[1994] OLRB Rep. June 781
3437-92-U United Steelworkers of America, Applicant v. Tate Andale Canada Inc, Responding Party
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.
DECISION OF VICE-CHAIR, ROMAN STOYKEWYCH AND BOARD MEMBER, C. MCDONALD; June 21, 1994
This is an application under Section 91 of the Act. The applicant trade union has alleged that the employer, Tate Andale Canada Inc., during an organizing drive in February 1993, discharged its two internal union organizers for reasons related to their trade union activities. The union has alleged that in doing so, the employer has violated sections 3, 65, 67 and 71 of the Act.
In conjunction with the present application, the trade union applied under the provisions of section 91.1 of the Act for an interim order reinstating the two discharged employees. The interim application was heard by a differently constituted panel of the Board on March 1, 1993, and an order reinstating the two discharged employees on an interim basis issued on March 2, 1993 [Tate Andale Canada Inc., [1993] OLRB Rep. Mar. 254]. Upon their return to work on March 3, 1993, a dispute arose as to the propriety of the terms and conditions upon which they were to be reinstated, and when the present matter came to hearing on March 11, 1993 under the provisions of Section 92.2 of the Act, evidence with respect to that issue was heard together with the other allegations of misconduct.
After seven days of hearing, on March 26, 1993 the present panel issued a decision in which it determined that the employer had violated the Act both with regard to the termination of the two employees and, (Board member Pirrie dissenting) to the manner in which they were reinstated. The Board ordered the reinstatement of the two employees on a permanent basis and made a number of other remedial directions concerning their reinstatement. At that time, we also indicated that the reasons for the its decision and directions would be provided to the parties. The following are those reasons.
The employer is a manufacturer of metal and cloth filtration screens used to separate particles from liquids in various manufacturing processes. The work, which is performed by approximately thirty persons in its Concord, Ontario plant, involves in large measure the welding, grinding and other fabrication of stainless steel, carbon steel and other materials using conventional metal fabrication equipment. There are two general classifications of employees in the shop, welder-fitters and labourers. The two discharged employees, Rod Cake and Heath Sweetman, were employed as welder-fitters. Both the welder-fitters and the labourers are supervised by the foreman, Brian Boucher. Also present on a regular basis, but providing little or no hands-on supervision with respect to the performance of work is the Vice-President and General Manager, Brian McBain. Both Boucher and McBain testified on behalf of the employer. Cake and Sweetman testified on behalf of the trade union.
Cake and Sweetman were heavily and visibly active in the certification campaign, although from the evidence it appears that Sweetman was the principal force. He testified that as a result of what he perceived to be insufficient wage increases given by the company in its annual review of wages in early January of 1993, he came to the view that a union could benefit all the employees in the plant. With that in mind, during January of 1993 he discussed the possibility of unionization with an unspecified number of his coworkers. After satisfying himself that there was sufficient support for a union drive, he contacted the applicant trade union in late January. On February 2, 1993, he and coworker Ken ReIf attended at a restaurant near the plant to meet with Brando Paris, an organizer with the United Steelworkers. Sweetman received instructions from Paris as to the method of procuring membership evidence, and from that point onward until his dismissal on February 14, 1993, Sweetman was engaged in its collection.
Sweetman received the assistance of Rod Cake in this respect. Cake operated as an "advance man": both during and outside working hours, he would approach employees individually to determine whether they were likely union supporters and having done so, would advise Sweetman. Sweetman would then approach employees who had indicated an interest in the union in order to obtain their signatures on cards. The bulk of the discussions and of the collection process occurred in or around the workplace. Approximately one quarter to one third of the thirteen cards that were collected were obtained during working hours, often at the work-benches of individual employees. Finally, it should be noted that, although Ken Relf had attended at the initial meeting with Brando Paris, thereafter he played no active role in the organizing campaign. Sweetman and Cake were the only visible union organizers active in the plant. On the basis of the evidence of their activities, we have little difficulty in concluding that both Sweetman and Cake would have been easily identified as the key union supporters by most if not all the employees in the plant.
Both Sweetman and Cake were summarily discharged in the midst of the organizing campaign. Sweetman's employment was terminated by the employer on February 15, 1993, although he was provided two weeks pay in lieu of notice. At the time of his discharge, the employer declined to provide reasons for its action. Cake was discharged the next day, on February 16, 1993. The reasons advanced by the company at the time related to his failure to return an electric fan that he had misappropriated from the company more than a month earlier, on January 14, 1993.
In response to the allegations that the employer's actions were motivated by anti-union considerations, it was the position of the employer that both discharges were undertaken for reasons related to poor work performance. In the case of Sweetman, it was the employer's position at the hearing that the basis of the discharge was a long-standing performance problem. In the case of Cake, it was the employer's position that the discharge was motivated by the fan issue adverted to earlier, although there was also some suggestion that performance concerns also played a role in the discharge. Underlying the employer's position was the claim that, at the time of the terminations, the employer was not even aware of the existence of the union drive, let alone the nature of Cake and Sweetman's participation.
