Universal Workers Union, Labourers’ International Union of North America Local 183 v. Bradford Sod Ltd.
File No.: 1364-01-R Date: September 24, 2001 Ontario Labour Relations Board
Between: Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Bradford Sod Ltd., Responding Party.
Before: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; September 24, 2001
1This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the "Act").
2The applicant filed a letter with the Board dated August 23, 2001. This letter contains some very serious allegations. In a decision dated September 10, 2001, the Board said:
… At the very least, the allegations with respect to the fact that the Notice to Employees was not posted, and to the conduct of representatives of the responding party on the date of the vote would, if true, cause the Board to hold another representation vote. Whether the applicant is entitled to any of the other relief sought is a matter to be considered.
The Board directs the responding party to respond to the allegations made in the letter of the applicant dated August 23, 2001. That response must be received by the applicant trade union and by the Board no later than Monday, September 17, 2001 by 5:00 p.m. If the responding party does not respond as directed, the Board will deem all of the allegations contained in the letter to be true and accepted as true by the responding party. The Board will then make its decision based on those facts.
3The responding party filed no response to this decision. The Board therefore is prepared to find that the facts as alleged in the letter of the applicant dated August 23, 2001 are true. These facts are:
During the week after the Employer was served the Application for Certification and prior to the conduct of the representation vote, Gil Francisco (“Francisco”) and Dinis Santos (“Santos”), the owners of the Employer, on their own behalf and on behalf of the Employer, asked each bargaining unit member whether they signed a card, and if they knew what was going on, with the Union;
In addition, on Wednesday, August 15, 2001, the day prior to the Vote, Santos, on his own behalf and on behalf of the Employer, told the bargaining unit members, while he was dropping them off from the days [sic] work, that “if the Company got unionized [he] would shut the company down”;
Further, the Employer never posted the Form B-60, Notice of Vote as required by the Board’s Rules and procedures;
On August 16, 2001, the day of the vote, Santos arrived with all of the bargaining unit members in the van at the vote location, Francisco’s home. When the bargaining unit members proceeded to get out of the van, Francisco and Santos both began to yell at the bargaining unit members. Francisco specifically stated that “if the Union gets in, tomorrow I will close the Company” and “There’s no way I will ever be involved with the Union. Even if the vote goes one hundred per cent for the Union I will shut down the Company and have nothing to do with the Union.” Francisco also went up to one of the bargaining unit members and said to him in Portuguese, “I know that you’re involved with the Union and tomorrow you won’t be working for me”. Santos was also yelling at the bargaining unit members and specifically was heard saying “if the Union gets in I am going to shut down the Company”;
Both Francisco and Santos, on their own behalf and on behalf of the Employer, continued to yell at the bargaining unit members from the time they arrived at the voting site. As a result of these ongoing threats and intimidation, no bargaining unit member cast a ballot at the poll;
For all of the foregoing reasons, it is the position of the Union that the Employer engaged in a course of conduct which was intended to intimidate, threaten and otherwise compel its employees to not support the Union and to not exercise their rights under the Act, and to ensure that the representation vote did not reflect the true wishes of its employees so that the Union’s organizing campaign would ultimately fail;
Accordingly, it is the position of the Union that the Employer has violated sections 5, 70, 72, 76 and 86 of the Act and therefore the relief requested is both necessary and appropriate.
4On this basis, the Board will order a new vote, and extensive remedies to make that new vote a meaningful test of the true wishes of the employees in the bargaining unit. While the Board prefers not to finalize these remedies at this point, such remedies would include:
(a) providing the Board with a copy of the names and addresses of all employees in the bargaining unit so that a Notice of Vote may be delivered to them;
(b) providing the applicant with a copy of the names and addresses of all employees in the bargaining unit so that the applicant may communicate to the employees about their rights under the Act;
(c) requiring the responding party to provide a notice to all employees in the bargaining unit of its violation of the Act and their rights under the Act;
(d) if the majority of employees are still at work for the responding party, an opportunity for the Union to address the employees during working time;
(e) the holding of a second vote in a location where the Board can control the activities of any party near the polling station;
(f) such other relief as may be appropriate.
5However, as a first step, the Board will need to obtain the names and addresses of employees in the bargaining unit from the responding party. The applicant alleges that the responding party is owned or controlled by Gil Francisco and Dinis Santos. The Board will direct them to appear at the Board for the purposes of providing this information, and for the finalizing of relief for the violations of the Act detailed above. To this end, the Board makes the following order:
The Board orders Gil Francisco and Dinis Santos to appear before the Ontario Labour Relations Board at 9:30 a.m. on Friday, October 26, 2001at the Board’s Hearing Room at 505 University Avenue, 2nd floor, Toronto Ontario. At that time both Gil Francisco and Dinis Santos shall bring with them all employment records, or other records of any sort in their personal possession or in the possession of Bradford Sod Limited with respect to the following persons:
Ray Anthony
Steve Brower
Ernie Duncan
Mary Anne Espie
Joel Gentle
Carolyn Hall
Robert Hall
Don Harper
Ramona Kozak or Hosak
Ed Mateo
Brian McKinlay
Mark Puckrin
6Gil Francisco and Dinis Santos are advised by way of this decision that if either of them fails to appear or to bring the documents as ordered, there may be extremely significant consequences. The Statutory Powers Procedure Act provides as follows:
- Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or
(b) being in attendance as a witness at a hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her to answer any question to which the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.
The penalties if a person is found in contempt may include costs, fines or imprisonment, see Plaza Fiberglas Manufacturing Ltd. [1989] OLRB Rep. May 528 (Div. Ct.) and [1989] OLRB Rep. June 707 (OCA).
7The applicant is also to appear at the Board on this day and to perform the following:
At least one week before the date set for hearing to serve both of Gil Francisco and Dinis Santos with a copy of this decision. The person or persons effecting this service will be required to be in attendance to give first hand evidence as to the fact of and the manner of service.
To provide to the Board as soon as possible a certified copy of the records maintained by the appropriate Ministry with respect to the officers and directors of Bradford Sod Ltd.
8I am not seized of this application.
“David A. McKee”
for the Board