United Steelworkers of America v. Greenberg Stores Limited, 1995 CanLII 10015

[1995] OLRB Rep. November 1367

1710-95-U United Steelworkers of America, Applicant v. Greenberg Stores Lim­ited, Responding Party

BEFORE: Brain Herlich, Vice-Chair, and Board Members R. W. Pirrie and P. R. Seville.

APPEARANCES: Robert McKay and Cyndee Madore for the applicant; D. K. Robinson, Patrick McNeil, André Thibault, Edward B. Johnston, Betty Scardina and N. Paul Cloutier for the responding party.

DECISION OF THE BOARD; November 8, 1995

1. The name of the responding party is hereby amended to read: "Greenberg Stores Lim­ited".

2. This is an application filed pursuant to section 91 of the Labour Relations Act (the "Act") in which the applicant (also referred to as the "union") alleges that the responding party (also referred to as the "employer" or the "company") has violated sections 3, 65, 67, 71, and 81.2 of the Act.

3. Before outlining the facts in the limited detail necessary for the purposes of this deci­sion, we observe that in coming to those findings of fact the Board has carefully considered all of the evidence before it and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examina­tion, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances. In all candour there were difficul­ties with the evidence of virtually all of the persons called to testify on behalf of both parties. For example, Mr. McNeil, the employer's store manager was clearly extremely nervous at the prospect of testifying before the Board. Without even suggesting that apprehension in any way reflects on his credibility, the fact of the matter is that his evidence was never proffered with great confidence as to its reliability. Mr. McNeil was confused at the outset about dates and the precise sequence of events or contents of various conversations. On the other hand, neither was the evidence of Cyn­dee Madore (also referred to as the "grievor") entirely free from difficulty. She too had consider­able (though somewhat less) difficulty recalling the specific time or sequences of events. She also testified about discussions she had with numerous management representatives in which the sub­ject of the union arose. We find it unlikely that those management officials would have used pre­cisely the same words or groups of words in those separate and independent discussions as Ms. Madore testified. There were other sometimes equally significant difficulties which arose in the evidence of other employer witnesses, difficulties which, in view of our ultimate findings, are unnecessary to catalogue or consider.

4. The net result of many of the shortcomings associated with the evidence as a whole is that it is extremely difficult for us to arrive at a picture which includes all the fine detail pertaining to all of the events giving rise to and culminating in these proceedings. However, as our decision will make clear, it has not been necessary to reconcile all of the evidence to produce an intricate and minutely precise accounting of all of the significant events or their precise sequence. While there may be gaps in the fine detail, the basic events are essentially straightforward and undis­puted.

5. The union seeks the reinstatement of Cyndee Madore to her former position with the company. Ms. Madore was the key inside organizer responsible for the certification of the union in December of last year. And whether or not the company was aware of the extent of her trade union activities at the time of certification, by the time it denied her leave of absence request, the company would have been well aware, at a minimum, of Ms. Madore's important role on the union's bargaining committee.

6. As a result of family difficulties and on the advice of a professional counsellor Ms. Madore determined that she would like to spend all or a significant portion of the school summer vacation period at home and, in particular, to be available for her 9 year old daughter. Conse­quently, by letter dated May 10, 1995 and addressed to Jim Keltie, the company's district manager, she requested a leave of absence from June 23 to September 11, 1995, a period of some eleven weeks. Ms. Madore's evidence makes it clear that, in her written request, she had set out the maxi­mum leave period she required and that, in her mind at least, there was considerable flexibility as to what the actual duration of the leave might be (or, for example, whether it might be combined with her regular vacation entitlement). She never, however, had the opportunity to discuss this or any other issue related to the leave request with any employer representative who was in a position to make decisions or effective recommendations with respect to her request.

7. Ms. Madore's written leave request was forwarded by Mr. McNeil to Mr. Keltie. Approximately one month later Mr. McNeil was advised, in writing, by Mr. Keltie that the leave request had been denied. That written decision was not provided to Ms. Madore or, indeed, to this Board. Mr. McNeil testified that it contained no reason or explanation for the leave having been denied. Upon being advised of the denial, Ms. Madore made it clear that she intended to further pursue the matter.

8. Her leave apparently having been denied, Ms. Madore decided that the only way she could spend the time she felt was necessary with her daughter was to resign her employment. She prepared a letter of resignation. It was dated June 9, 1995 and purported to be effective June 22, 1995. At the time Ms. Madore's leave request was denied she was away from work on sick leave resulting from an injury at home. Her return date was uncertain. A number of people observed, both at the time and at the hearing, that her resignation may have been precipitous in that the duration of her sick leave (perhaps, if necessary, coupled with her vacation) might have obviated the need for any leave of absence. It was clear to Ms. Madore, however, that she would likely be able to return to work before the end of the summer and that a leave of absence was the only way to spend the summer with her daughter and retain her job. Since spending the summer with her daughter was her immediate priority and since the leave appeared doubtful, Ms. Madore saw no reason to put off what she saw as the inevitable; she also saw no reason to inconvenience the com­pany by waiting and tendering a last minute resignation.