There was little dispute with respect to the applicable legal considerations in this matter and in particular, that the provisions of section 91(5) of the Act have application to the present circumstances. Further, it was not disputed that the test that the Board was to employ in reviewing the evidence was whether the considerations leading to the action taken by the employer were "tainted" by anti-union considerations (The Barrie Examiner, [1975] OLRB Rep. Oct. 745). Finally, it was not disputed that inherent in any such inquiry by the Board is a careful examination of the circumstances surrounding the employer's actions and the making of inferences with respect to the employer's motivation on that basis (Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299). The differences between the parties related almost exclusively to the inferences that the Board should draw on the basis of the evidence. It is with these considerations in mind that we turn to a review of the evidence.
Discharge of Heath Sweetman
Although at the time of Sweetman's termination the employer declined to give reasons for its actions, at the hearing it was the employer's position that he was terminated on the grounds of generally poor work performance, culminating in an incident in which a fire resulted from his careless welding practices. Sweetman commenced work with the employer in July, 1991. Having had little experience at welding prior to his hire, he was taken on as a "junior trainee welder" and throughout his employment he remained the least skilled and lowest paid welder-fitter at Tate Andale. As the lowest-skilled welder, Sweetman was also subject to layoffs such that during his relatively short tenure with the employer, he was laid off on two occasions for a total of 16 weeks.
Shortly after his hire, Sweetman was assigned primarily to the production of stock stainless steel screens, a welding operation which, although requiring no great welding experience, involved the "finesse" that Sweetman apparently displayed in his work. Both the evidence of McBain and Boucher was that Sweetman's rate of production of these screens was a source of long-standing concern that was related to him on a number of occasions. According to the company witnesses, the performance of each welding employee is subject to a weekly review of production sheets, which are then compiled in a computer generated record system. These records disclose, according to McBain, the number of hours of work that have gone into the production of a given product. The records are carefully monitored, both for the purpose of ensuring that all labour charges are appropriately transferred to customers and, more significantly for the present purposes, of ensuring that the productivity of each individual employee is reflected in the wage rate. In this regard, it was the employer's evidence that, in general, there is a strong relationship between productivity and the wage rate received by each employee based on value-added considerations.
No production records were adduced in evidence. However, it was McBain's oral evidence that his weekly perusal of these records disclosed that the production times of Sweetman were consistently below the expected standard. With this in mind, he stated, in June and then again in October or November of 1992, he instructed Boucher to discuss this issue with Sweetman. In turn, Boucher testified that he not only informed Sweetman on both those occasions that his production rates were below the employer's expectations, but also instructed him as to certain work methods that would enhance his performance. According to Boucher, on both occasions Sweetman appeared to ignore his suggestions, and his productivity continued at an unacceptable level.
In addition, McBain stated that, in October or November of 1992, Sweetman was given a warning letter regarding his productivity by Brendan Mullett, who at that time was the employer's production manager. The employer's evidence is particularly poor in this respect. The letter was not adduced in evidence because, according to both Boucher's and McBain's evidence, Sweetman's employment file had gone missing from the company's personnel records. McBain stated that although he knew of the letter, of its general contents and that he had actually seen it, he had not read it. Brendan Mullett, the author of the letter, who was fired in October, 1992 was not called upon to testify.
The union disputed both the evidence of poor performance by Sweetman and the evidence that his performance had been the source of long-standing concern with the company. In particular, it relied on the undisputed evidence of a 15% wage increase received by Sweetman in early January, 1993, during the course of the employer's annual wage review. According to the trade union, this evidence is crucial because Sweetman received the increase less than a month from the date that the employer claims to have made the decision to terminate his employment for productivity reasons.
The evidence is undisputed that Sweetman was one of only four employees to receive a wage increase at the annual wage review in early January, 1993, and that the increase he received was by far the largest received by any of the employees in the plant. Moreover, it was the evidence of McBain that during the four months prior to the January wage increase, Sweetman's performance improved to a satisfactory level and that the wage increase was at least partly in response to that improvement. Sweetman acknowledged that he was approached by Boucher in June, 1992 with respect to production methods, and from this he understood that the company was not happy with his performance level at that time. However, he could recall no similar meeting in November, 1992. Moreover, he denied categorically the receipt of a warning letter of any kind during his employment at Tate Andale. He testified that the only specific mention of performance rates occurred in discussions in February of 1992, with the then production manager, Brendan Mullett. He conceded that, having actually performed the job only for a few weeks at the time (given the layoffs before that time), his productivity was below the rates set out in that conversion. However, he testified that thereafter he maintained the requisite production rates and performed his work without significant complaint from the company.
In addition to these general productivity concerns, the employer advanced as a reason for Sweetman's dismissal his careless conduct on January 25, 1993. On that day, Sweetman was assigned welding duties that involved the disassembly and demolition of a set of metal stairs leading up to one of the plant's mezzanines. Considerable evidence was led with respect to the specific circumstances and work practices utilized on that day, which is unnecessary to review in any great detail. It is sufficient to note that on the morning of January 25, 1993, while Sweetman was cutting a steel beam at the top of the stairs, molten metal and sparks from the cutting torch he was operating ignited some cardboard and other materials that were stored in a open closet beneath the stairs. A fire ensued that, although causing little actual property damage, disrupted entirely the operation of the plant for approximately one and a half hours and most importantly, endangered the safety of all present. The Board does not question the employer's assessment at the hearing that Sweetman was responsible for the development of this very hazardous situation, or that, had he acted more diligently, he would have ensured that any flammable materials in the immediate proximity of his welding were removed. Indeed, it appears to the Board that in the circumstances, the conduct involved may well have been deserving of an immediate disciplinary response.
