[1993] OLRB Rep. November 1214
1287-92-U Canadian Union of Public Employees, Local 5, Applicant v. The Corporation of the City of Hamilton, Responding Party
BEFORE: Janice Johnston, Vice-Chair, and Board Members R. M. Sloan and K. Davies.
APPEARANCES: Brian Sheehan, Sid Gratton, Dave Michor and Louis Cialini for the applicant;
Walter Thornton, R. J. Menagh and J. G. Pavelka for the responding party.
DECISION OF JANICE JOHNSTON, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; November 9, 1993
This is an application pursuant to section 91 of the Labour Relations Act (the "Act") alleging a violation of sections 3, 65, 67 and 71 of the Act.
By way of preliminary remarks, the Canadian Union of Public Employees, Local 5 (the "union" or "CUPE") argued that the Corporation of the City of Hamilton (the "City" or the "employer") violated the Act when it issued a written reprimand to Mr. David Michor, a member of the union's executive committee. The union viewed the letter as having a chilling effect on the lawful activities of the trade union. The union took the position that the activities engaged in by Mr. Michor were protected union activities under the Act. The City conceded that the activities of Mr. Michor were lawful activities protected by the Act. However, this was not the issue in their submission. The City stated that the discipline of Mr. Michor had nothing to do with the union and the fact that he was a member of the union's executive. He was disciplined for a breach of the duty of fidelity owed by an employee to his employer. In the employer's view any person who acted as Mr. Michor had would be dealt with in the same way. The City characterized the issue before the Board as not what is permissible union activity, but has the employer violated the Act by disciplining Mr. Michor.
The following agreed statement of facts was provided to the Board by the parties:
The Corporation of the City of Hamilton ("the City") and the Canadian Union of Public Employees, Local 5 ('Local 5") are bound to a collective agreement.
The City operated and managed the Dundurn Castle Aviary at all material times. The 1991-1994 collective agreement between Local 5 and the City contains a Job Title for Aviary Technician.
On March 27, 1992 the committee of the whole of the City Council eliminated the Aviary technician position, effective July 1, 1992, which gave rise to the possible closing of the Aviary. It was decided that the incumbent in the Aviary technician position be transferred to another bargaining unit position.
Subsequently, officials of the City were contacted by representatives of volunteer groups regarding volunteers being utilized to keep the aviary operating after July 1, 1992.
Local 5 decided to initiate a lobbying campaign designed to maintain the Aviary Technician position.
On May 19, 1992, the Parks and Recreation Sub-Committee of City Council debated a recommendation of the Manager of Streets and Sanitation that "approval be given for the Hamilton and District Budgerigar and Cage Bird Society and the Caged Bird Society of Hamilton to manage the operation of the Dundurn Aviary with volunteers effective July 1,1992
Included in the recommendation was a proposed management plan jointly submitted by the Societies (hereinafter referred to as the "Society").
At the May 19, 1992, meeting of the Parks and Recreation Committee, Mr. David Michor, Grievance Committee Chairperson for Local 5, made a presentation on behalf of the Local seeking to have the Aviary Technician position retained. The Local indicated that it was not opposed to the use of volunteers to assist the Aviary Technician.
The recommendation of the Manager of Streets and Sanitation to the Parks and Recreation Committee was passed.
On May 20, 1992, Mr. Michor decided to attempt to lobby Ms. Bernadette Hansen, one of the spokespersons for the Society, at her home. Mr. Michor identified himself to Ms. Hansen as a representative of Local 5.
Later that evening Mr. Michor spoke by telephone to other representatives of the society, including a Ms. Little and a Mr. Webb.
On May 22, 1992, Local 5 held a Press Conference to state its opposition to the elimination of the Aviary Technician position. Mr. Michor was one of the spokespersons from Local 5 at the Press Conference.
On May 25, 1992, City Council approved the May 19, 1992, Parks and Recreation Committee recommendation.
On June 24, 1992, Mr. Michor received a written warning from Mr. J.G. Pavelka, Chief Administrative Officer for the Corporation of the City of Hamilton.
The Board also heard from two witnesses, Mr. J. G. Pavelka, Chief Administrative Officer for the City of Hamilton and Ms. Bernadette Hansen, who gave evidence on behalf of the City.
- This matter was heard by the Board on May 7, 1993. On May 11, 1993 the Board received the following letter from counsel for the City:
We represent the City of Hamilton in the above-noted matter.
At the hearing on Friday, May 7, 1993, the City raised certain objections (the details of which were provided to the Board) based on a denial of natural justice. The City made its submissions in relation to the merits of the Complaint on a without prejudice basis.
The applicable decisions (some of which are enclosed) indicate that a denial of natural justice is a "jurisdictional" error. Accordingly, the City respectfully submits that the Board should make a decision in relation to the objections raised by the City, and only issue a decision on the merits of the Complaint if such objections are dismissed.
The submissions referred to by counsel for the employer were made at the conclusion of the evidentiary portion of the case. At the outset we would observe that at the time he made his submissions to the Board, counsel for the City did not assert that he was making an objection to the Board's jurisdiction. Nor did he indicate that he was making his submissions with regard to the merits of the complaint on a without prejudice basis. After listening to counsel's submissions, the Vice-Chair asked counsel why he was making the submissions and asked what he was requesting the panel to do as a result of them. Counsel for the City responded that he would go ahead with his submissions on the merits unless the Board refused to allow him to do so. He indicated that the Board could then make its decision on the merits and the City, in his words "can do what we feel is appropriate". Counsel did not allege bias or a denial of natural justice. The Board did not preclude him from making his submissions on the merits, which he proceeded at that point to do.
In the submissions referred to in the letter, counsel put various concerns before the Board. We will set out these concerns and then provide the context within which they arose. First of all, counsel indicated that he felt he had been pressured to put his evidence in quickly and that he therefore had questioned witnesses in a more abbreviated fashion than he would normally have. He stated that he felt that his questioning of Mr. Pavelka was limited by his questioning of Ms. Hansen. Secondly, he argued that the Vice-Chair had formed an opinion with regard to the law in this case as the Vice-Chair agreed with a particular comment made by counsel for the union. Finally, in his opinion, the Vice-Chair also pressured him into answering a question which he felt was not relevant and in answering it he felt that he was being forced to acknowledge that it was relevant. In addition, counsel for the employer pointed out that the Vice-Chair appeared to be annoyed by his reluctance to answer the question.
