[1997] OLRB REP. NOVEMBER/DECEMBER 970
1052-97-U, 1053-97-U Hospitality, Commercial and Service Employees Union, Local 73 chartered by Hotel Employees Restaurant Employees International Union, Applicant v. Societa Italiana Di Benevolenza Principe Di Piemonte c.o.b. as the Da Vinci Centre, Responding Party
BEFORE: Laura Trachuk, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
APPEARANCES: Denis Ellickson, Frances Dubois, Jody Aiken and Kris Mayes for the applicant; Fred Bickford, Renato Rigato and Rick Armour for the responding party.
DECISION OF VICE-CHAIR LAURA TRACHUK, AND BOARD MEMBER D. A. PATTERSON; November 21, 1997
Board File No. 1052-97-U is an application under section 96 of the Labour Relations Act, 1995 alleging that the responding party (referred to as the "Centre") has not complied with a settlement resulting from a previous application to the Board. During the course of the hearing, the applicant (referred to as the "union") indicated that it would not be proceeding with that application and it is hereby withdrawn with leave of the Board.
Board File No. 1053-97-U is an application under section 96 of the Act alleging that the Centre committed a number of unfair labour practices when it reduced the hours of, and then terminated the employment of, two maintenance employees on June 18, 1997.
Preliminary Matters
- In response to a number of preliminary motions submitted by the responding party, the Board unanimously made the following oral ruling denying the motions but limiting the scope of the hearing:
The Board has carefully considered the submissions of the parties.
The Board finds that the applicant has made out a prima facie case for a violation of the Act in Board File No. 1053-97-U. That case can be described as, and is limited to, the following: whether or not the two maintenance employees were laid off because, or partly because, the union was claiming that they were in the bargaining unit.
The Board need not decide and will not decide whether or not the two individuals were regularly employed for more than twenty-four hours per week and were therefore in the bargaining unit as that is a matter for a Board of Arbitration. The Board will therefore not hear any evidence with respect to that issue.
The Board has also decided that in these circumstances it need not hear the facts which gave rise to the settlement which is the basis for Board File No. 1052-97-U. It is unclear to the Board whether or not the union is still seeking to proceed with the claim that that settlement has not been complied with and the union should so advise us.
In the circumstances of this case the Board considers it appropriate that the employer proceed first, in accordance with its onus.
The Board indicated at the end of the above ruling that reasons for the ruling might be included in its final decision. The Board considers it appropriate to provide brief reasons as to why it found that the union had made out a prima facie case for a breach of the Act but also found it appropriate to defer the determination as to whether or not the the maintenance employees in question were actually in the bargaining unit to a Board of Arbitration.
The Centre argued that the two employees were not in the bargaining unit as they did not regularly work more than twenty-four hours per week, there was no wage rate for them in the collective agreement, and the union had never claimed them before. According to the Centre, since they were not in the bargaining unit the union could not file a complaint on their behalf under the Labour Relations Act, 1995.
The application relies on various sections of the Act which the applicant claims have been violated. Sections 70, 72 and 76 of the Act state as follows:
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.
Sections 72 and 76 above refer to any "person" and are therefore specifically not limited to the protection of individuals who have been found to be members of certified bargaining units. The Board has found on numerous occasions that these sections are not so restricted. In this case the collective agreement applies to anyone working regularly more than twenty-four hours per week. It must be open then, for the union to claim that an individual is working more than twenty-four hours per week without exposing that person to a reprisal for which no remedy is available unless the union is correct. Furthermore, the union has its own interest in the ability to enforce its collective agreement without fear of reprisal against itself or any individuals it purports to represent. Section 70 protects the union against such employer interference. Therefore, the Board found that the union had made out a prima facie case for a violation of the Act and that the Board need not find that the two employees were actually within the bargaining unit to make that determination. The decision as to whether the employees were regularly working more than twenty-four hours per week is a matter arising under the collective agreement and is therefore a matter which should be heard by a Board of Arbitration.
Facts
The relevant facts giving rise to the application in Board File No. 1053-97-U are not in dispute. The parties do have a dispute about the Centre's motivation for the terminations and some of the facts it relies upon to support its claim that it had no anti-union animus.
