Local 354, United Textile Workers of America v. Silknit Limited, 1983 CanLII 768

[1983] OLRB Rep. August 1362

0616-83-U Local 354, United Textile Workers of America, Complainant, v. Silknit Limited, Respondent

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members W. F. Murray and S. Cooke.

APPEARANCES: Guy Beaulieu and Zafar Islam for the applicant; John P. Sanderson, Q. C. for the respondent.

DECISION OF THE BOARD; August 12, 1983

1. This is a complaint under section 89 of the Labour Relations Act. The complainant union alleges that on June 20, 1983, Zafar Islam, its president, was illegally discharged. The provisions of the Labour Relations Act arguably relevant to this matter are as follows:

2. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

3. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

4. 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;

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

80.-(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

2. This complaint was filed on June 22, 1983. In accordance with its usual practice the Board appointed a Labour Relations Officer to meet with the parties and endeavour to effect a settlement. At the same time the Registrar of the Board fixed July 21, 1983 as the date for a hearing in this matter, and notice of hearing in Form 8 was served on each of the parties. That notice, contains the following notation in bold type:

"IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS"

3. Following receipt of the notice of hearing there were discussions between the parties in an effort to reach agreement upon an alternative hearing date more acceptable to the respondent employer. The date fixed for the hearing falls within the company's annual plant shutdown and there was apparently some concern that a hearing held at that time might interfere with the witnesses' vacation plans. The complainant was concerned about the prospect of delay but was prepared to seek an accommodation on the clear understanding that if no mutually acceptable alternative date could be agreed upon the hearing would proceed as scheduled. The complainant suggested alternative dates prior to the plant shutdown and it appeared that there was tentative agreement to proceed on July 14th. Subsequently however the complainant was advised that this date was not acceptable. Accordingly, the case came on for hearing as scheduled.

4. At the opening of the hearing counsel for the respondent told the Board that he was instructed to request an adjournment of the proceeding to a later date. However, when questioned about the basis for the company's request he acknowledged that the company had been advised: that it bore the onus of proof in these proceedings; that the union was insisting on proceeding on July 21st; that an adjournment would not necessarily be granted automatically upon request or because of possible inconvenience or interference with vacation plans; and that the hearing could well proceed in its absence if an adjournment was not granted. None of the respondent's witnesses were present to clarify what inconvenience, if any, there might be if the hearing proceeded as scheduled. There was no evidence before the Board to incidate that they could not be available. They had not been subpoenaed although it was clear prior to the shutdown that the hearing could proceed on July 21st, and counsel had no direct information as to where these individuals were. In other words, the respondent, for its own reasons, has chosen to put its counsel in the unenviable position of seeking an adjournment without any clear or direct evidence of hardship or inconvenience to the respondent or its officials.

5. The complainant strenuously opposed the request for an adjournment. The complainant submitted that it had tried to be reasonable and accommodate the respondent but had made it clear, throughout, that it would insist upon proceeding on July 21st if no early alternative date was available. The complainant submitted that this was clearly communicated to the respondent prior to the shutdown and there was no reason why the respondent's witnesses could not be available. Not only was there no direct evidence of inconvenience but, in addition, the union witnesses were present and ready to proceed on July 21st notwithstanding some inconvenience to their vacation plans. The complainant noted that this is the second unfair labour practice complaint filed on Mr. Islam's behalf, that it involves a pattern of alleged misconduct directed at the local union president and that he should not have to remain "on the street", without work or remedy simply because company officials might find attendance at the hearing inconvenient. Although he was not in a position to lead direct evidence on the matter, counsel for the complainant told the Board that it was his information that, Peter Webb, the respondent's Industrial Relations Manager, was at the plant as late as a day or two before. Finally, the complainant pointed out the obvious impact on the employees in the bargaining unit of the removal of their union president for his union activities on their behalf. In his submission, the balance of prejudice clearly weighed in favour of proceeding.

