[1995] OLRB Rep. July 946
1240-95-U International Union of Bricklayers and Allied Craftsmen, Local 2, Toronto, Barrie and the Ontario Provincial Conference of the I.U.B.A.C., Applicant v. Fahuki Construction Incorporated, Responding Party
BEFORE: Pamela Chapman, Vice-Chair.
APPEARANCES: Ursula Boylan and Mario Dos Santos for the applicant; Louis Lam and Lawrence Lam for the responding party.
DECISION OF THE BOARD; July 25, 1995
This is a complaint under section 91 of the Act alleging that the responding party ("the employer" or "Fahuki") has violated sections 3, 65, 67 and 71 of the Act.
The complaint as filed included a request for certification without a vote pursuant to section 9.2 of the Act with respect to an application for certification filed by the applicant on May 10, 1995 (Board file 0659-95-R). By letter dated June 23, 1995, the applicant ("the union") requested that the unfair labour practice complaint be scheduled for hearing together with the application for certification. By decision dated June 6, 1995, however, the Board had appointed a Labour Relations Officer to inquire into and report to the Board concerning the duties and responsibilities of the employees at work on the application date, due to a dispute between the parties as to the composition of the employee list.
In these circumstances, the application for certification was not scheduled together with the section 91 complaint, and at the outset of the hearing I asked the applicant whether it was still seeking a consolidation of the two proceedings. At that time, counsel for the union indicated that her client was prepared to have the Board proceed with the section 91 complaint, reserving their right to pursue the request for relief pursuant to section 9.2 depending on the outcome of the officer's examinations.
At the beginning of the second day of hearing, however, after the employer had completed its case and two of three union witnesses had been examined, the applicant asked that the Board rule on the request for section 9.2 relief in its decision on the unfair labour practice complaint, but defer implementation of any order pursuant to section 9.2 until after the officer's exami
nations, if and when it is determined that there were at least two employees doing work within the proposed bargaining unit on the certification application date.
- After considering the submissions of the parties concerning this request, the Board issued the following oral ruling:
At this point in the proceedings, I am not prepared to permit the union to proceed with its request for relief pursuant to section 9.2 of the Act.
Instead, I will rule, once the case is completed, on whether or not the employer has violated the Act and whether or not in that event the union is entitled to the other relief it has requested, including reinstatement of the employees. I will reserve and will remain seized on the question of whether or not the union is entitled to relief under section 9.2 of the Act until after the other issues relating to the application for certification have been resolved. At that time, the union should advise the Board if it is still seeking automatic certification pursuant to section 9.2 of the Act (depending of course on the Board finding in this proceeding that the Act has been violated), and I will make whatever directions are appropriate at that time, including the convening of a hearing if any party wishes to call additional evidence relating to that request.
Many of the facts relating to the complaint under section 91 of the Act were not in dispute.
As noted above, the application for certification was filed on May 10, 1995. While there is a dispute between the parties as to whether any of the employees of Fahuki were performing work within the bargaining unit on that date, it appears that there were at most eight employees who might be considered to fall within the bargaining unit employed by Fahuki at that time.
Fahuki is a small general contractor owned by three brothers, Louis, Joseph and Lawrence Lam, who are also the directors of the corporation. They employ two other managerial staff, Gino Lupo, who is a foreman, and Peter Woo, who was at various times in the evidence described as a foreman and as the company engineer.
Fahuki has never been unionized. An application for certification with respect to the employees of Fahuki had earlier been filed by another union, the Drywall Acoustic Lathing & Insulation Local 675 of the United Brotherhood of Carpenters and Joiners of America ("the Drywallers"), in February 1995, but it was withdrawn after the filing of a response by Fahuki.
At the time of the application for certification, and when the events complained of in this application occurred, Fahuki was engaged in work at five job sites:
(1) 155 Old Kennedy Road, Markham ("Old Kennedy Road");
(2) 4331 14th Avenue, Markham ("14th Ave.");
(3) 355 Premier Place, Newmarket ("Premier Place");
(4) 346-348 Spadina Avenue, Toronto ("Spadina Road"); and,
(5) 10 Royal Orchard Blvd., Markham ("Royal Orchard").
Work at a sixth site, 31 Pendrith Street, Toronto ("Pendrith Street"), was ongoing at the time of
the application for certification, but had since been substantially completed.
