[1997] OLRB REP. JANUARY/FEBRUARY 39
0774-96-U; 0775-96-U; 0776-96-U; 0777-96-U; 0778-96-U; 0779-96-U; 0780-96-U Soft Drink Workers Joint Local Executive Council, Applicant, v. Coca-Cola Bottling Ltd., Responding Party; United Food & Commercial Workers International Union, Soft Drink Workers Joint Executive Council, Applicant, v. Coca-Cola Bottling Ltd. (Peterborough), Responding Party
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Elliott G. Posen and Dennis Krajaefski for the applicants; Gita Anand, Jim Nemeth, Ray Nolan and Wayne Sponagle for the responding parties.
DECISION OF THE BOARD; February 26, 1997
I. Introduction
1These applications are seven unfair labour practice complaints which were filed with the Board in June, 1996. They came on for hearing before this panel of the Board on January 28, 29, and 30, 1997.
2These applications were filed at the same time as an application under section 101 of the Labour Relations Act, 1995 ("the Act"), in which it was asserted that the responding party Coca-Cola Bottling Ltd. (hereinafter referred to as "Coca-Cola" or “the employer”) had unlawfully locked out members of the applicants (hereinafter referred to as "the U.F.C.W." or "the union"). That proceeding came on for hearing before me on June 20, 24, and 25, 1996. It was agreed at that time that I would proceed to hear only the unlawful lockout application. By way of decision dated July 17, 1996 (reported at [1996] OLRB Rep. Jul./Aug. 541), I dismissed that application.
3In these proceedings, the U.F.C.W. alleges that six individual employees previously employed at the Peterborough facility were not offered positions at a new facility in Cobourg because of their union affiliation, contrary to section 72(a) of the Act, which reads as follows:
- 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.
There is no dispute that the employer offered employment to, and in fact hired, bargaining unit employees from the Peterborough location at Cobourg. However, the union asserts that the six individual complainants were not offered positions at Cobourg because of their present or past involvement in local union affairs. Each of the applications is brought by the union on behalf of one of these individuals, and a separate complaint is brought by the union on its own behalf.
4When these proceedings came on for hearing in January, 1997, counsel agreed that the factual findings made in the unlawful lockout application would bind the parties and could be applied to these proceedings. Accordingly, no evidence of significance was called speaking to the events recorded in the earlier decision. Counsel also agreed not to call evidence regarding the issue of remedy. If necessary, I agreed to remain seized of these proceedings in order to determine any remedial issues should the parties be unable to agree on the remedy.
5Over the course of three days of hearing, I heard the evidence of two witnesses for the employer, namely Mr. Ray Nolan, who at all relevant times was the employer's Peterborough Sales Manager (and the most senior executive at the Peterborough facility - he is currently the employer's Regional Manager for Home Market Business Development for Greater Toronto), and Mr. Jim Nemeth, the employer's Industrial Relations Manager, Ontario Division. On behalf of the applicants, I heard the evidence of the six individual complainants: Messrs. Paul Donoghue, Larry Pluard, Andrew Hunter, Rob Hewitt, Reginald Kelusky, and Jim Booth. There were numerous inconsistencies in the testimony, and where necessary I have indicated below whose testimony I have accepted as more likely to be representative of what happened, and why I have reached that conclusion.
II. The Facts
6These seven unfair labour practice applications are brought in the context of a plant closure in Peterborough, Ontario. The employer is a bottler and distributor of beverages in Ontario. The union is the bargaining agent for a bargaining unit of the employer in Peterborough, Ontario, and has been since the 1970's. The union also represents a number of employees of the employer in numerous other locations throughout the province of Ontario. Prior to April, 1996, the employer had been located in Peterborough for approximately 70 years. It most recently operated a distribution warehouse in Peterborough, and employed approximately 24 employees at that location. The employees who worked at the Peterborough distribution warehouse included "inside employees" such as labourers, shipper! receivers, and sales equipment service technicians, as well as "outside employees" such as Delivery Salesmen-In-Charge (hereinafter referred to as "DSIC's").