6. In the circumstances the Board was not persuaded that the respondent employer had made out a basis for its request for an adjournment. The request was therefore dismissed. Following the Board's ruling, counsel for the respondent indicated that his instructions were limited and that he would therefore, not be taking any part in the hearing. He thereupon withdrew.

7. The complainant chose not to rely on the "reverse onus" provisions in section 89(5) of the Labour Relations Act. Rather, the complainant opted to lead evidence to establish the factual foundation for its case and the remedy requested. That evidence was, of course, uncontradicted.

8. The grievor, Zafar Islam, is one of approximately 270 bargaining unit employees employed by the respondent at its plant in Cambridge, Ontario. He has been employed by the company since 1976. He was president of the complainant union from 1977 to September of 1982 and, more recently, from early June of 1983 until his discharge on June 20th. In order to put that discharge in context, it is necessary to review certain of the precedable position of seeking an adjournment without any clear or direct evidence of hardship or inconvenience to the rants having little facility with the English language or knowledge of their rights as employees. Prior to his becoming union president some years ago the trade union representatives had not been particularly active in "policing" the collective agreement, filing grievances or otherwise actively performing their representational functions. By all accounts Mr. Islam was an active and aggressive trade union official.

9. Mr. Islam resigned from his position as local union president in September of 1982. He told the Board that his decision was based, in part, on what he believed to be company harassment. He had been discharged on two previous occasions then reinstated with full compensation when he filed grievances, and it is interesting to note that the purported reason for one of the discharges was that he and the other members of the union executive had planned to meet during their lunch hour to discuss union business. The employer took the position that there could be no such discussion on company premises without prior permission. In any event, by September of 1982, Mr. Islam felt that he had done his share and was content to see the mantle of union office pass to someone else.

10. Mr. Islam was drawn back into activity in December of 1982 when the company proposed a rollback of the terms of the current two-year agreement which was executed some six months before on April 29, 1982. Mr. Islam was the local union president and on the bargaining committee at the time this agreement was signed, and he spoke vigorously against the proposed wage rollback. He told the employees that, from his experience, there was little justification for demanding a 45¢ per hour wage cut for the bargaining unit employees while at the same time giving a five per cent wage increase to the salaried employees. Mr. Islam also explained that the company’s business was somewhat cyclical, and that although things were then slow, business could be expected to pick up in March and April when there was likely to be considerable overtime - as was indeed the case. He urged that the employees reject the employer’s proposition and stick with a contract that had been negotiated barely six months before. The employees accepted his position and unanimously rejected the employer's proposed wage cut. No doubt Mr. Islam’s role in this process did little to endear him to his employer.

11. The next event of significance arose in February, 1983 when the grievor was selected as shop steward in the dyehouse. The company refused to recognize him. By letter dated February 24, 1983 the company wrote to the St. Catharine's office of the union to advise:

“We have been informed that Mr. Z. Islam has been appointed as dye-house shop steward. We wish to make it absolutely clear that the company feels this to be a negative and retrograde step. It will acutely reflect upon the smooth and mainly efficient operations of the Local 354 committee, and as a company, we are not prepared to accept this employee as a union representative mainly due to the man's attitudes and previous work history.”

It is not entirely clear what the company is referring to when it mentions the grievor’s attitude or work history. The grievor has no record of misconduct, nor is there any indication that he has been disciplined for poor work performance. He expressly denied that this was the case; and, of course, even if it was true, this would not provide a basis for refusing to acknowledge the duly appointed representative of the trade union.

13. As a result of the company's failure to recognize his status as a union official, Mr. Islam filed a grievance dated March 8, 1983. In its reply to that grievance the company took the position that it had received no written authorization of the grievor’s claim and that until such written authorization was received, it would not recognize the grievor as the dyehouse shop steward. There is no basis in the collective agreement for that demand, nor had it been the company’s past practice to require written authorization or notification of the appointment of a new shop steward.

