[1983] OLRB Rep. January 165
0471-82-R; 0436-82-U; 0511-82-U; 1279-82-U: International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Applicant/Complainant, v. Wilco-Canada Inc., Respondent
BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and H. Kobryn.
APPEARANCES: L. A. MacLean Q. C., Clare Meneghini and M. Boyle for the applicant/complainant; R. C. Filion, T Sutcliffe and G. R. Wilsonfor the respondent.
DECISION OF THE BOARD; January 11, 1983
The matters before the Board in these consolidated proceedings include an application for certification without a vote pursuant to section 8 of the Labour Relations Act (File No. 0471-82-R) and three section 89 complaints (File Nos. 0436-82-U, 0511-82-U and 1279-82-U), in which it is alleged that the complainant trade union has been dealt with by the respondent contrary to the provisions of sections 64, 66, 70, 75 and 79 of the Act. At the commencement of the hearing of these matters on August 31, 1982, the applicant/complainant (hereinafter referred to as the "applicant" or the "union") agreed to proceed first with its evidence. The applicant called a total of eight witnesses in support of its case during the initial eight days of hearing of these matters. At the December 8, 1982 continuation of hearing, after the eighth witness had concluded his testimony, counsel for the applicant announced that the union had completed its case in chief. In view of the fact that a number of the grievors mentioned in the extensive allegations filed by the union in these proceedings had not been called to testify, counsel for the respondent expressed concern that the union might be attempting to split its case and addressed submissions to the Board with respect to a number of matters, including lack of evidence concerning various allegations, the inapplicability of section 89(5) to certain allegations, and the proper scope of reply evidence. After the Board had heard the initial submissions of counsel for the respondent and counsel for the applicant concerning those matters, these proceedings were adjourned until December 15, 1982 at the joint request of counsel to afford them an opportunity to review the pertinent jurisprudence and prepare further argument concerning those matters. Thus, the Board heard further argument by counsel on December 15, 1982.
Counsel were in agreement that a ruling by the Board concerning the applicability of section 89(5) to the various allegations made by the applicant in these proceedings, and concerning the proper scope of reply evidence, would tend to streamline and expedite the hearing of these matters to the advantage of all concerned.
It is not disputed that section 89(5) applies to a number of the union's allegations, which include the alleged discharge of lay-off by the respondent of a number of employees for union activity, other alleged anti-union disciplinary action, and alleged express threats to job security by various members of management. However, counsel for the respondent submits that section 89(5) does not apply to the following allegations contained in the various complaints and amendments thereto filed with the Board by counsel for the applicant:
"(5) From in or about April 1982, the said Grant Wilson had advised his supervisors to keep his employees under surveillance and to conduct enquiries for the purpose of identifying any employees who were promoting or showing interest in having a union in the plant and to report all such information to him. On or about 21st May, a supervisor Al Simoes approached employees in the plant and interrogated them concerning their interest or activity in supporting a union and with respect to one employee, he grabbed what appeared to be a union card out of the employee's pocket but before he could read it this employee seized it back and refused to discuss the matter.
(I) Also on or about Wednesday, 26th May 1982, a supervisor, Fred Leitch interrogated employees in the plant and questioned them about their interest in and whether they had been supporting the union in trying to get people signed up. Also on or about the same date, the said Fred Leitch spoke to employees in the company cafeteria at or about 10:00 p.m. who had arrived early for their shift, saying to them 'if you know anything about this union business you had better let me know'.
(19) Between in or about May 26th and 28th, a supervisor, one Jeff Williams was heard telling employees in the plant something to the effect 'this will put a halt to the Union'.
