[1980] OLRB Rep. July 1054
1838-79-U Canadian Textile and Chemical Union, Applicant, v. Silknit Limited (Textile Division), Respondent, v. United Textile Workers of America, Intervener.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members B. Armstrong and F. W. Murray.
APPEARANCES: Frank Park, Stanlee Hardman, John Taylor and Susan Harvie for the applicant; R. D. Perkins, H. F. Irwin and Allan Holvey for the respondent; Vernon Mustard and Ron Myslowka for the intervener.
DECISION OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; July 11, 1980
This is a complaint under section 79 of The Labour Relations Act. The complainant union alleges that the seven grievors were discharged by the respondent contrary to the provisions of sections 58, 61 and 70 of The Labour Relations Act. It requests their reinstatement into their former employment with compensation for wages and benefits lost.
Six of the grievors were employed as pipe fitters in the respondent's textile mill at Cambridge, Ontario. They worked in a division known as the pipe shop under the supervision of their forerman, Stanley Hardman who is also a grievor in these proceedings. The evidence establishes that on December 21, 1979, all of the grievors were terminated by the company. Their discharge came shortly after the conclusion of an unsuccessful attempt by the complainant union to displace the incumbent union in the plant, the United Textile Workers of America, the intervener in these proceedings. (Board File No. 1600-79-R, Feb. 5, 1980.)
The Canadian Textile and Chemical Union alleges that in the course of its certification campaign the employer and incumbent union conspired to defeat it and breached The Labour Relations Act to achieve that end. It further alleges that the employees and Mr. Hardman were discharged following the complainant's unsuccessful attempt at certification because the respondent, in league with the incumbent union, wished to eliminate any vestige of support or possibility of future activity on behalf of the complainant union.
The ultimate failure of the complainant's application for certification is not an issue in these proceedings. The alleged improper conduct of the employer and the incumbent union was raised b'{ the complainant union in the form of a section 7a allegation in its application for certification. At the time of the representation vote the complainant union chose to withdraw its charges in that regard and to be bound by the result of the balloting. This complaint is not, therefore, a reconsideration of any of the issue raised in that application. The evidence adduced with respect to the certification campaign is relevant only as background which the complainant submits is necessary to understand the alleged common motive of the incumbent union and the respondent in the discharge of the grievors.
The respondent raised a preliminary objection to the complaint. At the time of their discharge all of the grievors save Mr. Hardman were represented by the intervener union. It appears that the intervener has filed grievances on behalf of the six employees and those are proceeding before a Board of Arbitration. The respondent submits that the Board should therefore defer to arbitration in the circumstances of this case.
In the past the Board has tended to defer to arbitration when it appears that the complaint before it is essentially a dispute arising out of a collective agreement and where it is clear that the dispute has no implications that go beyond the four corners of the agreement. Disputes of that kind are generally best dealt through the dispute resolution procedure of arbitration either contained in the collective agreement or imposed by section 37(2) of The Labour Relations A ct.
Where, however, the issues in dispute raise questions that go beyond the administration of the collective agreement different considerations apply. In Kodak Canada Ltd. [1977] OLRB Rep. Feb. 49, at p. 56. the Board stated:
once a dispute can be characterized as being something more than just a dispute relating to the interpretation, administration or alleged violation of a collective agreement, [the] general presumption [in favour of arbitration] must necessarily give way. Although grievance arbitration is the proper forum for the resolution of matters relating to individual collective agreements, it is the Labour Relations Board that has been entrusted with the responsibility for resolving matters that go to the general structure of collective bargaining in this Province. Where such matters arise, therefore, it is this Board that provides the proper forum for the resolution, and deferral to grievance arbitration can no longer be the appropriate response.
(See also, Truck Engineering Limited, [1977] OLRB Rep. Jan 2; New Gregory House, [1977] OLRB Rep. Sept. 584).
