect on the work load would not take place until some time in September. That fact is borne out upon a review of the amount of hours of overtime worked over the summer and into September 1989.

12. The union argued that the fact that Mr. Scarimbolo continued to hire new employees in September was evidence of no intention to lay-off employees. Although the evidence is certainly consistent with a degree of disorganization and lack of communication between the two partners, we are satisfied that it is Mr. De Monte who makes the effective business decisions for the respondent, and that this evidence is not inconsistent with the conclusion that the lay-off was planned. It is also clear from Ms. Proto's evidence that she anticipated a lay-off.

13. The union sought to rely on an apparent inconsistency in the evidence of Ms. Proto that she was not aware of the actual date of the lay-off until the 27th. Mr. De Monte testified that Ms. Proto was aware of the September 29th date at the time they first discussed the preparation of Records of Employment. The union also relied on the fact that there was no apparent preparation for the effects of the lay-off. However it is not clear that any real reorganization of work was required, simply that fewer machines would be operating. The evidence does not disclose any difficulties in the performance of work on September 28th, the day following the lay-off. The union also sought to rely on Mr. De Monte's failure to give notice of lay-off to employees as evidence that no lay-off was planned for the 29th. However Mr. De Monte's understanding of the provision of notice was that it was required when employees were fired from employment but he did not understand it to be required in the case of a temporary lay-off. He did understand that he was required to complete a Record of Employment for purposes of unemployment insurance. Overall we are satisfied that this evidence does not detract from the conclusion that the lay-off was planned for September 29th.

14. It was the position of the respondent that Ricardo Bravo and Alejandro Irusta were not laid-off in violation of the Act but that they had in fact both quit their employment. The union disputes this. Mr. Bravo testified that he had permission to be absent from work. The absenteeism sheets provided by the respondent confirm that Mr. Bravo was absent from work on Tuesday, September 26, 1989. Mr. Bravo returned the Monday following the lay-off and received a copy of his Record of Employment from Mr. Scarimbolo who told him that he had been laid off. The Record of Employment received by Mr. Bravo at that time indicates a shortage of work as the reason for the severance from employment. Mr. Scarimbolo confirms that Mr. Bravo, had been absent for some days and that he spoke with him at the time he provided Mr. Bravo with a Record of Employment "like any one else". The only evidence suggesting that Mr. Bravo quit his employment is from Ms. Mendez who testified she called on Monday, September 24th because he was absent and on Tuesday was informed by Mr. Bravo that he was going to quit. Neither of these assertions is supported by the daily absentee sheets which do not indicate that Mr. Bravo was absent on the Monday (which was September 25th). The reason given for the absence on Tuesday is "don't know". Ms. Mendez testified that she told Mr. Scarimbolo of Mr. Bravo's intention to quit yet Mr. Scarimbolo told us that it was Mr. Bravo who told him of his intention to quit on the Monday. On balance we are not satisfied that Mr. Bravo evidenced an intention to quit his employment but rather that he was laid- off on September 27th in violation of the Act.

15. Mr. Irusta testified that he was absent from work on September 27th due to illness. On September 28th he spoke with Mr. De Monte who informed him that he had been laid-off. Ms. Mendez testified that Mr. Irusta's wife had called on September 26th to inform her that Mr. Irusta had quit. Although we did not hear evidence from Mr. Irusta's wife denying this, we also did not hear any evidence from Mr. De Monte denying his conversation with Mr. Irusta on the 28th to the effect that he had been laid-off. A Record of Employment, indicating a shortage of work as the reason for separation, was produced and it was Mr. Scarimbolo's evidence that he believed Mr. Irusta to be employed on the 27th. On balance we are satisfied that Mr. Irusta did not quit his employment but was laid-off in violation of the Act.

16. In applying section 8 of the Act three things must be shown. Firstly, the employer must have contravened the Act. In this case the employer violated sections 64, 66 and 70 of the Act in laying off twenty-one employees on September 27, 1989 as a consequence of learning of the union's organizing campaign.