The responding party is an non-profit Italian cultural and social club which is also involved in charitable activities. It runs a facility, the Da Vinci Centre, which contains a number of banquet and meeting rooms and a sports bar. It has had a collective bargaining relationship with the union since approximately 1975. The recognition clause in the collective agreement states as follows:
ARTICLE 2- RECOGNITION:
2.01 — The Employer recognizes the union as the sole and exclusive bargaining agent of all Employees of the Employer employed at the Da Vinci Centre in Thunder Bay, Ontario, save and except Manager and persons above the rank of Manager, Confidential Secretary and person regularly employed for not more than twenty-four (24) hours per week. The Union recognizes a non-union supervisor or department head in each department who shall give direction to Employees.
The employees covered by the recognition clause have historically been full-time bartenders and serving staff. The union did not claim that any other employees worked more than twenty-four hours per week and were therefore covered by the collective agreement until after it was placed under trusteeship in 1995. Since then it has made the claim on behalf of two serving staff and the two maintenance/cleaning employees, Mr. Kris Mayes and Mr. Jody Aiken, whose terminations are the subject of this application.
On May 12, 1997, the union's business representative, Mr. Ed Goralski, wrote to the Centre's manager, Mr. Rick Armour, and advised him that the union was taking the position that the two maintenance employees worked more than twenty-four hours per week and were therefore covered by the collective agreement. Mr. Goralski requested that the Centre start deducting union dues from their wages and meet to negotiate wages for their classification.
Mr. Goralski subsequently contacted Mr. Armour by telephone with respect to this issue and was advised that the Centre did not want to deal with this matter until a similar outstanding application with respect to a server/bar-tender was resolved. Mr. Goralski apparently acquiesced.
The parties entered a settlement with respect to the earlier application around the end of May. On June 4, 1997, Mr. Goralski wrote another letter to Mr. Armour asking when the union could expect a response to its May 12 letter. This letter was followed by telephone call from Mr. Goralski to Mr. Armour which resulted in Mr. Goralski swearing at Mr. Armour and Mr. Armour hanging up on him. On June 20, 1997 Mr. Armour wrote to Mr. Goralski and advised him that the Centre did not consider the two individuals to be covered by the collective agreement and that their employment was being terminated since the Centre had decided to contract out their work. The union then filed this application.
One of the union's witnesses, Ms. Frances DuBois, testified that at the commencement of the last round of collective agreement negotiations Mr. Goralski asked whether any other employees regularly worked more than twenty-four hours per week and that the Centre replied in the negative. One of the Centre's witnesses testified that he could not recall such a question being asked and the other witness denied that it was asked. There is no wage rate for a maintenance employee in the collective agreement and maintenance employees have never been considered to be covered by the agreement in the past.
In April, 1997 the Centre contracted/hired another cleaning/maintenance person, Mr. Manuel Munoz. Mr. Munoz had worked for the Centre the previous year on what it believed to be a contract basis and had "resigned". Mr. Munoz "resigned" again in July, 1997. The Centre also has a part-time employee, Mr. Jeff Clawse, who performs cleaning and maintenance work on weekends. Mr. Munoz and Mr. Clawse continued to work at the Centre after Mr. Mayes and Mr. Aiken were terminated.
The Centre's Evidence
The Centre claims that it contracted out the maintenance/cleaning work and terminated the employment of Mr. Mayes and Mr. Aiken for economic reasons and not because the union was trying to include them as part of the bargaining unit. The Centre claims that it had already decided to contract out the work before it received the union's May 12 letter. It called two witnesses to support this position.
Mr. Renato Rigato is a member of the Society and has held many executive positions, including president and recording secretary. He testified that the Centre had contracted for maintenance/ cleaning services and various other maintenance services in the past. In 1993 the executive decided that it would use its own employees for the maintenance/cleaning work because it had some concerns about the honesty of the personnel supplied by the contracting service. Some of the contracts that were introduced through Mr. Rigato look very much like employment contracts, however, it is apparent that the Centre distinguishes between these arrangements and those it recognizes as employment relationships.
