Ontario Labour Relations Board
United Steelworkers of America v. Fotomat Canada Limited
[1981] OLRB Rep. May 530
2040-80-U United Steelworkers of America, Complainant, v. Fotomat Canada Limited, Respondent.
BEFORE: Kevin M. Burkett, Alertnate Chairman and Board Members C. A. Ballentine and J. Wilson.
APPEARANCES: James Hayes, William Mills and Michael Bowman for the complainant; Stephen McCormack, Brock Myles and Marlene Hallett for the respondent.
DECISION OF THE BOARD; May 25, 1981
This is a complaint filed under section 79 of The Labour Relations Act in which the complainant alleges violations of sections 56, 58 and 61 of the Act.
The complaint deals with the treatment afforded to a number of strikers represented by the complainant trade union who returned to work on or about December 1, 1980 pursuant to a Board order. In a decision dated October 24, 1980 the Board found that the respondent company violated section 14 of the Act in that it failed to bargain in good faith and make every reasonable effort to enter into a collective agreement. The Board found that as a result of the respondent's unlawful activity the complainant's bargaining power to seek the reinstatement, of its striking members had been eroded. The time provided under section 64 of the Act within which a striking employee's right to return to work is protected had elapsed so that the return to work of the employees was conditional upon the bargaining power of the complainant trade union. In these circumstances the Board concluded that if it did not provide in its remedial order for the return to work of the striking employees the result would be to reward the employer for his unlawful actions. The result would also have been to leave the complainant trade union and its striking members in a disadvantaged position. Accordingly, the respondent was directed to re-submit to the complainant, as the basis for bargaining, an offer of settlement which had been made to the complainant and then unlawfully withdrawn. The respondent was also ordered to reinstate any striking employee who made an unconditional El application for employment by December 1, 1980.
The complainant filed a fresh complaint dated December 16, 1980 alleging noncompliance with both parts of the above-described order issued by the Board on October 24, 1980. The Board severed the two aspects of the complaint and, in a decision dated February 13, 1981 dealing with the bargaining conduct of the respondent, found that Part IV of "the respondent's offer of December 3, 1980 was unlawful and is to be severed from the rest of its offer of that date." Under Part IV of its offer the respondent made the other parts of its offer conditional upon acceptance by the employees in a ratification vote conducted pursuant to section 34dcf the Act. The trade union accepted all other terms of the offer but the respondent nevertheless insisted on the necessity of a ratification vote. In the face of the union's acceptance of all of the substantive terms of the employer's offer the Board, in finding a further violation of section 14 and violations of sections 56 and 58 as well, commented that the purpose of the respondent's bargaining stance of December 3, 1980 was "to provide an opportunity to the respondent's employees to reject their bargaining agent and undermine the very basis to collective bargaining." The Board directed the respondent to execute collective agreements incorporating all matters agreed to on December 3, 1980 for all certified bargaining units.
The second aspect of the union's December 16th complaint, the matter with which we are seized, deals with the treatment afforded to the striking employees who returned to work pursuant to the Board's order dated October 24, 1980. The union alleges that the return to work arrangements implemented by the respondent failed to comply with the Board's order and were designed to provoke a response from the strikers which would provide the respondent with an excuse to terminate their employment.
By letter dated Wednesday, November 26, 1980, the complainant union advised the company of the names of the 62 striking employees who were making an unconditional application to return to work pursuant to the Board's order of October 24, 1980. These employees had been on strike for a period of 14 months. Each was employed within one of sixteen bargaining units for which the complainant had been certified as bargaining agent. These bargaining units are located in Metropolitan Toronto, Scugog, Oshawa, Newcastle, Peterborough, Markham, Trenton, Belleville, Oakville, Port Hope, Lindsay, Caledon, Ajax, Brantford and Barrie. The company operated its photofinishing and photographic equipment retailing business during the course of the strike by use of strike replacements who worked from the company's retail outlets in the locations referred to above. The bulk of the company's work force, both strikers and strike replacements, is female.
