[1997] OLRB REP. NOVEMBER/DECEMBER 1047
2616-97-R; 2834-97-U National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW), Applicant V. Till-Fab Ltd., Responding Party; National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-CANADA), Applicant V. Till-Fab Ltd., Responding Party
BEFORE: Kevin Whitaker, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Eric del Junco, John Brady and Celia Harte for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; December 1, 1997
I
This matter consists of an application for certification, an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") and a request for certification pursuant to section 11 of the Act.
The matter was scheduled to be heard in Toronto on November 17, 1997, to commence at 9:30 am. Counsel for the respondent employer had written to the Registrar in advance, indicating that the respondent would not be participating in the hearing. When the respondent failed to appear by 10:00 a.m. on November 17, 1997, the hearing proceeded in its absence.
At the outset of the hearing, the applicant requested that as the respondent had failed to appear, the Board should accept as fact, all allegations set out in the applicant's pleadings and further, that the allegations set out in the respondent's materials be disregarded. The applicant argued that as the respondent had an onus pursuant to section 96 of the Act to prove that it did not act contrary to the Act, in circumstances where it failed to appear, the Board should not require the applicant to call evidence in support of its application under section 96 of the Act.
The Board indicated that as the applicant had its witnesses in attendance, it would prefer to hear from them. Accordingly, the applicant called viva voce evidence in support of its application and dealt with the issue of the respondent's onus in argument.
Following evidence, the Board ruled orally that it was prepared to certify the applicant pursuant to section 11 of the Act and that it would grant the remedies sought by the applicant with the exception of the reinstatement of Mr. Ron Wannamaker. On this last issue, the Board reserved its decision. What follows are our reasons and our decision with respect to Mr. Wannamaker.
II
The respondent is located in Norwich and builds tarpaulins. Roughly thirty persons are employed full-time on two shifts, day and afternoon. Don Legue and Bob Wass are President and Vice-President of the company and the owners. Michelle Cote is the Office Manager. Burt VanLoon was the Plant Manager until he was dismissed on October 23, 1997. While Plant Manager, Mr. VanLoon hired, fired and "ran the operation" from the perspective of production employees. Jeff Shaffer and Ron Wannamaker were employees who acted as "inside organizers" for the applicant.
The applicant called as witnesses, Jeff Shaffer, Ron Wannamaker and Burt VanLoon.
The applicant filed a certification application on October 15, 1997. At that time, there were 29 employees in the bargaining unit sought by the applicant. Of those, 21 were members or had applied to be members of the applicant.
On the morning of October 16, 1997, Mr. VanLoon met with Ms. Cote. She told Mr. VanLoon that Messrs. Legue and Wass were "fed up" given the current situation and that the certification application was the "straw that broke the camel's back". Further she said that they would sell the business to a purchaser who would move it to Tennessee in the United States if it became unionized. She also said that Mr. Legue or Mr. Wass as owners could not threaten employees with the loss of their jobs if they voted for the union, but that nothing precluded Mr. VanLoon from doing it. In response, Mr. VanLoon stated that he would have a meeting with the production workers to tell them that if they voted for the union, they would lose their jobs and the plant would be sold and moved to the United States. Ms. Cote said that this would "help the situation",
After his discussion with Ms. Cote, Mr. VanLoon convened a meeting of approximately 17 production workers. Machinery was turned off so that everyone could hear Mr. VanLoon speak. Mr. VanLoon told employees that the company had received notice of the certification application. He handed out small pieces of paper. He told employees to write his phone number on the paper so that they could keep it to use him as a job reference, because the company would be sold and moved to the United States if there was a union. He also told employees that the owners did not want the "hassle" of a union and they already had a buyer and a price negotiated to sell the business to a company in Knoxville Tennessee. The potential purchaser was a company who at that time provided a lot of work to the respondent, something known to all employees. Finally, Mr. VanLoon told employees that if the union was brought in, their wages would be dropped to $10.00 per hour.
