GSB# 2010-2240

UNION# 2010-0430-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grifferty)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Bijon Roy and Wassim Garzouzi Raven, Cameron, Ballantyne & Yazbeck LLPS Counsel

FOR THE EMOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING

April 24, May 31, June 18, 2012.

Decision

1The Grievor, John Grifferty, successfully competed for a 12 month temporary assignment as an Entitlement and Integrity Auditor in Production and Verification Services in the Ministry of Government Services. He was subsequently summonsed to appear at a hearing before this Board. In the midst of that hearing, Mr. Grifferty was advised that the individual for whom he was back filling was returning to his home position and management confirmed the previously scheduled end of the Grievor’s assignment. The Grievor completed his temporary assignment but his term was not extended beyond his initial 12-month assignment. The Union alleges that management’s meeting with the Grievor to discuss the term of his assignment and failure to extend his assignment were informed by anti-union animus arising from the Grievor’s participation before the Board.

Facts

2The parties provided the following Agreed Statement of Facts:

1. The Grievor, Mr. John Grifferty, is a regular, OPSEU-represented employee with the Mail Distribution Centre, Logistics Services Branch, Central Services Division of ServiceOntario, Ministry of Government Services (“the Ministry”).

2. The Grievor’s home position is a Document Prep and Delivery Clerk (OAG6) in Kingston, Ontario. The Grievor has been employed with the Ontario Public Service for over twenty-eight (28) years.

3. The Grievor filed a grievance June 28, 2010. The grievance alleges that the Employer violated Article 3.2 of the Collective Agreement.

A copy of the grievance is attached.

Temporary Assignment

1. In May 2009, the Grievor was successful in a competition for one of two (2) temporary assignments for the position of Entitlement and Integrity Auditor. This position was part of the Production and Verification Services in the Ministry.

2. The Entitlement and Integrity Auditor position was classified at the OAG9 level and compensated at $24.32 per hour.

3. The Grievor started his assignment on June 15, 2009. As outlined in his offer letter of June 17, 2009, the end date of his temporary assignment was June 11, 2010. The end date was also reflected on his WEAR form dated June 15, 2009.

A copy of his offer letter is attached.

A copy of his WEAR form is attached.

1. Two other employees were assigned to Entitlement and Integrity Auditor positions at the same time as the Grievor – Louanne Jodoin and Julie Burns.

Union Involvement

1. On December 21, 2009, the Grievor received a summons to appear in a grievance hearing related to Mr. Kim Flynn, an employee who had worked alongside the Grievor when he was in his home position.

A copy of the summons is attached.

1. The Grievor attended the hearing from Tuesday, January 5th to Thursday, January 7, 2010 inclusive. The hearing was adjourned on January 7, 2010 and was scheduled to resume on Monday, January 11, 2010.

2. On the morning of Friday, January 8, 2010, the Grievor submitted a copy of his subpoena to the Employer, in support of his absence.

3. On January 8, 2010 at 3:19 pm, Mr. Whyte was advised via email that Mr. Tran would be returning to his home position and would report to Mr. Whyte at work on January 25, 2010.

A copy of Mr. Tran’s email of January 8, 2010 is attached.

1. On January 8, 2010, Mr. Whyte advised Mr. Grifferty that Mr. Tran would be returning from his secondment at the end of the month. But the Grievor’s assignment would be allowed to finish (in June 2010). The Grievor’s original secondment agreement was not altered.

2. On January 27, 2010, during a PDLP review, Mr. Whyte advised the Grievor that the secondment may not be extended.

3. On May 31, 2010, the Grievor received formal confirmation in writing from Mr. Whyte that his temporary assignment would not be extended. At this time, he was provided with two (2) weeks’ notice.

A copy of the May 31, 2010 letter is attached.

