[1992] OLRB Rep. November 1197
1896-90-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW - Canada), Complainant v. Kautex of Canada Inc, Respondent
BEFORE: Judith McCormack, Chair, and Board Members R. W. Pirrie and E. G. Theobald.
APPEARANCES: Dan Flynn, F. Berto and Tony Robinson for the complainant; Theodore Crljenica and Ian Davis for the respondent.
DECISION OF JUDITH MCCORMACK, CHAIR, AND BOARD MEMBER E. G. THEOBALD; November 17, 1992
This is a complaint under section 91 [formerly section 89] of the Labour Relations Act in which the complainant union alleges that Tom Robinson was discharged contrary to sections 3, 65, 67 and 71 [formerly sections 3, 64, 66 and 70] as a result of exercising his rights under the Act. The respondent company denies this allegation and asserts that Mr. Robinson's termination was for cause, and not in violation of the Act.
The respondent company manufactures plastic gas tanks for the automotive industry in
Windsor, Ontario. Mr. Robinson was hired on September 18th, 1989 and there was no dispute that
he completed his three month probationary period satisfactorily. Since that time he has performed
a number of different jobs, including operating a blow-molding machine used for the initial forming of the tanks, a subject to which we will return later.
In January of 1990, the union commenced an organizing drive at the company's plant. Mr. Robinson attended a union meeting on January 27th at the Teutonia Club with approximately eight other employees. He signed a union membership card that day, and although initially he was not very active, over the next few months he gradually became more involved in the campaign. In response to that campaign, the company issued several bulletins to employees. In April of 1990, one of these bulletins apparently referred to employees' right to choose with respect to unionization, and included a passage to the effect that if employees were harassed or intimidated by persons involved in the union, the latter's employment could be terminated.
During the same time period, Mr. Robinson was summoned by his supervisor, Tim Treleaven, to the office of Suk Singh, then the company's plant manager. Another employee, Bill Arquette, was present. Mr. Singh asked Mr. Arquette whether Mr. Robinson had harassed him into signing a union card, and Mr. Arquette said that he had not. The conversation concluded shortly thereafter.
By May, it appears that Mr. Robinson was one of a group of five or six employee organizers in the plant. He did not collect many, if any, membership cards, although he did distribute Tshirts and hats with the union's name on them, attend meetings of the organizers and speak to other employees about union membership. Generally speaking, we find his evidence with respect to his role in this regard inflated; however, there is no doubt that he was active in organizing activities to some extent.
On May 8th, 1990 Mr. Robinson received a written warning from the company for absenteeism and tardiness which referred back to incidents commencing in February of 1990. The company has an absenteeism and tardiness discipline program involving the application of demerit points. No demerit points were assessed against Mr. Robinson at that time, although the warning stipulated that he must provide notes for his absences.
The union filed an application for certification with the Board at the beginning of June. On June 7th, 1990 one of the other employee organizers told Dan Flynn, a staff organizer for the union, that there was a committee of anti-union employees meeting at the French-Canadian Club. Mr. Flynn arranged to meet Mr. Robinson and the other employee organizer at this club, where a group of employees who had voiced opposition to the union were sitting at a table. Seated with this group was Mr. Treleaven, and Mr. Singh arrived a little later. Mr. Flynn had brief conversations with both Mr. Treleaven and Mr. Singh. It appears that Mr. Treleaven and Mr. Singh would have seen Mr. Robinson in the company of Mr. Flynn and the other employee organizer.
Over the next two months, there was some turnover in management with Steve Diemer replacing Mr. Treleaven, and Dirk Berthel, an employee of the company's parent company in Germany, taking over from both Suk Singh and the manufacturing manager. That month Mr. Robinson was absent several times. He provided doctor's notes for two absences but not for a third.
In June or early July, Mr. Robinson was assigned to relieve another employee on a welding machine. The safety guards were down on the machine and Mr. Robinson, who was a member of the health and safety committee, informed Mr. Diemer accordingly. He then waited for Mr. Diemer to return, performing no work on the machine in the meantime. Mr. Diemer took him upstairs where he and Sue Fiorini, another supervisor, questioned him and told him that he was insubordinate. Ms. Fiorini began to write out a warning, and Mr. Robinson was ordered to leave the plant. Mr. Robinson refused to sign the warning notice, and Ms. Fiorini crumpled it up and threw it at him. Eventually, the two supervisors allowed Mr. Robinson to return to his machine. In his evidence, Mr. Diemer acknowledged that he and Ms. Fiorini had made a mistake, and that the meeting should not have occurred. When Mr. Diemer was asked in cross-examination whether Ms. Fiorini ever talked to him about the union, he replied that there was talk about the union all the time. When he was then asked whether she had made any negative comments about the union, he responded that it depended on what would be called negative. Counsel for the company objected to the evidence with respect to this meeting on the basis that it was not particularized in the complaint. At the time, the Board reserved its decision on both the admissibility of this evidence and the weight, if any, to be accorded to it. At this point, it is our view that this incident is of such marginal probative value that we are not inclined to assign any weight to it. As a result, it is not necessary for us to determine its admissibility.
