United Steelworkers of America v. 526093 Ontario Inc. c.o.b. as Taxi-Taxi, 1999 CanLII 19512

Ontario Labour Relations Board

[1999] OLRB REP. SEPTEMBER/OCTOBER 897

0546-98-U, United Steelworkers of America, Applicant v. 526093 Ontario Inc. c.o.b. as Taxi-Taxi, Responding Party

BEFORE: Kevin Whitaker, Vice-Chair.

APPEARANCES: Jeffrey M. Andrew, Guy Havell for the applicant; Michael G. Horan, David Zaritsky, Donald Wortman and S. Wortman for the responding party.

DECISION OF THE BOARD; September 30, 1999

I

1. This is an application under section 96 of the Labour Relations Act, 1995. The applicant trade union argues that the respondent employer has breached the provisions of sections 70, 72 and 76 of the Act.

2. The substance of the applicant's case is that the respondent committed a number of unfair labour practices and as a result, was able to successfully thwart an organizing campaign undertaken in the spring of 1998. These consisted of generally, threats to close the respondent's business, the promotion of an employee association as an alternative to the applicant, the dismissal of an employee and the undue surveillance of employees.

3. The respondent denies that it has breached the Act.

4. The applicant claims that the respondent's illegal conduct occurred early in the organizing campaign and successfully prevented it from obtaining sufficient membership evidence to apply for a certification vote.

5. On May 8, 1998, the applicant applied for certification without a vote under what was then section 11 of the Act.

6. A hearing before me into both this application and the certification application under section 11 of the Act commenced on June 8, 1998. Continuation dates were set following the June 8, 1998 hearing date, the first one being October 28, 1998.

7. On June 26, 1998, Royal Assent was given to Bill 31. Amongst other things, this legislation amended section 11 of the Act. When the hearing reconvened on October 28, 1998, the respondent moved to have the certification application dismissed on the basis of the amendments to section 11 contained in Bill 31. By decision dated November 13, 1998, I ruled that the respondent's motion should succeed and that the certification application should be dismissed. The hearing of the present application under section 96 continued until completion.

8. For reasons which follow, I find that the respondent has breached the provisions of sections 70, 72 and 76 of the Act. In brief, I find that the respondent is responsible for threats that were made to employees that the business would be shut if unionized and that it actively promoted an employee association as an alternative to the applicant. I do not find that the respondent engaged in undue surveillance or dismissed an employee contrary to the Act. By way of remedy which is described in more detail below, the respondent is directed to post a notice, mail notices to employees, read the notice over its dispatch system and to provide names, addresses and telephone numbers of employees to the applicant.

II

General Factual Background

9. Much of the general factual background is not in dispute. I will review the uncontested facts and then deal separately with each area of contested terrain.

10. The respondent is an incorporated family run taxi company in Oshawa. The principal is Mr. Donald Wortman. Mrs. Irene Wortman, the wife of Mr. Wortman, plays a significant managerial role in the company. The respondent and one other taxi company - City Wide Taxi ("City Wide") - control most of the taxi market in Oshawa.

11. The respondent owns both cars and taxi 'plates', the latter being licenses to operate individual cars, issued by the local municipal authority. There are approximately 90 persons who work for the respondent in a variety of capacities. Most of these persons drive taxis. Others work as auto mechanics or dispatchers. The latter place calls from customers and perform other functions dealing with the assignment of work to drivers.

12. As is typical of the taxi industry, drivers have a variety of different arrangements and relationships with the respondent. Some are employed directly by the respondent. Others known as "independents" own their own cars or plates, drive themselves and employ others to drive for them. The respondent recognizes that persons in each of these categories are its employees for purposes of the Act.

13. The applicant is a large industrial trade union with substantial experience organizing and representing workers in the taxi industry. The applicant is the bargaining agent for employees of City Wide.

14. In the second week of March of 1998, the applicant began a campaign to organize employees of the respondent's. While there were outside organizers involved in the campaign, employee John Keir acted as an inside organizer.

15. Most employees and both Donald and Irene Wortman knew about the organizing campaign within a week or so of its beginning. Mr. Wortman had been told about it by employees who had been approached to sign membership cards.

16. On March 18, 1998, Mr. Keir had a discussion with an "independent" by the name of Mr. Michael Scott. During this discussion, Mr. Scott advised Mr. Keir that if the union drive was successful, Mr. Wortman would close the company down. He suggested to Mr. Keir that they should form an employee association as an alternative to the union and that this would be acceptable to Mr. Wortman.

