Canadian Paperworkers Union v. Mel Hall Transport Limited, 1991 CanLII 6034

[1991] OLRB Rep. January 61

0839-90-U Canadian Paperworkers Union, Complainant, v. Mel Hall Transport Limited and 444024 Ontario Limited, Respondents

BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. H. Wightman and E. G. Theobald.

APPEARANCES: Michael A. Church, Brendan J. Morgan, Michael Hunter and Fred Cooper for the complainant; Richard Woods, Brian Peaslee and Donald Scotland for the Respondents.

DECISION OF THE BOARD; January 24, 1991

1. This is a section 89 complaint alleging that the respondents have violated sections 64, 66, 70, and 80 of the Labour Relations Act ("the Act").

2. The background to this complaint is as follows. The complainant filed an application for certification (Board File No. 0525-90-R). That application was set down for hearing on June 22, 1990. On the agreement of the parties the matter was adjourned in order to allow the trade union to make an application pursuant to subsection 1(4) of the Act. (Board File No. 0838-90-R). This complaint was also filed. Subsequently, these three matters came before this panel. A decision with respect to File Nos. 0525-90-R and 0838-90-R was issued declaring that pursuant to subsection 1(4) the two respondents in this proceeding constituted one employer for the purposes of the Act and certifying the applicant for a bargaining unit of employees. Subsequently, the section 89 com­plaint was heard. The complaint raises allegations concerning the conduct of the respondents in relation to Mr. Fred Cooper (the "grievor") on June 22, 1990, and the subsequent layoff of Mr. Cooper on August 4, 1990. The complainant also raised an allegation concerning the respondents' conduct with respect to another employee, Mr. Pinalet, which it did not pursue in argument. That allegation (paragraph 24 of the complaint) is hereby dismissed.

3. It is the trade union's position that comments made by Mr. Richard Woods, President of Mel Transport Limited ("Mel Hall"), on June 22 were motivated by an anti-union animus in an attempt to dissuade Mr. Cooper from participating in the proceedings and are in violation of sec­tions 64, 66, 70 and 80. Further, it is the union's position that the lay-off of Mr. Cooper was not for bona fide business reasons but was tainted by anti-union motive in violation of sections 64, 66 and 70.

4. It is the respondent's position that any comments and conversation which occurred on June 22 were in response to the surprise that Mr. Woods felt at Mr. Cooper's attendance at the hearing before the Board and to obtain information from Mr. Cooper with respect to his driver's licence. The layoff of Mr. Cooper from his position as assistant dispatcher is in response to a slow down in the respondent's business. It is the position of the respondents that the assistant dispatcher position was the only expendable position and that Mr. Cooper would have been transferred to a position of truck driver but for the loss of his driver's licence.

5. The Board's task in determining complaints of this nature is well established. The respondent employer must satisfy the Board on a balance of probabilities that the conduct com­plained of was in no way motivated by reason of Mr. Cooper's trade union activity and/or his par­ticipation in a proceeding under the Act. In Pop Shoppe (Toronto) Limited [1976] OLRB Rep. June 299, at page 301, the Board explained:

6. Section 79(4a) [now section 89(5)1 of The Labour Relations Act places the legal bur­den upon the employer in complaints such as the one before us, to satisfy the Board, on the balance of probabilities, that it has not violated the Act. In order for the Board to find that there has been no violation of the Act it must be satisfied that the employ­er's actions were not in any way motivated by anti union sentiment; the employer's actions must be devoid of "anti union animus". (See the Bushnell case [1944] OR (2d) at page 442). The employer cannot engage in anti union activity under the guise of just cause or under the guise of business reasons. Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti union motive and which the evidence establishes to be the only reason for its conduct. (See Barrie Examiner [1975] OLRB Rep. Oct. 745 and The Corporation of the City of London [1976] OLRB Rep. Jan. 990).

7. 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)....