(26) On or about Monday, 14th day of June, 1982, a lead hand one Americo Simoes, a brother of supervisor L. Simoes, openly and in the presence of other employees, removed from the Company bulletin board the green sheet being a copy of the notice to employees, Form 6, of the application for certification Board File 0436-82-U which had been posted by the Company on the direction of the O.L.R.B. in the application for certification. After taking down the notice from the bulletin board he told employees present that it was 'his copy' which he needed for a meeting that night. He also told the employees present something to the effect that 'we sure don't want this in here' meaning the union. It is the contention of the union that this action on the part of Americo Simoes would, in the circumstances, be reasonably interpreted by employees in the plant as having been approved and/or directed by management including Grant Wilson. A meeting of employees, called together by the said Americo Simoes took place in the plant in the afternoon of Monday, June 14th. This meeting was held with the approval and knowledge of Grant Wilson and involved a discussion among the employees about how they could oppose the union. Only a carefully selected group of employees apparently attended at this meeting.
(27) On or about Monday, June 14th, a lead hand, one Astrella Cabelleri was heard approaching employees in the plant during working hours and telling them that if they joined the union they would lose $3.00 per hour and the plant would close down. She also was heard telling the employees that there would be a meeting at about 3:30 p.m. that day to discuss the matter. Also, on or about the same date a notice was posted on the Company bulletin board inviting people to sign a paper who wanted to be on a [sic] 'association committee'. The association of employees in which management has participated has been in existence in the plant for some number of years. This so-called Employees Association has received financial and other support from the Company and Grant Wilson and other management officials have attended its meetings and participated in its affairs. It is the contention of the Union that this so-called Employees Association is a management sponsored Association intended and calculated to discourage unionism. The said Americo Simoes and Astrella Cabelleri have been active members of the so-called association executive. (30) In or about the first part of June, 1982, supervisor Al Simoes was heard asking employees if they wanted to volunteer to be officers on the executive of the said 'Association'.
(Paragraph 1 of union counsel's letter dated August 23, 1982) On or about 15th June, 1982, the leadhand, one Valerie West, advised an employee George Miller that he was permanently laid-off for alleged shortage of work. She also advised him that 'we've laid-off 18 more in the plant until the holidays are over'. This employee, George Miller is still on so-called layoff. It is the contention of the Union that this employee was laid-off and terminated as part of the Respondent's anti-union retaliatory programme as expressed by President Grant Wilson at the said meeting of May 25th, 1982, and also because he was suspected of being a union sympathizer and supporter.
(Paragraph 3 of that letter) It is also the contention of the Union that the some 18 persons referred to by Valerie West were also laid-off for the same purposes.
(Paragraph 6 of that letter) In or about the latter part of May, 1982, the Respondent's supervisor Fred Leitch, approached an employee Sandy Vajdek and accused her of passing around a union paper in the plant indicating that the Company were considering disciplinary action against her. She denied that she had done this and apparently no further action was taken.
(40) On or about September 15th, 1982, at or about 3:30 p.m. Grant Wilson, Wilco's President, began an association meeting by saying:
'If you have a fucking tape recorder in here, get it out now'.
While saying this Grant Wilson was looking directly at Richard Toner who at the time was approximately 2 feet away. Two days later, on or about September 17th, 1982, Richard Toner was permanently' laid off and refused the opportunity of bumping less senior employees in other departments. This employee has shown considerable support for the U.A.W., and it is contended that his layoff and the refusal of his right to bump less senior employees was part of the Company's anti-union campaign and was intended to be interpreted as such. Further, it is the contention of the Complainant Union that this layoff was orchestrated in the circumstances to show all employees what their fate would be if they decided to attend and give evidence before the Labour Board. This type of behaviour by the Respondent violates Sections 64, 66, and 70 of the Act. (41) In or about the early part of September 8th, 1982, the Maintenance Electricians were first told by their supervisor, Bill Van Vught that they would now be required to perform the duties of Maintenance Mechanics. At this time a Maintenance Electrician pointed out that such work was not in his job classification. Then, on or about October 1st, 1982, the same Maintenance Electrician was told by his lead hand, Americo Simoes, to perform Maintenance Mechanic's work. The Maintenance Electrician refused to do the work on the basis that it was not part of the work under his classification. The refusal resulted in the Maintenance Electrician receiving a written warning from Supervisor Bill Van Vught. Since Maintenance Electricians were not required to perform Maintenance Mechanics job duties prior to September 1982, and the employer did not receive the consent of the Union for such a change in job duties, there is a violation of Section 79 sub-section 2 of the Act."