However, no such disciplinary action was forthcoming from the employer. Aside from a somewhat perfunctory conversation with Boucher immediately after the fire, no member of management discussed the matter of the fire further with Sweetman. Moreover, it appears from the evidence that Sweetman was not removed from his work assignment but instead, continued disassembling the mezzanine stairs after the fire had been put out and the plant cleaned up. Otherwise, there is no evidence to suggest that Sweetman did anything but continue to perform his usual duties as a welder-fitter up to the time of his discharge on February 15.
According to Boucher, no disciplinary steps were taken in light of his view that the incident would likely lead to Sweetman's termination, notwithstanding his evidence that the actual decision to terminate Sweetman occurred several days later. Boucher stated that he believed that Sweetman's wrongdoing was obvious to him, and as a general rule, he does not like to "bark at people" when they know that they have done wrong. To similar effect was the rationale given by both Boucher and McBain as to why no reasons were given to Sweetman at the time of the announcement of the dismissal: they both testified that in their general view, informing an employee in this respect, of the reasons for a dismissal "only makes them feel worse" and that they acted out of the interests of preserving Sweetman's feelings and in reducing the possibility of conflict at the work place.
Both employer witnesses testified that the substantial decision to dismiss Sweetman was taken prior to the commencement of the organizing drive, during a production meeting between McBain and Boucher on January 29, 1993. It was their evidence that after reviewing production records, they decided to terminate the employment of two welder-fitters, including Sweetman, and to immediately hire three new employees to replace those let go. According to both McBain and Boucher, the plan made on January 29 involved the deferral of the actual termination of the employees until a later date and as a result, it was not necessary to advise the employees of their impending termination.
The evidence is undisputed that during the first week of February, three new welders were hired by the employer and commenced work at the plant. According to both Boucher and McBain, the dismissal of Sweetman on February 15 was merely in furtherance of their plan made prior to the commencement of the organizing drive. They testified that during a further production meeting on the afternoon of February 12, the decision was made to terminate Sweetman immediately. However, because it was a Friday, and because it was already late in the day, it was decided to advise Sweetman of his termination on the following Monday, February 15. As indicated above, no reason was given for the termination at the time it was made, and Boucher declined to provide any reasons upon being requested to do so by Sweetman.
After carefully considering all of the circumstances in which the discharge occurred, the Board is not satisfied that the employer's decision to terminate Sweetman's employment was taken only for the reasons it advanced at the hearing, nor that the decision to do so was free from anti-union considerations. In the Board's view, the account advanced by the employer is not a credible or plausible explanation of the events. Of considerable significance in our assessment is the undisputed evidence that Sweetman received a substantial wage increase during the first week of the same month in which it is claimed the decision to terminate him was made. Even more significant is that the wage increase was related, at least in part, to the employer's perception of improvement in his production rates. Although the employer witnesses, especially Boucher attempted to mtntmize the significance of a 15% wage increase, the Board does not find this evidence to be persuasive. Both witnesses attempted to characterize the increase as an incentive for future good performance, rather than as a reward for increased past performance. However, it was McBain's evidence that Sweetman had significantly improved his performance during the previous four months. Although the employer witnesses also claimed that there was a significant deterioration in the quantity of Sweetman's performance, that evidence was left at the level of assertion. Although the employer purported to act on the basis of production records, no such records were adduced tn evidence. Similarly, both witnesses alluded to a desire to prevent a continuing disparity in the wage grid that, they asserted could only be remedied by granting Sweetman a substantial wage increase. No reason was advanced why the wage grid situation had become problematical at precisely that time nor why, given the general rule that productivity is the basis for employees' wage rates, wage grid considerations were of such significance at that time to warrant a substantial wage increase.
In addition, the Board is not satisfied that the decision to terminate Sweetman was made prior to the commencement of any trade union activity at the plant, as claimed by the employer. In this respect, the employer's evidence is most unsatisfactory and, especially with respect to the meeting of January 29,1993, the evidence of the two employer witnesses differs significantly. Most importantly, there was a discrepancy with respect to the actual reason for termination. Boucher made reference to allegedly poor fitting work on stock baskets he observed Sweetman perform during this time that, in his mind, was the basis for believing that Sweetman's improvement in performance was illusory. By contrast, McBain made no reference to the stock basket issue and indeed, his evidence does not disclose that it was even discussed at the meeting. According to McBain, the decision to let Sweetman go was made after his further review of production records that, he claimed, revealed a substantially lower rate of performance.