1. The Grievor did return to his home position on June 11, 2010. As per the original agreement.

3The Agreed Statement of Fact was supplemented by testimony from the Grievor and Mr. Ken Whyte, the Manager of the Knowledge Resources Group. The Grievor testified that he was extremely unhappy in his home position as a Document Preparation and Delivery Clerk. It was the same position that he started in 28 years earlier when he joined the OPS: he felt over qualified for the position and no longer found it challenging. He had held a number of other positions throughout his career, however, returned to his current position after receiving a Surplus Notice in 2005.

4The Grievor had previous experience in the Entitlement and Integrity Auditor position and had enjoyed it tremendously. He felt he had a natural aptitude for the work, found his colleagues professional and he enjoyed his duties, including speaking with members of the public. He felt he might have a future in the office and applied for a one-year temporary assignment. He was ultimately successful in the competition and was advised that he had placed first, with seniority playing a major role. The Grievor was aware that the assignment was limited to 12 months, however, he believed that there was a lot of movement in and out of the department and he hoped that his assignment could be extended.

5Mr. Grifferty began his assignment on June 15, 2009 and regularly met with Mr. Whyte. He advised Mr. Whyte of his reluctance to return to his home position and told him that he had previously been off work ill when he had been forced to return to that position. Mr. Whyte offered job coaching and together they explored other opportunities that might be available to the Grievor before or at the end of his current assignment.

6The Grievor was called as a witness at a hearing before this Board in early January 2010. That matter was convened with respect to a grievance filed by a colleague of Mr. Grifferty’s who had been absent from the workplace for several years. Mr. Grifferty attended on January 5, 6 and 7, was at work on Friday, January 8 and was scheduled to return to the Board on Monday, January 11. In Mr. Grifferty’s view, the matter before the Board was highly contentious. He was anxious about possible repercussions as a result of attending the arbitration and asked that he be summonsed to attend.

7On January 8, when he arrived at the office, his supervisor, Barb Davidson, asked for a copy of the summons, which he provided. Management did not raise any concerns about his attendance at the arbitration and Mr. Grifferty was paid for the days he was at the GSB. As far as he was aware, neither Ms. Davidson nor Mr. Whyte knew the details of the grievance being arbitrated, although he believed that Mr. Whyte’s boss was involved in the matter. According to Mr. Grifferty, there was no further discussion or allusion to his participation in the proceedings.

8Mr. Whyte similarly testified that he had no knowledge of the details of the grievance or nature of the proceeding at which Mr. Grifferty had been summonsed to testify. Mr. Whyte was unfamiliar with the process and called a Human Resources Advisor and his Director for advice on the protocol when an employee attends a hearing at the GSB. He did not know whether his Director was involved in the grievance nor did he discuss the substance of the grievance with her or anyone else. Mr. Whyte asked Mr. Grifferty’s supervisor to provide him with a copy of the summons so that he could complete the necessary paper work and ensure that Mr. Grifferty was paid for days he attended at the hearing. Mr. Whyte was aware that the summons was ongoing, however his involvement was limited to the administrative issues surrounding compensation.

9According to the unit’s staffing chart, Minh Tran was the home incumbent for the position filled by Mr. Grifferty while Mr. Tran was on secondment. Mr. Whyte received an e-mail from Mr. Tran at 3:20 p.m. on January 8, advising that his contract was ending and he would be returning to his home position 2 months early, effective January 25, 2010. Mr. Whyte had a white board in his office that tracked employees and the position that they were in. When he received the e-mail from Mr. Tran he saw that Mr. Grifferty was in Mr. Tran’s position.

10Mr. Whyte called Mr. Grifferty into his office around 4:00 p.m. to advise him that Mr. Tran was returning, but that Mr. Grifferty’s contract would be honoured for the full 12-month period. Mr. Grifferty testified that Mr. Whyte also told him that his contract would not be extended beyond the June end date. Mr. Grifferty had not known that he was replacing Mr. Tran and he thought that the timing of the meeting and Mr. Whyte’s comments were very surprising. In his mind, Mr. Whyte could not possibly know what his staffing needs would be at the end of June. Nor did he need reassurance regarding Mr. Tran’s return as he was totally unaware of any connection between his position and Mr. Tran. Mr. Grifferty confirmed that he and Mr. Whyte did not discuss his appearance at the GSB, the grievance at issue in that proceeding or his further attendance the following week.

