1290-00-U National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Matrix Logistics Services Ltd., Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: J. Andrew, John Aman, Frank Tusco, Jerry Kinch and Bill Flewelling for the applicant; Jim Hassell, Ted Smith, Tony Fenutta Pat McDonald and Sheri Payne for the responding party.

DECISION OF THE BOARD; May 1, 2001

1. This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant (referred to as the “union”) alleges that the responding party (referred to as the “company”) violated sections 70, 72 and 76 of the Act when it terminated the employment of Jerry Kinch and Bill Flewelling. In a decision dated January 26, 2001 the Board found that the company had violated the Act and made a number of declarations and orders. This decision provides the reasons for that earlier determination.

Facts

2. The Board heard evidence from nine witnesses. Much of the evidence was contradictory and few of the witnesses were able to provide testimony which was unaffected by self-interest. The Board has therefore based its decision on those facts which are not really in dispute or, where that is not possible, on the evidence which seems to be best supported by the undisputed facts or makes the most sense in the circumstances considering the balance of probabilities.

Background and History of the Organizing Campaign

3. Matrix Logistics is a warehousing operation for drug store chains. It has a number of locations. The facts relevant to this application take place at the Mississauga warehouse. Both Mr. Kinch and Mr. Flewelling were hired by the company in 1997. In the summer of 1999 Mr. Kinch and Mr. Flewelling were given the newly created positions of “cleaners”. The United Steelworkers of America (“USWA”) commenced a union organizing campaign for the employees at the Mississauga location in 1999. Mr. Kinch was the key organizer. He was one of the initial contacts with the USWA, he collected cards on the day shift and amassed the cards that had been collected by employees on the other shifts to return to the USWA. Mr. Kinch’s position with the USWA was well known.

4. In September 1999, the company replaced its management team at the Mississauga location. In early October 1999, with the USWA representation vote pending, the new management team held a meeting with employees. Norm Marchi, the company’s vice-president, asked the employees to vote against the union and give the company six months to resolve any concerns they had. Mr. Kinch spoke at the meeting in favour of the USWA. Mr. Marchi told the employees that if the company did not live up to its six month commitment he was sure that Jerry Kinch would be back with another organizing drive and they could vote “yes” then. The USWA lost the vote on October 5, 1999. Mr. Kinch was one of its scrutineers.

5. The applicant introduced some evidence with respect to events which occurred prior to September 1999. The evidence purportedly related to Mr. Kinch’s interaction with the company vis-a-vis his role as a union organizer. However the evidence was introduced only for the purpose of providing background to the application. The Board has not referred to this evidence as it did not contribute to its understanding of this application and, in any case, it involved the actions of a management team which was replaced in September 1999. The Board indicated at the hearing that it would not be relying upon this evidence as it was only being provided as background.

6. In March 2000, six months after the vote, Mr. Kinch commenced a new organizing campaign as promised. The members of the former Retail Wholesale Department Store Union, which had been affiliated with the United Steelworkers of America in 1999, had become affiliated with the applicant. It was the applicant which commenced the campaign in 2000. Mr. Kinch advised some of the company’s team leaders that the campaign would be starting. Leaflets were distributed on a few occasions in March and April, 2000.

7. Around the time that the new campaign began, Mr. Kinch was asked to attend a meeting with Ted Smith, the company’s Director of Human Resources and Tony Fenutta, the maintenance manager. They warned him to stop harassing employees about the union. Mr. Smith testified that his operations manager had told him that three employees had complained that Mr. Kinch had approached them about joining the union and that they felt harassed. Mr. Smith would not tell Mr. Kinch the names of the employees but said that next time, if it went further, he would. Mr. Kinch claimed that Mr. Smith said “next time, when I fire you, I will tell you their names”. At the hearing neither Mr. Smith nor Mr. Fenutta could recall the names of the employees who had allegedly complained. William Gibson, the union’s business representative, sent Mr. Marchi a letter protesting against the meeting and an alleged threat to fire Mr. Kinch. Counsel for the company subsequently sent a letter to Mr. Gibson in which he denied the allegations in Mr. Gibson’s letter and in which he took the position that the union was barred from making an application for certification for a year, i.e. until October, 2000, as a result of the unsuccessful campaign the year before. A lawyer representing the union, replied to Mr. Hassell’s letter. He warned that the union would respond to any perceived reprisals against Mr. Kinch and indicated that the union would apply for certification when it saw fit. The largest percentage of the total number of cards collected was collected in March. Fewer cards were collected in April, May and June. In April the company hired approximately 100 new part-time employees.

8. Approximately a month after Mr. Kinch’s meeting with Mr. Smith and Mr. Fenutta, the day shift operations manager, Jeroen Redel, also warned Mr. Kinch that he had received complaints that Mr. Kinch was harassing employees about the union. Mr. Kinch advised him that he was just telling the new employees that there was an organizing campaign in progress and that they could speak to him if they wanted information. Apparently there was some discussion between Mr. Kinch and Mr. Redel as to whether that could constitute harassment. Mr. Redel advised Mr. Smith about the conversation. Mr. Redel acknowledged in cross-examination that prior to his conversation with Mr. Kinch, Derek Jones, the site manager, had advised him that Mr. Kinch had been spoken to about talking about the union on company time. Mr. Redel testified that he also advised his team leaders that Mr. Kinch had been spoken to on the matter.

9. Approximately one week later, the general manager of Matrix Logistics Canada, Richard Gelder, also told Mr. Kinch to stop talking to employees about the union.

