Ontario Labour Relations Board

[1981] OLRB Rep. December 1829

1539-81-U United Electrical, Radio and Machine Workers of America (UE), Complainant, v. Speedex Company, Division of Magna International Inc., Respondent.

BEFORE; N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and S. Cooke.

APPEARANCES: A. J. Peters, Ines Fisher and Marie Peters for the complainant; Philip J. Wolfenden and Werner Ertl for the respondent.

DECISION OF THE BOARD; December 14, 1981

1. This is a complaint filed under section 89 of the Labour Relations Act alleging that the respondent has discharged the grievor Ines Fisher contrary to the provisions of section 66 of the Act. The complainant, the United Electrical, Radio and Machine Workers of America ("the union") requests that Fisher be reinstated in her job with full compensation for wages lost and that all rights and benefits available to her at the time of discharge be restored.

2. The complaint as originally filed alleges that Werner Bareuther, assistant general manager of Speedex Company ("the employer") discharged Fisher on October 8th, 1981 because of her membership in and support for the union. He told the Board that he discharged Fisher because she had received a third written warning for a violation of the employer's published disciplinary rules. He testified that the employer has followed consistently a disciplinary practice of dismissing employees who receive a third written warning for violation of these rules. Fisher had received two written warnings prior to the one which resulted in her discharge, the first on January 13th, 1981 for leaving her place of work during working hours and the second on August 3 1st, 1981 for changing out of her work clothes during working hours. The culminating event occurred on October 8th when she left the employer's premises at lunch time without punching her time card contrary to a posted rule.

3. After the employer had put forth these reasons for Fisher's discharge and while the union was attempting to prove its allegation that the employer was motivated in its discharge of Fisher by her membership in and support for the union, it became necessary for the Board to adjourn the hearing until another date and to direct the union to supply particulars of all of the material facts on which it would be relying in support of its allegation. Its response to the Board's direction was contained in a letter dated November 11th, 1981 in statements to the effect that:

(a) Werner Ertl, the employer's general manager, discriminated against Fisher by issuing a warning on August 31st, 1981 and threatened and intimidated her because of her union activity; and

(b) Jim Evans, who was acting as production supervisor at the time, discriminated against Fisher because of her union activity by singling her out for discipline on October 8th, 1981.

5. When the complaint came back on for hearing on November 23rd, counsel for the employer advised the Board that he would address in his argument an issue of timeliness in respect of the particulars and would be asking the Board to disregard any evidence with respect to the allegations contained in the November 11th letter from the union. Accordingly, at the outset of his argument, counsel submitted that the Board should ignore all of the evidence about the two allegations since the events on which they were based were known to the union at the time this complaint was filed and should have been included in the particulars filed with the complaint. Furthermore, the union had waited until the filing of the further particulars to come forward with the allegation with respect to Ertl, when it had knowledge on August 31st of the event on which it is relying. Counsel contends that the union has failed the duty of promptness which section 72 of the Board's Rules of Procedure imposes on a party that is alleging improper or irregular conduct.

6. The Board has dealt many times with the purpose of section 72, the question of the sufficiency and adequacy of material facts and particulars and the duty of promptness. See, for example, Boake Manufacturing Company Limited, 56 CLLC ¶118,042; General Freezer Limited, 65 CLLC ¶1 16,019; International Cooperage Company of Canada Ltd., [1963] OLRB Rep. Apr. 47. In the case at hand, the Board directed the union to file any additional material facts and particulars on which it would be relying within a specified time limit. It complied by filing the November 11th letter. Having regard to the guidelines provided by the principles set out in its foregoing decisions, the Board does not find sufficient grounds for refusing to consider the evidence with respect to the two matters set out in the November 11th letter. The fact that the union had knowledge of these matters when it filed its complaint yet did not raise the allegations, whether standing alone or viewed together with the late filing of the allegations, does not provide sufficient grounds. The employer has not suffered prejudice or embarrassment such that would warrant disregarding the evidence of which the employer is complaining. The employer's request is refused.