To understand counsel's submissions, it is necessary to review the portion of the hearing which caused him concern. In examination in chief of Mr. Pavelka, counsel on behalf of the City asked Mr. Pavelka to provide the Board with a summary of his conversations with Ms. Hansen. Counsel on behalf of the union objected to the question on the basis that it would elicit hearsay evidence and pointed out that Ms. Hansen, who had already completed her testimony, had not been asked to elaborate on her conversations with Mr. Pavelka. Ms. Hansen had only been asked whether she had had conversations, not about the content of those conversations.
In support of his position that the question was appropriate, counsel for the employer argued that it was important for the Board to hear the information upon which Mr. Pavelka acted. He argued that the City sought to put the evidence before the Board, not for the truth of it, but to establish why the employer disciplined Michor. It appears that the disputed evidence went to whether Ms. Hansen was upset by Mr. Michor's visit. Counsel for the union objected again and asked whether the City was suggesting that Mr. Michor applied undue pressure or in some way "crossed the line" and acted improperly in his conversation with Ms. Hansen. Counsel for the union expressed concern that this had not been pleaded and was not the case he was prepared to meet. He indicated that he understood the City was taking the position that Mr. Michor lobbied or pressured Ms. Hansen but did not apply undue pressure or conduct himself inappropriately towards her. Based on the pleadings, counsel for the City's opening remarks and the agreed statement of facts, this was the Board's understanding as well. We understood the City's position to be that Mr. Michor was disciplined because he had the conversation, not because he was abusive or intimidating towards Ms. Hansen. As counsel for the City refused to answer union counsel's question, the Vice-Chair also expressed concern that the City appeared to be changing the theory of its case midway way through the proceedings and asked whether the City was alleging that Mr. Michor's conduct "crossed the line". Counsel for the employer did not answer this question. In an attempt to clarify the question, the Vice-Chair referred to arbitral jurisprudence in which union representatives had been disciplined for inappropriate conduct or for conduct characterized as crossing the boundary of protected union activities. Counsel for the City still did not answer the question and did not appear to understand that he was being asked by the Vice-Chair whether he was attempting to change the theory of his case as it had been pleaded and understood by both the Board and counsel for the union. For whatever reason, counsel for the City did not answer the Board's question.
After hearing the submissions of counsel and taking a short recess to consider the matter, the Board unanimously upheld the union's objection for the reasons provided at the hearing, including on grounds of relevance, as the content or manner of the conversations between Mr. Michor and Ms. Hansen had not been put in issue and questions about the content were not relevant. It would have been unfair, after Ms. Hansen had finished testifying to allow the employer to raise this issue for the first time. After the Board's ruling; counsel for the employer abruptly ended his examination in chief of Mr. Pavelka after asking only two more questions. The cross-examination of Mr. Pavelka followed and although he was given the opportunity, counsel for the employer did not ask any questions in re-examination. The union elected not to call any evidence, therefore the evidentiary portion of the case concluded at this point. The lunch break was taken and when we returned after lunch counsel for the City made the submissions already referred to.
In support of his position that the City had been denied natural justice counsel for the City referred the Board to the following cases: Re Coastal Transport Ltd. and Seafarers' International Union of Canada, (1975) 57 D.L.R. (3d) March 618.; Re Golomb and College of Physicians and Surgeons of Ontario, (1976) 68 D.L.R. (3d) Jan. 25; Re Gooliah and Minister of Citizenship and Immigration, (1967) 63 D.L.R. (2d) Apr. 224; Re Stora, etc. and Woodlot Ass'n, (1975) 61 D.L.R. (3d) June 97; Re McKendry and Deputy Minister of Department of Regional Economic Expansion, (1973) 35 D.L.R. (3d) Feb. 305; and Re Actus Management Ltd. and City of Calgary, (1975)62 D.L.R. (3d) Sept. 421.
Do counsel for the City's expressed concerns with regard to the manner in which the hearing was conducted establish that the City has been denied natural justice or that the comments made and questions asked by the Vice-Chair in the course of the hearing indicate bias, either actual or perceived? In Careful Hand Laundry and Dry Cleaners Limited, [1988] OLRB Rep. Dec. 1205 the Board outlined the appropriate test with regard to allegations of bias. The relevant portion reads as follows:
The applicable test was framed as follows by Laskin C.J.C., speaking for the majority, in Committee for Justice and Liberty v. National Energy Board (1976), 1976 CanLII 2 (SCC), 68 D.L.R. (3d) 716 (S.C.C.): that a reasonably well-informed person could properly have a reasonable apprehension of a biased appraisal and judgment of the issues to be determined (p.733). The Chief Justice continued that "the test of reasonable apprehension of bias ... [is a restatement of] what Rand, J. said in Szilard v. Szasz, 1954 CanLII 4 (SCC), [1955] 1 D.L.R. 370 at p. 373, [1955] 5CR. 3 at pp. 6-7 [which, like the Committee for Justice and Liberty, involved bias based on prior association], in speaking of the 'probability or reasoned suspicion of biased appraisal and judgment, unintended though it be"'.
The test is an objective one. It is not sufficient to find apprehension of bias in a decision-maker simply because one party states "I am afraid the adjudicator will be biased because of something she said"; on the other hand, it is not sufficient for the adjudicator to deal with the matter simply by saying "I am not biased" or "I do not think anyone should think I would be biased". An objective test is necessary to avoid both allegations and determinations which are more reflective of self-interest than actuality. The determination must therefore be based on an assessment of the impugned words, including the context in which they were made and the surrounding statements. The test is whether a person who is informed about the circumstances surrounding the event giving rise to the allegation could have a reasonable apprehension that the adjudicator will not or will not be able to determine the matters in issue in a manner consistent with providing a fair and impartial hearing.