17. The following day on March 19, 1998, Mr. Scott invited Mr. Keir to a meeting with Mr. Wortman to take place that day at the company premises. The purpose of the meeting was to discuss the proposal to set up an employee association. During the discussion, Mr. Wortman indicated that he would be prepared to deal with the right type of people and observed that those present appeared to "have his interests at heart" or words to that effect. This meeting was videotaped. The video tape was introduced into evidence and I viewed it in its entirety.

18. A meeting of drivers was held on March 21, 1998 at a rented hall. The purpose of the meeting was to discuss the proposed employee association. Drivers were advised in advance about the meeting over the dispatch system and by notices posted on company premises. The photocopy machine in the company office was used to print notices to advise drivers of the meeting.

19. Mr. Scott chaired the drivers' meeting. He sat at the head table along with others he had invited. Mr. Scott advised drivers that Mr. Wortman did not want the company to be unionized and would "close the doors" if the union drive was successful. Drivers understood that Mr. Scott was the largest "independent" driver (in terms of both cars and plates) in the company, had a substantial sum of his own money invested in the company, had been employed by Mr. Wortman as a manager in the past and had a history of acting in Mr. Wortman's stead when he was ill or where there was an emergency. It was understood that Mr. Scott had a "special" relationship with Mr. Wortman, unlike that of other drivers and that he most likely had an "inside" source of information. Drivers were then told about the idea to set up an alternative employee association, that this would be agreeable to Mr. Wortman and that a vote by secret ballot was to take place to elect the officers of the association. The vote was to to be held at the employer's premises.

20. Ballots were prepared using company resources and drivers were advised over the dispatch that the vote was to occur at the company premises on March 27, 1998. The vote took place as planned and drivers voted in the company office, using a ballot box supplied by the company, under company video surveillance.

21. Messrs. Brian Robertson, Dave Smith and Bill Conquer were elected to the executive of the association.

22. During the month of April, a number of circulars were prepared by a driver named Peter Preys. These circulars were entitled "Taxi-Taxi News". They were printed and distributed to drivers using company resources. Mr. Wortman indicated to Mr. Preys at one point that he agreed with the contents of the circulars. This printed material was highly critical of the union drive, and contained offensive, personally vindictive information alluding to the roles of various employees in the drive.

23. On April 27, Mr. Wortman and his wife issued a letter to employees in which they indicated that they did not wish the company to be unionized. Drivers were advised over the dispatch that the letter was available to them to be picked up in the company office.

24. Aside from the written communication, and despite an "open door" policy, Mr. Wortman with few exceptions, declined to speak to employees directly about the union drive.

25. Driver Dave Smith and his wife Irene Smith who was employed as a dispatcher, were involved at various times in March and April in handing out pamphlets and leaflets to drivers both at the company premises and at a "stand" where taxis would wait for fares. At one point, Mr. Wortman appeared at one of these stands.

26. The applicant filed 35 cards as membership evidence prior to the application date. These appear to have been collected between March 12, and April 28, 1998. At a meeting between Mr. Scott and Mr. Keir on March 18, 1998, Mr. Keir showed Mr. Scott what appeared to be four signed membership cards that were in his possession. At the hearing, Mr. Keir testified that he did not sign or collect any membership cards prior to March 21, 1998, and further that he was given cards already collected and signed them as "receiver", despite the fact that he had not witnessed their actual collection. When he provided theses cards to the applicant, he was not asked directly if he was responsible for collecting those cards for which his name appeared as the "receiver".

27. A driver by the name of Carrie Simcoe had been employed directly by the respondent. In early 1998, she had been involved in at least one motor vehicle accident and stopped working as a result of her injuries. She was a union supporter and this fact was known to at least one of her friends, who also knew another driver with the respondent.

28. When Ms. Simcoe contacted Mr. Wortman to ask to be permitted to return to work on a part-time basis, she was told by Mr. Wortman that she would not be taken back. She was told that she was too much of a risk given her accident history.

Threats to Job Security

29. Both Mr. Wortman and Mr. Scott deny that they spoke together explicitly about the issue of whether the respondent's business would close if the applicant was successful in its organizing campaign. Mr. Wortman was adamant in his evidence that he did not indicate this to anyone and in fact studiously avoided talking to employees about the union drive. Despite these denials, I am of the view that the respondent is responsible for the threats about job security that were made to employees.

30. Having heard the evidence of a number of employees, I find that it is beyond doubt that Mr. Scott would be perceived by employees generally as being a member of Mr. Wortman's management team and someone who had a reliable source of "insider's" information provided to him by Mr. Wortman. Mr. Scott had acted as a manager in a formal sense in the past and was known to be the person to whom Mr. Wortman would turn to in an emergency to assist in managing the company. It was well known that Mr. Scott had a sizeable cash investment in the business during the relevant period of time, and was the "largest" independent associated with the respondent.