17. The second factor is that as a result of the contravention of the Act the true wishes of the employees are not likely to be ascertained. In this case, in direct response to the fact of the trade union in the workplace, the employer laid off twenty-five percent of the employees in the proposed bargaining unit. There was no advance notice to any of the employees concerning the lay-off and notwithstanding that we have found that the respondent planned a lay-off for September 29th in any event, that fact remained unknown to the employees. The lay-off occurred moments prior to the union convening its first general meeting of the employees. There can be no doubt that the effect of such a lay-off would be to send a clear message to employees that the fact of union representation would seriously jeopardize their job security.

18. We heard considerable evidence about who had been laid off and on what basis. It is clear that the decision who to lay-off was solely Mr. De Monte's. The applicant cross-examined Mr. De Monte extensively reviewing with him the fact that Mr. Scarimbolo had hired certain new employees in August and September of 1989, and that many of the individuals laid off were Spanish speaking. This evidence was also directed of course to the issue of whether a lay-off was in fact planned at all.

19. The respondent submitted in evidence a list of employees by their work area including their date of hire and job classification. Although the applicant argued that the document was selfserving in that it had been prepared for the purposes of the hearing it did not seriously challenge its contents. We have reviewed that document, compared employees' dates of hire with the list of laid off employees. We have compared the list of employees actually laid off with Exhibit 7, the preliminary list of people being considered for lay-off. We have considered the type of work being performed by each laid-off employee including any viva voce evidence we heard on that point. We are satisfied that employees were chosen for lay-off based primarily on their seniority in their area. Any exceptions to the application of a principle of seniority were explained by Mr. De Monte and we accept his explanation regarding the particular skills of the individuals. It is also apparent that the individuals who were laid-off were working for the most part in jobs requiring less skill. Again, to the extent that any skilled worker was laid off it was consistent with their security and/or the production requirements of the respondent.

20. Although we have found that the individuals who were laid off were chosen primarily on the basis of seniority or on the basis of their particular skills and not because they were union supporters, that fact may well not have been apparent to the employees. The union's organizing campaign had initially been directed at those employees who were Spanish-speaking. The majority of the employees laid-off fall into this category. In determining whether the true wishes of the employees are not likely to be ascertained we must have regard to the reasonable perceptions of the employees. The timing and extent of the lay-off and the individuals actually laid-off, in this case coming immediately prior to the union's first general meeting and with no prior knowledge to the employees, in our view could only send one message to the employees. In such circumstances a vote would not likely disclose whether the employees wish to be represented by a trade union but rather whether they wished to maintain some job security.

21. The third factor is assessing whether or not the trade union has membership support adequate for the purposes of collective bargaining. The respondent argued that to the extent that union supporters were laid off, and that the lay-off would have taken place in any event, any support shown by those individuals cannot be taken into account for purposes of section 8. The respondent further argued that whatever chilling effect occurred following the lay-off was a result of a lack of interest and not as a result of the employer's conduct.

22. The union's organizing campaign began in August with the arrival of Mr. Guerrero. Mr. Guerrero is employed by the applicant as an organizer and he is fluent in more than one language including Spanish. To the extent that Mr. Balkissoon may have visited a nearby donut shop in July we are satisfied that at best it could be described as initial overtures. The respondent's work force is comprised of individuals whose first language is other than English. The union decided to seek the support of the Spanish-speaking population first and to then approach other employees as this had been a successful organizing strategy for them in another campaign. The first organizing meeting held was August 17th at which time six cards were signed. Between August 17th and August 31st, another sixteen cards were signed. There were no meetings held during this period. Mr. Guerrero met with some Vietnamese and Chinese speaking employees with the assistance of a translator on September 7th and also had the assistance of a Persian translator for conversations on September 14th. Between September 1 and the lay-off three cards were signed. The respondent points to this as evidence that the union had canvassed all the available support for its campaign. However, the amount of time that passed was not particularly significant given the apparent difficulties in communication. The union organized the first general meeting for all employees to discuss the union for September 27th. The union arranged to have translation services available at that meeting. Two cards were signed on September 29th. The union filed in its application membership evidence of approximately thirty percent of the proposed bargaining unit.

23. In assessing the adequacy of membership support we note the approach set out in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60:

14.......