10. In June 2000, Mr. Kinch, pursuant to the company’s “open door policy”, complained to Mr. Gelder that one of the team leaders, Peter Fenton, had been rude in directing him to clean up a water spill. Two meetings were held to discuss the matter. At some point in the first meeting, according to Mr. Gelder, Mr. Kinch said something like “I would not refuse to clean up the spill because you would fire me” and Mr. Gelder said “well there’s a thought”. Mr. Kinch was again advised to stop talking to employees. The issue of the union was also raised at both meetings. Mr. Kinch said Mr. Gelder raised it. Mr. Gelder said that he could not remember who raised it but that it always came up between him and Mr. Kinch. Mr. Gelder testified that he was not aware that there was an organizing campaign at that time but that he was not sure that there was not. Mr. Smith said the union issue was raised by Mr. Kinch who claimed they were complaining about him talking to employees because of his union organizing activities. Mr. Smith said that it was acknowledged at the meeting that Mr. Kinch was the chief union organizer but that they denied that was why they were telling him to stop talking. Mr. Smith said they told him to stop talking to employees because it was disruptive. Mr. Smith said that at the end of the meeting Mr. Kinch was told to go do his job and not talk so much.

11. Mr. Smith testified that aside from a few days of pamphleting in March, 2000 he had heard neither “hide nor hair” of the union when he terminated Mr. Kinch. He testified that the company knew Mr. Kinch was the chief organizer on the day shift. However, they were not aware of any involvement that Mr. Flewelling had with the union. He claimed that if Mr. Flewelling had any interest in the union it was because he was a “follower”.

12. Mr. Kinch testified that he stayed involved with the campaign after he was terminated and that he kept in touch with the union’s organizers. He was aware that the union stopped receiving membership cards after his termination. Counsel for the employer objected that this evidence was hearsay as Mr. Kinch was provided with the information by other union organizers.

The Cleaners’ Duties

13. The company claims that it terminated Mr. Kinch and Mr. Flewelling not because of union activity but because they were taking cigarette breaks outside of one of the doors to its receiving docks. Employees are allowed to smoke outside if they are working. However, the company says that Mr. Kinch and Mr. Flewelling had no work duties outside. The question of what the cleaners’ duties were is therefore a significant factor in determining the bona fides of the terminations.

14. There were three full-time cleaners, Mr. Kinch, Mr. Flewelling and Dermot Byrne. There was also a part-time cleaner, Jeff Angus, who was on light duties. The cleaners reported to Mr. Fenutta, the maintenance manager. Mr. Kinch and Mr. Flewelling worked from 6:30 a.m. to 2:30 p.m. with one half hour lunch and one 20 minute break. When they went out for lunch and breaks they punched, or scanned, out. The cleaners’ duties varied somewhat depending upon which warehouse they were working in but essentially they involved driving around on vehicles called “double palette walkies”, collecting cardboard and garbage and then putting cardboard in the cardboard compactor and garbage in the garbage compactor. They also did some cleaning and relieved the employee in the battery shop as needed.

15. The warehouse duties are divided into three contiguous areas, warehouse 10, warehouse 40/50 and warehouse 30. Until six to eight weeks prior to the termination, the three full-time warehouse employees would rotate into each area each week. However, six to eight weeks prior to the termination Mr. Byrne asked Mr. Kinch and Mr. Flewelling if he could work exclusively in warehouse 30 because he was having health problems. They agreed to accommodate him. After that Mr. Byrne worked in warehouse 30, sometimes with Mr. Angus, who was on modified duties. Mr. Kinch and Mr. Flewelling assisted them as needed. Mr. Kinch and Mr. Flewelling rotated between warehouse 10 and warehouse 40/50. Mr. Fenutta testified that Mr. Kinch worked in warehouse 40/50 and Mr. Flewelling worked in warehouse 10 and that that had been the situation since he started in February 2000. That was clearly not the case. Mr. Fenutta said the cleaners asked him if they could rotate and he said he would think about it. That was clearly not the case either. Mr. Fenutta never assigned them to any particular warehouse nor did he ever discuss a list of job duties with them.

16. Mr. Kinch and Mr. Flewelling testified that the wind blew dust through a hole in the garbage compactor into the warehouse. The hole in the compactor was supposed to be covered by a steel plate but it was missing. Mr. Kinch and Mr. Flewelling found that if they cut cardboard to fit the space and taped it on, it would stop the dust. However, the tape would not hold so it required a daily repair. Mr. Flewelling explained in cross-examination that there was a lip sticking out beneath the hole so the cardboard needed to be cut to fit. Mr. Flewelling agreed the job could be done by one person but that it was easier with two because one could hold the cardboard up while it was cut and taped by the other. He testified that it was annoying to have to do this every day although it did provide an opportunity to have a cigarette. He said, however, that if it was not done, every time they dumped garbage in the compactor, dust blew back down the tunnel and in their faces. He said that he asked Mr. Fenutta for a mask because of the dust. He testified that cutting and putting on the cardboard took five to ten minutes. He also testified that since he became a cleaner he always went out to help “Randy”. Randy was the driver for “UPAC”, the company that collected the cardboard compactor. When the compactor was removed a lot of cardboard pieces were left on the ground and had to be picked up. The company claimed that assisting Randy was exclusively the duty of the third cleaner Dermot Byrne. However, all three of the cleaners testified that they all performed this task. Mr. Flewelling said it took about ten minutes to pick up the cardboard.

