United Steelworkers of America v. Sling-Choker Manufacturing Limited, 1981 CanLII 979

United Steelworkers of America v. Sling-Choker Manufacturing Limited

File No.: 425-80-U Date: September 17, 1981

Before: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and M. A. Ross.

Appearances: Norm Carriere for the complainant; Tom Carron and Paul Villgren for the respondent.

DECISION OF THE BOARD

1The name: "Sling Choker Manufacturing Ltd." appearing in the style of cause of this application as the name of the respondent is amended to read: "Sling-Choker Manufacturing Limited."

2This is a complaint filed under section 79 of The Labour Relations Act alleging that the grievor, Roger Perrault was terminated from employment by Sling-Choker Manufacturing Limited ("the employer") contrary to the provisions of section 58 of the Act. More specifically the complaint states that Perreault was terminated on or about February 5th, 1981 because of his known support for the union and in support of that allegation, the complaint referred in the following terms to an earlier complaint involving Perreault:

"The applicant draws the Board's attention to File No. 1524-80-U.

Roger Perreault returned to work on January 20, 1981. On January 25th he was put on the graveyard shift which carries a 50¢ per hour premium. Perreault was not paid the premium and when he raised that with Mr. Villgren, the plant manager, also the fact that he had not received the wage increase granted to other employees, Villgren told him that he was being transferred to Elliot Lake. Perreault indicated that he was not prepared for a transfer to Elliot Lake, at which point he was terminated by Mr. Villgren.

Relative to Board File No. 1524-80-U and Perreault's reinstatement, when Perreault was paid the monies owing to him for lost wages, $30.00 was deducted from his cheque for the cost of overalls which he did not use for the period of time that he had been unjustly terminated."

3At the commencement of the hearing into the complaint, counsel for the employer Informed the Board that the employer had offered to reinstate Perreault and would be doing so, but it had been unable to agree with the complainant United Steelworkers of America ("the union") on the conditions attaching to that reinstatement, except for the fact that he would be reimbursed the $30.00 which had been deducted from his pay for coveralls. The parties were agreed that the issue before the Board was what conditions were to apply to Perreault's reinstatement.

4As this complaint indicates, Perreault was the grievor in an earlier complaint brought by the union on his behalf. In that complaint, the Board found that the employer's refusal early in October of 1980 to continue to employ Perreault was a violation of the Act. Prior to that incident, Perreault had been a truck driver-splicer at the employer's Sudbury plant. The Board's decision in that complaint issued January 9th, 1981 and directed in the following terms that he be reinstated by the employer:

"The Board therefore orders:

(i) That Roger Perreault be reinstated by the respondent forthwith;

(ii) that Roger Perreault be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act;".

5The evidence in the instant case reveals that the employer manufactures from steel cable, nylon rope and chain, various types of slings used for hoisting materials. At the times material to the complaint it had a plant in Sudbury and a branch in Elliot Lake. Perreault worked at the Sudbury plant. Prior to the first complaint, he drove the employer's truck when there was a need for this and the rest of the time he worked in the plant as a splicer or doing shop labour. All but one or two of the employees in the plant are splicers. Perreault spent a variable amount of time driving the truck, but on the average he was occupied three days a week with that type of work. At that same point in time, the employer was operating the Sudbury plant on two shifts, days and afternoons and this was the case until the latter part of 1980 when it became necessary for him to add a third shift because of the acquisition of a substantial order, the delivery dates for which could only be met by producing the order on the third shift. That shift was still in effect when Perreault was reinstated in employment with the employer on January 20th, 1981 as a result of the Board's January 9th direction. He worked as a splicer for four days on the day shift, after which he was assigned to the third shift. Approximately two weeks after his return to work, Perreault received his first pay cheque and noticed that it did not include a shift bonus which he was expecting to be paid for working on the third shift. As a result, he waited after the end of his shift on February 5th to speak with the owner to ask him why he was not receiving the bonus. He also believed that the annual wage increases had been given out a couple of days before this and asked about it as well. Perreault was told that there was no shift bonus and that he would not be receiving a wage increase. The owner then told Perreault that he wanted him to report for work at the Elliot Lake branch the following Monday morning, February 9th. When Perreault refused to go, he was told that he was fired. The employer's refusal to continue Perreault's employment in October 1980 which the Board found to be a violation of the Act also involved a refusal to accept a transfer to the Elliot Lake plant. The February 5th incident gave rise to the instant complaint being filed on February 10th, 1981. Perreault next returned to work on April 5th following receipt by him of a letter dated April 3rd from the employer's legal counsel requesting that he report for duty at the Sudbury plant for 11:30 p.m. on April 5th. He did as requested and was reinstated as a splicer on the third shift.