Mr. Rigato testified that the Society and the Centre had been losing money for a number of years and in January, 1997 decided to consider a number of initiatives for saving money including contracting out the cleaning services. The notes of the January meeting of the management committee do indicate that the possibility of contracting out cleaning services was to be explored. In February, the Centre's accountant attended the meeting of the management committee and advised it that the Centre needed to find ways to save money and to generate more revenue. By that meeting the Centre had received tenders from three cleaning companies. The tenders varied from quotes of $1,200.00 per month to $3,000.00 per month.
Mr. Rigato testified that the Centre had not definitely decided to contract out the cleaning services in February as it wanted to wait and see if the financial situation would improve. In cross-examination he also testified that the Centre had not yet decided that it would save money by contracting out this service. He testified that the decision to contract out the work was made either at the April, 1997 management committee meeting when it found that the Centre was still losing money or in a conversation he had in April with the General Manager, Mr. Armour. The minutes from the April management committee meeting do not make any reference to contracting out cleaning services. It was brought to the witness's attention in cross-examination that the financial reports produced by the Centre indicate that its losses for March and April were lower than they had been for some time, indeed the Centre showed a profit in April for the first time in many months.
Mr. Rigato testified that although the decision to contract out the maintenance/cleaning service to Wizard Cleaning was made in April, 1997 the Centre decided not to begin the contract until June because its slow period does not begin until May or June. The Centre did not inform the two employees affected that it had made the decision and that they would therefore be terminated until June 18, 1997. No explanation was provided to the Board for the decision to delay this information. The contract between the Centre and Wizard Cleaning which was submitted to the Board is undated but indicates that it is to commence on June 19, 1997. Mr. Rigato also testified that in April the Centre re-hired Mr. Manuel Munoz to "fill a void" because it needed someone to work extra hours.
Mr. Rigato testified that he believed that the Centre will save $300.00 per month on labour by contracting out the cleaning. He could not explain which calculation was used to come to that conclusion. He also testified that the savings in wages was not the only reason to contract out the work. He explained that by contracting out the cleaning work, the Centre made it possible for its maintenance supervisor to do more hands-on cleaning as he did not have to spend time supervising the two cleaning employees and the contracting company would supply its own cleaning equipment. He also testified that the Centre reduced the hours the bar was open in the month of March to save money but went back to the regular opening times in April.
The Centre's second witness, Mr. Armour, was the manager of the Centre from 1991 until July, 1995 and then from June, 1996 to the present. Mr. Armour has worked in the hospitality industry for many years. He has also generally worked in a unionized environment. Mr. Mayes, Mr. Aiken, Mr. Munoz, Mr. Clawse and the maintenance manager were already employed when Mr. Armour returned in June, 1996. He testified that there was nothing wrong with their work. He attended the management committee meetings in January and February, 1997 when the possibility of contracting out the cleaning work and other cost saving measures was discussed. He explained some of the cost saving and revenue generating measures that the Centre undertook. He also testified that the committee had calculated that the Centre could save $300.00 per month by contracting out the cleaning to Wizard. This calculation was based on paying Mr. Mayes and Mr. Aiken $7.00 per hour (rounding up from their real wages) for twenty-four hours per week. He testified that the final decision to contract out the cleaning work to Wizard was made in February, 1997. Subsequent to that date there were only a few details to work out with the contractor. He claimed that the decision was reconfirmed in the April, 1997 management committee meeting. He testified however, that it was decided not to start the contract until June, 1997 when the Centre started its slow period. He also testified that the contract itself was not signed until June, 1997. He also confirmed that he did not inform the two affected employees of the decision to contract out the work until June 18, one day before the new contract was to start.
Mr. Armour was also cross-examined about the management committee's determination that contracting out the work of the cleaning employees would save the Centre money. It was pointed out to him that by his calculation, the Centre was only saving $100.00 per month by contracting out the cleaning to the company it chose. The other companies which provided tenders would have cost more than using the Centre's own employees. He testified that there were other cost savings, such as the provision of cleaning equipment by the contractor. (The Centre continued to provide cleaning supplies.)