11Mr. Whyte’s testified that he knew that the Grievor was very anxious not to return to his home position and that he was assigned to fill Mr. Tran’s position. The unit was small, with only 10-12 employees, and Mr. Whyte did not want Mr. Grifferty to learn about Mr. Tran’s return through the grapevine. In his view, Mr. Grifferty was likely to be very upset to hear of the imminent return of a permanent member of the unit. He therefore thought it best to call Mr. Grifferty into his office as soon as possible to reassure him that this would not impact his temporary assignment. He further testified that he told Mr. Grifferty that he would continue to honour his 12-month secondment but could not tell him if his contract would be extended beyond June. He was adamant that he did not tell him that his contract would definitely not be extended, but merely confirmed that June 11, 2010 remained his contract end date, as previously agreed, and that Mr. Tran’s return did not change the terms of his assignment.

12On cross-examination, Mr. Whyte acknowledged that it was unlikely Mr. Grifferty knew that he was filling in for Mr. Tran. He further admitted that the other employees on temporary assignment would also be unlikely to know if they might be filling in for Mr. Tran, yet he did not call them in to advise them of his return. Based on their previous discussions, he believed that Mr. Grifferty would be more upset about someone returning to the unit. Although Mr. Tran was not returning for another few weeks, he felt that there was some urgency in reaching out to Mr. Grifferty so that he would not hear the news from his colleagues.

13At 4:05 on January 8, 2010, Mr. Grifferty sent Mr. Whyte an e-mail to clarify what was said at the meeting as follows:

Hi Ken. Could you please explain what you told me on Friday at 4:00 p.m. since I was in a hurry to leave. It was to do with the duration of my secondment as it related to Minn’s position.

He sent a second e-mail on Wednesday, January 13, 2010, similarly requesting clarification:

Hi Ken. Could you please explain what you told me on Friday at 4:00 p.m. since I was in a hurry to leave. It was to do with the duration of my secondment as it related to Minh Tran’s position. Did you say that he is to return soon?

14Mr. Grifferty testified that he did not receive a written or oral response from Mr. Whyte to his e-mail. Mr. Whyte testified that he wanted to respond in person to Mr. Grifferty’s e-mails. Mr. Grifferty was not in the office on January 11, so Mr. Whyte spoke to him after he returned and sent his second e-mail. Mr. Whyte reiterated that he would honour the full term of the original assignment, but that there was no way to know at that point if it would or would not be extended. Mr. Grifferty recalled that he and Mr. Whyte discussed his contract in a performance review meeting on January 27, at which time he was told that his contract might not be extended, not that it would not be extended. Mr. Grifferty did not question Mr. Whyte about the inconsistency at this meeting, nor did he raise it at any other time.

15After Mr. Tran returned, Mr. Whyte assigned the Grievor to a position normally filled by an employee who was on short-term sick leave. When that person returned in May 2010, Mr. Whyte received approval to maintain Mr. Grifferty by double filling an existing position.

16Mr. Whyte testified that he took into account a number of factors in deciding whether to extend the temporary assignment of Mr. Grifferty and his two colleagues, including current complement, staff movement and seasonal needs. Based on the unit’s operational needs in June 2010, he determined that he only needed to extend the contracts of two of the three individuals on temporary assignment. All three of the employees on temporary assignment were meeting performance expectations so he decided to extend the contracts on the basis of position number. Since Mr. Grifferty was double filling in a position, his contract was not extended.

