Ontario Labour Relations Board
[1994] OLRB Rep. August 963
0961-94-R; 0962-94-U International Brotherhood of Painters and Allied Trades, Local 1494, Applicant v. Basile Interiors Ltd., Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and K. Davies.
APPEARANCES: Elizabeth M. Mitchell, Kevin Elliott and Victoria Starr for the applicant; Marilee Marcotte and Sam Basile for the responding party.
DECISION OF THE BOARD; August 10, 1994
This is an application for certification which was heard together with a complaint of unfair labour practices. The union relies on the provisions of section 9.2 with respect to its certification application.
By brief written decision dated August 2, 1994, the Board found that the company had violated the Labour Relations Act, and that as a result of these violations, the true wishes of the employees as to union representation were not likely to be ascertained. Accordingly, the Board, in addition to remedies under section 91, certified the union as the bargaining agent for a unit of employees of this employer. The following are our reasons for these determinations.
In this hearing, the Board heard the evidence of Sam Basile, Peter Rocchetti, Frank Basile, Imad Manuel Yalda, Ricardo Vidal and Randy Wilmer. It is fair to say that although on some uncontroversial points the witnesses were reasonably consistent in their recounting of the facts, there were also significant differences between the evidence of the company's witnesses and the union's witnesses. In assessing the evidence and arriving at our findings of fact, we have considered all of the evidence and taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, the witnesses' apparent ability to recall events and to resist the tug of self-interest in their responses to the questions, and what seems most reasonable and probable in all of the circumstances and having regard to the evidence as a whole. Ultimately, we substantially prefer the evidence of Ricardo Vidal and Randy Wilmer to that of Sam Basile, Peter Rocchetti and Frank Basile as to the key events.
Basile Interiors Ltd. (referred to herein as "the company" or "the employer") is a company specializing in interior design and painting. Sam Basile is its owner. Frank Basile, who also works for the company is the father of Sam. Sam Basile's background is in interior design, though he has some experience in painting through working with his father, who has worked for many decades in the painting contracting business. The company is relatively small, employing at the time of this application approximately 8 persons in the painting contracting division, including the Basiles. The union began its organizing drive with respect to the painters and painters' apprentices employed by the company in March of 1994.
The key events which were the subject of evidence were a meeting held on June 13, 1994 between Ricardo Vidal and, among others, Sam Basile, and the layoff of Randy Wilmer. The company's witnesses denied that there had been a meeting on June 13 between anyone but Ricardo Vidal and Sam Basile. We prefer the version of events given by Vidal. We find that on June 13, after Vidal returned to the shop from a job site at approximately 11:30 a.m., Sam Basile asked to see him in the office. Frank Basile joined them. Gino Basile (a brother of Sam) and Peter Rocchetti (an employee of Basile who is at the least a working foreman) were also present for most of the discussion. Frank Basile asked Vidal how things were going, and whether he was having problems with the company. After Vidal responded, Frank Basile asked why Vidal had joined the union. Vidal asked "who said I joined the union", to which Sam Basile responded that the company knew all about the union and who was in it, and wanted to know who organized it.
Vidal acknowledged that he had joined the union. Frank Basile became upset and angry, berating Vidal. There was further discussion in which Vidal was asked who had organized the union. Vidal was asked several times if Randy Wilmer had introduced him to the union, or joined. Finally, Vidal told them that Frank Facchineri, an employee who had been laid off in March, was responsible for starting the union drive.
Sam Basile placed two sheets of paper in front of Vidal. One of these was a Record of Employment. The other was a statement which Vidal described to the best of his recollection as setting out that he was being treated fairly by the company and paid his due vacation pay and holidays. This statement was not entered into evidence. Basile indicated that either Vidal sign the statement, or he would be terminated, referring to the Record of Employment which was also in front of Vidal. After Vidal signed the statement, Sam Basile took it and told him that he had talked to his attorney and if Vidal ever spoke to the other men about the union or about the meeting, the company would sue him.
Also during this discussion, Vidal was asked why he had joined the union. Vidal was told that the union would not be able to offer him anything. Sam Basile also expressed his opinion that the union would not be successful in its organizing drive because the company had a majority in its supporters and the union had forgotten to count Gino, Peter and Frank. At the end of the meeting, Frank Basile assured Vidal that he had his job, not to worry, and to come in to work the next day. Vidal went home after this meeting.
