[1986] OLRB Rep. November 1493
0204-84-M; 0205-84-M; 0393-84-U; 2602-84-M; 2603-84-U International Union of Elevator Constructors, Local 50, Applicant/Complainant, v. Beckett Elevator Limited, Respondent
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members I. M. Stamp and S. O'Flynn.
APPEARANCES: Barry Chercover for the applicant/complainant; Robert J. Atkinson for the respondent.
DECISION OF THE BOARD; November 18, 1986
The Board issued a decision in these matters on June 25, 1986 in which it concluded that the respondent had violated sections 64, 66 and 80 of the Labour Relations Act. The respondent was directed to compensate Mr. T. McCann and Mr. M. Ferron for their losses resulting from the respondent's unlawful conduct. The parties subsequently reached agreement on the amount of compensation payable to Mr. Ferron. They were unable, however, to agree on the amount of compensation owing to Mr. McCann. Accordingly, that matter came on for hearing before the Board on October 24, 1986.
Prior to the events giving rise to these proceedings, Mr. McCann and Mr. Ferron had been employed as elevator mechanics by Ajax Elevator ("Ajax"). In December of 1983 the respondent purchased Ajax. The respondent decided that it would "hire" all of the elevator mechanics employed by Ajax, except for Mr. McCann and Mr. Ferron. The applicant trade union filed a grievance on behalf of Mr. McCann and Mr. Ferron, and referred the grievance to the Board pursuant to the provisions of section 124 of the Act. The grievance was based on the claim that the respondent was a successor employer to Ajax, and that Mr. Ferron and Mr. McCann continued as employees of the respondent who had been improperly laid off. The matter came on for hearing before a differently constituted panel of the Board on or about January 20, 1984. That panel issued an oral ruling holding that the respondent was in fact a successor employer to Ajax. The Board further directed that the respondent reinstate Mr. Ferron and Mr. McCann and pay them their back wages. The two employees were reinstated on or about January 23, 1984.
As detailed in the Board's previous decision, after their reinstatement Mr. McCann and Mr. Ferron were singled out for special treatment by Mr. A. Hopkirk, the respondent's Vice-President of Operations. On a number of occasions the two employees were assigned to work as helpers at 80 per cent of a mechanic's rate. It appears that in every instance where a mechanic had to be reassigned to work as a helper, either Mr. McCann or Mr. Ferron was selected, even over newly-hired mechanics. The collective agreement binding on the parties provides that an employer has a wide latitude in deciding which mechanics are to be assigned to work as helpers. Notwithstanding this fact, the Board was not satisfied with the bona fides of Mr. Hopkirk's explanation as to why Mr. Ferron and Mr. McCann were the ones constantly selected. After pointing out certain difficulties with Mr. Hopkins' evidence, the Board in its decision of June 25, 1986 made the following comments:
As indicated in the Barrie Examiner and Pop Shoppe cases, given the reversal of onus of proof in matters such as this, an employer is required to satisfy the Board as to what prompted its actions that detrimentally impacted on an employee, and that the reasons were not tainted by an illegal motive. Given the facts of this case, we are not satisfied that Mr. Hopkirk's evidence as to why Mr. McCann and Mr. Ferron were the ones to continually be selected to be reassigned to work as helpers can be accepted at face value. Another possible explanation is that Mr. McCann and Mr. Ferron were singled out for special treatment because of the action of themselves and the applicant in successfully challenging the respondent's decision not to hire them in the first place. If this is what prompted the respondent's actions, the respondent would be in breach of sections 64, 66 and 80 of the Act. Particularly given that we are unable to accept Mr. Hopkirk's evidence as to why Mr. Ferron and Mr. McCann were continually selected as the ones to be assigned to work as helpers, we are led to conclude that Mr. Hopkirk, and through him the respondent, has not discharged the section 89(5) burden of proving that it did not act contrary to the Act as alleged.
As already indicated, the parties were able to agree on the amount of compensation payable to Mr. Ferron. Accordingly, we need concern ourselves only with the details of the earlier proceedings insofar as they relate to Mr. McCann. As already noted, Mr. McCann was reinstated by the respondent on or about January 23, 1984 in response to the Board's oral direction of January 20th. Mr. McCann was initially assigned to work with Mr. Ferron performing safety checks, even though another mechanic who started with the respondent at about the same time was assigned to his own maintenance route. On or about March 2, 1984, all of the former employees of Ajax were measured for uniforms by the respondent. The uniforms were delivered during the early part of April. No uniform was delivered for Mr. McCann. The only other employee who did not receive a uniform at the time was Mr. Ferron.