Counsel for the union contends that, in the context of these proceedings, section 89(5) applies to all of the union's allegations, including those set forth above.
Section 89(5) of the Act provides as follows:
"(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization."
In discussing the scope of that provision, the Board wrote as follows in Domtar Packaging, [1982] OLRB Rep. July 993 (a case in which the complainants alleged that they had been dealt with by the respondent employer contrary to the provisions of sections 3, 15, 64, 66 and 70 of the Act):
"6. ... [Section 89(5)] is confined to complaints alleging that persons as opposed to, for example, trade unions, have been discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to the Act and such conduct must relate to such persons in respect to their employment, opportunity for employment or conditions of employment. The onus, it is to be noted, is also confined to employers and their organizations and, thus, is not relevant in the context of a fair representation complaint, for example. It is also to be observed that section 89(5) is not on its face limited to specific substantive or charging sections of the Act. More general language is employed.
[The quotation of sections 64, 66 and 70 of the Act has been omitted.] Clearly, allegations made in respect to section 66 trigger section 89(5). This section refers to employment related conduct of employers vis-a-vis employees and persons. However, it is interesting to note that section 70 makes no explicit reference to 'employment, opportunity for employment or conditions of employment'. Thus, while the respondent admitted that section 70, or rather allegations there under, trigger section 89(5), such allegations could only trigger 89(5) if it were thought that intimidation or coercion 'factually' relating to a person's employment was sufficient to activate section 89(5). And, indeed, we think this was the intent of the legislature in that section 66 makes no explicit reference to the terms 'intimidation and coercion', terms which are employed in sections 89(5) and
From this analysis, one must conclude that the phrase 'contrary to this Act as to his employment, opportunity for employment or conditions of employment' does not require the reliance on a provision of the statute that explicitly deals with employment but rather s. 89(5) applies to any substantive provision that, in relation to a person, can be breached by employment related discrimination or other such improper employer conduct. Clearly, it is possible to envisage employment related discrimination which violates both section 66 and section 64 of the Labour Relations Act and it is our view that s. 89(5) was intended to be of benefit to persons in respect of all unfair labour practice conduct by employers affecting employment. It was not intended to give preferential treatment to any one substantive section. Accordingly, we are satisfied that the allegations made before us, if established, could constitute employer prohibited conduct with respect to persons and with respect to their employment, opportunity for employment or conditions of employment within the meaning of section 89(5). Thus, the reliance of the complainants on section 64, 66 and 70 do not justify the Board exercising its discretion and requiring the trade union to proceed first. However, even if we had concluded differently, we are not satisfied that the mere reliance on a section other than one relevant to section 89(5) should always result in the complainant proceeding first. Indeed, this case is a good example with respect to the complaints' reliance on section 15.
Should the additional reliance on section 15 dictate that the union proceed first in respect to all its allegations as was the approach followed in Crafiline Industries, supra? We think not. The section 15 allegation is integrally related to the other fundamental and primary allegations. We are not of the view that the case is one primarily relating to bargaining conduct nor can we conclude that the other sections of the Act were relied upon simply to achieve the employer proceeding first on the section 15 allegation. All the allegations involve many common factual features; we see no substantial embarrassment to the employer if it is required to proceed first; and much of the allegations involve matters primarily within the employer's knowledge. There is no dispute that whoever proceeds first with respect to the section 15 allegation, the legal burden remains with the complainant trade unions on that issue.
We are therefore inclined to agree with the complainants that the primary nature of this case is one centering on sections 64, 66 and 70 and that evidence pertaining to that primary core of the complaint is likely to be relevant and integral to the alleged violation of section 15. Having regard to all the circumstances, the employer will be required to proceed first.
(See also, generally, I. C.B. Warehousing Division of Alar-Anson, [19761 OLRB Rep. Oct. 621.)"