- The Board heard extensive evidence about the nature and the status of the jobs at these sites, which it is not necessary to reproduce here. Much of this evidence was disputed, but certain
facts emerged: all of the projects are expected to be completed by the middle of August, 1995, and in many cases are already behind schedule for completion. In addition, it is clear that much of the work on these projects, particularly those involving new construction rather than renovation, either has been, or will be, sub-contracted to various trades. Fahuki has not yet obtained any further work.
In addition, the Board heard substantial evidence about the work performed by the employees of Fahuki at these sites, which I will not review in detail. Generally, the employees working for Fahuki are engaged in general labour such as clean-up, set-up, demolition, assisting other trades, and small jobs not significant enough to merit sub-contracting. This clearly requires the employees to use a wide variety of skills, although they do not generally spend a lot of time doing one particular task so as to gain a great deal of experience in any trade. I note, however, that there was no evidence led about the tasks performed by the employees on the certification application date. For this reason, these factual findings should not be considered to have any weight with respect to the issues in dispute on the application for certification.
On June 15, 1995, the parties met with a Labour Relations Officer of the Board to discuss the application for certification. Lawrence Lam attended that meeting on behalf of the employer, and he reported on the meeting to his brother, Louis Lam.
On the same day, June 15, 1995, two employees of Fahuki, Inmar Barton Moran ("Barton") and Walter Perez, were working at the Old Kennedy Road job site together with the foreman Lupo.
Late in the day, after the afternoon break, Lupo was observed by these employees meeting with and having a conversation with Louis Lam on the job site. Lupo then rejoined the two employees and, according to Barton, told them that Lam wanted to know if Lupo had had any discussions with the employees about the proposed unionization. Lupo told the employees that he knew who had signed cards, but also tried to get the employees to tell him who had signed, and to confirm that they had signed. When the employees denied signing cards, he got got upset and angry, telling them that he knew they had signed. Eventually, Perez admitted to Lupo that he and Barton had signed.
Lupo told the employees that a union wouldn't assist them in any way, citing family experience with unions. When the employees disagreed with him, he made a statement to the effect that "we'll see if the union can get you a job once you are laid off". He also said that the company had many ways of avoiding unionization, including terminating the present employees and hiring new ones, and changing the name of the company.
On the following day, June 16, 1995, Barton was again at work at the Old Kennedy Road site, this time with another employee, Jose Reynal Garcia. Lupo once again approached them and began to speak about the union, saying "I guess you guys are laughing because you are with the union". When the employees said that they didn't know what he was talking about, he again claimed to know that they had signed cards. Garcia asked him why he was getting angry, given that he was not an owner of the company, and Lupo responded that he would see them to say "good-bye" if they brought in a union, and that he wished them good luck.
The evidence given by Barton and Garcia about these conversations between Lupo and the employees is unchallenged, as their testimony in this regard was not disputed during cross-examination, and Fahuki chose not to call evidence from Gino Lupo. Instead, Fahuki took the position that Lupo was not acting on the instructions of the owners, and that the company had no knowledge of whatever was said on the jobsite. The significance of this argument will be considered below.
On Friday, June 16, 1995, the three Lam brothers met with Peter Woo to discuss progress at the various sites. At this informal meeting, which occurred at approximately 5:00 p.m. that day, they decided to lay-off three employees, Barton, Garcia, and Osmar Ortez, effective immediately. They instructed Lupo, who was not present at the meeting, to contact the three employees and advise them not to report to work on Monday.
Lupo called the three employees at their homes during the evening on Sunday, June 18, 1995, and told them not to report to the jobsite the next day and instead to go in to the office to pick up their papers for unemployment. The three employees did go to the jobsite first thing in the morning, at which time Lupo again told them to go to the office to pick up their papers. When they arrived at the office, they spoke to the receptionist, who did not know what they were talking about and contacted Louis Lam on the phone for instructions. The employee who was responsible for preparing Records of Employment, and who signed the ones eventually provided to the employees, was not present at that time. Barton, Garcia and Ortez were told to return to pick up the forms, which they did the following day.
Louis Lam testified that the lay-off of the three employees was not related to the application for certification or to the conversation between Lupo and the employees, but was motivated entirely by the need to reduce the workforce because of a lack of work.
The three employees, however, testified that there was still work to be done at the job sites at which they had been employed when they were laid off effective June 19, 1995.