7The union and the employer were parties to a collective agreement which was in effect from July 27, 1992 to July 23, 1995. On or about July 17, 1995, the employer received a notice of desire to bargain a renewal collective agreement from the union. Mr. Krajaefski met with Mr. Wayne Sponagle (the General Sales Manager for the employer's Northern and Eastern Regions) and Mr. Nemeth in Ottawa on August 29, 1995, when they were negotiating a collective agreement for the Ottawa bargaining unit. At that time, there was a discussion regarding the Peterborough situation. Messrs. Sponagle and Nemeth advised Mr. Krajaefski that the Peterborough facility was most likely going to be moved in late 1995 or early 1996, and requested that negotiations be deferred until the situation was clarified. The union and the employer agreed that, while the employer's plans were being finalized for Pererborough, the parties would concentrate their negotiation efforts on other agreements up for renewal. It was agreed that, once the employer was in a position to advise the union of what specific actions were planned, and a time-table was established, negotiations would commence. At that time, Mr. Krajaefski was aware that the building previously owned by Coca-Cola in Peterborough had been sold, and that the employer had temporarily moved into another facility on Park Street in Peterborough.
8Rumours of a possible move from the Park Street location spread amongst the workers in Peterborough during the summer and fall of 1995. In October, 1995, Mr. Krajaefski and counsel for the union each wrote to Mr. Nemeth and somewhat surprisingly (and forcefully) requested that the employer meet to negotiate a renewal collective agreement for Peterborough. Mr. Nemeth indicated that the employer was prepared to meet with Mr. Krajaefski and the union, and subsequently the parties did meet on December 14, 1995, in Peterborough.
9The December 14, 1995 meeting was attended by Mr. Sponagle, Mr. Nemeth, and Mr. Nolan, on behalf of Coca-Cola. On behalf of the union, Mr. Krajaefski, Mr. Paul Donoghue (the Local President), Mr. Larry Pluard (the Local Vice-President and outside steward), and Mr. Andrew Hunter (the union's inside steward) were in attendance. Mr. Sponagle advised those present that the Peterborough distribution centre would be closing and that the work from the facility would be moving to Cobourg on or about April 1, 1996. Discussions centred around the business reasons for the decision to move, and what would happen to the employees then employed in Peterborough. Mr. Sponagle indicated that the employer would choose those employees who would be offered positions in Cobourg, and that some employees who had an "attitude problem" would not be going. Mr. Pluard stated that Mr. Sponagle referred to the employees who would be going to Cobourg as "the A team".
10Subsequent to the meeting of December 14, 1995, Mr. Nolan met with his management team to discuss which employees would be offered positions at Cobourg. In late December, 1995, Mr. Nolan met with Mr. Dave White, Support Services Manager, Cooler Shop and Warehouse, Mr. Mike Gates, the Distribution Manager, Mr. Brad Way and Mr. Art Bunnett, Business Development Managers in the Home Market, and Mr. Scott Thompson, Business Development Manager for Cold Drinks. These managers constituted Mr. Nolan's management team, and the various bargaining unit employees at the Peterborough distribution centre reported to one of these managers. Performance evaluations had been completed for each bargaining unit employee during 1995, and the management team reviewed them at this meeting.
11It is significant to note, at this juncture, that the performance evaluations were prepared at different times in 1995, and by different individuals. A number of the appraisals were completed by Mr. Gerry Guthrie, who was the Distribution Manager until August, 1995, at which time he left the employ of Coca-Cola. The evaluations completed by Mr. Guthrie were written between June and August, 1995. Approximately 6 to 8 weeks after Mr. Guthrie left Coca-Cola, Mr. Gates was hired as his replacement. Mr. Gates and Mr. Nolan subsequently completed, during October or November, 1995, those evaluations not yet prepared by Mr. Guthrie. Mr. White also prepared a number of evaluations in late November, 1995. These evaluations were prepared without the involvement or knowledge of the employees, and were not shared with them at the time. Mr. Nolan indicated that, prior to Mr. Guthrie's departure, he had been shown the performance evaluations completed by Mr. Guthrie during the summer of 1995.
12At the meeting in late December, 1995, the members of the management team did not each have a copy of these performance evaluations. Instead, the manager who completed the evaluation (or, in Mr. Gates' case, the manager who had possession of them) read out the various scores given to the individual employees on the appraisals. Any comments written below the grade given to the employee were also read out to those in attendance. It was Mr. Nolan's testimony that the management team more than likely was fully briefed by the pertinent manager as to the full substance of each employee's appraisal at that meeting.