14. By letter dated March 11, 1983 Jules Lemay, an international representative of the United Textile Workers of America, informed Peter Webb, the Personnel Manager, that Mr. Islam was the new steward in the dyehouse. Such notification made no difference. A memo from Webb to the department heads and supervisors concerning a shop steward meeting scheduled for March 16, 1983 contains the following comment:

“You will be aware that the company have not yet agreed to the nomination from the UTWA of Z. Islam for dyehouse shop steward and until this is resolved the company will not be in favour of releasing this person from his normal duties.”

The reference was to the release of union officials from their regular duties to attend a meeting at a local Holiday Inn. Mr. Islam was not permitted to attend. At the second step reply to Mr. Islam's grievance Mr. Webb wrote:

“A written notification was received by the company on 14th March, 1983 advising of Z. Islam’s appointment as shift shop steward. The company cannot recognize this appointment because of (a) the manner in which the names on the petition were obtained and (b) Z. Islam’s past record with the company.”

15. By letter dated March 29, 1983 Vernon Mustard, the Canadian Director of the International Union wrote to Mr. Webb to protest his actions, pointing out that the company had no right to intervene in internal union affairs or refuse to recognize a duly appointed union official. The letter had no effect. On April 13, 1983 Mr. Webb wrote to the union as follows:

“Following our recent discussions regarding the company recognizing Mr. Z. Islam as Dyehouse Dayshift Shop Steward, we have, after careful deliberation and a [sic] advice decided that we cannot change our position on this issue.

Regrettable as it may be, the employee's past and present record cannot be ignored by us on such an important position.”

This correspondence was appended to the unfair labour practice complaint filed on the grievor’s behalf on May 6, 1983 and settled on June 2, 1983. It is difficult to resist the conclusion that the “record” referred to was not a record of misconduct but rather Mr. Islam’s vigourous policing of the collective agreement and activities on behalf of the bargaining unit employees.

16. On March 23, 1983 the grievor was called to the office of Jack Bronson, the company president. Bronson demanded that he give up his activities with the union. Bronson told the grievor that he (Bronson) had the power and the money and that he would be prepared to use it to get rid of the grievor.

17. In June of 1983 certain members of the local union executive resigned leaving vacant inter alia, the position of president which the grievor had held before. An election was held and the grievor was returned to office. Shortly thereafter, on June 15, 1983, he requested a meeting with the company to discuss ongoing problems. Mr. Islam was advised that Webb would not be available that week and that the next union management meeting would be held on June 20th. On or about June 16th Mr. Islam recommended that the newly elected Vice-President investigate the job vacancy complaint of one of the bargaining unit employees and, if it could not be satisfactorily resolved, to file a grievance. This was done. A grievance was filed.

18. On June 20, 1983, the day fixed for the union-management meeting, Mr. Islam was summoned to a meeting with certain management officials, including Webb, and given the following letter of termination:

“Dear Mr. Islam:

Following our interview with you today, the Company is terminating your employment as from 3:00 p.m., Monday, June 20, 1983.

The reasons given were as follows:

1. Breach of the Settlement dated June 2, 1983 with the Ontario Labour Relations Board and the Company.

2. Continued disruptive measures against the Company.

3. Your attitude of irresponsibility toward the Company and its procedures, and

4. Your blatant disregard for adherence of the United Textile Workers of America Grievance procedures.

The matter was discussed in the presence of Mr. A. Metealfe, Dye-house Manager, Mr. D. Wilson, Plant Chemist, and Mr. P. Webb, Industrial Relations Manager.

Yours truly,

Peter Webb for

SILKNIT LIMITED”

Following receipt of the letter, Mr. Islam was told that he was no longer an employee and since the union had no president there could be no meeting. As before, Mr. Islam filed a grievance. In contrast with its usual practice, the company refused to permit the third step meeting to discuss Mr. Islam's grievance to be held on company premises. Again, it is difficult to resist the conclusion that the "disruption" and "irresponsibility" referred to, stem from the company's displeasure with the vigourous way in which Mr. Islam is promoting what he believes are his members' collective bargaining interests.

