United Food and Commercial Workers International Union v. Peter Gorman & Sons (Wholesale) Ltd., 1991 CanLII 6184

[1991] OLRB Rep. June 772

2140-90-U United Food and Commercial Workers International Union, AFL, CIG, CLC, Complainant v. Peter Gorman & Sons (Wholesale) Ltd., Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.

APPEARANCES: Roman Stoykewych, Kevin Corporan, Kevin Benn and Deborah Smith for the applicant; Walter Thornton and Peter Gorman for the respondent.

DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; June 11, 1991

1. The name of the respondent is amended to read: "Peter Gorman & Sons (Wholesale) Ltd.".

2. This is a section 89 complaint made by the United Food and Commercial Workers International Union, AFL, CIO, CLC on November 14, 1990 wherein it is alleged that Peter Gor­man & Sons (Wholesale) Ltd. contravened sections 3, 64, 66 and 70 of the Labour Relations Act in its treatment of Joe Anthony on or about November 6, 1990. The respondent's response to this allegation is that Anthony either quit his employment on November 6 or acted in such a manner as to cause the respondent to conclude that he quit. The respondent also takes the position that, in any event, it did not contravene the Act in its treatment of Anthony.

3. The respondent called Peter Gorman, the owner, D. Cowell, the shipping manager, and E. Langley to give evidence. The complainant called Anthony and J. Forester, a UFCW organizer, to testify. There is a considerable degree of conflict in the evidence given by these witnesses. In determining the facts, the Board has carefully reviewed all of the evidence and the parties' submis­sions relating thereto.

4. The respondent is a food and confectionery wholesaler located in Peterborough. The warehouse and trucking components of the business employ approximately 13 employees, while there are approximately 12 employees working in the office and sales areas. Anthony was employed by the respondent as a truck driver since June 1990. He was the most active employee involved in the complainant's efforts to obtain bargaining rights for the warehousemen and truck drivers employed by the respondent. It was Anthony's idea to contact a union and he did contact he complainant. He arranged meetings with union officials, he invited employees to organizing meetings and spoke at these meetings, and he obtained three membership cards. Peter Gorman received notice from the Board of the complainant's application for certification on October 26, 1990 and he testified that he had no knowledge of the complainant's organizing campaign prior to October 26. Peter Gorman also testified that he had no knowledge of Anthony's union activities until he received notice of this complaint from the Board.

5. The evidence which the parties called concentrated primarily on events which occurred on October 29 and November 6, 1990. Anthony worked on October 29 until the lunch hour when he advised Mr. White that he was not feeling well and was going home. At approximately 1:30 p.m., Anthony received a telephone call from Peter Gorman. Peter Gorman had heard that Anthony went home earlier in the day and the purpose of his phone call was to determine why he had left work. During the phone call, Peter Gorman mentioned two customer complaints and indi­cated that he would discuss them with Anthony when he returned to work. Since he was curious about the complaints, Anthony returned that afternoon to the respondent's premises where a meeting was held between Peter Gorman, Anthony and D. Cowell. After discussing the customer complaints, there was some discussion between Anthony and Peter Gorman concerning the union. There is considerable conflict in the evidence given by Peter Gorman and Cowell on the one hand and Anthony on the other regarding what Peter Gorman said during the discussion about the union. We find it unnecessary in the circumstances to set out in detail each witness' version of what Peter Gorman said and to decide what version is true. Suffice it to say that Peter Gorman and Anthony both stated that at one point during the meeting Anthony told Gorman that he would not quit his employment and that Gorman would have to fire him.

6. In his evidence, Anthony stated that he and Cowell had a telephone discussion shortly after October 29 and before November 6 in which Cowell told Anthony not to be late since Peter Gorman knew he was the "ringleader". When this conversation was put to Cowell in cross-exami­nation, he responded by saying that he did not remember such a conversation. The Board accepts Anthony's evidence concerning what was said by Cowell during this conversation. In our view, it is unlikely that Cowell would fail to .recall such a conversation.

7. On November 6, Anthony started work at 6:00 a.m. but left the premises at approxi­mately 8:00 a.m. He testified that he was quite ill, took a quick look for Cowell but could not find him, left his keys, run sheet and gas credit card on Cowell's desk and before leaving advised E. Langley that he was going home since he was not well and that Peter Gorman could call him at home. In his evidence~ Langley, who was employed at the time as a part-time driver, denied that Anthony said anything to him when he was leaving. From 6:00 a.m. to approximately 8:00 a.m., Anthony was loading his truck and completing his run sheet. The respondent provides each driver with a gas credit card for purchases of gas and oil that may be required for his truck. Anthony stated that the reason he left the truck keys and the run sheet on Cowell's desk was because he thought they would be needed by the driver who took his run. Since Anthony thought Langley would likely do his run, he also left the gas card since he believed Langley did not have one. After leaving the premises, Anthony did not speak to anyone employed by the respondent until late in the afternoon of November 6.