7. Fisher, who was a punch press operator at the time of her discharge, was hired in January 1980. A year later she received a written warning for leaving her place of work during working hours, the first of the three written warnings for which the employer has stated she was discharged. She became aware early in May 1981 of the union's attempt to organize the employees at her place of work and she attended all three meetings of employees called by the union for this purpose. Since she speaks English as well as Portuguese, her first language, other employees attending these meetings asked her to explain what was being said. Fisher also spoke to employees in the employer's lunch room and on the bus going to and from work to try and get them to sign applications for membership in the union. She told the Board that she was not successful in signing up any employees. The union filed an application for certification with the Board on June 22nd, as a result of which the Board directed that a representation vote be held. It was held on July 21st and the ballot box was sealed without the ballots being counted. Prior to the vote, on or about July 9th or 10th, two organizers for the union were distributing leaflets to employees as they were boarding a bus on the employer's parking lot after the end of the day shift. Ertl came out to ask what they were doing on the employer's property and while he was speaking with one of the organizers, Fisher came out of the plant and asked the second organizer for some of the leaflets to give to employees who were working overtime. She took the leaflets and went back to the door by which she had exited from the plant and stepped inside to give the leaflets to three or four employees who were still at work. Fisher's attendance at the union's organizing meetings, her assistance to other employees at those meetings, her unsuccessful attempts to sign employees to membership in the union and her distribution of the leaflets are the extent of her activities on behalf of the union in evidence before the Board. The employer denies having any knowledge of her activities on behalf of the union and, indeed, the only direct evidence before the Board with respect to the possibility of the employer having knowledge of her activities is that about the distribution of the leaflets. Her own testimony in cross-examination, however, places Ertl in a position, while speaking with one of the organizers, where he could not have seen Fisher when she left the plant and came out to get leaftlets from the other organizer.

8. Fisher and her mother, who is a long-time employee, were working on Saturday, August 29th, an overtime day. They were to finish work at 1:00 p.m. and both of them changed out of their working clothes and returned to their work stations before the 1:00 p.m. scheduled quitting time. Ertl, who was on his way to the shipping department about ten minutes to one, noticed both of them at their work places already changed into street clothes. He spoke to Fisher about this fact and that it was contrary to the employer's rules to change clothes during working hours, a rule of which Fisher was fully aware. ErtI told her that she would be receiving a written warning and he asked her to tell her mother that she would be receiving one too. He asked her to relay this message to her mother because sometimes Mrs. Fisher had difficulty understanding him. There were other employees working that day but ErtI was not aware of whether they had also changed their clothes during working hours. The evidence of Ertl and Fisher reveals that there was a partition between the area in which these employees were working and that where Fisher and her mother were working. On Monday August 3 1st, Ertl issued written warnings to both Fisher and her mother.

9. There is conflict in the testimony of Fisher and Ertl about what was said when she was called into the office to receive the written warning. According to Fisher, Ertl commented to the effect that, if she wanted a union, she would have to go by the rules. Ertl denies that he made any reference to the union and asserts that Fisher asked him why he was picking on her and her mother because they were against the union. Having considered their entire testimony, the consistency of their evidence, their ability to resist modifying their recollection to suit their interests and their demeanor, the Board is satisfied that, if any reference was made to the union on August 31st, it was made by Fisher.

10. The ballots which had been cast in the representation vote on July 21st, were counted on October 7th and the union won the vote. On October 8th, a pay day, Fisher left the plant at lunchtime together with three other employees and went in the car belonging to one of them to the bank. She did not punch her time card either when she left or when she returned. Jim Evans, a member of the bargaining unit who is responsible for quality control in the plant, was filling in that week for the regular production supervisor who was on vacation. He noticed that Fisher was not at her machine about five minutes after the time she should have started work after the lunch break. When he could not see her around the work area, he checked her time card. It had not been punched. While he was looking for her, he met Bareauther and told him of her absence. According to Evans, he encountered her shortly before 1:00 p.m. on her way back to her work station. He inquired as to where she had been and why she had not punched her time card. The evidence establishes clearly that there was a posted rule, of which Fisher was aware, that required the punching of time cards in the circumstances under which she left the plant during the lunch break. Evans reported to Bareuther that Fisher had returned to the job but that she had not punched her time card. Since her file contained two prior written warnings and since this offence would result in a third one, Bareuther spoke with Ertl and it was decided that Fisher would be discharged. Bareuther called her to the office and advised her of this fact. She left the office and returned a short while later with her mother. While they were speaking with Bareuther, the employee in whose car Fisher had gone to the bank came into the office. He told Bareuther that he too had left the plant without punching and it was because he was late coming back that Fisher had got into trouble. Bareuther informed the employee that he would receive a written warning as well. The following day that warning was issued to him. The other two employees did not come forward and there is no evidence that Bareuther made any attempt to learn their identities. Fisher was discharged and her mother and the other employee returned to their jobs.

