The International Woodworkers of America v. Mount Forest Caskets Limited, 1980 CanLII 806

Ontario Labour Relations Board

[1980] OLRB Rep. June 853

2117-79-U The International Woodworkers of America, Complainant, v. Mount Forest Caskets Limited, Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.

APPEARANCES: J. Sack, H. Goldblatt, S. Shrybman and Harold Sachs for the complain­ant; Joseph Carrier, Donald Haddy and Carl Quantz for the respondent.

DECISION OF R. D. HOWE, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; June 3, 1980

1. This is a complaint under section 79 of The Labour Relations Act in which the com­plainant alleges that the grievor, Roy Norman Rabe, was discharged contrary to the provi­sions of sections 3, 56, 58(a) and (c) and 61 of the Act.

2. The grievor was hired by the respondent in July of 1979 to work in the cabinet room. His job of fitting a number of parts together to build hardwood lids ("plates") for caskets produced by the respondent was one of the skilled jobs in the plant. Two weeks after he was hired, the grievor advised management that he had received another offer of employment at a higher rate. As a result, management increased his rate from $3.50 to $4.50 per hour.

3. The plates built by the grievor consist of three different types — "regular" rectan­gular plates, "oversized" plates and octangular plates. Although the amount of time required to properly build each of these types of plates was a matter of dispute between the parties, it was not disputed that it takes longer to build an oversized plate than a regular plate, and longer still to build an octangular plate.

4. In response to requests by management for increased production, the grievor, who averaged approximately six plates per day at the commencement of his employment, increas­ed his production to approximately eight plates per day and then further increased it to about ten plates per day in December of 1979. In mid-January 1980, William Watts, the working foreman who supervised the grievor, asked the grievor to increase his production to twelve plates per day. In response to this, the grievor expressed disbelief that such a high rate of pro­duction was possible. However, the requested rate was confirmed by Donald Haddy, the President and General Manager of the respondent.

5. One morning during the second week of January, Carl Quantz, the Assistant Gen­eral Manager of the respondent, asked the grievor at 8:45 in the presence of Watts if the grievor could finish the plate on which he was working and also make a second plate by break-time at 9:55. When Quantz told Watts that the former could make three plates in an hour, the grievor became quite angry and swore at Quantz in the course of expressing the view that no one could build plates that quickly. The grievor then put on his coat and began to leave. However, Quantz persuaded the grievor to remain by telling him that he had meant that he could make three regular plates in an hour, not three of the octagonal type of plates (on which the grievor was working at the time of this incident).

6. The grievor testified that prior to this incident, other employees in the plant had asked him to organize a union but he refused. It was his evidence that it was on the morning of his argument with Quantz that he decided to bring in the union. He contacted Harold Sachs, an organizer for the complainant, on January 21, 1980. After speaking with Sachs, the grievor engaged in union activity in support of the complainant by speaking to many employees, soli­citing membership cards and calling on or about January 23, 1980, a meeting of employees to be held at his home on February 2, 1980. At that meeting, a number of employees joined the complainant and a union committee was formed with the grievor as chairman.

7. On February 1, 1980, Haddy called the grievor into his office and, in the presence of Watts, showed him a sheet of efficiency calculations. Although the grievor did not understand the calculations, he did agree that the times on which one of the methods of calculation was based would be reasonable if the saw cuts of the plate parts were made properly. However, it was his evidence that the saw cuts were not being made properly in January and February of 1980 with the result that it took considerably longer to fit the parts together, particularly the many parts which had to be fitted in order to make each octagonal plate. At this meeting, Haddy accused the grievor of spending too much time talking to other employees. The grievor denied this. The grievor testified that he was not talking any more than any other employee. It was not disputed that the grievor had some unavoidable periods of idleness while he waited for another employee to assist him in lifting and turning the plates, each of which had to be turned three times while being made by the grievor. Haddy told the grievor that if he did not sub­stantially increase his production, his employment would be terminated.

8. During the first week of February, the grievor continued to be actively engaged in the complainant's organizing campaign.

9. For the past one and one half years, the employees in each of the areas of the plant have elected representatives to a plant committee which meets with management each month. At the January meeting, the members of the plant committee requested that management call a meeting of all employees. Haddy testified that the respondent has such a meeting during working hours about once a year, although this was the first time such a meeting had been requested by the plant committee. At this meeting Haddy addressed the employees and ex­plained the respondent's poor financial position caused by high costs including the high cost of lumber. The grievor's testimony concerning this meeting was: "I would assume he was talking about these things because it was time to give us a raise again. Raises come the first of March. He was trying to tell us that he was losing money and couldn't give us any more." No mention was made of unionization at that meeting. On his production sheet for that week, the grievor made the following entry concerning that meeting: "office 1/2 hr. sob story."