Counsel for the City indicated that he felt pressured to put his evidence in quickly. However, no details as to the cause of this perception have been provided. The Board had scheduled two hearing days to deal with this case. On the first day of hearing, after having heard the opening statements of counsel, the Board suggested that the parties make one more attempt to settle the case. This attempt was unsuccessful and the hearing re-convened at 3:30 p.m. The Board at this time requested that the parties endeavour to reach agreement on as many of the facts as possible. The pleadings reflected that very little was in dispute factually between the parties. Given that the first day of hearing had been lost, the Board did indicate concerns that the hearing may not be completed in the time allotted if this effort was not made. The parties agreed to the Board's suggestion and were successful in reaching agreement on many of the facts, as already noted. Perhaps it is this pressure that counsel was referring to when he alleges that he had been pressured to put his evidence in quickly. While the Board may have expressed concerns, once the hearing of evidence commenced on the second day, the Board did not interfere (other than in dealing with objections made by the union) with the manner in which counsel chose to present their cases. Naturally the Board wanted to make the most efficient use of the time available. This is not unusual nor is there anything untoward in it. The Board's conduct in this respect was not a denial of natural justice.
Counsel for the City did not argue that the Board had prevented him from calling witnesses or had cut short his questioning of a witness. Other than the fact that the Board upheld the objection raised by counsel for the union in the one instance already dealt with, counsel for the City was allowed to put his case before the Board. The Board provided counsel with a full opportunity to call as many witnesses as he deemed appropriate and other than the one incident already referred to, counsel's questioning of his witnesses was not curtailed by the Board in any fashion. Counsel for the City did not request the opportunity to recall Ms. Hansen, nor did he offer any explanation for his failure to question her regarding the comments she made to Mr. Pavelka. Both parties were afforded the opportunity to make full submissions.
Counsel for the City expressed concerns that the Vice-Chair had formed an opinion with regard to the law, forced him to respond to a question he did not consider relevant and then seemed to be annoyed. As already noted, in dealing with an objection to a question asked by counsel for the City the Vice-Chair referred to some jurisprudence in an attempt to clarify the objection that counsel for the union had made. The jurisprudence was merely being utilized to assist counsel for the employer in understanding the question he was being asked. The cases were raised to provide examples of particular factual situations. They were raised in an attempt to ascertain why the City sought to introduce the evidence that counsel for the union had objected to. It appears that counsel for the City may have misinterpreted what was said, and why it was said. It is not alleged that the City was denied the opportunity to call its evidence, make full final submissions and refer the Board to the jurisprudence it considered relevant. Nothing in the Board's comments could reasonably lead to the apprehension that the Board had already "made up its mind". Adjudicators often have a sense of the merits of the parties' positions, a sense which may well change as a case proceeds. Having such a sense, an awareness of the obstacles a party may have to overcome to be successful, does not constitute a denial of natural justice, nor does it raise a reasonable apprehension of bias.
Turning to the question asked of counsel by the Board, it is not for counsel to assess whether the questions are relevant or merit a response. Anyone who refuses to answer a question asked by the Board does so at his/her peril. The Board would not be able to properly conduct hearings, or fulfill its statutory mandate, if it could not ask questions of counsel or if counsel decided whether the questions deserved answers. In the case at hand, it is difficult to conceive of a more relevant question of counsel than one which asks what his case is about. For all of the reasons outlined, in the result, we conclude that there was no denial of natural justice. The City's motion is therefore dismissed.
Turning now to the merits, there is little dispute on the facts in this case. However, the parties characterize and interpret the facts differently and attach different attributions to the conduct of Mr. Michor.
As noted in the agreed statement of facts, the day after the Parks and Recreation Committee accepted the management plan put forward by the two societies, Mr. Michor went to the home of Ms. Hansen. Mr. Michor obtained Ms. Hansen's address from the first page of the management plan which had been submitted. Mr. Michor visited Ms. Hansen around 6:30 p.m. on May 20, 1992. When he arrived at her house he introduced himself as a representative of the union and gave her a business card. He then asked Ms. Hansen's permission to discuss with her the matter which had been dealt with by the Parks and Recreation Committee the day before. Ms. Hansen invited him in, made coffee and they discussed the matter for forty-five minutes to one hour.
Mr. Michor indicated to Ms. Hansen that he was there on behalf of the union to win the co-operation of the societies in assisting the union in its attempts to retain the position at the Aviary. Mr. Michor and Ms. Hansen each had a copy of the plan which had been submitted by the societies to the Parks and Recreation Committee the day before. They went through the plan and Mr. Michor suggested changes that the union would like the societies to make to the plan. Ms. Hansen wrote the changes on her copy of the plan. The changes reflected the position that Mr. Michor, on behalf of the union, was requesting the societies to adopt, namely that volunteers from the societies were to assist the Aviary Technician, not take over the job of the Aviary Technician and the management of the Aviary. Mr. Michor told Ms. Hansen that the incumbent Aviary Technician would lose his job and be moved to another position. He told Ms. Hansen that the union would like the societies to show their support for the retention of the Aviary Technician position by attending a press conference being held on June 22, 1992. Ms. Hansen explained to Mr. Michor that she was only the secretary treasurer of her society and had no authority to change the management plan that had already been passed. Ms. Hansen gave Mr. Michor Ms. Joan Little's telephone number so that he could discuss his suggestions with her. The tone of the conversation between Ms. Hansen and Mr. Michor was very pleasant and no heated words were exchanged. To use the words of Ms. Hansen" he (Mr. Michor) was very nice during the whole time".
After her discussion with Mr. Michor, Ms. Hansen had discussions with Ms. Little and other members of the Societies regarding her conversation with Mr. Michor. She indicated to them that she had been visited by a union representative and that he had requested that the two societies participate in the press conference. Ms. Hansen also indicated to people that she did not agree that the societies should do so. Ms. Hansen first spoke on the telephone to Mr. Pavelka on June 15, 1992. Mr. Pavelka confirmed various facts with regard to Mr. Michor's visit to her. Mr. Pavelka spoke with Ms. Hansen two or three times.
Mr. Pavelka made the decision to discipline Mr. Michor. He went to the Human Resources Department to get advice on the appropriate level of discipline and with the assistance of someone from that department formulated the warning letter given to Mr. Michor. That letter reads as follows:
It has come to my attention that on the evening of Wednesday, May 20, 1992 you visited and telephoned Ms. B. Hansen and Ms. J. Little, two members of the Hamilton Cage Bird Society.
