United Steelworkers of America v. John T. Hepburn, Limited, 1985 CanLII 876

[1985] OLRB Rep. January 75

1352-83-U United Steelworkers of America, Complainant, v. John T. Hepburn, Limited, Respondent.

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES: Brian Shell, George Teal and Carlos Infusino for the applicant; Stewart D. Saxe, John F. Hepburn and William Hutchison for the respondent.

DECISION OF OWEN V. GRAY, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; January 31, 1985

1. The United Steelworkers of America has been bargaining agent for employees in the respondent's Mechanical Division since 1943. In the spring of 1982 it was negotiating with the company for the renewal of the collective agreement covering those employees. A majority of the employees present at a union meeting on May 17, 1982, voted to reject the company's most recent contract offer. In the circumstances, that vote was generally understood to be a mandate for and commitment to a strike. One of those who voted to reject the company's offer was Harry Morgan. Despite that, Harry Morgan was not prepared to join in the strike. While his fellow workers endured the hardships of a strike in the hope of improving wages and working conditions for all, Harry Morgan planned to continue working and receiving his wages. If the strike resulted in improved wages and benefits, he was prepared to donate the difference to charity. He wasted no time telling the union's leaders of his plan — he did so before he left the meeting of May 17th. The news was not warmly received.

2. The strike began the next day, May 18, 1982. The grievor, Roderick Smith, was head picket captain. He had been employed by the respondent since June, 1977, as a fitter welder or fabricator. He was promoted to lead hand before the end of his probationary period, and later turned down a further promotion to foreman, which would have taken him out of the bargaining unit represented by the union. He was shop steward for his area from 1979 or 1980 until shortly before the 1982 strike began. He was also a member of the health and safety committee during roughly the same period. He ran unsuccessfully for Vice-President of the local in 1981, and was a member of its bargaining committee in the 1982 negotiations. He was assertive in his dealings with his employer on union matters, health and safety matters and personal matters. He had been disciplined on several occasions. More than once it was for defiant behavior: participating in an illegal strike, interfering with production, telling John Hepburn, then Manager of Manufacturing, that his uncle James Hepburn, Vice-President of the respondent, was "an ignoramus". Smith's grievances of the discipline imposed as a result of the latter two incidents were unresolved when the 1982 strike began; their resolution had then become the subject matter of collective bargaining in accordance with the parties' practice.

3. The respondent continued to operate during the strike. Work ordinarily performed by employees represented by the union was performed by management personnel and by strike replacements hired from or through an outside agency, and by Harry Morgan. As these people drove their automobiles through the picket line each day they received the expected treatment. Harry Morgan received perhaps more than his proportionate share of attention; he was the only pre-strike bargaining unit employee crossing the picket line at that plant. At first, Morgan took the verbal exchanges of the first weeks of the strike in his stride, along with the nails that had to be removed from in front of his tires from time to time. His experience on the morning of June 11th, however, was different. As Morgan was driving slowly past picketers into the Hepburn plant, Roderick Smith reached through the open window of Morgan's automobile, handed Morgan a .22 calibre bullet, said "your name's on this, you bastard!" and, a moment later, spat in Morgan's face.

4. After Morgan reached the respondent's parking lot and parked his car, he entered the plant and went to the washroom to wash his face. He says he felt "emotionally sick". He could not believe someone could "go that low". He went to find his superior, Mr. Baxter, to report the encounter with Smith. This was the first time he had sought management out to report a picket line encounter. He found Baxter, told him what had happened, and gave him the bullet. Baxter spoke to John Hepburn, who asked that Morgan put his report in writing. Morgan did that. Hepburn sought legal advice, then called the police. Constable Gaskin of the Peel police department came to the plant and met with Hepburn and Morgan. He was given the bullet. He told Morgan that the most serious possible charge which might be made against Smith as a result of the incident involved a possible prison term. Morgan said he did not wish to press such a serious charge. The charge eventually laid by Morgan was common assault.

