United Steelworkers of America v. Bingo Press & Specialty Limited c.o.b. as Bazaar Novelty
Before: Mary Ellen Cummings, Alternate Chair.
Appearances: William Gibson, Alison Collier, Robert McKay and Charles Strucke for the applicant; Brent Foreman, Tracy Lee, Caroline Warkentin and Tom Hudson for the responding party.
DECISION OF THE BOARD; March 21, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant (the union) alleges that the responding party (the employer) has breached sections 5, 70, 72 and 76 of the Act with respect to the termination of Charles Strucke. The applicant alleges the termination of Mr. Strucke, 2 days after the union filed its application for certification, and 5 days before a representation vote was held (which the union won) was because Mr. Strucke was an inside organizer, and the employer wanted to send a message to employees. The employer responded that it did not know that Mr. Strucke was an organizer, and terminated him for legitimate performance issues.
2The parties presented their evidence and argument very efficiently, and at the end of the day of hearing, I issued the following oral reasons:
The parties, correctly I think, recognized that this case turns very much on its facts, and reference to the Board's well-established case law, would not be of much assistance.
The facts are somewhat unusual as well, and largely agreed. Mr. Strucke, a 5-year employee, was terminated in the period between the filing of an application for certification and the holding of a representation vote. As the applicant submitted, it is timing which puts a heavy onus on an employer to explain. But I am satisfied that the employer has met the onus in two ways; I am satisfied that the employer did not know that Mr. Strucke was an inside organizer at the time he was terminated, and I am satisfied that Mr. Strucke was terminated for legitimate reasons relating to performance, and in accordance with the employer's published policy on progressive discipline.
The context of the certification campaign is important. It lasted for over two months, and was characterized by witnesses for both parties as open, with much debate on both sides, carried out both in the workplace and outside. The campaign was particularly visible because supporters wore
buttons, hats and T-shirts. Ms. Alison Collier, a lead outside organizer for the union, testified that by the day of the representation vote, the majority of employees openly wore T‑shirts supporting the union.
Against that backdrop, I considered the visibility of Mr. Strucke. Although he recounted one conversation that he had with a supervisor about unionization, Mr. Strucke did not suggest that he told the supervisor his own views or his own position. The two management people who made the termination decision denied having any knowledge about Mr. Strucke's particular involvement in the election campaign. And the activities Mr. Strucke described carrying on in the workplace that is talking to employees, distributing leaflets, appear to have been undertaken by a large number of employees. Just as wearing a T-shirt supportive of the union does not create a particular impression when everyone else is doing it, engaging in talk about the union with fellow employees does not heighten your visibility if everyone else is doing it.
I am not satisfied, taking all the surrounding evidence into account, that the company knew Mr. Strucke was part of the 10 to 12 person inside committee. It is worth noting that the applicant has brought no allegations suggesting that any other employee was penalized in any way. It is also worth noting that this complaint was not brought until nearly two months after the events.
As I set out at the beginning, I am also satisfied that Mr. Strucke was terminated for legitimate performance issues. There is no dispute that on July 7, 1999, Mr. Strucke laminated an amount of product incorrectly, with the result that it had to be scrapped. He had already been formally warned in writing three times around product quality deficiencies in his work. The most recent warning, dated November 17, 1998, advised that the next incident would lead to dismissal. All the warnings occurred long before the union was on the scene.
When the July 9, 1999 incident occurred, the employer led evidence that the whole of Mr. Strucke's record was considered. When Mr. Strucke offered no explanation for the poor workmanship when interviewed, he was terminated, consistent with both the earlier warnings and the employer's progressive discipline policy.
I am satisfied, first that the company had no knowledge of any special involvement by Mr. Strucke in the organizing campaign and I am also satisfied that the termination occurred for performance reasons with no anti-union taint.
3For the reasons set out, this application is dismissed.
“Mary Ellen Cummings”
for the Board