[1995] OLRB Rep. February 122

2988-94-U; 2989-94-R United Food & Commercial Workers International Union, Local 175, Applicant v. Frade's Fruit Ltd., Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and P. R. Seville.

APPEARANCES: Kelvin Kucey for the applicant; no one appearing for the responding party.

DECISION OF THE BOARD; February 8, 1995

1. Board File No. 2988-94-U is an application under section 91 of the Labour Relations Act, alleging a breach of sections 3, 65, 67, 71 and 82 of the Act. Board File No. 2989-94-R is an application for certification under section 9.2 of the Act.

2. In a decision dated November 24, 1994 in Board File No. 2987-94-M, another panel of the Board directed the interim reinstatement of two employees, Shawn Thomasson and Barbara Fraser, pending the resolution of the section 91 complaint.

3. The employer did not attend the hearing in Board File No. 2987-94-M, nor in the matters before us. The reason for the employer's non-attendance, as communicated in letters to the Board seeking a hearing of this matter in Thunder Bay, was its inability to finance the conduct of proceedings in Toronto.

4. The Board is not unsympathetic to parties who may feel themselves unable to participate, or participate adequately, in Board proceedings for financial reasons. However, the Board's own increasingly limited financial resources means that this may occur in some cases. Simply stated, the Board is not able to travel out of town in all, or even many, of those cases in which one or more of the parties may request it. The Board's current travel policy, arrived at after both internal discussion and external consultation, is not to travel out of town for those time-sensitive cases that fall within its "fast-track" scheduling system. These cases include:

(i) Applications for interim relief under section 92.1;

(ii) Expedited unfair labour practice complaints under section 92.2 of the Act;

(iii) Complaints with respect to unlawful strikes or lock-outs under sections 94, 95 and 137 of the Act;

(iv) Expedited applications and complaints with respect to replacement workers under sections 73.1 and 73.2 of the Act;

(v) Applications and complaints with respect to organizing and picketing on private property under section 11.1 of the Act;

(vi) Jurisdictional Dispute complaints under section 93 of the Act;

(vii) Applications for certification and for termination of bargaining rights;

(viii) Applications for first contract arbitration under section 41 of the Act;

(ix) Applications and complaints alleging unlawful termination of employment under the Occupational Health and Safety Act, the Environmental Protection Act, the Smoking in the Workplace Act, the Colleges Collective Bargaining Act, and under sections 65, 67, 71, 81, 81.2 or 82 of the Labour Relations Act;

(x) Applications under sections 41.1, 81.1 and 138.1 to 138.6 of the Act.

5. The reasons for this policy were articulated by the Board in Hemlo Gold Mines Inc., [1993] OLRB Rep. Mar. 158, as follows:

Funding and personnel limitations render it impossible for the Board to schedule fast-track cases outside of Toronto, as the system involves having on standby for fast-track and other expedited cases a rotating pool of Vice-Chairs and Board Members who, as cases settle or finish being heard, are frequently re-assigned to other urgent matters, often on a rush basis which would not be possible if a fast-track panel were in a location away from Toronto such as Thunder Bay.

This policy represents the Board's best effort at balancing the needs of its constituency with its own operational requirements and financial resources. As the present case falls within the fast-track and presented no unusual circumstances, the Board determined that it would hear this case in Toronto.

6. The union called two witnesses to testify in these proceedings, Barbara Fraser and Tracey Talarico. The following is a summary of their uncontradicted evidence.

7. The employer operates a fruit market at two locations in the City of Thunder Bay. The first location is on May Street. The second is on Wardrope Street. The official opening of the Wardrope Street store was on October 31, 1994. The bargaining unit agreed upon between the parties encompasses both stores and includes 17 employees. The majority of these employees work at the May Street store.

8. Barbara Fraser was hired by the employer as a cashier on September 19, 1994. She was hired by Dorothy Faflak, the mother-in-law of the owner of the stores, Robert Frade. Ms. Faflak is an employee of the stores but is excluded from the agreed upon bargaining unit.

9. Ms. Fraser came to the employer with ten years experience in the retail food industry working for large unionized companies. Ms. Fraser testified that, shortly after being hired, she became concerned about the working conditions at the May Street store and discussed the possibility of bringing in a union with Tracey Talarico. The two employees then contacted the applicant, and commenced an organizing campaign the next day.