8. Further in The Barrie Examiner [1975] OLRB Rep. Oct. 745, at page 749 the Board pointed out,

17 ……In other words, the appearance of a legitimate reason for 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 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.

7. The conduct complained of was engaged in by Mr. Richard Woods, President of Mel Hall. The events on June 22 relate to comments made by him. The decision to lay Mr. Cooper off from the assistant dispatcher's position was also made by Mr. Woods. We note at the outset that in giving his evidence we found Mr. Woods to be unresponsive, argumentative and vague. He also made little attempt to conceal his opinion of union activity. While the circumstances surrounding the events support our conclusion, we are satisfied that the complaint is well founded on Mr. Woods' own evidence.

8. The main business of the respondent companies comprises a trucking operation. Although much of the business operates out of a London location, it is the operations out of loca­tions in Burlington and Rexdale that are involved in the subject matter of this complaint. The grievor has been employed by Mel Hall for approximately seven years. For about five of those years he worked as a truck driver out of the Burlington location. That location was certified by the complainant approximately two years ago.

9. In 1989 while working as assistant dispatcher, Mr. Cooper posted for a position as a truck driver. At that time there was an agreement between Mel Hall and Mr. Cooper that he would remain in the position of assistant dispatcher. We are satisfied that the respondent preferred to have Mr. Cooper remain in that position because he performed the function well. There have been no concerns with respect to Mr. Cooper's job performance throughout his employment with Mel Hall.

10. As a result of a criminal charge related to drinking and driving, Mr. Cooper was aware towards the end of 1989 that he would, upon conviction, be losing his driver's licence for a period of time. in anticipation of that event, Mr. Pupeza, the union's business agent and Mr. Cooper requested a meeting with Mr. Scotland, the Operations Manager of Mel Hall. That meeting was to inform Mr. Scotland of the impending loss of licence and to discuss what effect, if any, it would have on the grievor's employment. That meeting was held in December, 1989. Mr. Scotland assured the grievor that the loss of his licence would not affect his employment in that he was then employed in the assistant dispatcher's position and was not required to drive in the course of his employment. Mr. Woods acknowledged that he was aware that Mr. Scotland had met with Mr. Mr. Pupeza and Mr. Cooper concerning Mr. Cooper's licence although he denied or could not recall the extent of the information he learned at that time.

11. Mr. Cooper is the trade union's elected plant chairperson, representing the employees in the bargaining unit in Burlington. This is a position recognized by the employer under the col­lective agreement. While Mr. Woods attempted to underplay Mr. Cooper's role in representing the bargaining unit, that role included, in addition to being plant chairperson, participating on the negotiating committee, (and being present throughout negotiations with the employer) and being a signatory to the collective agreement.

12. On June 22, 1990, the parties attended at the Board in order to deal with the certifica­tion application for the Rexdale location. Mr. Cooper was present on behalf of the trade union. Upon arriving, Mr. Woods saw Mr. Cooper and immediately inquired of him why he was present. He did not inquire whether Mr. Cooper had permission to be away from work, nor it is apparent, did he care. Mr. Wood's explanation was simply he was "surprised" to see a Burlington employee "give up a job where he was needed" and he thought "that it was unusual he'd leave his post". Mr. Cooper had received permission to be absent from work that day. Other members of management were aware he would be attending at the Board. Subsequently, in the Board's hearing room while waiting for the return of the Board's Labour Relations Officer, Mr. Woods asked Mr. Cooper about the loss of his driver's licence. Upon learning that Mr. Cooper did not currently hold a licence Mr. Woods advised that this could well be a problem. When the trade union's counsel intervened, Mr. Woods indicated that he could speak to his employees whenever he wanted. Mr. Woods was at this time visibly upset and angry.