Mr. Robinson was absent from work on July 8th and July 11th, 1990. He asserts that he presented a note for his July 8th absence to Mr. Diemer, who tore it up and said to Mr. Robinson that it was not going to help him or "your little group". Mr. Robinson also asserted that he submitted a note for his absence on July 11th. The company assessed Mr. Robinson twenty-five demerit points for each of these two absences. Its position was that the July 11th note was misplaced, and that no note was presented by Mr. Robinson for his absence on July 8th. Mr. Diemer testified that he did not tear up any note and that he did not make the statement set out above.
Mr. Singh also held a meeting with Mr. Robinson on July 17th. According to Mr. Diemer, the purpose of this meeting was to find out why Mr. Robinson had been absent on July 11th. However, it appears that the demerit points for July 11th were actually imposed in advance of this meeting by Mr. Diemer, who testified that he had spoken with Mr. Robinson about it, although he could not recall the discussion. At the meeting Mr. Singh quizzed Mr. Robinson on where he had been on July 11th, and Mr. Robinson responded with an excuse that was not particularly credible. Subsequently, Mr. Singh issued a memo to Mr. Robinson to the effect that he was required to provide verification of all absences. In the memo, Mr. Singh indicated that this requirement was imposed because of Mr. Robinson's record of fifty demerit points, that is, the demerit points imposed for the absences of July 8th and July 11th.
On August 17th, 1990 Mr. Robinson did not attend for his shift. He notified the company to this effect, but did not supply a reason or a note. The respondent increased his demerit point level to seventy-five points. Mr. Diemer also recommended a five day suspension. In his evidence, he could not recall whether Mr. Robinson had actually served the suspension or not, and told the Board that he did not know whether Mr. Robinson ever received the warning notice imposing the additional demerit points. Unlike the other three previous notices, this notice was not signed by Mr. Robinson acknowledging receipt.
In fact, as it turns out Mr. Robinson did not serve this suspension. The company called Mr. Robinson to a meeting with Mr. Berthel, Mr. Diemer and Ian Davies, the company's new human resources manager. (Mr. Davies, who was not employed full time by the company at this point, appears to have been involved in these events only to a limited extent.) Charlie Akins, another employee who was also a member of the union's organizing committee, attended at Mr. Robinson's request. Mr. Berthel asked why Mr. Akins was at the meeting, and Mr. Robinson replied that he wanted to have Mr. Akins as a witness. Mr. Berthel then said that Mr. Robinson did not need a witness, as they were just having a meeting. However, he allowed Mr. Akins to stay.
Mr. Davies and Mr. Berthel told Mr. Robinson that the company was going to suspend him for five days for absenteeism. Mr. Robinson testified that he was shocked by this and insisted that he had provided notes for his absences. He then examined the documentation in his personnel file which the company had at the meeting, and showed the company officials a note in the file for his July 11th absence.
As a result of this note, the company's officials changed their minds and told Mr. Robinson that he would not be suspended. Mr. Robinson then demanded copies of the documentation in his file, which the company agreed to provide. Mr. Robinson testified that he also said that he wanted to take the documentation to the union because he felt he was being harassed. This last evidence was also objected to by the company as not having been particularized in the complaint. Again, the Board reserved its decision on both weight and admissibility, and again we find that this evidence is of so little probative value that we are not inclined to place any weight on it. There is no dispute that Mr. Berthel declined to give Mr. Robinson a copy of the suspension letter that the company had prepared, for the simple reason that he was no longer being suspended. In addition, at this meeting Mr. Robinson was asked to provide the company with notes for his July 8th and August 17th absences.
Mr. Akins told the Board that one week later, he himself was suspended. He also testified that all of the employee organizers had been disciplined at one time or another. Of five people on the organizing committee, he indicated that only two still work for the company. There were five other section 91 complaints filed by the union, which were settled on terms that included a condition that the union could not rely upon them in any other proceedings. As a result, we have not considered this fact in our ultimate decision.