10. From November 15 until the first week in December, Ms. Fraser and Ms. Talarico approached several employees about joining the union. Two or three employees expressed concerns about signing cards, saying that they were afraid of being fired or that they were "not sure how the employer would take it".

11. Apparently, Mr. Frade had held a meeting of employees in June at which he announced his intention to open the Wardrope Street store and at which he indicated that if anyone ever tried to bring in a union he would close the May Street store and all of the employees would be out of jobs. A similar thought was conveyed to Barbara Fraser at the time she was hired by Dorothy Faflak. Ms. Faflak told Ms. Fraser that if anyone tried to bring in a union they would either "lock the doors" or the person responsible would be fired.

12. During this three-week period, Ms. Fraser and Ms. Talarico were successful in obtaining two other signatures on union cards, including that of Shawn Thomasson. These two cards, along with those of Ms. Fraser and Ms. Talarico, were the only ones submitted with the application.

13. On November 2, 1994, Ms. Fraser was asked by Mr. Frade to transfer to the Wardrope Street store because an experienced cashier was needed to "show the ropes to the other girls". Ms. Talarico testified that Ms. Faflak and Mr. Frade had said that Ms. Fraser was an excellent cashier. Other employees had indicated that she was "great with customers". Ms. Fraser was offered a $1.00 an hour increase, but declined the transfer. Two days later, Tracey Talarico accepted the transfer on a short-term basis, commencing employment at the Wardrope Street store on November 7, 1994.

14. On November 4 or 5, 1994, Ms. Fraser spoke to another employee, Kelly Eagles, about joining the union. Initially, Mr. Eagles displayed some interest in the union and asked a number of questions. Upon finding out, however, that Ms. Fraser had already spoken to the applicant and that four signatures had already been obtained, Mr. Eagles' appeared to lose interest. He began suggesting that unions are trouble and that if one got in Mr. Frade would close the doors. During the course of this conversation, Ms. Fraser advised Mr. Eagles of the names of the four people who had already signed cards. Ms. Fraser had also recently given this information to another employee, Sharon Lockert, who also declined to sign a card.

15. On November 5, 1994, Shawn Thomasson's employment was terminated. The reason given for Mr. Thomasson's termination was lack of work.

16. On November 8,1994, Mr. Frade approached Tracey Talarico at the Wardrope Street store, indicating that he had learned of the union organizing campaign and asking why employees

were interested in a union. According to Ms. Talarico, Mr. Frade said that if the union came in he would close the May Street store and operate the Wardrope Street store with members of his family. Mr. Frade also said that he would "like to find out who brought the union in".

17. On November 14, 1994, Ms. Fraser's employment was terminated. No reason was given for the termination.

18. On November 17, 1994, Tracey Talarico returned to the May Street store. Shortly thereafter, Ms. Talarico, asked Ms. Lockert if she knew why Ms. Fraser had been fired. Ms. Lockert replied that all she knew was that "Barb had been talking about the union too much". Ms. Talarico also approached another employee at this time to attempt to solicit membership. She was advised by the employee that she did not wish to lose her job and would wait to see "what happened". Overall, it was Ms. Talarico's impression that, after the terminations, employees were simply too scared to even discuss the union.

19. On November 21, 1994, the application for certification was filed. On November 25, 1994, Mr. Thomasson and Ms. Fraser were reinstated in their employment on an interim basis as a result of the Board's order referred to in paragraph 2 of this decision. It was the evidence of Ms. Fraser and Ms. Talarico that even after the reinstatements employees were simply too scared to discuss the union. Ms. Fraser also testified that she has been ostracized by her fellow workers.

20. Finally, on December 8, 1994, the accountant, Cory DeVries, who is also excluded from the agreed-upon bargaining unit, distributed the following four-page questionnaire to all employees with instructions that it be returned to Mr. Frade for use by his lawyer:

QUESTIONNAIRE RE: UNIONIZATION

Please answer the following questions:

1. To the best of your information and belief were the terminations of Roberta Fraser or Shawn Thomasson related to their unionization activities.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

2. Did Frade's Fruit Ltd. refuse to employ or continue to employ any person or any employee or threaten any dismissal of any employee.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

3. Did Frade's Fruit Ltd. discriminate against any employee in regard to their employment or intimidate or coerce or impose a pecuniary or other penalty on any employee because of their involvement in the unionization of Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

4. Are you aware of any interference by the owners or operators of Frade's Fruit Ltd. with respect to the formation, information and/or selection of a trade union within Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