13All of this is important, because Mr. Hewitt's performance appraisal, under the heading "attitude", is marked "resentful of policies and procedures: Belittles those who conform", the worst rating. Underneath, in the area reserved for the manager's comments, the following is written: "Pro-union attitude". It was Mr. Nolan's testimony that this comment was read out at the late December, 1995 management meeting. He subsequently stated that he could not recall whether the comment had, in fact, been read out and conceded only that it "quite possibly" had been. There is no doubt in my mind that it was. Mr. Nolan testified that he did not speak to Mr. Guthrie about this comment, because by the time the management team reviewed the performance appraisal Mr. Guthrie had left the employ of Coca-Cola. However, as noted above, it was also Mr. Nolan's testimony that he had previously seen the performance evaluations completed by Mr. Guthrie in the summer of 1995. Presumably, then, Mr. Nolan had been aware for many months of the comment contained in Mr. Hewitt's performance appraisal, and had not found it noteworthy to ask Mr. Guthrie about it during the previous summer.
14Mr. Nolan advised the Board that by the end of this first meeting in late December, 1995, the management team had reached "tentative" decisions regarding who would be offered employment in Cobourg. He did not indicate in his testimony which of the employees had, as at that date, been tentatively determined as those to whom an offer of employment would be made, and those who were not to be so offered.
15The management team's second meeting to discuss the employee evaluations, and to determine which employees would not be made offers of employment at Cobourg, was held in early February, 1996. The decisions regarding who would and who would not be offered employment were made by the group. The performance appraisals previously reviewed were considered once again by the management team. According to Mr. Nolan, the group considered, as well, which of the employees "were the best people to work with as management and the direction we had, to improve our business". At that meeting, the management team identified 10 employees who would not be made offers of employment. Mr. Nolan spoke to Mr. Sponagle and subsequently had termination notices prepared for these individuals. They were delivered to the employees on February 7, 1996. Mr. Hunter, who was not at work on that day, was called by Mr. Nolan regarding the situation 2 or 3 days later. Mr. Hunter was supplied with a copy of the letter by Mr. Nolan "a couple of weeks later".
16Of the 10 individuals not offered employment at Cobourg, 6 had some involvement on the executive of the union, either past or present. Mr. Donoghue had been President of the Local since 1986. Mr. Pluard had been Vice-President of the Local and an outside steward since 1992. Mr. Hunter had been on the union's negotiating committee in 1992 (and had attended the December 14, 1995 meeting), and was the inside steward. Mr. Hewitt was the Chief Steward. Mr. Booth had been President of the Local for 10 years, prior to Mr. Donoghue's election in 1986. Mr. Kelusky had been the inside steward for approximately 10 years, up to 1992. He was also on the union's negotiating committee in 1985 when a one day strike occurred. It would also appear that two of the remaining four individuals not offered positions at Cobourg (who are not complainants in these proceedings) had, in the past, held some ceremonial positions with the union (such as Sergeant-At-Arms and Recording Secretary). With the exception of Mr. Kelusky, there was little dispute that the above-noted complainants were known by management of the distribution centre to have been on the union executive. Although I will touch on this below, I note here that the complainants' seniority with the employer ranged from 8 years to 28 years. Mr. Nolan stated that management staff were aware of the seniority of the employees at all times - that it was "a given".
17Of the 14 individuals from Peterborough offered employment in Cobourg, none had been involved with the union at Peterborough. It would appear that one individual had been a union steward in Uxbridge when Coca-Cola had operations in that town. When that individual transferred to Peterborough he did not become involved with the union. Reference was also made to one individual who attended a meeting with the employer on behalf of the union, at the union's offices, in March, 1996. This person - Mr. Bridgewater - was offered a job in Cobourg. However, it appears that Mr. Bridgewater attended at the meeting because Mr. Nemeth had indicated to Mr. Krajaefski in a previous meeting held in February, 1996 that he had concerns about discussing the terms of voluntary recognition for the union in Cobourg with individuals who were not being hired for Cobourg.
18During the course of his testimony, Mr. Nolan identified and discussed the employee evaluations of all but two of the bargaining unit staff at Peterborough (which evaluations could not be located), and identified the criteria utilized by the management team in determining whether each employee would be offered employment by Coca-Cola in Cobourg. There can be no doubt that by virtue of Mr. Nolan's position, his long service with Coca-Cola at Peterborough (approximately 26 years), and the relatively small size of the bargaining unit, Mr. Nolan knew each employee at the Peterborough location quite well. There can also be no doubt that the issue was not "numbers"; that is, Mr. Nolan stated that the number of individuals to be hired from the Cobourg area was ultimately determined by reference to the number of individuals at Peterborough who accepted offers of employment in Cobourg. Each employee in the Peterborough bargaining unit had indicated to management a desire to work in Cobourg, and of the 14 offers, 13 employees ultimately accepted an offer and became employed there. Each of the complainants indicated that he would have gone to work in Cobourg had he been the recipient of an offer of employment.
