Retail, Wholesale and Department Store Union, AFL-CIO-CLC v. Honest Ed's Limited, 1985 CanLII 1093

[1985] OLRB Rep. November 1609

1038-85-U Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Complainant, v. Honest Ed's Limited, Respondent

BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. C. Burnet and P. J. O'Keeffe.

APPEARANCES: David I. Bloom, Ron MacNeil, Danny Moretto and Loretta May for the complainant; S. A. Bernofsky, Rolf Carston and Russell Lazar for the respondent.

DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN AND BOARD MEMBER P.

J. O'KEEFFE; November 29, 1985

1. This is a complaint under section 89 of the Labour Relations Act alleging that the respondent terminated the employment of Ron MacNeil contrary to the Act.

2. Mr. MacNeil had been employed by the respondent from September 1980 to November 1981, and became employed by the respondent again in November 1984 until his discharge on Tuesday, July 16, 1985. Mr. MacNeil worked in the respondent's shoe department as a sales clerk during his most recent period of employment. Dominic Pironcelli, a buyer, was responsible for the management of the shoe department and was the person who decided to discharge Mr. MacNeil.

3. Mr. Pironcelli testified that Mr. MacNeil was, at best, a fair employee, who had a drinking problem. Mr. MacNeil had been warned many times about his attendance, punctuality, appearance and attitude, both orally and in writing. Although Mr. MacNeil disputed some of the details of those written warnings, he did concede that while he thought he was a fairly good employee, he had some problems with absenteeism and punctuality. Mr. MacNeil also admitted that he had had a drinking problem, but that he had improved and had stopped drinking in mid-May of 1985.

4. Mr. MacNeil was scheduled to be at work on Saturday, July 13, 1985. Shortly after

9 a. m. on that Saturday, Mr. MacNeil called the respondent to inform it that he would not be in to work. Mr. Pironcelli recollected that he spoke with Mr. MacNeil, who told him that he was not feeling well. Mr. Pironcelli told Mr. MacNeil to stay home, relax and get well. Mr. MacNeil testified that he called the respondent shortly after 9 a.m. and believed that he spoke with Bobby Sheridan, a supervisor in the shoe department. Mr. MacNeil did not report for work that day. However, at about 4 p.m. that afternoon, Mr. Pironcelli saw Mr. MacNeil outside the respondent's premises. Mr. Pironcelli did not confront Mr. MacNeil at that time, but decided in his own mind that Mr. MacNeil had taken advantage of him and the respondent once too often. Mr. Pironcelli explained that when he saw Mr. MacNeil outside the respondent's store on the same day that he was supposed to have been too ill to come to work, Mr. Pironcelli felt that Mr. MacNeil was being unfair to him, the respondent and the other employees in the shoe department.

5. Although Mr. Pironcelli decided on Saturday that he would discharge Mr. MacNeil, he did not speak to Mr. MacNeil about his absence on Saturday or the next working day, which was Monday, July 15. Mr. MacNeil worked a previously scheduled 12 hour shift, 9 a.m. to 9 p.m. on that Monday. On Tuesday, July 16, Mr. MacNeil was scheduled to work from noon to 9 p.m. Shortly after Mr. MacNeil arrived at work on that Tuesday, he met with Mr. Pironcelli. Mr. Pironcelli informed Mr. MacNeil that he was being terminated because of his absence on Saturday, and his previous poor punctuality and attendance.

6. Mr. MacNeil had been active in the complainant since about March of 1985. The complainant was in the midst of an organizing campaign among the respondent's employees at the times relevant to this proceeding. Mr. MacNeil had occasionally distributed leaflets to the respondent's employees outside of the respondent's premises promoting the complainant. He had also been visiting employees in their homes on Sundays~ trying to enlist support for the complainant. Mr. Pironcelli was aware of Mr. MacNeil's active role in the complainant, and had known that he was a supporter of the complainant as early as December, 1984, when Mr. MacNeil went to Mr. Pironcelli wearing a button showing support for the complainant and advising Mr. Pironcelli that he had joined the complainant. Mr. Pironcelli responded at that time by telling Mr. MacNeil that it was up to him as to what church or groups he affiliated with. Mr. Pironcelli never spoke to Mr. MacNeil about the complainant after that time.

