[1981] OLRB Rep. April 432
2076-80-U International Association of Machinists and Aerospace Workers, Complainant, v. City-Wide Scale Co. Ltd., Respondent.
BEFORE: C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and B. Armstrong.
APPEARANCES: Joyce Holden for the complainant; D. K. Robinson and L. Paul LaLonde for the respondent.
DECISION OF IAN C. A. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER
H. J. F. Ade; April 10, 1981
The names: "The International Ass. of Machinist & Aerospace Workers" and "City-Wide Scales Company Ltd." appearing in the style of cause of this complaint are amended to read: "International Association of Machinists and Aerospace Workers" and "City-Wide Scale Co. Ltd.".
This a complaint under section 79 of The Labour Relations Act which alleges that the grievor, George Jack, was dealt with by the respondent contrary to several provisions of the Act. At the hearing the complainant narrowed its complaint to the allegation that the grievor was discharged by the respondent because of his involvement with the complainant trade union. Such conduct on the part of the respondent would amount to a violation of section 58 of the Act.
The grievor is a scale service mechanic. He commenced working for the respondent in January of 1978, and was discharged on December 22, 1980.
Mr. L. Paul LaLonde, the owner of the respondent, testified that he decided to discharge the grievor because of a number of acts of misconduct on his part. The first of these occurred in March of 1980 when the grievor was involved in a relatively minor accident with a company vehicle. The grievor waited several days before reporting the accident and only did so after the respondent had begun to question employees about how certain damage had occurred to ihe vehicle. The grievor testified that he had been unaware of the fact that the respondent I-ad been asking about the vehicle when he reported the accident, although on cross-examination he conceded that his action in personally paying the cost of towing the vehicle out of the ditch may in part have been motivated by a desire to "cover up" the accident.
On July 14, 1980, the grievor and an apprentice working under him, Mr. B. Mallyon, began to drink alcoholic beverages on their lunch break and then spent the entire afternoon dunking. Because of his liquor intake, the grievor had to be driven home by the apprentice. Shortly after this incident, Mr. LaLonde advised the grievor that he was considering discharging him. However, in the end the grievor was only given a verbal reprimand along with a warning from Mr. LaLonde that if this type of conduct occurred again he would be discharged.
On or about October 16th, the grievor went to workmen's compensation and never again returned to active employment with the respondent.
On November 3, 1980, Mr. LaLonde was sent a notice by the respondent's insurance agent which read as follows:
Regarding your driver George Jack, he has accumulated 6 speeding tickets in the period between 10/26/78 and Mar. 25/80. Also had his licence suspended for unpaid fine 6/30/80. This will mean a raise in Ins. rates on the vehicle he drives.
Mr. LaLonde testified that on the basis of this note, he had concluded that the grievor had been driving a company vehicle while his licence was under suspension. In fact, however, the grievor's licence was reinstated on July 2, 1980 and during the short period of its suspension the grievor had not driven a company vehicle.
The insurance agent's note to Mr. LaLonde indicated that the insurance premium on the vehicle driven by the grievor would be increased. Mr. LaLonde was later advised by telephone that the increase would be in the order of sixty per cent. In July of 1980, Mr. Hammond, the respondent's shop manager, had indicated both to the grievor and to another employee, Mr. James Peacock, that the respondent was concerned about the number of speeding tickets that both of them were accumulating. However, the notice from the insurance agent on November 3, 1980 referred only to an increase in the rate for the vehicle driven by the grievor.
Mr. LaLonde testified that on the basis of the notice from the insurance company and the previous events involving the grievor, he came to the conclusion that company and the previous events involving the grievor, he came to the conclusion that he did not want the grievor working for the respondent. Mr. LaLonde testified that he took no action at the time because the grievor was off work on workmen's compensation and further, since he had removed all his tools, uniforms and books from the respondent's premises, Mr. LaLonde felt that the grievor did not intend to return to work. On December 19, 1980, Mr. LaLonde was advised that the grievor would be returning to work and later that day he had a letter of discharge prepared which referred to the matters set out above.
After the letter of discharge had been prepared, Mr. LaLonde discussed the grievor with Mr. Peacock. Mr. Peacock advised Mr. LaLonde about an incident in July of 1980 when the grievor and Mr. Mallyon, the apprentice, had been sent to perform some work at the premises of a brewery which is one of the respondent's major customers. While there, the grievor over Mr. Mallyon's objections, emptied the tools from one of Mr. Mallyon's tool kits and filled it with approximately twenty cans of beer. The grievor then placed the tool kit in his company vehicle and continued with his work. As it happened, Mr. Peacock's truck had broken down and he came to the brewery to borrow the grievor's vehicle which he drove out of the brewery's premises to anotherjob. Mr. Peacock later discovered the beer in the vehicle and became quite upset when he considered what might have happened if he had been caught with it. Mr. Peacock advised the shop manager, Mr. Gary Hammond, about the incident, but Mr. Hammond apparently neither took any disciplinary action against the grievor nor advised Mr. LaLonde of what had occurred. Mr. LaLonde, in giving his testimony, indicated that this matter was in his mind at the time he discharged the grievor.