19The criteria used by the management team to identify those who would be offered jobs in Cobourg were described by Mr. Nolan as "a satisfactory appraisal on his evaluation" and the "demonstration of a commitment to work with the company and to help it grow its business". Elaborating on this, Mr. Nolan indicated that the management team was looking for those individuals who would come to work, and who would work with both the employer and the management staff to put the employer's strategy in place in order for the employer to improve. When asked how this was measured, Mr. Nolan answered by saying that "co-operation would sum it up". He went on to note that some people would do what was asked of them, within reason, to increase business, whereas others would "whine, complain, and belittle the company and management and so on", which made it difficult to run the business as desired in Peterborough. Mr. Nolan stated that an employee's involvement in the union was not a factor taken into account.
20This criteria is important, because Mr. Nolan identified the employee evaluations for the six individual complainants, and generally observed that they were below the average of other employees in the bargaining unit. Mr. Nolan elaborated on the evaluation of the six employees, identifying certain incidents which he recalled were of significance when discussing the employees with the management team. Counsel for the employer put together a chart for argument which, in a very rough way, identifies the relative performance of the employees in the bargaining unit as reflected by the performance evaluations. Without a doubt, the six complainants were, with one exception, marked lower overall on the evaluations, when compared with other employees. The significance, if any, of this will be commented on below.
21The one exception to this pattern is Mr. Pluard. It was Mr. Nolan's testimony that Mr. Guthrie had prepared Mr. Pluard's evaluation, and he stated that the evaluation was "actually above the standard". Mr. Nolan went on to state that the quality of Mr. Pluard's work was very much acceptable to the employer. He also acknowledged that Mr. Pluard was utilized by the employer to train others in the DSIC position. Mr. Nolan concluded by stating that, based on the written evaluation, Mr. Pluard would have been offered a job in Cobourg. However, between December, 1995, and February, 1996, when the management team met, Mr. Pluard's "attitude" (which had been evaluated earlier by Mr. Guthrie as "average") had become very negative, and it was evident to Mr. Nolan that Mr. Pluard was "questioning [the employer's] direction". According to Mr. Nolan, it was a "risk" to take Mr. Pluard to Cobourg, and therefore it was determined not to offer Mr. Pluard a job. Mr. Nolan indicated that the "risk" related to his concern that, if Mr. Pluard were to become employed by Coca-Cola in Cobourg, his negative attitude would continue.
22Asked to elaborate upon Mr. Pluard's somewhat abrupt shift in "attitude", Mr. Nolan stated that Mr. Pluard had questioned the employer in what it was doing with respect to the move to Cobourg. Explaining further, Mr. Nolan stated that through management staff he had heard that Mr. Pluard had made comments to other staff and to customers regarding the move to Cobourg, to the effect that the company "had left the employees in limbo", and that the employees "did not know where they stood with the company". He was also aware of statements to that effect made by Mr. Pluard to the media. Mr. Nolan stated that he was unaware of any other comments made by Mr. Pluard. In Mr. Nolan's opinion, Mr. Pluard's comments did not affect the quality of his work, but reflected a "soured" attitude.
In cross-examination, Mr. Nolan mentioned a newspaper article as part of the media coverage with which he had concerns.
23In cross-examination of Mr. Pluard, the newspaper article in question was made an exhibit. Mr. Pluard stated that he had spoken to a reporter from the Cobourg Daily Star who had telephoned him in mid-January when Mr. Donoghue was out of the country. The Cobourg Daily Star printed a story on January 16, 1996, which contained the following comments from Mr. Pluard:
The news of the move to Cobourg surprised the members of Local 389 of the United Food and Commercial Workers, said local vice-president Larry Pluard.
“We don't know too much right now", he said this morning.
At a contract meeting last month, management said it would be taking "the A team" - meaning the plant's best workers - from Peterborough and hiring around it, Mr. Pluard said.
The employees are worried about their families and mortgages, he said.
Another meeting between the union and management will be held within two weeks, he added.
Mr. Nolan acknowledged in cross-examination that Mr. Pluard likely made the above statement at least in part because he was concerned about his job, and that in his capacity as a union officer it would be Mr. Pluard's role to speak to the media. He also conceded that from mid-December, 1995 to early February, 1996, the employees were, in fact, left in limbo "as far as who is going and who isn't".