By telegram dated Friday, November 28, 1980 the respondent advised each of the striking employees who made an unconditional application to return to work to report to the company's Warden Avenue office in Metropolitan Toronto at 9:00 a.m. on Monday, December 1, 1980. When asked to explain the short notice, Mrs. Marlene Hallett, the company's administrative supervisor, testified that the company understood the Board's October 24, 1980 order as requiring it to physically return to work by December 1, 1980 those persons who made application pursuant to the Board's order. Forty-seven employees reported as directed. However, the affected employees did not receive the notice to report until late Friday afternoon or evening so that many of those required traveling to Toronto had to make arrangements (babysitting, banking etc.) on short notice.
On Monday, December 1, 1980 the returning employees were met by Mrs. Hallett. They were directed to a waiting bus for transportation to a nearby Holiday Inn. Once the returning employees were seated in the hotel meeting room Mrs. Hallett, who was accompanied by Mrs. Marg Quinn, an assistant, welcomed them back to the company. The scene which followed has been accurately described by Mrs. Hallett in her evidence. The employees were loud and raucous and made derogatory remarks about herself and the company. Some of the returning employees were heard to comment that they were still on strike. When she announced that each employee was required to complete a questionnaire (eliciting general information) Mr. Rick Bigelow, who assumed a leadership role on behalf of the returning employees, directed the employees not to sign. He left the room but upon his return informed those present that the questionnaire could be completed. Each employee was individually called to a table at the front of the room for this purpose. Immediately after lunch Mr. Hallett announced that a four-day training course would commence the next morning and that travel time would be paid to those coming from outside Toronto. The announcement caused a "general disgruntlement" which culminated with the walkout of those present. It is Mrs. Hallett’s uncontradicted evidence that she told those who were present that there was work for them and that if they wanted to come to work to 'lust sign the time card".
Mrs. Hallett testified that she was relieved that the meeting was over and pleased at the outcome. She testified that she thought she had received a mass resignation from 47 employees who would have had to have been placed in stores and would have displaced employees 'Aho were there and, in her opinion, doing a good job. Mrs. Marg Quinn echoed Mrs. Halletts sentiments in this regard. The company had informed the strike replacements by correspordence which preceded the Board's October 24th order that their employment was secure. Mrs. Hallett immediately reported the "mass resignation" to her immediate supervisor, Mr. J. Gillespie.
Fifteen of the returning employees appeared at the Holiday Inn on Tuesday, December 2nd prepared to commence the training programme. Two others were engaged in negotiations with the company. None of the others reported for training on Tuesday, December 1, 1980 and, with one exception they did not advise the company that they would be absent. However, fifteen of the employees who had reported on the Monday, but had failed to appear on the Tuesday, reported for training on Wednesday, December 3, 1980. The company adopted the position that these employees had resigned their employment and refused to allow any of them to take part in the training programme. Two others who failed to appear on Tuesday called the company and a third appeared at the company's offices on Wednesday, December 2nd. The company took the same position with respect to the employment status of these employees as it had with those who, although absent on Tuesday, December 2nd, had reported for training Wednesday December 3rd. Three of the employees who had attended on both the Monday and Tuesday and were in attendance on Wednesday, December 3rd walked out of the training course in protest against the company's actions. These three returned on Thursday, December 4th and were told that they too had resigned their employment.
Fourteen employees reported to work on Monday, December 1, 1980, completed the training and were assigned to their former work places. The remainder has not returned to work but; the evidence establishes that they desire to do so. Although none of these employees gave a credible explanation for the failure to notify the company of their intended absence on 'Tuesday, December 2nd, a number of them gave credible explanations for not attending at work on that day. The company did not accept any of the explanations which were offered but maintained that the employees who failed to report for work on Tuesday, December 2nd, without notification to the company, had resigned their employment.
It has been the practice of the company to train its retail sales employees prior to assigning them responsibility for a work location. In most cases training has taken place on a individual ill-store basis. The returning employees had received the benefit of this training when they entered the employment of Fotomat and many of them had considerable work experience with the company. However, Mrs. Hallett testified that because the strikers had not worked for over 14 months, and because the company had introduced a charge card system, a courier system and new merchandise during their absence, the company decided that refresher training was required. She testified further that it was not feasible to institute in-store training because of the numbers involved and because the striking employees would have been required to work alongside the strike replacements whom they were about to displace. An outline of the material covered in the training course was tendered in evidence. In fact, the training was; carried on for five days.