9. The exact timing of some aspects of these events is somewhat unclear. For example, although the evidence may even conflict on the point, we are satisfied, particularly in view of employer counsel's submissions, that Mr. McNeil told Ms. Madore that he would not immediately file her resignation but would hold it for a period of time until matters clarified. Alternatively, in view of the fact that the resignation is stated to be effective two weeks hence, we are satisfied that Ms. Madore was reasonable in assuming that the issue of her leave request was not entirely closed.

10. Ms. Madore then went on to make further inquiries of employer representatives located at fairly significant spots in the corporate hierarchy. These included Andr6 Thibault and Edward Johnston, who are, respectively, the employee relations manager and president of MMG Manage­ment Group, a division of the employer which provides management support functions for the company's retail stores across the country. It is not necessary to review these exchanges in detail except to indicate that neither gentleman took any steps to reconsider the leave request. Indeed, Mr. Johnston explicitly advised Ms. Madore that as she had resigned the matter was closed. Here again, some of the precise details are elusive. It is clear, however, that Mr. McNeil chose to pro­cess Ms. Madore's resignation sooner than he had promised or, in any event, sooner than Ms. Madore expected. However one resolves the unclear evidence on the point, it is obvious that Ms. Madore began her supplementary inquiries before her resignation, on its own terms, became effec­tive. Mr. McNeil initiated the submission of a company form attesting to Ms. Madore's resigna­tion. Although this was a written document filed through the company's internal bureaucracy (and a copy kept by Mr. McNeil), it was not produced at the hearing.

11. One of the few points which emerged with crystal clarity from the evidence of all of the company witnesses was that the authority to make the decision regarding Ms. Madore's leave request was vested in and, in all likelihood, exercised by Mr. Keltie who did not testify before the Board. All of the company witnesses who did testify denied having made or participating in the making of the decision regarding the leave request.

12. Indeed, it is the absence of Mr. Keltie from these proceedings which for reasons which follow is of great significance in this case.

13. The union alleges that the employer has violated various sections of the Act. We do not find it necessary to go beyond section 67 which, essentially, prohibits employment related reprisals imposed as a result of lawful trade union activity. It provides as follows:

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.

14. We have also considered the significance of the "reverse onus" provision found in sec­tion 91(5):

91.-…..

(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

15. Although the facts giving rise to the instant application may point to a number of poten­tial and severable issues, the parties, as early as their opening statements before the Board in this matter, agreed that ultimately this case must stand or fall with the Board's evaluation of the refusal of Ms. Madore's leave request and, more specifically whether that refusal was tainted by any unlawful motive. We agree with that assessment.

16. In that context it is important to outline what is and what is not properly part of the Board's consideration in determining the propriety of the leave denial. This is not an arbitration proceeding in which we are called upon to assess the reasonableness of the leave request and its denial. The employer may well have been unreasonable in denying the leave request. It does not follow, however, that the denial was therefore tainted by any unlawful anti-union animus. Simi­larly, the employer may well have legitimate reasons for having denied the request. Notwithstand­ing that if any part of the employer's motivation can be related to Ms. Madore's union activity that will be sufficient for the Board to conclude that the employer's conduct was unlawful. Thus, though not its primary task, it is not unusual for the Board to inquire into the reasonableness of the employer's conduct and conclude, in the appropriate case for example, that conduct in question was so unreasonable that the proffered reasons are unlikely to be the real reasons for the conduct. The object of the exercise is not principally to assess the appropriateness of the impugned conduct but rather to insure that it is not tainted by unlawful motives. It is here, of course, that consider­ation of the reverse onus may become critical. In proceedings to which this provision applies (and it was not disputed that it applies here) it is up to the employer to come forward and provide the necessary evidence and explanations for its conduct to allow the Board to conclude that, whether or not the Board is otherwise impressed by the conduct, there is no prohibited motive at work.

17. The employer in this case has failed to do that.

18. Although we heard from numerous employer witnesses, some of whom were fairly highly placed within the company, we heard no evidence from Mr. Keltie, the person everyone agreed made the decision in question without any meaningful participation on the part of any of the company representatives who did testify. In other words, while the parties have agreed that an assessment of the company's motive in denying the leave is, effectively, the central issue that will determine these proceedings, the fact of the matter is we simply have no direct first hand evidence regarding the reasons for the company's decision. The evidence we did hear established that only Mr. Keltie could provide us with any such first hand evidence; he did not. While it might be possi­ble to construct a derivative theory to explain the company's decision based on the evidence (mostly hearsay on the point) of other witnesses and the submissions of counsel, we are simply unable to ignore the fact that the person who presumably had the first hand direct evidence on the central issue in these proceedings did not testify.

19. When we couple Ms. Madore's open and highly visible union activity with the lack of any direct evidence to explain the company's decision, we can only conclude that the employer has failed to meet its statutory onus in these proceedings and that its conduct was tainted, at least in part, by motives prohibited under section 67 of the Act. We are thus satisfied that the employer has violated that section of the Act in having refused to grant the leave of absence requested by Ms. Madore. We therefore direct that Ms. Madore be forthwith reinstated to her former position with the company. In the circumstances of this case and having regard to the submissions of the parties, the Board remains seized with respect to any matter arising out of the Board's decision, including quantum of compensation for any damages arising out of the responding party's violation of the Act. We would take the opportunity to observe, however, that the union might have consid­erable difficulty arguing that any compensation at all ought to be awarded in respect of a period of time for which the grievor had requested leave of absence.