Mr. Robinson was summoned by the respondent to a further meeting on August 27th. Attending that meeting were Mr. Berthel, Mr. Davies, Mr. Diemer and Terry Tetrault, a fellow employee, whom Mr. Robinson had asked to attend-as a witness and for "moral support". At that time, Mr. Robinson produced a note from his lawyer confirming that he had been in court on August 17th for his preliminary hearing. Mr. Robinson was himself the subject of the criminal charges involved. Subsequently, Mr. Berthel sent a memo to Mr. Robinson that, among other things, took issue with this note. He indicated that although Mr. Robinson's lawyer had said that he was "required" to attend court on August 17th, since he had not actually been subpoenaed, according to Mr. Berthel his attendance was voluntary.
At the meeting on August 27th, the company officials present reiterated that Mr. Robinson must have a valid note for each absence or tardy arrival, that he must call in before the start of his shift if he was going to be absent or late, and that his notes had to be provided to his supervisor before he started his next shift. Mr. Davies told the Board that the company would not necessarily require this from every employee, but that Mr. Robinson was getting to be a problem and needed clear guidelines. Because of Mr. Robinson's allegation that Mr. Diemer had torn up one of his notes, Mr. Berthel agreed that Mr. Diemer would sign and date each note Mr. Robinson provided, and return a copy to him. Mr. Berthel testified that the respondent provided photocopies of the documentation in Mr. Robinson's personnel file to Mr. Robinson at this meeting, an assertion which is disputed by Mr. Robinson and Mr. Tetrault.
On September 5th, Mr. Robinson did not report for his scheduled shift. He brought in a doctor's note the following day, and as a result the respondent did not assign demerit points to him. However, an employee warning notice was issued indicating that Mr. Diemer had reminded him that he must call in when he was going to be absent. It is not clear whether the notice was given to Mr. Robinson, although Mr. Diemer thought he may have shown it to him. The notice is not signed by Mr. Robinson acknowledging receipt.
On September 14th, 1990 the applicant was certified to represent employees of the respondent. On September 15th, Mr. Robinson was absent from work and the following day he was six hours late for his shift. He brought in a doctor's note for September 15th, but not for September 16th, and the company imposed twenty-five demerit points for the latter absence. Mr. Diemer testified that he recommended that a five day suspension also be imposed. An employee warning notice dated September 16th and imposing a five day suspension was filled out by Mr. Diemer and signed by Mr. Berthel. Mr. Arthurs testified that normally an investigation takes place before action like this is recommended, but that on this occasion, the notice had been prepared first and the matter then investigated. It appears that the company was not prepared to wait to see if Mr. Robinson brought in a note on his next scheduled shift for September 16th, perhaps because he had actually attended for part of his shift on September 16th.
Mr. Robinson's next scheduled shift was September 19th, starting at 7:00 o'clock p.m. Mr. Berthel and Mr. Arthurs waited for Mr. Robinson to inform him of his suspension. However, Mr. Robinson called in and spoke to Mr. Tetrault, saying that he would not be in as he was in court. Mr. Tetrault told the Board that it was common for him to answer the telephone in the evening and that he relayed this message to Mr. Diemer. The next day, Mr. Tetrault was told by the company not to answer the telephones any more. On September 20th, Mr. Robinson called in again and spoke to Mr. Davies, who was again waiting with Mr. Berthel to suspend him again. He told Mr. Davies that he had been in court all day and that he could not come in and work a twelve hour shift. Mr. Davies testified that he asked him to bring in documentation, but that he did not say anything about a suspension to Mr. Robinson at that time.
September 24th, 1990 was Mr. Robinson's next scheduled shift. Mr. Robinson did not present any documentation for his absence on September 19th and 20th and the company assigned him twenty-five demerit points for each absence. Again, it appears that the employee warning notices to this effect were never given to Mr. Robinson. Mr. Diemer acknowledged that he had no chance to discuss the September 20th warning with Mr. Robinson as he normally would, because senior management wanted the notice the next day. As a result, he did not know why Mr. Robinson was absent at the time he imposed demerit points. He agreed in cross-examination that it would have been better to speak to Mr. Robinson before he prepared the warning notice, but said that it was out of his hands at that point.
Mr. Davies acknowledged in cross-examination that he had called Mr. Robinson's lawyers to confirm that Mr. Robinson had been in court on September 19th and 20th. He said that he did so because he wanted to see whether these were acceptable absences. In other words, company officials knew Mr. Robinson was in court on September 19th and 20th when they decided to impose discipline. Mr. Davies explained this by saying that although he knew Mr. Robinson had been in court, this did not address the fact that Mr. Robinson had not called in until 7:40 p.m. on September 20th, forty minutes after his shift started. It is clear that there were breaks in the court proceedings earlier on September 20th, during which Mr. Robinson would have had an opportunity to call the company. Mr. Robinson was in fact convicted of criminal charges on September 20th, and it was apparent that he was somewhat stunned by this turn of events.
