[1987] OLRB Rep. August 1056
3060-86-U Toronto Typographical Union No. 91, Complainant v. Burlington Air Express (Canada) Ltd., Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members G. 0. Shamanski and L. Lenkinski.
APPEARANCES: Nelson Roland, Douglas W. Grey, Robert Miller, Ian W. Taylor and Joe Bigeau for the applicant; David L. Brisbin, Win. Machika and Guy Cranston for the respondent.
DECISION OF JUDITH MCCORMACK, VICE-CHAIR, AND BOARD MEMBER L. LENKINSKI; August 31, 1987
The name of the respondent is amended to read: "Burlington Air Express (Canada) Ltd.".
This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the respondent contravened sections 80(1) and 66 of the Act by refusing to re-employ Robert Miller as a result of his testimony on behalf of the complainant in previous proceedings before the Board, and his picketing activities during a lengthy lockout.
The respondent operates an air express and air freight business in which Mr. Miller commenced employment as a warehouse employee in September of 1984. His duties in this regard involved loading and unloading trucks and containers and some order picking. Mr. Miller worked until May 8, 1985, when the respondent locked out its employees in the course of a labour dispute. A picket line was established by the union at that time and Mr. Miller appears to have been a regular picketer throughout the fourteen-month period of the lockout.
In the course of that dispute, the union initiated a number of proceedings before the Board, including complaints under section 89 of the Labour Relations Act, a complaint under the Occupational Health and Safety Act, and applications under sections 93 and 40a of the Labour Relations Act. These matters were eventually consolidated for hearing and culminated in two decisions of the Board, Burlington Northern Air Freight (Canada) Ltd., unreported, Board File No. 0819-86-FC, July 10, 1986 and Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Dec. 1628. Although it is difficult to summarize these decisions, particularly the latter which is comprehensive and detailed, it is possible to say briefly that the union was substantially successful in its claims. As a result, the Board made a number of remedial orders and directions.
The evidence before us indicated that Mr. Miller testified on behalf of the union in the course of those proceedings. His testimony took approximately two hours and primarily addressed a reduction in his hours of work and a conversation he had with Greg Richard, a district operations manager for the respondent. Among its many findings, the Board made the following determinations with respect to those events (Burlington Northern, Dec., supra):
Certain actions that were taken by management following certification also heightened the Union's anxiety about the implications of the Company's proposals. In mid December of 1984, the Company eliminated a driver's position and a warehouseman's position on the day shift. The two employees whose positions were eliminated bumped two other employees with less seniority. One of them (Allen Proulx) bumped a warehouseman (Dale Robertson), who was then demoted from "full-time" employment (with full benefits) to "part-time" employment. Following his demotion, he worked between 35 and 40 hours per week without benefits. (No employees were laid off as a result of that change, because two low seniority employees left the employ of the Company the week before the change.) Furthermore, the Company reduced Robert Miller and Dan Poutsoungas to 24 hours of work per week. Prior to that reduction, those two warehouse workers had each generally averaged approximately 32 hours of work per week for Burlington. (They were initially hired by Burlington in late September of 1984 as temporary employees, to assist the warehouse staff in handling a large volume of automotive promotional material which required distribution on behalf of one of the Company's customers. However, following a four-day lay-off at the end of November, they were called back to work because they were needed to help unload trucks.) When Mr. Taylor, who was their lead hand, complained to Mr. Evans about that reduction, which had made it more difficult for Mr. Taylor and the others on his shift to complete all the necessary work, Mr. Evans confirmed Mr. Taylor's suspicion that their hours had been reduced "because of the Union", so as to remove them from the bargaining unit. (Mr. Miller subsequently returned to the bargaining unit when his supervisor arranged for him to obtain more hours of work with the Company by switching hours with his brother Steven, who had another job in addition to his position with Burlington.)
In reducing the hours of work of Mr. Miller and Mr. Poutsoungas "because of the Union", the respondent contravened sections 64 and 66 of the Act. The same is true of Mr. Robertson's demotion, which was also motivated at least in part by anti-union considerations. Under the circumstances, it is unnecessary to determine whether those actions were also violative of section 79.