With those principles in mind, the Board will now consider the potential applicability of section 89(5) in the context of the present proceedings. We are unable to accept company counsel's submission that section 89(5) cannot apply to any of the allegations contained in paragraph 5 of the union's allegations (as set forth above). Depending upon the circumstances, interrogation of employees by management concerning union activities could fall within the ambit of threats, coercion, intimidation or other conduct violative of the Act as to the employment, opportunity for employment or conditions of employment of the employees who are subject to such interrogation. Similar observations apply to the allegations contained in paragraph 10. The allegation contained in paragraph 29 falls within the scope of section 89(5) since a threat as to Mr. Toner's employment, opportunity for employment or conditions of employment, is implicit in the statement which Mr. Goodbrand is alleged to have made to him. Section 89(5) might also apply to paragraph 6 of union counsel's letter dated August 23, 1982, in view of the threat of disciplinary action alleged therein, although we would require further details concerning the alleged accusation in order to reach a final conclusion concerning that matter. Furthermore, section 89(5) clearly applies to the allegation with respect to the lay-off of Richard Toner contained in paragraph 40. We do, however, agree with company counsel's contention that section 89(5) does not apply to the allegations contained in paragraphs 19, 26, and 30, since those paragraphs do not contain allegations that any person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to the Labour Relations Act as to his employment, opportunity for employment or conditions of employment.
With respect to paragraph 27, the statement which lead hand Astrella Cabelleri is alleged to have made to employees in the plant during working hours, namely, that "if they joined the union they would lose $3.00 per hour and the plant would close", may well constitute a threat (or an act of intimidation or coercion) by the employer as to their employment, opportunity for employment or conditions of employment if, as is implicit in the allegations contained in that paragraph read as a whole in the context of the other allegations in these proceedings, Ms. Cabelleri was acting with the support of management. Although the parties ultimately agreed (on July 21, 1982) to include lead hands in the bargaining unit, the union initially sought their exclusion on the ground that they exercise managerial functions within the meaning of section 1(3)(b) of the Act. While the union's subsequent withdrawal of its challenge to their inclusion in the unit eliminates that issue, it does not preclude a finding that Ms. Cabelleri was in fact acting on behalf of management in the circumstances set forth in paragraph 27. The fact that at the time when that allegation was filed with the Board (June 23, 1982) the union was contending that Ms. Cabelleri was a member of management and was not a bargaining unit employee, fortifies our conclusion that paragraph 27 implicitly alleges that she was acting on behalf of management. Similar observations apply to the first sentence in paragraph 28, read in the context of the totality of the union's allegations. Therefore, we are unable to accept company counsel's submission that section 89(5) cannot apply to any of the allegations in paragraphs 27 and 28.
In support of his submission that section 89(5) does not apply to paragraphs 27 and 28, counsel for the respondent contended that an employer should not have to call an employee in the bargaining unit to discharge the "reverse onus" under section 89(5). We are unable to agree with that submission as an abstract proposition. If an employer were to use a bargaining unit employee as a conduit or agent to threaten, intimidate, coerce or otherwise deal with another employee contrary to the Act as to his employment, opportunity for employment or conditions of employment, the section 89(5) "reserve onus" might well apply to the situation. In any event, it is open to the employer to attempt to prove through members of management that they neither authorized nor condoned Ms. Cabelleri's activities. Such evidence can be presented without calling Ms. Cabelleri, although calling her as a witness might be a more expeditious and direct method of dealing with that issue. (Similar observations apply to Americo Simoes.)
The allegations (set forth in paragraphs 2 and 3 of union counsel's letter dated August 23, 1982) that George Miller and eighteen other employees were laid off as part of the respondent's "anti-union retaliatory program" clearly fall within the purview of section 89(5). To whatever extent (if any) the involvement of lead hand Valerie West is material to those allegations, observations similar to those set forth in the preceding paragraph of this decision apply.
