[1989] OLRB Rep. May 412
2934-88-U Local 280 of the International Beverage Dispensers' and Bartenders' Union of the Hotel & Restaurant Employees' & Bartenders' Int'l Union, Complainant v. 446285 Ontario Limited c.o.b. Beresford Tavern, Respondent
BEFORE: Paula Knopf, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: R. W. Kuszelewski, James Jackson and Gerry Whitman for the complainant; Daniel A. Sinclair, Bill Gogos and Rod Cipparone for the respondent.
DECISION OF PAULA KNOPF, VICE-CHAIR AND BOARD MEMBER J. A. RONSON; May 15, 1989
This is a complaint alleging breaches of sections 64, 66 and 70 of the Labour Relations Act. The complaint alleges that Gerald Whitman was discharged from his employment as a bartender/waiter as a result of his union involvement and attempts to assert his rights under the collective agreement and the Act. The respondent answers the complaint by alleging that Mr. Whitman was discharged during his probationary period because of reports received about theft and complaints from customers and other employees about Mr. Whitman's conduct.
Given the nature of the complaint and statutory onus upon the respondent, we heard the evidence of the respondent first. The respondent had three witnesses to testify. These were the owner of the premises and two long-term employees. Bill Gogos had been a waiter for eleven years at the Beresford Tavern. He testified that he advised the tavern owner, Rod Cipparone, about statements made by Mr. Whitman to the effect that he intended to bring about changes to the establishment once the thirty-day probation period had been passed.
Daniel Sinclair also testified on behalf of the respondent. He has worked seven and half years at the tavern. He is the union's shop steward and gave more detailed evidence. He testified about a number of discussions and events involving Mr. Whitman in the last week of his employment that Mr. Sinclair related to Mr. Cipparone. Only the relevant incidents need to be recorded here. Specifically, Mr. Sinclair described that on or about the Wednesday of Mr. Whitman's last week of employment. Mr. Whitman discussed bringing his own bottle of vodka and orange juice to drink at the bar rather than paying for his drinks. Further, Mr. Sinclair told of Mr. Whitman mentioning that when his thirty-day probation period was up, "everything would change at the Beresford." Mr. Sinclair admitted that Mr. Whitman never specified what was meant by that. Mr. Sinclair also told of an incident when Mr. Whitman was working as bartender. Mr. Sinclair said that he gave Mr. Whitman payment for an order which included two $1.00 soft drinks. Mr. Sinclair said that he never saw the cash for the soft drinks being run into the cash register whereas the other items were entered. Further, when he questioned Mr. Whitman about it, Mr. Whitman was said to have told Mr. Sinclair to "be quiet" so that another employee would not overhear the transaction. Very shortly thereafter, Mr. Whitman offered Mr. Sinclair a drink from the bar. When Mr. Sinclair asked if Mr. Whitman was paying for the drink, Mr. Whitman said to his reply "don't worry, Rod [the tavern owner] will pay." Finally, Mr. Sinclair related that he had overheard a couple of complaints from customers regarding Mr. Whitman's attitude towards them when he was acting as a waiter.
Mr. Sinclair testified that he related all these incidents to Mr. Cipparone on or about Thursday, February 17th. Mr. Cipparone confirmed this in his own testimony. He also related how he had had discussions with Mr. Whitman prior to hiring him and through these became aware of the fact that Mr. Whitman had been actively involved with the Bartenders' Union and had run for executive office at one point. Mr. Cipparone then hired Mr. Whitman as a bartender/waiter because of a shortage of staff and the need for experienced assistance. Mr. Cipparone said that he heard complaints about Mr. Whitman through his staff very early on about Mr. Whitman's intention to bring about changes as soon as the probationary period had concluded. Mr. Cipparone said that he did not react right away to any of this and there is no evidence to suggest that he was particularly troubled by this at the time. However, when Mr. Cipparone heard the information from Mr. Sinclair which is related above he reflected upon it for a day or two and then claimed that he decided to fire Mr. Whitman on February 18th "for stealing my stock." Mr. Cipparone said he relied completely upon the word of Mr. Sinclair in making the decision. Mr. Cipparone did not undertake any independent investigation of the alleged theft or the misappropriation of property although he had done so on previous occasions. Mr. Cipparone also admitted that he had been told by other employees of Mr. Whitman's comment that he intended to change things after the probationary period was passed. Mr. Cipparone related his differing views with Mr. Whitman on the owner's responsibilities under the collective agreement and that he did not consider Mr. Whitman's views to be valid or enforceable. So Mr. Cipparone swore that no anti-union animus or Mr. Whitman's attempts or threats to enforce collecting bargaining rights entered into the decision to terminate.