17The Grievor received final notice on May 31, 2010 that his temporary assignment would not be extended. He also learned that the contracts of the other two employees on temporary assignment were extended. On June 7, 2010, he e-mailed Mr. Whyte seeking an explanation for why his colleagues were kept on but he was not. Mr. Whyte advised that he made the decision based on operational needs and that seniority did not play a role in his decision.

18On September 8, 2010, the Grievor saw a posting for two permanent and one temporary Integrity and Entitlement Auditor positions in Production and Verification Services. He applied for a position, however, was subsequently told that management did not receive his application. He did not grieve his non-selection in the competition.

19Subsequent to his departure, the Grievor learned that Minh Tran had left the unit on temporary assignment shortly after the Grievor left. He assumed that Mr. Tran would have interviewed for his new position before his own term ended in early June. In his view, this raised further questions about whether he could have been kept on at the end of his contract. He believed that Mr. Whyte would have known that Mr. Tran was being interviewed for another position and he would also be familiar with Mr. Tran’s pattern of frequent movement. In those circumstances, he thinks that Mr. Whyte could have kept him on beyond his original term. It made no sense to him that his assignment was not extended when it was likely that there would be a further opening in the area. In Mr. Grifferty’s opinion, reprisal was the only explanation that made sense.

20Mr. Whyte admitted on cross-examination that he was aware that Mr. Tran had applied for another position before Mr. Grifferty’s departure. Mr. Whyte also agreed that if he had known that Mr. Tran would be leaving, his departure could have been a relevant factor in deciding whether Mr. Grifferty’s contract should be extended. However, when he decided whether or not to extend the Grievor’s assignment, he had no way of knowing if Mr. Tran would be successful in the competition. Finally, Mr. Whyte acknowledged that he could have based his decision regarding contract extensions on other factors including seniority, ranking in the competition or performance.

Submissions

21The Union submits that the Employer violated Article 3.2 of the Collective Agreement by discriminating against the Grievor by reason of his activity in the Union. The Union alleged that the Grievor was treated differently than his fellow employees following his participation as a witness in proceedings before the Grievance Settlement Board. It was alleged that management was acting in a discriminatory manner when it called him in on January 8, 2012 to advise him that his contract would not be renewed and it engaged in further discrimination when it extended the temporary assignments of two of his colleagues in June, but did not extend the Grievor’s assignment.

22The Union argued that the Grievor was clearly treated differently than his similarly situated colleagues and that the only real issue was whether the differential treatment was the result of anti-union animus. Counsel noted that arbitrators have consistently observed that there is rarely a ‘smoking gun’ in cases of anti-union animus and that often an inference must be drawn from circumstantial evidence.

23In the Union’s submission, management’s explanation for their conduct does not withstand scrutiny: their reasons simply do not make sense. The Employer said that the meeting on January 8 was convened to reassure the Grievor that the return of the home incumbent to a position he occupied would have no effect on his tenure. However, the Grievor was unaware that he was in the returning employee’s position and, since nothing had in fact changed, there was no urgency that would necessitate meeting with Mr. Grifferty late in the day on Friday afternoon. Moreover, if the meeting were prompted by a genuine desire to reassure the Grievor, then management would have responded to his e-mail requests for clarification.

24In the Union’s submission, it is impossible to dissociate Mr. Grifferty’s production of his summons in the morning of January 8, 2010 and the decision to speak to him later in the afternoon. Since the reasons offered by the Employer do not make sense, it was argued that their actions must have been tainted by anti-union animus and should be viewed as an attempt to intimidate the Grievor in the course of his testimony before the Board.

25Similarly, the Union challenged the Employer’s explanation that it decided not to extend the Grievor’s contract solely on the basis of the position number that he occupied. In the Union’s submission, it would have made more sense to base that decision on other factors such as seniority, performance in the competition or performance in the job. Failure to consider the most logical factors cast serious doubts on the explanation offered by management. In the circumstances, the Board should conclude that the decision was also tainted by anti union animus.