Mrs. Hallett testified that in adopting the position which it did with respect to the employees who failed to appear on Tuesday, December 2nd and failed to notify the company the company was following its past practice. She testified that when a Fotomat employee fails to notify the company of her absence from work the company terminates. When asked if this practice was followed where the absence was for a single day, she replied 'lust failing to appear is not so crucial but when an employee doesn't notify and doesn't show up at our operation, it is closed. We have an obligation to the public and the store is closed until we can open it up." Mrs. Hallett was referring to the operation of the company's retail outlets. Mrs. Hallett testified that the company's practice in this regard had been a long-standing one. When she was shown a copy of an internal company policy guide which stated that any employee who is absent for three days or more will be deemed to have abandoned her employment, Mrs. Hallett acknowledged that there had been a change in policy but testified that she couldn't be exact as to when but that it had occurred some time ago. She admitted that the employees had never been notified of the change in company policy respecting deemed resignations. When asked to provide a business explanation for the company's reliance on its purported policy, Mrs. Hallett testified that the business reason was that they had resigned. She gave no other explanation. The company submitted 21 Employee Status Change forms showing resignation for failure to give notice of absence in support of Mrs. Hallett's evidence that the company acted in a manner consistent with its past practice. However only four of these show the company as having processed the deemed resignation within a single day of the absence. The remainder shows the company as having processed the resignation after the passage of a longer period of time, in many cases up to one month.
The respondent takes the position that it complied fully with the Board's order of October 24th when it accepted into employment the strikers who had made application to return to work. The respondent argues that it was reasonable for the company to retrain persons who had not worked for some 14 months and asks the Board to find on the basis of the training outline submitted in evidence that the decision to undertake a 4-day training programme was a reasonable one. The respondent maintains that the Board's order of October 24, 1980 is ambiguous and that the company's understanding that it was required to provide work for the returning strikers by December 1, 1980 does not evidence anti-union intent. The respondent asks the Board to find that the notice period provided by the company and the decision to retrain was free of anti-union motive. The respondent asks the Board to pay special attention to the fact that the employees walked out of the December 1st meeting on their own initiative and to conclude that the company had every intention of returning them to employment. It is the respondent's position that the employee's did in fact resign their employment and that the company, in applying its absence without notice policy, did not exhibit an anti-union motive.
The complainant argues that the respondent purposely created the situation which resulted in the walkout by the returning employees and then sought to take advantage of it for anti-union reasons. The complainant cites the short notice period and the duration and site of the training programme in support of its contention. The complainant maintains that at best the returning employees may have needed a one-day refresher which could have been given instore. The union asks the Board to consider the effect of the company's action, the history of its relations with the union and the absence of a satisfactory business explanation and to conclude that the company dealt with the returning employees as it did for anti-union reasons.
In reply the respondent reminds the Board that the union did not advise it of the
names of the returning employees until November 26th and in view of the ambiguity of the Board's October 24th order, asks the Board not to impute an anti-union motive from the duration of the notice period. The respondent maintains that because the employees walked out on their own there can be no question of anti-union motive on the part of the company. The respondent points to the employees refusal to sign time cards, the decision to leave the December 1st meeting and the failure to return on December 2nd as satisfying both the subjective and objective conditions precedent to a resignation. It is the respondent's position that it is under no obligation to reinstate employees who have resigned their employment and its decision not to reinstate cannot be found to have been motivated by anti-union considerations.
- The provisions of section 79(4a) of the Act apply in this case. Section 79(4a) 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."
The section requires the respondent to establish on the balance of probabilities that its treatment of the striking employees was free of anti-union animus.
The Board must assess the conduct of the respondent company vis-a-vis the employees who returned to work pursuant to the Board's order of October 24, 1980. The Board must decide if, as is alleged by the complainant, the company acted to create a situation designed to provoke a response from the returning employees which would allow it to deny them employment. Even if the company did not act to precipitate such a response from the returning employees the Board must also assess the legitimacy of the company's blanket refusal to allow those who absented themselves from the training course to return to employment. Clearly, if such a refusal was motivated by anti-union considerations it would be in violation of the Act.