5. John Hepburn regarded the incident as serious. He described it as involving a threat to an employee's life. He felt the company could not tolerate that kind of behavior. He was generally aware of Smith's discipline record, particularly the incidents which were still the subject of grievances when the collective agreement expired. On the basis of that record, he considered Smith a difficult employee who was disrespectful of supervision. The day of the incident, June 11th, was a Friday. In the period between the incident and the afternoon of the following Monday, John Hepburn spoke to the company's labour counsel, his father and uncles, and the two other senior management people on the company's negotiating committee. He decided to terminate Smith's employment, and wrote to Smith to that effect on June 15th. He candidly admits recognizing at the time that, in view of Smith's position in the union, the termination would make it more difficult to settle a collective agreement with the union. He denies using the incident as a pretext for ridding the company of what counsel for the union described as "a vocal and sometimes angry [union] spokesperson".

6. The union responded to the termination letter with a written grievance. The company took the position it was not obliged to respond to the grievance, as no collective agreement was then in effect. The union demanded Smith's reinstatement as a term or condition of any new collective agreement. The respondent refused to agree either to that or to arbitration of the question whether the discharge was for "just case". On November 18, 1982, the union agreed to contract terms which did not require either Smith's reinstatement or arbitration of his discharge grievance. Smith had consented to the union's withdrawing those demands. A memorandum of agreement was signed after the union provided a telegram confirming that those demands had been withdrawn. That was not the end of the dispute over Smith's discharge, however. The turns it then took are described in the Board's earlier decision in this matter at [1984] OLRB Rep. Jan. 39, 5 Can. LRBR (2d) 340 at paragraphs 3 and 4:

7. The complainant nevertheless filed a grievance on Smith's behalf on November 23, 1982. The respondent's immediate response was that there was no collective agreement in effect as of the time of the termination, and that the termination could not, therefore, be the subject of collective agreement arbitration. The complainant persisted. It advised the respondent it had appointed a nominee to an arbitration board. That nominee then sought from the respondent the name of its nominee. The respondent refused to appoint a nominee. The complainant then asked the Minister of Labour to make the appropriate appointments pursuant to section 44(4) of the Act. Correspondence was exchanged between counsel for the Ministry, the complainant and the respondent concerning the Minister's power to make the requested appointments. On March 22, 1983, the Director, Legal Services, Ministry of Labour advised counsel for the complainant that he would be advising the Minister of Labour that he had no power to appoint an arbitrator under subsection 44(4) of the Act, having regard to the undisputed fact that the discharge took place when no collective agreement was in operation.

8. There were no further developments until after the release by the Board of its August 5, 1983 decision in International Wallcoverings, [1983] OLRB Rep. Aug. 1316. In late August or early September, counsel for the complainant met with the Director, Legal Services, Ministry of Labour, and ultimately obtained from him a letter which confirmed that the Minister had accepted the advice that counsel had earlier been told would be given to the Minister on the question of power to appoint an arbitrator under section 44(4). This complaint was then filed September 19, 1983, fifteen months after Smith's termination.

9. Constable Gaskin was called as the union's witness. His recital of his meeting with Morgan and Hepburn is consistent with their versions, when one takes into account the inevitable effects of the passage of time between the events in question and the hearing. Gaskin concluded that Morgan did not think Smith would actually carry out his threat. He thought Morgan was more upset about being spat upon than about the bullet. He said Hepburn expressed concern that there was no need for that type of activity, and that he could see no reason why employees who wished to work had to be intimidated in that manner. Hepburn did not encourage or discourage Morgan's pressing charges during the meeting with Gaskin. After his meeting with Morgan and Hepburn, Constable Gaskin went and spoke to Smith. Smith told Gaskin he had not intended to spit on Morgan. He admitted handing Morgan the bullet. Gaskin got the impression Smith regretted the incident, that he thought it was a stupid thing to have done. When Gaskin reviewed the case later with his superiors, he and they concluded that a criminal charge of threatening or intimidation would not be warranted. Hepburn, of course, was privy neither to Gaskin's discussions with Smith nor to his discussions with his superior officers.