With respect to paragraph 41, the Board's jurisprudence concerning section 79 (and the analogous provisions of The Colleges Bargaining Act) indicates that individual employees have no status to bring before the Board a complaint alleging a breach of that section. See, for example, Merrymount Children's Home, [19811 OLRB Rep. June 742, and Fanshaw College of Applied Arts and Technology, [1980] OLRB Rep. Apr. 433. In the Merrymount case, the Board suggested that section 89(5) might not be operative to establish the legal onus in a section 89 complaint based upon an alleged violation of section 79, but indicated that in the view that panel of the Board took of the case before them, it was unnecessary to decide that matter. While we agree that an individual employee has no status to bring such complaint before the Board, it does not necessarily follow that section 89(5) cannot apply where, as in the present case, a union brings before the Board a complaint in respect of an alleged violation of section 79 which is based upon an allegation that the conditions of employment of an employee (or group of employees) have been altered contrary to the Act. However, we decline to determine that issue at this stage of the present proceedings in view of that fact that neither counsel addressed any specific submissions to us with respect to it. Should that matter ultimately require determination in these proceedings, we will address it in our decision on the merits.
A second matter about which the parties made submissions before the Board is the proper scope of reply evidence in "mixed onus" proceedings such as these in which the applicant bears the legal burden of proof with respect to some allegations, and the respondent bears the legal burden of proof with respect to others. Counsel for the respondent submitted that by agreeing to proceed first with its evidence, the union assumed the evidentiary onus of proceeding first with its evidence on all of the allegations, including those to which section 89(5) applies. He further submitted that the scope of the union's right to call reply evidence in the present case is the same as the right of reply in any other case in which the union is the first party to call its evidence. Thus, it was his position that while the union could adduce reply evidence to contradict or qualify new facts or issues raised in defence, it should not be permitted to "split its case" by calling evidence in reply which properly forms part of the union's case in chief.
Counsel for the union contended that his client is under no obligation to call as part of its case in chief evidence concerning allegations in respect of which section 89(5) places the legal burden of proof on the respondent. It was his submission that the applicant is entitled to rely on section 89(5) and is under no obligation to exhaust its case in chief on all of the allegations to which section 89(5) applies. Thus, he argued that the union, having called evidence concerning some of those allegations, can await the evidence of the respondent before deciding whether to call any evidence concerning the rest of those allegations. He further submitted that if this approach causes prejudice to the respondent, such prejudice can be eliminated by permitting the respondent to reopen its case so as to adduce evidence on any matters that it has not had a proper opportunity to address previously.
The normal scope of reply evidence is aptly described in the following passage from Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at page 517:
"At the close of the defendant's case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiffs case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons:
'... first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning' [6 Wigmore on Evidence, s. 1873, p. 511]."
(See also Allcock Laight & Westwood Limited v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18 (C.A.).)
- Having carefully considered the submissions of the parties with respect to this issue, we have concluded that it is neither appropriate nor possible to attempt to delineate at this stage of the proceedings the precise scope of reply evidence which the Board would be prepared to receive in this case. Nevertheless, we will attempt to provide the parties with a general indication of the approach which we are inclined to adopt. Although none of the previous Board decisions cited to us by counsel, or which we have reviewed as a result of our own research, deals at length with this matter, it appears from the pertinent jurisprudence that the party which proceeds first with its evidence in a case in which section 89(5) applies to some but not all of the allegations, is required to adduce as part of its case in chief its evidence on all of the allegations, and not just on those allegations concerning which it bears the legal burden of proof. See, for example, Craftline Industries, [1977] OLRB Rep. Apr. 246, in which the Board wrote as follows (in paragraph 2):
"Certain of the alleged violations of the Act in this matter cast upon the employer the 'reverse onus' as set out in section 79(4a) [now section 89(5)] of the Act (i.e., the alleged violations with respect to section 58 and 61 [now 66 and 70] of the Act. The other alleged violations of the Act, i.e. sections 14, 56, 70 and 71 [now 15, 64, 79, and 80] do not call into play the 'reverse onus' as set out in section 79(4a) of the Act and accordingly the complainant is required to establish these alleged violations on the balance of probabilities. The respondent in this matter has asked the Board to sever those aspects of the complaint which cast the 'reverse onus' upon it from those aspects of the case which do not, and in the alternative the respondent has asked the Board to require the complainant to proceed first if all the alleged violations are to be heard as a single complaint. The Board is not prepared to sever the complaint along the lines suggested by counsel for the respondent. To do so would not only prove costly to the parties and to the Board, but would also prolong the time required to dispose of these serious complaints. The Board, however, in view of its decision to hear all of the matters before it as a single complaint, and in view of the protracted time frame vis-a-vis the alleged pattern of unlawful activity, hereby declares and serves notice upon the complainant that it will be required to proceed first with its evidence with respect to all of the alleged violations. Notwithstanding the order of procedure the Board will apply the 'reverse onus' as set out in section 79(4a) to those allegations to which it has application."