Mr. Armour testified with respect to the alleged reduction of hours of the two employees after Mr. Goralski wrote and informed the Centre that in the union's view they were working more than twenty-four hours per week and were therefore full-time and in the bargaining unit. He explained that the Centre was starting its slow period at that time and therefore the need for cleaning was reduced. He also testified that Mr. Munoz, had been hired/contracted in April to do cleaning and maintenance.
Submissions of the Parties
The following is a brief synopsis of the submissions of the parties.
The Centre argues that this case is distinguishable from the usual matters in which "anti-union animus" is raised because the two employees in issue were not in the bargaining unit and are therefore not protected under the Act. Furthermore, according to the Centre, the union has not shown any interest in representing them in the past. The tangible effect of this lack of interest is that the Centre has historically contracted out this work without question. In this case the evidence supports the finding that the Centre was following through with plans made several months previously. The Centre's ability to carry out those plans should not be affected by one letter written by the union. The Board should not draw any inference from the Centre's failure to advise the employees of the decision to contract out their work because it had no legal obligation to do so providing it complied with the Employment Standards Act. The Centre asks the Board to impose damages on the union for "abuse of process".
The union argues that the Centre has not met the onus of proving that the decision to contract out the cleaning/maintenance work and to terminate the employees was not tainted by anti-union animus. It claims that the timing of the contracting out of the cleaning/maintenance work, closely following the union's letter, proves that the decision was tainted by anti-union animus in the absence of the Centre's failure to demonstrate the contrary. The union claims that if the decision was made for bona fide reasons the Centre would have been able to demonstrate that and has not done so.
In reply, the Centre argues that the union has violated the "rule in Browne v. Dunne" by not putting its view that they were not credible to the witnesses, along with the reasons for that view.
Decision of the Board
The majority finds that the Centre has not discharged the onus of proving that there was no anti-union animus in its decision to terminate the two employees. The timing of the Centre's actions leads inevitably to the conclusion that those actions were motivated in part by anti-union animus unless the Centre can prove that it had already made the decision to contract out the work prior to receiving the union's missive informing it that in its view the employees were in the bargaining unit. The only correspondence from the Centre after receiving that letter is the letter a few weeks later advising the union that the employees were being terminated and that the work was being contracted out. The Centre's evidence does not demonstrate that it had made the decision to contract out the work prior to receiving the union's letter. The evidence shows that the Centre had considered doing so the previous January and February but it does not appear that any decision was made to do so until after receipt of the union's letter. The majority finds that the most likely explanation in the circumstances is that the Centre calculated the small savings that would be gained from contracting out and decided not to pursue it until it realized that the employees might be in the bargaining unit, at which time the option became much more attractive. This finding is supported by the facts that the Centre's finances actually improved after February, 1997, that there are no minutes indicating that a decision to contract out the service had been made at any management committee meeting, that the Centre's two witnesses did not agree on when the decision had been made, and that in April the Centre found that it actually had to hire another employee/contractor because there was so much work to be done. Most importantly, the majority's conclusion is supported by the facts that the contracting out arrangement did not start until June, 1997, the employees were never informed that such a decision had been made until June, 1997 and the contract itself was not entered into until June, 1997. Finally, although the Centre claims that it was seeking ways to reduce costs, no other employee, including Mr. Clawse and Mr. Munoz was laid off or had their "contract" terminated. In light of those facts, it is just not credible that the decision was made prior to receipt of the union's letter. The timing of the Centre's actions, therefore, leads the majority to the conclusion that the decision to contract out the work and terminate the employees was tainted, at least in part, by anti-union animus.
The majority does not find that the union violated the rule in Browne v. Dunne, at least with respect to any matters relevant to this decision. The union called little evidence in this hearing and none which could contradict the Centre's witnesses with regard to the crucial factor of the timing of its decision as the union does not possess that information. The majority's decision is based on the Centre's own evidence weighed on the balance of probabilities and the undisputed fact that the employees were terminated and their work contracted out after receiving the letter from the union. There was therefore no unfairness visited upon the witnesses which the rule in Browne v. Dunne seeks to avoid. They were given the opportunity to explain their alleged decision to postpone commencing the contract until June. The majority has determined, however, that their explanation is not believable in the circumstances.