It appears that your intention in visiting these individuals was to pressure them into reconsidering their decision to volunteer their services in the Aviary. Your visit to these citizens took place following a meeting of the Parks and Recreation Committee at which the Union was given an opportunity to present its position.
Following a decision by that Committee to proceed in a manner that the Union did not agree with, you engaged in activities which were clearly designed to subvert the will of the Corporation as expressed by its elected leaders. We cannot but view this behaviour as placing you in a direct conflict of interest with your employer in attempting to undermine or impair the credibility and functioning of its Public Works Department and its programs. This behaviour is completely unacceptable and warrants a disciplinary response in the form of a suspension or termination.
Since this is the first occasion where a member of your Local, either acting alone or as a representative of the Union executive, has engaged in such activity, we feel it is appropriate instead to express the employer's displeasure by placing this written reprimand on your personal file.
We hope that this will serve the purpose of alerting not only yourself, but also the Union body in general, to the fact that the Employer will not tolerate this type of behaviour and will deal with it severely in the future. You and your Union should understand that future occurrences of this type of activity will be dealt with by suspension or termination.
- In examination in chief Mr. Pavelka testified that his decision to discipline Mr. Michor was in no way based on Mr. Michor's position with the union. He indicated that he decided to, in his words, "write to this employee because he had overstepped his bounds". Yet in cross- examination, he acknowledged that he was trying to send a message to the union's executive and that the letter of discipline was beyond a letter to Mr. Michor alone. Later in cross-examination, he changed this testimony and again testified that the letter was not intended to be a message to the union.
Argument
Counsel on behalf of the City acknowledged that Mr. Michor's activities amount to lawful trade union activities within the meaning of section 3, 65, 67 and 71 of the Act. However, in his submission by admitting this the employer was not thereby admitting to a violation of the Act. He argued that Mr. Michor was disciplined for his breach of the duty of fidelity he owes to his employer and that the discipline was not in any way based on Mr. Michor's position in the union. Counsel argued that if any employee engaged in similar conduct they would be disciplined.
In his argument counsel for the employer referred the Board to The St. Catherines General Hospital, [1982] OLRB Rep. Mar. 441; Mel Hall Transport, [1991] OLRB Rep. Jan. 61; and an excerpt found at pages 489 to 497 from Canadian Labour Law, a text written by The Honourable Mr. Justice George W. Adams. Counsel argued that the St. Catherines General Hospital, supra, stood for the proposition that the employer's motive in imposing discipline is relevant to a determination as to whether the Act has been violated. In order to conclude that the Act has been violated the Board has to find that the employer's motivation was improper and that it constituted an attempt to interfere with the trade union. Counsel did concede that section 65 is the only section that could be "non-motive" in nature. In referring to the Adams' excerpt, counsel argued that the Board, to rule in favour of the union, must find actual unfair motive or infer one in the circumstances. The Board must find the absence of a legitimate employer purpose in disciplining Mr. Michor to conclude that there has been a breach of the Act. Based on the Board's jurisprudence, counsel argued that if there is no anti-union motive the complaint should be dismissed.
The employer's counsel took the position that it is not the task of the Board to determine whether it disagrees with the letter given to Mr. Michor nor to determine whether a written warning was appropriate in the circumstances. The employer argues that Mr. Michor was disciplined for his breach of the duty of fidelity but points out that it is not up to the Board to determine if the duty owed by an employee to the employer was in fact breached. Those questions may only be properly answered by an arbitrator in counsel's opinion. The Board's duty is to decide if the reason given for the discipline, breach of duty of fidelity, was in fact the reason Mr. Michor was disciplined. If the Board was to rule against the employer simply because discipline was imposed, without looking at the employer's motive, counsel argued that that would in future deprive the employer of the right to discipline.
The employer's counsel argued that the actions of Mr. Michor were intentional and his purpose in visiting Ms. Hansen was to persuade her to change the management plan which had been submitted. The only purpose for the visit was to achieve that objective. The Board should therefore conclude, in counsel's opinion, that Mr. Pavelka's response was aimed at that perceived breach of fidelity and nothing else.
Counsel on behalf of the union admitted that there is a legitimate employer interest in ensuring that employees do not breach the duty of fidelity which is owed to the employer. However, counsel suggested that the question in this case is how to balance the protected activities of a trade union to represent its members, against this duty of fidelity. Counsel argued that a union is obligated to represent its members and has rights which are protected by the Act.
In this case, counsel pointed out that Mr. Michor was disciplined for criticising or lobbying against a decision made by a committee of the City council. There were no allegations of abusive or coercive behaviour on the part of Mr. Michor, he was disciplined for the mere fact that he lobbied against the City's decision. Counsel suggested that lobbying third parties is fundamental to a trade union's role and that an employer cannot expect the union to automatically "fall in line" if a decision is made that it disagrees with. In counsel's opinion, ultimately in this case the employer is sending a message to the union and is trying to stifle and control the legitimate representational rights and protected or lawful activities of the trade union when it suggests that resort to the public to express disagreement with an employer's decision is a breach of the duty of fidelity and will result in discipline. Counsel pointed out that the union in this case is a public sector union that regularly deals with the public and lobbies the representatives of the public, the City Aldermen.
Counsel for the union argues that section 3 of the Act creates substantive rights which are enforceable through other sections. Section 3 gives every person the right to participate in lawful union activities. Counsel took the position that it was clear that section 67 and section 71 of the Act had been violated, as the City was trying to compel Mr. Michor and the union to refrain from engaging in activities, which by the City's own admission, were protected by the Act. Counsel acknowledges that the discipline was not motivated by an anti-union motive but the fact remains that Mr. Michor was disciplined for exercising rights protected by the Act. If the behaviour is protected and Mr. Michor was disciplined for it, it must be a violation of the Act in counsel's opinion. Counsel argued that the Board's jurisprudence makes it clear that not every interference with a trade union's rights will give rise to a violation of section 65 and that the Board balances the rights of a union vis a vis the rights of an employer in determining whether section 65 has been violated. Intent on the part of the employer is not a necessary prerequisite to a violation of section 65. Counsel suggested that if the employer's intention in imposing discipline were the key, the employer could fire the whole union executive for engaging in protected activity and then argue that their status in the union had nothing to do with the decision.