17. Mr. Fenutta testified that he was aware of the hole in the compactor but that he never told Mr. Kinch and Mr. Flewelling to cover it. He said that they had never filled out a maintenance requisition to have it repaired. However, he acknowledged that Mr. Kinch and Mr. Flewelling had complained about dust and that Mr. Kinch had brought him to the compactor to show him how much dust there was. He said that he told Mr. Kinch it was not a perfectly sealed unit and that intake fans in the building caused negative air pressure which brought the dust in. He testified that he did not believe that covering the hole would stop the dust. He testified that he told them to use masks because of the dust and that he showed them where the masks were and they started using them. He also testified that Mr. Kinch came and asked for better dust masks and that he provided them.

18. Mr. Flewelling also explained that there was a red light on the garbage compactor which would come on to indicate that it was full. However, it was possible to press another button to reset it. He testified that he would go outside to check the compactor when the red light came on before resetting it. Mr. Kinch explained that they went out to check the compactor to ensure that there was still play in the compactor arm so that it would not break. He testified that it had broken twice. Mr. Fenutta agreed that the compactor arm had broken.

19. Mr. Kinch testified that the cleaners also picked up garbage that fell on the ground outside when the garbage compactor was removed twice per week. This task sometimes involved a lot of sweeping. He also testified that they had to pick up cardboard that would slide underneath the compactor. Sometimes they shovelled snow and cleaned up around the shipping docks.

20. Mr. Flewelling agreed in cross-examination that he went out door 11, which leads to the north receiving docks, three or four times per day. He said that that had been the case since they started the new conveyor system. He denied that he ever went out just to smoke a cigarette. He said that he always had some work to perform.

21. Mr. Kinch agreed in cross-examination that, except during the period in which he quit smoking, he more often than not lit up a cigarette when he went outside. He agreed that doing work outside provided an opportunity to smoke and that sometimes it provided an excuse to go outside and smoke. However, he said that he always performed some work that needed to be done when he went outside. He agreed that being able to smoke when he worked outside sometimes extended the period of time he stayed outside. He also agreed that it did not take two people to check the cardboard on the hole on the compactor.

22. Mr. Fenutta testified that the cleaners’ duties had not changed since he started his position as maintenance manager in February, 2000. His main concern from his arrival had been sorting out the material handling equipment and that he had not focused on the cleaners. Mr. Fenutta had no discussion with his predecessor, Ross Gordon about the cleaners or their duties. He testified in cross-examination that he accepted that the cleaners knew what they were doing and he did not feel it was necessary to review their duties with them. Nevertheless, Mr. Fenutta testified that the only cleaner who had a reason to go outside was Mr. Byrne. Mr. Byrne’s only reason for going outside was to clean up the cardboard flaps that fall out when the UPAC driver took away the cardboard compactor. Mr. Fenutta testified that he told Mr. Byrne that the person in warehouse 30 should go out and clean up the cardboard when the cardboard compactor was removed. He could not recall if Mr. Kinch or Mr. Flewelling were there when he said that. He did recall that he did not say that no one else should go out to do that task. He acknowledged that Mr. Kinch and Mr. Flewelling were to help Mr. Byrne in warehouse 30 from time to time. During the period prior to the terminations, the UPAC driver was coming every day to remove the compactor. Mr. Fenutta testified that Mr. Kinch’s only outside duty was to take out a garbage bin on the south side of the building (not outside door 11). It is not disputed that no one ever told Mr. Kinch and Mr. Flewelling that they were not supposed to go outside.

23. Mr. Fenutta also agreed in cross-examination that he could not dispute that it was the cleaners’ practice to cover the hole in the compactor with cardboard but he stated that no one told them to do it. Mr. Kinch said he had talked to Mr. Fenutta about the hole and that he had suggested covering it with cardboard.

24. On June 24, 2000 Mr. Fenutta held his first meeting with the cleaners on the day shift. As noted previously, he had never had a prior discussion with them about their duties. He had not assigned them their work or their work areas. At the meeting on June 24, 2000 Mr. Fenutta advised the cleaners that Pat McDonald was his assistant team leader. He also advised them that he was instituting a formalized break schedule, a copy of which he provided to them. He told them that they were taking too many unauthorized breaks and that a continuation of that behaviour could lead to discipline, including dismissal. There was no explanation at that time, or at the hearing, as to what he meant or what behaviour he was referring to i.e. did he mean cleaners scanning out for more than one break? Did he mean going to the washroom too often? His agenda for that meeting says, “There has been many individuals taking more than one break and late lunch this is considered time theft and will not be tolerated anyone caught will be dismiss [sic]”. Mr. Kinch denied that Mr. Fenutta said that at the meeting. Mr. Flewelling could not recall but agreed it was possible it was said. Mr. Byrne could not recall what was said was to happen, if the break schedule was not followed. Mr. Flewelling testified that Mr. Fenutta said there had been complaints because they were in the lunchroom on breaks at different times than anyone else. However, the item is included on an agenda which was identified by Mr. Fenutta and Mr. McDonald and which was provided to the Board. The Board finds that unauthorized breaks were mentioned at the meeting. However, the agenda was never given to the cleaners. The cleaners were never given anything in writing except the break schedule. Nothing was posted. Many other things were also raised by Mr. Fenutta at the meeting. It appears that the break schedule was not popular and there was a lot of discussion about it because the cleaners thought it required them to take lunch too early.