7. Mr. MacNeil testified that on Friday, July 12, when he was not scheduled to be at work, he went to the respondent's store and was campaigning for the complainant and canvassing employees outside of the respondent's premises. He also went into the respondent's lunchroom and was talking about the complainant with other employees when he was asked to leave by Meyer Garber, an employee in the shoe department who had been the buyer for that department before Mr. Pironcelli. Mr. MIacNeil testified that Mr. Garber and Mr. Pironcelli had a close working relationship, and often spent time working together during the day.

8. On Monday, July 15, 1985, on Mr. MacNeil's supper break, between 4 and 5 p.m., Mr. MacNeil was in the respondent's cafeteria, where he stood up and made a 10 minute speech to the employees present asking them to support the complainant. Mr. MacNeil said he made reference to the complainant's applications for the certification at restaurants related to the respondent.

9. Mr. Pironcelli testified that he was unaware of Mr. MacNeil' s speech on Monday, July 15th until he received a copy of this complaint that was filed with the Board. He explained that he waited until Tuesday, July 16 to discharge Mr. MacNeil because he wanted to discuss the matter with the respondent's other buyers at a board meeting, which was scheduled for Tuesday, July 16. Mr. Pironcelli testified that each buyer has the authority to dismiss employees. He also testified that he did not discuss the organizing campaign or Mr. MacNeil' s role in it with the other buyers. Mr. Pironcelli initially testified in cross-examination that the buyers had not taken a role in campaigning against the complainant, but when confronted with some literature on the respondent's letterhead, signed by three persons who were buyers, corrected his evidence by indicating that some buyers had taken an interest in the complainant's organizing campaign and that he had himself very recently written similar letters to employees in his department. Mr. Pironcelli testified that the buyers did not discuss the respondent's strategy in respect of the complainant's organizing at the buyers' board meetings.

10. Mr. MacNeil, in cross-examination, was asked if he was working elsewhere, and responded that he was. He testified that he got his new job after he had been discharged by the respondent and said that he filled out an application form for that new job after he started working there. However, when Mr. MacNeil was shown an application form that he had signed and dated July 12, Mr. MacNeil explained that he had merely asked about the possibility of being employed, but did not accept employment in that new job until after being terminated by the respondent. We note that that application form, exhibit number 5, contained a series of questions relating to Mr. MacNeil's present employment. Two of those questions and answers were:

"3. Why leaving 'Rock bottom wagas [sic]'.

5. When leaving and available to start 'July 22, 1985'."

6. Since this complaint alleges that Mr. MacNeil was discharged contrary to the Labour Relations Act, section 89(5) of the Act requires the respondent to affirmatively establish, on the balance of probabilities, that its conduct did not violate the Labour Relations Act. In order to determine whether the respondent has discharged that burden, the Board must examine all of the circumstances relating to the discharge, not for the purpose of determining whether there was just cause, but only to decide whether the discharge was motivated, in whole or in part, by the employee's union activity, or his exercise of rights under the Act. The analysis the Board uses in making that determination was set out in Alpha Laboratories Inc., [1981] OLRB Rep. July 823 at 824:

"In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:

.... the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.'

It is not the function of the Board in the present case to decide whether or not the respondent had just cause to discharge the grievors. Our jurisdiction is limited to determining whether the respondent discharged the grievors because they were supporters of the complainant trade union or were exercising any other rights under the Act (see Toronto Star Limited, [19711 OLRB Rep. Sept. 582, paragraph 11). This does not, however, preclude the Board from considering the context surrounding the respondent's actions, as indicated by the Board in Fielding Lumber Company [1975] OLRB Rep. Sept. 665, at paragraph 19:

'The Ontario Labour Relations Board has no general mandate to impose its views of fairness on employers and employees. Its sole responsibility is to administer and enforce The Labour Relations Act - a piece of legislation that does not stipulate that an employee can be terminated from his employment only for just and reasonable cause. But having said this it must be observed that in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it.'