When Mr. Richard handed that memo to Claudio Cristini, he asked him if he fully understood the last paragraph, and stated that it was Mr. Cristini's choice to go in and sign the contract by himself or with other people. Robert Miller was also given a copy of that memo by Mr. Richard on May 7 when Mr. Miller arrived at the warehouse to begin work at 4:00 p.m. Approximately two hours later, Mr. Richard approached Mr. Miller in the warehouse and asked him if he had switched hours with his brother (Steven Miller). After Mr. Miller confirmed that he had done so, Mr. Richard asked him when that had occurred. When Mr. Miller indicated that the switch of hours had been in place for about a month, Mr. Richard stated that Mr. Miller had not yet completed his probationary period "by working regular hours". Mr. Richard also told him that he had the option of either accepting the Company's offer or being locked out, but added that if he did not accept the offer, his employment could be terminated in view of his probationary status. Although Mr. Miller elected not to accept the offer (and was locked out with
the rest of his co-workers), he had not been discharged by Burlington as of January 7, 1986 when he testified before the Board in these proceedings, nor is there any evidence that he was subsequently discharged by the Company. Nevertheless, it is clear that the respondent, through Mr. Richard, contravened section 66 of the Act by suggesting that Mr. Miller might be dismissed if he declined to accept the Company's final offer.
The following remedies ordered by the Board relate in some part to those findings:
For the foregoing reasons, the Board, in the exercise of its remedial discretion under sections 89 and 93 of the Labour Relations Act, and section 24 of the Occupational Health and Safety Act, hereby declares that the respondent has contravened sections 15, 64, 66, 70, and 79 of the Labour Relations Act, and section 24(1) of the Occupational Health and Safety Act, and hereby directs that the respondent:
(1) cease and desist from contravening sections 64, 66, and 70 of the Labour Relations Act, and section 24(1) of the Occupational Health and Safety Act;
(2) pay to the Union, and to bargaining unit employees, compensation for their respective losses resulting from the respondent's unlawful acts and omissions, including, but not limited to:
(ii) bonuses and other losses resulting from the respondent's contraventions of section 66 of the Act;
(5) compensate Robert Miller and Dan Poutsoungas for wages and benefits lost as a result of the respondent's unlawful reduction of their working hours;
(8) pay interest on the compensation ordered by the Board, such interest to be calculated (in respect of wages and other losses which accrued over a period of time) in accordance with Practice Note 13, dated September 8, 1980; and
(9) post copies of the attached notice marked "Appendix"~ after being duly signed by an authorized representative of the respondent, in conspicuous places at its Toronto station, where they are likely to come to the attention of bargaining unit employees, and keep them posted for sixty consecutive working days. Reasonable steps shall be taken by management to ensure that the notices are not altered, defaced, or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the Union so that it can satisfy itself that this posting requirement is being complied with.
- The Notice to Employees ordered by the Board contains the following paragraph:
We have posted this notice in compliance with an order of the Ontario Labour Relations Board issued after a hearing in which we, Rick Best, and the Toronto Typographical Union, Local 91 (referred to in this Appendix as the "Union") participated. The Ontario Labour Relations Board found that we violated the Labour Relations Act by various acts and omissions, including failing to follow established practices regarding shift bids, annual pay increases, ninety-day reviews for probationary employees, uniforms, and discipline; using written warnings and suspensions to punish employees for having unionized; reducing the working hours of Robert Miller and Dan Poutsoungas, and subsequently discharging Mr. Poutsoungas; demoting Dale Robertson; failing to bargain in good faith and make every reasonable effort to make a collective agreement; and unlawfully locking out bargaining unit employees.
- The lockout came to an end in July of 1986 after the Board directed the settlement of a first collective agreement in Burlington Northern, July, supra and Mr. Miller returned to work. On September 23, 1986, he wrote the following letter to the company:
Due to acceptance of a recent job offer, I will terminate employment (day shift), at Burlington Northern, on Friday October 3, 1986.
