[1981] OLRB Rep. April 425
1763-80-U Myrna Wood, Applicant, v. Canadian Red Cross Blood Transfusion Service, Hamilton Centre, Respondent
BEFORE: M. O. Picher, Vice-Chairman, and Board Members F. W. Murray and O. Hodges.
APPEARANCES: Peter Slee and Myrna Wood for the applicant; Howard Levitt, Hector Martinez, Donald Bethune and Morris A. Blajchman for the respondent.
DECISION OF THE BOARD; April 9, 1981
This is a complaint under section 79 of The Labour Relations Act alleging that the grievor, Myrna Wood, was discharged by the respondent because of her union activities, contrary to section 58 of the Act.
From April of 1977 until her discharge on November 4, 1980 the grievor was employed as a clerk in the respondent's operations in Hamilton. She was classified as a "temporary full-time" employee assigned to perform clerk-typist's duties. The bulk of her work related to a research project into RH negative blood types conducted by Dr. Morris Blajchman, the Medical Director of the respondent.
As a temporary full-time employee Mrs. Wood was covered by certain provisions of the collective agreement between the respondent and The Canadian Red Cross Blood Transfusion Service Employees Association (hereinafter "the Association"). Article 2.02 of the collective agreement provides, in part:
2.02
(a) The parties agree that upon the completion of three (3) continuous months of employment the provisions of the Agreement as specified under the Articles hereunder indicated shall apply to all persons employed on temporary full-time basis in positions included within the bargaining unit, either as authorized leave replacements, seasonal help, or for specific projects where the employee's duration of employment shall terminate upon completion or discontinuance of the project:
Article 13 — Wages 14 — Hours of Work and Overtime 15 — Vacations with Pay 16 — Statutory Holidays 20 — Leave of Absence Without Pay 21 — Special Leave 22 — Marriage Leave 23 — Compassionate Leave 24 — Court Duty 25 — Handicapped Employees 26 — Welfare (except the benefit plans included in par. 26.02) 27 — Uniforms 28 — Sick Leave 29 — Transportation 30 — Meal Allowance 31 — Lodging 33 — Safety and Health and Employment Conditions 36 — Position Premiums 37 — Employee Performance Review and Employee Files
and, further, such employees shall be entitled to preferential consideration in filling up permanent full-time vacancies within the bargaining unit to which they are qualified, as against outside applicants.
The scope clause of the collective agreement expressly excludes temporary full-time employees from the bargaining unit, and in a separate decision dated February 18, 1981, (Reported [1981] OLRB Rep. Feb.137,) the Board has determined that Mrs. Wood is not in the bargaining unit and was not represented by the association at the time of her discharge.
The evidence establishes that Mrs. Wood paid dues to the association pursuant to a voluntary check off provision in the collective agreement. She also attended its meetings, being treated for all practical purposes as a member. Under Article 2.02(a) of the collective agreement as permanent full-time positions become available there is a right of preferential consideration which the union can enforce for the benefit of temporary full-time employees. The union's administration of that article of the collective agreement set Mrs. Wood on a collision course with the union, and more particularly with its president, Mrs. Joanne Hatfield.
The confrontation grew over time. It appears that there were only two other temporary full-time employees: Sylvia Martin, a clerk-typist and Debbie Allen, a driver. Mrs. Wood became unhappy with the treatment that each of her counterparts received from the employer and with what she perceived as the association's failure to properly defend them. In September of 1980 Mrs. Martin applied for a newly opened permanent position. She was refused the job. It was awarded to Christina Hatfield, a non-employee who is the daughter of the president of the union. On September 16, 1980, when Mrs. Martin learned she had been unsuccessful she asked Mrs. Hatfield why she had been denied the job. It is not entirely clear how the president of the association would have been privy to the reasons for that decision of management. In any event Mrs. Hatfield replied that the employer felt that she was better suited to the job that she was in. When Mrs. Martin related to Mrs. Wood what the union president had told her, Mrs. Wood was not satisfied. She was particularly concerned that the association's president should appear indifferent when a temporary full-time employee with past service and experience was not given preference over an outside applicant in filling a permanent position. The matter was more sensitive still because the successful applicant was the association president's daughter. Notwithstanding that Mrs. Wood decided to confront Mrs. Hatfield.
