[1986] OLRB Rep. February 273
0765-85-R United Electrical, Radio and Machine Workers of Canada (UE), Complainant, v. Pre Fab Cushioning Products Ltd., Respondent
BEFORE: Paula Knopf, Vice-Chairman, and Board Members F. C. Burnet and W. F. Rutherford.
APPEARANCES: Frank Piserchia and Pat MacNeil for the complainant; John Williamson and Sheldan Caplan for the respondent.
DECISION OF PAULA KNOPF, VICE-CHAIRMAN AND BOARD MEMBER F. C. BURNET; February 7, 1986
This is a complaint filed under section 89 of the Labour Relations Act alleging that the grievor, Christopher Robinson, was dismissed by the respondent contrary to section 66 of the Act and further that the respondent's conduct amounts to a breach of sections 1(2), 3, 15, 64 and 70 of the Act. The facts which gave rise to the complaint surround the culmination of a two-month legal strike by the complainant union against the respondent.
The Company manufactures urethane foam parts for the foam furniture industry. Its operation is located in Downsview, Ontario. The Company has been in existence since 1958. The union gained bargaining rights in 1976 and has maintained a collective bargaining relationship with the Company since that time. On February 4, 1985, the Union commenced a legal strike against the Company. The strike continued through to March 25, 1985. The previous collective agreement had expired in October 1984. The strike was a difficult one for both sides. Picket lines were maintained throughout and police were often patrolling and observing the picket lines. Management maintained constant contact with the police "strike squad". A number of criminal charges were laid resulting from incidents on the picket line. The company maintained a video camera observing the picket areas at all times. Feelings ran high because the Company continued operations throughout the strike by employing replacement employees and some of its previous employees who were willing to continue to work despite the Union's strike action. To facilitate the transportation of the replacement and continuing workers into the manufacturing areas and through the picket lines, management personnel from the Company drove vans and other vehicles across the picket lines carrying those workers in and out of the plant daily.
The grievor was a machine operator and had worked for the Company for six years. From 1981 to 1982, he was a shop steward. His tenure in this job was less than one year. He saw his main responsibility while holding that position as the handling of safety complaints. When the Union held its meeting to commence the strike in 1985, the grievor was elected as one of the picket captains. He was fairly active on the picket line during the strike and management was aware of his presence. However, his position as a picket line captain was unknown to management.
The incidents which precipitated the complaint occurred on the picket line on Friday March 22, 1985. There is a great deal of dispute in the evidence as to what exactly occurred on that day. Therefore the evidence must be reviewed in some detail.
Irving Himel is the President of the respondent company. He spent a considerable amount of time during the strike driving a van carrying workers across the picket lines. The van he drove was a blue, GMC, ten-passenger, side panel vehicle (hereinafter referred to as the Himel van). It had two ordinary front doors and a large sliding door on the passenger side at the back area of the van. Gauze curtains covered the windows and divided the driver and front passenger seats from the rear of the vehicle or the passenger compartment. On March 22, 1985, Mr. Himel was driving the van filled with workers out of the property at the end of the day through the north exit. As he waited in line, he was approached by Mr. Frank Moralez who had been in the picket line. Mr. Moralez began talking to Mr. Himel. Mr. Himel remained seated in the van; he spoke through the open window of the driver's side of the van. From an exchange of pleasantries, the two men began to discuss the strike and the desire of all to have it resolved. Both gentlemen described this as a "conversation" as opposed to an argument and Mr. Himel goes so far as to describe it as "friendly". Mr. Moralez' evidence corroborates this. During this conversation, the grievor, Mr. Robinson, approached Mr. Moralez and clearly wanted him to stop talking to Mr. Himel. All the evidence is in agreement that Mr. Robinson told Mr. Moralez to return to the picket line. There was an exchange of words between Mr. Moralez and Mr. Robinson resulting in physical contact between them of a minor, non-violent nature. Mr. Moralez wanted to continue the conversation with Mr. Himel.