Counsel for the union also referred the Board to St. Catherines Hospital, supra, case in support of his argument. He pointed out that counsel for the employer misses the key issue in St. Catherines Hospital, supra, case which is that discipline was not imposed by the employer and there was no direct interference or letter to a union representative from the employer indicating that future incidents would result in more serious discipline. In the case before the Board, discipline was imposed and the employer directly interfered with the union's rights under the Act. On the facts in St. Catherines Hospital, supra, the Board felt that it could only find a violation of the Act if the referral to the College of Nurses was triggered by a reprisal mentality or motive as the employer itself did not impose discipline. In support of his arguments counsel also referred the Board to Re Burns Meats Ltd. and Food & Allied Workers, (1980) 1980 CanLII 4012 (ON LA), 26 L.A.C. (2d) 379; Re Canada Post Corp. and C.U.P.W. (Van Donk), (1990) 1990 CanLII 12728 (CA LA), 12 L.A.C. (4th) 336; Re Interforest Ltd. and International Woodworkers, Local 1-500, (1990) 1990 CanLII 12734 (ON LA), 12 L.A.C. (4th) 257; A. Marie Samson v. Canada Post Corporation, Arichat, N.S., [1987] Can CLRB/CCRT 654.
Decision
The relevant sections of the Act are:
Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.
65.No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
67.No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the Imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
71.No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
There is no dispute that Mr. Michor is a member of the union's executive, that this fact was known to the employer and that the activities engaged in by him which resulted in disciplinary action in the form of a written warning, were lawful trade union activities protected by the Act. When Mr. Michor visited Ms. Hansen, he was acting in the capacity of a trade union representative and not as an employee. He showed his business card to Ms. Hansen and the discussion which followed was a result of Ms. Hansen's acceptance of his status and role in the union. Mr. Michor's visit was on behalf of a bargaining unit member who was about to lose his position. Mr. Michor did not visit Ms. Hansen to lobby her on matters that affected him personally, the reasons for his visit arose out of his capacity as a union official and his desire to assist an employee in the bargaining unit.
There is no disagreement concerning the actions of Mr. Michor which led up to his discipline. However, the employer takes the position that these actions constituted a breach of fidelity which merited discipline and the union argues that no discipline is warranted as Mr. Michor was legitimately exercising his rights and duties as a representative of the union.
In St. Catherines Hospital supra, the grievor, a registered nurse and union president, was reported by the employer to the College of Nurses of Ontario for speaking to the Press about actions on the part of the Hospital that she disagreed with. The employer characterized her conduct as unprofessional. The union argued that the grievor's actions were protected activities under the Act and that in reporting her to the College the employer was interfering with her legal rights. The Board characterized the issues before it in that case as whether the grievor is entitled to the protection of the Labour Relations Act having acted as she did and, if so, whether the Hospital improperly attempted to interfere with the exercise of her freedom under the statute by filing the complaint with the College. After reviewing some of the relevant jurisprudence concerning the respective rights of employers and trade unions, the Board went on to say:
Thus, legitimate employer interests are not swept aside by the legislation. The legislation must be interpreted in the context of an employment relationship and the reciprocal responsibilities of such a relationship. In many cases, indeed most, the accommodation is made on the basis that the requisite unlawful intent of the employer is absent when he is seeking to protect a legitimate interest. Swingline, cited above, is a locus classicus in this regard. But this is not always the case. Sometimes the very actions of the employee to which the employer objects are alleged to constitute union activity which is protected by the statute. In these cases, some balancing of interests by this Board in light of the purposes of the Labour Relations Act is required in order to ascertain the limits of the employee or employer freedom claimed. Kitchener-Waterloo Hospital, supra, falls more directly in this category of cases. Fortunately, this Board has not been confronted with a great number of such cases.
In considering the issues before us a number of approaches are possible. One approach might be to hold that public disparagement of an employer is inconsistent with an ongoing employment relationship and never a lawful activity under the Act worthy of protection. This approach would seek to discourage attempts by trade unions to involve and inform the public although it would only do this in respect of employees. Full time union officials could carry on such efforts subject only to the laws of libel, slander and defamation. There would also be the problem of the press reporting statements directed to employees and the general interest of the public for explanations of particular industrial disputes. At the opposite extreme is the option of permitting employee union officials an unlimited licence to speak publicly about an employer provided the statements relate in some general way to the collective bargaining relationship. This approach would assume that employers could adequately respond in kind and that anything short of such total protection would have an undue "chilling effect" on this type of union activity. An employer could still try to invoke the sanctions available to him in the civil courts and, in doing so, our courts would have to consider the relationship between statutory collective bargaining laws and the laws of libel and slander. In between these two polar positions are a variety of other options. This Board could impose procedural requirements of internal discussion and investigation by the parties before recourse is made to public statements. There might be the limitation that only true statements are to be made publicly with the risk that a statement is untrue residing with the maker. There might also be an approach protecting heated rhetoric and public statements made without malice. This latter approach would not protect statements known to be untrue or made recklessly without concern for truth or falsity but would seek to accommodate the fragile nature of speech rights and the inevitable emotions associated with labour relations.
Arbitration cases have, on a case by case basis, grappled with similar problems and have devised a number of useful principles. The court in Regina v. Fuller et al, Exparte Earles and McKee, 1968 CanLII 326 (ON CA), [1968] 2 O.R. 564, reviewing an arbitration award, emphasized that an employee is under a duty to serve his employer with good faith and fidelity and not deliberately do something which may harm his employer's business. Public vilification of an employer and its officers by individual employees does not have to be tolerated. See Re Office and Professional Employees International Union, Local 263 and Lord Burnham Co. Ltd., supra. Physical obstruction in the form of picketing "ostensibly" for the purposes of informing others, but in fact designed to impede employees at a secondary location, can be reacted to by an employer in the form of discipline. See Re Bell Canada and Communication Workers of Canada (1978), 1978 CanLII 3459 (ON LA), 22 L.A.C. (2d) 119 (Springate). See also Re Edmonton General Hospital and United Nurses Association (1980), 1980 CanLII 4003 (AB GAA), 26 LAC. (2d) 393 (Anderson) where improper activity arose out of a public statement....