The nature of the determination to be made in cases such as the instant case and the factors to be considered by the Board in making such determinations are described as follows in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:

'In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities'. (See National Automatic Vending Co. Ltd. 63 CLLC 16,278)

12. In assessing the circumstances in order to determine whether the conduct was unlawful, the Board must consider "... the existence of trade union activity and the employer's knowledge of it, [and] unusual or atypical conduct by the employer following upon his knowledge of trade union activity ..." and ..... must not be unduly swayed by either the co­existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct ...." (See Pop Shoppe (Toronto) Limited [1976] OLRB Rep. June 299 at 301.)

13. It is clear to us that Mr. MacNeil' s attendance and punctuality were of real and legitimate concern to the respondent. We are also satisfied that Mr. MacNeil had, in fact, sought and obtained other employment prior to the respondent's discharging him on July 16, and it is more likely than not that he intended to leave the respondent's employ on July 22, 1985, and that he knew that he had another job waiting for him when he spoke to the respondent's employees in the cafeteria on July 15. However, simply because the respondent may have established that it had adequate cause to terminate Mr. MacNeil' s employment or that Mr. MacNeil had obtained another job does not end the inquiry before us. The Board must be persuaded that the employee's exercise of rights under the Labour Relations Act played no part in the respondent's decision to terminate Mr. MacNeil's employment. That determination in this case must rest on our assessment of Mr. Pironcelli's evidence.

14. Mr. Pironcelli testified that he made up his mind to discharge Mr. MacNeil on Saturday, July 13, 1985. Yet, when Mr. MacNeil came to work on Monday, July 15, Mr. Pironcelli did not speak to him about his absence on the previous Saturday, or his pending discharge. This was explained by Mr. Pironcelli saying that he wanted to review the matter at the buyers' board meeting the next day. However, Mr. Pironcelli, who was aware of Mr. MacNeil's active role in the complainant, testified that Mr. MacNeil's union activity was not discussed. Mr. Pironcelli was quite specific in testifying that buyers had the authority to dismiss employees on their own, yet he wished to raise the dismissal of Mr. MacNeil with the other buyers. We were not provided with a plausible explanation for Mr. Pironcelli's desire to raise the matter of Mr. MacNeil' s discharge with the other buyers. Mr. Pironcelli also denied knowing about the 10 minute speech that Mr. MacNeil gave in the company's cafeteria. However, it is unlikely that the other buyers with whom Mr. Pironcelli met the day after the speech was given had not heard about the speech. Furthermore, Mr. Pironcelli's evidence about the role of the buyers in responding to the complainant's organizing campaign was quite unsatisfactory. He initially denied any role for the buyers in setting out the respondent's views about the complainant, then finally admitted that the buyers, including himself, had recently sent letters to their employees about the complainant.

15. The respondent has not persuaded us that Mr. MacNeil' s union activities on the previous Friday when he was actively campaigning and his speech to the employees on Monday were not a significant element in the discussion among the buyers that led to the discharge of Mr. MacNeil. Mr. Pironcelli, who on his own evidence, had decided to dismiss Mr. MacNeil on the Saturday waited until the following Tuesday to do so. The decision to dismiss Mr. MacNeil, if it was Mr. Pironcelli's alone, could have been effected either Saturday or Monday. Waiting one more day to review the matter with his colleagues suggests to us that Mr. Pironcelli was somewhat unsure about dismissing Mr. MacNeil, but was persuaded to do so after the buyers' board meeting. Therefore, having regard to all of the evidence before us, we are not satisfied that the respondent did not act contrary to the Act when it discharged Mr. MacNeil on Tuesday, July 15, 1985.

16. Prior to his discharge, Mr. MacNeil actively sought, and, on the evidence before us, accepted other employment. We are satisfied that he formed the intention to resign from the respondent's employ for reasons entirely unrelated to any unfair labour practice committed by the respondent. Therefore, in these circumstances, it is not appropriate to direct the respondent to offer to reinstate Mr. MacNeil in his former job.

17. It is not clear whether Mr. MacNeil suffered any compensable loss as a result of the respondent's violation of the Act since he started working for his new employer shortly after he was discharged. However, if the parties are unable to agree on the issue of compensation, the Board will remain seized of that matter.