Given the union's delay in advising the company of the names of the returning employees and the rationale advanced by the company in support of its training format, we are not satisfied that the company deliberately created a situation designed to provoke a response which would allow it to discontinue the employment of the returning strikers. Indeed, given the union's previous successes before the Board, the company could logically have assumed that any such scheme would be met by a complaint filed under the Act and not by a resort to self-help. This is not to say, however, that the employees who returned to work on December 1st did not perceive themselves to be the subject of company mistreatment. We are satisfied that they did.
The company's response to the walkout is a different matter. Emotions ran high during the strike and continued to run high as the strikers returned to work. It was for this reason that Mrs. Hallett was apprehensive about what to expect when she faced the returning employees. The short notice period caused an inconvenience to many of the returning employees and was viewed by them as an attempt by the company to mistreat them. The announcement of a 4-day training course in Toronto was viewed in the same light. The returning strikers, who had maintained their status as Fotomat employees through a 14-month strike, considered themselves to be victims of company mistreatment and responded in protest. Their response was an emotional and ill-advised attempt to alter the conditions upon which they were being returned to work. It was not an action taken with a view to severing the employment relationship. We accept the evidence of the returning employees, as consistent with all the surrounding circumstances, that there was no intention of resigning employment.
Did the company believe that those who had returned following a 14-month strike had resigned their employment by virtue of their actions on December 1, 1980? Even if we assume that the company held this view initially, the attempted return to work on Wednesday, December 3rd should have given the company serious cause to reconsider. Instead, the company remained adamant that the employees had resigned en masse and turned a deaf ear to the explanations which were advanced.
The company maintains that it treated these employees in accord with a longstanding policy. In fact the last written instructions issued by the company allow for up to three days' absence before a resignation is deemed to have occurred. The evidence adduced with respect to the actual practice does not establish that the company responds to single day absences without notice in as inflexible manner as it did in this case. Regardless, the rationale advanced in support of a firm and inflexible approach does not apply in this case. The policy flows from the nature of the company's retail business. The company operates numerous retail outlets which are staffed by a single person. If the person assigned to an outlet is unable to attend at work and fails to notify the company the outlet remains closed. In order to impress upon its retail employees the importance of prior notice, the company has developed a strict policy in response to absences without leave. However, the employees in question were not working in retail outlets at the time but were assigned to a group training programme. The rationale for the policy does not apply. Notwithstanding this fact, the company applied it in a blanket manner and could give no other business explanation for refusing to permit the grievors to return to work.
When reference is had to the absence of a credible business justification for its response, to the history of relations between the respondent company and the complainant trade union, to the timing of the blanket application of the policy referred to above and to its effect, we are compelled to conclude that the company acted for anti-union reasons. This Board has found that the respondent company breached its duty to bargain in good faith and made every reasonable effort to conclude a collective agreement on two occasions. In its February 18, 1981 decision, the Board held that the bargaining conduct of the respondent was designed to undermine the very basis for collective bargaining and found violations of section 58 and 61 of the Act as well as section 14. The bargaining conduct which gave rise to these findings occurred on December 3, 1980, the same day that the employer relied on the policy referred to above to refuse to allow any of the employees who had been absent without notice on Tuesday, December 2nd to return to work. The effect of the company's refusal was to strip all but one of the bargaining units outside Metropolitan Toronto of union members who had supported the strike for its duration. The company must be presumed to contemplate the consequences of its actions and in the absence of a credible business explanation; an adverse inference can be drawn. In this case, the company failed to provide a credible business explanation for its actions.
Having regard to all of the circumstances we can come to no other conclusion but that the respondent was motivated by anti-union considerations when it persisted in characterizing the employees' actions of December 1, 1980 as a mass resignation and refused to allow any of the employees who were absent without notice on Tuesday, December 2nd to continue their employment with the company. We hereby find that the respondent violated sections 56, ~8 and 61 of The Labour Relations Act.