One of the most helpful Canadian arbitration cases in Re Burns Meats Ltd. and Canadian Food and Allied Workers, Local P139 (1980), 1980 CanLII 4012 (ON LA), 26 L.A.C. (2d) 379 (M. Picher). In that case the company had discharged the grievor because of what it considered false and defamatory statements about two company officers which he printed in a union newsletter in the course of his duties as chief steward of the union. The public statements were made by the grievor in interpreting the company's conduct with respect to a recent arbitration hearing. While the actual statements objected to are not reported, it is clear that he took exception to the company's bona tides in contesting the grievances. In developing a framework of principles against which to review the facts before it, the majority of the board of arbitration canvassed many of the key American cases that have arisen in the context of The National Labor Relations Act and adopted the test in that country laid down in Linn v. United Plant Guard Workers of America, Local 114 et al (1966), 383 U.S. 53 to the following effect as reported at pages 62 and 63.
We acknowledge that the enactment of s.8(c) [of the National Labor Relations Act] manifests a congressional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered "against the back-ground of a profound ... commitment to the principle that debate . . . should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks." New York Times Co. v. Sullivan, 376 U.S. 254,20 (1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context.
This test is accepted and applied by both the NLRB and the courts in related civil matters. The board in Burns Meats Ltd. went on to state the approach it thought Canadian boards of arbitration ought to follow in similar terms. At pages 386 and 387 it stated:
While generally a company may be entitled to expect a degree of faithfulness and respect from employees in statements which they make after working hours, it is clear that an employer cannot hold employees to a standard of unquestioning loyalty, especially where union business is concerned. It would be unrealistic not to expect that a union steward will, whether in a speech or a newsletter, occasionally express strong disagreement with the company and its officers, and do so in vivid and unflattering terms. Being at the forward edge of encounters with management, the shop steward become particularly vulnerable in the area of discipline. One study has found for example, that one-third of all disciplinary cases involving union stewards are for insubordination: see W. L. Leahy, "Arbitration and Insubordination of Union Stewards", 27 Arb. J. 18 (1972). This is substantially higher than the rate to be found among employees generally: see Adams, Grievance Arbitration of Discharge Cases, supra, p. 45.
If union stewards are to have the freedom to discharge their responsibilities in an adversarial collective bargaining system, they must not be be [sic] muzzled into quiet complacency by the threat of discipline at the hands of their employer. In our view the principles developed by the arbitral awards canvassed above and by the Court in the Linn case disclose the standard to be applied. The statements of union stewards must be protected, but that protection does not extend to statements that are malicious in that they are knowingly or recklessly false. The privilege that must be accorded to the statements of union stewards made in the course of their duties is not an absolute licence or an immunity from discipline in all cases. A steward who openly exhorts employees to participate in an unlawful strike obviously cannot expect that his union office will shield him from discipline for his part in engineering the breach of both a collective agreement and the Labour Relations Act, R.S.O. 1970, c. 232. Similarly, a steward may not use his union office and a union newsletter to recruit and direct employees in a deliberate campaign to harass a member of management: Re City of London, supra. Conduct so obviously illegal or malicious is outside the bounds of lawful union duty and can have no immunity or protection.
Applying this approach to the facts before it, the Board found that the grievor honestly believed what he said to be true although the board in no way endorsed his style or choice of words. The board concluded by writing (at page 389):
While the feelings of Mr. Anderson and Mr. Goetz in response to the newsletter are understandable, and the board in no way endorses the grievor's style and choice of words, the newsletter and the steward's account of the arbitration must be seen for what they are. Any union newsletter is in part a political pamphlet. It cannot be held to the standards of fairness and accuracy of a more disinterested publication. It should come as no surprise to the company that the union's account of the arbitration should be slanted in such a way to bring credit upon itself at the expense of the company and its officers. A thick skin has its place in industrial relations, and those who participate on either side must not be surprised to occasionally find themselves on the receiving end of a stinging verbal blow. Short of malice, such statements must be tolerated. Moreover, the company and its officers in this case were not entirely without recourse. If the company felt that the events had been critically misrepresented by the union it was free to publish and circulate to the employees its own account of what happened and the reason for what its officers said.