Similarly, the Board does not accept the employer witnesses' evidence that complaints regarding Sweetman's productivity were raised with him in both written and oral form as late as November, 1992. In this respect, we prefer the evidence of Sweetman, who denied any recollection of such a meeting and insisted that no warning letter was received by him with respect to his performance. We found his evidence to be credible, forthright, and more consonant with the probabilities than was the evidence of Boucher and McBain on this issue. Boucher admitted on a number of occasions to considerable difficulty in accurately recollecting dates, and during the course of his evidence was frequently unable to specify the time or sequence of the events at issue. Most importantly, the version of the facts advanced by the employer is by far less congruent with the facts than is the evidence of Sweetman. It is exceedingly unlikely that the employer would be approaching an employee to warn him of deficiencies in his job performance when, during that very time, the employee in question was experiencing a productivity increase that was sufficient to result in a substantial wage increase. We accept that, as a part of the normal supervisory duties that would be performed in these circumstances, Boucher may have instructed or advised Sweetman as to more productive methods of performing his duties. Given his apparent difficulty in recollecting dates and sequences of events, it may be that in his evidence he confused the discussion he had with Sweetman in November 1992 with an earlier one. However, especially in light of any apparent reason to complain about Sweetman's rate of production in October or November of 1992, we find that the employer neither warned nor otherwise put Sweetman on notice that his performance was unsatisfactory in the several months prior to his discharge.
The Board also considers as most improbable the employer's explanation as to why the decision to terminate Sweetman was deferred, especially if the purported reason for the discharge included the setting of a fire at the plant. As indicated earlier, upon the fire being extinguished, Sweetman and Boucher had a most perfunctory conversation about the fire. Thereafter, no member of management ever addressed the issue with him, no further investigations of the incident were carried out, and Sweetman carried on his welding duties for three more weeks as if nothing had happened. As the employer quite correctly points out, Sweetman was responsible for the creation of an extremely hazardous situation. If it was indeed the intention of the employer at the time to respond to the setting of the fire, it is difficult to conceive of a more improbable response than one which involved a delay of three weeks. This delay in our view casts considerable doubt on the employer's claim that the termination was motivated even in part by the fire incident. Similarly, there appears to be little reason why, in light of the hiring of new welders, that there should be any requirement for Sweetman to continue to work, particularly, as was pointed out at the hearing, the overabundance of welders could lead to efficiency problems in the absence of a second shift. In this respect as well, the Board places little credence in the evidence of McBain that the termination of Sweetman prior to the recruitment and employment of new employees would make them feel "shaky".
Finally, the Board notes that the employer did not provide reasons upon the dismissal of Sweetman. Although not of itself indicative of wrongdoing, evidence was led that indicated that at least on several occasions, employees who had been dismissed were provided with reasons for their dismissal. In fact, Boucher himself was fired from Tate Andale in the fall of 1992, at which time he was provided with reasons. Especially with respect to the fire incident of January 25, the complaints that the employer alleged to be of their concern were easily identifiable and reducible to written reasons for termination. Moreover, we once again find that the reasons proffered for this omission as entirely implausible: both McBain and Boucher testified that the reason for refusing to provide reasons was in deference to Sweetman's feelings. McBain stated that he did not think that knowing why someone is fired would be generally helpful to them. In this respect as well, then, we find the irregular conduct of the employer in the course of the dismissal to be lacking in credible explanation.
In reviewing the evidence as a whole, then, we are not satisfied on a balance of probabilities that the employer's action in terminating Sweetman were entirely free from anti-union motives. The Board is prepared to infer from the juxtaposition of his trade union activity and the circumstances surrounding the termination that the decision to terminate Sweetman was taken at least in part as a response to his union activity. In this respect, the Board is mindful that no direct evidence of the employer's knowledge of the grievor's trade union activity was presented in evidence. We are satisfied that the circumstances of the discharge are such that the inference of knowledge can be readily drawn. Accordingly, the Board finds that in discharging Sweetman, the employer violated sections 65, 67 and 71 of the Act.
Discharge of Rod Cake
As noted, Cake was discharged from his employment on February 16, 1993 while in the midst of his activities in the trade union organizing drive. The employer advances as the reason for dismissing him his failure to return a fan that he had misappropriated a month earlier. The thrust of the union's case, by contrast, was that the employer "resurrected" the matter and that the real basis of the discharge was a response to Cake's union activism.
On January 14, 1993, at the completion of his shift at approximately 3:30 p.m., Cake picked up the top part of a large disassembled electrical fan that had been left sitting in a cardboard bin in the plant for several weeks. The fan, which cost $68 when it was new, had been used for several years in the plant. Although in need of significant repair, it was, in a basic sense, still usable. The evidence is undisputed that while picking up the fan, Cake glanced at and made eye-contact with Brian Boucher, who was observing the events, and then headed out the door with the fan. Nothing was said by either Boucher or Cake at the time. Boucher, it appears, assumed at the time that Cake had permission to take the fan, and upon discovering that that indeed was not the case, spoke with him about the incident the next morning.
At that time, Cake told him that he thought that the fan was refuse. Boucher advised him that it was not, that it was company property. Boucher then apprised McBain of the situation. McBain wrote out the following letter for Boucher, which was then given to Cake:
January 14, 1992
To: Rod Cake
You were found yesterday taking a fan from company premises.
I have accepted your explanation that you assumed that it was being disposed of, however it was still on the company premises and in good working order.
Please note that any item on company premises is the property of Tate Andale Canada Inc. and that removal of company property will not be tolerated.