The company has periodically laid off employees when work is not available. Indeed, two of the employees who were laid off on June 19, 1995 had previously been laid off temporarily. The employer admitted, however, that three employees had never been laid off together in the past. It was not disputed that these lay-offs are not always carried out in reverse order of seniority, although that appears to be a factor, as the employer may retain employees who have special skills depending on what work remains to be completed. In the present case, Barton, Garcia and Ortez are the three least senior employees but for one employee, Luis Viero Majano, who is particularly experienced in painting.
Information provided by the employer, which was not disputed by the union, establishes that since October, 1994 six other workers have been laid off by Fahuki, prior to the lay-off which is the subject of this application. One employee was laid off in each of the months of October and November, 1994, and February and March, 1995; two employees were laid off in December, 1994, on the 8th and the 12th. The employer asserts that these lay-offs, like the present ones, occurred because of a shortage of work, as the company has been slowly reducing its workforce to reflect the fact that no new projects have been obtained and the present work is close to completion.
The employer also asserted that further lay-offs will occur as the work at the current job sites is completed, unless new projects are obtained by Fahuki.
DECISION
The applicant claims that the employer has violated sections 65, 67 and 71 of the Act. These sections are set out below:
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.
Also relevant to the present application is section 91(5) of the Act, which reads as follows:
91.(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
There are two aspects to the complaint brought by the union: the allegation that the comments made by the foreman Gino Lupo to employees on June 15 and 16, 1995, constitute intimidation, coercion and/or threats contrary to the Act; and the complaint that the lay offs of the three employees effective June 19, 1995, constituted discrimination, intimidation, coercion, threats and/or the imposition of a penalty for union activity, contrary to the Act.
As noted above, the comments made by Lupo were not disputed by the employer, and Lupo was not called to give evidence. In these circumstances, I can only conclude that the comments were made as recited by the employees Barton and Garcia. It is clear from their evidence that Lupo made statements which are in and of themselves contrary to sections 65, 67 and 71 of the Act. Lupo's questions about union involvement constitute interference with the employees' right to join a union, and in the circumstances they had an intimidating and threatening effect. Even more serious are his comments about the threat of a lay-off, which were framed in a way which suggested that the employees were at risk of termination if they supported the union. Such comments constitute threats relating to job security, and are thus clearly contrary to the Act. Finally, Lupo clearly tried to intimidate the employees by threatening them that the employer would take steps, including the lay-off of employees, to avoid unionization. In these circumstances, I must conclude that Gino Lupo committed an unfair labour practice when he spoke in this manner to employees on June 15 and 16, 1995.
The responding party claims, however, that Lupo was not acting with the knowledge, or on the authority, of the employer if and when he made such comments. In the circumstances, such an argument cannot succeed. It was not disputed that Lupo was a foreman, directly responsible for supervising the employees on the job sites. Indeed, it was clear that the Lams had little or no contact with employees, and relied entirely on Lupo, and to a lesser extent Peter Woo, to manage them. The evidence discloses that Lupo exercised managerial duties within the meaning of the Act, and that he was perceived by the employees to wield power over them. As such, he was acting with at least the ostensible authority of Fahuki. For these reasons, I find that the comments made by Lupo constitute a violation by the employer of sections 65, 67 and 71 of the Act.
The second aspect of the union's complaint relates to the lay-off, only a few days after these comments were made by Lupo, of three employees, including two of the employees who were involved in the discussions with Lupo. The employer claims that the timing of these lay-offs was coincidental, but having reviewed all of the evidence, I do not find this assertion to be convincing.
While the employer submits that the lay-offs occurred because of a lack of work, the evidence to establish such a shortage is quite unsatisfactory. As noted above, all of the projects were expected to be completed within two months of the lay-off, which might suggest that the work was running out, but also establishes that the employer was under significant pressure to finish work quickly. Substantial amounts of work remained at a number of the sites, which the employer was considering, but had not yet committed to, sub-contracting. Indeed, Lam testified that at the Old Kennedy Road site the employer was under such pressure to finish the job that it was no longer sure it would be able to complete the required work on its own, and might have to consider sub-contracting work which it had previously intended to complete using Fahuki employees. The work remaining at the time of the lay-offs included tasks such as painting, drywalling and landscaping, which Fahuki employees had done in the past.
