Communications, Energy and Paperworkers Union of Canada v. Panolam Industries Ltd., 2000 CanLII 12062

Communications, Energy and Paperworkers Union of Canada v. Panolam Industries Ltd.

3358-97-U Communications, Energy and Paperworkers Union of Canada, Applicant v. Panolam Industries Ltd., Responding Party.

BEFORE: S. C. Laing, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Melissa Kronick, Carl Coker, Neil McMahen and Donald Mullen for the applicant, Anneli LeGault, Harvey Coulas, John Garlick, Bill Julian and Tanya Dickson for the responding party.

DECISION OF THE BOARD; August 15, 2000

1. This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violations of sections 70, 72 and 76 of the Act. Specifically, the Communications, Energy and Paperworkers Union of Canada (“CEP” or the “applicant”) asserts that Panolam Industries Ltd. (“Panolam” or the “employer”) demoted and disciplined one of its employees, Carl Coker, allegedly for his organizing and union activities. The employer’s position is that it had bona fide reasons for dealing with the employee as it did, and those reasons were free of any anti-animus taint.

2. We heard from seven witnesses over four days of hearing. While much of the evidence described individual events in great detail, we do not feel compelled to recite it in full in this decision. Having heard from the witnesses and reviewed all the evidence tendered, we have distilled the following facts and reached the following conclusions.

3. Panolam has operated a particle board plant in Huntsville since its purchase of the business from Domtar Inc. in 1996. Carl Coker was hired in 1976 as a front-end loader operator, and was employed in that capacity – the technical term for the position at the plant is Raw Materials Storage (“RMS”) operator – until the events which led to this application.

4. The CEP has a history of attempting to organize this workplace since the days of Domtar. The first forays into the plant were made in 1995. Organizing continued over a long period of time, including after the sale of the business to Panolam.

5. In the fall of 1997, the union made a concerted effort to marshal the required support among Panolam’s employees to file an application for certification. The union’s efforts included a telephone solicitation campaign in late October/early November.

6. As a result of the telephone campaign and the redoubled efforts to muster sufficient support, CEP realized that it did not have adequate support at the workplace to initiate certification proceedings. The campaign was abandoned.

7. The union asserts that Coker was instrumental in the rather lengthy drive to organize, and that management at Panolam was aware of his union activity and sympathies. The union alleges that Coker’s involvement with the campaign led the employer to deliberately remove him from his RMS position and place him in a lower, Board Cruncher, position.

8. Panolam paints a starkly different picture of the events which led to Coker’s transfer from the RMS department. The employer asserts that it had little or no direct knowledge of the union activity, and was certainly unaware of the identity of the individuals who may have been propelling the certification drive.

9. RMS operators, scheduled for twelve-hour shifts, four days out of seven, work one operator per shift, with relatively little supervision. While Panolam is a twenty-four hour a day, seven day a week operation, supervisors are on duty only on the day shift, Monday to Friday. As a result, RMS operators have significant autonomy, and can run the receiving of sawdust as they see fit, provided schedules are maintained.

10. RMS operators not only receive truckloads of sawdust, they facilitate its unloading and re-delivery inside the plant once they have performed a moisture analysis.

11. Coker had a history of uneven association with the truck drivers who delivered sawdust to Panolam. As early as 1993, there had been discussions between management and Coker about his attitude to the drivers, and the way he conducted himself when receiving shipments at the employer’s premises.

12. Henry Coulas, Coker’s immediate supervisor at the relevant time, testified that when he got the supervisor’s job in 1993, he had a conversation with Coker about his reputation among truck drivers. He advised Coker to avoid confrontation with the drivers.

13. Complaints about Coker’s conduct among the truck drivers continued throughout 1994. There were very few problems with other RMS operators at the same time. Coker’s deficient conduct, described in terms of inappropriate language addressed to drivers, and causing unnecessary delivery delays, culminated in a three day suspension in September, 1995.

14. Coker’s conduct was monitored throughout 1996 (the time of the sale from Domtar to Panolam), and his performance appraisal for that year - conducted in May 1997 because of the sale of the business - showed little or no improvement. Several complaints were received in the summer and fall of 1997, although the drivers and their companies were reluctant to have their identities revealed, given the nature of the RMS operation and concerns about further repercussions should individual drivers be confronted by Coker when making their subsequent deliveries.