Any further violation will result in your immediate dismissal.
TATE ANDALE CANADA INC
Brian Boucher
Shop Foreman
BM:pc
Copy: File
The employer sought to characterize this letter as a "final warning" that remained outstanding until the time of Cake's dismissal. However, upon receiving the letter, Cake immediately went to McBain's office in order to discuss the matter. Although much of the evidence was disputed in this respect, it is clear that a heated exchange ensued, in which Cake demanded that the letter be altogether removed from his file in light of the satisfactory explanation he had given for his actions. According to Cake, his view ultimately prevailed, and McBain agreed to remove the discipline record from his file unconditionally. Despite being aware that he was required to return the fan, Cake denies that he was ever spoken to further with respect to the matter after January 14. He states that because of this, and because of McBain's agreement to remove the discipline record from his file, he did not appreciate that there was any urgency concerning the matter and that he simply forgot to return it.
McBain, by contrast, denied agreeing to take the letter off the file at the meeting. Rather, he testified that he agreed to take the letter off the file only on the express understanding that Cake return the fan, and that this remained his working assumption until his decision to terminate Cake. The thrust of his evidence was that the return of the fan was very much a live issue to him until the date of Cake's discharge. To that effect, he testified that at a meeting on February 2, 1993, he again reminded Cake that he was required to return the fan, although he admitted that he did not advise him of the consequences of the failure to return the fan. He testified further that, having given him over a month to make restitution, on February 16, 1993, the day after he had dismissed Sweetman, he simply determined that enough was enough and decided to terminate Cake on the spot.
Having reviewed the evidence in considerable detail, the Board is not satisfied that in light of all of the circumstances surrounding Cake's termination, the issue of Cake's return of the fan was the sole basis of Cake's discharge on February 16. McBain's evidence that he intended to remove the letter from the file only conditionally upon its return, and that the letter constituted a pending "final warning" is put into considerable doubt by the evidence of Brian Boucher. Boucher testified that he was requested to remove the letter from the file immediately upon seeing McBain exit from his meeting with Cake. Accordingly, to the extent that Cake's account of the January 14 meeting with McBain differs from the latter's account, we prefer Cake's. In our view, this significantly undermines McBain's claim that the incident, and more specifically, the return of the fan was taken as seriously at that time as McBain now claims.
Furthermore, the process by which the employer claims to have terminated Cake's employment does not support the inference that the non-return of the fan remained a live issue throughout the period between the meeting of January 14, 1993 and Cake's discharge on February 16, 1993. McBain testified that on the evening of February 15 (i.e., the day that Sweetman was terminated), while driving home from a meeting in London, he "realized that the fan incident still hadn't been resolved". According to McBain, at 7:00 of the next morning, when he arrived at the plant, the first thing he did was to instruct Boucher to enquire of Cake as to whether he had returned the fan. When Boucher returned several minutes later, they discussed the matter for a few moments, then decided to terminate Cake. The Board does not find this account of the decision to terminate Cake to be consistent with the claim that the return of the fan continued to be a live issue for the employer. The account proffered at the hearing does not explain why, if the fan issue had been alive, no earlier action was taken, in particular, during the production meeting of February 12, when both employer witnesses claim that Cake's termination was at issue. McBain testified that at the February 12 production meeting, at which Sweetman's termination was decided upon, Boucher also expressed concerns about Cake's performance and that he wanted him terminated as well. McBain testified that "he was not prepared to commit" to Cake's termination at that time. Instead, the decision to terminate Cake was made "because only on the 15th did I think more about the fan." The Board finds it difficult to understand that, if the non-return of the fan had been as live an issue as professed to be the case by the employer, why it was necessary for McBain to defer consideration of the effect it may have had upon his decision to terminate Cake. What is even more incongruous is that it was only on February 15 that he "realized" that some disciplinary action or at least an inquiry was not undertaken at that time - Thus, while the Board may doubt whether Cake had altogether forgotten the fan incident as he claims, we are satisfied that the situation had substantially receded in significance for McBain and that the issue was indeed being resurrected by him on February 16.
Moreover, we are not prepared to infer the absence of anti-union intention from the absence of direct evidence that the employer was aware of Cake's participation in the union drive. As indicated above, we are satisfied that given the circumstances of Heath Sweetman's termination, the employer had acted with knowledge of his participation in the union drive. We are prepared to draw the same inference with respect to Rod Cake's termination. Especially when the evidence of "resurrection" is considered, the Board is unable to accept the employer's account of how and when it came to know of Cake's trade union activism. It is unnecessary to recount the complexities of this evidence in detail. It is sufficient to note that it would strain credulity to accept that McBain learned of the union drive from Boucher seconds after they had terminated Cake's employment, and that Boucher had simply neglected to earlier advise McBain of this fact.
