[1982] OLRB Rep. December 1828

0519-82-U Kenneth Chisholm, Martin Gray, Russell Czech, Ronald Scott and Michael Taylor, Complainants, v. Dominion Citrus and Drug Ltd., Respondent.

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members C. G. Bourne and C. A. Ballentine.

APPEARANCES: Alex J. Ahee and Philip P. Sanders for the complainants; Gordon Atlin, Q.C. for the respondent.

DECISION OF CORINNE F. MURRAY, VICE-CHAIRMAN, and BOARD MEMBER C. A. BALLENTINE; December 29, 1982

1. This complaint has been filed under section 89 of the Labour Relations Act alleging that the complainants were "discharged for their union activities during the strike". No section of the Act was specifically alleged to have been breached in the written complaint but both parties nevertheless proceeded to call evidence and make argument on the basis of whether section 66(a) of the Act had been breached.

2. The complainants in their written complaint drawn up by their counsel allege that they were not taken back after the conclusion of a legal strike on February 11, 1982, as a result of the terms of settlement of the new collective agreement (hereinafter referred to as the "settlement agreement") reached between the respondent and the Warehousemen and Miscellaneous Drivers, Local Union 419 (hereinafter referred to as "the union"). As originally framed, the complainants alleged that the union was also in breach of the Act, presumably section 68, in entering this settlement agreement. Subsequently, the allegations against the union were withdrawn so that the sole complaint was that the company was improperly motivated by "anti-union animus" in concluding the settlement agreement.

3. The complaint itself only referred to acts of the complainants "during the strike" as being the unlawful reason for the termination of their employment. The respondent made no demand for particulars as to what was meant by the words "during the strike". The evidence and argument proceeded on the basis that this was the relevant time frame during which the complainants allege they engaged in the union activity for which they were wrongfully terminated.

4. The respondent is a fruit and vegetable supplier. Its premises are located at the Ontario Food Terminal, a facility also occupied by others involved in the business of transshipment of food. The respondent and the union have had a collective bargaining relationship since the mid-60's. Five or six collective agreements have been entered into since then. The first labour dispute between them causing a disruption of operations, a strike, occurred on November 18, 1981, when negotiations to renew the collective agreement, which had expired September 30, 1981, broke down. The strike which ensued was a long one, lasting until February 11, 1982, and by all accounts a violent one. As is the respondent's right, it attempted to and apparently succeeded in continuing to operate during the whole of the strike.

5. Kenneth Chisholm testified that he began his employment with the respondent in October of 1980. The seniority list shows his seniority date to be October 14, 1980. He had been discharged prior to the commencement of the strike. According to the respondent, this was done because he failed to deliver an order on Friday, November 13, 1981, without reasonable explanation and left produce in his truck in such disarray that some of it was adjudged unsaleable. His termination was confirmed by letter dated November 16, 1981. Mr. Chisholm stated that he had been suspended earlier for the same thing. During his employment, he had never held any official capacity in the union. Notwithstanding his termination prior to the strike, he picketed the respondent's premises during the strike.

6. Martin Gray testified that he became an employee of the respondent on November 22, 1979. This is the seniority date shown on the seniority list. He was discharged on October 30, 1981, for having "slept in" on the same day. The letter of termination discloses, and Mr. Gray himself confirmed, that he was notorious for being late. There was no evidence that he had during his employment held any official capacity in the union. Notwithstanding his termination prior to the strike he regularly picketed the representative's premises during the strike.

7. Russell Czech testified that he began his employment with the respondent 11 months prior to the strike. According to the seniority list, his seniority date was January 19, 1981. During his employment, he had never held any official capacity with the union. He said he went to the picket line every day except Saturdays.

8. Ronald Scott testified that he was employed with the respondent approximately 2 years prior to the strike. The seniority list shows his seniority date to be December 20, 1979. Three months prior to the end of the collective agreement, on September 30, 1981, he was elected for the first time as shop steward. He had held no other union office prior to this during his employment with the respondent. Two other employees, Neil Kennedy and Paul Dunne, were re-elected shop stewards at this time also. Stewards are elected at this time pursuant to the collective agreement to carry out the usual duties of stewards regarding the administration of the collective agreement and to participate as a part of the negotiating committee for its renewal. When the strike began, a picket line was set up and Mr. Scott and Mr. Dunne were the picket leaders or captains.

9. Michael Taylor estimated his length of employment with the respondent to have been approximately 13 months. The seniority list shows his seniority date to have been January, 26, 1981. There was no evidence that he ever held any union office while he was employed by the respondent. He said he was on the picket line every day for about one month until he got "barred by the Court".

