[1984] OLRB Rep. March 505
1675-83-U Windsor Grain Processor's Union, Complainant, v. Maple Leaf Monarch Company, Respondent
BEFORE: Richard M. Brown, Vice-Chairman, and Board Members F. W Murray and H. Kobryn.
APPEARANCES: John Pistor, Mike Renaud, Brian Brohman, Mike Allen, Rick Weir and Gord Sturm for the complainant; Michael Hines and Winston F Scotland for the respondent.
DECISION OF THE BOARD; March 2, 1984
The Windsor Grain Processor's Union, (the "union") alleged Maple Leaf Monarch Company (the "employer") violated sections 64, 66, 70 and 80 of the Labour Relations Act.
The general thrust of the union's complaint is that the employer interfered in a proposed merger between the union and the United Automobile, Aerospace and Agricultural Implement Workers (the "U. A. W.") by penalizing some employees and attempting to sway others. Michael Renaud, president of the union at the time, was a visible supporter of the U.A.W. in September 1983. He worked as a shift leader. In the early part of September, John Lame the production manager, spoke to Renaud about the work performed on his shift. The union alleged that Lame expressed his disapproval of Renaud's work and attributed this dissatisfaction to his role as union president. According to Lame, he spoke to Renaud about the performance of those he supervised and, when Renaud asked why the matter had not been raised during the summer, Lame replied he had not wanted to trouble the union president while he was involved in negotiations to renew the collective agreement. As Michael Renaud did not testify before us, we accept Lame's account of this conversation as true. Copies of memorandums sent to Renaud, during the spring of 1983, about the poor performance of his shift were also introduced into evidence.
On September 26th, the employer posted a notice drafted by Winston Scotland, the Technical Director, after consultation with counsel:
TO: All Members of the Windsor Grain Processor's Union.
I understand that you and the other members of the Union are soon to decide on whether or not you should become part of, or be affiliated to, a bigger organization. A number of you have asked me for the Company’s opinion.
The Company in no way wishes to interfere or influence you in arriving at your decision. However, such a change in the status of the Union which represents you raises certain important issues which you should carefully consider:
— Who will be making the decisions in the future, on your behalf;
— Will there be any change in the level of dues or financial assessments, and is so, how much will they be?
— Will there by any new obligation?
— What control will you have over your dues?
— Will there be any change in your Constitution and By-Laws?
These and other related questions are for you to decide, but we urge you to attend the meeting and give serious consideration to this important decision.
(signed) Winston Scotland
According to Scotland, he simply wished to ensure that the decision taken by the union was supported by the majority of employees, and he was indifferent to the outcome.
On Friday, September 28, 1983, union members attended a meeting called by the executive to discuss the proposed merger. The proposal was supported by slightly less than two-thirds of those present. As a majority of two-thirds is required for constitutional amendments, the merger was defeated.
Two days later, Renaud and Larry Recoskie, a fellow employee, were involved in a physical altercation in the locker room. Recoskie reported this occurrence to his supervisor and it was discussed at the regular 10:00 a. m. management meeting. By this time, statements had been obtained from Renaud, Recoskie and Cliff Campeau — Renaud had given an oral statement to his supervisor, who had reduced it to writing, but the other two statements were written by the employees concerned. Renaud denied that anything had happened, but Recoskie claimed Renaud had pushed him against the lockers several times and then started swinging when Recoskie pushed him away. According to Campeau, he heard a great deal of noise before rounding a corner in the locker room to see Recoskie picking up his hat, pen and glasses from the floor, with Renaud nearby. Campeau's statement also said that Recoskie accused Renaud of "taking a swing" at him and that Renaud told Campeau "your're fucking next". As Campeau's statement placed A.B. Scott in the locker room at the crucial time, the employer contacted Scott by telephone, but he denied seeing anything. Another altercation in March, 1983, also involving Michael Renaud, was mentioned by Lame at the 10:00 meeting. According to Lame, shortly after this incident, Renaud admitted shoving Paul Monpetite because he complained that employees on Renaud's shift had not cleaned up properly. Lame testified he had told Renaud the next such incident would result in serious discipline. Armed with the three statements and Lame's accounts of the earlier occurrence, Scotland consulted counsel and decided to suspend Renaud for the weekend, with pay, pending further investigation. This decision was communicated to Renaud in writing, at approximately 1:00 p.m.