In reviewing the evidence as a whole, the Board is not satisfied on a balance of probabilities that the employer's reasons for terminating Cake were free of anti-union motives. The Board infers from the termination in the context of trade union activity, from the conduct of the employer in resurrecting an issue that was over one month old in order to justify the termination, and from the absence of a plausible explanation of such conduct, that the decision to terminate Cake was taken at least in part as a response to his union activity. Once again, we are mindful that there is no direct evidence of employer knowledge of Cake's activities. Nevertheless, bearing in mind the harsh and unusual response of the employer, the otherwise notorious organizing role played by Cake and the entirely incredible account given by the employer as to when and how it came to know of the trade union drive, we are prepared to infer that the employer's response was with knowledge as to Cake's role in the organizing drive. Thus, having regard to the onus put upon the employer under section 91(5) of the Act and to the Board's well-known caselaw in this regard, we find that the employer violated sections 65, 67 and 71 of the Labour Relations Act.
In our decision of March 26, 1993, we therefore directed that both Sweetman and Cake be reinstated to their employment at Tate Andale on a permanent basis, and that the respondent pay them any lost wages or benefits together with interest in accordance with the Board's practice in this regard.
Reinstatement Issues
i) Work Assignments
As indicated above, the two grievors were reinstated on an interim basis on March 2, 1993, pursuant to the direction of a panel chaired by Alternate Chair MacDowell. The decision directed, with no further elaboration, that the grievors were to be reinstated pending the determination of the application on its merits. However, a dispute arose as to the adequacy of that reinstatement, particularly with respect to the assignment of duties and to the subsequent placement of the grievors on the afternoon shift. At the hearing, it was the position of the trade union that the employer's actions constituted a continuation of the unfair practices that gave rise to the original complaint; that the reinstatement was, further, a violation of section 82 of the Act; and, finally, that the employer's conduct was more generally, a breach of the terms of reinstatement. There was no substantial disagreement between the parties as to whether the reinstatement was required to be the "same job". However, especially given the flexibility of job assignments that had been the practice at the work place prior to the grievors' termination, argument was directed primarily toward the issue of whether, in fact, the grievors were so reinstated.
McBain first found out about the reinstatement order at approximately 4 p.m. on March 2, 1993. When both Sweetman and Cake arrived at work at 7:00 a.m. on the next day, the problem arose as to what work would be assigned to them. It was McBain's evidence that he advised Boucher, who is normally in charge of work assignments, to assign work to the grievors that "they had done before". It was the thrust of the evidence of both employer witnesses that that was the basis upon which the reinstatement in fact took place.
The work initially assigned to both grievors was the mechanical grinding down of threads on water well screens that had been improperly fabricated by another company. In itself, this did not constitute welding work, although it was clear that a certain amount of grinding was an integral portion of preparation for welding work and was work that both Cake and Sweetman had done before. Nevertheless the work in question was amongst the most tedious and least desirable tasks normally performed by the grievors.
Approximately one hour into the day, Boucher assigned Cake to delivery duties. This work involved the delivery of parts to other fabricators and the picking up of parts and hardware at hardware stores. Although by no means a regular part of his job, Cake had in fact performed delivery duties previously, constituting as much as 10% of his work. The job was not particularly taxing, and indeed, Cake indicated that he considered it something of a preferred assignment. Nevertheless, the duties he was requested to perform kept him out of the plant for the remainder of the day.
It was Boucher's view that the initial job assignments were appropriate because both the grinding and the driving work constituted "work that they had done before". With respect to the grinding work, Boucher explained that the work was part of a work order that both Cake and Sweetman had previously worked on, albeit in their capacity as welder-fitters. In addition, Boucher testified without contradiction that other welders had been performing this work previously in the same manner. However, although the evidence on this point is not entirely free from doubt, tt appears that the assignment of a welder to a full day of grinding work, although not unheard of, is relatively unusual. The more usual circumstance would be to have labourers perform a full day of grinding work.
In addition, the evidence is unchallenged that on that day, more desirable welding work was being performed by other welders, including one of the welders that were hired in early February. According to McBain, the reason that "actual" welding work was not assigned to Cake was because the work in question involved "TIG" welding, a welding method for which, he asserted, Cake was not certified. However, in cross-examination, McBain admitted that the newly hired employee also was not certified for the TIG welding method, and further, that Cake had performed TIG welding at the company in the past. In addition, a further reason that he did not want to assign the new employees to the grinding work was in deference to their feelings: he stated that he did not want to create "malice" as amongst them and that both he and Boucher wanted to make it as "fair and easy as they could". Finally, no evidence was led as to why, on that first day, Sweetman could not have been assigned to his usual function of fabricating stainless steel stock screens.
With respect to the driving duties, Boucher admitted that the assignment was unusual, inasmuch as the person normally doing the delivery work was present performing grinding duties, and that Cake would normally do driving functions only in his absence. Boucher stated that the reason for the assignment in this case was that the driver, who was a labourer, was doing a very good job grinding the screens and for that reason, he did not want to remove him from that position at the time.