10. The respondent denied that the complainants Scott, Czech and Taylor were discharged because they had engaged in legitimate union activity during the strike. It is the respondent's contention that these complainants were discharged as a part of a "bitterly disputed" negotiation with the union. As for the complainants Gray and Chisholm, the respondent claims they had been discharged prior to the strike and therefore were not in the employ of the respondent during or after the strike. In any event, the respondent denied their terminations were maintained because they had engaged in legitimate union activity; they were not reinstated as a result of the same set of negotiations which terminated Scott, Czech and Taylor. The respondent contended that the only factors which dictated the discharge or maintenance of discharge of all the complainants were:

(a) the respondent's honest belief that all of them had been charged with "strike related offences";

(b) the fact that their seniority was approximately 2 years or less; and

(c) the desire to resolve the strike and get a collective agreement as quickly as possible.

11. There appears to be no dispute between the parties that because of a settlement agreement between the respondent and the union, the complainants Scott, Czech and Taylor did not return to work and the complainants Gray and Chisholm were not reinstated. The portion of the settlement relevant to these proceedings are set out in paragraph 8 of a letter dated February 11, 1982, (Exhibit 6) from Mr. Sean Floyd, Secretary-Treasurer of the union, to Mr. Irvin Cass, Legal Advisor and Chief Negotiator for the respondent:

12. The following employees would not be taken back by the Company:

SCOTT

TAYLOR

CHISHOLM

TOOHEY

GRAY

CZECH

The following employees would be suspended for a period of one (1) month upon their return to work:

KENNEDY

COLE

EBERLEY

REYNOLDS

BURNS

On this basis, the Company agrees to provide the Union with a letter indicating that no further discipline, suspensions or discharges would be implemented against any employee who may be subsequently convicted on a strike-related offence.

12. Based on the evidence given before the Board as to how this agreement came about, it is clear that:

(1) All of the individuals named in paragraph 8 of Exhibit 6 had engaged in picket line activity.

(2) Two of the three stewards (i.e., Kennedy and Scott), elected in July of 1981 to form part of the negotiating committee (along with Mr. Floyd and Mr. Vein McGuire, Business Agent of the union), were on the list set out in paragraph 8 of Exhibit 6.

(3) The least senior among those who were returned to work pursuant to paragraph 8 of Exhibit 6 was Roy Burns (January 20, 1976). The most senior among those who were not taken back was Martin Gray (November 22, 1979).

(4) Until February 5, 1982, the respondent indicated it would not take back any employees who had been charged with "strike related offences".

(5) Mr. Floyd knew that Mr. Michael Blidner, the President of the respondent, had taken this position early in the strike. In January or February Mr. Floyd told Mr. Scott that Mr. Blidner had indicated he would not take back anyone who had been charged with "strike related offences". Until February 5, 1982, the union's position regarding this policy was that there could be no settlement on that basis.

(6) At a meeting on February 5, 1982, the uncompromising positions of both the respondent and the union regarding those who would or would not be returned to work after the strike began to soften.

(7) From February 5, 1982, until the conclusion of the settlement agreement, none of the stewards were involved in the settlement discussions.

(8) The union, through Mr. Floyd, knew that the reason the issue of continued employment of the persons listed in paragraph 8 of Exhibit 6 was a part of the settlement discussions was because Mr. Cass believed that these persons had been charged with "strike related offences".

(9) The union, through Mr. Floyd or anyone else, did not correct or take issue with the validity of Mr. Cass' belief in connection with the names listed in Exhibit 6.

(10) The majority of members of the union attending a ratification meeting accepted the settlement agreement (Exhibit 6) and after this a collective agreement was concluded.

(11) Mr. Scott attended this meeting.

13. The key issues are:

(1) Why Mr. Blidner adopted the policy of refusing to continue the employment of strikers who were charged with "strike related offences".

(2) How names came to be placed on the list set out in Exhibit 6.

(3) Whether seniority was the only factor used by the company to distinguish who on this list would return to work after the strike.

14. From the commencement of the strike the atmosphere was described by Mr. Cass as "not a pleasant one". From the respondent's point of view, there was concern about the strike being called and a belief that it was unnecessary and irrational. Neither Mr. Cass nor Mr. Blidner expected the strike. The respondent had delivered to the union an offer confirmed by letter on November 13th (Exhibit 1) which the respondent believed to be a reasonable one. When the membership rejected it in the late afternoon or early evening of November 13th, Mr. Cass described the respondent's officials as being disappointed and lacking in understanding why this had happened. The respondent stated in Exhibit 1 that the "stewards" had broken off the last meeting on November 12, 1981. It is notable also that Exhibit 1 was addressed to Mr. Bud Bodkin, President of the Union, and Mr. Floyd and not any of the three stewards already named who also were on the negotiating committee. Mr. Cass testified that issues had arisen at the last moment in the negotiations, but even with that, the respondent felt a collective agreement could be concluded without a strike. According to Mr. Scott's evidence, the final stumbling block was a signing bonus, and it was over this that negotiations broke off. Exhibit 1 does not appear to deal with this issue. Mr. Cass believed that the strike would last three weeks "maximum". In fact, it lasted almost 3 months.