In response, Mr. Whitman testified and explained his long standing and active participation with the union. He admitted discussing this with Mr. Cipparone before being hired. Mr. Whitman related further conversations with Mr. Cipparone shortly after being hired over the various rights in the collective agreement which Mr. Whitman did not feel were being respected at the tavern and which no one else seemed to want to assert. Mr. Whitman strongly denied any financial impropriety. Also, Mr. Whitman testified about the several ways in which he believed the tavern was operating contrary to the collective agreement and to other applicable statutes. The clear implication of this evidence was that Mr. Whitman's presence and active statements about some of these matters threatened the mode of operation of the tavern.
Finally, Mr. Whitman testified that he was told of his discharge on Friday, February 17th between about 9:00 and 9:30 p.m. His uncontradicted evidence was that Mr. Cipparone told him that he "wasn't needed any more ... You don't fit in here. You'd be better off in a large establishment where the staff and the union are more clearly on different sides. We settle our own problems here." However, after having been told this, Mr. Whitman was asked by Mr. Cipparone if he wanted to work the next day as a waiter. Mr. Whitman agreed to this and his last day of work was Saturday, February 18th.
On the basis of this evidence, the union argued that Mr. Whitman was fired because of his assertion of collective bargaining rights and because his employment appeared to threaten the "cosy" relationship between the employment and management of the tavern that often offended the collective agreement. It was asserted that these factors were more important to the decision to fire than the alleged and unsubstantiated allegations of theft.
On the other hand, Mr. Cipparone argued that the motive for the firing of Mr. Whitman was the alleged theft and that the decision was made entirely regardless of any union activity on the part of Mr. Whitman.
The decision
There are several significant factors in the evidence. It is clear that a very comfortable situation exists at the Beresford tavern between management and the long-term employees. The result of this situation is that the collective agreement may not be strictly adhered to, but no employees within memory have launched individual grievances because of this. In other words, an equilibrium exists to the mutual satisfaction of the employees and management that neither seems to be anxious to change willingly.
When Mr. Whitman was hired, that equilibrium was somewhat threatened. He made his views well known about his intention to bring about a number of changes. This came to Mr. Cipparone's attention almost immediately. Indeed, at the time of the firing, Mr. Cipparone told Mr. Whitman that he would probably be happier in a place where the roles of management and employees were more clearly defined. All these factors certainly raise a strong suspicion of anti-union animus as being a factor in the decision to terminate.
However, on the balance of the evidence, we are persuaded that the decision to terminate did not contain any elements that would contravene the Act. It must be recalled that Mr. Whitman's commitment towards this union and his activities on its behalf were well known to Mr. Cipparone before Mr. Whitman was hired. Further, Mr. Whitman started voicing his dissatisfaction about how the tavern was being run very early and this too was known to Mr. Cipparone. Ail of this was tolerated and did not seem to be of any concern to Mr. Cipparone. This may be largely because Mr. Cipparone had widely different views from Mr. Whitman as to the requirements under the collective agreement and felt that Mr. Whitman's position had little or no support in the contract. Be that as it may, the situation continued for several weeks without any changes. However, the critical event that occurred was when Mr. Sinclair raised the allegation of theft against Mr. Whitman. For purposes of this decision we need not make any finding as to whether the theft occurred or not. But we are completely satisfied that Mr. Cipparone totally relied upon the word of Mr. Sinclair when the allegations were raised. This is understandable given Mr. Sinclair's long employment at the tavern and the fact that he is a union steward. While it was clear that his position of union steward was not a very active one, the fact that he is a union steward and not someone in a close relationship to management is very significant. Having heard these allegations from an entrusted employee during the currency of the probationary period, Mr. Cipparone decided to fire Mr. Whitman. If anti-union animus was involved the firing could and would have occurred much earlier. Therefore, we are willing to conclude that the allegations of theft was the cause for the discharge and that no anti-union animus was a contributory or motivating factor.
We recognize that the fact that Mr. Whitman was allowed to work one day after the discharge on the grounds of alleged theft is unusual. But we note that the alleged theft occurred while Mr. Whitman tended the bar. The last day of work was as a waiter where opportunities for misappropriation of funds are much less. We also recognize that the words spoken at the time of the discharge suggest the union activities were contributory factors. But in the context of the history of dealings between the two men, we are fully satisfied that the words reflect Mr. Cipparone's attempt to explain to Mr. Whitman that he simply did not fit in with the collegial atmosphere in this small tavern. This does not necessarily imply anti-union animas and in the context of this case it reflects the conflict of style and personalities that developed early between Mr. Whitman and the senior staff. While this was tolerated for a while, the allegation of theft brought the tolerance to an end and the employer took the predictable step of terminating before the employee could acquire the rights available to him as a permanent employee under the collective agreement.
Therefore, while the case does present some troublesome factors, we are fully satisfied that Mr. Whitman was hired and employed on the understanding that he was an ardent union activist. Further, Mr. Cipparone has satisfied the onus of establishing that he was not prepared to continue to employ a probationary employee in the face of two allegations of financial impropriety made by a trusted, long-term employee who was also the union shop steward and who had nothing to gain by raising the allegations.