11. Section 89(5) of the Act places a burden of proof on the employer, in a complaint of this nature, to show that it did not discharge Fisher for her union activity or as a result of any anti-union sentiment of the employer. In the many cases of this nature with which the Board has dealt since sub-section 5 was introduced into the Act, it has required the employer to establish two fundamental facts in order to satisfy the Board that the employer has met the burden of proof imposed by sub-section 5. As stated by the Board in The Barrie Examiner, [1975] OLRB Rep. Oct. 745 these are:

"..... first, that the reasons given for discharge are the only reasons and,

second, that the reasons are not tainted by any 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.".

12. The employer in the case at hand, has come forward and given its reasons for Fisher's discharge. The employer's uncontradicated evidence is that it has followed a disciplinary practice of discharging employees who accrue three written warnings for the violation of the published disciplinary rules. Between January 1981 and October 1981, Fisher had accumulated three such warnings for violation of rules of which she was fully aware. The second of these warnings was given more than two months after the union applied for certification and more than five weeks before it was known that the union had won the vote. The event leading to the third warning and her discharge occurred on October 8th, the day after the ballots were counted. The union points at the quick succession with which the last two written warnings were issued and the hiatus of five months between the first one and the union's application for certification, which was followed one month later by the representation vote, as grounds for the Board to be suspicious that the real reasons, or at least part of the employer's reasons dismissing Fisher was her support of the union.

13. When an employer has terminated an employee at a time when there is also evidence of union activity the Board may, depending upon the circumstances, draw the inference that the employer has acted out of anti-union sentiment and therefore has acted in violation of the Act. Where, as is the case here, the employer has come forward with an explanation which establishes good cause for discharge, the Board normally requires some cogent evidence of union activity, the grievor's participation in that activity and the employer's knowledge of it before the Board is willing to draw an inference that the employer has acted, at least in part, out of an anti-union sentiment. As the Board has just noted, the second written warning was issued more than two months after the union applied for certification. The discharge took place some four and a half months after the date of application, but the day after the results of the representation vote became known. There is no evidence before the Board of anti-union behaviour of the employer. It cannot be said on the evidence that Fisher played a major role in the union's campaign, although she obviously did more than those persons who merely joined the union. But what does the evidence show of the employer's knowledge of her activity? The only objective evidence that the employer might have been aware of her activity is that with respect to the handing out of leaflets. Yet on Fisher's own evidence, Ertl was not in a position to see her when she came out to get those leaflets from one of the union organizers. There is not the evidence before the Board which would support even the inference that the employer was aware of her union activity let alone support the broader inference that the employer had acted out of an anti-union sentiment when it issued the third warning to Fisher and discharged her.

14. Accordingly, the Board is satisfied that the reasons given by the employer for discharging Fisher are the real reasons. Therefore the complaint is dismissed.

DECISION OF BOARD MEMBER S. COOKE;

1. I am concurring in the findings. I point out that the Board is limited from deter­mining the issue of just cause for discharge.

2. The employer in this case gave unchallenged evidence about his discipline procedure and seems to have carried out the process in his normal fashion. This is not to say that the employee was discharged for just cause. On the contrary, if the Board had the authority in this kind of a case as an arbitrator has under section 44(9) to "substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances”. I am convinced that the discharge would not stand.

3. In view of the difficulty, and in this case the failure of the union to establish anti-union animus or an unevenness of treatment such as to meet the tests of the legislation and previous cases I must concur. The needs of justice however, cry out for legislative change to give the Board the kind of jurisdiction set out above.