15. The respondent claimed there were acts of vandalism (radiators pierced and tires slashed) against its fleet of trucks just prior to the strike beginning and continuing after the strike. The acts of vandalism were not only against the trucks owned by the respondent but also against the trucks of its two wholly-owned subsidiaries. In addition the customers of the respondent had a large number of their trucks vandalized. There were also acts of injury and assault on individuals. The damage was so extensive that within two weeks of the strike the respondent's "vandalism insurance" was cancelled. Mr. Floyd testified that it was the most violent strike he had encountered in 11 years; he did not dispute that the property of the respondent, its subsidiaries, and customers was vandalized. According to Mr. Blidner's evidence, he instructed Mr. Cass very early in the strike to tell the union that unless the vandalism stopped, he would never entertain taking back any employees who had been charged with "acts of violence against the company" or with "damage to company's property or people". Mr. Blidner himself was not questioned as to what exactly prompted these instructions but Mr. Cass gave evidence that Mr. Blidner felt the executive officers of the company would have had a difficult relationship with the employees if those who had engaged in the strike-related violence returned to work. According to Mr. Cass, Mr. Blidner was also concerned about the effect their return to work would have on customers. They also wanted the vandalism to stop.

16. Apparently the vandalism to the respondent's property did not stop. It is unclear whether Mr. Blidner simultaneously with the above instructions or some time later instructed Mr. Cass to take whatever steps necessary through police or otherwise to determine who was charged. Pursuant to these instructions, Mr. Cass made repeated telephone calls to the various police forces under whose geographic jurisdiction the respondent and its subsidiaries came (i.e., Metro Toronto Police and Peel Regional Police) and to various Crown Attorneys' offices. He testified that he did not make these calls on a regular basis nor did he assign a person from his office to regularly or sporadically attend at these locations to make inquiries. His form of inquiry varied depending on whether or not he had a specific name of an individual. If he had a name, he would inquire about the person. He said he would on occasion ask a general question as to whether any employees of the respondent had been charged. He could not recall which of the names listed in Exhibit 6 he had made specific inquiries about and which he had been informed of as a result of a general inquiry. In instances where he had a specific name, which instances he could not recall, Mr. Cass said he would have received the name from either the media or company officials. Mr. Cass could recall that Mr. Kennedy's name was initially given to him by someone in the company or the police. To the best of his recollection, he was given the names of Cole, Eberley, Reynolds and Burns by the police. Mr. Toohey was not mentioned by Mr. Cass in his examination but Mr. Floyd admitted that he himself brought Mr. Toohey's name up on the settlement discussions and he was added to the list in Exhibit 6 because he had quit the picket line on the second day. According to Mr. Cass, Mr. Gray and Mr. Chisholm were added to the list because Mr. Floyd wanted them dealt with as a part of the settlement discussions. Mr. Cass claimed that the 11 appearing on the list in Exhibit 6 were the only ones he knew, by means of verification by the police, by contacting the Crown Attorney's office or by reliance on Mr. Floyd, had been charged with strike-related offences. Mr. Cass admitted that he could have overlooked employees charged with strike-related offences and that he felt that way at the time of his investigation and at the date of hearing. He explained that his inquiries of police and Crown Attorney offices were frequently rebuffed. Mr. Cass' explanation for his unsystematic approach was that he did not give priority to the fulfillment of Mr. Blidner's instructions to discover who was charged. He said he made the priority issue the settlement of the strike, which he perceived to be in no one's best interest. He conceded he perhaps did not go after the discovery of those charged with the same intensity that Mr. Blidner wanted but he pointed out that if the list of names of those charged had been larger, it would have been more difficult for him and the union to settle.

17. Mr. Cass testified that it was only in February 1982 that he put together a list of names of those charged. Up to that point when the police or the Crown Attorney confirmed a person being charged he would write a memo to himself and "throw it in the file". He also said he confronted Mr. Floyd with the information he received from these authorities and Mr. Floyd would confirm his information. Mr. Cass did this because when he first informed Mr. Floyd of Mr. Blidner's instructions to him that no one would be returned if charged, Mr. Floyd "put (him) to the test to prove (his) suspicions". According to Mr. Cass, it was only in the "final days" that names became relevant. Mr. Blidner did testify that he kept his own list which he said he couldn't find, and at another point in his testimony claimed to have been given "a list" by Mr. Cass of those charged. There was no cross-examination of him as to when and how the latter list was given and whether it was the same list as he kept himself.