It is at this point that the controversy in the facts develops. Mr. Himel says that Mr. Robinson then spat through the open window of the van past Mr. Himel, but looking at him all the time. Mr. Himel recalls an exchange of words in which he addressed Mr. Robinson as "Chris" and being told to call him Mr. Robinson. Mr. Himel says that the grievor then walked around the front of the van, making fists, and proceeded over to the right hand side of the van. Mr. Himel says that he then saw Mr. Robinson grab the handle of the sliding door to the passenger compartment to the van, open the door and stick his head and upper torso into the van. Mr. Himel says that Mr. Robinson then grabbed at a female passenger who proceed to "scream beyond recognition." Mr. Himel recalls hearing Mr. Robinson yell, "we’re going to get you, f—-ing scabs." A lot of commotion arose and Mr. Himel yelled for the door to be closed, and told Mr. Robinson that he was "finished with the Company" or words to that effect. The door was then closed and Mr. Robinson walked away.
Two other Company witnesses testified as eyewitnesses to this incident. Mrs. Le was a passenger in the back of the van at the time. She recalls the van stopping at the picket line and Mr. Himel talking to a "small man" who was undoubtedly Mr. Moralez. When this conversation was concluded, the sliding door to the passenger compartment of the van was suddenly opened". Mrs. Le was frightened and shut her eyes and covered her face with a handkerchief. She doesn't know who opened the door and says nobody got inside the truck. She was not asked by either party if anyone other than a passenger said or yelled anything in the van and she did not suggest that anyone had. She agrees that there was a lot of commotion and screaming in the van at the time.
Mr. Darryl Vukov also testified for the Company on this point. He says he was driving a mobile home at the time. He says he saw Mr. Himel and Mr. Moralez engaged in conversation. Mr. Vukov says that he then observed the pickets begin to circle the van so he got out of the mobile home to watch to see if any nails were being dropped on the pavement. Mr. Vukov says that he then observed the grievor go around the van, open the sliding door and put his "upper torso" in the van for ten to twenty seconds. He recalls hearing screams and says that he transmitted a message for help by walkie-talkie to the offices. There is no evidence that help ever arrived. He gave no evidence regarding any spitting by Mr. Robinson, any threats made by Mr. Robinson, or any shaking of the fist by Mr. Robinson.
The Union strenuously disputes Mr. Himel and Mr. Vukov's recitation of the facts. Mr. Robinson himself testified. He categorically denies spitting at or towards Mr. Himel or that he opened the van door. Mr. Robinson says he did go around to the passenger side of the van and noticed an open window so he "eased" his head into the van to see who was inside. He admits to yelling "strike breakers, scabs, give us a chance to earn some money." Mr. Robinson says that that is what all the picketers always yelled at the vehicles as they crossed the lines. In cross-examination, Mr. Robinson added that all he could get inside the van were his arms and that he reached for the curtains dividing the front portion of the vehicle and the passengers in an attempt to see and identify the passengers. Mr. Robinson says that he was then slapped by Mr. Irwin Himel who told him not to put his hands on the vehicle and also that his employment was terminated. That was the entire extent of the incident according to Mr. Robinson.
Mr. Moralez testified for the Union. He was active in the Union at that time, but he is now a member of management in the position of foreman. Mr. Moralez' evidence is that when Mr. Robinson went over to the passenger side of the van, the front window was open. Mr. Moralez says that he saw Mr. Robinson put his head and one hand into the vehicle and try to open the curtains. Mr. Moralez saw Mr. Himel slap Mr. Robinson and tell him that he had "better look for another job starting Monday." Mr. Moralez did not see Mr. Robinson spit at Mr. Himel at any time. Further, Mr. Moralez says he did not see the sliding door open at any time and says he could not see into the back of the truck because of the gauze curtains dividing the front seats from the passenger compartment.
Ken Bertie was also on the picket line at the time. He says that he saw Mr. Robinson put his hand, but not his head, through the window and ask Mr. Himel how many "scabs" were in the van. Then, Mr. Bertie says the sliding door was opened, but he believes it was opened by one of the passengers because Mr. Robinson was standing by the front door at the time.