26With respect to remedy, the Union requested a Declaration that the Employer violated Article 3.2 when it met with the Grievor on January 8. The Union further requested that the Grievor be placed in a temporary assignment as an Entitlement and Integrity Auditor in Data Validation Services for 4 months, which is the period that his contract could have been extended before the position was permanently filled.

27The Union relied on the following cases in support of its submissions Barrie Typographical Union, No. 873 v The Barrie Examiner (1975), 0597-75-U (Carter); Re Board of Commissioners of Police for the City of Sault Ste. Marie and Sault Ste. Marie Police Association), [1982] O.L.L.A. No. 10 (Kennedy); Atomic Transportation System Inc. (1995), 99 di 43 (Guilbeault); Warren v Ontario (Labour relations Board), 2012 ONSC 1735; Horizon Operations (Canada) Ltd. v. Communications, Energy & Paperworkers Union, Local 2000 (Jaeger Grievance), [2000] B.C.C.A.A.A. No 391 (Coleman); OPSEU (Dobroff) v. Ministry of Environment, [2008] O.G.S.B.A. No. 73 (Dissanayake).

28In the Employer’s submission, the issue to be determined is very narrow: whether management breached Article 3.2 of the Collective Agreement in meeting with the Grievor on January 8 or in failing to extend his temporary assignment. The Employer argued that the Union had not met the burden that has consistently been relied on by this Board, which requires ‘clear and cogent’ evidence that management’s conduct was tainted by an anti union animus. Mr. Whyte provided credible and reasonable explanations for his decisions that were not shaken on cross-examination. Although there might have been other rational approaches, there is no evidence that he was acting in bad faith.

29The Employer further submitted that Mr. Grifferty’s assignment was for a period “up to 12 months” and that it was within management’s rights to end his assignment at any time. When management learned that the incumbent for whom the Grievor was backfilling was returning, it could have simply given him notice that his assignment was ending. Instead, Mr. Whyte kept him on, first by assigning him to a new position filling in for an employee on short term sick leave and then, when she returned, getting permission to double fill the position. In the Employer’s submission, this evidence buttresses the evidence of Mr. Whyte and undermines the suggestion that he discriminated against the Grievor.

30The Employer maintained that the evidence supports the conclusion that Mr. Whyte acted in good faith. He was genuinely concerned that Mr. Grifferty would be upset to learn that an incumbent was returning to the department and called him in to reassure him that the return of Mr. Tran would not have any impact on his own temporary assignment. In June, when faced with the decision of retaining only 2 of 3 people on temporary assignment, he rationally decided to extend the people who were in vacant positions. Unlike most of the cases of anti union animus, there was no history of bitterness or antagonism related to Union activities. Nor is there evidence of unusual animosity arising from the grievance arbitration to which the Grievor was summonsed. Mr. Grifferty acknowledged that management did not raise any issue with him with respect to his attendance before the GSB and did not mention the grievance or discuss the substance of his evidence. Management’s involvement was limited to requesting a copy of his summons.

31The Employer referred to the following cases in support of its position that the grievance should be dismissed: OPSEU (Kerna) v. Ontario Human Rights Commission (2005), GSB No. 2002-0944 (Briggs); OPSEU (Damani) v. Ministry of Health (2000), GSB No. 1581/95 (Gray).

Decision

32The Union alleges that management acted in a manner designed to intimidate the Grievor while he was giving evidence before this Board and subsequently retaliated against him for his participation.

33The Board is deeply committed to protecting the integrity of its process and takes seriously any suggestion that witnesses appearing before it have been intimidated or subjected to reprisals. This is a serious allegation and, if proven, demands an unequivocal response that such behaviour will not be tolerated.