8. At approximately 8:00 a.m. on November 6, Cowell noticed that Anthony was not present. He noticed that Anthony's car was gone, the gas credit card was on his desk and no one appeared to know where Anthony was. Cowell took the gas credit card to the office manager and explained what had happened. At about 8:45 a.m., the office manager asked Peter Gorman if he knew that Anthony had quit. In order to ascertain what was going on, he went and spoke to Cowell. Cowell advised Peter Gorman of what had happened that morning and, in particular, what tems Anthony had left on his desk. Peter Gorman testified that on the basis of what he was told he concluded that Anthony quit. Peter Gorman also stated that he then advised Cowell that if some­one leaves without notice, Cowell was not to allow that person to come back. Peter Gorman stated that Cowell said he knew that. In his evidence, Cowell indicated that this was the first time he had heard of such a policy. After his discussion with Peter Gorman, Cowell proceeded to cover Antho­ny's run.

9. At approximately 5:00 p.m. on November 6, 1990, Anthony called Cowell at home after being unable to reach either him or Peter Gorman at the respondent's premises near the end of the workday. Again, Anthony's and Cowell's version of what was said during this conversation varies considerably. According to Cowell, he simply told Anthony what Peter Gorman had told him earlier that day. He told Anthony that since he left without saying anything, he was not allowed back on the premises. Cowell testified that he did not ask Anthony why he left work and that Anthony did not offer any explanation for leaving. Cowell also stated that he did not inform Peter Gorman of his conversation with Anthony. Anthony testified that he told Cowell that he left work earlier in the day since he was not feeling well but that he would be in the following morning. According to Anthony, Cowell then responded by saying that Peter Gorman had made a few changes and that he was not allowed on the premises. In employing the usual tests for deciding credibility issues, the Board prefers Anthony's evidence to that of Cowell's. In the circumstances, it is difficult to accept that Cowell would not have asked Anthony why he left work earlier in the day if Anthony did not give an explanation for leaving, particularly since the two were friends. It is also difficult to accept that Cowell would not have relayed the substance of this call to Peter Gor­man. The Board is satisfied that during this telephone conversation, Anthony told Cowell that he left work earlier in the day because he was ill, that he intended to return to work the following day and that Cowell told Anthony that he was not allowed on the premises.

10. After his telephone conversation with Cowell, Anthony immediately called Forester, the organizer for the complainant. After a brief conversation, Forester left his home for Peterbor­ough in order to meet with Anthony. In reviewing Forester's evidence, the Board is satisfied that Anthony described the relevant events to Forester in the same way he described them in his evi­dence before the Board. In essence, Anthony told Forester that he left the respondent's premises on November 6 because he was ill, that he advised Cowell of this during the telephone conversa­tion in the late afternoon of November 6 and that Cowell advised him he was no longer allowed on the respondent's premises. In the initial particulars filed with the complaint, it was alleged that Anthony attended at the respondent's premises on November 7. Before Anthony testified, the complainant amended its particulars and Anthony testified that he did not go to the respondent's premises on November 7 but merely attempted to talk to Peter Gorman on the telephone without success. When Forester left Anthony on November 6, he understood that Anthony would go to see Peter Gorman the next day. On the following day, when he received a message from Anthony to the effect that he was not allowed to work that day, Forester assumed that Anthony did attend at the respondent's premises and this was reflected in the complaint that was filed. The Board permit­ted counsel to the respondent to pursue with Anthony the discrepancies between the complaint as initially filed and Anthony's evidence. In reviewing all the relevant evidence on this point, the Board is satisfied with Forester's explanation of what had occurred and also that the evidence does not lead to a conclusion which damages Anthony's credibility.

11. In mid-December 1991, Anthony called Cowell and asked him if he would set out in a letter their telephone conversation of November 6. Cowell agreed to do this. Cowell provided a letter to Anthony and also gave one to Peter Gorman. Anthony asked for this letter since he felt it would assist his complaint. When he reviewed the letter prepared by Cowell, it did not conform with Anthony's recollection of the November 6 conversation. Cowell testified that at about the same time Anthony told him that he had made a mistake by quitting and that he did not advise Peter Gorman of this discussion. Anthony denied telling Cowell that he had made a mistake by quitting. In reviewing the evidence of Cowell and Anthony on this point, the Board prefers the evi­dence given by Anthony. It appears highly unlikely that Anthony would ask Cowell for a letter which he believes would support his complaint against the respondent and at the same time admit he quit his job. All of the evidence before us demonstrates it is quite improbable that Anthony would at any time have taken the position that he quit his job with the respondent.

12. It was suggested by counsel for the complainant in his questions of a number of wit­nesses and in argument that the normal practice for the respondent would have been to attempt to call Anthony on November 6 in order to determine why he left work. Since the respondent did not attempt to contact Anthony, the complainant suggests that the respondent's failure to follow a standard practice illustrates an anti-union motivation on the part of the respondent in its treatment of Anthony. If an employee does not appear at work when scheduled, the respondent does attempt to contact the individual in order to determine what the problem is. The respondent's response when someone leaves work during the course of a scheduled shift is not so clear, probably because such an event seldom occurs. After reviewing the evidence however, the Board is satisfied that in the situation confronting it on November 6 with Anthony, the respondent would more likely than not in the normal course have attempted to contact Anthony. On October 29, Peter Gorman called Anthony in order to ascertain why he was not at work. On this same day, Anthony advised Peter Gorman that he would not quit and would have to be fired. Given our understanding of when and why the respondent would attempt to telephone employees, the Board does find it surprising that no attempt was made by the respondent to attempt to contact Anthony after he left the premises on November 6, given the respondent's usual practice.