Renaud then approached Lame who, in consultation with Scotland, agreed to set up a meeting at which Renaud could confront his accusors. Lame and Scotland met first with Recoskie and Campeau, who repeated what was contained in their written statements. According to Lame, Recoskie had a bruise on his forehead and appeared to be very upset. He said Renaud's actions were motivated by Recoskie's opposition to the U.A.W He also said he might have hit Renaud while pushing him away. Renaud then arrived with Brohman and Weir, two union representatives. According to Scotland, the two union representatives disclaimed any responsibility for what Renaud might do if allowed in the same room as Recoskie and Campeau. In Renaud's absence, Recoskie and Campeau recounted their stories in front of Brohman and Weir — who were invited to ask questions — as well as members of management. After Renaud's accusors left, he was called in and told what they had said. He still denied anything had happened. Renaud also said he would not be responsible if anyone else left the plant as a result of his suspension. At some point, Lame was told by Renaud that Recoskie and Campeau were antagonistic towards him because of his support of the U.A.W. Campeau had been union president until displaced by Renaud in early 1983. Before the afternoon meetings on September 30th, Renaud gave Lame a written statement claiming that Ken Jackson, Paul Cainen and Gord Sturm had been in the locker room that morning. No attempt was made by management to contact Sturm because he was known to be a friend of Renaud and because Cainen told Lame that Sturm was not present. During the course of the day, Rick Taggart, the health, safety and security officer, arranged to have Recoskie photographed and examined by the company doctor. At the end of the day, the employer confirmed its earlier decision to suspend Renaud with pay, pending further investigation. According to Lame and Scotland, their objective was to prevent a reoccurrence by removing the alleged aggressor from the plant. Rick Taggart was present in the locker room at every shift change on that weekend.
There was another incident in the locker room on September 30th. Renaud reported that his locker had been forced open and that union monies and documents had been removed. He called the police who visited the site of the crime. Rick Taggart decided that no further investigation was warranted because he did not believe Renaud.
On the weekend immediately after the locker room incidents, Rick Taggart decided to implement special procedures for incoming telephone calls. Apparently, the normal practice is to summon an employee to the telephone to receive calls. But on this weekend, the security guard took the name and number of a caller and then relayed this information to the employee concerned who then returned the call. According to Taggart, the reason for this procedure was to prevent anyone from delivering threats that could not be traced.
On the night of Friday, September 30th, Gord Sturm advised the employer that he would not be able to work on Saturday due to illness. Recalling Renaud ' s comment about others leaving the plant, Lame did not believe that Sturm was sick. The production manager issued instructions that Sturm was not be allowed to return to work until he produced a note from the company doctor, even though the employer had previously accepted notes from an employee's family doctor. Consequently, Sturm was sent home when he arrived for work on Sunday. However, the employer recanted and accepted a note from Sturm's family physician before his next working day. As employees are paid on a salary basis, Sturm received his regular wages for Saturday. But Scotland initially ordered that Sturm not be paid for Sunday. Although this order was countermanded on Monday, Sturm was not paid due to a clerical error. After a grievance was filed, he was paid and his record was amended to show an illness of only one day.
On October 4th, Renaud was informed that he was to be suspended from October 5th to 28th. Renaud was also told at the same time that he was being removed from the position of shift leader — at a financial loss to him of approximately thirty-five hundred dollars annually. Both Lame and Scotland noticed swelling around Renaud's eye when he visited the plant on October 4th, but neither questioned him about his appearance. His subsequent request for copies of the statements made by Recoskie and Campeau was denied. Renaud's three week suspension was the longest ever meted out by the employer, even though there had been other fights — one employee had participated in several. However, the September 30th incident was the first physical altercation since Winston Scotland was placed in charge of the plant. According to Lame, Scotland has been firmer with employees than had been his predecessors.
Throughout the month of September, Renaud received at his home threatening phone calls and notes relating to the merger campaign. According to Lame and Scotland, they first learned of these threats on September 30th when Renaud accused Lame of being the perpetrator. At the hearing, the union withdrew this accusation against Lame and substituted an allegation that the employer knew of the threats and took advantage of them.
The union also alleged that Renaud was not allowed to visit the plant to attend to union business during his suspension. On October 6th, Renaud arrived at the plant and asked to see Mike Allen, the union vice-president, who was working at the time. Scotland relayed a message that Renaud was not to be allowed on the site while suspended. Two grievances were under consideration in this time period. The Sturm grievance was resolved at an impromptu meeting on October 20th at which Renaud was not present. Renaud grieved his suspension and demotion on October 6th. Under the collective agreement, disciplinary matters are first discussed at step two in the grievance process. This grievance was the subject of a step two meeting on October 7th atended by Lame and Mike Allen. According to Lame, Allen was content to proceed in Renaud' s absence. The third step meeting was scheduled for October 12th. In the past, the union has invariably been represented by its president at step three meetings. But Scotland refused to meet with Renaud for two reasons. He was under suspension and, as the grievor, his presence would inhibit compromise. Although Scotland was prepared to meet with the union's vice-president, no step three meeting took place on October 12th. The employer issued a written step three reply that day and on October 20th the parties agreed to dates for an arbitration hearing. By letter dated October 19th, Scotland stated he had changed his mind and was willing to recognize Renaud's status as a union officer during his suspension. Saying he was willing to meet the union president, Scotland noted the earliest possible date was November 1st. That was the first day that Renaud was scheduled to work after his suspension. On November 1st, Scotland and Renaud discussed his grievance.