The evidence called by the employer concerning a shortage of work also does not explain the timing of the terminations. No particular projects were completed the week prior to the lay-offs, and indeed the specific tasks that the three terminated employees were working on at the end of Friday, June 16 had not been completed. In particular, it was theunchallenged testimony of the employees that the carpentry work involved in building the pulpit at the church at Old Kennedy Road, on which two employees and the foreman had been working, would take at least two further weeks to complete. Similarly, it was not suggested that the work gluing insulation at the 14th Avenue site was completed at the time of the lay-off. There is no specific explanation, therefore, of the decision at that time to reduce the size of the workforce, particularly to such a large degree (three out of eight workers). The employer argues that the timing does not raise the spectre of anti-union animus, as several weeks had passed since the filing of the application for certification. The union argued plausibly, however, that it may only have been at the meeting that the employer realized that the union was not intending to abandon its application, given its previous experience in February, 1995, with the application by the Drywallers.
In the circumstances, therefore, I am not satisfied with the explanation for the lay-offs provided by the employer. The Board has long held that anti-union animus does not have to be the sole or even the predominant reason for activity complained of in order for a violation of the Act to be found. Given the absence of a credible explanation and having regard to the timing of the lay-offs, following so soon after the meeting with the Labour Relations Officer and immediately after the threats made by Lupo, which included references to lay-offs, I cannot conclude that the decision was free of anti-union motivation.
Louis Lam testified on behalf of the employer that the decision to terminate the employees was not motivated by anti-union animus, but it was clear from his testimony that a number of other members of management had input into the decision. He also claimed not to have discussed the union campaign, or the imminent lay-off, with Lupo, prior to the decision, but we have no knowledge of what discussions the others present at the meeting where the decision was made may have had about the union's application, with Lupo or otherwise. Equally, we do not know whether anti-union animus played a role in the decision of the other two Lam brothers, or of Woo, to terminate these three workers. Woo's role is of particular concern, given that he, according to Lam, advised the others that there was insufficient work to maintain the full workforce. Woo was not called to testify, so I have no knowledge of the extent to which he shared Lupo's views about unionization, and/or discussed it with him. As it seems clear from the comments made by Lupo, however, that he had knowledge of the application for certification, it is likely that he had discussions with some member of management.
Given these gaps in the evidence about the decision, and in light of my conclusions concerning the alleged shortage of work, I have concluded that the employer has not met its onus pursuant to section 91(5) to establish that it did not act contrary to the Act by demonstrating that the lay-offs were not motivated by anti-union animus. I find, therefore, that the employer violated sections 65, 67 and 71 by terminating Barton, Garcia and Ortez effective June 19, 1995.
Having regard to the findings reviewed above, the Board orders that the responding party:
(1) post immediately copies of the attached notice marked as "Appendix", in conspicuous places at its office and on each active job site, where they are likely to come to the attention of employees, keep the notices posted for sixty consecutive working days, and take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material; and,
(2) immediately reinstate in employment Inmar Barton Moran, Jose Reynal Garcia and Osmar Ortez, and compensate them for all real losses suffered as a result of their lay offs.
- The Board will remain seized of this matter in the event the parties are unable to agree on the exact amount of compensation, and in any event with respect to the request for relief pursuant to section 9.2 of the Act, as noted in paragraph 5 above.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
WE HAVE POSTEO THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD. ISSUED AFTER A HEARING ARISING OUT OF THE EFFORTS OF THE INTERNATIONAI. UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN. LOCAL 2 TO BECOME THE COLLECTIVE BARGAINING AGENT FOR OUR EMPLOYEES. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY CERTAIN STATEMENTS MADE BY FOREMAN GINO LUPO TO EMPLOYEES ON JUNE 15, 1995 AND 16, 1995. AND BY THE LAY-OFF OF INMAR BARTON MORAN, JOSE REYNAL GARCIA AND OSMAR ORTEZ ON JUNE 19, 1995.
THE BOARD HAS ORDERED THAT WE REINSTATE THESE THREE EMPLOYEES IMMEDIATELY. AND THAT WE COMPENSATE THEM FOR THEIR LOSSES ARISING FROM THE LAY-OFF.
THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.
THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS,
TO ORGANIZE THEMSELVES,
TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNIONI
TO ACT TOGETHER FOR COLLECTIVE BARBAININGI
TO REFUSE TO DO ANY OR ALL OF THESE THINGS.
WE ASSURE ALL OF OUR EMPLOYEES THAT,
WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS,
WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.
FAHUKI CONSTRUCTION INCORFORATED
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 25TH DAY OF JULY, 1995.