Viable options, such as working on weekends or during the afternoon shift (starting time of 1900 hours), will allow me continuous employment with the company.
Your response to the aforementioned arrangements will be appreciated.
His last day of work was October 3, 1987.
Subsequently both Joe Bigeau, then vice-president and international organizer for the complainant, and Ian Taylor, the complainant's chapel chairman, raised the possibility of Mr. Miller being re-hired as a part-time employee on a number of occasions with various members of management. In October, Mr. Taylor approached Al D'Oliveira, the day warehouse supervisor, and advised him that Mr. Miller wished to work on a part time basis. At that time, employees were working a considerable number of overtime hours on Saturdays and Sundays and Mr. Taylor asked Mr. D'Oliveira if he had any objections to Mr. Miller working on Saturdays. Mr. D'Oliveira replied that he had no objections and said that he would check it out and get back to Mr. Taylor. A week later he told Mr. Taylor that it seemed "okay" to him, but that Mr. Miller would have to come in, fill out a new application form and leave it with the night operations manager, Naida Maynard. Mr. Taylor then relayed this information to Mr. Miller. Some time later, Mr. Taylor approached Mr. D'Oliveira again and asked him whether Mr. Miller would be hired or not. Mr. D'Oliveira replied that he couldn't hire him.
Mr. Taylor then went to Mr. D'Oliveira's superior, Bob Erent, and told him that he didn't understand what was going on since Mr. D'Oliveira, who usually did the hiring, had no complaints about Mr. Miller but said that he couldn't re-hire him. Mr. Erent told Mr. Taylor that he would check into it and asked him to come back the next day. When Mr. Taylor returned the following day, Mr. Erent informed him that there was nothing that he could do, and that the matter was out of his hands. Mr. Taylor then took up the problem with Greg Richard, the respondent's district operations manager who represented the next level of management. He also agreed to look into the matter, although he did not subsequently get back in touch with Mr. Taylor. Both Mr. Erent and Mr. Richard left the employ of the respondent on October 15th and October 13th respectively. At the same time, Mr. Bigeau was also pursuing part-time work for Mr. Miller with the respondent. When he approached Mr. Richard in this regard, the latter replied by putting up his hands and saying that it was not really up to him.
Mr. Bigeau then raised the issue again at a labour management meeting in December with William Machika, the respondent's Canadian managing director. No response was forthcoming. At some point in the fall another union official, Doug Grey, made a similar request of Guy Cranston, the respondent's regional manager for Ontario and Manitoba. Mr. Cranston refused to discuss the matter as Mr. Miller was no longer in the bargaining unit. On November 13th, Mr. Miller filled out a new application for employment and left it on Ms. Maynard's desk. On November 15th, the respondent hired Peter Calandra to work solely on Saturdays in the warehouse. Mr. Calandra had worked for the respondent previously when he was hired to replace regular employees during the lockout. He was laid off as a result of the end of the lockout and the return to work of regular employees.
The evidence before us indicates that the usual hiring process at the time involved either Mr. D'Oliveira or other warehouse supervisors making effective recommendations to Mr. Richard or Ms. Maynard who would then make the formal decision. None of the people normally involved in hiring in this manner testified before us, nor did anyone who was identified as having made either an effective recommendation or the actual decision not to re-hire Mr. Miller. However, Mr. Machika gave evidence with respect to his views as to why Mr. Miller had not been hired and suggested a number of reasons in this regard.
We have a number of concerns about the presentation of the respondent's reasons for not hiring Mr. Miller in this manner. Section 66 provides 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;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
Section 80(1) sets out the following:
No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose pecuniary or other penalty on a person,
because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.
Section 89(5) further provides:
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.
In The Barrie Examiner, [1975] OLRB Rep. Oct. 745 the Board describes the nature of the onus in proceedings such as this:
What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer.. .did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of the jurisprudence, see Delhi Metal Products Ltd. [19741 OLRB Rep. March 450. In other words, the appearance of a legitimate reason for a discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, 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 there 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 this case, Mr. Machika did not claim either to have made the decision not to hire Mr. Miller or to have been informed of the reasons by someone who was. Rather, it appeared that Mr. Machika' s views were more in the nature of educated speculation. In his testimony, he identified Mr. Richard as the person who was responsible for hiring at the time in question.