During March of 1984, Mr. McCann was assigned to work as a mechanic filling in for other mechanics who were away from work. On or about April 2, 1984 Mr. Rothenboker, a field supervisor with the respondent, advised Mr. McCann that he was being assigned to work as a helper at 80 per cent of the mechanic's rate. Mr. Rothenboker advised Mr. McCann that he personally was happy with Mr. McCann's work, and that he was just following instructions. The applicant grieved Mr. McCann's assignment and referred the grievance to the Board. The matter was scheduled to be heard by the Board on May 4, 1984. Two days prior to the hearing date, Mr. McCann was assigned to work as a mechanic. The hearing scheduled for May 4th did not occur, but rather was adjourned at the request of the parties. On May 7th, Mr. McCann was again assigned to work as a helper.
On May 7, 1984 Mr. McCann was advised that Mr. Hopkirk wanted to meet with him. According to Mr. Hopkirk's own evidence, he asked Mr. McCann what he was doing with a grievance, and stated that if Mr. McCann was going to play hard ball, the respondent was going to play hard ball too. Both Mr. McCann and Mr. Hopkirk testified that during the meeting Mr. Hopkirk indicated that he had no problems with Mr. McCann's work. The meeting ended with Mr. Hopkirk advising Mr. McCann that he would try to straighten things out, and with him shaking Mr. McCann's hand. On May 11, 1984, Mr. McCann was assigned to work as a mechanic.
On November 16, 1984 Mr. Wazney, one of the respondent's field supervisors, advised Mr. McCann that he was being assigned to do construction work. Construction work is different from, and at times a lot heavier than, the maintenance work Mr. McCann had been performing. Mr. McCann asked if he was to be working at 80 per cent. Mr. Wazney replied that he did not know, but would try to find out. Mr. Wazney advised Mr. McCann that the transfer was not his idea, and that he was only doing what he was told. Later that day, Mr. Caldwell, the respondent's construction manager, advised Mr. Mccann that he would be working as a helper. Mr. McCann advised Mr. Caldwell that he would not accept 80 per cent, to which Mr. Caldwell replied that he had no work for Mr. McCann as a mechanic and accordingly he was being laid off. The relevant collective agreement expressly provides that a mechanic who is assigned to work as a helper may instead take a layoff.
At the hearing on October 24, 1986, Mr. McCann gave evidence as to why he had elected to take a layoff rather than work as a helper at 80 per cent of a mechanic's rate. According to Mr. McCann, he had never previously encountered difficulties at work, and found that the respondent's treatment of him, which he viewed as harassment, was resulting in him becoming short tempered with his family. Mr. McCann testified that at the time he was aware that no maintenance mechanics belonging to the union were out of work. This led him to conclude that by going through the union hiring hall he would likely be able to get a job working as a mechanic. Mr. McCann added that he was not aware of any case where a maintenance mechanic had been unemployed for more than a week or ten days, and in the circumstances he felt he would be sent out to work within a couple of days.
Mr. Ernest Shaw was the applicant's acting business agent at the relevant time. Mr. Shaw testified that when Mr. McCann advised the union he was available for work, he was the only mechanic "on the bench". According to Mr. Shaw, in the elevator industry it is not unusual for there to be full employment for mechanics, some of whom may actually be assigned to work as helpers. Mr. Shaw further testified that at the relevant time, mechanics were usually on the bench for only a few days before a job opened up for them.
About one week into Mr. McCann's layoff, another elevator company asked the applicant to send it two mechanics. Before Mr. McCann could report for the job, however, the request was withdrawn. No further openings, for either a mechanic or a helper, occurred until February 1985, when Mr. McCann went to work as a mechanic. Mr. McCann was thus unemployed for about three months. It is clear from the evidence that such a long wait for a job was unusual and could not reasonably have been anticipated.