18. The complainants contested two aspects of the way the list in Exhibit 6 was composed:

(1) that Mr. Cass and/or the company had been selective in who was placed on the company's "list" of those charged and therefore those who would be terminated;

(2) that the methodology of how the charges were laid was tainted with anti-union animus.

19. In pursuit of the first point the complainants relied on the evidence of Mr. Floyd and Mr. Scott. It appeared that their evidence was led to show that the list in paragraph 8 of Exhibit 6 was larger than the 11 named and that the paring down of the list of those charged was done with anti-union animus. Mr. Floyd's evidence related to the February 5th meeting and a conversation he had with Mr. Blidner in Florida prior to that meeting. As has been mentioned, the rigid positions of the respondent and the union regarding those who had been charged with "strike related offences" first started to soften at a meeting on February 5, 1982, between Mr. Cass and other company representatives, exclusive of Mr. Blidner, and Mr. Floyd and other union representatives, exclusive of the 3 stewards. At this meeting a compromise of "the company backing off somewhat and the union backing somewhat" was proposed by Mr. Cass. Mr. Floyd testified that at this meeting Mr. Jesse Zelokawitz, Assistant General Manager of the respondent, had asked "how many were charged" and the answer was given in the general area of 16 to 18. Initially Mr. Floyd did not testify as to who answered this question but later in cross-examination he testified Mr. Cass indicated at the meeting he knew of 16 to 17. Mr. Floyd claimed initially that there was no discussion of names at this meeting but later in his testimony he claimed Mr. Cass said he understood Paul Dunne had been charged. Since the company's position at this meeting continued to be that anyone charged would not be taken back, Mr. Floyd claimed he understood at this time that Paul Dunne would be among those not taken back. Mr. Cass specifically denied any awareness at the time of settlement that there were criminal charges against Mr. Dunne. He explained that Mr. Dunne's name was not on his list of those charged because it had been raised by Mr. Blidner at some point (other than the February 5th meeting) and when he conveyed the company's suspicions at some unidentified point in time to Mr. Floyd, he said "it wouldn't fly". Mr. Floyd neither confirmed nor denied this. Mr. Floyd also testified about a conversation he had some time prior to February 5, 1982, with Mr. Blidner at Mr. Blidner's Florida residence, during the course of which Mr. Blidner mentioned the names of Mr. Scott and Dino Fortunato as being people that Jesse Zelokawitz and "the boys" would have some difficulty working with if they came back after the strike. Mr. Blidner was not cross-examined on whether he had named names to Mr. Floyd at this time and he gave no reply evidence. Mr. Blidner claimed he had no "list" of those charged at this time and his only source of knowledge as to who was charged was by talking to his management team and Mr. Cass.

20. No witness called by either the respondent or the complainants gave any evidence as to when the settlement discussions between the respondent and the union first dealt with actual names of those who would or would not be returned to work because they had been charged. Mr. Floyd acknowledged that he himself never had a complete list of 16 names. He also acknowledged "the union knew" there were charges against more people than those listed in Exhibit 6 but did not know all of their names. To deal with this situation the final clause of paragraph 8 of Exhibit 6 was added. While Mr. Scott testified that he knew that more than sixteen people were charged, he was not present at the February 5th meeting nor was he party to any discussions between the company and the union after this point in time. There is no evidence that Mr. Floyd was advised by Mr. Scott of all the names of those charged.

21. In pursuit of their second contention, i.e., that the way in which the charges came to be laid was tainted by "anti-union animus", the complainants testified about their charges. At least one of the complainants were charged with an offence only the police would lay, i.e., obstructing the police, whereas most of the others were charged as a result of company officials laying an information. No evidence was led as to the method of laying charges against the other 6 people named in paragraph 8. Mr. Scott testified that he told the union that the company was being unfair in proposing the arrangements set out in paragraph 8 of Exhibit 6 but at the ratification meeting he did not speak against it. It was clear from Mr. Floyd's evidence that Mr. Floyd accepted that the reason the employees were on this list was because of the fact they had been charged. It appears from the evidence of Mr. Scott and Mr. Gray that as many as 10 of the 21 employees named by Mr. Scott as having been charged were regular and "faithful" picketers in the early morning hours of each day. Mr. Scott indicated that they were:

himself (until barred by the police)

Kennedy (until convicted)

Czech

Taylor

Gray

Chisholm

Paul Dunne (who according to Mr. Scott was one of those charged

on the first day of the strike)