25. In cross-examination Mr. Fenutta testified that he understood that smoking was only permitted outside in designated areas and that the area outside door 11 was not a designated area. That view is not consistent with the company’s policy which permits smoking while working outside and is not restricted to any area. One would have expected that since Mr. Kinch and Mr. Flewelling were terminated in Mr. Fenutta’s presence for a violation of that policy he would have known about it. Mr. Fenutta’s lack of knowledge on this point suggests that he and Mr. Smith never even discussed the theory upon which Mr. Kinch and Mr. Flewelling were terminated. According to Mr. Fenutta, Mr. Kinch and Mr. Flewelling should not have been smoking even if they were assisting Mr. Byrne as it was not a designated area. He denied that if they were helping Mr. Byrne it would have made a difference in whether they should be terminated because they were not “supposed to be there.” He said that he considered it to be a firing offence for them to be outside their area and to be smoking outside the designated area. The company claims however, that they were terminated for taking breaks outside.

The Terminations

26. On July 12, 2000 Mr. McDonald was walking by door 11. He saw Mr. Kinch and Mr. Flewelling go out the door. He went and looked through a window and then immediately opened the door and told them to come back inside. They were outside for approximately one minute. Mr. McDonald saw them standing at the bottom of the stairs from the door lighting up cigarettes. There was some dispute as to whether Mr. Flewelling was actually lighting up, however, there was no dispute that he planned to do so. Mr. Kinch told Mr. McDonald that they were going to check the cardboard that they placed over the hole in garbage compactor to stop dust from blowing into the plant. Mr. McDonald said something to the effect of “never mind the excuses and get back inside”. They came back in. Mr. McDonald then went and told Mr. Fenutta. Mr. Fenutta testified that he then went to see Mr. Smith. As it was after 2:30, Mr. Smith said they would address it the next day. Mr. Smith said that he was considering suspending them at that point.

27. Mr. Flewelling testified that around 1:00 or 1:30 on July 12, 2000 he and Mr. Kinch had just dumped some barrels into the compactor and were overwhelmed with dust. They had covered the hole in the garbage compactor with cardboard the day before so they went outside to check it. They just reached the bottom of the stairs when Mr. McDonald came out. Mr. Kinch had a cigarette in his mouth. Mr. Flewelling did not know whether he had had a chance to light it. Mr. Flewelling was showing Mr. Kinch a $10.00 bill upon which, it appeared to him, an American flag was flying over the Parliament buildings. They were about to proceed to the compactor when Mr. MacDonald told them they should not be out there. They tried to tell him that they were going to look at the compactor but he said that he did not want to hear their excuses and he was not following them. Mr. Flewelling then left while Mr. Kinch stayed behind and spoke to Mr. MacDonald. Mr. Flewelling went to get more garbage bins. When he went to dump them into the compactor 20 minutes later the dust was still blowing around. He therefore grabbed some tape and cardboard and went outside to tape up the hole.

28. The evidence with respect to the next day, July 13, 2000, is rather confusing and contradictory. Mr. Smith testified that when he came to work that day, he found Mr. Fenutta and Chris Aubry, the manager of loss prevention, reviewing a surveillance tape of door 11. Mr. Smith testified that they told him that both Mr. Kinch and Mr. Flewelling had made several entrances and exits through that door that morning. He also testified that he was told that Mr. McDonald and Mr. Fenutta had seen them come in through door 11 at about 8:30. That appears to be the reason that they were reviewing the surveillance tapes. However the tapes show that Mr. Kinch and Mr. Flewelling were not outside together that morning. The tape also shows no sign of Mr. McDonald and Mr. Fenutta. Mr. Fenutta testified that he and Mr. McDonald decided to go down and look at door 11 on the morning of July 13 to see what number it was. When they got there they saw Mr. Kinch (and not Mr. Flewelling) coming inside with a stick in his hand. Mr. Kinch apparently said “ a good day for golfing” and walked by. They did not confront him or ask him what he had been doing. Instead, they decided to go and look at the tapes in the security office. The tapes they looked at showed the inside of door 11. There are cameras on the outside of the building as well. Mr. Fenutta testified that he wanted to see what the outside cameras showed but they were “broken or something”. While Mr. Aubry was getting ready to review the tapes, Mr. Smith came in. They told him they had seen Mr. Kinch coming in from outside. Mr. Smith testified that he did not stay at that point but arranged for a meeting to be held at 9:30. Mr. Fenutta said that they then viewed the tapes from the previous day and Mr. Kinch and Mr. Flewelling came in and out so many times it was “ridiculous”. (They came in and out three times.) Mr. Fenutta testified that when Mr. Smith came back from his office they looked at the incident from July 12 when Mr. McDonald saw Mr. Kinch and Mr. Flewelling go out, as well as the “incident” from July 13. (He must have meant a part of the tape that shows Mr. Kinch come in after being outside for three minutes since that was the longest time he was outside at that point.) Mr. Fenutta testified in cross-examination that other than those two incidents he and Mr. Smith did not view any other tapes before they decided to terminate Mr. Kinch and Mr. Flewelling. However, at another point he testified that he only looked at the tape of the incident of July 12 with Mr. Smith before they decided to terminate them. He also said that they noticed that Mr. Byrne had gone out the same door so they decided to bring all three of the cleaners in for an interview.