10. Haddy testified that he decided to discharge the grievor on Friday, February 8, 1980, for three reasons:

(a) the grievor's rate of production which in Haddy's view had been unsatisfactory in the four week period prior to February 1, 1980, had decreased in the first week of February after the grievor had been warned that he would be discharged unless his productivity increased

(b) Haddy did not like "the attitudinal comment about a 'sob story' on the production sheet"; and

(c) Haddy had "learned that morning that in January, when spoken to by Quantz, [the grievor] had put on his coat to leave", which in Haddy's opinion "certainly indicated a bad attitude".

The grievor was called in to meet with Haddy at about 11:40 that morning and was told in the presence of Quantz that he was being discharged for those three reasons. When asked if he had anything to say, the grievor twice attempted to explain about the coat incident but was cut off each time by Quantz. The grievor testified that he "didn't try again because there was no use".

11. Section 79(4a) of the Act provides:

"On an inquiry by the Board into a complaint under subsection 4 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' orga­nization did not act contrary to this Act lies upon the employer or em­ployers' organization."

Accordingly, in this case the burden of proof is on the respondent to establish on the balance of probabilities that it did not act contrary to the Act.

12. In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:

the effect of the reversal of the onus of proof is to require the em­ployer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred".

13. As submitted by counsel for the respondent, it is not the function of the Board in the present case to decide whether or not the respondent had just cause to discharge the grievor. Our jurisdiction is limited to determining whether the respondent discharged the grievor be­cause he was a member of the complainant union or was exercising any other rights under the Act (see Toronto Star Limited, [1971] OLRB Rep. Sept. 582, paragraph 11). This does not, however, preclude the Board from considering the context surrounding the respondent's ac­tion, as indicated by the Board in Fielding Lumber Company Limited, [1975] OLRB Rep. Sept. 665, at paragraph 19:

"The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act — a piece of legisla­tion that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it."

14. The nature of the determination to be made in cases such as the instant case and the factors to be considered by the Board in making such determination are described as follows in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 29, at paragraph 5:

"In cases such as these the Board is very often required to render a de­termination based on inferential reasoning. An employer does not nor­mally incriminate himself and yet the real reason or reasons for the em­ployer's actions lie within his knowledge. The Board, therefore, in assess­ing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities'. (See National Automatic Vending Co. Ltd. 63 CLLC ¶ 16,278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board 'see through' the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be cap­able of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. How­ever, because of the nature of the proceedings and the frequent require­ment for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treat­ment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legi­timate reasons for the employer's conduct in determining if the Labour Relations Act has been violated."

15. After carefully reviewing all the evidence before it, the Board has concluded that the respondent has not proved on the balance of probabilities that it did not act contrary to the Act in discharging the grievor. Although no pattern anti-union activity has been established, the extent of the grievor's involvement in union activity, the manner in which the grievor was discharged and the lack of credibility of the management witnesses are relevant to and support our determination that the respondent has failed to prove on the balance of probabilities that there was no anti-union motive for the discharge (see De Vilbiss (Canada) Limited, [1975] OLRB Rep. Sept. 678.