On September 24th, Mr. Robinson attended for his scheduled shift but no mention was made of a suspension on that day. Mr. Robinson's job at that time was to relieve the blow-molding machine operators during their breaks. Around 3:30 a.m. he presented himself at a blow-molding machine operated by Eric Mitchell for this purpose. Mr. Mitchell advised him that the machine had been malfunctioning, and that as a result, it was dropping the blow-molded tanks into the machine enclosure, rather than on a slide adjacent to the back of the machine. The effect was that Mr. Mitchell had to run around to the back of the machine each time and pull the tank out with his hands. Mr. Mitchell testified that he had informed Mr. Diemer of this problem several times during that shift, and had asked him to get a technician to adjust the flash weight, but that he did not hear back from him. In contrast, Mr. Diemer first told the Board that nobody had complained about the machine. However, when he was asked in cross-examination whether Mr. Mitchell had complained two or three times that the machine was malfunctioning, he said that he could not recall.
The first tank that the machine produced under Mr. Robinson's operation at this time fell on the floor between the machine and the slide where it was retrieved by Mr. Robinson. He then set up the machine for the cycle on the next tank by placing a reservoir in the appropriate spot and closing the doors to the machine enclosure. This second tank was blow-molded as usual by the machine, but was then dropped into the machine enclosure rather than on the slide.
At this point, there is a conflict in the evidence. Mr. Robinson testified that he attempted unsuccessfully to retrieve the tank by pulling it out of the enclosure with his hands. The company asserts that Mr. Robinson was away from his work station when the tank dropped, chatting with a fellow employee down the line. At any rate, there is no dispute that the machine cycle began again with the fallen tank still inside. The mold form itself closed on the tank, damaging both the fallen tank and the new tank which was to have been blow-molded in that cycle. The effect was also to break a water line on the machine. As a result, the machine was out of operation for approximately thirty minutes while the water line was replaced.
Mr. Robinson told the Board that when he was unsuccessful in retrieving the tank and the water line broke, he yelled to a nearby employee to get a mop and pail and a technician, and he himself went to find Mr. Diemer. He arrived back at the machine at the same time as Tibor Nagy and Froy Romero, two of the company's technicians. Mr. Diemer testified that when he himself arrived on the scene, Mr. Nagy and Mr. Romero told him that they had seen Mr. Robinson speaking to another employee some feet away several minutes before the incident. Mr. Nagy also gave evidence to this effect, although Mr. Romero said that he had not seen Mr. Robinson speaking to another employee. Mr. Robinson agreed that he had spoken to two other employees on the line, but said that this was after the machine malfunctioned because other employees were wondering why there was water on the floor.
Mr. Diemer was a little unclear as to the steps he took to investigate the incident. At one point he said that he asked Mr. Robinson what had happened before speaking to Mr. Nagy and Mr. Romero, and that he had not subsequently confronted Mr. Robinson with what Mr. Nagy and Mr. Romero had told him. Later, he changed his testimony and said that he had spoken to Mr. Robinson after speaking to Mr. Nagy and Mr. Romero. He was not sure initially if he had ever asked Mr. Robinson where he had been when the latter arrived back at the machine at the same time as the technicians. Then he testified that he did ask Mr. Robinson this question and that Mr. Robinson said he had gone looking for a technician. Mr. Diemer told the Board that he thought that that was a good answer at the time. When he was asked in cross-examination why Mr. Robinson was later fired if it was a good answer, he replied both that his subsequent investigation revealed otherwise and that it was out of his hands. Mr. Diemer told the Board that he did not believe Mr. Robinson's story, but acknowledged that Mr. Robinson did not have a chance to explain his version of events.
The company's position was that Mr. Robinson was not at his work station at the time the tank fell, and that if he had been, he could have prevented the damage to the tanks and the machine by stopping the cycle, either by pushing a red button on the machine or by opening the doors to the machine enclosure. Mr. Robinson, Mr. Akins and Mr. Mitchell told the Board that employees were discouraged from pushing the red button. Mr. Diemer testified that he could not say whether employees had been told not to push the red button, although he himself had not given these instructions.
On September 25th, Mr. Berthel scheduled a meeting with Mr. Robinson. According to Mr. Berthel, the purpose of this meeting was to see if Mr. Robinson could explain his two absences on September 19th and 20th and the blow-molding incident, and that if he could not, he would be suspended pending termination. However, even Mr. Diemer testified that Mr. Robinson was not given an opportunity to explain his side of the story at this meeting. Earlier that day, Mr. Berthel signed three warning notices for the September 19th and 20th absences and the blow-molding incident. Brian Zarin, another employee who was at this meeting, testified that Mr. Berthel simply announced that Mr. Robinson was being placed on indefinite suspension and that no reasons were given. When Mr. Robinson asked for a reason, Mr. Berthel replied that Mr. Robinson knew the reason. The meeting lasted approximately five minutes.