Mike Dropulic was the last witness called by the Union. The purpose of his evidence was clearly to contradict that of Mr. Vukov. Mr. Dropulic claims that the Himel van exited from the north entrance to which all other witnesses agreed. However Mr. Dropulic adds that the Vukov mobile home exited from the south entrance on the day in question. Therefore, if Mr. Dropulic is right Mr. Vukov could not have seen what he alleges or even been there at the time. The difficulty with Mr. Dropulic's testimony is twofold. First, Mr. Vukov was never cross-examined on this point. Apart from the inherent unfairness that this would create, the Board has not had the benefit of knowing what Mr. Vukov would have offered as an explanation. Secondly, Mr. Dropulic says that he was on the picket line until 8:00 p.m. that evening and that the Vukov mobile home only left the premises once and that was at 4:00 p.m. All the other evidence presented by the Union is that the relevant events occurred around 4:30. Therefore, it could have been that Mr. Dropulic is thinking of another incident. Because of these factors, we do not find Mr. Dropulic's evidence to be of any persuasive value or assistance.
Even setting aside the evidence of Mr. Dropulic, the Board is faced with a mass of evidence from the parties that contains contradictions within their own cases and which contradicts each other's cases. The Company's evidence is flawed in that none of its witnesses corroborate Mr. Himel's allegation of Mr. Robinson spitting, uttering threats or shaking his fists. Further, it is hard to accept that Mr. Himel could have observed Mr. Robinson opening the sliding door and entering the van given the gauze curtains that all other witnesses acknowledge would divide his view from the passenger compartment. We are also troubled by the Company's unexplained failure to produce video tapes which apparently would have recorded an incident such as this and which could have assisted in the proceedings.
On the other hand, the Union evidence is not consistent. Mr. Robinson and Mr. Moralez would leave us with the impression that the sliding door was never opened, yet their own witness Mr. Bertie acknowledges that the door did open. Mr. Bertie had the best perspective of all to judge this.
However, what is clear and what we must conclude is that Mr. Robinson did at least put his head and arms into the Himel van for the purpose of seeing who was in the van and he yelled at the passengers. Given Mr. Bertie's evidence together with that of Mrs. Le, it must also be found that the passenger sliding door of the van was opened, but the evidence is too contradictory for the Board to conclude that Mr. Robinson was responsible for opening it. It was also clear that Mr. Robinson's conduct frightened the passengers and created a real commotion. However, the alleged threat attributed to Mr. Robinson by Mr. Himel was not substantiated by any other witness and cannot be accepted as attributable to Mr. Robinson. While such words may have been uttered at the time by another picketer in the immediate vicinity, we cannot accept that the evidence supports a finding that it was said by Mr. Robinson.
It is clear that no matter what actually occurred, Mr. Himel's reaction was to tell Mr. Robinson that he was fired and Mr. Robinson did hear that on March 22. However, there is also a dispute as to when Mr. Robinson was actually fired. Mr. Robinson says that Mr. Himel told picketers that their employment was terminated quite often throughout the strike and that no one took it seriously. Mr. Robinson considered this no different than any other time and also did not take it seriously. Mr. Moralez also said that Mr. Himel would on occasion tell picketers that they were "out of jobs" in response to name-calling, but again no one took it seriously. The Union was not immediately notified of Mr. Robinson's firing. However, Mr. Himel definitely considered that he had fired Mr. Robinson on the spot and advised other members of management of this the same day.
The next important event in this case occurred the following day, Saturday March 23, 1985. The parties had scheduled negotiations for that day. The negotiations resulted in the parties signing Minutes of Settlement of the strike on March 23. During the negotiations, the Company spokesman was a lawyer. He was not advised by anyone from management that Mr. Robinson had been terminated the previous day. The Union was not aware of it at the time either. Yet one of the terms of the Minutes of Settlement that had been proposed by the Company and accepted by the Union was a "no reprisals clause." The clause reads:
The parties agree that there shall be no reprisals or repercussions by either side.