13. Subsequently, by letter dated July 19, 1990, Mr. Cooper was informed by Mr. Woods that effective August 4, 1990 the job of assistant dispatcher was being eliminated and, while Mr. Cooper remained without a licence, he would be laid-off. The only other available position was that of a truck driver. We heard evidence from the respondent's witnesses including Mr. Woods of earlier discussions about how to deal with a decline in business. It was suggested by Mr. Woods that there was a decision as early as April to eliminate the assistant dispatcher's position. We also heard considerable evidence of the "run-around" that Mr. Woods claims to have received in attempting to determine Mr. Cooper's ability to return to a truck driver's position and the status of his licence. Mr. Wood's explanation for asking Mr. Cooper on June 22 was that up to that point he hadn't been able to get a straight answer. We simply do not accept this. Mr. Cooper and the trade union had been entirely forthcoming at the time Mr. Cooper had been charged. We do not accept that Mr. Woods was unable, had he made an inquiry, to get any less than a full response from any of his management personnel. The company routinely does licence checks for its own insurance purposes and certainly had that option available to it had the question been posed. In addition there is no evidence that Mr. Cooper was asked by anyone prior to June 22 as to the then current status of his licence.

14. If there had been a decision to eliminate the assistant dispatcher position the employer could well have informed Mr. Cooper of the impending change in his status and at that stage dis­cuss what effect, if any, the loss of his licence would have on his ability to move to another position or be laid-off. That did not occur. Nothing was communicated to Mr. Cooper prior to June 22. At that time, the reference was to the existence of "a problem" and subsequently Mr. Cooper was laid-off. We are satisfied that the move to eliminate the assistant dispatcher position in the circum­stances was motivated at least in part by Mr. Cooper's participation in the proceedings before the Board with respect to the application for certification and his exercise of lawful rights under the Act. This conclusion is substantiated by the fact that subsequently, Mr. Wolochin, a member of management continued to do all of the work that Mr. Cooper had previously done, apparently in violation of a provision of the collective agreement stipulating that non-bargaining unit employees will not perform work on any jobs which are performed by employees covered by the collective agreement. It is evident that the respondent gave no regard whatsoever to this provision of the col­lective agreement. There was also no explanation as to why the assistant dispatcher's position was expendable as opposed to one of a number of driving positions. In the result, we find that the respondent Mel Hall violated sections 64, 66, 70 and 80 of the Act by virtue of the conduct com­plained of on June 22 and the lay-off of Mr. Cooper from his position as assistant dispatcher.

15. In light of our finding that the lay-off was in violation of the Act, we need not at this time make any finding with respect to whether or not Mr. Cooper was offered or refused any work opportunities while on lay-off.

16. We hereby:

(a) declare that the respondent Mel Hall Transport Limited has violated sections 64, 66, 70 and 80 of the Act;

(b) order that the respondent Mel Hall Transport Limited cease and desist in its violation of the Act;

(c) order the respondent Mel Hall Transport Limited to reinstate Fred Cooper to the position of assistant dispatcher with full compensation and seniority from the date of lay-off to the date of his reinstate­ment;

(d) order that the respondent Mel Hall Transport Limited post for 60 consecutive days in conspicuous places in the workplace the notice attached as Appendix A to this decision.

17. The panel will remain seized in the event that the parties are unable to resolve any issue of compensation.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE ARE POSTING THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD. AFTER A HEARING IN WHICH THE TRADE UNION AND THE EMPLOYER PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY VIRTUE OF OUR CONDUCT IN RESPECT OF MR. FRED COOPER'S PARTICIPATION IN A PROCEEDING BEFORE THE BOARD AND BY LAYING OFF MR. COOPER FROM EMPLOYMENT.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE HAVE BEEN ORDERED TO REINSTATE MR. COOPER TO EMPLOYMENT AS ASSISTANT DISPATCHER WITH PULL COMPENSATION AND SENIORITY.

MEL HALL TRANSPORT LIMITED

PER: (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 80 consecutive working days.

DATED this 24th day of JANUARY, 1991