Ontario Labour Relations Board
Parties: William M. Pipher, Complainant, v. Atlantic Bus Lines Inc., Respondent.
Before: M. G. Picher, Vice-Chairman, and Board Members F. W. Murray and D. B. Archer.
Appearances: Harry Kopyto for the complainant; R. C. Filion for the respondent.
Decision of the Board: February 18, 1980
Decision
This is a complaint under section 79 of The Labour Relations Act. The complainant, William M. Pipher, alleges that he was discharged by the respondent because of his union organizing activity among its employees. He maintains that his termination was in contravention of sections 56, 58 and 61 of The Labour Relations Act and requests reinstatement with compensation for wages and benefits lost.
The respondent operates a bus transportation company. On June 19, 1979 it entered into a contract with the Toronto Transit Commission (hereinafter the T.T.C.) in Metropolitan Toronto. As part of its arrangement with the T.T.C. the respondent took over the franchise as well as the specially-equipped mini-buses of Wheelchair Mobile Services Limited, the company which had previously operated that service.
The grievor had worked for just over a year as an employee of Wheelchair Mobile Services Limited. With the transfer of the business he became employed by the respondent, along with a number of his co-workers. The transfer was not without incident. It appears that Wheelchair Mobile Services Limited lost its contract with T.T.C. in circumstances of its own severe financial difficulty. Pay cheques which it had issued were dishonoured and some employees were not given their statutory severance pay. The employees, led by an ad hoc committee which included the grievor, retained counsel and explored various means of recovering their lost wages. Their efforts included overtures to the T.T.C. and to their new employer, the respondent, to see what, if anything, could be done. It appears that some civil litigation is either contemplated or under way as a result of the committee's efforts to recover for the employees monies owing from Wheelchar Mobile Services Limited.
One product of the deliberations of the ad hoc committee was discussion of the possibility of forming a union to avoid similar problems in the future. To that end the grievor undertook to meet with Mr. Charles B. Johnson, President of Local 113 of the Amalgamated Transit Union, the bargaining agent of transit employees of the T.T.C. The evidence establishes that Mr. Pipher favoured and prompted the idea of union representation among the members of the ad hoc committee. As a result of his encounter with Mr. Johnson, meetings between the employees of the respondent and officials of the Amalgmated Transit Union were held in a church hall on June 28, 1979 and at the King Edward Hotel in Toronto on July 11, 1979.
The grievor was discharged before either of those meetings took place and, indeed, prior to the time when any substantial union campaign among the employees had started. His discharge on June 26, 1979 followed a number of untoward incidents between himself and his new employer.
Mr. D. A. Hailey, president of the respondent gave extensive evidence respecting the circumstances of Mr. Pipher’s discharge. He testified that upon taking over the wheelchair transportation business he determined to tighten up its operations and eliminate what he viewed as the unduly lax employment practices of his predecessor. According to Mr. Hailey's testimony the grievor came to his attention very quickly. One June 19, 1979, the first day after the respondent took over the wheelchair transportation service, Mr. Pipher was late to work and a dispatcher was obliged to cover his run. The next day, June 20th, Mr. Hailey entered the respondent's dispatching offices at Markham to find Mr. Pipher and another employee complaining to a dispatcher on duty about certains aspects of the company's operations and, according to Mr. Hailey, doing so in such a way as to interfere with the dispatcher's ability to perform his work. Mr. Hailey then told the two employees to leave the office and gas up their vehicles, adding that if they had anything to say they could take it up with him later. According to his testimony Mr. Pipher then lectured him on the cost of requiring drivers to collect their vehicles at Markham as opposed to using a more central depot or allowing employees to keep their buses at home. While Mr. Pipher's account of the incident differs somewhat, the evidence was clear that it was a negative encounter and that from that time on there was no love lost between them.
Mr. Hailey's next encounter with the grievor was on June 25, 1979. That morning he noticed Mr. Pipher leaving the respondent's yard driving a bus with defective brake lights. He regarded this as a serious breach of the employee's responsibility and immediately notified the dispatcher concerned. The evidence establishes that as part of the daily routine a driver is required to do a safety check of his vehicle and make a written report of any defect on a safety check list for that purpose. Mr. Hailey testified that while any public transport vehicles must be roadworthy there must be even greater concern for the safety and roadworthiness of vehicles used to transport the handicapped. The degree of damage must be considerably higher in the event of a rear end collision involving a vehicle whose passengers are in wheelchairs. The Board must accept Mr. Hailey's testimony that the grievor's failure to properly check his vehicle before leaving the yard did constitute a breach of his responsibilities that would give his employer cause for concern. Clearly that incident did little to improve Mr. Pipher's already doubtful image in the eyes of his new employer.