The evidence of the person who made the decision not to hire Mr. Miller is critical in this case. We cannot be satisfied in the circumstances before us that the reasons for not hiring Mr. Miller were free from anti-union animus unless we have an opportunity to hear what those reasons actually were. Although we note that both Mr. Erent and Mr. Richard have since left the employ of the company, neither this fact nor any other reasons was advanced for the failure of a witness to testify in this regard. As a result, it is difficult to avoid the inference that the evidence which might have been given would have been unfavourable to the respondent or would not have supported its position. In this regard, the Board has previously adopted the following passage from the headnote of Holmes v. Alexon, 1974 CanLII 677 (ON HCJ), [1975] 7 O.R. (2d) 11 in McGregor Hosiery, [1976] OLRB Rep. Oct. 583 and B. & S. Furniture Manufacturing Limited, [1980] OLRB Rep. May 645:
Where a party or witness fails to give evidence which was within his power to give and by which relevant facts might have been elucidated, the court is justified in drawing the inference that the evidence which might have been given would have been unfavourable to the party to whom the failure is attributed.
In light of both the burden of proof upon the respondent and the questions raised by the evidence that was presented in this case by the complainant, we find that the evidence adduced on behalf of the respondent is insufficient to satisfy us that on the balance of probabilities, its conduct was wholly free from anti-union animus.
We also find the reasons suggested by Mr. Machika for the refusal to hire Mr. Miller unconvincing. Firstly, Mr. Machika told the Board that the fact that Mr. Miller was only available at certain times, that is, either on weekends or starting at 7:00 p.m. on the afternoon shift, would create problems for the respondent. Considerable evidence with respect to whether there was work available at these times was adduced by both parties. The evidence led by the complainant indicated that employees were annoyed because they were working so much overtime on weekends, and that the complainant had raised this problem with the respondent on several occasions. The respondent's evidence indicated that the overtime hours were necessary to cover contingencies such as absent employees, a problem which was not amenable to the hiring of more staff because of the irregular incidence of absenteeism. In the circumstances of this case, it is unnecessary for us to address the matter of overtime as the hiring of Mr. Calandra during the period in question solely for Saturday work demonstrates both that there was work available and that it was available on the terms Mr. Miller desired. Thus we find the decision to employ Mr. Calandra tends to undermine the respondent's assertions with respect to the availability of work for Mr. Miller.
Secondly, it was suggested that Mr. Miller was not sufficiently aggressive to handle the job in terms of individual initiative. Mr. Machika conceded that Mr. Miller had an unblemished record, although he testified that he was only an average employee. Since he did not supervise Mr. Miller, he drew his conclusions in this regard both from a personnel file which he reviewed in preparation for the hearing, and from what he considered to be Mr. Miller's failure to pursue part-time employment with the respondent vigorously enough.
We find these reasons similarly unpersuasive. The personnel file in question appears to have contained very little information, and nothing specifically related to Mr. Miller's aggressiveness or initiative. Mr. Miller appears to have taken normal steps to apply for employment, and he told the Board that he was relying on Mr. Taylor and Mr. Bigeau to pursue the matter on his behalf because he was trying to "do things through the proper channels". Given the persistence of Mr. Bigeau and Mr. Taylor in this regard, we find it difficult to understand how the respondent could conclude from the sequence of events described above that Mr. Miller was not aggressive enough for what was essentially a warehouse/driver job. Mr. Machika also agreed that he knew nothing about Mr. Calandra's job performance.
In addition Mr. Machika testified that the respondent wanted employees with "D" drivers' licences as this is a requirement under the collective agreement, a qualification which Mr. Miller does not possess. However, it was common ground that the part-time work requested by Mr. Miller was not covered by the collective agreement, which in any event gives new employees up to ninety days to acquire such a licence. We note that this reason, like those above, was not mentioned by the various members of management during any of the conversations described earlier with respect to Mr. Miller.