10. The union argues that discharge was so disproportionately severe a response to the incident between Smith and Morgan that some other factor is needed to explain it, and that factor is a desire to be rid of a trade union activist. In this connection, the union would have us find that all of the immediate parties to the incident, including Morgan, treated the handing or dropping of the bullet and the accompanying remarks as a joke, and that the spitting was an innocent mistake in which Smith intended to spit on the ground and missed. The first proposition rests on the evidence of Smith and McCaul, who handed Smith the bullet on the picket line as Morgan was driving in that day, that they were laughing when the bullet was delivered and that Morgan also laughed or "sniggered", as McCaul described it. On a tack inconsistent with this "prank" theory of the incident, counsel for the union put it to the respondent's witnesses, including Morgan, that Morgan's attitude and behavior were so provocative that a strongly emotional, even violent, reaction would not be an unnatural result. Having seen and heard Morgan, Smith and McCaul testify about the incident, the word "prank" does not properly describe it. It is apparent, and we find, that Morgan was shaken, not amused. If he laughed or "sniggered", it was from a combination of nervousness and bravado —"whistling in the dark" — and not from mirth. For his part, Smith did not intend to amuse or entertain; he was angry about Morgan's "scabbing", and wanted Morgan to get the message that he was so provoked that physical violence was at least on his mind, if not "in the cards". We find it hard to believe that the spitting was a mistake.

11. The complainant union argues that the respondent has violated sections 3, 15, 64, and 66 of the Labour Relations Act. It submits the respondent's discharge of Smith was motivated by a desire to rid the company of a union activist, and so violated sections 64 and 66 of the Act. It says the respondent's subsequent refusal to agree to Smith's reinstatement or to the arbitration of his discharge grievance was similarly motivated, and so constituted bargaining in bad faith in violation of section 15 of the Act. In the alternative, the union says that the circumstances of this case call for the finding of breach of section 64 if anti-union animus is not found, relying on International Wallcoverings, [1983] OLRB Rep. Aug. 1316. It was not suggested that section 3 of the Act created any basis for relief which could not be found in the other sections on which the union relies.

12. Section 66 of the Act provides:

13. No employer,

(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.

Subsection 89(5) of the Act imposes on the respondent the burden of establishing that its discharge of Smith was free of the motivation referred to in section 66:

(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 employer's organization did not act contrary to this Act lies upon the employer or employers' organization.

11. This onus cast on the respondent by section 89(5) of the Act was described in these terms in Barrie Examiner, [1975] OLRB Rep. Oct. 745, at paragraph 17:

... 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.

In Fielding Lumber Company, [1975] OLRB Rep. Sept. 665, at paragraph 19, the Board noted that

... the Board must only be concerned with the motivation of an employer and cannot pass judgement on the fairness of its actions. 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 also 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.

This "process of inferential reasoning" was discussed in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:

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., case 63 CLLC 16,278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement of inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.

6. This is not the first time in labour relations history that an employer has disciplined or discharged a striking employee for allegedly violent or intimidatory conduct toward those who perform work for the employer during a strike. Such discharges have been the subject of arbitral review when the right to such a review was later won in collective bargaining: see, for example, Re Mattabi Mines Ltd., (1973) 1973 CanLII 2136 (ON LA), 3 L.A.C. (2d) 344 (Abbott), Re Gates Rubber of Canada Ltd., (1978) 1978 CanLII 3457 (ON LA), 18 L.A.C. (2d) 412 (O'Shea) and Re Radio Shack, (1980) 1980 CanLII 4009 (ON LA), 26 L.A.C. (2d) 227 (Beck). An employer's interest in the safety and well-being of those who work for him are well recognized, as is the validity of the proposition that

... the mere fact that an employee is engaging in a lawful strike does not give him licence to commit acts of misconduct which would not otherwise be tolerated by his employer. (Re Gates Rubber of Canada Ltd., supra, at p. 418).

The complainant does not suggest that an employee who engaged in violent or intimidatory conduct on a picket line is immune from employer discipline. The primary basis of its complaint is that the discharge in this case was motivated by the grievor's union activity.

13. The evidence establishes that Roderick Smith was active in and for the union. This union has represented employees in the respondent's mechanical division for nearly 40 years when Smith was discharged. There is no evidence before us from which we can conclude that the respondent has ever before been guilty of an unfair labour practice toward any other union "leader", past or present. The union does not suggest that Roderick Smith is the first vocal, angry or effective leader this local has ever had, nor that he is first the company might have regarded as a "thorn in its side", if it were inclined to think in such terms. Indeed, there is no suggestion that he was the most formidable or "thorny" of the local's current leaders, elected or otherwise, at the time he was discharged. We do not accept, as he would have us believe, that the company's then recent conversion to lead-free paint was solely due to Smith's activities, or that his role in the decision to convert was quite the relentless personal battle he sought to portray in his testimony.