Dino Fortunato

Mike O'Connell

Art Fogel

The names of Mario Bucceri, Joe Tenina, Ray Burns and Alex Vance were mentioned by him as being "floaters", i.e., those people who picketed another gate (exit gate) at the same time as this group of 10 picketed the main gate. These floaters would congregate around the main gate line for upwards to a half an hour in the morning and then they proceeded to the exit gate. Of this group only Roy Burns was charged. Mr. Murphy, Operations Manager of the respondent, and Mr. Whelan, Foreman at the respondent, were called in reply to testify how some of the charges came to be laid. Mr. Murphy testified that he laid charges on behalf of the company against Mr. Gray and Mr. Taylor and that there may have been others which he could not recall. He was not asked as to whether he did so with instructions from the company or in pursuit of the company's policy to not return to work those charged. Mr. Whelan testified that he laid charges against Mr. Scott because he believed Mr. Scott was responsible for damaging his camper and threatening him with physical injury. He said Mr. Murphy did not instruct him to lay these charges. Mr. Scott described the time at which he and the other 10 were picketing to be a "busy time" with greater activity by trucks and people hired by the respondent attempting to cross the picket line. The people who were not charged, according to Mr. Scott, were those who regularly picketed in the latter part of the day when it was quieter, but this statement does not coincide with his evidence regarding the "floater" group who apparently were at the main gate for at least half an hour every morning as well and picketed the exit gate thereafter. Only one of these floaters was charged.

22. With respect to how the settlement agreement was concluded, the primary evidence was given by Mr. Cass and Mr. Floyd, since they were the main architects of it. Aside from the conversation already mentioned with Mr. Blidner in Florida, it appears Mr. Floyd never spoke with him during the strike on the topic of who had been charged or who would not be returned to work. Mr. Blidner's evidence is important, however, in that he was the person giving Mr. Cass instructions and to that extent knew, upon what basis the discussions were proceeding. Mr. Scott and the other complainants had no knowledge of how the settlement agreement was negotiated. According to Mr. Cass and Mr. Blidner the agreement in paragraph 8 of Exhibit 6 was achieved through a lot of "arm-twisting" of Mr. Blidner by Mr. Cass. Mr. Cass described the settlement achieved in paragraph 8 of Exhibit 6 to have "gelled" after numerous discussions. At the February 5, 1982 meeting he said he had indicated to the union that the company would back off somewhat from its original position that all those charged would not be returned if the union would back off its position that everyone, regardless of charges, had to be returned. Mr. Cass claims that Mr. Floyd responded by saying that if there was to be a compromise, it had to be based on seniority and, in particular, there was no way they could allow Neil Kennedy's discharge to stand regardless. This portion of Mr. Cass' evidence was never put in a satisfactory form to Mr. Floyd to give him an opportunity to confirm or deny it. Mr. Cass describes the company's decision-making process to be based on taking a look at the seniority list the company had and noting there was a clear-cut line between service ranging between 5/6 years to 18 years and those between 23 months to 4 months, and that this was the natural division line. He describes the compromise with the union to have "settled in on the line between less than 2 years seniority and more than 2 years seniority". At this point Mr. Floyd said he would have to seek membership approval and Mr. Cass indicated to Mr. Floyd that he believed he could get Mr. Bildner's approval. Mr. Cass did not give a detailed description of how each name came to be agreed to and why. He was not cross-examined on his evidence as to how the settlement came about, specifically whether he or anyone else made representations to the union that the agreement was based on seniority. Mr. Cass was not called in reply to refute anything Mr. Floyd said. Mr. Blidner, like Mr. Cass, did not give a detailed description of how each name was dealt with. His evidence was that "we started with seniority and with a lot of arm-twisting by Mr. Cass, a solution was worked out" and that "after much negotiations we established a cutoff point". Mr. Blidner said this cutoff point seemed to be a "logical one" and that there was no other reason except seniority. He said he instructed Mr. Cass to settle the question by using the seniority date of 2 years as the cutoff Prior to these instructions, Mr. Blidner testified he agreed to the names of those who would be taken back one by one, starting with Mr. Kennedy. The details of how this happened and who was traded for whom were not given. Mr. Blidner understood that there would be no way a settlement could be achieved with a man of Mr. Kennedy's seniority terminated. Working down the list of eleven names supplied to him by Mr. Cass arranged in descending order of seniority, Mr. Blidner testified that he dealt with them one by one and ultimately agreed that the cutoff would be at Burns.

23. As was mentioned previously, Mr. Gray and Mr. Chisholm were not originally part of the group who would be the subject of negotiations as to who, of those charged, would return to work after the strike. These names were "brought up" by Mr. Floyd. Mr. Cass originally took the position that they were irrelevant but he ultimately decided to let Mr. Floyd raise them. He did not know why Mr. Floyd wanted them as part of the list. Mr. Floyd's evidence does not confirm or contradict this. Mr. Floyd said that a company representative, Mr. Zelokawitz, "mentioned" Mr. Gray's name at some point as being a person with a bad attendance record and someone who had been discharged prior to the strike but he was not asked and he did not say the name of Mr. Gray was "brought up" or raised by the company. Mr. Floyd believed the reason for putting Mr. Gray on the list was that he had been discharged prior to the strike and he got into trouble on the picket line.