18. Having regard to the foregoing, the respondent is directed to:

(a) pay Ron MacNeil compensation for his loss, if any, of wages and benefits resulting from the respondent's violation of the Act and to pay interest on such compensation, if any, calculated in the manner described in Practice Note No. 13, dated September, 1980;

(b) to sign and post copies of the attached Notice marked "Appendix" as supplied by the Board in conspicuous places on its premises and to keep such notices posted for sixty (60) working days and to take all reasonable steps to ensure that the Notices are not altered or defaced or covered by any other material.

DECISION OF BOARD MEMBER FRANK C. BURNET;

1. The opinion of my colleagues sets forth standards enunciated by earlier panels for cases of alleged discharge for union activity. In summary, the reverse onus on the employer requires him to show, on balance of probabilities, first that the reasons given for the discharge were the only reasons, and second, that they were not tainted by anti-union animus. A further elaboration of the first is that the employer is however not required to prove that the discharge was for just cause.

2. These concepts do not stand in isolation but are inter-related and overlapping. Indeed, the first two standards are in reality only one, or at best, opposite sides of the same coin, for if the stated reasons are the only ones, then there cannot be another. In other words, what has been characterized as a "taint of anti-union animus" is clearly of such serious import to this Board's affairs as to constitute a reason or motive in itself. Practically speaking, therefore, this earlier standard can only mean that the employer must prove either that the professed reasons were the only ones or that there was no anti-union animus. The two are mutually exclusive.

3. Moreover, although the employer is not required to prove that his reasons constitute just cause, the Board must look to the weight of those reasons in reaching its decision. If they are trivial, then the possibility increases that they may merely mask an anti-union animus. Conversely, if they are weighty, that possibility decreases accordingly.

4. It is not unrealistic to require the employer to assume the burden of proving valid and positive reasons for the discharge, but it is impractical and unrealistic to require him to prove the negative proposition that there was no anti-union animus, beyond his own declaration to that effect. Certainly, he cannot be expected to declare that he welcomes or supports the applicant union, or a particular union in a competitive situation, for that too is forbidden by the Act. Strictly speaking neither can he prove that the reason or reasons given were as a group unique, as the list of such negative possibilities could conceivably be endless. The employer can only be expected to prove his own position and motivation, and then respond to specific and substantive allegations on their face —- and not simply be required to respond to unspecified negative possibilities or vague allegations of a possible anti-union animus in what is obviously an adversarial situation.

5. Moreover, the fact that a disciplined employee was a member, supporter, or activist is clearly not evidence in itself of anti-union animus by the employer. To so conclude would be tantamount to accepting the principle of guilt by association. The consequences would then be that an activist role, or even union membership, properly advertised, would become a shield against any discipline, however well merited. The purpose of the Act is to prevent discriminatory discipline based on union activity or support, but not to provide protection from merited discipline because of such activity or support.

6. The overlapping and sometimes conflicting concepts in this earlier statement of standards should be clarified and simplified to properly express the intent of the Act. The Board must look to the weight of the reasons for the discharge not only to assure that they are not merely trivial excuses, but also to determine if in all the circumstances they would have provided a reasonable basis for the disciplinary decision in the absence of any union organizing campaign or in a settled union-management relationship. If so, the complaint should be dismissed and if not it should be sustained, with whatever corrective action is deemed appropriate.

7. I concur with the facts and evidence as set forth in the majority award, though I

would amplify some and draw different inferences from others. The facts and evidence that

I believe to be relevant to the issue before this Board are:

1. The employee, an obviously articulate young man, was a sales clerk in the shoe department of the respondents' store and had some eight months recognized service.

2. During that comparatively brief period of employment, on an unspecified but frequent number of occasions, the supervisor had interviewed, counselled or reprimanded the employee for unsatisfactory behaviour, including three written interview notices in January, March and May 1985, covering in all, nine misdemeanours from the beginning of the year. These pertained in the main to absenteeism, but also covered such matters as reporting in an unfit condition to go to work (unshaven, disheveled, "reeking"), rough handling of stock during an emotional outburst, overstaying rest periods and stating openly that he would do so again as soon as the supervisor "cooled off". It was common ground that many of his problems stemmed from alcoholism. The employee claimed progress in his attempts to control it but his supervisor reported only brief periods of improvement. The May notice was a final warning.