24During the course of testimony, Mr. Nolan identified the disciplinary records of the six complainants. The disciplinary records are (both individually and collectively) extremely limited in nature; the most severe discipline that was reflected in any of the complainant's files was a written warning. Mr. Nolan testified that one of the employees, Mr. Kelusky, had been suspended on one occasion, but that the discipline had been reduced to a written warning. Mr. Kelusky denied this in his testimony, and Mr. Nolan did not address the difference in testimony in his reply evidence. Mr. Kelusky's disciplinary record put before me by the employer does not reflect either a suspension or a written warning for the incident described by Mr. Nolan.
25I note here that the evidence regarding the disciplinary records of the six complainants has limited significance in these proceedings, as it was Mr. Nolan's testimony in cross-examination that the disciplinary file of each of the bargaining unit employees was not referred to by the management team of the employer during the two meetings held to decide who would be offered positions at Cobourg. There can be no doubt that some of the incidents described in the disciplinary files were mentioned by Mr. Nolan during those discussions; but the actual files themselves, which accurately record the date of the incidents and the degree of discipline imposed, were not before the management team. Many of the incidents recounted by Mr. Nolan as being of significance to the management team's decisions were never reduced to writing and placed in the disciplinary files of the complainants. Obviously, they were never the basis for any discipline. I should note here that, similar to the case of Mr. Kelusky noted above, many of these incidents were disputed by the complainants when they testified.
26Ultimately, the facility in Peterborough closed, in late March, 1996. On April 1, 1996, the employer's new facility in Cobourg became operational. Thirteen of the employer's former Peterborough employees commenced employment at the new site. The employer advertised for, and eventually hired, ten to twelve more employees for DSIC and general labour positions in the warehouse.
27During the course of his testimony Mr. Nolan made certain references to the union and/or its executive members that I think warrant reproduction here. First, when counsel for the employer asked Mr. Nolan to explain what he took the comment "Pro-union attitude" in Mr. Hewitt's performance appraisal to mean, he replied by stating that he "took it that on a lot of occasions when we tried to get work done by a number of employees like Rob it was like we had something held over our head - that they couldn't or didn't have to do it. I believe that is why the comment was put down". I note this testimony because it is evident that Mr. Nolan felt that there were a "number of employees like Rob" at the Peterborough facility, and the implication is that these individuals have, as well, a "pro-union attitude".
28While commenting on the various performance appraisals, Mr. Nolan had very positive things to say of one Mr. Kevin Buckley. Amongst other things, he testified that Mr. Buckley, a DSIC, on one occasion had been willing to drive a long haul to the northern part of the province, which gave the employer an opportunity to improve its business in that region. This was identified as a positive factor in favour of Mr. Buckley. However, Mr. Nolan went on to say during his testimony that "Kevin was given a rough time by people in the union - Paul Donoghue - for agreeing to do it, to help out the company, and he became reluctant to do so in the future." Again, I note this testimony because it is evident that, despite Mr. Nolan's other testimony to the effect that he considered that all of the 24 employees in Peterborough bargaining unit were "involved with the union", Mr. Nolan had notionally divided the employees into groups, one of which consisted of "people in the union", as represented, in this case, by its President, Mr. Donoghue. Mr. Donoghue may or may not have reacted appropriately to Mr. Buckley's willingness to make this trip (Mr. Donoghue did not deny the event in his testimony). For our purposes, what is significant is Mr. Nolan's identification of "people in the union".
29Finally, there was some testimony directed towards the payment of incentives during the month of December, 1995. The employer offered both its inside and outside staff monetary incentives for meeting pre-set targets in each quarter of the year. It was the testimony of each of the complainants, except for Mr. Booth, who was off work in December, 1995 because of a compensable injury, that they earned at least a portion of the incentive payment during the last quarter of 1995; in fact, all but one received the entire incentive offered by the employer. In cross-examination, Mr. Nolan acknowledged the receipt of the incentive payments by the complainants, but pointed out that sales in December, 1995 had been particularly strong. Most importantly, though, Mr. Nolan stated that the receipt by employees of this incentive was discussed by the management team at the meeting in February, 1996. In minimizing the significance of the receipt of the incentive payments made in December, 1995, Mr. Nolan expressed the view that he "looked at the long term ... what the employee had done over the years", and that there was no relevance to what had occurred during a brief period.
III. The Law
30There was very little dispute as to the legal principles applicable to these proceedings. The seminal authority is The Barrie Examiner, [1975] OLRB Rep. Oct. 745. At paragraph 17 of that decision, the following principle is identified:
What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer ... did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must he established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.
This approach by the Board has survived the test of time, and there was no dispute that the determination of these proceedings, where the issue is the failure to offer employment, is governed by the principles outlined above.