15. On November 12, 1997, when complaints were received that the RMS operator was not available to receive shipments (although this was a 24 hour a day operation, and the operator was supposed to be on duty at all times), the employer decided that Coker, who was responsible for receiving shipments on this particular date, would be disciplined once again, and removed from his RMS position to foreclose any further direct contact with drivers.

16. Delays in receiving shipments were a threat to the company’s business. If the sawdust deliveries could not be received in a timely and efficient manner, the drivers would simply take their product to one of Panolam’s competitors.

DECISION

17. The applicant alleges that the respondent has breached the provisions of sections 70, 72 and 76 of the Act. Those sections provide as follows:

70. No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. No employer or employers organization or person acting on behalf of an employer or an employers’ organization:

(a) shall refuse to employ or 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 or 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.

76. No person, trade union or employers’ organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers’ organization or to refrain from exercising any other rights under this Act or from performing any obligation under this Act.

18. In John T. Hepburn Limited [1985] ORLB Rep. Jan. 75, the Board gave consideration to the onus in an unfair labour practice complaint. The Board stated at paragraphs 10-11:

10. …Subsection 89(5) [now 96(5)] of the Act imposes on the respondent the burden of establishing that its discharge of Smith was free of the motivation referred to in section 66 [now 72]…

11. This onus cast on the respondent by section 89(5) of the Act was described in these terms in Barrie Examiner, [1975] OLRB Rep. Oct. 745, at paragraph 17:

…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 these elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

19. The evidence clearly shows that Coker had a history of problems with his conduct at work. Two disciplinary suspensions, two years apart, for the same or similar infractions manifest an attitudinal defect which was not about to be corrected. In his testimony, Coker admitted that he would not change his work habits if he were returned to the RMS position, because he persisted in seeing nothing wrong with his behaviour.

20. The employer’s motivation for the discipline and transfer of this employee is unassailable. There is no evidence of any anti-union animus displayed in the employer’s treatment of this individual. Simply put, the decisions reached by the employer with respect to Coker were founded on good business sense, after years of tolerating his marginal behaviour and deflecting continued complaints from outside sources. The employer stood to lose some share of its business if it were to keep Coker in a position where he could continue to harass suppliers and cause delays in deliveries.

21. This application is dismissed

“S. C. Laing”

for the Board

CONCURRING DECISION OF BOARD MEMBER H. PEACOCK; August 15, 2000

1. I concur in the result decided by my colleagues with these additional comments:

2. I regard the basis for the discipline on which the employer relied in November 1997 to be inadequate. (See paragraph 15) The employer did not confront Mr. Coker with these allegations or undertake any investigation by way of inquiry of the suppliers who submitted them. It also relied on a typewritten complaint of driver Bill Julien which he said he dictated on November 2^nd, but is imprinted as a fax message November 22^. Mr Julien could not explain the difference. The letter of reprimand was dated November 28, 1997. On the witness stand, Mr Julien’s animus toward Mr Coker for having made him wait to be dumped and thereby rendered unable to follow another driver out the Panolam yard on a long return journey to Timmins was absolutely transparent. If this was the culminating incident for the employer, it leaves something to be desired even in a non-union setting in dealing with a long service and otherwise effective RMS operator such as Mr Coker.

3. Nonetheless, I cannot find that the employer has not discharged the onus that it bears under this section of the Act. There was a pattern of behaviour on Mr. Coker’s part which was the subject of complaints earlier in the year. As a witness, Mr Coker was not helpful to his cause in denying each and every incident. While the employer likely knew of Mr Coker’s role in the union organizing drive, I am unable to draw an inference that the November, 1997 discipline was in retaliation for his union activity,

4. In closing I wish to draw attention to the inordinate length of time it has taken the Board to release this decision. The panel heard evidence and submissions on April 23 and October 14 and 15 of 1998. Vice chair Laing left the Board in November, 1998.

5. It is now July, 2000. While Mr Coker’s penalty was far less than the ultimate for his behaviour, it does not serve him or the parties to have had to wait for this outcome for 21 months. To the extent that the trade union was waiting on the decision before considering a further organising effort at Panolam and to the extent that the desire of employees for union representation might be impacted by the result in this decision, the Board has effectively suspended the access of these two participants to the representational processes of the Act.

“Hugh Peacock”