29. Mr. Smith’s evidence was somewhat different. He said he reviewed at least some parts of the surveillance tapes of the inside of door 11 on the morning of July 13 prior to 11:00 a.m. He claimed that he reviewed the first exit on the 11th and possibly all of the exits on the 12th and the first one on the 13th. He testified that on the tape of the 12th they saw Mr. Flewelling taking out a piece of plywood and then bringing the same piece back in. This appeared to be offered as support for his determination that something improper was going on. However, a close look at the tape shows that Mr. Flewelling took out a piece of something that looks like cardboard and brought back a different shaped piece. Mr. Smith also testified that they were looking at the surveillance feed when they saw Mr. Kinch go out door 11 at 8:53. When he had not returned by 9:03, Mr. Smith ordered that the tape be pulled. No one went to see what Mr. Kinch was doing outside.

30. Mr. Kinch testified that he went outside on the morning of July 13, 2000 to see if there was enough play in the arm of the cardboard compactor. He said on Monday or Tuesday of that week the arm had become too tight and Mr. Fenutta had had to call UPAC to come and get the compactor right away. Mr. Kinch ascertained that there was enough room in the compactor arm and he came back inside. He went out again later and cleaned up with Mr. Byrne and Mr. Angus when the UPAC driver came. He testified that later he covered the hole over the garbage compactor. On that occasion Mr. Flewelling was with him. (That occasion must have been after the tape was removed as the tape does not show them going out together that morning.) On each occasion when Mr. Kinch went out he lit a cigarette but he did not stay to finish it on the first occasion when he was checking the compactor arm.

31. Mr. Flewelling testified that on the morning of July 13 at approximately 8:00 a.m. He was dumping cardboard when he heard a bang and thought it was Randy coming to take the cardboard compactor. He therefore went outside. When he went out he realized that Randy was not there and he came back inside. He testified that about 10:30 he went out with cardboard and tape to fix what he had done the day before to the hole in the compactor. He could not recall if Mr. Kinch was with him. He testified that the first time he went out he did not smoke but the second time he did.

32. Mr. Smith met with Mr. Fenutta at 11:00 a.m. on July 13. He said they discussed the cleaners’ duties. However, as noted above, it does not appear that the company’s policy of permitting employees to smoke outside if they were working was discussed as Mr. Fenutta was unaware of that policy when he testified. Mr. Smith said that Mr. Fenutta advised him he had addressed the issue of “time theft” at the meeting of June 24, 2000. He reviewed the break schedule and the record showing that the employees had swiped out for their scheduled breaks. He said that he decided that they were engaged in “time theft” and that that they should be terminated.

33. Mr. Smith testified that he asked Mr. Byrne to come to a meeting on July 13 as he had been seen exiting door 11 right before Mr. Kinch and Mr. Flewelling. (In fact only Mr. Kinch went out after Mr. Byrne). The meeting took place prior to the meetings with Mr. Kinch and Mr. Flewelling. Mr. Smith said he asked Mr. Byrne what he was doing outside and he said that he went to meet the truck (the UPAC vehicle). He asked him if he saw Mr. Kinch and Mr. Flewelling out there and he said that he had. He asked him what they were doing and he said “standing smoking cigarettes”. However, the surveillance tapes show that only Mr. Kinch was outside with Mr. Byrne on the 13th. Mr. Byrne was not outside when Mr. Kinch and Mr. Flewelling went out on the 12th. This fact throws both accounts of this conversation into doubt. Mr. Smith knew that as he had just seen Mr. Byrne go outside on the surveillance tape before Mr. Kinch but not Mr. Flewelling.

34. Mr. Byrne testified that he was asked what he was doing outside that morning. In cross-examination he could not remember what date they had asked him about. He said he was asked if he saw Mr. Kinch and Mr. Flewelling outside and he said that he had. Again this was not true and Mr. Smith and Mr. Fenutta would have known it as they just reviewed the tape. Mr. Byrne said he was asked what Mr. Kinch and Mr. Flewelling were doing and he said smoking. He was asked whether they were working at the same time and he said no. He was asked if he had seen them smoking outside before and he said he had. At the hearing he said he also went out there three times per day to work and smoke. He said they were allowed to do this as they were cleaners. In the hearing he also said that he saw them go out three to five times per day but did not know how long they were out there. In cross-examination he acknowledged that he did not actually see them going out but he would see double palette walkies near door 11. He also testified that there were many of those walkies in the plant and they were all painted the same colour. Sometimes that ones he saw at door 11 would have red or yellow bins on the back which would mean they came from the warehouse 30 and he would assume those were Mr. Kinch’s and Mr. Flewelling’s. Mr. Byrne testified in cross-examination that he warned Mr. Kinch and Mr. Flewelling separately in September 1999 that they were going to get caught going outside so frequently. They both denied receiving such a warning from him. Mr. Byrne confirmed that he had seen Mr. Kinch and Mr. Flewelling covering the hole on the garbage compactor with cardboard and tape. He testified that that job should only need to be done about once per week and should not take more than a minute but that they took ten to fifteen minutes. However, he acknowledged in cross-examination that he had never done it himself and was just guessing. He agreed that it was part of Mr. Kinch’s and Mr. Flewelling’s job to come out to assist him when the cardboard compactor was taken away. Sometimes one would help and the other would smoke, sometimes they would both work and he would smoke.