31As is noted in the Board's jurisprudence, determinations in these types of proceedings are often difficult ones to make, because employers are, generally, loathe to incriminate themselves, and because trade unions will make use of the provisions contained in the Act in circumstances where legitimate discharges from employment (or failures to hire, as occurred here) coincide with protected union activity. Because of this difficulty, the Board must very carefully consider all of the circumstantial evidence put before it, and use inferential reasoning to reach a conclusion as to the real motivation for the employer's conduct. Considerations taken into account by the Board include the existence of trade union activity and the employer's knowledge of it, the grievor's employment history and his or her involvement in trade union activity, unusual or atypical conduct by the employer following its knowledge of the trade union activity, the timing of the alleged unlawful activity, any other "peculiarities of the context surrounding an employer's actions", and the credibility of the witnesses (see The Ontario Educational Communications Authority [1976] OLRB Rep. Nov. 721 at para. 24, The Corporation of the City of London [1976] OLRB Rep. Jan. 990 at para. 14 and Pop Shoppe (Toronto) Limited [1976] OLRB Rep. June 299, at para. 5).
32Also of significance is the importance of candour during the course of testimony. As is noted in The Barrie Examiner, cited above, at para. 22, one of the most effective ways for an employer to satisfy its obligations under the Act is for it to tell its story in a "frank and honest manner". In the event that one or more portions of the employer's testimony reflects a lack of candour, that will likely raise doubts as to the authenticity of the reasons provided by the employer.
33Another principle evident from Board jurisprudence is that the Board should not infer, from unfair conduct, that the conduct is based upon anti-union motivations. That is, merely because an employer conducts itself in a manner which is, when viewed objectively, unfair, does not mean that a breach of the Act has been committed. Of course, unfairness may well be a reflection of an underlying anti-union motivation, and therefore an unfair act by an employer must be carefully considered by the Board, so as to determine the real reason for the conduct. But the Board must be careful to distinguish between what is unfair and what is unlawful. Only the latter conduct is subject to a remedy under the Act.
IV. Decision
34I have carefully considered all of the evidence adduced by the parties to these proceedings. I do not propose to outline, in any great detail, the argument of counsel. Where necessary, I have set out, below, the argument of counsel on specific matters of significance.
35In my view, the determination of these proceedings must commence with a consideration of the circumstances surrounding the failure to offer employment in Cobourg to Mr. Pluard. As noted above, Mr. Nolan indicated during his testimony that Mr. Pluard would have been offered employment in Cobourg but for the "souring" of his attitude during the period from December, 1995, to February, 1996. Mr. Nolan stated that the employer could not "risk" hiring Mr. Pluard in Cobourg because of his attitudinal change during those months.
36I do not believe the testimony of Mr. Nolan, for many reasons. First, as I indicated to counsel for the employer during the course of argument, it appears to me that the decision of the management team to not offer employment in Cobourg to Mr. Pluard was, at the very best, an extremely arbitrary decision. Mr. Nolan would have me believe that he concluded that Mr. Pluard, by responding to a reporter in the manner reflected by the above-quoted newspaper article, and by allegedly making similar comments to customers and other staff, had developed a sufficiently bad attitude to warrant termination of employment. I say "allegedly" here because there is no first-hand evidence before me to suggest that Mr. Pluard actually made any such comment to a customer or to another employee. In fact, Mr. Nolan did not even offer hearsay evidence to that effect. Mr. Pluard denied making any such comment to a customer during testimony and Mr. Nolan did not identify even one such customer in his testimony. And there is absolutely no evidence that Mr. Nolan spoke to Mr. Pluard at any time about the accuracy of the information he had received in this regard. Apparently, Mr. Nolan accepted rumours of Mr. Pluard's conduct as truth.
37However, even if I were to assume that Mr. Pluard did make such comments to customers and other staff, the comments are so utterly innocuous that I cannot fathom any reasonable person taking offence to them. In fact, Mr. Nolan conceded that Mr. Pluard's observations regarding the employees being left "in limbo" were true. The comments were certainly not so offensive as to warrant the effective discharge of an employee of 10 years seniority with an "above average" performance evaluation.
38As noted above, though, it is not a violation of the Act for an employer to act in an unfair or arbitrary manner when making its employment decisions. It is not my role to remedy unfair decisions made by employers within the boundaries of the Act. I am required to determine only whether someone on the management team, including Mr. Nolan, had in mind, at least in part, an anti-union motive when it was decided that Mr. Pluard would not be offered a position in Cobourg. If the answer to that question is "no" then the application brought on his behalf must be dismissed.