Further, under the settlement, the terms would be effective upon ratification. There were no retroactive provisions in the minutes. The Union ratified the agreement on Tuesday, March 26 and the return to work commenced the following day.
In any event, the grievor testified that he did not consider himself fired as of March 22 and he awaited recall after the strike. By April 8 he knew from information handed out by the Union that the settlement had provided the work in the plant to be offered in accordance with the seniority provisions. However, when Mr. Robinson appeared at the work place on April 8, he was told by Mr. Gurley, the Plant Manager, that his employment had been terminated on March 22. Mr. Robinson claims not to have received the Company's letter to him confirming the termination. The letter was dated March 25 and mailed on March 26. The Union itself first became aware of the termination on April 8 and filed a grievance the same day.
The Union took the grievance to arbitration under section 45 of the Labour Relations Act. The matter came before Mr. O'Shea. The Company had taken the position that the collective agreement only came into effect upon ratification on March 26 so that at the time of the firing, i.e. March 22, Mr. Robinson was not covered by a collective agreement and thus the matter was inarbitrable. The Union argued that the discharge was only effective after the official notice of discharge was sent which would have been March 26 or after. Therefore, the Union argued that Mr. Robinson should be covered by the collective agreement which came into effect on April 26. Arbitrator O'Shea heard the Company's submissions on arbitrability and evidence on the merits of the case. The Union elected to call no evidence on the assumption that a preliminary ruling would determine whether the merits need be addressed. Mr. O'Shea concluded:
On the uncontradicted evidence before me I find that the grievor was advised by Mr. Himel on March 22nd, 1985 that "as far as I am concerned, you are fired". Since this statement was made by Mr. Himel, who was known to be the President of the Company, and since the statement was made immediately following an incident on the picket line, in the absence of any evidence which would cause the statement to be qualified or contradicted, I must find that on March 22nd, 1985 the grievor was fully aware that he had been discharged by the President of the Company. I further find that Mr. Himel had authority to discharge the grievor and that the grievor must have been aware that the President of the Company had this authority. I also find that the grievor's discharge on March 22nd, 1985 was "confirmed" by letter dated March 25th, 1985.
Since I have found that the grievor was effectively made aware of his discharge on March 22nd and since I have also found that no collective agreement was in existence (or subsequently made effective) between the parties at that time, I must accordingly find that there could be no violation of a collective agreement between the parties as contemplated and required by the provisions of Section 45(1) of the Labour Relations Act when the grievor was discharged by the Company.
Once the unfavourable arbitration decision was received, the Union launched these proceedings. The complaint contains allegations of anti-union animus directed against the grievor. It is undisputed that this complaint is the first time that these allegations were raised to the Company. The allegations that the grievor makes against the Company, individuals and management are serious in that they allege intimidation in the exercise of union rights. It is alleged that Mr. Robinson felt compelled to step down from his role as a shop steward, after serving less than one year in 1982 because the maintenance foreman, Joe Brown, and the Plant Manager, Gene Gurley, accused the grievor of being a "troublemaker" and told him to "mind his own business." Further, it is alleged that racial remarks were made to the grievor in this context. In addition, the grievor alleges that following his victory in a previous arbitration case in 1983 when he had been reinstated by an arbitrator, Mr. Gurley threatened to do anything in his power to have the grievor terminated. Finally, the grievor alleges he was threatened in the picket line in 1985 by both Irving and Melvyn Himel with regard to continued employment.
The employer's position regarding the 198 1-1983 allegations are a complete denial and a questioning of how seriously the allegations should be taken given that they were never raised in any form prior to these proceedings. Regarding the picket line alleged threats, Mr. Irving Himel testified about conversations with many picketers wherein he warned that jobs may be lost due to the Union's position. Melvyn Himel denies ever threatening the grievor and on the contrary, admits to telling the grievor that he was welcome to return to work.