24. According to Mr. Floyd no one brought up the "deal" as to who would be returned and who not - it simply was a matter of the company indicating certain individuals they would not take back or the strike would continue and the union indicating who they wanted back or the strike would continue. Mr. Floyd testified that there were certain people among those charged regarding whom the union took a firm position that they had to be returned. They were Kennedy, Cole, Eberley, Reynolds and Burns. In the union's view these men were "synonymous" with Dominion Citrus and Fruit, having in the past acted or were during the expired collective agreement acting as stewards. They were familiar to the union over the years and Mr. Floyd, along with the other officers, felt that he had "more in common" with them than, for example, Russell Czech who they did not even know. According to Mr. Floyd the name of Mr. Taylor was brought up by an unnamed company official in these negotiations as being someone it would not like to take back because he had "personal" as well as "strike-related charges" outstanding against him. As has been stated previously, Mr. Floyd believed that he himself brought up Mr. Toohey's name because he had quit the picket line on the second day of the strike, and if they were playing a "numbers game he could be on the list to go instead of Burns. Mr. Floyd was asked directly whether seniority was a criteria for taking people back. He replied that as far as the union was concerned, this was only with respect to Neil Kennedy. He claimed that when the company gave reasons for why the 6 people would not return to work, "lack of seniority" was not one of them. The culminating point of the negotiations regarding this matter was a "big debate" over Mr. Burns. Mr. Cass, according to Mr. Floyd, finally relented and said that "Okay, we cut off at Burns". Neil Kennedy was also a person Mr. Floyd described the company being adamant on "until the last minute". He repeatedly denied that the determination as to who would get back was represented unequivocally to him by the company as being based on seniority. He mentioned various company officials as having not wanted to have some of the complainants returned to work for reasons other than seniority or union activity. Mr. Scott said that Mr. Murphy, prior to the strike, indicated to him that he would be the first "to go" if there was a strike. Mr. Murphy denied saying this. Mr. Floyd gave evidence to the effect that Mr. Blidner in his conversation with him in Florida mentioned Mr. Scott as being bad for the company and bad for the union. According to Mr. Floyd, Mr. Blidner never mentioned his union activity but noted he had a "mystical" ability over people and he mentioned he had never had any trouble with either Kennedy or Dunne. Mr. Blidner did not give reply evidence.

25. Section 66(a) provides:

No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.

The Board has determined that Mr. Gray and Mr. Chisholm's treatment fall within the scope of its jurisdiction under section 66(a) notwithstanding their discharge prior to the commencement of the strike. In order for the Board to have jurisdiction under section 66(a) it is not necessary to show employee status.

26. It is now well established that in section 89 complaints where it is alleged that the employer has refused to employ or continue to employ a person because that person was or is a member of a trade union, or was or is exercising any right under the Act, the employer must establish that the reasons given for the refusal to employ are the only reasons and that these reasons are not in any way tainted by anti-union motivation. (See Re Winchester Press Limited, [1982] OLRB Rep. Feb. 284, and the cases cited therein.) All of the five complainants engaged in a lawful strike and in connection therewith picketed regularly at the premises of the respondent. Mr. Scott was their picket captain or leader. The question is whether any actions of the respondent toward them during the strike were motivated by exercising any of their "rights under the Act". The phrase "rights under the Act" has been interpreted to include the freedom given under section 3 to participate in a trade union's legitimate activities (see St. Catharines General Hospital, [1982] OLRB Rep. Mar. 441). There can be little dispute that the right to engage in lawful strike activity is protected under section 66 (see C.P.R. v. Zambri, 62 CLLC ¶15,407). Picketing is a normal adjunct of striking and would also be protected under section 66. Similarly, it has been found that a person has a statutory right to act as union steward and employees who elected him/her to act as steward, have a statutory right to be so represented (see Valdi Inc., [1980] OLRB Rep. Aug. 1254). The Board is satisfied on the evidence that Mr. Blidner did not adopt the policy of refusing to continue the employment of those employees charged with "strike-related offences" for any improper purpose. The Board accepts that this was an honest reaction to the information that the property of the company, its subsidiaries and its customers were being vandalized and individuals threatened and assaulted. He did not want anyone responsible for this to continue as an employee of Dominion Citrus & Fruit. There was no evidence from which an inference can be drawn that this policy was directed against union leadership or anyone else who was engaging in legitimate trade union activities. Initially, the policy was dependent on vandalism ceasing, i.e., unless the vandalism stopped, those charged would be discharged. In the face of the continued vandalism and threats, Mr. Blidner gave instructions that no one charged with "strike-related offences" would be taken back. This applied to all the employees on strike and there is no evidence from which any inference can be drawn that the charges were laid against only certain striking employees who held leadership or significant roles in the strike or against people simply because they were engaging in legitimate union activity. Where there is an honest belief that there is serious misconduct in the picket line, the misconduct is not protected by the Act (see Cadillac Fairview Corp. Ltd., [1982] OLRB Rep. Sept. 1262).