In contrast, Mr. Berthel told the Board that he asked Mr. Robinson for an explanation for the absences on September 19th and 20th and the blow-molding incident at the meeting, but that Mr. Robinson had no explanation for them. He agreed that Mr. Robinson gave him a note from his lawyer accounting for his absences on September 19th and 20th, but said that this was only at the end of the meeting. Subsequently, Mr. Robinson started talking about fishing with Mr. Berthel. Both Mr. Berthel and Mr. Arthurs testified that Mr. Berthel reviewed Mr. Robinson's absenteeism and then referred to the blow-molding incident.
Mr. Robinson's version of this meeting is that Mr. Berthel opened it by asking him whether he had a note or some document to give him for September 19th and 20th. Mr. Robinson
asked whether anyone had spoken to Mr. Davies, and said that he had told Mr. Davies where he was on those dates. Mr. Berthel replied that they did not have time to go into this, and that he was sorry but that Mr. Robinson was suspended. He told him to go home, and that the company would be in contact with him. Mr. Robinson asserts that Mr. Berthel also said that if the company was wrong, it would pay for it, and that Mr. Berthel did not mention the blow-molding incident on that day.
On September 28th, Mr. Berthel sent a letter to Mr. Robinson terminating his employment and purporting to set out his disciplinary history. The company concedes that there are some inaccuracies in that letter. Seventy-five demerit points were imposed by the company for the blow-molding incident. When these were added to the fifty demerit points imposed for the absences of September 19th and 20th, according to Mr. Berthel the total was 225 accumulated points, and he advised in the letter that Mr. Robinson's employment was terminated. Somewhere around this time, Mr. Robinson ran for a position for the union's bargaining committee but was not successful.
On the basis of this sequence of events, the union asserts that Mr. Robinson's employment was terminated either because of his union activities or because the company wished to be rid of him before a collective agreement was negotiated with the likely result of a just cause obligation. The company asserts that its officials did not know Mr. Robinson was a union organizer although they were aware he supported the union campaign, and that he was terminated solely as a result of his tardiness and absenteeism record and the blow-molding incident.
This is a matter to which section 91(5) applies, which reads as follows:
91.-(5) 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 the person's 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 Barrier Examiner, [1975] OLRB Rep. Oct. 745, the Board set out its approach to allegations where section 91(5) applies:
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 this jurisprudence, see Delhi Metal Products Ltd., [1974] OLRB Rep. July 450. 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.
Subsequently, the Board reiterated in The Corporation of the City of London, [1976] OLRB Rep. Jan. 990 that the anti-union motivation does not have to be the sole reason, or even the predominant reason for the activity complained of to violate the Act, so long as it is one of the reasons. Then in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, the Board described the difficulties inherent in this kind of proceeding:
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). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti-union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.
In the instant case, we have examined the reasons advanced by the company for Mr. Robinson's discharge not because we are adjudicating their reasonableness or their fairness, but because it is a step in the more complex process of ascertaining the employer's motivation. (Hallowell House Ltd., [1980] OLRB Rep. Jan. 35).
There are a number of aspects of the respondent's conduct which cause us some concern in this case. Mr. Robinson's employment problems commenced at about the same time as his union involvement, and he was in fact discharged approximately two weeks after the union was certified to represent employees. In addition, it was clear that the company was attempting to build a paper record against Mr. Robinson, sometimes in a manner that was quite artificial. For example, the first warning that Mr. Robinson received about his absenteeism was not until May 8th, 1990, although that warning purported to cover a period back to February of 1990. This raises the question of why nothing was said to Mr. Robinson in this regard between February and May of 1990 or conversely, why it was not until May of 1990 that this issue was raised. Indeed, Mr. Arthurs testified that he did not have any concerns about Mr. Robinson's attendance or tardiness until the summer of 1990.
Moreover, some of the documentation prepared by the company was either inaccurate or inflated. For example, Mr. Robinson's termination letter refers to his failure to call in to say that he would be absent for his shift on September 19th. The undisputed evidence was that Mr. Robinson did call in and spoke to Mr. Tetrault, who then relayed this information to Mr. Diemer. Mr. Berthel explained this discrepancy by saying that Mr. Robinson's call was not valid because he did not speak directly to his supervisor, and that he had been told to speak to supervisors previously. This letter also cites that no reason was given when Mr. Robinson called in about his absence on September 20th. Again, there is no dispute that Mr. Robinson told Mr. Davies that he had been in court all day and could not come in and work a twelve hour shift that evening. And in fact, the company was aware as a result of Mr. Davies' inquiries that Mr. Robinson had been in court on September 19th and 20th. Mr. Berthel explained this by saying that no reason was given for why Mr. Robinson called in at 7:40 p.m. rather than before his shift started at 7:00 p.m.