31. It was Mr. Scott who told employees at the meeting on March 21, that the business would close if it were unionized and indicated that he had an "inside source" of information. Despite the fact that he carried no formal title as manager, I find that Mr. Scott would have been perceived by employees to be speaking on behalf of the respondent when these statements were made.

32. As the Board has indicated in many cases, an employer will seldom leave a trail of hard evidence that discloses its role in cases of this sort. Findings of employer responsibility, where they are made, are invariably based on circumstantial evidence. Except where employers are simply foolish or incompetent, "smoking guns" are rarely found.

33. During the course of the hearing, I heard substantial evidence about the nature of the respondent's business and the culture of this particular workplace. This evidence was given from a variety of viewpoints, all of them to some extent, tainted by bitterness, hard feelings and anger. Having heard the evidence of Mr. Wortman and Mr. Scott and with regard to the usual testimonial factors, I find that Mr. Scott was in fact rather than in title, Mr. Wortman's "right hand man" and that this reality was understood within the respondent's business. Further, I find that it is more likely than not that Mr. Wortman would have known that these statements by Mr. Scott threatening the closure of the business, were going to be made in advance of the meeting on March 21, 1999 and that they were being made with his agreement and at his behest.

34. Where employees are told by a representative of the respondent whom they believe speaks with authority on behalf of the respondent, that the business will close if it is unionized, particularly where this is early in the organizing drive, this tells employees that they must in fact choose between wanting a job or not, rather than whether they wish to be represented by a union or not. In the circumstances of this case, I find that this conduct amounts to a breach of sections 70, 72 and 76 of the Act.

Support for an Alternative Employee Association

35. For similar reasons, as a result of my findings of fact about Mr. Scott's role in the business, I find that employees would understand that Mr. Wortman would not deal with a union but that he wished to deal with an employee association as an alternative.

36. My conclusions on this point are based on the undisputed facts surrounding Mr. Scott's leadership role in the formation of the association, as well as the perceived use of the respondent's resources and facilities in its formulation and establishment. The video evidence demonstrates that Mr. Wortman had no difficulties with the association, and I find that he did in fact, attempt to indicate who it was that he wished to see in a leadership role within the association.

37. I conclude that it is more likely than not that Mr. Wortman and Mr. Scott together formulated a plan to persuade employees to form an alternative employee association so as to preclude employee interest in the applicant's organizing drive and that this message was clearly and unequivocally communicated to employees at the March 21, 1998 meeting and during the days immediately following. I find that this plan was put into effect to interfere with the applicant’s organizing drive and that this amounts to a breach of section 70 of the Act.

Employee Surveillance

38. There is clearly evidence that Mr. Wortman and others who would be known to employees to be supporters of his against the union and to be loyal to his views and wishes, appeared at locations where taxis would congregate to pick up fares. I find however, that this conduct falls short of establishing that there was ongoing employee surveillance that would in any way violate the provisions of the Act.

39. Section 70 of the Act safeguards an employer's right to express their views concerning the issue of an organizing drive so long as this expression does not interfere with the union's rights under the Act. In this case, I find that the line with respect to surveillance has not been crossed.

Discharge of Carrie Simcoe

40. I find that there was a legitimate basis for Mr. Wortman's refusal to take Ms. Simcoe back to work following her request to return. Whether or not there was in fact an insurance risk to the respondent, I am satisfied that Mr. Wortman was concerned about Ms. Simcoe's history of accidents.

41. It seems to me unlikely given Ms. Simcoe's marginal role as a union supporter and the fact that Mr. Wortman offered to assist her in getting hired by an independent, that her position as a union supporter played any role in the fact that she was not recalled to work as a driver. For this reason, I find that a breach of the Act with respect to Ms. Simcoe is not borne out on the evidence.

III

The Conduct of the Union

42. The employer takes the position that even if the Act has been breached, the union is not entitled to any remedy because it has misconducted itself in these proceedings. There are three aspects to this misconduct, - the "keychain" incident where it is alleged that Mr. Keir threatened Mr. Scott with the gift of a keychain, the fact that Mr. Keir signed on a as a reciever with respect to membership cards that he did not in fact receive, and that the signatory of the A-4 form appeared not to have inquired into whether Mr. Keir was in fact the receiver of cards that appeared to indicate that he was.

43. As I have indicated earlier, I find that much of the evidence before me, and I include Mr. Keir's evidence here, is tainted by the personal "warfare" that has gone on between individuals in this matter. There is no dispute about the fact that Mr. Keir did in fact sign as a receiver when he did not collect cards, and that this was not inquired into by the applicant when the A-4 form was prepared. It may also very well be the case that the gift of a key-chain was in fact meant as a gesture of threat.