5. Has Frade's Fruit Ltd. refused to employ or continue to employ any person because the person was a member of a trade union or attempted to organize a trade union within Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

6. Has Frade's Fruit Ltd. imposed any condition in your contract of employment as a result of your participation in attempting to unionize Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

7. Has any of the owners of operators of Frade's Fruit Ltd. threatened to dismiss you because your are involved in the formation of a union within Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

8. Has any of the owners or operators of Frade's Fruit Ltd. attempted to intimidate or coerce you from becoming a member of a trade union.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

9. Are you unable to express your true wishes respecting the formation of a trade union within Frade's Fruit Ltd. because the owners or operators of Frade's Fruit Ltd., or persons acting on behalf of them, have attempted to coerce or intimidate you.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

10. Has anything said or done by the owners or operators of Frade's Fruit Ltd. affected your ability to freely decide if you wish to unionize Frade's Fruit Ltd.

____ Yes ____ No ____ Not Sufficient Information to Answer this Question

Comments:_____________________________________________

By signing and completing this questionnaire, I acknowledge that I understand the nature and effect of the answers I have provided and further that I have answered such questions of my own volition and without fear, threats, compulsion, undue influence or duress by any other person or my employer.

Name Date Position

21. On the basis of the foregoing, the Board is satisfied that the employer has breached the provisions of sections 65, 67 and 71 of the Act by terminating the employment of Shawn Thomasson and Barbara Fraser. Those provisions state:

65. 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.

66. 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.

71. 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.

22. Ms. Fraser was a key union organizer and Mr. Thomasson was a known union supporter. In the absence of any evidence to contradict that of Ms. Fraser and Ms. Talarico, we are satisfied that the only reasonable inference to draw from all of the circumstances is that the employment of both Ms. Fraser and Mr. Thomasson was terminated, at least in part, because of their support for the union. Accordingly, the Board hereby confirms the order of November 24, 1994 reinstating these employees, and will remain seized with respect to any issue of compensation.

23. We are also of the view that, though the terminations of Mr. Thomasson and Ms. Fraser, Mr. Frade's statements in June, and the subsequent distribution of the questionnaire in the workplace, a climate of fear has been created that would render it impossible for the "true wishes of the employees ... respecting representation by a trade union" to be ascertained. Accordingly, and on the basis of the evidence before us, we hereby certify the applicant under section 9.2 of the Act as the bargaining agent for the following agreed-upon bargaining unit, which we find to be appropriate for collective bargaining:

all employees of Frade's Fruit Ltd. in the City of Thunder Bay, save and except Assistant Managers, persons above the rank of Assistant Manager and Bookkeepers.

24. A certificate will issue to the applicant.

OPINION OF BOARD MEMBER J. A. RUNDLE; February 8, 1995

1. As the Board correctly notes in paragraph 3, of the decision, the employer did not attend the hearing in Toronto for the two cases that are the subject matter of this decision, nor did it attend in Toronto on a previous case. It is important to note why the employer did not attend in Toronto.

2. Several requests were made by counsel for the employer to hold the hearing in Thunder Bay. In a letter dated December 7, 1994 employer counsel cited seven reasons in support of its change of venue request. All seven reasons related to the financial impact the hearing would have on the employer's business if it were to be held in Toronto. The Board denied the request for change of venue and the hearing proceeded in the absence of the employer. I would note that the employer attended all Board Officer meetings that were held in Thunder Bay.

3. The Board in exercising its mandate must do so within certain financial restraints - one accepts this reality. However the policies established by the Board, in this case the travel policy, must not be so restrictive as to preclude those whom the Board is mandated to serve from having equal access to the process. The Board cannot be accessible only to those who can afford to attend in Toronto thereby diminishing the rights of those who reside outside Toronto to exercise legitimate legal claims under the Act. The Board's policies must also be flexible to take into account the specific needs of individual parties, particularly if the policies consistently work to the advantage (and privilege) of certain parties over others.

4. The fundamental principle inherent in the Ontario Labour Relations Act is the right of an individual to choose whether or not they wish to belong to a trade union. The Board's policies cannot be seen to inhibit this basic principle - the right of the individual to choose. It follows that those who lack the resources to attend in Toronto would also lack the resources to pursue an unsatisfactory result in other forums. Within the financial restraints mentioned above, the Board must manage its resources and constantly review its policies so as to ensure a fair balance of the needs of all the communities it serves in carrying out its mandate.