In approaching its discretion to grant certification under [section 8] of the Act, the Board must make some prognosis as to the future viability of bargaining. In so doing it does not necessarily view the membership strength which the applicant has on the date of certification as a static and immutable figure. Where the evidence establishes that a workplace has been subjected to the chilling effect of unfair labour practices that tend to suppress any expression of pro-union sentiment, it is not unreasonable to expect that the granting of a Board's certificate, with or without the assistance of other remedies under the Labour Relations Act, will in some degree restore the legitimacy of the trade union in the eyes of the employees. The Board therefore takes into account the potential for union support to grow among employees who beforehand might have been afraid to associate themselves with the union. With the granting of a certificate, assuming that all unfair labour practices will end, there is little reason to doubt that the union's base of support will grow and that more and more employees will come forward to participate in the endeavours of their bargaining agent. determining whether a union has support adequate for collective bargaining purposes within the meaning of [section 8] of the Act, the Board's concern is whether there is a number of employees, sufficiently representative of the employees in the bargaining unit, with the ability to negotiate with their employer on the content of a collective agreement. In this regard, bargaining ability is to be distinguished from bargaining power. The question is not whether they can amount to successful strike, or whether they will eventually realize substantial gains at the bargaining table. Rather, it is whether they have the core of support sufficient to negotiate with the employer. A [section 8] certificate, like any certificate, is only a beginning and need not be seen as anything more.

24. Similarly, the Board's comments in Trulite Industries Limited, [1983] OLRB Rep. May 821 are instructive:

25. We have found that the respondent has contravened the Act; and if ever there was a case where the true wishes of the employees are not likely to be ascertained by the conventional means now available, this appears to be it. But does the applicant have ~'membership support adequate for the purposes of collective bargaining"? This phrase was added to section 8 (then section 7(a)) in 1975 in place of the requirement that the union have the support of more than fifty per cent of the employees in the bargaining unit. It is clear, therefore, that the phrase ~'membership support adequate for collective bargaining" is not simply a reference to majority support. Even more striking is the removal of the reference to a representation vote which appeared in the statutory predecessor of section 8. By doing so, the Legislature appears to have contemplated the possible application of the new section 8, even where the applicant's membership support falls below the minimum level required for entitlement to a representation vote (see Lorain Products, [1977] OLRB Rep. Nov. 734). In other words, the section can now apply to situations where the employer's illegal response is so massive and so early as to prevent a trade union from ever attaining the level of support needed for a representation vote.

26. That is what has happened here. Had it not been for the unlawful interference of the respondent, the applicant might well have garnered at least the thirty-five per cent support necessary for the taking of a pre-hearing representation vote. As it is. the applicant obtained the support of about ten employees on March 22nd - 23rd, but none after the captive audience speech of March 23rd, and the discharges of March 24th. The fact that the union gained the support of about 30% of the potential unit and that a number of employees were interested enough to make their way to the union hall to sign cards lends credence to the evidence of the applicant's witnesses that there was considerable interest in trade union representation, which might have matured had it not been stifled.

27. 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) 1 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 employees through the normal means.. .1 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...

27. In our view, the applicant has demonstrated a substantial and workable "core" of support for the union, and, on the evidence before the Board, this "core" must be regarded as a basic minimum of the trade union's support since there were other individuals who expressed interest and who might be moved to support the applicant once the opportunity for a free expression of views has been established. There is, in addition, no evidence in the present case to suggest that the union's campaign was anywhere close to being "spent" at the point when the respondent employer intervened. Accordingly, on the basis of the evidence before it, the Board finds that the respondent has contravened the Act in such manner that the true wishes of its employees are not now likely to be ascertained and that the applicant has membership support adequate for collective bargaining. That the applicant is therefore entitled to be certified pursuant to section 8 of the Act....

28. The fact that employees would have been laid off on September 29th does not detract from the union's support in the workplace. As the respondent acknowledged it hoped that the layoff would be of a temporary nature and that employees would be able to be recalled. It cannot be said that employees have no ongoing interest or connection with the workplace such that their support should be discounted.