Later that day, Vidal called the company which is now his employer to inquire about employment. He met with its owner that afternoon and then again that night. The result was that he was offered a job as a painter, at the same wages which he earned with Basile Interiors Ltd. Vidal called Sam Basile the next day and told him that he had quit.
In the evidence of Yalda and of Vidal, it is also clear that Vidal had been searching for other work well before the meeting of June 13. He had been unhappy with the company for some time, mainly because of what he considered to be harsh treatment by Frank Basile. On June 12, he had a conversation with Frank Basile in which Basile expressed anger at Randy Wilmer for having asked for a raise. Basile took out this anger at Vidal, and threatened to cut the pay of everyone. This appeared to be the last straw for Vidal. On June 13, while working at a job site in the morning, Vidal obtained the name and telephone number of the company which he called for work later that afternoon. Even before his meeting with Sam and Frank Basile that morning, therefore, Vidal had intended to make contact with his new employer. There is no doubt that the meeting of June 13 contributed to his decision to leave the company. Vidal went to some lengths on the night of June 13 to meet with his new employer, even working late into the night to demonstrate his painting skills. However, it also fair to conclude from the evidence that even before this meeting Vidal was prepared to take any reasonable offer of employment as a painter which provided him with equivalent wages to that he was earning at Basile Interiors Ltd. This is exactly what was offered to him on the night of June 13. We therefore find that Vidal was intending to leave the company even before the meeting of June 13; however, it is probable that he would not have given the matter the urgency that he did had that meeting not occurred.
At the time of this hearing, Vidal was still working at the company for whom he left Basile Interiors Ltd. In his testimony, Vidal was asked whether he would like to return to Basile Interiors Ltd. Although his responses went back and forth, ultimately, he stated firmly that he would not go back to the company. However, he agreed with counsel for the union who asked him in re-examination whether he would want the option of returning if something happened to his new job.
With respect to Randy Wilmer's layoff, the evidence is that as of June 13, the persons performing construction duties in the painting division of the company consisted of Wilmer, Vidal, Yalda, Rocchetti, J.P. Galinas, Domenic Gaudio and Frank Basile. Excluding Basile, Wilmer, Vidal and Rocchetti had the longest history with the company. Rocchetti is considered a foreman (we do not need to determine whether he is excluded from the unit for the purposes of this decision.) Gaudio was hired after Wilmer and Vidal. Galinas and Yalda were hired on June 6, just one week before Wilmer's layoff. Galinas works primarily as a paper hanger, and Yalda works primarily painting and assisting the other painters. When Wilmer was hired, he had experience as a painter, but not in spraying. He learned to spray from Vidal, became adept at it, and eventually became the main sprayer for the company.
At the time of Wilmer's layoff, the company had four or five projects ongoing. Sam Basile testified that on Sunday, June 12, he decided that the company would have to lay off Wilmer for a while. He considers Wilmer to be primarily a spray painter. The company was waiting for the go-ahead on a spray job at Valiant Tools, a regular customer. On June 12, it appeared that this job would not be ready immediately. Basile states that during the previous week, he had a conversation with Wilmer in which Wilmer indicated that if work slowed down, he would like to take a few days off to finish a few projects (a conversation which Wilmer denies). Therefore, Basile decided on June 12 to lay off Wilmer for about a week. He asked his father to telephone Wilmer and tell him to stay home for a couple of days. Sam Basile states that on Monday, he told his father again to telephone Wilmer and tell him to stay home for a couple of days and the company would phone him when the project was ready.
Frank Basile testified that he was told by Sam and in turn told Wilmer on June 12 to phone the company on Monday, June 13 because he would likely be working on the afternoon shift that day. On June 13, Sam told him to tell Wilmer to stay home for a couple of days because the spray job was delayed. Part of this is consistent with Wilmer's testimony. Wilmer states that he was told by Frank Basile on Sunday, June 12 that the company would call him on June 13 about working the afternoon shift on that day. However, Wilmer states that on June 13, when he spoke to Frank Basile on the telephone, he was told to come into the office. When he arrived, Frank Basile met him and told him that he was to be laid off because the company only had work for paper hangers. He was given a Record of Employment the same date.
Wilmer also testified that because of an error in the ROE, he returned to the company a few days later to pick up a new one. On this visit, he saw Frank Basile again. Basile thanked him for the work he had done for the company, and told Wilmer that if he ever needed work in the future, to feel free to come and see Frank.