14. One other striking employee was discharged during the strike, in his case for throwing a rock through James Hepburn's office window at a time when Hepburn was not, but might have been, there. John Hepburn explained that these two incidents were considered life­threatening, and that they were the only such incidents during the strike. The union does not claim that the other discharged employee was terminated for anti-union reasons. Indeed, that accusation was not leveled at the company with respect to the Smith discharge until fifteen months after it occurred.

15. In assessing whether anti-union motive played a part in the respondent's decision to discharge Smith, it is of little assistance to speculate whether a dispassionate third-party arbitrator would have substituted lesser discipline for Smith's behavior, or to assess whether the incident warranted a criminal prosecution or otherwise measure its seriousness from the perspective of a police officer. We do find it helpful to ask whether it seems likely that the Hepburn's would have discharged the perpetrator if he were not a "union leader". McCaul's testimony is helpful in that respect. He is the striking Hepburn employee who handed Smith the fateful bullet. He acknowledged that was a stupid thing to do, volunteering "if I'd thrown it, they would have fired me". The next question in cross-examination gave McCaul a chance to back-track: "You expect they would have fired you... [had you been the one to give Morgan the bullet]?" He answered "if they would do that with him, why not with me?" It was not suggested that McCaul had had any leadership role in the union. It is apparent it had not occurred to him, despite the circumstances in which he was testifying, that anything other than the handing of the bullet had resulted in Smith's discharge. This alone is strong evidence that the reason given by the respondent for its termination of Smith is plausible, whether or not it is just.

16. The respondent was and is under no obligation to establish that it had just cause for discharging Smith. It was and is under no obligation to agree to submit that question to arbitration, or to submit to an arbitrator's view of the propriety of discharge as a response to the incident of June 11, 1982. It is obliged to persuade us that its decision to discharge Smith was free from improper motive. That requires not only that we be persuaded that the reason given is a plausible reason for the respondent's having discharged the grievor, but also that we be satisfied that it is the only reason. The respondent is not required to satisfy us beyond a shadow of a doubt, however. Given the nature of labour relations and the Board's experience of human behavior in that context, it would be a formidable, if not an impossible task for an employer in the respondent's position to so completely prove a negative as to persuade the Board that it was quite impossible for it to have been influenced by even the slightest negative feeling about the union and those who support it. That is not what subsection 89(5) requires. The onus imposed by that subsection is the civil onus: proof on a balance of probabilities. On the facts of this case, we are satisfied it is more probable than not that the respondent's decision to discharge Smith was not a response, even in part, to Smith's union activities.

17. As we understood the union's submission, a finding that the respondent violated section 15 of the Act depended on our finding that the respondent's decision to discharge Smith was a response, in whole or in part, to Smith's union activities. We have not made that finding.

18. The complainant's alternate argument was that the discharge of Smith interfered with the union and so violated section 64 if the discharge was not improperly motivated. The sole authority cited for this non-motive approach was International Wallcoverings, supra. We do not propose to enter into a lengthy analysis of the decision in that case. The distinctions between the facts on which the Board acted in that case and the facts before us are stark. The most obvious is that Smith did do what the respondent thought he had done when it decided to discharge him. In that respect he is in the same position as the three grievors to whom the Board unanimously refused to grant relief in that case, observing at paragraphs 36 and 37 that:

The respondent was under no legal obligation to arbitrate the discharges and trade union officials who engage in misconduct have no immunity from discipline under the Act …

We have found that, given the circumstances, the decision to discharge was not clearly excessive and by itself a hallmark of anti-union animus. The decision to arbitrate merited no different characterization. … In this type of situation it seems to us that a non-motive approach to section 64 should be reserved for instances of clear mistake or for discipline clearly out of all proportion to the misconduct in issue.

The facts of this case do not fall within the range prescribed in the last sentence of the quoted passage. However valid the non-motive approach of the International Wallcoverings case may be, it clearly does not bear application to this complaint.

19. The complaint is, accordingly, dismissed.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. I dissent from the majority decision. In my view, it has not been established that the Company's discharge of Mr. Rodney Smith was free of anti-union motive.