35. Mr. Smith and Mr. Fenutta asked Mr. Kinch to meet with them with the intention of terminating him after they met with Mr. Byrne. There was considerable disagreement as to what was said at this meeting. As the company relied upon the exchange at this meeting as evidence of Mr. Smith’s good faith and Mr. Kinch’s culpability it will be set out in some detail. However, it is hard to find that any account is entirely accurate. Ultimately what took place was Mr. Smith asked Mr. Kinch what he was doing outside, Mr. Kinch told him, Mr. Smith said he did not believe him and fired him. It is not disputed that Mr. Smith had decided to fire Mr. Kinch before the interview. Nevertheless, Mr. Smith testified that he asked Mr. Kinch what he was doing outside on the 12th and he said he was going to cover the hole in the compactor because of the dust. Mr. Smith then said he asked how he was going to do that without tape or cardboard and that Mr. Kinch said “no comment”. Mr. Kinch denies that. (If Mr. Kinch and Mr. Flewelling went out on the 13th to tape up the compactor it was after the surveillance tape had been removed so Mr. Smith would not know if they had cardboard and tape or not. The tape of the 12th does show them going out at one point with cardboard which apparently been out before they come back in.) Mr. Smith testified that he told Mr. Kinch that they had a large number of entrances and exits on tape and it was “time theft”. He claims that Mr. Kinch said that if they had it on tape he would not comment. Mr. Smith said they then told him he was being fired for time theft, gave him a hand written note to that effect and walked him off the premises. It was acknowledged however, that at some point Mr. Kinch said he had been cleaning up cardboard with Dermot Byrne but they told him the [UPAC] truck had left 35 minutes prior. (That did not make sense given what they had asked Mr. Byrne. Furthermore, the tape for July 13, 2000 shows that Mr. Byrne and Mr. Kinch were outside at the same time.) Mr. Smith said that he could not believe that Mr. Kinch was that stupid and that he had just given him cause to fire him. Mr. Kinch asked if he was supposed to get a warning and Mr. Smith said that Mr. McDonald had given him a warning the day before. Mr. Kinch uttered a profanity and asked who Pat McDonald was. He said that he (Mr. MacDonald) might be Mr. Fenutta’s assistant team leader but he was not his (team leader). He said that he had never seen a posting for that position. Mr. Smith said something like “thank you for saying that in front of us”. At the time of this exchange Mr. Kinch already knew he was being fired. Apparently he made that comment about Mr. MacDonald as there had been no posting for his position according to the company’s normal practice. Mr. Smith testified that he also told Mr. Kinch that Mr. Fenutta had warned him on June 24 about “time theft”. Mr. Kinch denied that.

36. Mr. Fenutta testified in cross-examination that when Mr. Kinch was asked what he was doing outside, he described fixing the compactor arm and helping Mr. Flewelling with the cardboard on the compactor and cleaning up the cardboard. Mr. Fenutta said they did not believe Mr. Kinch’s explanation about the hole in the compactor. He said they did not believe his explanation about cleaning up after the cardboard compactor because the driver had left.

37. Mr. Smith and Mr. Fenutta then asked Mr. Flewelling to come to a meeting. They had decided to terminate him before the meeting. Mr. Flewelling did not know that Mr. Kinch had been fired. In examination-in-chief Mr. Smith claimed that he told Mr. Flewelling that they had film evidence of him going out and taking breaks. Mr. Smith testified that he asked what they were doing and Mr. Flewelling said “smoking”. Mr. Flewelling denied that. Mr. Smith said that he asked Mr. Flewelling if he was begging to be caught and he said “I guess so”. He asserted that Mr. Flewelling said that if he had it do over again he would not. Mr. Smith also said that he asked Mr. Flewelling if he remembered Mr. Fenutta mentioning “time theft” at the meeting in June and that he remembered it was a serious issue. Mr. Smith told Mr. Flewelling that he got himself caught up in a very unfortunate situation and that he could not treat him differently than any other individual in those circumstances so he was terminating him. Mr. Smith agreed that Mr. Flewelling told him he was outside fixing the hole in the trash compactor. Mr. Smith also said, confusingly, that he did not discuss being outside on the 13th with Mr. Flewelling. Mr. Smith said that was “moot” and they were only talking about the 12th. He said to Mr. Flewelling “I can’t believe in your situation you would do this”. (Mr. Smith was aware of some personal problems Mr. Flewelling was having). Mr. Smith acknowledged that he told Mr. Flewelling that he was a good worker and that he had had high hopes for him and that he was caught up in a bad situation. He then offered to provide Mr. Flewelling with an employment reference. Mr. Flewelling called that evening to find out what kind of reference he would receive and Mr. Smith said that he would recommend him for employment.

38. Mr. Fenutta testified that they asked Mr. Flewelling what he was doing outside and he said he was fixing the hole in the compactor. Mr. Fenutta said he asked him how he was going to do that without any tape. He also testified that Mr. Flewelling said he went to see if the UPAC was there. Mr. Fenutta said they then asked him what he was really doing and he said “smoking”. Mr. Fenutta then testified that they asked Mr. Flewelling if he remembered what was said at the meeting (on the 24th of June) and he said he remembered being told about Mr. McDonald and time theft and that if he had it to do over again he would not do it. Mr. Fenutta said Mr. Flewelling was terminated because of time theft.