Having regard to the nature of the allegations made in this complaint we are satisfied that this is not a case where we should defer to arbitration. The material filed raises clear allegations of collusion between the intervener union and the respondent employer. If that allegation is established and it should be found that the union and employer made common cause to rid themselves of the grievors there is little reason to accept that an arbitration between those same parties would give the grievors the kind of protection contemplated by the scheme of the Act. Moreover, a Board of Arbitration would hear a different complaint, dealing with whether the company, by contracting out the pipe fitting work, adhered to the collective agreement. That is not the issue in these proceedings. The illegality which the complainant alleges before this Board does not involve the interpretation of the collective agreement between the intervener and the respondent. It charges a conspiracy to defeat the rights of the employees and a union under the Act. It goes, therefore, to the heart of the collective bargaining process regulated by The Labour Relations Act. On that basis, it should be heard by this Board.
A further reason to decline to defer to arbitration in this case is the grievance of Mr. Hardman. The complainant alleges that he was discharged from his job as a foreman because he indicated a preference for the complainant union over the intervener. Not being a member of the bargaining unit he cannot have his discharge heard at arbitration. If, on the other hand, it can be established that Mr. Hardman's discharge was prejudicial to the interests of the complainant union lie may have an avenue of redress before this Board. (A.A.S. Telecommunications Ltd. [1976] OLRB Rep. Dec. 751).
For all of the foregoing reasons the Board is satisfied that it should not defer to arbitration in the face of the allegations before it.
When it is alleged that an employee has been dealt with contrary to the Act by his employer the respondent bears the burden of proving that it has not acted contrary to the Act in its actions regarding that employee. Where, as in this case, employees have been dismissed, the employer normally discharges that burden by coming forth with a full and credible explanation of legitimate business reasons, unrelated to anti-union sentiment, that were the basis for its actions. (Barrie Examiner [l975] OLRB Rep. Oct. 745). In this case the company's evidence was given principally by Mr. Allan Reginald Holvey, Vice-President of the Textile Division of the respondent in Cambridge. Mr. Holvey impressed the Board as a credible witness. He adduced in evidence documents to explain and support the respondent's submission that it laid off the pipe shop employees as a result of a company decision to contract out their work for reasons of business efficiency.
The respondent's textile operation is housed in a large building in Cambridge, parts of which are over 100 years old. Much of the equipment in the plant is powered by steam and compressed air delivered through an extensive system of pipes which requires constant maintenance and repair. Until December of 1979 that work was performed by the employees of the pipe shop.
In May 1979 Mr. Holvey decided to explore the possibility of contracting out the work performed by the employees in the pipe shop. Through the respondent's purchasing agent he contacted a local plumbing and pipe-fitting contractor, Nicholls & Radtke Associates Limited. On August 22, 1979, Mr. Holvey met with representatives of Nicholls & Radtke to finalize the terms upon which the private contractor was prepared to supply plumbing and pipe-fitting services to the respondent's plant. Shortly thereafter, on September II, 1979, Mr. Holvey did his own rough calculation comparing the cost of operating the pipe shop within the company to the cost of contracting the pipe-fitting work to Nicholls & Radtke. His calculations indicated that there would be significant savings through contracting out. At this point Mr. Holvey decided in his own mind that the best course of action for the company was to close the pipe shop. His personal decision became a corporate decision on December 19, 1979 at a policy meeting which included the Chairman of the Board of the respondent and its President. The decision was then made to close the pipe shop as of December 21, 1979.
At the time this decision was being explored and taken by the company its Cambridge plant was the battleground of an intense inter-union rivalry. For years the respondent's employees had been represented by the United Textile Workers of America, Locals 354 and 347. From the late Spring of 1979 through the Fall the plant was the subject of an intensive organizing campaign to oust that union by the complainant Canadian Textile and Chemical Union. The campaign culminated in an application for certification filed with this Board on November 16, 1979. On December 13, 1979 a two-way representation vote was taken among the employees and the incumbent, The United Textile Workers of America, emerged as the winner.
The complainant's application for certification came at a time when the incumbent union had begun to bargain with the respondent for the renewal of its collective agreement. The evidence is clear that there was much employee discontent both with the company and with the quality of the incumbent union's servicing of the plant up to that time. As a result of that concern and the pressure of the complainant's campaign The United Textile Workers of America conducted an intensive drive to consolidate its position among the employees in the plant. Between June and December of 1979 it held a number of meetings both inside and outside the plant to attempt to respond to the employees' concerns and regain their support.