39The raw arbitrariness of Mr. Nolan's determination that Mr. Pluard's attitude had changed between December, 1995 and February, 1996, the innocuous nature of the comments which caused Mr. Nolan to reach that conclusion regarding Mr. Pluard's attitude, and their admitted accuracy, cause me to be extremely suspicious about the true reason for the failure to offer Mr. Pluard employment. It is, as the Board's jurisprudence notes, "peculiar" that such a comment, in and of itself, would have the effect of denying Mr. Pluard a position in Cobourg.
40Of significance to my determination respecting Mr. Pluard are Mr. Nolan's comments regarding the December, 1995 incentive payment, and the minimal effect of it on the decisions made by the management team. Mr. Nolan made it quite clear in cross-examination that he felt it more appropriate to look back over a longer period, to review how the employees in question had performed over the years" rather than to focus on the short-run. Mr. Nolan may well be right to look to the longer term. But why not take the same approach to Mr. Pluard's "soured" attitude? Why is it that an employee of some ten year's seniority, who presumably had exhibited a satisfactory "attitude" throughout that ten year period, is denied an offer of employment that he would otherwise have received because of a ~'short-run" attitude problem? This is especially so when Mr. Nolan conceded that the comments made by Mr. Pluard in the media interview were legitimate. Mr. Nolan's approach is inconsistent. This troubles me and suggests that "short-run" and "long-term" approaches to the various criteria were taken, alternatively, by the employer when it appeared convenient to do so.
41Having considered all of the evidence, I am satisfied that the determination by the employer to not offer employment to Mr. Pluard at the new Cobourg facility was, at least in part, made because of Mr. Pluard's activities on behalf of the union. lam not satisfied, on balance, that the employer would have offered Mr. Pluard a position in Cobourg if the decisions had, in fact, been made in December, 1995. I found it significant that Mr. Nolan did not identify during his testimony who had "tentatively" been determined to be a worthy of an offer of employment at Cobourg at the December, 1995 meeting of the management team. In my view, Mr. Nolan has grasped upon Mr. Pluard's media interview in January, 1996 as a basis upon which to not offer employment in Cobourg to a member of the union executive who had an "above average" performance evaluation. There is just no other conclusion which can be reasonably reached on all of the evidence.
42Turning now to the consideration of the applications brought by the other five complainants, there is no doubt that each and every one of the applications should be considered independently from the others. Counsel for the employer stressed this point during argument, and I agree with her that there is no reason why all of the applications before me need necessarily stand or fall together.
43That being said, counsel for the union submitted during argument that I had no alternative but to determine that the employer had not satisfied its onus under the Act to establish, on balance, that its decision to not offer each of the complainants a position in Cobourg was without anti-union taint. Counsel noted that the employer had not called, as witnesses, the authors of the various performance appraisals - that is, Messrs. Guthrie, Way, White or Gates. He pointed out that Mr. Hewitt's evaluation (which it will be recalled notes on its face, tinder the heading of "attitude", the words "Pro-union attitude") was written by Mr. Guthrie, who authored a number of the evaluations, including those of Messrs. Booth, Donoghue, Kelusky, and Pluard. If Mr. Guthrie had anti-union sentiments when writing out his evaluations, the negative scores or comments on any of the forms completed by him, even if they do not make a patently obvious negative reference to the union, could be tainted by such sentiments. Any reliance by the management team on these documents would be, in these circumstances, reliance upon documents tainted by anti-union sentiments. In counsel's submission, it was incumbent upon the employer to put the authors of all of the pertinent evaluations onto the witness stand to satisfy the Board that no anti-union sentiments are reflected by any parts of the evaluations. Failure to do that is fatal.
44Having considered this argument quite carefully, I am of the view that counsel for the union is quite right in his analysis. I am charged with determining whether the employer's decision to not offer employment to the complainants is, in any way, affected or tainted by anti-union motivation. The employer must satisfy me, on balance, that the decisions made respecting who would be offered a position in Cobourg, and who would not be offered such a position, were made without reference to the complainants' union activities. There can be no doubt, based on Mr. Nolan's evidence, that the scores and the comments made on the evaluation forms were known by and discussed amongst all of the individuals on the management team.