16. Although the respondent may have had some concerns about the grievor's level of productivity prior to the time when he began to support the complainant, management neither imposed nor threatened any disciplinary action against the grievor until after the grievor had taken active steps to unionize the respondent. Although Haddy conceded in cross-examination that production sheets for the grievor were available from September of 1979 to the date of his discharge, Haddy brought with him to the hearing only those sheets covering the grievor's production from the period from January 4, 1980 to February 7, 1980. Thus, no meaningful comparisons could be made with the grievor's previous productivity or with the productivity of other employees. Such information would be very relevant since it would indicate what management had found to be an acceptable level of productivity at a time when there was no suggestion of any union activity on the part of the grievor. The satisfaction of the respondent with the grievor's performance prior to January of 1980 is evident not only from the fact that it continued to employ him at one of the highest wage levels in the plant, but also from the fact that in mid-December, in response to a question about the grievor's relatively high wage rate, Haddy told Dennis Amyotte (a witness who was employee of the respondent at that time): "Roy [Rabe] is a good worker. He makes good plates. His production is good. I am paying Rabe what he is worth." Although he was present on the day of the continuation of the hearing on which this testimony was given by Amyotte, Haddy was not called as a reply witness to refute these statements attributed to him. Accordingly, the Board accepts and relies upon them. While the grievor testified that he had reached the productivity level of about ten plates per day in December, the respondent did not refute his evidence that his apparently lower productivity level in January and the first week of February was caused by having to fit poorly cut plate parts and having to spend a significant amount of his time training new employees to make plates. Although it was contended on behalf of the respondent that training of em­ployees was a responsibility of Bill Williamson, not the grievor, Williamson was not called as a witness. Thus, the grievor's testimony that he spent many hours in January and the first week of February training two other employees to build plates was not refuted, nor was his testi­mony that in the last week of January, Williamson instructed him to train a new employee named Rogister and left the training of Rogister entirely in the grievor's hands. Accordingly, the Board accepts the grievor's evidence that his productivity during the first week of February was adversely affected by the significant amount of time which he devoted to training and assisting Rogister with the consent or acquiescence of management.

17. The efficiency calculations made by Haddy for the period from January 4, to February 7, 1980, are also problematic in that they are quite obscure. They are also peculiar in the sense that no such calculations were made concerning the productivity of other employees despite the assertion by management witnesses that there were other employees whose produc­tivity was unsatisfactory. Moreover, Haddy was the only witness who appeared to have any understanding whatsoever of these calculations and even he exhibited some confusion and reservations concerning them. Furthermore, the calculations did not take into account the time spent by the grievor training other employees.

18. The evidence adduced on behalf of the respondent concerning when the decision was made to discharge the grievor was also unsatisfactory. Haddy testified that he made the decision on the morning of February 8, 1980, after he calculated the grievor's efficiency for the period from January 31 to February 7, 1980. However, Watts, who was excluded from the hearing room during Haddy's testimony, testified that he did not think the grievor was "on trial" during his last week of employment and further testified: "We wanted to get somebody to replace Rabe. We had already made the decision to do this." Haddy also testified that he "had learned that morning [February 8, 1980] that in January, when spoken to by Quantz, [the grievor] put on his coat to leave.. .". Quantz, on the other hand, who was also excluded from the hearing room during Haddy's testimony, testified that he told Haddy about the incident of the coat during the week of January 7, 1980. When confronted during cross-examination with this inconsistency, Quantz first said: "Maybe Haddy didn't hear me. It's noisy in the plant." He then stated: "I can't be sure whether I told Haddy in January or not." The Board finds that Haddy was informed of the coat incident during January of 1980.

19. Management witnesses also testified that the grievor was discharged because he was "holding up production". However, the evidence establishes that during the first week of February 1980, there were forty-five to fifty-five plates stockpiled. John Broome, an employee of the respondent who had built plates for the respondent before the grievor was hired, was subpoenaed as a witness by the complainant. The Board found him to be a very candid and truthful witness. After testifying concerning the stockpile of plates during the first week of February, he said: "To the best of my knowledge, Rabe never held up production by his work on plates. We run into supply problems sometimes. That all starts in the mill [where the parts for the plates are made]. Rabe was doing his work. He wasn't walking around talking to people." It is noteworthy that Broome's evidence was confirmed to some extent by the testi­mony of Watts who, in attempting to explain why the grievor was assigned to spend the major­ity of his time during his final week of employment performing tasks other than building plates, stated: "I assigned Rabe to build bodies that week. We were short of parts for plates." Thus, rather than being given a fair opportunity to improve his plate building productivity during his final week of employment, the grievor was assigned to spend much of his time doing other tasks. The time which he was permitted to devote to building plates was further dimi­nished by the training of Rogister as mentioned earlier in this decision.

20. Members of management gave disparate explanations concerning why the grievor was discharged rather than being transferred to another job as had occurred in the case of several other employees who had proved to be unsatisfactory as plate builders. Haddy's evi­dence on this point was: "We have normally given people a chance in another area but this wasn't done in this case because Rabe was receiving a higher rate." Quantz on the other hand, gave the following reason: "He was hired to make [plates]; that was the opening." Quantz also suggested that the grievor had previously been tried on other jobs, but the weight of the evi­dence is to the contrary. Under further cross-examination, Quantz stated that he did not know why the grievor was not transferred. This failure to transfer the grievor, whose work was acknowledged by management to be of good quality, is a further peculiar circumstance which supports an inference that the grievor was discharged contrary to the Act.