34I accept the Union’s submission that cases of this nature can be very difficult to prove. I am also mindful, however, of the very serious nature of the allegations at issue. I agree with the description offered by counsel for the Union that this is akin to a capital offence in the realm of labour relations. In my view that cuts both ways, the Board must be extremely vigilant in protecting witnesses from intimidation, but must be equally careful about drawing an inference of anti-union animus where the evidence is largely speculative. Serious allegations such as these need sufficient evidence to make a clear finding that the conduct was motivated, at least in part, by anti-union animus. Although arbitrators can and do rely on circumstantial evidence, the circumstances, when examined as a whole, must reasonably give rise to an inference that the employer was at least partially motivated by union activity.

35Most of the facts in this matter are not disputed. The Grievor was on a 12-month temporary assignment, along with two other employees. He was extremely unhappy in his home position and he very much hoped that this assignment might lead to a permanent opportunity. Mid-way through his contract, he was summonsed to attend a grievance arbitration brought by a former colleague. He attended the hearing on January 5, 6, 7 and 11, 2010. He provided a copy of his summons to his manager on January 8 and was subsequently paid for his attendance. Management did not discuss the grievance with him except to ask for a copy of his summons.

36On January 8, management told the Grievor that the person for whom he was backfilling was returning early, but that his contract would be maintained until the originally agreed to end date. The Grievor alleges that he was also advised that his contract would not be extended beyond his 12-month term. The rest of the Grievor’s term in the unit was completely uneventful. On May 31, the Grievor was notified that his assignment would conclude in accordance with the terms of his contract; the assignments of two fellow employees were extended beyond their initial end date.

37There was no evidence, nor any suggestion of a pattern of ongoing discrimination or differential treatment in between the meeting on January 8, when the Grievor was told about the return of the home incumbent, and May 31, when he was told that his contract was at an end.

38Management insisted that it acted in good faith at all times. The Grievor’s manager was aware that the Grievor was very anxious not to return to his home position. When he learned of the early return of the employee for whom the Grievor was backfilling, he wanted to reassure him that his status would not be affected. With respect to his decision regarding which contracts would be extended, he decided to extend the individuals in vacant positions. Since the Grievor was double filling for another employee who had returned to the unit, he was not retained after the conclusion of his term.

39The Union relies on the suspicious timing of events and the alleged inadequacy of the reasons offered by management to explain its’ conduct. In the Union’s submission, management’s behaviour does not ‘make sense’ and therefore I should infer that it was motivated, at least in part, by the Grievor’s participation in proceedings before this Board.

40I do not agree. In my view, there is no credible basis to infer that management acted to intimidate the Grievor while he was giving evidence at the GSB or subsequently retaliated because he testified. I have no doubt that the Grievor feared that the Employer might retaliate if he gave evidence before the Board. I also accept that he desperately wanted to avoid returning to his home position and believed that he could have been kept on as an Entitlement and Integrity Auditor. Nonetheless, there is simply no evidence that management’s failure to do so was as a result of anti-union animus or a failure to abide by the terms of the collective agreement.

41The timing of the meeting that took place on January 8, 2010 was unfortunate and I can understand why the Grievor might suspect that it was related to his attendance at the GSB. However, having carefully reviewed the evidence surrounding this incident, I cannot reasonably draw the inference that it was in any way meant to intimidate the Grievor. I accept Mr. Whyte’s explanation as a credible account of his actions. All of the surrounding circumstances support his position: the Grievor had told him that he was extremely anxious not to return to his home position and the Grievor was backfilling for another employee who advised late in the day on January 8 that he would be returning to the unit 2 months ahead of schedule. In these circumstances, there is nothing extraordinary about Mr. Whyte’s decision to immediately let the Grievor know that Mr. Tran was returning and reassure him that the term of his assignment would nonetheless be honoured.

42Whether Mr. Whyte could have or should have waited until after Mr. Grifferty completed his evidence before the Board is a question of judgement. This was a small unit and it was reasonable for him to assume that word of Mr. Tran’s return would spread quickly. The obvious way to minimise what he feared would be a negative reaction by Mr. Grifferty, was to tell him what was happening at the earliest opportunity and advise him that it would not have an adverse effect on his assignment.