Neither Sweetman nor Cake complained to the employer as to their assignments on the first day back at work; instead, at the conclusion of their duties that day they contacted the union. In turn, the union, by means of a rather heated exchange of facsimile correspondence through counsel, complained in no uncertain terms that the reinstatement measures were inappropriate. In response to this exchange, McBain advised Boucher to assign the two to welding tasks on the next day of work. Thus, when he reported to work on March 4, Sweetman was assigned to his regular job of fabricating stainless steel stock screens and there is no further complaint with respect to his job assignment. Cake, however, was assigned to the welding of support pads and anchors on the existing mezzanine structure. Although this was indeed welding work, the union asserts that the job in question was still unsatisfactory inasmuch as the work consisted of the welding of painted carbon steel, as distinct from stainless steel. Considerable evidence which is unnecessary to review in any detail, was heard by the Board with respect to the relative virtues of carbon and stainless steel welding processes from the perspective of the welder. It is sufficient to note that while Cake did little or nothing to minimize the more unpleasant effects (such as heat, smoke or dust) of welding painted carbon steel, it is nonetheless clear that the work to which he was assigned was appreciably more unpleasant and less desirable than stainless steel welding, even if all reasonable precautions had been taken.
Once again, it was the employer's view that the carbon welding assignment was appropriate because it was work that Cake had performed previously. According to Boucher, Cake did as much as 25% of his work welding carbon steel. However, McBain's evidence differs on this point. According to him, Cake performed carbon welding only about 10% of the time. More significant than the difference in quantity is McBain's evidence that, for the most part, the carbon steel welding work that is required to be done is not painted, and therefore, less likely to create smoke, heat and dust. According to both Boucher and McBain, Cake was given the mezzanine assignment simply because the other welders were assigned to other welding jobs. However, it appears that little effort was made to find candidates other than Cake. Thus, in cross examination it was admitted by McBain that a new employee, who was assigned stainless steel welding duties could have been assigned to the mezzanine job, but that McBain had "no idea" whether or not that employee had the capability of welding carbon steel.
After carefully reviewing all the evidence concerning the duties assigned to the grievors, the Board is satisfied that the employer, in reinstating the two grievors, consistently assigned the less preferred assignments and therefore demonstrated a discriminatory pattern of treatment in which they were treated less favourably than other employees and in particular, newly-hired employees. The Board cannot accept the proposition, advanced by the employer, that the assignment of duties on a "done before" basis in itself constitutes a non-discriminatory basis for the allocation of duties in these circumstances. The evidence disclosed that while there was a substantial degree of flexibility in the range of assignments that both Sweetman and Cake would perform, nonetheless, there was a set of core duties that they performed more frequently than others, and to which they could be reasonably expected to be assigned upon returning to work. In our view, a "done before" approach to reinstatement, in which the overall mix of job functions normally performed is effectively ignored, is not indicative of a bona fide effort to reintegrate employees into the workforce.
The evidence is also clear that other employees, particularly newly hired employees, were performing more desirable welding work, and that by virtue of the assignments, the employer was expressing a clear preference in their favour. Moreover, the reasons advanced for the assignments are not in our view sufficiently cogent to convince us that they were not undertaken for improper motives. In particular, the Board finds the rationale for assigning the grievors the less preferable work (i.e not wishing to hurt the feelings of the newly hired employees) while appearing to ignore the grievors' preferences, to be tantamount to an admission of discrimination. Accordingly, bearing in mind the onus provisions of section 91(5) of the Act, and the Board's well-established jurisprudence in that respect, we find that in the course of reinstating the grievors to a job mix that was not reflective of the range of duties that they normally performed, the employer was in violation of section 67 of the Act.
ii) Assignments to Night Shift
On March 5, in response to further complaints from the union that the reinstatement of Cake was unsatisfactory, the employer moved Cake to the position demanded by the union, the manufacture of custom stainless steel screens. On that same day, however, the employer made a decision to run a second afternoon shift commencing the following Monday. March 8 and that the two grievors were to be assigned to that shift. The trade union complains that the decision to place the two grievors on that shift were tainted by anti-union considerations and constituted an attempt to intimidate witnesses.
According to all the witnesses, the employer from time to time runs a second afternoon shift, which extends from 3:30 until midnight, in response to increases in the number of orders for its products. That second shift is normally staffed by four employees, usually three welders and a labourer. It appears that the use of a second shift allows for the more efficient use of the machinery, and as a result, work is accomplished more productively in this manner. It was McBain's evidence, which we accept, that during the week of March 5 the employer received a large number of orders which required the imposition of the second shift.
Considerable evidence was heard with respect to the employer's practice in assigning employees to afternoon shift assignments. It appears that, the employer's efforts notwithstanding, there is no particular system in place for the assignment of positions with the exception of a rough notion of rotation accompanied by considerable ad hockery.
Neither of the grievors were willing to go on the shift. However, neither of the two grievors had previously been assigned to that shift, and there was no evidence that they were ever asked to do so before March 5. The evidence is also clear that there was no operational reason preventing them from being put on that shift, and indeed, to the extent that there was a rotation in effect, their never having done such work placed them in increased jeopardy of that assignment. In that regard, a major reason advanced by the employer for placing the two grievors on the night shift was that their turn had come up. There was considerable dispute as to the thoroughness with which the employer conducted its assessment of the circumstances, and indeed, it appeared that McBain was not even aware at the time of his decision that Sweetman had never been assigned to the overtime shift. Nevertheless, there being no particular system in place for the allocation of the afternoon shift, the Board is not prepared to draw inferences of motive merely from the manner in which the rotation was handled.