21. The evidence given by members of management was also inconsistent concerning the productivity of Rogister, the grievor's replacement. Quantz testified that neither Rogister's production nor his attitude was satisfactory. Watts, on the other hand, stated: "Rogister is making more than Rabe used to." When confronted in cross-examination with the disparity between his testimony and that of Quantz, Watts stated: "Rogister's keeping up. Rogister's not that hot. Rogister's no better or no worse than [the grievor] was." No documentary evidence concerning Rogister's productivity prior or subsequent to the discharge of the grievor was adduced by the respondent.

22. As noted by the Board in many previous cases, including District ofAlgoma Home for the Aged (Algoma Manor), [1979] OLRB Rep. April 269, at paragraph 31, "[a]nti-union sentiment is seldom admitted by an employer as being the cause of discharge. The Board is therefore often required to draw conclusions in that regard on the basis of inferences having regard to all the evidence before it." Thus, although there was no direct evidence of manage­ment knowledge of the grievor's union activities prior to his discharge, the Board infers from all the circumstances that the respondent did have such knowledge. Haddy testified that he "heard again sometime in January" that "a union organizational campaign was on." Under cross-examination he stated that he received this information from Carleen Quantz, a secre­tary employed in the office of the respondent, who had "heard a rumor downtown" that "the union was around again". Haddy also testified that "on Friday afternoon [February 8, 1980] after we let [the grievor] go, his name was brought up as one of the organizers". Under cross-examination, he became rather evasive but ultimately revealed that the grievor was mentioned as one of the union organizers by Watts or Carleen Quantz during the afternoon of February 8, 1980. Watts, however, testified that he did not discover that the grievor had been involved in union activity until Monday, February 11, 1980 and testified that he told Haddy about it then. Carleen Quantz was not called as a witness. The Board also infers from the failure of the res­pondent to call Carleen Quantz, who apparently served as a conduit for information con­cerning union activity, that her evidence would have been unfavourable to the respondent's case or at least would not have supported it (see B & S Furniture Manufacturing Limited, Board File Nos. 2331-79-U and 2332-79-U, dated May 9, 1980, as yet unreported, and the authorities cited in paragraph 11 thereof).

23. There was also some direct evidence of anti-union sentiment on the part of manage­ment. Quantz, while testifying in chief concerning the aforementioned coat incident, stated:

"If I'd known that [the grievor] was a union organizer, I don't think that I would have let him come back in when he put his coat on. I wouldn't have let him change his mind about quitting." Under cross-examination, Quantz was extremely evasive when questioned about why know­ledge of union organizational activities on the part of the grievor would have influenced his decision to permit Rabe to return to work after he put on his coat to leave. Moreover, the very fact that the grievor was encouraged to return to work after this incident during which the grievor spoke quite insubordinately to Quantz suggests that although somewhat dissatisfied with the grievor's productivity, management was not sufficiently dissatisfied with it to request or accept the termination of his employment at a point in time immediately before he began to engage in activity in support of the complainant. It was only after the grievor became a leading union organizer that the termination of the grievor's employment was considered and effec­tuated.

24. The Board therefore orders,

(i) that Roy Norman Rabe be reinstated by the respondent forthwith;

(ii) that Roy Norman Rabe be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act;

(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Hallo well House Limited [1980] OLRB Rep. Jan. 35; and

(iv) that the respondent post copies of the attached notice marked "Appendix", after being duly signed by the respondent's represen­tative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical ac­cess to the premises shall be given by the respondent to a represen­tative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.

DECISION OF BOARD MEMBER F. W. MURRAY:

Mr. Murray's decision will be given at a later date.

The Labour Relations Act

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 WE AND THE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY DISCHARGING ROY NORMAN RABE,

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL

ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS,

WE WILL NOT DISCHARGE ANY EMPLOYEE BECAUSE HE HAS SELECTED THE

INTERNATIONAL WOODWORKERS OF A~MERICA AS HIS EXCLUSIVE BARGAINING REPRESENTATIVE,

WE WILL OFFER TO REINSTATE ROY NORMAN RABE.

WE WILL PAY ROY NORMAN RABE FOR ANY EARNINGS THAT HE LOST AS A RESULT OF HIS DISCHARGE, PLUS INTEREST.

MOUNT FOREST CASKETS LIMITED

PER: (AUTHORIZED REPRESENTATIVE)

DATED: JUNE 3, 1980

This is an official notice of the Board arid must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.