- The statement of principle adopted in Burns Meats Ltd. can be traced in the United States from such early private sector cases as NLRB v. Electrical Workers (1953), 33 LRRM 2183 (Jefferson Standard case) to the more recent public sector equivalents such as in Pickering v. Board of Education (1967), 391 U.S. 563. See, for example, Lynd, Employee Speech in the Private and Public Workplace: Two Doctrines or One? (1977), 1 Indus. Rel. L.J. 711. If a trade union official publicly attacks an employer on non-labour relations issues, he breaches the duty of good faith and fidelity and the Jefferson Standard case supports the imposition of discipline or discharge. This is so even when the attack is to achieve a collective bargaining goal. See Coca-Cola Bottling Works, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO (1970), 186 NLRB 1050. But if the statements relate to collective bargaining matters and are made without malice, the activity is protected under the National Labor Relations Act. It seems clear to us that an approach requiring malice draws its rationale out of a concern for the delicate nature of public comment. As noted in New York Times Co. v. Sullivan (1964), 376 U.S. 254 at 279:
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount --leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875,892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone". Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
It might be questioned why there should be any statutory or arbitral protection for public statements causing an employer rightful concern. It can be argued that public statements "politicize" collective bargaining and are inconsistent with the peaceful resolution of private contractual disputes. By providing protection, some persons may be encouraged to employ such tactics with an adverse affect on industrial peace. Unfortunately, as compelling as this argument may be, collective bargaining can impact the public and vice versa. This is particularly the case in public sector collective bargaining where there is often a clear nexus between public funds and collective bargaining issues. Accordingly, employers as well as trade unions often feel it necessary to speak out and inform the public about collective bargaining issues. Indeed, communication to the public in order to inform and gain support is the essence of picket line activity. And while each situation must be judged on its own peculiar facts, employers can also claim a statutory privilege under section 64 of the Labour Relations Act to speak out. See, for example, The Journal Publishing Company Ottawa Ltd., [1977] OLRB Rep. June 309 at 321; and Canada Cement Lafarge Ltd. v. United Cement, Lime & Gypsum Workers International Union, Local 368 (1980), 80 CLLC ¶16,075 at 14,662 et seq. Labour boards have been reluctant to involve themselves as the censor of public statements made in the context of collective bargaining negotiations on the understanding that such tactics have come to be part and parcel of that process. See The Journal Publishing Company Ottawa Ltd., supra; Noranda Metal Industries Limited, [1975] 1 Can. LRBR 145 (BCLRB); Fruehauf Trailer Company of Canada Limited, [1975] OLRB Rep. Jan. 77. We further note that in hospital collective bargaining this Board has already acknowledged the role and interest of a third party such as the Ministry of Health in collective bargaining issues. See St. Joseph's Hospital, [1976] OLRB Rep. June 255. Against this background, it would be naive and unduly restrictive not to acknowledge the legitimate role of public comment and media interest in the collective bargaining process, although we sense that public posturing is not always a constructive force in resolving labour and management disputes. See The Corporation of the Borough of North York, [1968] OLRB Rep. April 66. Undoubtedly, it was this reality of public sector bargaining that discouraged the respondent from objecting before this Board to the complainant writing to the Minister of Health or to holding the press conference in the first place. Indeed, counsel for the respondent made the specific point that the respondent had no objection to the Assessment Committee's report being made public provided that the complainant was accurate in its account of that document. What the respondent did object to, however, was the inaccurate comments of the grievor (and presumably Miss Gribben) relating to the death of Mrs. S.
In the St. Catherines Hospital case the Board concluded that the actions of the grievor were protected under the Act and that her activities amounted to lawful trade union activities under the Act. However, in concluding that the employer had not violated the Act the Board observed:
……However, it is of fundamental importance that the respondent did not itself impose a punishment on the grievor but instead invoked legal procedures available to it to cause the College of Nurses to review the grievor's conduct. The College is a statutory agency empowered to respond to such a complaint and entitled to impose sanctions on a nurse where such is appropriate. In our view, the filing of such a complaint could only be viewed as the imposition of a penalty or improper interference under the Labour Relations Act if the person filing the complaint did not hold a genuine belief that an offense or violation had been committed and was, instead, intent on forcing the grievor through the hardships of defending against such a charge....
The St. Catherines case dealt with a unique fact situation, one very different from the facts before us.
- In the case before us the actions on the part of Mr. Michor to which the employer objects, are acknowledged by the employer to be protected trade union activities. We agree with the observations in St. Catherines Hospital, supra, that some balancing of interests in light of the purposes of the Act is required by the Board in cases of this nature. On the facts of this case, there are no allegations that Mr. Michor publicly vilified his employer or that he made statements to Ms. Hansen that were malicious or knowingly false. It is the fact and purpose of his visit to Ms. Hansen that the employer alleges constitutes a breach of the duty of fidelity. We agree with counsel for the employer that it is not for this Board to determine whether the actions of Mr. Michor constituted a breach of fidelity or constituted just cause for discipline. At the same time the employer acknowledges that the conduct which resulted in his discipline was conduct which is protected by the Act.
However, the employer also chooses to characterize this conduct as a breach of the duty of fidelity. It appears to us that whatever label the employer chooses to place upon the conduct, the fact still remains that the conduct is protected under the Act and therefore discipline is inappropriate. If we were to find that an employer is free to discipline a union official for engaging in a legitimate exercise of rights protected by the Act, simply by stating that the reason for the discipline was something else, the protection provided by the Act would be severely undermined. If the employer's argument is correct, then it would ensure that the employer, through the utilization of disciplinary sanctions, could define what is permissible or protected union activities.
The employer argues that it would have disciplined any employee who engaged in conduct similar to that of Mr. Michor and that his status in the union played no part in the decision to discipline. This argument begs the issue. It highlights the unlawfulness of the employer's actions. Mr. Michor was a union official and was disciplined for acting in that capacity. He was not just any employee but one who had the obligation to represent the union's membership. Whether any other employee would have been disciplined is irrelevant to the determination before us. An employer cannot justify disciplining a union official who is engaged in lawful activities under the Act by simply saying that if another employee engaged in similar conduct they would have been disciplined.
In addition, we do not accept the employer's position that the fact that Mr. Michor was a member of the union's executive played no role in its decision to discipline him. Mr. Pavelka's evidence is quite equivocal on this point and does not support the employer's position. In addition, the letter of warning makes numerous references to “the union" and concludes by saying "you and your union". The employer in issuing this discipline was sending a message to Mr. Michor both in his capacity as an employee and as a union representative and was thus clearly attempting to send a message to the union. Mr. Michor's status in the union was one of the motivating factors behind the discipline. We are satisfied that the employer was imposing this discipline because of Mr. Michor's union activities as a member of the union's executive, and that it intended to prevent Mr. Michor and other union officials from engaging in any such activities in the future.
In disciplining Mr. Michor in the circumstances of this case, the employer has intentionally interfered with the administration of the trade union. In disciplining Mr. Michor. the employer intended to silence the union on matters that the employer admits are protected. The employer's motivation was therefore improper and constituted an attempt to interfere with the trade union contrary to section 65 of the Act. The actions of the City violate section 65 of the Act. Mr. Michor has a statutory right protected by section 65 of the Act to engage in the activities for which he was disciplined, and the City breached the Act when it disciplined him for this conduct.
Accordingly, we therefore:
declare that the responding party has violated the Labour Relations Act;
direct that the discipline imposed on Mr. Michor be rescinded and the letter of June 24, 1992 be removed from his personal file.
DECISION OF BOARD MEMBER R. M. SLOAN; November 9, 1993
With respect I strongly dissent from the majority decision.