Thus, we conclude that the respondent has fulfilled its onus of establishing that no violation of the Labour Relations Act occurred. The complaint is therefore dismissed.
DECISION OF BOARD MEMBER RENE R. MONTAGUE; May 15, 1989
The complainant alleges that Gerald Whitman was discharged from his employment as a bartender/waiter as a result of his attempts to assert his rights under the collective agreement and the Act.
The respondent answers the complaint by alleging that Mr. Whitman was discharged during his probationary period primarily because of an allegation of theft against him, but the majority also refer to evidence suggesting that there were complaints from customers and complaints from other employees with respect to Mr. Whitman.
Prior to reviewing the evidence before the Board, it is useful to review the effect of the reverse onus of proof found in section 89(5), and more particularly, the fact that the grievor's union activity need only be one aspect of an employer's decision to terminate in order for that decision to be unlawful. In Hallowell House Limited, [1980] OLRB Rep. Jan. 35, the Board, at pages 40 and 41, explained the effect of the reverse onus of proof and stated that to discharge the onus the employer was required to establish that:
In a complaint of this nature filed under section 79 [now 891 of the Act, the provisions of section 79(4a) [now 89(5)] apply which place the burden of proof on the employer to show, on the balance of probabilities, that it did not discharge the grievor for union activity or through an anti-union animus. In Fielding Lumber Company Limited, [19751 OLRB Rep. Sept. 665 at page 673, the Board explained the burden of proof on the employer in the following terms:
"Having regard to section 79(4a) mow 89(5)] a respondent employer must satisfy the Board that in taking the actions it took it was in no way motivated by a grievor's union activity. Thus the Board may not find that an employer's sole reason for acting stems from the union activity of his employees to find a violation of legislation but rather an employer must satisfy the Board that the union activity played neither a major or minor role in regard to its impunged actions."
In The Barrie Examiner, [1975] OLRB Rep. Oct. 745 the Board at page 749 further explained the effect of the reverse onus of proof and stated that to discharge the onus the employer was required to establish two fundamental facts:
first, that the reasons given for discharge are the only reasons and, second, that the 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."
- Seldom will an employer admit that it has been motivated by anti-union animus in discharging an employee. The Board, therefore, is required to draw its own conclusion as to the employer's motivation and in doing so must draw inferences from the evidence. In discharging an employee, the Board looks for a reasonable explanation for discharge. If the employer provides litle [sic] or no explanation for terminating an employee and there is concurrent evidence of union activity the Board may, depending on the circumstances, draw the inference that the employer had an anti-union animus and acted in violation of the Act. If the employer establishes good cause for discharge on the other hand, the Board will normally require more cogent evidence of union activity, the grievor's participation in the campaign and the employer's knowledge of it before being willing to draw an inference of anti-union motivation. The evaluation of the adequacy of the employer's reasons for discharge is not aimed at determining whether the employer had just cause for discharge but is rather a step in the more complex process of ascertaining the employer's motivation. While unfair discharge does not itself establish a violation of the Act, it may be evidence from which the Board will, in certain circumstances, draw an inference of anti-union animus.
In the instant case one of the reasons for discharge, in my opinion, was the presence of an anti-union motive.
Turning now to the evidence, a review of the employer's reasons and the evidence provided therefore, disclose the following. As the majority point out, it is clear that "a very comfortable situation exists at the Beresford Tavern between management and the long-term employees". Furthermore, it does appear that the collective agreement may not have been strictly adhered to not withstanding the presence of the union in the workplace. It is also clear that after Mr. Whitman was hired, that equilibrium was threatened.
With respect to the allegation of theft, Mr. Cipparone testified that he relied on Mr. Sinclair's information completely. No other investigation was conducted, for example, to determine whether or not the tallies for the cash indicated whether the soft drinks had been rung in, nor was Mr. Whitman asked his version of the events. Mr. Cipparone testified that he felt this was unnecessary because Mr. Whitman was only a probationary employee. However, Mr. Whitman vehemently denied any allegation of theft at the hearing and further testified that during his 25 years in the bartending industry, this was the first such allegation. Mr. Cipparone also acknowledged that he had undertaken investigations involving alleged thefts on previous occasions. I do not agree with the inference drawn from the conversation noted at paragraph 5 of the majority decision. Mr. Whitman and Mr. Sinclair were at the same time discussing those parts of the collective agreement which Mr. Whitman felt were not being enforced. Mr. Whitman's comment, "Be quiet here comes Bob", was directed to the conversation about the collective agreement, and had been advised not to discuss anything in front of Bob Bird about the union as he told Mr. Chipparone everything. It would appear that the comment was intended to ensure that the discussion would not go any further.