After Wilmer's layoff, the company continued to have painting projects. There was, among other things, roller and brush painting at Valiant Tools from about June 13 to June 27, which provided fairly steady work for those two weeks for Yalda, Rocchetti and Gaudio. As it turned out, the spray job at Valiant Tools was not performed until about July 4. In all, this job took less than a day.
Sam Basile also testified that Vidal's quit caught him by surprise, and there was work available for Vidal to perform if he had stayed. Vidal and Wilmer are about the same skill level.
The evidence is also that before these events, Wilmer has been laid off by the company on occasion for a day or two at a time. One time, he was told to telephone the company about work on a daily basis, and he ended up not working for a week. On none of these previous occasions, however, has he received an ROE. The ROE which was made out to him on June 13, as amended on June 17, states that the date of recall is unknown.
With respect to the company's knowledge of the union's organizing drive, Sam Basile states that on June 13, in a meeting with Ricardo Vidal (the details of which differ dramatically from Vidal's), Vidal volunteered the information that he had joined the union. In Basile's evidence, this was the first that he heard of the organizing drive. Yalda testified, however, that on Monday, June 13 when he arrived in the shop early in the morning, he decided to hand in his union card to the company with his timesheet. Yalda clearly felt at this time that his interests lay with the company, and in informing the company about the organizing drive. He also testified that on Tuesday, he decided to get his card back, and retrieved it from the envelope in which he had placed it together with his time sheet. There is no direct evidence that anyone in management opened this envelope and saw his union card between Monday morning and Tuesday morning.
However, there is evidence that during the meeting with the Basiles, Rocchetti and Vidal on Monday at about 11:30 a.m., Frank or Sam Basile referred to a "yellow" union card. The union s membership evidence is indeed yellow.
In cross-examination of Wilmer, company counsel asked Wilmer a question concerning further organizing attempts after his reinstatement to work on June 27 in settlement of an application for interim relief brought by the union. An objection was taken to this question, and the majority of the panel, Board Member Davies dissenting, allowed the question. In response to the question, Wilmer stated that he had attempted to discuss the organizing drive with employees after his return to work, but the atmosphere was worse than ever. No one wanted to discuss it with him.
At least one person who had previously indicated support for the union now retracted that support, although one employee who had waffled on returning his completed union card now did so.
There was also evidence with respect to certain incidents which occurred after Wilmer's return to work, which the union alleges constitute further harassment or discrimination against Wilmer as a result of his union activities. We have determined that it is unnecessary to make findings with respect to these, and so do not detail this evidence here.
The sections of the Act relied upon in these proceedings are the following:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
- No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
82.-(i) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
9.2 If the Board considers that the true wishes of the employees of an employer or of a member of an employers' organization respecting representation by a trade union are not likely to be ascertained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, 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.
The union alleges that the conduct of the employer in, among other things, intimidating Ricardo Vidal and laying off Randy Wilmer violates sections 65, 67 and 71 of the Act. The union states that this conduct has made it impossible for the employees of this company to express their true wishes as to whether they desire to be represented by the applicant. Therefore, in addition to the remedial relief requested under section 91 of the Act, the union urges the Board to apply section 9.2 and grant certification.
In the company's submissions, no unfair labour practices were committed. It relies on the version of the meeting of June 13 as described in the evidence of Sam Basile. With respect to the layoff, the company states that the decision had been made on Sunday, June 12 to temporarily lay off Randy Wilmer, until the spray job at Valiant Tools was prepared to start. This decision was partly based on Wilmer's request to Sam Basile to have a few days off.
Further, in the event the Board finds that the company has committed unfair labour practices, the Board ought not to apply section 9.2. The union's organizing drive started in March, and by mid-June, when these events took place, it was essentially stalled. The facts in this case do not support the conclusion that the violations of the Act, if they occurred, had any chilling effect on the ability of employees at this workplace to make a free decision on union representation. Company counsel distinguishes Carleton University Students' Association Inc., [1993] OLRB Rep. Oct. 938 and CMP Group (1985) Ltd., [1993] OLRB Rep. Dec. 1247 on the basis of the time at which the events at issue occurred and their concomitant effect on employees in the workplace. Counsel also submits that a flaw in the union's theory of the case is with respect to the company's knowledge of the organizing drive. There is no evidence, counsel states, that the company actually saw the union card that Yalda enclosed with his time sheet. Further, even if the Board finds that the company saw this card, it cannot be said that the company could have concluded that Vidal and Wilmer were involved in the organizing drive.