6The owner told the Board that the reason why he wanted to transfer Perreault to Elliot Lake was because the branch was shorthanded, which was the same reason that he gave for attempting to transfer Perreault there before the first complaint and he picked Perreault this second time because the employer had received reports that he was getting the "cold shoulder" from some of the Sudbury employees. There is no evidence of any other employee being asked to go. Once again Perreault refused the transfer. There is no evidence to indicate why, on February 5th, barely more than two weeks after he had been reinstated at the Board's direction, the employer would expect Perreault's response to be any different.

7These facts, including the Board's prior finding that the employer had violated section 58 of the Act, the brief lapse of time between Perreault's reinstatement and the employer's attempt to transfer him to Elliot Lake, the lack of evidence to establish that the employer's decision to transfer him was made solely for valid business reasons, viewed in the light of the onus placed on the employer by subsection 4a of section 79 of the Act, lead the Board to conclude that the employer has not proved, on the balance of probabilities, that Perreault's discharge was not motivated at least in part by the employer's anti-union considerations.

8Accordingly the Board finds that the employer's termination of Perreault's employment on February 5th, 1981 was a violation of section 58 of the Act. Therefore it remains for the Board to fashion an appropriate remedy pursuant to its remedial powers under subsection 4 of section 79 of the Act. In this respect, the Board's finding of facts are set out below and, where there was conflict in the evidence, these findings were made having considered the general demeanor of the witnesses, the firmness with which they recalled events and their ability to express clearly their recollections.

9Prior to Perreault's earlier dismissal in October 1980, he worked steady days as a truck driver-splicer, driving the truck when there was a need and working in the shop as a splicer or doing general shop labour the rest of the time. According to the employer's owner, driving the truck was his main job. When the owner called Perreault about returning to work pursuant to the Board's order, he told him he was to return on day shift and to report to the shop foreman to work as a splicer. Perreault queried the owner about the truck driving job and was told another employee was doing it. The owner reiterated this reason to the Board and told the Board that he considered the employer to have complied with the Board's order by reinstating Perreault as an employee. He also told the Board that there 'were additional reasons for not putting Perreault back on truck driving work. He claimed that, on Perreault's last day of work before his termination in October 1980, there were two slings and a coil of rope in excess of 600 feet missing from his truck when he came to make the deliveries at customers' premises. Moreover when Perreault brought the truck back to the shop that day, there was a carton containing aerosol tins of black grease which Perreault was supposed to have delivered to a customer. The carton had been torn open, was lying upside down in the truck and three or four of the tins had broken open spreading their grease over about a square yard of the truck box. During the owner's examination in chief, he indicated to the Board that he was also concerned about a report of a driving incident involving Perreault which he had received from a major customer. Perreault made deliveries to this customer on an average of three times per week. Later during cross examination, his testimony revealed that he did not become aware of this incident until some three weeks after Perreault was terminated the second time. Perreault admits the incident, but recalls it to have happened in August or September 1980. The testimony of both the owner and Perreault indicates that no evidence was heard at the Board's hearing into the complaint over his first termination about the incident which occurred on Perreault's last day of work. Their testimony agrees also on the fact that the owner never mentioned the incident to Perreault at any time, including when Perreault questioned the owner about the truck driving job at the time he was reinstated in employment. The Board is satisfied, on the evidence, that Perreault knew about the first incident but had not heard the employer make reference to it until the first day of the hearing into this complaint, which is also the first time that he heard of the customer's report. The owner told the Board that he did not speak to Perreault about the missing slings and coil of rope or about the broken grease containers at the time of the incident because he had already told Perreault that he was going to be transferred to the Elliot Lake branch and, further, he did not mention the incident to Perreault on his reinstatement because Perreault was not going to be driving the truck. Except for the one occasion when Perreault asked the owner about the truck driving job, he did not register a complaint with the employer about not being placed on his former job, although he did complain about the shift bonus and the wage increase. Nor did he register a complaint with the union representative who acted for him on the first complaint as well as on the instant one. Perreault told the Board that he did not complain to the employer because he was fearful of losing his job again.

10As noted above, Perreault was reinstated by the employer following his second termination to the splicer's job on the third shift, the job which he had been doing when he was terminated on February 5th. The employer refuses to put him back on the truck driving job for the same reasons which the employer's owner gave the Board for not reinstating Perreault in that job after his first termination. In addition, the employer claims and Perreault admitted at the hearing into this complaint, that he completed and filed two applications for employment with customers of the employer while he was on the truck driving job. Perreault claims that he was doing this on time which would have been his rest break, since he did not take a formal rest break when he was out on the truck.