44. The Board relies heavily on the integrity of an applicant union to adhere strictly to the content of the A-4 declaration. It is not a small matter where it becomes apparent that despite the declaration, cards are in fact signed as having been collected by people who did not in reality play that role. Where this occurs, the entire certification process itself becomes more vulnerable to its critics and this assists no one, including the trade union movement and the particular union responsible.

45. Having said all of this, it must be remembered that the certification application which was made in this matter has been dismissed. In the remaining application under section 96 of the Act, the union is not seeking certification or even that a representation vote be ordered. In these circumstances, I find that despite the union's conduct surrounding the A-4 and the collection of membership evidence, it is appropriate to grant some of the remedies requested by the applicant.

IV

46. The employer has breached the Act in the variety of ways described above. Although the evidence does not establish that the union would necessarily have been successful in its organizing drive, I am convinced that the principal consequence of the employer's conduct is that the union has been unlawfully deprived of the opportunity to attempt to organize the respondent's employees.

47. It is appropriate to fashion a remedy which will attempt to place the union in the position that it would have been in, but for the employer's conduct. In addition to what might be considered "conventional" remedies, the applicant has requested that the respondent be ordered to hold in trust for employees, taxi plates worth a certain value, to be liquidated with the proceeds paid to employees in the event that the employer makes good its threat to close the doors. While I accept the proposition that the Board has the authority to order such a remedy, it is not warranted in this case. Having heard the evidence of the respondent and applicant, it would appear that such a result is unlikely. I am reluctant to order a remedy designed to preclude a remote prospective breach of the Act, particularly where it may impinge on the respondent's ability to maintain the financial integrity of its enterprise.

48. It is necessary to ensure that employees understand that the employer has misconducted itself and that they are free to exercise their rights under the Act. With the exception of having Mr. Wortman ordered to personally sign a copy of the posting, the bulk of the remedies requested by the union are appropriate here. I am of the view that such a personal act is of little utility, symbolic or otherwise, unless it is voluntary. It is akin to ordering an apology, which loses its value upon the ordering.

49. As a result of the employer's misconduct, employees may be reluctant to appear in any way to be in contact with the applicant. It is therefore appropriate to direct the employer to provide employee names, addresses and telephone numbers so that the applicant will have a real opportunity to speak directly to employees should it wish to resume its organizing efforts.

50. Accordingly the Board hereby declares and orders:

(1) that the respondent 526093 cob as Taxi-Taxi has violated sections 70, 72 and 76 of the Labour Relations Act, 1995;

(2) that the respondent is to cease and desist from any such future violations of the Act;

(3) that the respondent is to post in a conspicuous place in the workplace for a period of 60 days, a copy of the notice attached to this decision and that the respondent is to ensure that the notices are not altered, defaced, or covered by any other material. Reasonable physical access to the premises shall be given to a representative of the applicant so that the applicant can satisfy itself that the respondent is complying with this posting requirement;

(4) that the respondent is to have read over its dispatch system, once during each shift, for a period of ten days following the date of this decision, the notice attached to this decision;

(5) that the respondent is to mail a copy of the notice attached to this decision to each member of the bargaining unit proposed by the applicant in the dismissed application for certification in Board File No. 0545-98-R;

(6) that the respondent is to provide the applicant with the names, addresses and telephone numbers of all employees who fall within the applicant's proposed bargaining unit, updated monthly, for a period of six months from the date of this decision.

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNITED STEELWORKERS OF AMERICA, THE COMPANY AND EMPLOYEES PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT 526093 ONTARIO INC. C.O.B. AS TAXI-TAXI VIOLATED THE LABOUR RELATIONS ACT 1995 BY INDICATING TO EMPLOYEES THT THE BUSINESS WOULD CLOSE IF EMPLOYEES CHOSE TO UNIONIZE AND ALSO BY PROMOTING AN EMPLOYEE ASSOCIATION AS AN ALTERNATIVE TO THE UNITED STEELWORKERS OF AMERICA. IN DOING SO, THE COMPANY HAS DEPRIVED EMPLOYEES OF THE ABILITY TO CHOOSE WHETHER THEY WISH TO BE REPRESENTED BY THE UNITED STEELWORKERS OF AMERICA AS A BARGAINING AGENT.

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 UNION

TO REFUSE TO DO ANY OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYI'HING TO INTERFERE WITH THESE RIGHTS

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

526093 ONTARIO INC. C.O.B. TAXI-TAXI

Per: ________________________________

AUTHORIZED SIGNATURE

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 30^th day of September, 1999.