On I)ecember 22, 1980, the grievor arrived at the respondent's premises prepared to work. He was, however, handed the letter of discharge prepared by Mr. LaLonde on December 19th.
Mr. LaLonde testified that the discharge of the grievor had nothing to do with his support for the applicant union and that, indeed, at the time he had been unaware of any involvement on the part of the grievor with the complainant. Mr. LaLonde noted that at the relevant time the grievor had been off work on workmen's compensation and added that at the time he had been under the impression that another employee, Mr. R. MacKillop had been the employee most actively involved with the union.
The grievor testified that prior to his going off work there had been some general discussion among the employees about being represented by a trade union, and that after he went on compensation he and five other employees agreed that the grievor should set up a meeting between the employees and representatives of the complainant trade union. Such a meeting was ir fact held on October 23, 1980. At this meeting all of the employees present signed union cards. Following the meeting, the grievor offered to serve as a continuing liaison between the employees and the union. There is, however, nothing in the evidence to indicate any concrete involvement by the grievor with the complainant apart from organizing the meeting on October 23, 1980.
The complainant filed its application for certification on October 27, 1980. Shortly thereafter at a regular meeting of employees, Mr. LaLonde raised the matter provided to him by the Canadian Manufacturers Association. During the meeting, Mr. MacKillop openly identified himself as a union supporter and criticized Mr. LaLonde for the respondent's spending priorities. On November 14, 1980, the Board held a hearing into the complainant's application for certification. The grievor did not attend at the hearing. Mr. MacKillop, however, attended with the representatives of the union.
As already indicated, Mr. LaLonde testified that he had no knowledge of the grievor's involvement with the complainant trade union. There is no direct evidence before us to show that he did have any such knowledge. In the appropriate case, the Board is prepared to infer employer knowledge of an employees s union activity, particularly where the employer's conduct towards that employee appears to be unduly harsh, discriminatory or unusual in all of the circumstances. In the instant case, however, we are not prepared to infer such knowledge. Not only was the grievor away from work on compensation during the complainant's organizing campaign, but another employee, Mr. MacKillop, openly identified himself as an active union supporter and attended with representatives of the union at the certification hearing. The respondent took no action against Mr. MacKillop. In addition to this, the respondent came forward with a not unreasonable explanation for its decision to discharge the grievor, an explanation free of any anti-union considerations. In all the circumstances, we are satisfied that the respondent has met the onus placed on it by section 79(4a) to show that in discharging the grievor it did not act contrary to The Labour Relations Act.
The complaint is accordingly dismissed.
DECISION OF BOARD MEMBER B. L. ARMSTRONG;
I dissent.
Section 79(4a) of The Labour Relations Act has the effect of placing a heavy evidentiary burden on the employer in cases where it is alleged that there has been a discharge for union activity. Not only must the employer satisfy the Board on the balance of probability that there is a legitimate reason for discharge — it must also satisfy the Board that there is no other less legitimate reason for the discharge. The Board enunciated these principles in the case of The Barrie Examiner [1975] OLRB Rep. Oct. 745 at p. 749:
.the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, 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 to the discharge are the only reasons and second, that these reasons are not tainted by 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.
The majority in the case at hand has not, in my view, applied these principles to the evidence which has been presented. The grievor was a key figure in the Union's organizational campaign. In fact, a very few days after he went on compensation, the grievor was responsible for holding a meeting between certain employees and representatives of the complainant union. The grievor also offered to act as a continuing liaison between the Union and the employer.
The majority has refused to infer that management had knowledge of the grievor's union activity. The apparent reason for this refusal is the fact that Mr. MacKillop, a known union supporter, was not interfered with in any way by the employer. It is safe to say, however, that it would have been very difficult to take any action against Mr. MacKillop, if only by virtue of the fact that his union sympathies were made a matter of common knowledge. The grievor, I submit, was in a more vulnerable position, and the fact that Mr. MacKillop was not penalized for his union activities does nothing to discharge the burden which the employer must discharge. The chairman also noted that there was no direct evidence before the Board to show that the employer had knowledge of the grievor's union activities. I find this to be blatant transferring of the burden of proof to the complainant, and would suggest that there is an obligation on the employer to prove that in fact he was unaware of the grievor's activities. In the absence of strong evidence to the contrary, I would infer that the employer was aware of these activities.
An examination of the employer's reasons for the termination, and the time the termination took place, reveals, in my respectful submission, an attempt to legitimize an action which was taken for entirely different reasons. Perhaps certain of the reasons would appear more convincing absent the inescapable inference that the stated reasons were merely "thrown together" for the occasion.
1 would have reinstated the grievor, making him whole for any loss suffered by reason of what I find to be the unlawful discharge.