The issue before the Board is, in my view, quite simply - did the respondent, as alleged in the complaint, violate sections 3, 65, 67 and 71 of the Labour Relations Act ("the Act") in disciplining Mr. D. Michor for behaviour deemed by the respondent to be unacceptable in the discharge of his duties as an employee? Did in fact Mr. Michor engage in activities that went beyond what was reasonable and appropriate in meeting his duty of fidelity to his employer? If so, did the employer have the right to discipline Mr. Michor for engaging in those activities?
Counsel for the applicant agreed that Mr. Michor did in fact engage in the activities for which he was disciplined; counsel for the applicant also conceded that employees do in fact have a duty of fidelity to their employers; and most significantly counsel for the applicant acknowledged that the disciplinary action taken by the employer was free of any anti-union motive.
The admissions of counsel for the respondent recorded in the foregoing paragraph should be enough to dispose of the complaint as it relates to Mr. Michor, through its outright dismissal.
The majority holds, in paragraph 25, that as Mr. Michor's activities were a legitimate exercise of his rights under the Act, discipline was not appropriate. With respect, I find that to be in contradiction with the jurisprudence of this Board, as set out in St. Catherines sup ra, and as noted elsewhere in this dissent, that the right to participate in lawful union activities is not unlimited and that right does not sweep aside legitimate employer interests. The case law suggests that the appropriate approach is to balance the two competing interests, and indeed this was acknowledged by union counsel and by the majority in paragraph 34.
The Board noted in St. Catherines, supra, that "an employee is under a duty to serve his employer with good faith and fidelity and not deliberately do something which may harm his employer's business". Indeed, counsel or the union in the instant case admitted that an employer has a legitimate interest in ensuring that employees do not breach the duty of fidelity owed to the employer (see paragraph 26 of the majority decision).
In support of the general proposition that the right to pursue lawful or protected union activities is not unlimited and that by engaging in improper conduct an individual is not immune from disciplinary action, I cite the following:
Swingline of Canada Limited, [1971] OLRB Rep. Nov. 765, at paragraph 3.
Kitchener-Waterloo Hospital, [1977] OLRB Rep. Feb. 112, at paragraph 13.
International Wall Coverings, [1983] OLRB Rep. Aug. 1316, at paragraph
Counsel for the respondent asserts that Mr. Michor was disciplined for conduct that clearly goes beyond what should be expected of a union representative in the exercise of his “union” function and is tantamount to interference in the legitimate right of management to discharge its responsibilities without being undermined by the improper activities of an employee.
Counsel for the applicant claims that Mr. Michor was engaged in an acceptable exercise of his "union" responsibilities and characterized Mr. Michor's activities as "lobbying" and suggested that if "lobbying" is not permitted then the union will lose an effective area in which they can legitimately represent the interests of their members.
It is clear to me that the efforts made by Mr. Michor to persuade the two volunteers to reject a proposition already agreed to by them cannot, by any reasonable interpretation, be considered to be "lobbying". The definition of lobbying in the usual and accepted sense which is the applying of pressure to elected officials. Counsel for the applicant, as recorded in the last sentence of paragraph 27 of the majority decision supports the view that lobbying relates to dealings with "...representatives of the public, the City Alderman." It is clear from the agreed statement of facts that Mr. Michor had lobbied with respect to this issue previously on behalf of the union at a meeting of the Parks and Recreation Committee, with apparently no repercussions on either him or the union. By contrast, the two volunteers with whom he subsequently had discussions could by no stretch of the imagination be characterized as representatives of the public, and therefore those discussions cannot be characterized as lobbying.
The union is seeking to classify all "outside" contacts made by its officials as "lobbying" a leap which the Board should not accept. Otherwise, the door will be opened for the union and its officials to engage in all manner of "union" activities against which the employer would have no recourse.
The mere fact that Mr. Michor approached the two volunteers at all was a serious error in judgement, in my view. Calling at the home of Ms. Hansen after business hours; uninvited; unannounced; identifying himself (presenting his business card) as a union official; and proceeding to attempt to persuade her to withdraw an offer that had been made at the initiative of the volunteers themselves; are all facts that, in my view, establish that Mr. Michor strayed well beyond the bounds of acceptable conduct. The evidence would seem to suggest that Ms. Hansen was alone at the time of Mr. Michor's visit. It is not surprising then that as a result of his clearly intrusive behaviour Mr. Michor left Ms. Hansen's residence with an "amended" Dundurn Aviary Proposed Management Plan in which the volunteers would work only as advisors to assist the Aviary Technician, this, in clear repudiation of the Parks and Recreation Committee's decision. As Mr. Pavelka stated in his June 24, 1992 letter to Mr. Michor "...you engaged in activities which were clearly designed to subvert the will of the corporation as expressed by its elected leaders". On all of the evidence, I can readily agree with this assessment of Mr. Michor's conduct and conclude that the disciplinary action taken is appropriate under the circumstances.
Having assessed the behaviour of Mr. Michor, and finding such behaviour to be unreasonable and inappropriate - regardless of how well intentioned his motives might have been - the respondent had the right to impose discipline, a right which the Board should not deny the respondent in the circumstances of this case.
The other critical issue in this case is the employer's motive in disciplining its employee. The case law is clear that even where the activities of a union or its representative are lawful union activities protected by the Act, if the employer was in no way motivated by anti-union animus, they cannot be in violation of the Act. In St. Catherines, supra, quoted at length by the majority, the complaint was ultimately dismissed on the basis that the employer's actions "lacked the requisite anti-union animus necessary to support a violation of the Act. (Paragraph 52).
In this case, the employer asserts that Mr. Michor was disciplined for a breach of his duty of fidelity, and not any way because of his union affiliation. Counsel for the union acknowledged that the discipline was not motivated by an anti-union animus (see paragraph 28 of the majority decision). Given the agreement of the two parties on this critical fact, the majority's conclusion in paragraph 36 that the employer's motivation in disciplining Mr. Michor was to discourage union activities simply cannot be supported, and I strongly dissent from that finding.
In conclusion, based on the evidence and the submissions of the parties, I would find that the employer had legitimate reason to discipline Mr. Michor, which was not tainted by anti-union animus and that the employer was therefore not in violation of the Act.
I would accordingly dismiss the complaint.