Similarly, the memo from the company in August taking issue with the note from Mr. Robinson's lawyer on the basis that he was not "required" to attend court because he had not actually been subpoenaed appears somewhat unreasonable, since Mr. Robinson was the subject of the proceedings. Another discrepancy involves the company's intention to suspend Mr. Robinson in August in part as a result of an absence for which it asserted there was no note, when there actually was a note in the company's personnel file. In addition, the company's assertions that they were unaware of Mr. Robinson's organizing activities were not particularly credible in light of the meeting with respect to Bill Arquette and the meeting at the French-Canadian Club where Mr. Robinson accompanied Mr. Flynn. The fact that Mr. Treleaven and Mr. Singh eventually left the employ of the company does not suggest otherwise to us, since they left at different times and there was a significant amount of overlap with the tenure of new members of management such as Mr. Diemer.
The way in which Mr. Robinson's disciplinary record was compiled also reflects some artificiality. For example, on at least one occasion it appears that discipline was imposed before the company investigated, rather than after. It also appears that at least three, and perhaps four of the employee warning notices which were presented to the Board were not given to Mr. Robinson at the time that they were prepared. The notices are clearly designed to be delivered to employees as they provide spaces for employee comments, an acknowledgement of receipt by the employee, and the employee's signature. This is also significant in light of Mr. Arthurs' testimony that if his own signature or that of Mr. Berthel was not on a document and the employee did not sign it, then it was not "issued". In addition, Mr. Diemer, Mr. Arthurs and Mr. Berthel were somewhat vague as to which of them played various roles in the disciplinary notices and assessments. Mr. Arthurs and Mr. Diemer in particular were uncertain about various aspects of these events, and could not remember at times who recommended the imposition of some of the demerit points, whether the notices had been given to Mr. Robinson, why the notices were sometimes signed by one or the other of them and sometimes not, when they were signed, why they were dated when they were, when or whether they spoke to each other about the notices and with who else they discussed them.
On the other hand, there is no doubt that Mr. Robinson was a highly undesirable employee from the respondent's point of view. Not only was he absent or late without notice on quite a number of occasions, but it is clear that the company's officials were skeptical of both his reasons and his notes. We share that skepticism. Indeed, at the close of Mr. Robinson's cross-examination by counsel for the company, it is fair to say that Mr. Robinson's evidence was almost entirely lacking in credibility. As a result, where there was a conflict between Mr. Robinson's testimony and that of another witness, we have for the most part preferred that of the other witness. Moreover, it is possible that some of the discrepancies in the company's conduct can be at least partially ascribed to ineptitude, rather than improper motivation.
In reviewing the evidence as a whole, however, we find that we are not satisfied on the balance of probabilities that the respondent's reasons were entirely free of improper motives. Rather, on balance we think that the evidence indicates that this is the kind of case described in The Barrie Examiner, supra, and Pop Shoppe, supra, where legitimate reasons for Mr. Robinson's discharge co-exist with unlawful reasons. In other words, even though Mr. Robinson was an undesirable employee from the company's point of view, the discrepancies in the company's conduct set out earlier together with other evidence including the timing of these events and the company's knowledge of Mr. Robinson's union activities indicate that his deficiencies as an employee were not the only reason his employment was terminated. Having regard to the onus under section 91(5) and the Board's jurisprudence in this regard, we find that the respondent violated section 67 of the Labour Relations Act.
We therefore direct that Mr. Robinson be reinstated to his employment with the respondent, and that the respondent pay compensation to him for lost wages and benefits together with interest in accordance with the Board's practice note in this regard.
DECISION OF BOARD MEMBER ROSS W. PIRRIE; November 17, 1992
I dissent.
The majority has it correct when it records at paragraph 43 that Mr. Robinson "... was a highly undesirable employee..." and that his "... evidence was almost entirely lacking in credibility." Beyond those observations I disassociate myself from this award.
The majority hold that on the one hand Robinson was a highly undesirable employee, but on the other the employer was not quite straightforward in dealing with and disciplining him, and that some of their case against him was manufactured. While the employer did not do the most sophisticated job of managing Mr. Robinson and administering its own discipline system, I find nothing in the evidence to suggest that they were out to get Robinson or that there was anything artificial about what they did. Mr. Robinson's total lack of credibility was not only a factor which this Board had to deal with. It was a factor with which the company's representatives had to deal with on the job on a day to day basis. I cite one incident which I feel typifies the situation they faced.