39. Mr. Flewelling denied Mr. Smith’s and Mr. Fenutta’s accounts of the meeting. He testified that Mr. Smith asked him what he was doing outside and he said he was either helping Randy or taping up the garbage compactor. He believed that Mr. Smith was referring to the day the meeting was taking place, July 13th. He said that Mr. Smith did not believe he was outside doing what he claimed. He said that Mr. Smith asked him if he remembered Mr. Fenutta’s warning about time theft at the meeting. He said he responded that he remembered the meeting but not what was said about time theft. Mr. Smith then said that “this is the part of the job I hate” and that it was one of the hardest decisions he has to make. Mr. Flewelling testified that that is when he got nervous and asked if there was anything he could say to change Mr. Smith’s mind. Mr. Smith said unfortunately Mr. Flewelling was caught up in a bad situation and he could not “let go of one without the other”. Mr. Smith then wrote his termination note and told him he was fired. Mr. Flewelling said he called Mr. Smith later to find out what kind of reference he would give him. Mr. Smith said he was a good worker caught up in unfortunate circumstances and suggested he try “CFM” where they were hiring.

40. Again the Board does not find that any account of this meeting is very reliable. Mr. Flewelling may well have acknowledged he was smoking but that was not an infraction of any rule or policy unless he was not working. It is clear he explained what tasks he was doing outside. Mr. Smith and Mr. Fenutta chose, or pretended, not to believe him for no apparent reason as neither had ever assigned duties to him or told him not to go outside.

41. Mr. Fenutta testified that when Mr. Kinch and Mr. Flewelling said they were taping up the hole they were asked how they could do that without tape. In the hearing no one asked the witnesses if they actually had tape with them when they went outside. There did not appear to be any tape in their hands but no one asked them if they had it somewhere else. The company did not rely in argument upon the apparent absence of tape as evidence of anything.

42. Mr. Smith testified that the only reason he terminated the two employees was because of their “theft of time”. He claimed that he only considered Mr. Kinch’s union involvement to the extent that it made him more cautious. He said that he considered suspending the two workers on the 12th for a “violation of policy” when they were “caught red handed going out” but terminated them when he found it was a pattern. The Board queried Mr. Smith as to the policy to which he was referring. He said it was “going outside when they were supposed to be inside”. Mr. Smith also testified that he believes Mr. Flewelling to be a “follower” and that he would never have engaged in “time theft” on his own.

43. Mr. Smith testified that he went outside to look at the hole in the garbage compactor on July 12, 2000. There was no question that the hole was there and the Board was provided with a photograph of it. However, Mr. Smith claimed that he decided that it would not blow dust into the plant because of the “prevailing winds”. However there is some question as to whether he did go out to look at the hole as there was no evidence that anyone told him on the 12th that that was the reason Mr. Kinch and Mr. Flewelling gave for going outside that day. Mr. Smith testified in cross-examination that he had no idea how long the hole had been there nor whether it was usually covered with cardboard.

44. Mr. Kinch had no discipline on his file. The verbal warning he received in March, 2000 was never recorded. Mr. Flewelling also had no prior discipline on his file.

The Surveillance Tapes

45. The company provided a list, made by its “loss prevention officer” Chris Aubry, of the entrances and exits Mr. Kinch and Mr. Flewelling made from door 11 on July 11, 12 and 13, 2000. Mr. Aubry did not testify. According to this list they were out three times on July 11 for between six and 10 minutes each time. On two of the occasions they were out together. The original tape for July 11 was lost when it was being transcribed into a format which could be used on a VCR and there is no copy. Therefore the company was unable to produce it to the union or the Board. The list for July 12 shows that Mr. Kinch and Mr. Flewelling went outside door 11 three times for between two and nine minutes. They were together on all three occasions. The list for July 13 shows that Mr. Flewelling went out door 11 twice, once for one minute and once for five minutes. Mr. Kinch went out twice, once for three minutes and once for at least ten when the tape was pulled. They did not go out together.

46. The Board was advised that the above noted times reflected what could be found on the security tapes. Aside from July 11, where the tape itself could not be produced, the times were not challenged. The Board was also shown parts of the security tapes. As noted previously, they show door 11 from inside the building. The list of entrances and exits for July 13, 2000 does not seem to fit with much of the evidence given by the company’s witnesses for that day. Most of the witnesses claimed that Mr. Kinch and Mr. Flewelling were both outside at the same time as Mr. Byrne. However, the document provided by the company shows that Mr. Kinch and Mr. Flewelling were not outside together, at least while the tape was running which was the period considered in their terminations.

47. The Board was shown portions of the tape for July 12. It shows Mr. Kinch and Mr. Flewelling going through door 11 at 10:45:33. Mr. McDonald arrives and looks through the window. He opens the door and they come back in at 10:47:02. Mr. Kinch stays to speak briefly with Mr. McDonald. At one point in cross-examination Mr. Smith said he viewed this tape on the 12th but that does not fit with the chronology he gave of events on the 12th.

48. The tape of July 12 also shows Mr. Kinch and Mr. Flewelling going out door 11 at 11:04 with a piece of cardboard. They come back eight or nine minutes later with a piece of cardboard in a different shape consistent with having been cut to fit the hole. As noted previously Mr. Smith testified that they went out with a piece of plywood and came back with exactly the same piece. After viewing the tape at the hearing he conceded that it looked like cardboard and the piece they brought back was different from the one they took out. He then claimed that it was Mr. Fenutta and Mr. McDonald who told him it was plywood. This suggests that he did not watch the tape himself before he terminated Mr. Kinch and Mr. Flewelling.

49. The tape of July 12 also shows an employee driving a forklift type of vehicle (perhaps a double palette walkie) stop and have a conversation with another employee for seven minutes. The conversation is apparently friendly and Mr. Smith acknowledged that they could be socializing. However, he said it did not cause him concern.

