Ontario Labour Relations Board
File No.: 2409-00-U Date: October 16, 2001
Between: National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 112, Applicant v. Toromont Cat, a Division of Toromont Industries Ltd., Responding Party.
Before: Stephen Raymond, Vice-Chair.
Appearances: Frank Luce, Herb Niepella, Alberto Valerio, and John Kennedy for the applicant; David Cowling, Randie Katez and Robert Sleva for the responding party.
DECISION OF THE BOARD
1On April 11, 2000, CAW-Canada (“CAW”) commenced a legal strike against Toromont Industries Ltd. (“Toromont”). On the second day of the strike, Mr. Alberto Valerio, while picketing at about 9:20 a.m., threw two devices onto the property of Toromont from the vicinity of the picket line. The police were called. A videotape of the incident was reviewed. Subsequently, Mr. Valerio’s employment with Toromont was terminated for throwing an “explosive device” onto Toromont’s property. The CAW brought this application pursuant to section 96 of the Labour Relations Act, 1995, as amended (“the Act”) alleging that by terminating the employment of Mr. Valerio, Toromont violated sections 17, 70, 72 and 76 of the Act.
2The issue is whether Toromont violated the Act by terminating the employment of Mr. Valerio.
The Facts
3Three witnesses gave evidence. Mr. Robert Sleva, the Employee and Industrial Relations Manager for Toromont, Mr. Valerio and Mr. Herb Niepella, the Chair of the Union Committee at Toromont. Their testimony on the essential facts was consistent and is set out below.
4At the time of the incident, representatives of Toromont and the CAW (including Mr. Sleva and Mr. Niepella) were meeting with police representatives to discuss issues about the strike. They were interrupted by news that there had been an incident at the plant.
5When Mr. Sleva returned to the plant, he found that employees and customers had been confined to the building, that the police had cordoned off the property of Toromont, and that the police were in the process of stopping traffic on Highway #7 which abuts Toromont’s property. The bomb squad had been called and the police were investigating two devices that remained on Toromont’s property.
6A videotape, which was not introduced into evidence, was reviewed by the police and Toromont officials. It was determined that Mr. Valerio had thrown the devices. He was confronted by the police and, initially, he indicated that he had not thrown any devices. When he was informed that there was videotape surveillance of the incident, he confessed. Subsequently, a search warrant was obtained for Mr. Valerio’s home. The police found the medium used in the devices, other explosives and another pipe. Mr. Valerio was charged pursuant to the Criminal Code of Canada. No conviction was registered.
7That same day Mr. Sleva made the decision to terminate the employment of Mr. Valerio.
8Prior to the commencement of the strike, Mr. Valerio had been selected as a picket captain. He did not picket in that capacity on either the first or second day of the strike.
9Mr. Valerio had worked for Toromont since April 14, 1989. He is a Caterpillar mechanic having worked previously in Kuwait, Oman and Saudi Arabia. He was recruited from his home in the Phillipines to work for Toromont. He is married with three children. Prior to this incident, he had a clean discipline record.
10He testified that he threw the devices and that his intention was to get attention (including that of the media). He did not intend for anyone to get hurt. To make the devices, which he was doing for the first time, he altered fireworks that he purchased in a retail store. He said that he was sorry for what had occurred, that he was embarrassed both for himself and his family, and that this incident caused considerable strain in his marriage. It was indicated, as well, that Mr. Valerio attempted, through Mr. Niepella, to apologize to Toromont but Toromont demonstrated no interest in receiving such an apology.
11Toromont is the only business in Ontario where a mechanic can work directly as a Caterpillar mechanic.
The Argument
12The CAW, in its application, alleged the violation of four sections of the Act. At the hearing, it was indicated that there was no longer any allegation of a violation of section 17 of the Act. The alleged violations are of sections 70, 72 and 76 of the Act. They read as follows:
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.
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.
- 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 obligations under this Act.
13These sections of the Act are designed to protect unions and their members from employers who take action against the union or its members because of, among other things, union membership or activity. Typically, when determining if these sections of the Act have been violated, the Board will determine whether there has been an anti-union animus on the part of the employer.
14Counsel for Toromont argued that to show a violation any of these sections of the Act, there must be a finding of an anti-union animus against the employer. Since it is clear from the evidence that Mr. Sleva did not know that Mr. Valerio had been selected as a picket captain, and the fact that he had not acted in that capacity, there could not be, he argued, any finding of anti-union animus.