13. Section 89(5) is applicable to the allegations made by the complainant. In the Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board addressed the effect of the section 89(5) rever­sal of the onus of proof as follows:

14. ... 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.

15. In contested section 89 complaints, employers do not openly admit to acting in contra­vention of the Act. In assessing the reasons for an employer's conduct, the Board's task, in essence, is to examine all the circumstances of a particular case in order to determine whether the employer's reason(s) are based on anti-union considerations.

16. Did Anthony quit his employment on November 6 or did Peter Gorman honestly con­dude that Anthony quit his job? When one reviews all of the relevant evidence, and in particular Anthony's evidence, it is difficult to conclude that Anthony quit. The leaving of the keys, run sheet and in particular, the gas credit card, is some objective evidence of quitting. However, the leaving of these items is also consistent with Anthony's explanation that he left them for E. Langley, the part-time driver whom he assumed would take his run. Although we have some difficulty with some aspects of Anthony's evidence, we believe him when he says that he had no intention of quit­ting his job. The objective evidence is consistent with Anthony's explanation that he had every intention of returning to work on the following day. It is also difficult to conclude from the evi­dence that Peter Gorman honestly believed that Anthony quit. Although Anthony had not been employed for any considerable length of time, the evidence does not disclose that he was generally anything other than a satisfactory employee. On October 29, a very short time before November 6, Anthony specifically advised Peter Gorman, in Cowell's presence, that he had no intention of quit­ting. In the context of these facts and the unusual circumstances of November 6, we have some dif­ficulty in determining that Peter Gorman concluded as quickly as he suggested in his evidence that Anthony had quit.

17. Peter Gorman determined that Anthony would not be allowed to return to the respon­dent's premises. There is an onus on Gorman to satisfy the Board that this decision was not moti­vated by anti-union considerations. As we noted above, the Board is not satisfied that Peter Gor­man made this decision concerning Anthony simply because he concluded that he quit without giving any notice. The events concerning Anthony take place soon after Peter Gorman learns of the complainant's application for certification. The bargaining unit of warehousemen and drivers is relatively small and Anthony was quite active in the complainant's organizing campaign. A short while before November 6, Cowell, a member of management, warns Anthony not to be late since Peter Gorman knows he is the "ringleader". Given the respondent's practice, the circumstances of November 6 are such that one would have expected the respondent to attempt to contact Anthony in order to determine why he was not at work. Since no attempt was made to contact Anthony, one is left to speculate as to the reason why the respondent did not act in a way one would nor­mally have expected it to act. The complainant alleges that it did not act as it might normally have done since it saw the opportunity to rid itself of an active union supporter. In reviewing this evi­dence concerning the respondent's treatment of Anthony, the Board is not satisfied that the respondent has met its onus of establishing that its motivation was free of anti-union consider­ations.

18. Accordingly, the Board finds that the respondent has contravened sections 64, 66 and 70 of the Labour Relations Act and hereby orders the respondent to reinstate Joe Anthony to employment with full compensation for his losses including interest as calculated in the usual man­ner. We also direct the respondent to post for 60 consecutive days in conspicuous places in the workplace the Notice to Employees attached as Appendix "A" hereto.

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

DECISION OF BOARD MEMBER ROSS W. PIRRIE; June 11, 1991

1. I dissent from the decision of the majority.

2. If the events of this case were as described by Mr. Anthony, it is my view that this mat­ter would not have been before the Board. Surely his friend, Mr. Cowell, following their phone conversation on the evening of November 6, 1990 would have advised Mr. Gorman that Anthony had in fact been ill. Surely his fellow worker and member of the bargaining unit would have advised Gorman that Anthony had in fact been ill. Faced with such information Gorman could not have hoped to sustain a concocted story that Anthony had quit. I found Messrs. Gorman, Cowell and Langley to be quite credible in relating their evidence.

3. I am also troubled by the convenience of the amended section 89 complaint filed by the union on behalf of Mr. Anthony.

4. I found no anti-union motive attached to Mr. Gorman and based on the evidence I accept that Mr. Anthony in fact resigned his employment. I would not have ordered Anthony reinstated and I would certainly not have ordered a posting.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUR EMPLOYEES THEIR RIGHTS.

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 ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERES WITH THESE RIGHTS.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT LAYOFF, DISCHARGE OR THREATEN TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE’S UNION ACTIVITY OR SYMPATHIES.

WE WILL NOT IN ANY OTHER MANNER INTERERE WITH OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

PETER GORMAN & SONS (WHOLESALE) LTD.

PER: ______________________________________________

(AUTHORIZED REPRESENTATIVE)

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

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE WORKING DAYS.

DATED this 11th day of JIINE , 1991