However, other aspects of the process of putting the grievors on the night shift are more troubling. The two grievors, along with two other employees who were willing to go on the night shift were advised of their assignment in the afternoon of March 5. At the time, Boucher indicated to Sweetman that the assignment would be for an indefinite basis in that he would remain in that position until the work that he was doing ran out. This appears to be in clear violation of the company's policy in this respect. Boucher conceded that only in February, 1993, the employer had formulated a policy which placed a four week limit on assignments to the afternoon shift. No reason was advanced at the hearing as to why that policy would not be applied in the context of this assignment.
Further complicating the matter were the issues arising from the grievors' requirement to be present at proceedings at the Board related to the present complaint. Much was made of the grievor's failure to formally notify the employer that they would be required to attend the hearings, and that they would be unavailable for work for the coming week, during which time these proceedings were scheduled to commence. According to both employer witnesses, there were clear procedures for handling such matters as prearranged absences, and that the grievors simply failed to comply with them.
It was McBain's evidence that, in the light of such failure, and wishing to secure their continued attendance at work, he assigned the grievors to the afternoon shift. No further attempt was made to clarify the situation with the grievors; in turn, the grievors did not approach the company to address the issue of their impending absence. There was no dispute from the union witnesses that no formal notification had been provided to the company. However, it was the evidence of Sweetman that, given their prominence in the pleadings, it did not "take a detective to figure it out" that they would be attending the hearing. In any event, Boucher testified that he knew of the absences in advance, given that he had read correspondence from the union to that effect, and because Rod Cake had mentioned it to him on March 5.
At the hearing, counsel for the employer forcefully argued that the placement of the two grievors on the afternoon shift in these circumstance was a sensible solution to a difficult problem, given that the obvious fact that the grievors could not be at two different places at the same time. Rather than being a violation of the grievors' rights to participation at the hearing, it was argued, the placement of them on the afternoon shift effectively secured that right. To ask the employer to do otherwise would place it in an impossible position.
There is no question that the result of the employer's action could, in certain circumstances, be a solution to the difficult problem alluded to by employer counsel. However, having reviewed the circumstances fully, we are not of the view that the solution reached was motivated entirely by such considerations. In particular, although we are in agreement with the employer that the matter of notification was handled by the grievors and the trade union with something less than the sensitivity to the legitimate interests of the employer than would reasonably be expected, we find the employer's reliance on the grievors' failure to provide formal notification as hollow and unconvincing, given that it knew or reasonably ought to have known that the grievors would have been attending the hearings and at the same time supporting its decision on the basis of this knowledge. In this respect, the employer appeared eager to seize upon a technicality in order to support its decision to assign Cake and Sweetman to the night shift. Moreover, we cannot accept, under the particular circumstances, that the unilateral placement of them onto the night shift could be contemplated as a rational response to the "problem" adverted to by counsel. In particular, we note that the work assignment, were it to be performed, would require them to attend proceedings at the Board, travel to work to the Concord, Ontario plant, presumably at the completion of the proceedings. They would then be required to perform work until approximately midnight. In the case of Sweetman, this would then be followed by a lengthy ride to his home in Bowmanville, Ontario. They would then be expected to attend at the hearing the following morning.
Notwithstanding the difficult situation that the employer was in, we cannot accept that McBain was in any manner interested in safeguarding the grievor's interests in making such an assignment, particularly since whatever consultation that was undertaken indicated that the grievors were unwilling to take the assignment. Nor is the Board prepared to accept that the employer was genuinely interested in safeguarding its own interests in having employees report for work under such extraordinary conditions. Especially bearing in mind the breach of the four week time limit for the assignment, it would appear to be much more likely that the employer acted out of a sense of frustration if not in a spirit of retribution and was in that sense, attaching a penalty to their attendance at the hearings. This is not to say that the assignment of them to the shift in itself was improper. Rather, we are saying that the manner and motivation in which the decision was taken was at least in part influenced by considerations that the grievors had participated and were to again participate in a proceeding under this Act. Accordingly, bearing in mind the provisions of section 91(5) of the Act and the Board's well-established jurisprudence related to it, we find that the employer, by assigning the two grievors to the night shift on March 8,1993 acted in contravention of section 82 (1) of the Act.
Accordingly, the Board ordered that the employer return the grievors Cake and Sweetman to the day shift and that henceforth they be subject to night shift work in circumstances and conditions identical to those enjoyed by other employees of Tate Andale.
In the March 26, 1993 decision, we also directed the employer to post for 60 consecutive days in conspicuous places in the workplace the Notice to Employees attached thereto as Appendix "A", and to provide a copy of that notice to all employees affected by the union's certification application, Board File 3402-92-R.
Finally, in light of our findings that the employer's course of conduct in reinstating the grievors constituted violations of sections 67 and 82 of the Labour Relations Act, it is unnecessary for the Board to make a finding as to whether, or the extent to which the employer breached the reinstatement order as was argued by counsel for the applicant.
DECISION OF BOARD MEMBER R. W. PIRRIE; June 21, 1994
I dissent from the above decision as it relates to the issue of the grievors' reinstatement.
In the circumstances, I saw nothing wrong with the employer's actions in either the initial work assignments which would result in a violation of section 67, or in the subsequent assignments to the newly created night shift which would result in a violation of sections 67 and 82(1).