27. While the respondent failed to explain through its witnesses the temporal relationship between Mr. Blidner's policy that no one who had been charged with strike-related offences would be returned and his instructions to Mr. Cass to discover who was charged, this is not a significant point in light of the fact that the Board has concluded that this policy was not motivated by any prohibited purpose. Mr. Cass acknowledged that his pursuit of confirmation of those who were charged was not perfect and he could have missed some who were charged. He also acknowledged he did not want the list expanded. The evidence that as many as 21 were charged does not unsettle Mr. Cass' evidence because Mr. Cass never professed to know everyone charged. Mr. Floyd's evidence that Mr. Cass mentioned a higher number of those charged also does not cause the Board to conclude that the list of 11 was only part of a greater number known to Mr. Cass, through police and Crown Attorney sources, to have been charged. The discussion at the February 5, 1982 meeting appears to have been of a preliminary, probing nature and this makes it understandable that inaccurate numbers could be mentioned. This is especially true in view of Mr. Cass' evidence that no list of names was drawn up until late in the negotiations.

28. We have concluded that the respondent has not satisfied us that the only reason why the settlement agreement took the form it did, was simply because of seniority. The union did set the stage for the subsequent settlement agreement when Mr. Floyd took a "firm position" with respect to Kennedy, Cole, Eberley, Reynolds and Burns. All of these people were former stewards or current stewards and long-term employees. It was notable that Mr. Scott was not named as a part of this group even though he was a steward. Mr. Blidner's evidence was that the names of the 11 were considered one by one by the parties. But neither he nor Mr. Cass explained how each name was considered. As was mentioned at the outset, the complaint against the union was withdrawn by the complainants and the sole determination is as to whether the respondent breached section 66(a) in reaching the settlement agreement. The issue before this Board is the determination of the respondent's motivation in entering the settlement agreement. The issue as to what motivated the union is not. In this light the evidence of Mr. Floyd which explains how and why the union felt it could agree to the settlement in Exhibit 6 is not relevant. However, other aspects of his evidence, which are probative, related to what he heard named and unnamed officials of the respondent say about the five complainants. The Board is satisfied that in connection with Messrs. Gray, Chisholm and Taylor the reasons which Mr. Floyd claims were cited by the various company officials were unconnected with any trade union activity. None of the reasons mentioned are violations of section 66(a) and the Board does not believe that these reasons were mere facades for an underlying anti-union motivation. With respect to Mr. Toohey the respondent was simply agreeing with the union's desire to have him included on the list of non-returnees. No evidence was given by Mr. Floyd about any company official mentioning any reason why Mr. Czech would not be returned. In any event the only trade union activity they all engaged in was picketing and the Board has already found that how the charges came to be laid against them and the policy of not returning those charged were not violations of the Act.

29. Mr. Scott's position in all this appear to have been significantly different from the other non-returnees. He was a prominent player in picket-line activity as a picket leader or captain. He had until his suspension in January 1982 acted as the elected steward. It is clear from Mr. Floyd's evidence that the name of Mr. Scott was mentioned in quite a number of meetings regarding who of those charged would return and that Mr. Blidner, during the discussion in Florida which preceded the settlement discussions, had said he felt Mr. Scott was bad for the union and bad for the company. While not mentioning specifically his union activity, Mr. Blidner did contrast his control over the people in the bargaining unit with the other stewards who had held office prior years, Kennedy and Dunne. The Board has concluded that Mr. Scott was seen as the real leader of the striking employees both before and after the strike. In agreeing to the union's demand that more long-standing employees be retained, the respondent was able to rid itself of Mr. Scott who could control people in such a way as to have them not only engage in an unprecedented strike, but also was responsible for the strike's nature and length. Mr. Blidner's words to Mr. Floyd in Florida certainly can be ascribed to Mr. Scott's role either before and after the strike began or both. In view of the fact that the respondent failed to lead evidence in sufficient detail regarding the way in which individual names were put on the two parts of the list in Exhibit 6 and the failure of Mr. Blidner to rebut or explain in Reply his remarks to Mr. Floyd in connection with Mr. Scott, the Board is not satisfied that in connection with Mr. Scott the only reasons for his not being returned to work was the fact of his being charged with strike-related offences and was without sufficient seniority.