11The third shift to which Perreault was transferred shortly after his first reinstatement had been established during the interval between his termination and that reinstatement. While the evidence establishes that one employee, Gilles Courtemanche, received a 40c per hour bonus during the time when he was transferred from the day shift to the third shift and which was terminated after he returned to day shift, the Board is satisfied that this was an individual arrangement which the employer had made with that employee. The Board is satisfied also on the evidence that no bonus was paid to other employees who worked on the third shift and that the employer does not pay a bonus for shift work. There is no foundation, therefore, for the union's claim that Perreault should be paid a bonus when assigned to that shift.

12It is uncontradicted that the employer reviews employees' rates of pay in February each year and grants increases effective February 1st. The amount of increase varies according to the employer's assessment of the employee's work. A significant number, if not all, of the employees had been interviewed prior to Perreault's termination on February 5th, although it was on or about February 9th or 10th before the employer instructed its bookkeeper as to the increases which were to be made effective February 1st. Perreault's name was not on the list of employees whose wage rates the bookkeeper was instructed to increase. He asserts and the employer acknowledges that he confronted the owner about whether he would be getting an increase. Other splicers who were working for the employer prior to October 1st, 1980 and who were still at work in February 1981 received increases as follows:

Mackey $1.10/hr Rafuse .875/hr Brosseau .75/hr Courtemanche .60/hr Laverdiere .55/hr

13When the Board fashions relief for an employee who has been dealt with by his employer in a manner which violates the Act, the basic objective is to place that employee, insofar as is possible, in the position that he would have been in if the violation of the Act had not occurred by restoring him to his former job and compensating him for all lost wages and other benefits, including such increases in wages and benefits as he would have received had he not been dealt with contrary to the Act; in other words, to make the employee "whole" again. The violation with which the Board is dealing herein was the second of two successive ones and came scarcely more than two weeks after Perreault was reinstated in employment as a result of the Board finding the first violation. In spite of the fact that the employer's owner referred in his testimony to the truck driver part of Perreault's job of truck driver-splicer as his main job, that is not the job to which Perreault was reinstated on January 20th. In addition, there is convincing evidence that the owner had interviewed most, if not all, of the employees about their February 1st wage increases between January 20th and the date on which Perreault was terminated the second time. Yet when Perreault questioned the owner as to whether he would be receiving an increase this year, the encounter ended with him being told to report to the Elliot Lake branch and being fired when he refused to do so.

14The employer in this case is not bound by any collective bargaining relationship so there can be no doubt that, subject to the provisions of The Labour Relations Act, it has an unencumbered right to adopt policies and procedures which it deems appropriate for its business. The Board has no statutory authority to look behind those policies and procedures in order to assess their intrinsic fairness or the fairness of their application, assuming that the policies and procedures do not of themselves contravene the Act. See the Board's decision in Fielding Lumber Company Limited, [1975] OLRB Rep. Sept. 665. As that case indicates, however, that does not preclude the Board from considering the whole context of an employer's actions for the purpose of assessing its motivation for taking those actions. While the Board's observations in Fielding Lumber, supra, were made with respect to the Board determining whether an employer's actions contravene the Act, the observations have equal validity for consideration when fashioning a remedy where a violation is found.

15In examining the employer's conduct in the case at hand, the Board is satisfied that its treatment of Perreault, beginning with his reinstatement on January 20th, displays a pattern consistent with and linked to the original refusal to continue his employment which the Board found to be a violation of the Act. The only explanation which the employer gave to Perreault when he asked about the truck driving job was that the job was already filled. It was only when this complaint came to hearing that the employer advanced the additional reason of the incident which occurred on Perreault's last day of work before his first termination. The owner's testimony also conveyed the impression that the employer was influenced as well by a report from a customer about a driving incident on the customer's property, an event about which the employer learned only after the second termination and which occurred prior to the first one. In addition, the employer attempted to buttress its reasons by reference to Perreault having filed applications for employment with customers while driving the employer's truck. In respect to wage increases, the employer emphasized that it was its policy to interview employees individually each year about their wage increases and the owner's testimony conveyed his view that this was done fairly with emphasis on performance, but taking into account other factors such as length of service with the employer and the employee's family status. Employees are told what increase, if any, they are going to be receiving. Some half dozen employees testified that they had been interviewed this year and given increases. The evidence is that Perreault performed satisfactorily as a splicer. Yet when Perreault questioned the owner about whether he would receive an increase this year, he got neither a reply nor an interview, but was told to report to the Elliot Lake plant. This response not only is inconsistent with the owner's claim about how he deals with his employees on the matter of wage increases, it is consistent with the employer having been motivated in its response by considerations other than Perreault's work performance.