She proceeded to Mrs. Hatfield's office with a copy of the collective agreement. The evidence establishes that a heated discussion ensued. Mrs. Wood registered her displeasure that the association showed itself unwilling to back the temporary full-time employees by enforcing their preferential right to permanent positions under Article 2.02(a) of the collective agreement. Mrs. Hatfield responded that the hiring of someone else over Mrs. Martin was management's prerogative. She stressed that in any event this was not an issue which Mrs. Wood had any business to raise because she was not a member of the union and had no rights under the collective agreement.
At that point Mr. Bethune, the administrator of the respondent's Hamilton Centre entered the room. While there is some conflict as to what was then said, on balance the Board accepts the evidence of Mrs. Wood, corroborated in part by the evidence of Mrs. Hatfield, that Mrs. Hatfield then suggested that she address her complaint to Mr. Bethune. Mrs. Wood expressed to Mr. Bethune her view that Mrs. Martin should have been awarded the job on the basis of her greater experience. After they discussed the criteria for the job Mr. Bethune agreed with Mrs. Hatfield that this was not a matter which should concern Mrs. Wood because she was not a member of the union. So the incident ended, although it is clear that Mrs. Wood was less than satisfied at what she perceived as the union's failure to adequately represent the interests of the temporary full-time employees.
The next incident, a few weeks later, involved the termination of Debbie Allen. A temporary full-time employee of some three years' experience with the respondent, Ms. Allen was discharged in October, 1980, while she was applying for a permanent position. Although Ms. Allen apparently chose not to pursue the matter through the association, Mrs. Wood again became concerned that the union should be doing more to protect temporary full-time employees. Her concern was shared by some permanent employees who were members of the bargaining unit. Mrs. Wood made no secret of her displeasure over the Debbie Allen discharge. She spoke with other employees, including Mrs. Laurie Hampson, about her dissatisfaction with the union's failure to do anything both for Ms. Allen and for Mrs. Martin. She decided that something must be done to make the association more responsive to the temporary employees, and to that end she prepared the following petition.
The Canadian Red Cross Blood Transfusion Service Employees Association
c/ o Joanne Hatfield
We would like to ask the executive of our union to call a membership meeting to discuss an important issue. The issue is: whether management has broken our contract by not giving preferential consideration on job openings to permanent temporary workers, over outsiders — article 2.02.
The union can put in a policy grievance and go to arbitration on any dispute over interpretation of the contract. (section 37(2) of the Labour Relations Act) The union has a duty to represent all employees of the bargaining unit, even if they are not official members of the union. (section 60 of the Act.)
One member has been denied a job she qualified for, and an outsider was hired. The reasons given were age, weight, etc.: criteria that has [sic] not been used in hiring other people in the past 2 years for the position.
Another member has been denied a permanent position and therefore is fired. The reasons given were complaints about her work by other members of the bargaining unit. Her supervisor assessed her work for another 3 weeks, and then, without bringing up any more complaints about her work, said that administration had said she could not have the job. So far, no reasonable complaints about incompetent work, refusal to work, etc. have been given her. Other people in the bargaining unit who have worked with her, have found no problems with her work.
Two temporary workers have been told that when a permanent position is posted, it will be 'advertised' outside. This seems to imply prior intent to circumvent article 2.02 of the contract.
As the permanent temporaries are not allowed to be members of the union they can not grieve on their own behalf. However, we feel that since management signed this contract, and since we have supported the union (and paid union dues for years), that it is the union's responsibility to grieve this issue. As we decided over the last negotiations, if we do not stand up for our union and the contract we will eventually lose all we have gained.
There was some conflict in the evidence as to how widely and for how long the petition was circulated. On balance we must conclude that it was seen by only a handful of employees. Mrs. Wood did not herself circulate the petition, but gave it to permanent employees to circulate, in the belief that her standing to complain would again be questioned if it were known that she was its sponsor. The permanent employees who had it returned it to her after little more than a week. It is clear that while not many employees saw the actual petition its existence was fairly widely known. It was also widely known that it related to unhappiness about the treatment of both Mrs. Martin and Debbie Allen, two issues that were becoming a matter of growing discontent among the employees.