2. Smith's problems with the Company began in 1978, when he rejected their offer to become a foreman, and as the Company put it, "be on their side." That Smith did a good job is indicated by his promotion to lead hand, and the subsequent offer of the foreman position. Nevertheless, for his own reasons, Smith chose to remain in the bargaining unit. Indeed, he went on to become quite active in the union as the majority notes. He served as shop steward until shortly before the strike began; he was a member of the plant health and safety committee; and he ran unsuccessfully for the position of local Vice-President in 1981. Smith served as a member of the bargaining committee during the 1982 negotiations, and when the strike commenced, served as picket captain. I cannot imagine anyone being more involved in his union. In these circumstances, the Board must be completely satisfied that no anti-union motive existed. I am not so satisfied.

3. As the Board stated in the Barrie Examiner case supra, the onus cast on an employer under section 89(5) is twofold. The employer must establish not only that the reasons given for discharge are the only reasons, but also that these reasons are not tainted by any anti-union motive. The Board, in Pop Shoppe, supra, reiterated this approach, stating that:

Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive.

4. How do these principles apply to the facts in this case? It is clear that Smith did a good job for the Company. It is also clear, however, that notwithstanding his abilities, Smith had been disciplined on several prior occasions: he had participated in an illegal strike; had interfered with production; and had called Company Vice-President James Hepburn "an ignoramous." The evidence establishes that management had a personal dislike for Smith, although John Hepburn would not admit it. Despite the Company's earlier offer of promotion, he described Smith as "not a good worker; difficult." When asked, point blank, whether he disliked Smith, Hepburn would say only that "he was a difficult employee." The question for the Board is whether this dislike is related to Smith's union involvement.

5. To say the least, Smith was zealous in pursuit of union objectives. He participated in a prior illegal strike. He had been active in a long running battle with the Company to improve working conditions by using lead-free paint. And he was a vocal member of the bargaining committee. He recommended strike action to the membership, and subsequently served as a picket captain. Management was aware of this. The question whether Smith was the first formidable or "thorny" local union leader is, in my view, irrelevant. The Company's dislike for Smith was exacerbated by the manor in which Smith conducted himself in dealing with union matters. In my view, a violation of section 66 has been established.

6. The facts that the Company relies on in support of its decision to discharge should be examined. It is clear that Smith handed Mr. Harry Morgan a bullet, and said "your name's on this, you bastard," and that he then spat on Morgan's face. It goes without saying that I do not condone Smith's picket line actions. Unfortunately, tempers on the picket line can flare, and incidents like this do occur. The question for the Board, however, is whether this conduct, and this conduct alone, is the reason for the Company's action. The majority asks whether the Company would have discharged the perpetrator were he not a union leader, and I agree that this is a relevant consideration in determining whether anti-union animus exists. I disagree, however, with the means used by the majority to answer this question. The majority relies on the testimony of another employee, McCaul, who handed Smith the bullet. McCaul testified that "if I'd thrown it (the bullet), they would have fired me. . . if they would do that with him, why not me?" The majority remarks that this is "strong evidence" that the Company's explanation for Smith's discharge is "plausible, whether or not it is just" (at paragraph 15). In my opinion, the majority has made a bad inference from McCaul's testimony. With respect, McCaul's perception is of little relevance given the onus on the Company to disprove the existence of any anti-union animus. The majority's reasoning begs the question: Would McCaul's testimony be "strong evidence" if he had said that the Company would not have fired him if he had been the perpetrator? In my view, the answer is clearly "no." It is the Board's duty to determine whether anti-union motivation is present, and I cannot see how the opinion testimony of an uninformed employee can aid the Board, let alone provide "strong evidence."

7. In my opinion, the extent of the Company's overreaction to the incident also leads one to infer that anti-union motivation was involved. In this vein, I disagree with the majority's characterization of the evidence. At worst, Smith spit on Morgan. As for the bullet incident, I note that it was not premeditated, and that it was viewed by Constable Gaskin as an unfortunate incident — one that Smith regretted. Constable Gaskin, in a better position to appreciate the incident than the Board, thought Morgan was more upset about being spat upon than about the bullet incident. It is important to note that neither Gaskin nor his superiors felt that a criminal charge was warranted in the circumstances. All in all, then, an unfortunate incident, one which was not serious enough to result in criminal prosecution, but one which the Company would have us believe is the sole justification for Smith's dismissal.

8. 1 would have found a breach of section 66 and reinstated the complainant Rodney Smith, with compensation for lost wages subject to perhaps a one week suspension, which in my view is more than sufficient punishment for his actions.