The culminating incident came the next day. The evidence establishes that Mr. Pipher's performance caused Mr. Hailey to inquire of David Reiner about his work record. Mr. Reiner, who had been the Operations Manager for the predecessor employer and continued in that capacity under Mr. Hailey, advised him that the grievor's work record was extremely poor. In this regard the Board accepts the evidence of Mr. Reiner that Mr. Pipher was frequently late in coming to work and starting his route; in a period of just over a year he had been late on some thirty to forty occasions, a record which caused some discontent among fellow employees who were required to cover for him. While punctuality is important in any job it is especially critical in the pick-up and transportation of passengers on a pre-established schedule. If one of the respondent's drivers is late in starting his route there is dislocation rot only to the respondent but to the handicapped passengers awaiting transportation to their work as well as dislocation to the passengers' employers or clients. On the morning of June 26th Mr. Pipher's first scheduled pick up was at 7:10 a.m. Because he had the bus at home with him from the previous evening it was his responsibility to report to the dispatcher some thirty to forty-five minutes prior to his first call. That morning he did not call in. When the dispatcher attempted to contact him at home he was unable to reach Mr. Pipher. He had in fact spent the night elsewhere without leaving an alternate phone number where the company could reach him. When he finally called in at approximately 8:00 a.m. he was instructed to come to the office and return the bus. While Mr. Pipher's evidence differs slightly as to the precise times involved, he admits that knew he was in serious trouble. In this regard the Board accepts the evidence of Mr. Reiner that when Mr. Pipher arrived at the office at about 10:00 a.m. his first comment to Mr. Reiner was: "I guess I blew it".
Shortly thereafter the grievor reported to Mr. Hailey's office. Mr. Hailey asked Mr. Pipher whether he had yet detected the faulty brake lights. According to Mr. Hailey when Pipher responded that he had not, his concern for the grievor's safety practices was compounded. When Hailey asked for an explanation as to why Mr. Pipher had not called in on time none was forthcoming. Mr. Hailey then informed the grievor that he was terminated and that the reasons for his termination were his interference with the dispatcher, his failure to keep an adequate safety check of his vehicle and his record of lateness culminating in the incident of that day.
The burden of proof in a section 79 complaint is upon the employer. Notwithstanding where the burden may lie, to make a finding against a respondent the Board must be satisfied that two elements are made out: first, it must be established that the employer knew or believed that the employee was engaged in union activity or support; second, it must be shown that the employer's knowledge or belief in that regard was at least part of the motivation for the discharge of the employee. (See, Regina v. Bushnell Communications Ltd., 1973 CanLII 475 (ON HCJ), [1973] 1 OR. (2d) 442 (H.Ct.)) upheld, 77 CLLC ¶14,111 (C.A.)); Pop Shoppe (Toronto) Limited [1976] OLRB Rep. June 294; Barrie Examiner [1975] OLRB Rep. Oct. 745; Fielding Lumoer [1975] OLRB Rep. Sept. 665).
We deal firstly with whether Mr. Hailey had any knowledge of the grievor's union activity. On the day he was discharged Mr. Pipher had worked for Mr. Hailey for only seven days. During chat time the entire extent of his union activity was contacting Mr. Johnson of the Amalgamated Transit Union and arranging for a meeting between Mr. Johnson and the employees. There is simply no evidence to indicate that Mr. Hailey knew, or had reason to know in that short period of time, that Mr. Pipher was exploring the possibility of a union among the employees. The Board accepts the evidence of Mr. Reiner, a memer of the respondent's management, that while he was aware that Mr. Pipher was attempting to contact the union Mr. Reiner did not pass that knowledge on to Mr. Hailey. It appears that Mr. Reiner also stood to gain by anything that a union could do about the unpaid wages of Wheelchair Mobile Services Limited.
The Board is not here presented with evidence of an extended union membership campaign in which the grievor was widely known as a prime mover. The evidence establishes that during the week in question only the three or four members of the ad hoc committee and a limited number of employees had knowledge of Mr. Pipher's intention to contact a union. It would appear that very few people, much less the employer in the person of Mr. Hailey, had any knowledge of his activities in that regard.
Sometimes the very circumstances of a discharge can raise adverse inferences as to the knowledge and motivation behind an employer's dealing with an individual. That is especially true when an employee's discharge seems unduly harsh, discriminatory or unusual in all of the circumstances. Adverse inferences may also be drawn when an employee's discharge is situated against a background that discloses a consistent pattern of anti-union activity on the part of an employer. (Cf. The Barrie Examiner, supra). None of these signs are present in the instant case.
During his seven days of employment with the respondent the grievor amassed an unenviable record, particularly vis-a-vis a new employer determined to turn a faultering business around and establish new standards of efficiency and responsibility among its employees. Within a seven day period Mr. Pipher was involved in at least four incidents that would justify some form of discipline. There is no suggestion on the evidence that other employees behaved comparably or that he was singled out for special treatment. The culminating incident, the grievor's failure to report for work at all, is especially serious given both the nature of the respondent's business and the grievor's past performance in this regard. Bearing in mind that this is not an arbitration of rights under a collective agreement, there was nothing to prevent Mr. Hailey from taking into account the grievor's prior record with the predecessor employer.
It is clear from Mr. Pipher's own evidence that he did not, at the time of his discharge, believe that he was being fired because of his union activity. While that is not of itself fatal to the complaint, it tends to affirm the plausibility of the respondent's position that Pipher's termination was purely disciplinary. He was an employee, already on thin ice, who committed one last serious blunder. Indeed, this complaint was not filed until almost a month after Mr. Pipher's discharge. The Board is inclined to agree with Mr. Pipher's conclusion, expressed in his own evidence, that he gave his employer ample reason to fire him. Accepting as we do that Mr. Hailey had no knowledge of Mr. Pipher's union activity we must conclude, on the whole of the evidence, that Mr. Pipher was the subject of a disciplinary discharge, and nothing more.
For the foregoing reasons the complaint is therefore dismissed.