Mrs. Hatfield, the union's president, was away from work on sick leave during the time that the petition was in the workplace. She learned of the document while at home through a telephone call from an employee. While Mrs. Hatfield testified that she did not know who the author of the petition was, she admitted that she knew it related to the treatment of Debbie Allen and Sylvia Martin. When she returned to work on November 3, 1980 she learned from one of the association's officers that Laurie Hampson and Myrna Wood were particularly upset about the discharge of Debbie Allen and the failure of Mrs. Martin to obtain the permanent job that she had applied for. Almost immediately Mrs. Hatfield sought out Mrs. Hampson at her workplace.
There is a great difference in the account of Mrs. Hampson and of Mrs. Hatfield as to what was said between them. Mrs. Hampson testified that the president was angry, jabbed her finger at her and told her in an annoyed tone of voice that she did not know the facts and that the incidents regarding Debbie Allen and Sylvia Martin did not concern her. By Mrs. Hampson's account the purpose of Mrs. Hatfield's speaking to her was to tell her to stop complaining and to stay out of things that did not concern her.
Mrs. Hatfield's account is entirely to the contrary. According to her evidence she approached Mrs. Hampson and asked her what the nature of her concerns were about Debbie Allen and Mrs. Martin. The union's president testified that she sought to help Mrs. Hampson understand what had happened. She says that she explained to her that Ms. Allen had been terminated because of a general dissatisfaction with her driving abilities and that Mrs. Martin was not given the permanent position because it was management's opinion that she was better suited to the clerical job that she already held.
The exchange between Hampson and Hatfield was observed by Mrs. Lorraine Leroux, a witness called on behalf of the respondent. While Mrs. Leroux testified that she did not believe that Mrs. Hatfield was angry, her account supports at least in part the testimony of Mrs. Hampson. According to Mrs. Leroux, Joanne Hatfield did not give Mrs. Hampson any explanation about the decision not to transfer Mrs. Martin to a permanent job. Mrs. Leroux's evidence is that Mrs. Hatfield told Mrs. Hampson that the reasons for management's decision were confidential. For reasons that will become apparent, the credibility of Mrs. Hatfield's testimony is critical to this complaint. After close scrutiny of the evidence of all three witnesses to the exchange between Hatfield and Hampson we must prefer the evidence of Mrs. Hampson, and must also find, having regard both to her demeanour as a witness and to the content of her evidence that Mrs. Hatfield was less than candid in her testimony. Whatever may have been her tone of voice in addressing Mrs. Hampson, we must find that Mrs. Hatfield's purpose in approaching Hampson was essentially to scold her and to instruct her that she should stay out these matters and not, as Hatfield maintained, to try to satisfy Mrs. Hampson's concerns.
A similar exchange then occurred between Mrs. Hatfield and Mrs. Wood. The Board is satisfied upon the evidence that the purpose of Mrs. Hatfield's going to Mrs. Wood was to admonish Mrs. Wood for having caused dissension among the employees over Allen and Martin and to tell her to stop meddling in union affairs. While there may be some doubt as to how loud their exchange was, it is clear that it was an intense confrontation. The Board accepts the evidence of Mrs. Wood that during their encounter Mrs. Hatfield told the grievor that she was aware that Mrs. Wood had been stirring trouble about the termination of Debbie Allen and that she was going to raise it with Dr. Blajchman the next morning.
The unchallenged evidence is that the next morning Mrs. Hatfield met with Dr. Blajchman and Mr. Bethune and informed them of the petition and the morale problems developing among the employees in respect of Debbie Allen's discharge. Later that same day the grievor was discharged.