(emphasis added)
Although the notion that the "reverse onus" is only called into play by certain sections of the Act has been superseded by the more recent view expressed by the Board in Domtar Packaging, supra, that "section 89(5) was intended to be of benefit to persons in respect of all unfair labour practice conduct by employers affecting employment", nothing in the Domtar case affects the approach which the Board has generally adopted of requiring the party that proceeds first with its evidence to proceed first with respect to all of the alleged violations, irrespective of the fact that section 89(5) may be applicable to some but not all of those allegations. Indeed, it is clearly implicit in the Domtar decision that having determined that the mere reliance on an allegation other than one relevant to section 89(5) should not always result in the complainant proceeding first, and having further decided that in the circumstances of that case the respondent ought to proceed first, the Board would require the respondent to proceed first with its evidence on all aspects of the case, not just on those aspects to which section 89(5) was applicable. (See, in particular, paragraph 9 of that decision, as quoted above.)
In the circumstances of the present case, in which the applicant agreed to proceed first with its evidence and, in doing so, led evidence concerning some but not all of its allegations, including a number of allegations to which section 89(5) unquestionably applies, the Board is of the view that it would not be appropriate to permit the applicant to split its case as it apparently seeks to do. Accordingly, the Board will not permit the applicant to adduce in reply, evidence material to the allegations that it has made, which evidence is within its power to adduce as part of its case in chief. It is, of course, open to an applicant to refrain from adducing such evidence in relation to some or all of the allegations to which section 89(5) applies and, in final argument, to rest its case with respect to those allegations solely on the basis that the evidence adduced by the respondent with respect to them has not discharged the section 89(5) burden of proof. However, if the applicant seeks to follow this course, it will not be open to it to adduce such evidence in reply, having foregone its opportunity to do so as part of its case in chief. Nevertheless, the Board recognizes that the reply evidence which may properly be adduced in proceedings such as the present case will frequently be somewhat more extensive than the reply evidence legitimately adduceable in Board proceedings to which section 89(5) does not apply, since allegations to which section 89(5) applies generally involve matters which are primarily, if not exclusively, within the knowledge of the respondent. Thus, it is certainly not beyond the realm of possibility that the respondent may adduce in support of its actions in relation to a particular employee, evidence which divulges a matter (such as an incident in that individual's employment history) about which the applicant could not reasonably have been expected to adduce evidence in chief due to its lack of knowledge that the respondent was relying upon same. This is particularly true in complaints, such as the present ones, in which the respondent's replies merely contain a blanket denial of the allegations, and do not specify the facts upon which it intends to rely in defence of its impugned actions.
It should also be noted that if the reply evidence adduced by the applicant is such that it becomes necessary or appropriate in the interest of a fair hearing for the respondent to be afforded an opportunity to rebut or qualify new facts or issues raised by such evidence, it is open to the Board to afford the respondent an opportunity to adduce further evidence, although this discretion must be exercised prudently to avoid unnecessarily creating a lengthy, complex and unduly fragmented four-stage procedure.
At the (January 20, 1983) continuation of hearing of this matter, before hearing the respondent's evidence the Board will afford the applicant an opportunity to re-open its case in chief for the purpose of adducing such further evidence as its counsel considers appropriate in light of this decision.
The matter is referred to the Registrar.