During the month of November, the employer refused to pay union representatives who were absent from work to attend arbitration or labour board proceedings. The past practice had been to pay employees who were away from work, at negotiating sessions or arbitration hearings — there had only been one previous arbitration. A memorandum announcing this change was posted in the coordinator's office where it was visible to all employees. Winston Scotland testified that he sent this memorandum to two managers, but did not direct that it be posted and did not know who put it on the notice board. According to Scotland, the denial of pay to union officials was part of a larger scheme designed to put the company in the black. The number of managers has been reduced, entertainment and travel expenses have been cut back and management salaries were frozen during 1983. In the same year, the salanes of bargaining unit employees increased by five per cent. According to Scotland, the negotiations that produced this increase were long and tough. Renaud was the chief spokesman on the union side of the bargaining table.
We do not find any violation of the Labour Relations Act in the events recounted above. Motive is a necessary ingredient of a violation of sections 66, 70 or 80. These sections prohibit an employer from taking certain action against an employee because that person is engaged, or will engage, in protected activity. Two of the union's allegations were that Renaud was penalized for his support of the U. A. W. and that Sturm was subjected to new medical procedures because he was a potential witness at an arbitration hearing. There can be no doubt that campaigning on behalf of a trade union and testifying before an arbitrator are protected activities. As to the application of section 80 to arbitration proceedings, see Ontario Nurses's Association, [1982] OLRB Rep. Oct. 1546. But we conclude, on the balance of probabilities, that the employer's treatment of Renaud and Sturm was in no way motivated by these activities. Similarly, we do not believe that any of the other steps taken by management were tainted by a desire either to punish employees for exercising their rights under the Act or to prevent them from exercising those rights.
Nor has the employer contravened section 64. We are inclined to read between the lines of the notice posted on September 26th a statement of opposition to the U.A.W. — the most likely answers to the questions posed would favour the incumbent union over the U.A.W. However, even interpreted in this way the notice is protected by the free speech proviso in section 64. The implied message that we have identified contains none of the elements proscribed by this section — "coercion, intimidation, threats, promises or undue influence". We rely upon several features of the case at hand in coming to this conclusion. There is no suggestion that the favoured union is under management domination or control. As it has been the incumbent bargaining agent for several years, employees no doubt assumed, even before anything was said by management, that the employer would probably prefer to continue to deal with it in the interest of continuity, regardless of any other reason for preferring one labour organization over the other. And the expression of preference for the incumbent union was not made against the background of any management conduct that would cause employees to see anything sinister in this message.
The most troublesome aspect of this case is Winston Scotland's initial refusal to recognize Renaud's status as union president during his suspension. Indeed, we are not entirely satisified that the employer's stance ever really changed, as the November 1st meeting proposed by Scotland coincided with Renaud's return to work. However, in the peculiar circumstances of this case, we conclude that the employer's refusal to deal with Renaud as union president did not amount to interference in the administration of a trade union contrary to section 64. Given that Renaud was under suspension because he was believed to have violently attacked another employee, management had a legitimate interest in barring him from the plant to prevent a reoccurrence. In addition, on the evidence before us, the only matter Scotland expressly refused to discuss with Renaud was his own grievance. We do not view this as an attack upon the union, as grievors are often excluded from labour-management meetings in order to facilitate the settlement process.
This panel feels obliged to express a concern about the state of labour relations at Maple Leaf Monarch Company. By dismissing this complaint, we have indicated that the allegations made by the union cannot be sustained. The pressing of some of those charges cannot but have a negative impact on a collective bargaining relationship. However, the employer is not blameless. We are particularly troubled by Mr. Scotland's statement that he could not meet with the union president until November 1 — the first day that Renaud was back at work. Whatever the real reason for choosing this date, the employer ought to have realized the perception of Mr. Renaud and other employees would be that management was playing games.
The complaint is dismissed.
DECISION OF BOARD MEMBER H. KOBRYN;
I have reviewed all the facts covered in the decision although I put a little different interpretation on many of them. I certainly can lend support to the Chairman's statements in the last two sentences of paragraph 17. I also fully subscribe to that old opinion "where there's smoke, there's fire". This belief comes from my many years of experience in the labour relations field. This opinion gains support and credence from the evidence from the company's health, safety and security officer, Mr. Rick Taggart in the way he viewed Mr. Renaud's complaints and allegations as compared to the other involved employees. He viewed them as being jokes and totally unbelievable, in fact, he said he treated them as something between the ridiculous and sublime. This kind of intolerable attitude by a lower management individual and the way he was so vocal about same at this hearing, can only be perceived as having upper management support or in the very least this attitude by Taggart towards Renaud as president of the union was encouraged.
Granted, that given all the facts in this case which include the background history of the election of a new union president in Mr. Renaud and the replacement of the top management position by Mr. Scotland, then followed by a tough round of negotiations headed up by these two new players, followed by an attempt by the union to amend its constitution and by-laws so it could merge with the U.A.W. to which the employer responded with a employer posted notice, whose intent was not as innocent as Mr. Scotland tried to imply. Together all these stated facts may not add up to an violation of the Labour Relations Act but most definitely the employer is not blameless. Thus, my stated opinion comes fully into play.
Having said all of that I will add one other observation. The only way that labour management relations can return again to a meaningful and workable level in this plant, is to have the attitude of all the parties change from the present inflexible new broom mentality to one of trust and mutual respect of each other's rights and obligations.