The respondent has compensated Mr. McCann for the time that he worked as a helper by paying him the additional 20 per cent he would have earned had he been working as a mechanic, plus interest. At issue is the period between November 1984, when Mr. McCann elected to take a layoff rather than again work as a helper, and February 1985 when he obtained employment as a mechanic with another company. The respondent has paid Mr. McCann an amount equivalent to 20 per cent of the mechanic's rate for this period. According to the respondent, Mr. McCann failed to mitigate his losses by working for it as a helper at 80 per cent, and accordingly, there is no need for the company to pay the full amount of his lost wages. As an alternative but related ground, the respondent contends that the damages flowing from its breach of the Act in assigning Mr. McCann to work as a helper were limited to 20 per cent of a mechanic's rate in that it was Mr. McCann's own decision to take a layoff which resulted in him losing the remaining 80 per cent. The respondent notes in this regard that Mr. Ferron always accepted assignments to work as a helper, including an assignment to work as a helper on construction work. For its part, the applicant contends that Mr. McCann is entitled to his full salary for the period between his layoff and new employment. In support of this position the applicant relies on the Common Law principle of constructive dismissal which allows an employee whose terms and conditions of employment have been substantially altered to treat his contract of employment as having been repudiated by the employer. The applicant also relies on a line of cases which indicate that an employee is generally not required to mitigate his losses by accepting other employment with the company that has constructively dismissed him. Although this point was not addressed by the parties, the cases indicate that this latter principle arises, at least in part, out of a concern that the acceptance of a different job from an employer might be viewed as a settlement with the employer, leaving the employee with no cause of action. See: Washer v. British Columbia Toll Highway & Bridges Authority (1965), 1965 CanLII 541 (BC CA), 53 DLR (2d) 620 (B.C.C.A.).
The Board has long required that victims of unfair labour practices take reasonable steps to mitigate their losses. Given the significant distinctions between a civil action for wrongful dismissal and a section 89 complaint in respect of an unfair labour practice, however, the Board has indicated that Common Law principles relating to mitigation will not always be applicable. Rather, the Board is concerned only that an employee act reasonably to mitigate his damages. What is reasonable depends on the circumstances of each particular case. See: Sutton Place Hotel, [1980] OLRB Rep. Aug. 1250; Offset Make Up Ltd., [1969] OLRB Rep. Dec. 1152; Bond Place Hotel, [1983] OLRB Rep. Jan. 24. and Wilco-Canada Inc., [1983] OLRB Rep. June 9. The respondent relies on the decision in Wilco-Canada as supporting its claim that Mr. McCann should have agreed to work as a helper. In that case the Board concluded that a number of unlawfully discharged employees should have mitigated their losses by accepting the employer's offer of reinstatement, which offer expressly reserved to the employees their right to continue proceedings before the Board. In line with the Board's reasoning in Wilco-Canada, we recognize that where an employee has been unlawfully reassigned to work at a lower pay, it may be reasonable for him to mitigate his losses by working at the lower rated job pending the outcome of proceedings before the Board. However, in certain circumstances, another course of action might also be reasonable. We believe this to be such a case.
The respondent unlawfully discriminated against Mr. McCann over an extended period of time. From the comments of Mr. Wazney, Mr. Rothenboker and Mr. Hopkirk, Mr. McCann was aware that the respondent's actions were not due to dissatisfaction with his work. He also knew that the respondent was prepared to play "hard ball" in its dealings with him. Presumably the respondent's goal was to get Mr. McCann to leave the respondent's employ or, if he stayed, to stop exercising his lawful rights to challenge the respondent's conduct. In these circumstances it is understandable that Mr. McCann turned his mind to ascertain whether some avenue other than accepting another reassignment was open to him. As it turned out, another reasonable avenue did appear available, namely to take a layoff from the company. This would bring to an end the strains associated with working for the respondent and allow Mr. McCann to obtain employment at 100 per cent of a mechanic's rate. It was reasonable at the time for Mr. McCann to believe that the wait for a new job would be brief, a matter of a few days. Given the pattern of the respondent's unlawful conduct and the reasonable likelihood of alternate employment with another firm in a short period of time, we are satisfied that Mr. McCann's action in severing his employment with the respondent was not unreasonable. Further, in that Mr. McCann's reasonable expectation was that he shortly would be receiving 100 per cent of a mechanic's salary, his actions also involved a reasonable attempt to mitigate his losses. As it happened, the period after Mr. McCann took his layoff was atypical in that the union received no manpower requests for a three-month period. In our view, however, this does not detract from the reasonableness of Mr. McCann's decision at the time he made it.
Having regard to the foregoing, we are satisfied that Mr. McCann is entitled to full compensation from November 14, 1984, when he was unlawfully reassigned to work as a helper, until the time he commenced employment with a new employer. The Board will remain seized of this matter in the event there is any dispute as to the actual amount of compensation involved.