It is undisputed that one other person was fired during the strike. He did not return to work. The only evidence the Board knows about this incident was that this person was also fired by Mr. Himel for allegedly threatening to kill him. The Company and the police and members of the union also laid criminal charges arising from the picket line activities which proceeded to the Provincial Court after the settlement was achieved.
The only other evidence that should be commented upon concerns the grievor's disciplinary record which was introduced by the Company. Having said that, it should be immediately pointed out that there is no suggestion that the record was even considered by Mr. Himel when he discharged Mr. Robinson. Therefore, it is of no assistance to the Board in determining whether there has been a violation of the Act. So, while the evidence was admitted, we have given it no weight in our deliberations. The only evidence of past conduct that is of any importance is that Mr. Himel had seen the grievor climb upon the mobile home in the early stages of the strike and apparently try to enter it as it crossed the line. Mr. Himel says he threatened to fire Mr. Robinson if he did such a thing again.
The Argument
The Union argues that the grievor was dismissed because of his union activity and involvement as a shop steward from 1981 to 1982 and as a picket line captain during this 1985 strike. It was suggested that the only reason why the Company would wait for the last minute of the strike to terminate the grievor was because of his Union activities. It was suggested that the Company was simply waiting for an opportunity to get rid of the grievor. The grievor's conduct on March 22 was submitted to be "no misconduct" so that there must be another, anti-union motivation behind the termination. Further, the Company's failure to reinstate the grievor despite the "no reprisals" clause was said to be an indication of bad faith bargaining. The Board was referred to the case of International Wallcoverings, [1983] OLRB Rep. Aug. 1316.
Counsel for the Company argues that the evidence establishes that the grievor was simply fired because of his threatening conduct on the picket line on March 22, 1985. The fact that no other person holding union office was disciplined or discharged was said to indicate that there was no anti-union motive in this discharge. Further, it was suggested that it is illogical to accept that the Company was "gunning for" the grievor, when the grievor's own evidence is that he was asked repeatedly through the strike to return to work. Finally, it is stressed that the Company was unaware of the grievor's status as a picket line captain and that the grievor's past union activity was of no concern to the Company in this discharge. Regarding the "bad faith bargaining allegations", the respondent submits that both the facts and the O'Shea award make it clear that the terms of the collective agreement reached by the parties were not intended to cover a discharge which had taken place before the contract came into effect. The terms of the Memorandum of Settlement were clearly not intended to be retroactive. Thus, it was submitted that the contract should not be read in such a way that would imply that it could have been breached or sabotaged by the discharge of the grievor the day before it came into effect. Further, the fact that the union has not alleged similar breaches for the discharge of the other employees or the Company's willingness to proceed to criminal courts on charges laid during the strike is said to be evidence that the Union itself recognizes that the "no reprisals" clause was intended to cover the future and not any decisions that had already been made. Counsel referred the Board to its previous decisions in John T. Hepburn Limited, 11985] OLRB Rep. Jan. 75 and to Rehou Plastiks of Canada Limited, [1979] OLRB Rep. Nov. 1104.
The Decision
Section 66 of the Act provides:
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.
- Pursuant to section 89(5) of the Act the respondent is given the burden of establishing that its discharge of the grievor was free of the motivation referred to in section 66:
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.
- The nature of the onus on the respondent was explained in the case of The 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 judgment 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 must 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 "process of inferential reasoning" was discussed 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., 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 Lobour Relations Act has been violated.
The respondent is under no obligation to establish that it had just cause when Mr. Himel discharged Mr. Robinson. The responsibility of the respondent is to satisfy the Board that the discharge was not for any improper motive.
As pointed out above, we have not accepted the employer's recital of the events of March 22 as being completely accurate. There may have been some embellishment on the part of Mr. Himel to strengthen his case or he may have been telling us what was simply his impression of a series of speedy and emotional events. This inevitably raises some question as to the veracity of the respondent's case and its claim to have had no improper motive in the firing.