43The contemporaneous e-mail from Mr. Tran and the subsequent changes in position number assigned to the Grievor lend further support to Mr. Whyte’s version of events. Mr. Whyte tried repeatedly to preserve Mr. Grifferty’s assignment. He moved Mr. Grifferty to a vacant position twice and obtained approval to double fill an existing position, all so that Mr. Grifferty could remain in his temporary assignment. Lastly, and in my view very significantly, Mr. Whyte had no knowledge of the grievor or the grievance before the GSB and he had no interest that might motivate him to intimidate Mr. Grifferty.

44The Grievor insisted that Mr. Whyte told him on January 8 that his contract would not be renewed and that Mr.Whyte did not respond to his e-mail requests for clarification. The Union argued that this was further support for the assertion that Mr. Whyte was attempting to intimidate the Grievor in the course of his testimony at the GSB.

45Although the Grievor now recalls that he was told in the January meeting that his contract would definitely not be renewed, there is no indication that he raised this concern or thought he was being intimidated at the time. He did not mention it in either of his e-mails following the meeting on the 8th, did not challenge Mr. Whyte about the inconsistency during their meeting on the 27th, and did not grieve the alleged intimidation until several months later.

46I prefer the evidence of Mr. Whyte. He was consistent in his evidence that he would not know his staffing needs until much closer to the end of the Grievor’s term and that he merely advised the Grievor that his term might not be extended. The Grievor acknowledged that this was what Mr. Whyte said in their meeting on January 27 and that that is what would make sense. He also acknowledges that Mr. Whyte told him in the January 8 meeting that he called him in to tell him of Minh Tran’s return so that he “did not hear it through the grapevine”. All of this evidence is consistent with Mr. Whyte’s version of events.

47I also accept Mr. Whyte’s recollection that he spoke to the Grievor to clarify what he said after their meeting on January 8. He did not respond electronically, but explained that he felt it was best to try to clear up any misunderstanding in person. Again, this would be a reasonable response and there is no evidence that Mr. Grifferty pursued the matter after January 13, when he wrote his second e-mail.

48The Union also suggested that Mr. Whyte’s conduct made no sense because Mr. Grifferty would not have known that he was in Mr. Tran’s position. Moreover, Mr. Whyte only spoke to the Grievor regarding Mr. Tran’s early return. In my view there is nothing nefarious in Mr. Whyte’s conduct. The Grievor and Mr. Whyte had discussed the Grievor’s very strong desire that he not return to his home position and indeed Mr. Grifferty had told Mr. Whyte that he had been off sick the last time he had to return. By the Grievor’s own admission, Mr. Whyte was acutely aware of how strongly he felt about his temporary assignment and how desperate he was not to return to the Mail Distribution Center. There was no evidence that either of the other two employees on temporary assignment had similar concerns or would react negatively to the news that Mr. Tran was returning. Nor was there any other objective evidence to refute Mr. Whyte’s testimony or cast doubt on his motives. In these circumstances, I see no basis to criticise Mr. Whyte for his conduct or question his bona fides.

49Although I appreciate that the timing of the meeting on January 8 seemed suspicious to the Grievor, I have found no objective basis to support that suspicion. No one in management discussed the proceedings at the GSB in which the Grievor was a witness except to ask for his summons. Mr. Whyte sought advice regarding the necessary paper work to ensure that the Grievor was compensated for the days he was appearing at the Board, however that was the full extent of his involvement. He did not know the subject matter of the grievance, did not know the grievor in that case, and did not discuss the substance of the allegations or the grievance in any way with the Grievor, with Human Resources or his Director. Nor was there evidence that Mr. Whyte’s Director had any involvement or knowledge of the case or that Mr. Whyte thought that she was involved.