Following the meeting with production workers, Mr. VanLoon met with Messrs. Legue and Wass. He told them what he had said to employees. They indicated that they were satisfied with the "message" he had sent.
Later that evening, Mr. VanLoon was telephoned at his home by a number of employees. To each one, he explained that the owners of the respondent were upset and did not want a union to be involved.
Another employee meeting was held on October 21, 1997 at 4:00 P.M. It was attended by approximately 29 employees, those on both shifts. At the beginning of the meeting, Mr. Legue introduced a Mr. Micallef who was a "labour relations expert". Mr. Micallef proceeded to tell employees that he was hired by the respondent as a labour relations consultant and that employees would be better off having a committee negotiate on their behalf with him rather than to have a union. He acknowledged that the choice was theirs but that they would clearly be better off without a union. He suggested that the union might hurt the interests of employees as well as hurting the respondent. He painted a "bad scenario" if the union's attempt to certify was successful and indicated that "people would be out of jobs".
A representation vote ordered by the Board was held on October 22, 1997. The vote results were announced immediately on the close of the poll at 4:45 p.m. The applicant lost the vote by 17 to 12. Immediately after the results were announced, Mr. Wannamaker tendered his resignation to Mr. VanLoon on the grounds that he did not believe that he would be permitted to remain as an employee after having been the person who was known to the respondent as the primary inside organizer. His resignation was accepted and he has not worked since.
At the hearing, Mr. Wannamaker testified that the only reason he resigned was because he knew that he would be fired for his role as inside organizer. Had he known that the applicant could still become certified as bargaining agent, he would not have resigned.
On October 23, 1997, Mr. VanLoon's employment was terminated. He was offered the choice of resigning with five weeks pay or being fired with two weeks pay. He accepted the five weeks pay and now takes the position that he was wrongfully dismissed.
Mr. VanLoon was subsequently told by his replacement Mr. Troy Stewart, that Messrs. Wannamaker and Legue were responsible for bringing in the union and that they should both be fired.
III
- In the circumstances, we find that the respondent has breached the provisions of sections 70, 72 and 76 of the Act. We are also satisfied that the requirements of subsections 11(1) to (4) of the Act have been met and that the applicant should be certified as bargaining agent for employees of the respondent. Further, we find the following bargaining unit to be appropriate for purposes of collective bargaining:
all employees of Till-Fab Ltd. in the Township of Norwich, Ontario, save and except supervisors, persons above the rank of supervisors, office, clerical, sales staff and students.
Having found in the applicant's favour on the basis of the viva voce evidence heard, it is not necessary to rule on the applicant's motion to have the allegations set out in the pleadings to be found as facts.
Clearly, Mr. Wannamaker resigned his position because he thought that he would be dismissed following the applicant's loss in the representation vote. He had good reason to believe this and the respondent's illegal conduct as we have found, led to the result of the vote. Mr. Wannamaker however bears some small portion of responsibility for his resignation in that he was unaware that the applicant could still seek certification in any event, despite the loss of the the vote. It is appropriate to order Mr. Wannamaker to be reinstated to his position forthwith. In the circumstances, he will not he reinstated with retroactive compensation.
IV
- Accordingly, the Board orders and declares:
(1) that a certificate shall issue to the applicant;
(2) that the respondent Till-Fab Inc. has violated sections 70, 72 and 76 of the Act;
(3) that the respondent Till-Fab Inc. is to cease and desist from any further unlawful conduct;
(4) that the respondent Till-Fab Inc. is to post a copy of this decision in a conspicuous place in the workplace for a period of 60 days following the date of the decision;
(5) that the respondent Till-Fab Inc. is to reinstate Mr. Ron Wannamaker forthwith to the position he held as of October 22, 1997, with wages, seniority, service and any other working conditions that he enjoyed immediately prior to his resignation.