Mrs. Wood was discharged by Dr. Blajchman, with Mr. Bethune and Mrs. Spiak, the supervisor of laboratories, both present. While there was some conflict in the evidence over what was said in the termination meeting, it is clear that Mrs. Wood was told that she was being terminated because the funding for her position had run out. The Board does not doubt the truth of the respondent's assertion that it became aware in October of 1980 that funding would no longer be available for Mrs. Wood's position and that her job would no longer continue as the RH negative research project was complete. The issue, however, is whether those were the only reasons for her discharge and whether there were alternatives to discharge which the respondent did not pursue because of an unlawful motive.
The uncontradicted evidence is that Dr. Blajchman was pleased with the quality of Mrs. Wood's work. He had previously given her verbal assurances that he would give her first consideration for any permanent position that came open. It was then generally expected that a permanent clerk-typist position occupied by a Mrs. Sears, an employee on sick leave not expected to return, would be coming open and that Mrs. Wood and Mrs. Martin would both be candidates for that job. They had both been told earlier that there might only be one job for both of them. When it became clear that further funding for Mrs. Wood's job would not be forthcoming, however, at the time of Mrs. Wood's confrontations with Mrs. Hatfield, the respondent apparently ceased to treat Mrs. Wood and Mrs. Martin on the same plane. It simply let Mrs. Martin continue in the one remaining temporary full-time position, notwithstanding that Mrs. Wood was senior to Mrs. Martin and had performed the same kinds of job functions.
The evidence of Dr. Blajchman is that he had no knowledge of Mrs. Wood's efforts to make the union more militant or to redress the perceived injustice to Debbie Allen and Mrs. Martin. It appears that he responded to considerable pressure from Mr. Bethune to terminate Mrs. Wood. He acknowledged that on the morning of Mrs. Wood's discharge he learned from Mrs. Hatfield that a petition was abroad and that there was discontent over the employees about Debbie Allen's termination. He testified, however, that he was not told of Mrs. Wood's involvement with either of those things and that he viewed her simply as a good employee who was being let go because of budgetary constraints.
The events immediately surrounding the grievor's discharge, however, are not consistent with that explanation. It appears that upon termination it is the respondent's normal practice to give employees two weeks' prior notice, allowing them to work out that time prior to their departure. That is what was done for Debbie Allen. When Mrs. Wood was advised of her discharge, however, she was told that it was effective immediately. She was given two weeks' pay in lieu of notice and was told by Mr. Bethune that she must be off the employer's premises by one o'clock the same day. That is not the kind of parting normally expected when a praiseworthy employee of long service is being let go because of a budgetary problem.
The evidence establishes that it was decided as early as the week prior that Mrs. Wood would not be allowed to work out a two week notice period. In light of that, and on the totality of evidence regarding the grievor's discharge, the Board cannot accept the evidence of Mr. Bethune that he was unaware of Mrs. Wood's efforts to infuse some militance in the association or of the antagonism between herself and the association's president, Mrs. Hatfield. We are satisfied, on the balance of probabilities, that he had that knowledge and that it was instrumental in his urging Dr. Blajchman to terminate Mrs. Wood without giving her the right to compete for the one remained temporary job he responded to an employee's effort to gain effective representation by a trade union. That is a right protected by section 58 of the Act. We must therefore find that the respondent's termination was in breach of that section.
We turn to consider the appropriate remedial order. On the evidence the Board must accept that funding for Mrs. Wood's position has ended. It is also clear that the temporary research task for which she was hired is concluded. While it is not clear how long she would have worked but for the respondent's unlawful motivation, it is at least probable that Mrs. Wood would have had a fair chance to compete with Mrs. Martin for the temporary job which she now holds and for preferential consideration on any permanent job that might arise in the future, as indicated by the prior statements of Dr. Blajchman.
While no precise measure of redress can be determined, we are satisfied that the grievor can be adequately compensated. The Board therefore orders that the grievor be paid forthwith her wages and benefits lost from the date of her discharge to the date of this order, and that she be given written notice of the next five openings for a permanent position with the respondent. If she should apply for any such position for which she is qualified she shall have the right of preferential consideration over any applicant who is not an employee of the respondent. The Board does not consider a posting order to be necessary in the circumstances of this case.
The Board shall remain seized of this complaint in the event of any disagreement between the parties respecting the interpretation or implementation of this decision.