However, the onus on the respondent is to satisfy us of no improper motive on the balance of probabilities. Weighing all the evidence and the facts that have been established by the evidence, we must conclude that the respondent's decision to discharge Mr. Robinson was not in any way motivated by Mr. Robinson's union activities.
Mr. Robinson's union activities were not very significant in themselves. His duties as a Union steward through 1981 to 1982 were conducted without the suggestion of interference or reprisals from the Company up to a certain point. The grievor's allegation that he then resigned the union position because of threats and intimidation from management simply cannot be accepted at this time. No grievances or complaints were filed by Mr. Robinson or the Union in 1982 despite the fundamental seriousness of those allegations. For such allegations to surface three years later in a case such as this with no prior notice or complaint having been given, casts far too much doubt on the credibility of those allegations. The alleged reprisals for legitimate picket line activities are also unacceptable. First, the grievor's own evidence is that management was continually telling people that their jobs were in jeopardy or "over" because of the strike and that no one took it seriously. Secondly, although the grievor may have been a picket line captain, he was less active than other union members on the line who held no official status and we accept that his status was unknown and not considered by management when the decision was made to fire him. Other picketers who were even more active and who even committed criminal offences on the line were not discharged.
It is possible to speculate that the Company may well have wished to get rid of Mr. Robinson as an employee, especially given their failure to win a discharge arbitration against him in 1983. Employers rarely welcome the obligation of re-employing people who they have tried unsuccessfully to fire. But that does not suggest or imply a motive which is contrary to section 66. It does not even imply that the motive is the reprisal for exercising the right to grieve the discharge. It simply implies that the employer may seize another opportunity to discharge an unwanted employee when and if the situation arises. The function of this Board is not to assess whether such a discharge is just or equitable. Even if it is unfair, this does not mean it is unlawful. But in assessing the reasons actually given by the Company for deciding to fire Mr. Robinson in March, 1985, and considering the question of fairness for the purposes of assessing the true reasons of the employer's conduct, it cannot be forgotten that the discharge was allegedly for violent and intimidating conduct towards those performing work for the employer during the strike. Again, as pointed out in the Hepburn decision, an employer's interest in the safety and wellbeing of its work force is well recognized. In Gates Rubber of Canada Limited, 1978 CanLII 3457 (ON LA), [1978] 18 L.A.C. (2d) 412 (O'Shea) this well-established proposition was set forth:
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.
By the grievor's own admission, he entered the van partially for the purpose of trying to see who was in there. He tried to open the protective gauze curtains. He knew or had to have known that this would intimidate the passengers. This may well have been why he did it. It is reasonable to assume that the employer would discipline him for such conduct. Indeed, when he had done a similar act once before, he had been told that he could be fired for this.
The evidence does not support a conclusion that the employer's decision was motivated by any of the grievor's Union activities. We are satisfied that it is more probable than not that the respondent's decision to discharge the grievor was not a response in any way to Mr. Robinson's Union activities but instead was a response to his conduct at the van on March 22.
With regard to the allegations that the Company has breached the Act by its failure to reinstate the grievor in the face of the "no reprisals clause" this too cannot be accepted. The Memorandum of Settlement is clear on its face to have only prospective effect. It is unfortunate that the parties did not turn their minds to the question of Mr. Robinson's discharge in their final negotiating meeting of March 23, 1985 50 that the issue could have been discussed as is often the case in the final stages of a strike. But the Company's failure to notify the union of the discharge is not in itself a breach of the Act. Nor, do we imply any sinister conduct in that regard. The fact that the Union has not challenged the continuing criminal proceedings against others does seem to indicate a recognition that such decisions made during the strike were not affected by the "no reprisals" clause.
Therefore, we find no evidence to support a finding that there has been a breach of sections 1(2), 3, 15, 64, 66 or 70 of the Act. In all the circumstances, the complaint is dismissed.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
I dissent.
On my assessment of the evidence I would have found the company in violation of section 66(a) of the Act, which reads as follows:
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;