The respondent's management was obviously not unaware of the conflict raging among the employees as between the two unions. Mr. Holvey was candid that he preferred to deal with the incumbent union, if only out of familiarity. It is clear that the incumbent took advantage of its access to the plant and the employees during the course of the certification campaign. The evidence does not establish, however, that the company openly or overtly favoured the incumbent union over the applicant in such a way as to unduly influence the employees.
The inter-union division among the employees was sharp. It is not disputed that all of the grievors save Mr. Hardman, the foreman, supported the complainant union. While Mr. Hardman was not directly involved he openly professed greater respect for the Canadian Textile and Chemical Union. The evidence also establishes that several of the grievors had distributed campaign literature at the plant gates on behalf of the complainant union. It is also clear, however, that employees from other departments did so as well.
The burden of the complainant union's submission is that because the pipe shop was a 'hot bed of support" for The Canadian Textile and Chemical Union the company, in conjunction with the incumbent union, plotted to eliminate all of the employees within it. The probabilities of that argument are not, however, very firm on the evidence before this Board. Any action to purge the pipe shop employees could not, for example, influence the outcome of the certification campaign. When the grievors were discharged on December 21, 1979, the campaign was over and the representation balloting was finished.
Counsel for the complainant argues, nevertheless, that the interest of the company and the union was to eliminate any future dissidents among the employees. He submits the pipe shop was an especially appropriate target because its members moved about extensively through the plant and could influence employees in all departments. The evidence does not support that theory. The evidence establishes that two members of the pipe shop staff were kept on. One, Mr. Taylor, was kept on for compassionate reasons because he was close to retirement. The second, Mr. Brown was retained because of his knowledge of the jet-dyeing process and his rapport, apparently greater than Mr. Hardman's, with the employees in that department.
The undisputed evidence is that both Brown and Taylor were also supporters of the Canadian Textile and Chemical Union. There is nothing on the evidence to distinguish their allegiance from that of the grievors. Moreover, there is nothing in the evidence to confirm that the company knew with any certainty the union preference of each of the nine employees in the pipe shop.
Having regard to the totality of the evidence the Board accepts the testimony of Mr. Holvey that the decision to close the pipe shop and lay off the grievors was based entirely on the company's plan to rationalize its operations and implement savings in its maintenance costs. The Board cannot, on the balance of probabilities, conclude that the discharge of the grievors amounted to either selective or wholesale discrimination against them because of their particular union sympathies. Nor can the Board conclude that the company's action, being an administrative decision in the normal course of business amounted to a breach of the section 70 freeze.
The complaint is, therefore, dismissed.
The Board's conclusion does not, however, in any way affect or limit such right as the grievors may have under their collective agreement. The right of the respondent to discharge the pipe shop employees in order to contract out the work previously done by the grievors is a matter exclusively for the Board of Arbitration that has been constituted to deal with that question. Being satisfied that there was no collusion or ill-will aimed at the grievors by the incumbent union we see no reason why that determination can not be made in due course by the tribunal constituted to hear it.
DECISION OF BOARD MEMBER B. ARMSTRONG:
I dissent.
The employer has not discharged the burden imposed upon it by Section 79(4a) that it has not acted contrary to the Act. It has failed to satisfy me that its decision to dismiss the grievors was prompted by a business reason and that it was unrelated to the grievors' support for the complainant union.
The evidence was clear that all the grievors were active supporters of the complainant union and that this fact was well known to the respondent. It is equally clear that the respondent was anxious to prevent the incumbent union being ousted by the complainant. There was amole evidence of the incumbent union receiving and exercising many privileges (which were not available to the complainant union) during the campaign preceding the representation v3te. In fact, as the majority decision points out, Mr. Hardman admitted at the hearing that he preferred to deal with the incumbent union rather than with the complainant union.
This evidence, when coupled with the timing of the decision to close the pipe shop, seems to me to be more than mere coincidence. It becomes necessary then for the respondent to adduce strong evidence to show that business reasons, and business reasons alone, were behind the decision to close.
In my view the company has failed to discharge that responsibility. Contrary to what the majority decision states, the evidence showed that the decision to close was not done after a thorough investigation, as would be reasonable to expect. On the contrary, the decision was casually taken essentially by one individual.
On a balance of probabilities, I am not at all convinced that the decision was taken for legitimate reasons. The respondent has failed to discharge the onus under Section 79(4a).
I would order the grievors reinstated to their former employment with compensation for lost wages and benefits.