45Mr. Guthrie, who authored almost all of the complainants' performance evaluations, felt it significant to note on Mr. Hewitt's performance appraisal that he had a "Pro-union attitude". He gave Mr. Hewitt the lowest possible score under the heading of "attitude". Mr. Booth was also given the same, lowest possible score under that heading, but no comments are made by Mr. Guthrie on Mr. Booth's form. Are Mr. Booth's previous union activities reflected by the score? Are the low scores of others, or some of the negative comments made on their evaluations, a reflection of Mr. Guthrie's apparent anti-union animus? It is a possibility. I cannot be satisfied that they are not. Mr. Guthrie may have meant something other than the plain meaning of the words "Pro-union attitude" inscribed on Mr. Hewitt's evaluation. Or perhaps not. But I cannot know without having heard Mr. Guthrie's explanation for the comment. Neither could the management team of the employer. These same concerns apply to each and every negative score on the evaluations completed by Mr. Guthrie, and for each and every negative comment on the appraisals. I cannot be satisfied that they are not, themselves, motivated by anti-union sentiment.
46Ought the same analysis be applied to the evaluations prepared by other managers of the employer at the Peterborough facility? In my view, the answer to this question must be "yes", in the circumstances of this case. As noted above, it is incumbent upon the employer in these proceedings to satisfy me, on the balance of probabilities, that anti-union motivation had absolutely no effect on the decision to not offer employment to any of the six complainants at the Peterborough facility, including Mr. Hunter, whose performance evaluation was completed by Mr. White in November, 1995. Mr. White did not put a comment on Mr. Hunter's evaluation such as that which appears on Mr. Hewitt's evaluation. However, in light of the '~Pro-union attitude" comment on Mr. Hewitt's performance appraisal, written by Mr. Guthrie (and Mr. Nolan's awareness of it from the summer of 1995), and the evident anti-union animus reflected by the decision of Mr. Nolan to not offer employment in Cobourg to Mr. Pluard, I am not satisfied that the performance evaluation of Mr. Hunter is untainted from anti-union animus. The animus which is reflected on the face of Mr. Hewitt's performance appraisal may, or may not, have been present in Mr. White's mind when he completed the performance appraisal of Mr. Hunter. In light of the existence of anti-union animus in the other decisions made regarding employment in Cobourg, and the high level of suspicion which naturally arises from the fact that none of the union's executive (past or present) were offered a position in Cobourg, Mr. White ought to have testified to establish that his evaluations were free of anti-union animus. He did not do so.
47Accordingly, I am of the view that the application filed on behalf of Mr. Hunter must be allowed as well.
48I should note here that, even if I were not persuaded by union counsel's argument regarding the possible "taint" contained in the performance appraisals, I would have reached the same conclusion with respect to all six of the complainants. My comments respecting Mr. Pluard's situation are set out above, and I will not repeat any of those observations. With respect to the other five complainants, as I noted above it is evident that Mr. Nolan was of the view that they were not members of "the A team" and therefore ought not to be offered employment in Cobourg. Assuming for the sake of argument that all of the performance appraisals are a fair and untainted assessment of the performance of bargaining unit employees, Mr. Nolan and his management team may have quite reasonably believed that the five complainants were not "team players" and thus were not worthy of an offer of employment in Cobourg.
49The difficulty that I have, however, is that Mr. Nolan's testimony barely hid (and at times in fact failed to hide) his disdain for those who ran the local union. Whether or not an employer "likes" unions is irrelevant, and the Board has historically taken notice of the fact that most employers would prefer to operate without a union (see, for example, David Chapman 's Ice Cream Limited [1990] OLRB Rep. July 778, at para. 9). However, Mr. Nolan's testimony reflected, as noted above at paragraphs 27 to 29, a difference in his mind between "bargaining unit employees" (who were not troublesome) and "people in the union" or "employees like Rob" (who were troublesome). Once again, in light of the identity with the union of those individuals who were not offered employment in Cobourg when compared with those employees who were offered a position, the significant seniority and experience of those individuals not offered employment, and in light of the evident anti-union animus reflected by the decision relating to Mr. Pluard (and the lack of candour exhibited by Mr. Nolan in that regard), I am not satisfied that the decision to not offer the five complainants (other than Mr. Pluard) employment in Cobourg was free of anti-union animus.
50For these reasons, I have determined that the employer has violated section 72(a) of the Act, and that all six of the complainants ought to be successful in the applications brought on their behalf. Furthermore, the application brought by the union in its own name alleging a breach of section 7 2(a) of the Act ought to be successful as well.
V. Disposition
51These applications are therefore allowed. As noted above, counsel for the parties indicated that I should remain seized of these proceedings in the event that a remedy could not be agreed upon. I will remain seized for that purpose. Should it be necessary to schedule one or more dates for hearing, counsel should contact the Registrar of the Board.