[1996] OLRB REP. SEPTEMBER/OCTOBER 717
0264-96-R; 0356-96-U International Brotherhood of Painters and Allied Trades, Local Union 1819 (Glaziers), Applicant v. Balkan Glass & Aluminum Inc., Responding Party; International Brotherhood of Painters and Allied Trades, Local Union 1819 (Glaziers), Applicant v. Balkan Glass Aluminum Inc., Responding Party
BEFORE: Robert Herman, Alternate Chair, and Board Members F B. Reaume and G. McMemeny
APPEARANCES: Joseph Russo, Sean Keogh, John Templeton, John Belainsky and Alexander Pokinsocha for the applicant; Michael Mitchell and John Kuzev for the responding party.
DECISION OF THE BOARD; September 5, 1996
This is a certification application, in which the applicant relies upon the provisions of section Ii of the Labour Relations Act, 1995, together with an unfair labour practice complaint.
At the originally scheduled hearing day, no one appeared on behalf of the responding party, Balkan Glass, and for reasons expressed by the Board in an earlier decision of June 3, 1996, that matter was adjourned, to Thursday, June 12, 1996, peremptory to the responding party.
On that day, John Kuzev, the President of the responding party, appeared outside the hearing room, but indicated that he was unable to proceed, and refused to enter the hearing room. An adjournment was requested on his behalf by corporate counsel for the responding party, Mr. Mitchell, who arrived after the commencement of the hearing, and was appearing on Mr. Kuzev's behalf solely for the purposes of requesting the adjournment. He requested the adjournment on the basis that Mr. Kuzev was in considerable physical stress, had to be taken to the hospital, and was incapable of proceeding. He advised the Board that regardless of the Board's decision with respect to the adjournment request, Mr. Kuzev would be leaving shortly and would not be either entering the hearing room or remaining for the hearing.
In the result, the Board ruled orally (and issued a written decision setting out the oral decision on June 14, 1996) that the Board would reserve on the adjournment request, until such time as Mr. Kuzev was able to forward medical evidence in support of his request, and that the Board would continue and hear the merits, but reserve on the merits until such time as it decided whether the adjournment should be granted as requested.
The Board has now received the material from the responding party in support of the adjournment request made by Mr. Kuzev. In the result, the adjournment is denied.
As noted, when the matter was initially scheduled for hearing, no one appeared on behalf of the responding party. The Board received a fax the morning of the hearing indicating that the responding party, identified as Mr. Kuzev, would be unable to attend. The only reason given in the fax was the assertion that "due to my personal problem that came up this morning and which requires immediate attention" Mr. Kuzev would be unable to attend. Notwithstanding the lack of detailed reasons for the adjournment request, the Board did grant the adjournment, making the subsequent hearing peremptory to the responding party, and indicating the responding party was to be prepared to proceed.
When hearing resumed on June 12, Mr. Kuzev refused to enter the hearing room. No prior notice of the adjournment request was provided by Mr. Kuzev, notwithstanding the clear indication in the Board's prior decision that the matter was peremptory to the responding party, and notwithstanding Mr. Kuzev's non-appearance on the first scheduled hearing day. Nor did the responding party arrange for any person other than Mr. Kuzev to attend on its behalf, nor did anyone on behalf of the responding party make any submissions suggesting why only Mr. Kuzev could represent it.
On both occasions, no prior notice having been provided to the applicant, the applicant arranged for its three witnesses to attend at the hearing, and on both occasions the applicant was prepared to and wished to proceed with the hearing.
Turning to the medical evidence submitted on behalf of the responding party, the responding party submitted a hospital report, detailing the hospital visit by Mr. Kuzev at approximately 12:45 p.m. on the same day as the hearing. That report indicates that Mr. Kuzev was "stressed with union problems, and it appears to indicate was suffering from "chest pain". In terms of diagnosis, the doctor indicated "anxiety". It appears from the hospital report itself that the stress and anxiety which the doctor found Mr. Kuzev to be experiencing flowed from the company's union problems. And indeed, other documentation submitted to the Board from friends and relatives of Mr. Kuzev appeared to verify the source of Mr. Kuzev's anxiety and stress: that his company might become unionized, and the union was causing him significant problems.
We have some difficulty with the proposition that the stress or anxiety that a principal of a responding party might experience because of a fear of unionization is sufficient reason to cause continual adjournments of a hearing, particularly when there is no indication that no one else could appear on behalf of the company, and where there is indication that the company is continuing to operate in business during the same period.
The responding party also submitted a letter dated June 17, 1996, five days after the hearing, from Mr. Kuzev's doctor, which indicates that Mr. Kuzev "appears to be under severe stress and anxiety", and further indicates that the doctor is arranging for a psychiatrist to assess Mr. Kuzev. As pointed out by counsel for the applicant, in responding to the medical evidence, neither of the two medical reports suggests any underlining physical condition affecting Mr. Kuzev, but both seem to indicate that he is experiencing psychological problems. There are no indications of a heart problem or a heart attack, except as noted in the hospital's report that there was some "chest pain".