Mr. Robinson did not show, nor did he call in advance to say he would not be in for work on July 11, 1990. This is a day on which he was scheduled to work the 7:00 a.m. to 7:00 p.m. shift. Mr. Robinson was assessed 25 demerit points under the company's disciplinary system, and on July 12 - his next scheduled work day - the plant manager convened a meeting to provide Mr. Robinson with an opportunity to explain his absence. Mr. Robinson's explanation was that when he got up for work in the morning there was a note on the refrigerator that there was a doctor's appointment for Tommy Robinson at 9:00 a.m. that day. He went to the doctor named in the note. However, when he got there for the 9:00 a.m. appointment he found that it was for his son - also named Tommy Robinson. He did not bother to call in before the start of his shift or before he left for the doctor's office. When at 9:00 a.m. he found the appointment was not for him, he went home. Not surprising the company's representatives were skeptical of his explanation. In the meeting their skepticism was voiced, but Mr. Robinson stuck to his story. He could not tell the company representatives the name of the doctor or provide any details about the nurse, the receptionist etc. All he knew was that the office was at or in the 1100 block of Ouellette Street. When the plant manager offered to drive Mr. Robinson to the doctor's office to verify the incident, Mr. Robinson refused the offer and stated he would do his best to remember the doctor's name. This was not the end of the story. Mr. Robinson subsequently produces a doctor's note from The Urgent Care Centre on Tecumseh Road East for a visit on July 11. The note states he was "unfit" for "work" and that he "may return tomorrow". Absolutely no relationship to this explanation for the absence.
I would ask, how or why would the management of the company put any credence in what Mr. Robinson would have to say on any subject. But that was not the end of the incident. Because Mr. Robinson produced a note for July 11, the company rescinded the twenty-five demerit points. Not very bright on their part, but also not exactly the actions of an employer out to get Mr. Robinson, as the union urges and as my colleagues believe.
Mr. Robinson had a lousy attendance record. The company tried to deal with that issue. At paragraph 17 and 18 the majority review a meeting convened on August 27, 1990 by the new plant manager, Mr. Berthel. This meeting was followed up with a memo dated August 31st to Mr. Robinson confirming the matters discussed. The majority at paragraphs 17 and 41 make much of what is an obvious error on the part of the new plant manager concerning the issue of a subpoena for an August 17 absence when Mr. Robinson was in court. At the same time the majority dismisses out of hand the effort and the offer by the company to assist Mr. Robinson with his absentee difficulties. The last three paragraphs of the memo read as follows:
"It was expected that Mr. Sigh's memo to you of July 17, 1990 made clear the requirements regarding certification of absences, however, we make this last attempt at communicating this requirement nevertheless. I truly hope that by following such a clear procedure we can avoid misunderstandings in the future.
Tommy (Robinson), I want to be very clear. Your attendance has not been satisfactory and it must improve. Failure to improve would result in suspension, and ultimately discharge. I hope this unpleasant solution won't be necessary, however you are the only one that can decide that.
If I or anyone of the staff at Kautex can help you meet your employment obligations better, please go and get that help. We are willing to help if we can."
Not exactly the actions of an employer out to get one of their employees as my colleagues believe.
What happens next? Robinson does not show for work on September 5, 1990, nor does he call in. He does however provide a doctor's note for the absence the following day. His supervisor prepares an Employee Warning Notice dated September 6 covering the incident, on which he records "(Robinson) brought in doctor's note for September 5 but talked to him and reminded him that he must call in when he is going to be absent". No demerit points are assessed against Mr. Robinson. At paragraph 19 the majority observed "it is not clear whether the notice was given to Mr. Robinson, although Mr. Diemer (his supervisor) thought he may have shown it to him. The notice is not signed by Mr. Robinson acknowledging receipt".
There is no observation on the part of my colleagues that Mr. Robinson's failure to call in to let his supervisor know that he would be absent is yet another example of his irresponsible behaviour. No, but at paragraph 42 the fact that the Employee Warning Notice was not signed by Mr. Robinson is cited as part of the artificial record created by the company. This Employee Warning Notice assesses no demerit points, and it plays no part in Robinson's ultimate termination. It simply records the fact that his supervisor spoke to him about calling in. My view of this document is that rather than bolster the proposition that it is part of the grand conspiracy on the part of the company, it is in fact yet another example of the leniency the company showed Mr. Robinson. Coming as it does just days after the August 31st memo the company could quite legitimately have jumped all over Robinson for not calling in.
Further I take serious issue with the entire notion of "artificiality" expressed in paragraph 42. There are indeed a number of Employee Warning Notices which Mr. Robinson did not see or sign. In each instance there is a perfectly logical and plausible explanation as to why Robinson did not see or indeed sign them, which the majority will not accept. Instead they choose to see this as part of a company conspiracy to get Mr. Robinson.