Turning to the issue of remedy. In our view there are basically three groups of employees who must be dealt with in shaping a fair and effective remedy. The first is the group of employees who were present at the training programme, absented themselves without leave and physically attempted to return but were refused by the company. These employees should be returned to work with full compensation from the date of their attempt to return to work. The second group of employees includes those who did not physically attempt to return but .contacted the company and offered explanations for their absence. The company refused to entertain any of these explanations and its blanket approach in this regard was part of its unlawful conduct. While the company may not have accepted all of the explanations offered if it bad been acting without an anti-union motive, we have no way of knowing for certain which explanations may have been accepted and which may not have been. In these circumstances, the benefit of any doubt must be resolved in favour of the employees who have been refused employment. The employees who fall within this second category .must also be reinstated and the quantum of their compensation determined on a case-by-case basis. The third group of employees comprises those who did not attempt to return and did not contact the company but heard from others that the company was taking the position that they had abandoned their jobs. In our view, it is not unreasonable that an employee who was aware of the stance being taken by the company would not have wished to pursue the matter with the company. Indeed, the evidence establishes that a direct approach to the company would have proven futile. Accordingly, these employees must also be given the benefit of any doubt and reinstated. It s our view that compensation from the date as of which they were aware of the futility of approaching the company directly should be paid if they now return to work and thereby dispel any doubt that it was their firm intention to return to work.
Having regard to all of the foregoing, it is the order of this Board that:
(I) The returning employees who absented themselves without notice on Tuesday December 2nd and attempted to return to work on Wednesday, December 3rd (including those who went to the company office) be reinstated forthwith to their former jobs and compensated for lost wages for the period Wednesday, December 3, 1980 to the date of their reinstatement.
(2) The returning employees who absented themselves on Wednesday, December 2nd and attempted to return on Thursday, December 4th, be reinstated forthwith to their former jobs and compensated for lost wages for the period Thursday, December 4, 1980 to the date of their reinstatement.
(3) The returning employees who absented themselves without notice on Tuesday, December 2nd, and contacted the company on Monday, December 8th, be reinstated forthwith to their former jobs and compensated for lost wages for the period December 8, 1980 to the date of their reinstatement.
(4) Karen LeMoine and Diane Hersey, both of whom contacted the company on Wednesday December 3rd and provided credible explanations for their absence the previous day be reinstated forthwith to their former jobs and compensated for lost wages from December 3, 1980 to the date of their reinstatement.
(5) Sheila Fountain who had her first child on November 5, 1980 and contacted the company on December 8, 1980 be reinstated forthwith to her former job and compensated for lost wages from the date she would have been physically able to work to the date of her reinstatement.
(6) Irene McKinstry who attended on December 1st but left early due to the beginning of her husband's shift and babysitting problems but did not contact the company following December 1, 1980 be reinstated forthwith to her former job.
(7) Chris Clement who worked as a weekend driver for the company and did not attend on Monday, December 1, 1980 because of full-time employment elsewhere but advised the company of this fact, be reinstated forthwith to her former job and compensated for lost wages from the weekend of Saturday December 6th to the date of her reinstatement.
(8) Linda Luinstra who did not attend the training session because of the hospitalization of her child in Barrie but reported for work on December 8, 1980 be reinstated forthwith into her former job and compensated for lost wages from Monday, December 8, 1980 to the date of her reinstatement.
(9) Mike Wilks, a part-time employee who is a full-time grade 13 student who walked out on December 1st and did not return to the training session because he could not afford time away from his studies during the day and advised the company of this fact, be reinstated forthwith to his former job and compensated for his lost wages from Monday, December 8, 1980 to the date of his reinstatement.
(10) Pam Perry, Barbara Van Sickler and Rose Chiu who did not attempt to return following December 1, 1980 but heard from others of the position taken by the company be reinstated forthwith into their former jobs and, if they return to active employment with the company, that they be compensated for lost wages as if they had worked from December 8, 1980.
In addition, the respondent is directed to post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places at its places of business where bargaining unit employees are employed and to keep those notices posted for 60 consecutive days. Reasonable steps shall be taken by the respondent to ensure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to all such premises shall be given by the respondent to two representatives of the complainant to satisfy itself that this posting requirement has been and is being complied with.
The respondent is further directed, at its own expense, to mail a copy of the attached notice marked "Appendix" after being signed by the respondent's representative, to the residence of e3ch employee in the said bargaining units forthwith.
The Board will remain seized of this matter in the event of any difficulty with the implementation of its remedial order.