In these circumstances, we are not satisfied that Mr. Kuzev was in fact unable to attend at the hearing and participate in the hearing on June 12, 1996, or alternatively, that the responding party was not able to arrange for someone else to attend on its behalf. The medical evidence does not justify the inability of the responding party to be able to proceed that day, given that the matter was peremptory, and given all the circumstances. Accordingly, the adjournment is denied.
Turning to the merits, the Board heard the evidence from two witnesses, both employees of the responding party. Both had been hired by Balkan Glass, to perform glazier work, and at the time of hiring, around October, 1995, neither had been told by Mr. Kuzev that they were only being hired on a temporary basis.
Both employees worked on a number of projects for the company, and both were told that their work quality was satisfactory and that Balkan Glass did not have any problems with how they were working. Both signed union cards, applying for membership in the applicant, some time before April 25, 1996. However, on that date Mr. Kuzev convened a meeting of all employees, at which he showed the employees a letter which he had typed, which stated that the undersigned did not wish to have a union in the company. Mr. Kuzev then put this letter in front of the employees and indicated that the employees had to sign it. He also told the employees that if they did not sign it, he would have to lay them off, and close the company.
The employees did not sign the letter. Mr. Kuzev later phoned some of them at home that night, and they told him that they still wanted time to think about whether to sign the letter. In response, Mr. Kuzev told one of the employees he phoned that the employee was too stubborn, and that he would have to lay him off and all the rest of the employees, and close the company.
When the employees attended at work the next day, several of them received their separation certificates, along with their final paycheques, and they were laid off. Nevertheless, Balkan Glass continued to perform work at the projects at which the employees had been working prior to their lay off.
Based on these facts, the applicant asserts that the responding party breached sections 70, 72 and 76 of the Labour Relations Act, 1995, and in addition to a declaration that the responding party breached the Act, asks that the applicant be automatically certified pursuant to section 11 of the Act.
Those sections of the Act read as follows:
11.( I) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:
An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.
The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about
being represented by the trade union.
No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.
The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.
(2) Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:
A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.
The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.
(3) The Board may consider the results of a representation vote when making a decision under this section.
(4) Subsections 10(1) and (2) do not apply with respect to a representation vote taken in the circumstances described in this section.
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.
To be certified under section 11 of the Act, certain conditions must be met. We turn first to whether the responding party committed unfair labour practice and breached the Act in any respect. In demanding that employees sign statements opposing the union, in threatening that they would be laid off and the company closed if they did not, and in actually laying them off for their failure to sign such statements and to actively oppose the union, the company has clearly breached sections 70, 72 and 76 of the Act. This employer, through the actions of its principal Mr. Kuzev, interfered in an inappropriate and unlawful manner with the employees of the company, seeking to intimidate and coerce them into actively opposing the union. The employer also sought to and did in fact penalize them for their refusal to do so.
Insofar as remedies for these breaches of the Act are concerned, the applicant is not seeking an order reinstating any of the employees who were unlawfully laid off, nor is it seeking any orders with respect to compensation.
We turn next to the second aspect necessary under section II of the Act. We are satisfied that the nature of the contravention here is such that a representation vote would not likely reflect the true wishes of the employees in the bargaining unit. The Board has in the past automatically certified an applicant where the actions of an employer have been of the nature of threats to close the business should the employees support the union. Here threats such as these were followed by lay-offs designed to convey to employees the direct and immediate cost of their failure to comply with the employer's directions in this respect. The message to employees would be clear: that the employer would actively take steps to ensure that employees were penalized should they support the union, that those steps included immediate discharge, and that a vote for the union would be an invitation to further reprisals. In these circumstances, the Board concludes that the true wishes of employees would not likely be reflected through a representation vote.
And with respect to the third requirement under section 11, we also conclude that no other remedial response, short of automatic certification, would meaningfully correct the effects of the unfair labour practice engaged in by the employer.
With respect to the last requirement under section 11, that the trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate, the applicant filed membership cards on behalf of four employees who properly fall within the bargaining unit in question. Although three of those employees were challenged by the responding party, on the basis that they were laid off, we have here concluded that those lay-offs were themselves an unfair labour practice, and accordingly those employees were properly in the bargaining unit at the relevant time.
Thus, the level of membership support represents over 50% of the employees in the bargaining unit, and we are satisfied that this is membership support adequate for the purposes of collective bargaining.
In all these circumstances, certificates will issue forthwith to the applicant, pursuant to section 11 of the Act, with respect to the bargaining units found to be appropriate in paragraph 6 of the Board's prior decision of April 26, 1996.