The second matter referred to was complaints from customers. The only evidence that the Board heard with respect to this issue was that of Mr. Sinclair. He had informed Mr. Cipparone that he had overheard a couple of complaints from customers regarding Mr. Whitman's attitude while he was working as a waiter. There was no evidence as to the nature of these complaints, when or where they occurred, or whether or not Mr. Sinclair witnessed Mr. Whitman's impugned conduct. However it was acknowledged by Mr. Sinclair that it is impossible to work as a waiter without generating some complaints from some customers.
Finally, with respect to the third matter raised, that is complaints from other employees, Mr. Cipparone testified that he heard complaints about Mr. Whitman from his staff. However, these complaints relate to Mr. Whitman's stated intention to "bring about changes" once his probationary period had passed.
This then brings us, in my opinion, to the more telling evidence. Both Mr. Gogos and Mr. Sinclair testified that they understood that Mr. Whitman intended to bring about some changes to the tavern once he was no longer on probation. It is also clear from the evidence that Mr. Cipparone was aware of these statements made by Mr. Whitman. It is clear that all of the persons involved came to understand that Mr. Whitman believed that the collective agreement was not being properly implemented. Yet Mr. Sinclair, the shop steward, testified that he had no collective agreement in his possession, and further, that "he was not aware of a collective agreement being in force until the day of the hearing". Given that, I accept that Mr. Whitman and Mr. Sinclair had conversations concerning the collective labour agreement, this evidence would leave me to believe that Mr. Sinclair was not entirely candid with the Board. This result leads me, after utilizing the usual criteria in assessing the credibility of witnesses, to prefer the evidence of Mr. Whitman to that given by Mr. Sinclair where there is any significant conflict in their evidence.
Mr. Cipparone testified that he had discussions with Mr. Whitman prior to hiring him and that through these he became aware of the fact that Mr. Whitman had been involved with the union and had run for its executive office at one time. The fact that Mr. Cipparone was aware of this information before Mr. Whitman was hired does not explain away Mr. Cipparone's actions in terminating Mr. Whitman. Given Mr. Cipparone's apparent relationship with the union in his establishment, the fact that Mr. Whitman had had some involvement may have caused Mr. Cipparone no concern at the time of hire. It would seem that at that time Mr. Whitman was hired because there was a shortage of staff and Mr. Cipparone felt a need for experienced staff.
The most telling evidence is Mr. Whitman's uncontradicted evidence of what he was told by Mr. Cipparone at the time of his termination. Mr. Cipparone indicated to Mr. Whitman that, "...you don't fit in here. You'd be better off in a place with a large staff, union on one side and management on the other. We settle our own problems, we don't run to the union, we don't rely on the union re: wages, and if you get your 30 days in it would be difficult."
Initially it seems, Mr. Cipparone was not concerned about Mr. Whitman's voiced dissatisfaction about how the tavern was being run. However, within a day or two of Mr. Sinclair reporting to Mr. Cipparone, the decision to terminate was made. I disagree with the majority that Mr. Sinclair was not someone in a "close relationship to management". In the circumstances at this tavern, it would seem more accurate to describe the relationship as one of the shop steward turning a blind eye. The arrival of Mr. Whitman would certainly affect Mr. Sinclair's ability to conduct himself and the local union affairs in the same manner as before. The allegations upon which Mr. Cipparone relied came solely and directly from Mr. Sinclair. Yet, Mr. Cipparone did nothing to investigate the matter in any manner whatsoever. Finally, if the alleged theft was ultimately the only reason for the discharge, why was it not put to Mr. Whitman at the time of discharge. Furthermore, the fact that Mr. Whitman was allowed to work a shift the day after he was discharged is inconsistent with the reaction of any employer concerned about theft.
Mr. Whitman clearly expressed his intention to engage in further union activity once he was off probation. During his probation he had conversations with Mr. Cipparone about his union activity and about various rights in the collective agreement which he felt were not being respected at the tavern. He also noted that these were rights which no one seemed to want to assert, for example, the tavern not providing a float to employees as he felt was required under the collective agreement, and that some employees were being paid cash. In my opinion, it is clear that Mr. Cipparone decided to terminate Mr. Whitman's employment in order that Mr. Whitman not have an opportunity to pursue these stated intentions. This goes further than simply a difference in style or personality between Mr. Whitman and the other employees and Mr. Cipparone. I am not satisfied that Mr. Cipparone did not discharge the grievor for his union activity, at least in part. It is not for the Baord to determine whether or not a theft occurred but whether someone has been dealt with in a manner contrary to the Labour Relations Act.
Accordingly, I would direct that the respondent forthwith reinstate Mr. Whitman in the same position which he held on the date that he was discharged and that the respondent pay Mr. Whitman full compensation for any lost wages to which he is entitled to the date of reinstatement.