In their submissions, the parties referred us to Classic Masonry Inc. [1993] OLRB Rep. Aug. 721, Carleton University Students' Association Inc., supra, CMP Group (1985) Ltd., supra and Win. J. Davidson Electric Inc., [1992] OLRB Rep. Jan. 101.
As we have stated above, on evaluating the evidence as a whole, we have decided to prefer the version of events narrated by Vidal and Wilmer over those put forward by the company's witnesses. Based on this, there can be no doubt that as of Monday, June 13, the company was aware of the union's organizing drive. We do not have to determine how they became aware of it, and whether it was because of Manuel Yalda's actions on that morning that it came to their attention. It is reasonable to conclude from the evidence, however, that it was between Sunday, June 12 and 11:30 a.m. on Monday, June 13 that they became aware of it. Further, it is also clear from the meeting between Vidal and members of management that once the company became aware of the union's presence at the workplace, they also came to some conclusions, which ultimately turned out to be accurate, as to the key persons involved. It is not surprising to us that in as small a workplace as Basile Interiors Ltd., it was not difficult for the company to make some reasonable and informed deductions as to the source of union support amongst its employees. In any event, it is clear from the discussion in this meeting, that the company had concluded that Vidal, Wilmer and Frank Facchineri were all union supporters.
We find that in the meeting with Vidal on June 13, the company intimidated and harassed him as a result of his union support, contrary to the provisions of sections. There is no doubt that the intended effect of this meeting was to make Vidal think twice about his continued support for the union. The message was also conveyed that Vidal's continued employment lay solely in the company's hands, and that expressions of disloyalty to the company would be rewarded with instant dismissal. There is no doubt that this meeting had quite an impact on Vidal. He left the meeting quite shaken and, as we have described above, went to great lengths that night to find other employment.
The company further responded to its discovery of the organizing drive by the layoff of Randy Wilmer, whom it had concluded was instrumental in the drive. As we have commented, it would not have been difficult in this small workforce for the company to come to a reasonable conclusion as to the union supporters amongst its employees. Wilmer had also made the mistake the week before of asking for a raise. Although on Sunday, June 12, Wilmer had been told that he would be working afternoons for the next while, his status with the company completely changed by noon on Monday. At noon on Monday, he was told to come into the office, only to be informed of an indefinite layoff. The company maintains that the layoff was intended to be temporary only, while waiting for a job to begin. On the evidence, however, there are many unusual aspects about this layoff. It does not appear that it was usual for an employee to have to present himself personally in the office to be told of a layoff which was to last, on the company's evidence, for a few days to a week. Further, Wilmer was issued an ROE, which he had never received before for a layoff of short duration, and was essentially told by Frank Basile that he was no longer working for the company. The purported rationale for the layoff also does not bear up to scrutiny. The delayed job which the company states supported its decision to effect the temporary layoff ultimately turned out to be less than one day of work. On top of all of this, Wilmer was laid off while other employees of less experience and seniority than he, and in particular, one employee who had only worked for the company for a week, were retained. Even upon the quit of Ricardo Vidal, which left the company with a gap in its workforce, the company did not recall Wilmer, who had substantially the same level of experience and skill.
In all of these circumstances, we conclude that by laying off Randy Wilmer, the company was "cleaning house" and ridding itself of the person whom it had concluded was an instrumental union supporter.
As we have indicated, we find it unnecessary to make determinations with respect to other alleged unfair labour practices, either because they have been rectified, or as well because their remedies would not add anything to those we have ordered. We find it unnecessary to determine whether the company has violated section 82.
With respect to remedies, the union has requested on behalf of Mr. Vidal that he be given the option to return to work at Basile Interiors Ltd., to be exercised in a period of up to a month. Having regard to Mr. Vidal's evidence regarding the circumstances of his departure and in particular to his expressed unwillingness to return to work at this company, we do not find this remedial request to be appropriate in the circumstances.
Finally, we consider whether the violations of the Act have created a situation where the true wishes of the employees respecting union representation are unlikely to be ascertained. We determine that they have. In arriving at this conclusion, we have taken into account the size of this workplace and the closeness with which employees work with the members of management who participated in the unfair labour practices, the swiftness and severity of the company's actions upon learning of the union drive, the concern for job security which was expressed in the hearing (and which forms the basis for the Board's conclusions regarding the chilling effect of the discharge of union supporters in cases such as this), and the evidence regarding the further organizing attempts after these events.
We therefore find that the statutory preconditions for the application of section 9.2
have been met and that this is an appropriate case for certification. Accordingly, we granted the
declarations and orders set out in our written decision of August 2, 1994.