The union has also alleged that the Centre reduced the hours of Mr. Mayes and Mr. Aiken after receiving its letter. Mr. Armour did not disagree that their hours may have been reduced but claimed that that reflected a reduction in banquets and other events at that time. Nevertheless, it is not possible for the Board to conclude on the basis of the documents submitted that the hours of the two employees were significantly reduced compared to their hours in the several previous months, which had fluctuated above and below twenty-four hours per week. There were few weeks after the Centre received the union's letter to use as a comparison and Mr. Aiken was absent for a period of five days in June. The Board is therefore unable to find that the union has demonstrated that the two employees' hours were reduced and therefore it is unnecessary for the Centre to meet any onus to show the reduction was not tainted by anti-union animus.
The majority therefore finds that the Centre has violated the Act and hereby:
a) declares that the responding party has violated sections 70, 72 and 76 of the Labour Relations Act, 1995.
b) directs the responding party to cease and desist from the violation of the Act.
c) directs the responding party to reinstate Kris Mayes and Jody Aiken to their former positions and directs that they be compensated for any losses of income and benefits arising from the termination of their employment.
d) directs the responding party to post the Notice to Employees attached as Appendix "A" in a conspicuous place in the workplace for a period of sixty days.
- The applicant has also requested that the Board direct the employer to remit the time cards for all of its employees to the union on a monthly basis, presumably so that it may ascertain whether any other employees are regularly working more than twenty-four hours per week. The Board is not of the view that that order is warranted in these circumstances. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.
DECISION OF BOARD MEMBER J. A. RUNDLE; November 21, 1997
I have reviewed the decision of the majority and with respect must dissent.
The applicant and the responding party have had a collective bargaining relationship since 1975. They have continued to negotiate collective agreements and they continue to process grievances. It is therefore difficult for me to understand how this employer can be a participant in anti-union activity when there has never been any attempt to rid itself of its relationship with the incumbent trade union. Indeed, that concept was never raised by the applicant.
Anti-union animus is primarily a pleading which compliments a certification application. The case before us is an unfair labour practice complaint alleging that the employer, by contracting out work, terminated two employees who the union was seeking to represent. I would have thought that this was an issue more properly decided by a Board of Arbitration.
The issue that still has to be resolved is the validity of the contracting out. This decision in its present form resolves nothing long term for the parties. The employees in question are still subject to lay-off in the event an arbitrator determines that the employer under the collective agreement can contract out. An arbitrator will also decide whether the individuals in the present case are determined to be employees at all and what rights, if any, flow from that finding.
One can understand why the trade union would file this application with the Board; nevertheless, this does not negate the Board's responsibilities to entertain and resolve the main issue. The parties are still from a resolution point no further ahead.
Appendix "A" The [Labour Relations Act, 1995](https://www.canlii.org/en/on/laws/stat/so-1995-c-1-sch-a/latest/so-1995-c-1-sch-a.html)
NOTICE TO EMPLOYEES
Posted by order of the Ontario Labour Relations Board
We have issued this Notice in compliance with an order of the Ontario Labour Relations. Board issued after a hearing in which both the Societa Italiana Di Benevolenza Principe Di Piemontc c.o.b. as the Da Vinci Centre and the Hospitality. Commercial and Service Employees Union, Local 73 chartered by Hotel Employees Rcstaurant Employees International Union had the opportunity to present evidence. The Ontario Labour Relations Board found that we violated the Ontario Labour Relations Act. 1995 in terminating the employment of Kris Mayes and Jody Aiken and has ordered us to inform our employees of their rights.
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. We assure all of you that:
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT intimidate or exert undue influence upon you, whether through meetings, individual conversations or otherwise, to prevent you from exercising your right to associate and participate in the lawful activities of a union.
WE WILL NOT lay off, discharge or threaten to lay off or discharge
any employee because of that employee's union activity or sympathies.
WE WILL NOT in any other manner interfere with or restrain or coerce our employees in the exercise of their rights under the Act.
WE WILL comply with all directions of the Ontario Labour Relations Board.
Societa Italiana Di Benevolenza Principe
Di Piemonte c.o.b. as the Da Vinci Centre
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 days.
DATED this 21st day of November, 1997.