30. The Board therefore finds that with respect to Mr. Scott the respondent breached section 66(a) of the Act and the Board hereby orders Mr. Scott reinstated forthwith and entitled to compensation for lost wages between February 11, 1982, and the date of reinstatement, subject to a one-month suspension he would have received if he had been on the list of returnees, and to any proof of failure to mitigate or earnings from any other source of employment.

31. The Board will remain seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.

DECISION OF BOARD MEMBER C. G. BOURNE;

1. I concur in the decision of the majority dated December 29, 1982, insofar as it concerns four of the five grievors, but I cannot agree that the fifth, Scott, should be reinstated in employment. His situation does not differ in substance from the others.

2. The majority decision goes into considerable detail as to the principle of seniority in establishing who would be reinstated at the conclusion of the strike. The record, however, shows that while seniority was referred to from time to time, there was no consistent position taken by either party. Names were added to, or removed from, the recall list as negotiations proceeded. Floyd, Secretary-Treasurer of Local 419 and Chief Negotiator, freely admits there was a "trade off' between those whom the company adamantly refused to accept, and those whom the union said must be restored as a precondition to settlement.

3. The company steadfastly maintained at the outset what it would not reinstate any employees who were charged with criminal acts, but under the pressure of events it was apparent that no settlement could be reached under such a proscription. They then modified their position by saying there would be no reinstatement of those who were convicted of such offences.

4. The Union, on its part, insisted that certain "key employees", e.g. Kennedy and Dunne, must be reinstated. In the end, the lists were finalized by the "trade off" between the parties. Floyd said the strike had run its course, and that after discussions with Thibault, President of Teamsters Joint Council #52, two options confronted them: to reach the best settlement they could, or continue the strike which might result in losing 72 people.

5. The grievors have alleged a violation of section 66 which prohibits any interference with an employee's rights under the Act. No such violation has been established. The grievors have been denied reinstatement because they were charged with offences which are not protected under the Act. See Rehau Plastiks of Canada Limited, [1979] OLRB Rep. Nov. 1105 and reconsideration in [1980] OLRB Rep. May 774. In Rehau Plastiks, an employee was discharged for "illegal activities in attempting to damage company property, for which you were arrested by the police…". The Board went on to say, at p. 1105:

6. The Board's statement in A.A. S. Telecommunications, makes it clear that, when the Board is determining whether there has been a violation of the employee protections in the Act, the critical element is whether the employer's actions contain any anti-union motive. It is not the Board's task, in these types of complaints to establish if there is sufficient or just cause for the employer's actions. Therefore, while the employer, in coming forth with a credible explanation of his actions, may establish just cause for them, he must also satisfy the Board that there was not, co-existing with the just cause, the element of anti-union motive. In other words, just cause standing alone is not an adequate defence against an alleged violation of the employee protections in the Act. On the other hand, it may be reasonably construed from the Board's many decisions dealing with these types of cases, that the presence of union activity alone does not prove a complainant's allegations that the Act has been violated when that situation contemporaneously with an employer's impugned activity. When an employer has put forward a credible explanation for those actions, apparently free of anti-union motive, there must be other evidence which either proves the presence of an anti-union motive or from which the Board may reasonably infer the presence of such motive.

(emphasis added)

6. If the majority view is correct, it would be virtually impossible to exclude any employees from reinstatement because, with minor exceptions, all were implicated in the strike and involved in picket line activities. There is no evidence to indicate that the company singled out Scott for particular animus - all who were convicted of civil offences were repugnant to the employer, which is understandable in view of the violence ("probably the most violent strike in 11 years" - Floyd), the damage from vandalism, which was variously estimated to be in or near the million-dollar range, and the threats and attacks against customers and company personnel. Is it possible for any employer to be free from bias in face of such lawlessness? The company showed its good faith in meeting the union halfway in the settlement, and the union, too, demonstrated a spirit of compromise. To single out Scott as the particular target of the company simply is not supported by the evidence.

7. It would seem incontrovertible that the complainants have found themselves in their present dilemma, not because of any anti-union motives, but because they put themselves beyond the protection of the Act in their illegal activities. In the "trade off', which finally became necessary to settle the strike and reach a memorandum of agreement, the complainants found themselves without employment. The company and the union could not reach any other compromise.

8. Scott was fully aware of developments. He was present when the offer of settlement was conveyed to Floyd, and he took the signed offer back to Cass. Moreover, he was present at the ratification meeting, and his evidence was, that while he did not advise the others to sign, he did say: "This was the situation".

9. I would find that Scott's complaint fails.