16In these circumstances and having regard for the "make whole" objective of Board remedies applicable to employees who have been dealt with by an employer contrary to the Act, the Board deems it essential in this case for the appropriate remedy to include restoring Perreault to the job of truck driver-splicer on day shift and assuring that he receives an appropriate wage increase. Since Perreault has performed satisfactorily as a splicer, has approximately the same service as Gilles Courtemanche who was at the same wage rate as Perreault prior to February 1st, 1981 and who worked as a splicer when needed, although he was also the employer's shipper, the Board deems an appropriate increase for Perreault to be not less than the increase given to Courtemanche, that is 60¢ per hour effective February 1, 1981.

17In finding the restoration of Perreault to the job of truck driver-splicer on day shift and the granting of a wage increase to be essential elements of a "make whole" remedy, the Board is fully aware that the employer ordinarily has the sole right to determine work assignments, set wage rates and in fact determine all working conditions for its employees, assuming that they conform to any relevant legislation. The employer is free to apply its policies and procedures in whatever manner it finds appropriate for its business, as long as their application is not motivated by any anti-union sentiment of the employer or by a desire to penalize an employee for having exercised or having attempted to exercise a right under the Act. The Board's conclusion that Perreault must be returned to the job of truck driver-splicer on day shift does not give him any absolute right either to that job or to day shift work. The employer obviously has the right to assign work to meet its needs. This was demonstrated by the fact that the employer has had two different employees on the truck driving job during the time between Perreault's first termination and his reinstatement. In the same way, the employer has the right, subject to any applicable statutory or contractual limitation, to assign an employee to shift work, determine his rate of pay and decide whether to discipline him for poor performance or misconduct on the job. But such actions must be free of any anti-union motivation of the employer or any objective of penalizing an employee for his exercise or attempted exercise of a right under the Act. When the Board is not satisfied that the employer's actions are free of such motivation, it will fashion an appropriate remedy which will usually include a direction that the employer reverse its actions in order to make the employee whole.

18Having regard to the Board's finding that the employer has violated section 58 of the Act when it terminated Perreault's employment on or about February 5th, 1981 and having regard to all of the evidence before it and to the submissions of the parties, the Board makes the following direction:

19The Board orders that:

(a) Roger Perreault be reinstated forthwith by Sling-Choker Manufacturing Limited in the job of truck driver-splicer on the day shift;

(b) Sling-Choker Manufacturing Limited increase Roger Perreault's wage rate effective February 1, 1981 by not less than 60¢ per hour;

(c) Roger Perreault be fully compensated by Sling-Choker Manufacturing Limited for all lost wages and benefits sustained through the employer's violation of The Labour Relations Act;

(d) Sling-Choker Manufacturing Limited pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Hallowel House Limited, [1980] OLRB Rep. Jan. 35 (see Practice Note No. 13 dated September 8, 1980); and

(e) Sling-Choker Manufacturing Limited post copies of the attached notice marked "Appendix", after being duly signed by the employer's representative, in conspicuous places on its premises in Sudbury 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 employer 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 employer to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.

Appendix

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 TERMINATING THE EMPLOYMENT OF ROGER PERREAULT ON OR ABOUT FEBRUARY 5TH, 1981.

THIS 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 REFUSE TO CONTINUE TO EMPLOY ANY EMPLOYEE BECAUSE HE HAS SELECTED THE UNITED STEELWORKERS OF AMERICA, OR ANY OTHER TRADE UNION, AS HIS EXCLUSIVE BARGAINING REPRESENTATIVE.

WE WILL OFFER TO REINSTATE ROGER PERREAULT IN THE JOB OF TRUCK DRIVER—SPLICER ON THE DAY SHIFT.

WE WILL INCREASE ROGER PERREAULT'S WAGE RATE BY NOT LESS THAN 60¢ PER HOUR EFFECTIVE FEBRUARY 1, 1981.

WE WILL PAY ROGER PERREAULT FOR ANY EARNINGS THAT HE LOST AS A RESULT OF HIS DISCHARGE, PLUS INTEREST.

SLING-CHOKER MANUFACTURING LIMITED

PER: (AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 60 consecutive working days.