50The totality of the evidence in this case leads me to conclude that Mr. Whyte’s only objective when he met with the Grievor on January 8 was to offer reassurance, not to intimidate him. I understand how Mr. Whyte’s message might have been confusing for the Grievor. Especially, in light of the stress that Mr. Grifferty experienced when he testified against his employer in a proceeding at the Board. Notwithstanding that possibility, that does not establish an anti-union animus. At best it is a lesson in the care that must be taken when any potentially negative news is transmitted, especially during the course of an employee’s participation before this Board.

51In my view there is even less evidence to connect the decision regarding contract extensions in June to anti-union animus. All of the employees on temporary assignment were meeting performance expectations, but management only needed to extend 2 of the 3 contracts. One person would not be renewed. Mr. Whyte decided not to extend the contract of the employee who was double filling an existing position. Although unfortunate for Mr. Grifferty, this was a rationale choice. Mr. Whyte could have used other criteria, but there is nothing inherently troubling about the manner in which he made his decision.

52There is no evidence to link management’s decision regarding Mr. Grifferty’s temporary assignment with his attendance at the GSB six months earlier. While there were admittedly other factors that management could have considered in deciding which contracts to extend, there was nothing that required them to favour one factor over another. In my view, it would be highly problematic to infer that this decision was in relation to union activity without much stronger evidence to support that proposition. The mere fact that there are other factors that could have been used to make this decision is grossly inadequate to make out the Union’s case.

53The Grievor suggested that Mr. Whyte must have known before his term expired that Minh Tran had applied for a new position and therefore that there might be a further opening. The Grievor concluded that Mr. Whyte ‘could have’ extended his assignment. While it is true that Mr. Whyte was aware that there might be staff movement, this was a mere possibility and was not confirmed until after Mr. Grifferty left the unit. As such, it was not illogical for him to base his staffing decisions on his actual complement without regard to potential moves. In any event, demonstrating that he could have acted differently does not establish that he made his decision in retaliation for the Grievor’s attendance at the GSB.

54There is no question that the Board must consider all of the surrounding circumstances to assess whether the Employer’s conduct was discriminatory. It is exceedingly rare for an employer to admit to retaliation or intimidation motivated by an employee’s participation in union activities. Arbitrators will often consider circumstantial evidence to infer motivation. Typically, however, that evidence is more or less contemporaneous with the incident or activity that purportedly gave rise to the employer’s response.

55In this case, while the first instance of alleged intimidation occurred at the same time as the activity that the Union says gave rise to the anti-union animus, the second did not. Several months passed without incident between the time that the Grievor testified and the end of his contract. During the intervening months, there was no discussion about the proceeding that was the alleged source of management’s anti-union animus or any reference, direct or indirect, to his participation in the arbitration. There were no other alleged instances of differential treatment and no suggestion of a continuing pattern of harassment based on union activity.

56Unlike the cases referred to by counsel for the Union, this case does not have any of the indicia that suggests anti-union animus. There was no temporal proximity between the Grievor’s union activity and the alleged retaliation or discrimination by management. There is no evidence that management’s decisions were out of the ordinary or different than ones they had made in the past. Nor was there evidence that management generally, or Mr. Whyte in particular, had a prior history of engaging in anti-union conduct. The case before me rests exclusively on coincidence of timing and the belief that management could have reached a different conclusion if they had chosen to rely on other considerations. Again, while I appreciate the Grievor’s sincere desire for an extended temporary assignment, he was not entitled to an extension. The issue I must decide is not if Mr. Whyte reached the only possible decision, but rather whether his decision was tainted by discrimination on the basis of Union activity.

Having regard to all of the evidence before me, I am not persuaded that anti-union animus or discrimination on the basis of union activity played any role in the Grievor’s meeting with Ken Whyte on January 8, or in the decision to not extend his contract beyond the initial 12-month term. I would therefore dismiss the grievance.