3. On Saturday, July 13, after prior consultation with a union official, the employee reported by telephone to the respondent that he was ill and received permission to be absent. Late that afternoon however he was observed by his supervisor in the vicinity of the store, though he had not reported in or entered the store. The supervisor testified that he then felt that "I was being taken for a ride", and that he could no longer tolerate this behaviour, in fairness to his employer and the other employees. He decided to discharge the employee and did so on the following Tuesday, although he also had the opportunity to do so on the preceding day, Monday.

4. Given a very short service employee, a lengthy list of serious misdemeanours, flagrant and even planned disregard for ordinary timekeeping rules, numerous warnings and a culminating act of apparent deception, which seemed designed to provoke a confrontation, there was clearly ample evidence of just cause for termination—whether the employee was a union activist or not and whether it had occurred in an organizing phase or in a settled union-management relationship. (If not, then one might well ask what other offences should the employee be permitted before discharge would be appropriate?) I do not think the Board should order re-instatement or damages, nor can it do so without seriously undercutting the ordinary accepted standards or behaviour required of all employees.

5. It remains to comment on several other aspects touched on in the majority award. It is true that the employee made an allegedly impromptu speech in the cafeteria in favor of the union on Monday, following the Saturday culminating incident and preceding his discharge on Tuesday. There was no direct evidence that the supervisor was influenced by this. The only direct evidence in fact was the supervisor's sworn statement that he was not even aware of the speech until after the discharge. I would not draw the same inference as my colleagues. On an earlier occasion, when the supervisor requested the employee to cease wearing a "Boycott Eatons" lapel button, as being inappropriate in a matter involving a competitive store, he specifically permitted continuation of wearing of the button of the applicant union, with advice to the employee that he was free to support or join any organization he wished. I think this evidence is counter-supportive to an inference of anti-union animus. I would emphasize that these considerations are in my view, not relevant in the first place because of the weight of the reasons for discharge in the light of standards discussed earlier—and even if they were relevant, they are not supportable.

6. Second, I find no anti-union motive in the fact that the supervisor delayed implementing his decision for a day in order to review the matter with his peer supervisors. Such delay and consultation for the purpose of assuring oneself of the correctness of a decision already reached, or even to assist in reaching it does not taint the decision. That process occurs at all levels in government, industry, unions and other organizations and is simply a prudent step in the decision making process. Indeed, the Board itself is currently defending before the courts that very process among its own members.

7. In the instant case, the need for such prudence is underlined by the very hazards of maintaining disciplinary standards during a union organizing campaign, which this case graphically illustrates. it is not only prudent for supervisors to discuss such technical and complicated matters, but most knowledgeable employers require that they do so to assure consistency and compliance. The Board should not, logically or equitably, set up broadly phrased strictures against discipline in stated circumstances, and then penalize management or supervisors for discussing their application to those circumstances. It is necessary to distinguish between discussions by supervisors and management that are legitimate, perhaps even essential, and those specifically directed to frustration of the Acts' fundamental purposes. In my opinion, in the instant case, there was no evidence of the latter, either in direct examination of the supervisor or in cross-examination.

8. Accordingly, I find no basis, either in the one day delay in implementing the decision or in whatever discussion may or may not have taken place between supervisors on related union matters to alter the supervisor's decision. Similarly, the communications that management may have had with other employees on union affairs are not relevant to this specific act of discipline. If it is alleged that any of these discussions or communications are improper under the Act, then such charges should be made and tried on their merits, but such allegations or inferences drawn from them should not be the basis for reversing a normal business decision that would have been clearly warranted in a non-union situation or in a settled union-management relationship.

9. I would accordingly dismiss the complaint.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

THIS NOTICE IS BEING ISSUED IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD THAT WAS MADE AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT IN DISCHARGING RON MACNEIL FROM HIS EMPLOYMENT AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS,

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN OR HELP UNIONS TO BARGAIN AS A GROUP,

THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE THINGS,

WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT DISCHARGE OR THREATEN TO DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY.

WE WILL PAY RON MACNEIL COMPENSATION WITH INTEREST FOR HIS LOSS, IF ANY, OF WAGES AND BENEFITS THAT RE ULTED FROM HIS DISCHARGE CONTRARY TO THE LABOUR RELATIONS ACT.

HONEST ED’S LIMITED

PER: _____________________________________

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 29TH day of NOVEMBER . 1985