15He argued that the inquiry ought to be completed at this point. However, counsel acknowledged the jurisprudence of the Board in cases such as International Wallcoverings, [1983] OLRB Rep. Aug. 1316. In that case, the Board found that it was appropriate, in certain circumstances, to take a non-motive approach to violations of section 70. Counsel argued that, even using this approach, there could be no finding that Toromont violated the Act.
16Counsel for the CAW argued that Mr. Valerio was very remorseful of his actions and that he attempted to apologize for them. The probability of Mr. Valerio engaging in similar activity, if reinstated, was excessively remote. The fact that Mr. Valerio had a clean disciplinary record supported the fact that this was a momentary aberration which would not be repeated. In fact, Mr. Valerio had already paid a heavy price for his actions. He faced criminal charges and had been incarcerated prior to his bail hearing.
17He stressed that Mr. Valerio had not thrown an “explosive device” which is the basis upon which he was terminated. If Toromont had carefully examined the facts, it would have known that the device thrown was not an “explosive device”. Accordingly, a different decision would have been made by Toromont regarding Mr. Valerio’s employment.
18While Mr. Valerio’s behaviour was intolerable, it had not caused “irreparable damage to the employment relationship”.
19As well, he stressed that Mr. Valerio had been recruited from the Phillipines and that, without work with Toromont, he could not continue his trade as a Caterpillar mechanic.
20Counsel compared the circumstances of what Mr. Valerio did with an individual from the International Wallcoverings case, supra. That person, Mr. McConnell, was not terminated. He was found to have engaged in serious conduct with respect to replacement workers during a strike. Mr. McConnell, admitted in reference to a van that was carrying replacement workers, to “screaming obscenities, breaking the grill and lights of the van, and breaking off the side door mirror”.
Decision
21In order to find a violation of section 72 or 76 of the Act, there must be a finding that the employer has acted with an anti-union animus. There is no factual basis, at all, in this application, that Toromont had done so. The decision to terminate Mr. Valerio’s employment was based solely on the events of April 12, 2000. No other factual conclusion can be drawn from the evidence.
22Therefore, the only remaining section to consider is section 70 of the Act. In International Wallcoverings, above, the Board found that there could be a violation of the Act even where an employer has not acted with an anti-union animus. The test was described in Carleton University, [1998] OLRB Rep. Jan./Feb. 17 at paragraphs 49 and 50 as follows:
In International Wallcoverings, supra, the Board acknowledged the utility of having an unfair labour practice provision for which motive was irrelevant. At the same time the Board observed that all legitimate employer conduct which may "interfere" with a bargaining agent should not necessarily amount to an unfair labour practice. For example, where an employer dismisses an inside organizer and the Board finds that the dismissal is not tainted by an anti-union animus, it may very well be that the union's organizing efforts have been interfered with despite the fact that the dismissal is appropriate in the circumstances. These facts should not in every case amount to an unfair labour practice. If they did, then there would be no need for sections 72 and 76 of the Act.
The Board in that case, fashioned a test which attempted to balance these competing principles. The test requires a balancing as between the "business purposes" behind the employer's conduct and the union's "protected activity" which may have been interfered with. In paragraph 32 of that decision, the Board described the type of employer conduct which would breach section 70:
...cases arise where employer conduct has a significant impact on protected activity and, while supported by good faith, does not reflect a persuasive or worthy business purpose...
23Section 70 is designed to prevent interference in the activities of the trade union. The termination of Mr. Valerio’s employment did not interfere in any way with the activities of the trade union. The trade union was engaged in a lawful strike. Mr. Valerio was to be a picket captain but never took up that role. The termination of Mr. Valerio’s employment did not interfere in anyway with the trade union’s lawful strike or its ability to conduct it. There is no need to balance the “business purposes” behind Toromont’s conduct against the “protected activity” engaged in by the union which may have been interfered with by Toromont. There is no such “protected activity” here. Toromont chose to terminate the employment of a person who brought whatever business Toromont was conducting that day to a halt. Mr. Valerio frightened employees, customers and their families. He caused a highway to be closed and the police and their bomb squad to attend. Mr. Valerio’s employment was terminated. In doing so, Toromont did not violate section 70 of the Act.
24The application is dismissed.
“Stephen Raymond”
for the Board