Counsel for the respondent argued that Mr. Miller's testimony was such a minor part of the lengthy hearings and such a small part of the ultimate decision that we should conclude it had little impact and would not have prompted the respondent to refuse to hire him for this reason. In addition, it was noted that other employees who had both testified and picketed had not suffered any reprisals. We find these facts inconclusive. While it is clear that Mr. Miller's testimony was only one part of very extensive proceedings, we are not prepared to speculate as to the effect it might have had on the Board. There is no doubt that Mr. Miller did testify, and that findings unfavourable to the respondent were made with respect to events about which he testified. These facts, together with the implausibility of the reasons advanced by the respondent for the decision not to hire Mr. Miller and the speculative manner in which those reasons were presented leave us unable to conclude that Mr. Miller's activities played no role in the respondent's decision.
The fact that other employees who testified or picketed have not been subjected to reprisals is not insignificant. However, there was no evidence that any of these other employees had placed themselves in Mr. Miller's vulnerable position by resigning and reapplying for employment. In these circumstances we do not find the comparison to be particularly telling.
For the foregoing reasons we find that the respondent has violated sections 66 and section 80(1) of the Labour Relations Act, and we hereby direct that the respondent:
a) forthwith offer a part-time position without discrimination to Mr. Miller;
b) pay to Robert Miller compensation for any loss of wages and benefits as a result of the respondent's failure to employ him;
c) cause copies of the attached notice marked Appendix as supplied by the Board to be signed by an authorized representative of the respondent and posted in conspicuous places on its premises and keep such notices posted for sixty (60) working days and take all reasonable steps to ensure that the notices are not altered or defaced or covered by any other material; and
d) provide reasonable access to a representative of the complainant from time to time during the aforesaid sixty (60) day period to permit the complainant to satisfy itself that the respondent has complied with the posting order in paragraph (c).
- The Board remains seized to resolve any dispute with respect to implementing this decision.
DECISION OF BOARD MEMBER G. O. SHAMANSKI;
- I am satisfied that on the basis of the evidence before this Board, there was no anti-union animus on the part of the Company with respect to not re-employing R. Miller in the capacity of a part-time employee for the following reasons:
It was without reservation that R. Miller did on September 13, 1986 voluntarily submit to the Company his resignation to be effective October 3, 1986 to accept employment elsewhere.
His written resignation to the Company did in part orchestrate a desire to obtain part-time employment with the Company. The part-time work he was seeking specified:
Ex II Viable options, such as working weekends or during the afternoon shift. (starting time of 1900 hours), will allow me to continue employment with the Company.
First of all, Miller resigned from the Company's employ to accept employment with the Toronto Board of Education as a library clerk. In the next breath he says he wants to continue employment with the Company. This would lead one to ponder where Miller's loyalties are.
It should be noted that in response to a question on the application for employment form. If necessary, are you willing to work overtime. Mr. Miller's written response was to be discussed. In dictating restrictive conditions, i.e. starting time - weekends - ambiguous response to availability for overtime work. Mr. Miller did not enhance his profile as a reliable candidate for employment consideration.
One would assume from his voluntary resignation that he automatically severed his relationship with the Company and was certainly not in a position to dictate terms of re-employment under any circumstances.
Mr. Miller's only ongoing contact with respect to obtaining part-time work with the Company following his resignation was with Joe Bigeau, Vice-President & International Organizer TTU #91 and Ian Taylor, the TTU #91 Chapel Chairman. It would be prudent to note at this juncture that the part-time work Miller was seeking with the Company is not within the scope of the 'ITU bargaining rights. Neither Bigeau or Taylor are entrusted with the authority to hire people for the Company nor was it established throughout any of these proceedings that either of these two persons were respected for their resources in recommending people for employment to the Company.
The relationship of the parties has been strained over the past few years. Considering this fact one may well cogitate is there an ulterior motive on the Union's part in this whole scenario?
I would attach little weight to the remiss of the Company in not calling Erent or Richard as witnesses in this case.
For the aforementioned reasons, I would have dismissed the complaint.