29. While we are not unsympathetic to the respondent's concerns arising from the slow down in work over the summer of 1989 that concern cannot condone an interference with employees' statutory rights. As the Board said in Trulite Industries Limited, supra:

30. Certification without a vote under section 8 was designed as a deterrent to illegal employer interference in union organizing campaigns, and a device to provide a meaningful remedy in those cases where the employer's interference undermines his employees' statutory rights, and, in addition, precludes the Board from undertaking its usual determination of employee wishes through a representation vote or an assessment of the union's membership evidence. In other words, section 8 is a kind of "second best" solution, to be applied where the employer's misconduct not only frustrates the union's organizing drive, but also impairs the Board's ability to ascertain whether the majority of the employees do or do not wish to be represented by a union....

31. There is no doubt that the respondent's conduct in this case involves serious contraventions of the Act even though, to some extent, its actions are understandable and, in the Board's experience not all that unusual in today's troubled times. Peter Alexander testified that he and his partner were deeply concerned about the prospect of dealing with a union, and like many other small businesses in recent years, they have been experiencing severe financial difficulties. A collective bargaining relationship was regarded as but one more burden which they feared would destroy their business. Alexander was also convinced that support for the union was restricted to a small vocal minority of new employees whose presence had disrupted the "family" atmosphere which he had sought to maintain with the employees since the company was formed in 1975, hence his decision to fire the "agitators". Indeed, Alexander candidly admits that his actions were improper and an overreaction attributable to the financial pressures which he had been under for some months; and we have no reason to doubt the reality of those pressures. The four discharged employees were eventually reinstated pursuant to a without prejudice settlement of their section 89 complaint.

32. The scenario present in this case is not a new one, and the Board is not unsympathetic to the situation of the small businessman pressed by creditors and high interest rates, and anxious about the very survival of his business. Having no direct experience with collective bargaining and fearing its consequences, such employers sometimes do overreact and interfere with their employees' statutory rights - particularly where, as here, they act precipitately and without professional advice. But our appreciation of the context does not obscure the gravity of what has happened here. In his remarks on March 23rd, Mr. Melnnes told the employees that their jobs would be jeopardized if they opted for trade union representation, that the plant would close, that the business would be "killed", and that certain benefits or opportunities then in place (e.g., overtime) would no longer be available. The very next day four employees identified as supporters of the union were summoned before the co-owner of the company and summarily discharged. It is hardly surprising that, thereafter, there was little enthusiasm or support for the union even among persons who had previously expressed considerable interest. The employer has indicated in the most graphic way possible that employees who support the union do so at the risk of their jobs. We do not think this "message" is likely to be forgotten easily.

33. Therefore, we find that the employer violated sections 64, 66 and 70 of the Act in laying off employees on September 27th. The respondent is ordered to pay to those employees laid-off including Mr. Bravo and Mr. Irusta an amount equivalent to what they would have earned on September 28 and September 29, 1989 had they not been laid-off on September 27th. The panel will remain seized on the matter of compensation should the parties be unable to resolve it. Further, we direct that the respondent post in the workplace in conspicuous places the notice attached as Appendix A. The Board directs the parties to meet with a Labour Relations Officer for the purposes of attempting to resolve the nature of recall rights of the employees affected by the lay-off. Failing such resolution, the matter may be dealt with before the panel.

34. Further, we also find that this is an appropriate case to apply section 8 and certify the applicant.

35. We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

36. Having regard to the agreement of the parties, we further find that all employees of the respondent in the Regional Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office, clerical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

37. Having regard to our finding with respect to section 8 of the Act, we hereby certify the applicant for the above-noted bargaining unit.

38. A certificate will issue.

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 LABOUR RELATIONS BOARD. AFTER A HEARING IN WHICH THE TRADE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR. RELATIONS ACT BY LAYING OFF EMPLOYEES ON SEPTEMBER 27, 1989. THE ONTARIO LABOUR RELATIONS BOARD ALSO FOUND THAT AS A RESULT OF THE VIOLATION OF THE LABOUR RELATIONS ACT. THE TRUE WISHES OF THE EMPLOYEES WOULD NOT LIKELY BE ASCERTAINED IN A VOTE AND THEREFORE CERTIFIED THE TRADE UNION, THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 27 TO REPRESENT THE EMPLOYEES IN THE BARGAINING UNIT DESCRIBED IN THE BOARD'S DECISION.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE 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 AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS:

ROMATT CUSTOM WOODWORK INC.

PER: (AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 60 consecutive working days.

DATED this 9^th day of AUGUST 1990.