19. The complainant union contends that the employer has engaged in a pattern of egregious interference with the internal affairs of the union, with Mr. Islam’s right to engage in lawful trade union activity, and with the employees' right to trade union representation. We agree. Union officials play an important role in the collective bargaining process, particularly in the area of contract administration. Indeed, the instant collective agreement recognizes this fact. Inevitably, those union officials will have to seek information from and question management representatives about their actions or about work conditions, and the grievance procedure, like the collective bargaining process itself, will have its adversarial aspects. While tact and diplomacy are important if the job of a union official is to be performed effectively, employees cannot be harassed, victimized or put in fear for their own jobs if they choose to stand for union office or, once elected, seek to effectively pursue the grievances of their fellow employees. If an employer were permitted to pick and choose whom it could recognize and rid itself of union officials with whom it was displeased, the independence of the union would be totally compromised and the employees’ statutory rights largely illusory.

20. For the purposes of this decision, it is unnecessary to explore the ambit of protected union activities. We do note parenthetically, however, that while "work time is for work" and an employer has a legitimate business interest in maximizing efficiency and minimizing disruptions, the Board has been reluctant to unduly restrict activities otherwise protected by the statute where there is no demonstrable business interest. In the case of blanket no solicitation rules, for example, the Board has indicated that during breaks or lunch periods the employees are entitled to use non-working time as they see fit, so long as they do not engage in disorderly conduct or otherwise adversely effect other legitimate business interests of the employer. The approach of the statute and the Board has been to attempt to create a meaningful balance between the statutory rights of employees and the proprietary and commercial interests of employers.

21. In any event, on the evidence before us, we find that the grievor’s discharge was in breach of sections 64, 66 and 70 of the Act, and constitutes a serious interference with the right to engage in lawful union activity guaranteed by section 3 of the Act.

22. This brings us then, to the appropriate remedy. It goes without saying that the grievor must be immediately reinstated and compensated for all lost wages and benefits together with interest. We so award. [See Hallowell House [1980] OLRB Rep Jan. 35]. However, we do not think that this, in itself, is sufficient, for it does not redress the "chilling effect" on other employees who would be aware of the discharge and understand its origin. The evidence before the Board is that Mr. Islam's discharge is a matter of some concern to the employees who recently elected him to represent them; moreover, the dismissal of the grievor in the circumstances here conveys a strong warning to other employees which would inevitably dissuade them from engaging in activities which, in fact, are protected by the statute. The mere reinstatement of Mr. Islam with back pay may do little to reassure his fellow employees that the employer is required to live within the requirements of the statute and that effective remedies exist if it does not. The imbalance of economic power between the employer and his employees, does not give the employer carte blanche to ignore their statutory rights - notwithstanding the comments of Mr. Bronson to the grievor in this case. The employees must be seen to have an effective remedy. Accordingly, the Board makes the following orders and remedial directions:

(1) The Board directs that the respondent immediately reinstate the grievor, Zafar Islam, to his former position, and that the grievor be compensated, forthwith, for all wages and benefits lost together with interest thereon, arising from his unlawful discharge.

(2) The Board directs that the respondent cease and desist from interference with the representation of bargaining unit employees by the United Textile Workers of America, Local 354 and its designated representative, and in particular Mr. Islam, the local union president.

(3) The Board directs that the employer post at its place of business copies of the attached notice "Appendix". Copies of such notice to be furnished by the Registrar shall, after being duly signed by an authorized representative of the respondent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive working days thereafter. Such notices must be posted in conspicuous places where they are most likely to come to the attention of the employees in the bargaining unit, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to ensure that such notices are not altered, defaced, or covered by any other material. Representatives of the complainant union shall have reasonable access to the respondent's premises to ensure that the respondent has complied with this directive.

23. The Board will remained seized of this matter in the event that there is any difficulty in calculating the quantum of compensation to which Mr. Islam is entitled by reason of this remedial direction.