Concerning the blow-mold incident I am of the firm conviction it occurred in the manner and for the reasons described by the company. The union's witnesses to the incident, in particular Mr. Mitchell and Mr. Robinson himself, are simply not credible. Mr. Mitchell, for example, placed the incident on the wrong shift and on the wrong break on the shift. This together with the balance of his evidence concerning the blow-mold having malfunctioned on every mold throughout his shift, and that despite numerous complaints to this supervisor no action was taken to correct the malfunction is simply not to be believed. As for Mr. Robinson I don't think I need say more.
The majority take no position as to what caused the damage to the blow-mold machine and the two tanks. Again what they do is seize on what they see as some shortcomings in the com
pany's procedure around investigating the incident and the handling of Mr. Robinson's eventual termination as part of their conspiracy to get rid of him.
The majority at paragraphs 39 through 42 make their case that the company effectively conspired to build its case against Mr. Robinson in order to terminate him because he was one of the key union organizers responsible for having the C.A.W. organize Kautex.
Let me first say I have a great deal of trouble with the proposition that Mr. Robinson was anything more than a bit player in the organizing activity. He witnessed two membership cards out of some one hundred and twenty, one of which was used by the union. He handed out C.A.W. T-shirts and hats and he attended meetings. The evidence that he was one of the "key organizers" came from Mr. Flynn. Mr. Flynn was the union's representative responsible for the C.A.W. organizing campaign. He was the union's first witness in this case, following which he acted as counsel for the union in presenting this case to the Board. I am somewhat skeptical of the value of the answers to questions that are effectively posed by the same person. As for Mr. Robinson the best he could say for his role in the organizing campaign came in cross-examination when he was asked if he was one of four, then six, then eight of the key in-plant organizers. In answer in each instance was "I was involved".
Two incidences are cited by the majority in paragraph 41 to make their case that the company had to be aware of Robinson's organizing activities. The Arquette incident in April as set out in paragraph 4 and the June meeting at the French-Canadian Club at paragraph 7. By the time Robinson's attendance record gets truly serious in August the management representatives in these two incidents have terminated their employment with the company. There is no evidence whatsoever that Mr. Diemer, or any of the other members of management involved in Mr. Robinson's termination, were aware of the two incidences. There is no evidence whatsoever that other than Robinson being a supporter of the union that he was significantly involved in the organizing campaign. There is no evidence whatsoever that these considerations played any part in Robinson's termination.
Not once from January to September 1990 covering the period in which the C.A.W. conducted its campaign leading to certification, and during which it is maintained the company was out to get Mr. Robinson, did the union take a single step to defend this "key" organizers. No Section 91 complaint was filed with the Board, no discussions with the company officials by Mr. Flynn. Instead we have evidence of Mr. Flynn telling Mr. Robinson to comply with the company rules, because he knows Mr. Robinson is not doing so.
Did the acts of omission or commission on the part of the company occur as set out in paragraphs 39 through 42? It would appear they did. Do they justify finding they were part of the reason Robinson was terminated? I think not.
At paragraph 39 there is the concern that "... Mr. Robinson's employment problems commenced at about the same time as his union involvement". Mr. Robinson was hired in mid-September 1989 on three month's probation. He maintained a perfect attendance record during the probation period to mid December 1989 and on through January 1990. In February 1990 he is absent once and late twice, in March he is late twice, and in April Mr. Robinson is absent once and late or left early four times. The company speaks to him about its concerns, confirms its concerns in writing in early May requiring that he produce verifiable notes for future absences. It assesses no demerit points. If one wants to make a connection to union involvement I guess one can, but I fail to see it.
Also at paragraph 39 "... he was in fact discharged approximately 2 weeks after the union was certified... ". So what. The company did not set the date on which the union was certified, it did not control the dates on which Mr. Robinson was absent, and it certainly did not control the date on which Mr. Robinson caused the blow-mold incident. A connection to union involvement - I guess so if you want to believe.
Continuing at paragraph 39 "... the company was attempting to build a paper record against Mr. Robinson sometimes in a manner that was quite artificial...". Clearly the company was documenting events as they occurred - events which Mr. Robinson controlled. One can imagine the majority's comments if there had been no documentation. And, as noted earlier, I find absolutely nothing "artificial" about the documentation.
I agree with the majority at paragraph 42 that the company's explanations were vague about some of the details around incidents involving Mr. Robertson's case. I did not put this down to their fabricating their testimony as I did with respect to most of the union's witnesses.
In summary, Mr. Robinson was a very undesirable employee and on his own evidence he was not to be believed on virtually any subject. He created the incidents for which he was terminated, and they had nothing to do with a supposed role in the union. In my opinion the company met its onus of proof and I would have dismissed the union's complaint.