50. The list of entrances and exits from the tape of July 13, 2000 indicates that Mr. Flewelling stepped out door 11 at 8:23 and came right back in. He then stepped right back out again and came back five minutes later. Two minutes after Mr. Flewelling returned, Mr. Kinch went out and returned three minutes later. That behaviour, going in and out in short intervals, is not consistent with taking a break to smoke a cigarette. It is also not consistent with the claim that Mr. McDonald and Mr. Fenutta saw Mr. Kinch and Mr. Flewelling coming back inside together. Furthermore, Mr. McDonald and Mr. Fenutta are not on the tape. When this was pointed out to Mr. Smith in cross-examination he said that they saw Mr. Kinch come in and they were out of camera range. The problem is that Mr. Kinch was only outside for two or three minutes yet they claimed they caught him returning from an unauthorized break. Mr. Smith was also questioned about Mr. Byrne’s claim that both Mr. Kinch and Mr. Flewelling were outside together smoking when the tapes indicate that they were not outside together. He claimed that Mr. Byrne was referring to the “9:30 one” i.e. a time after the tape was pulled. However, the tape shows that Mr. Byrne went out two minutes before Mr. Kinch at 8:51. That is consistent with Mr. Kinch’s claim that he went out to help Mr. Byrne with the cardboard but not consistent with Mr. Byrne’s or anyone else’s evidence that Mr. Kinch and Mr. Flewelling were outside together. The last exit on the tape shows that Mr. Kinch went out at 8:53 and he had not returned when the tape was pulled at 9:03.

51. Mr. Smith testified that he was watching the surveillance camera feed on door 11 on the 13th when he saw “them” go out at 8:53. When “they” were not back by 9:03 he said pull out the tape. However, as noted above, Mr. Smith could only have seen Mr. Kinch go out as Mr. Flewelling did not go out at that time. That would have been the perfect opportunity for Mr. Smith to see what Mr. Kinch was actually doing outside. However, neither Mr. Smith nor Mr. Fenutta went out to see what Mr. Kinch was doing, instead Mr. Smith asked that the tape be pulled and decided to terminate both him and Mr. Flewelling.

52. Mr. Hassell wanted to ask Mr. Flewelling in cross-examination about dates and times in which he went outside door 11 prior to July 11. He had not introduced these “incidents” during the company’s case because his client had not relied upon them in determining to terminate Mr. Kinch and Mr. Flewelling. The company became aware of them in reviewing the tapes sometime later. However he sought to use the information to cross-examine Mr. Flewelling on whether he and Mr. Kinch usually went outside together. The Board did not consider it appropriate to permit the company to introduce that evidence, at that point in the proceeding, in that manner. In any case, Mr. Flewelling agreed that he usually went out with Mr. Kinch. That was the proposition that Mr. Hassell put to him so the company was not prejudiced by the Board’s ruling. The company did not seek to introduce surveillance tapes of Mr. Kinch or Mr. Flewelling for any period prior to July 11 when the cameras outside door 11 were not broken or the view was unobstructed.

53. A day or two after the terminations a notice was posted advising employees that they are allowed to smoke outside if they are working. Apparently this notice was posted in response to a rumour that Mr. Kinch and Mr. Flewelling were terminated for smoking outside.

Submissions of the Parties

54. The company argued that Mr. Kinch and Mr. Flewelling were discharged because they were guilty of the “serious industrial offence of time theft” not because of union involvement. According to the company, time theft is dishonesty and serious misconduct. The company notes that they had been warned that committing this offence could lead to discharge three weeks before the terminations. The company asserts that Mr. Kinch and Mr. Flewelling were guilty of a pattern of time theft. Furthermore, the company claims that Mr. Flewelling had nothing to do with the union. He was not a known union supporter and his involvement with the union was extremely limited. Mr. Kinch had been a well known union supporter for a year and a half before his termination. However, the company claims, it passed up many opportunities to discipline him for union organizing on company time. The company also relies upon the fact that it made him a cleaner in the summer of 1999 as being demonstrative of its lack of anti-union animus because the new position gave hem some freedom to roam around the warehouse.

55. The company reviewed the evidence and submitted that its witnesses were consistent and should be believed. It argued that the evidence showed Mr. Smith conducted an investigation prior to terminating Mr. Kinch and Mr. Flewelling and that the terminations were not tainted with anti-union aminus. It noted that Mr. Smith had reviewed the tapes which, it claimed, showed Mr. Kinch and Mr. Flewelling in a pattern of entrances and exits, usually together, for the amount of time required for a cigarette. The company noted that Mr. Smith also went and looked at the compactor. The break schedule was reviewed by him to see if Mr. Kinch and Mr. Flewelling had taken their scheduled breaks on the days in question. It pointed to the fact that Mr. Fenutta said they had no reason to be outside and that he and Mr. Smith had met with Mr. Byrne. The company claimed that the excuses offered by Mr. Kinch rang hollow and that he was belligerent in the termination meeting. Furthermore, the company submitted that Mr. Flewelling admitted his misconduct at the termination meeting.

56. The company speculated that Mr. Kinch and Mr. Flewelling concocted excuses to be outside a long time prior to the terminations in case they were caught. It said that those excuses did not justify the frequency or the length of time spent outside. The company argued that rather than cover the hole on the compactor every day, Mr. Kinch should have asked someone to have it fixed. However, it claims that Mr. Kinch and Mr. Flewelling were content to have the hole as an excuse to go out and smoke. The company claimed that they were exaggerating about the dust. It argued that the rest of the workforce are “on the clock” and that they do not get to go outside and have a cigarette.

57. The company argued that the discharge was based on serious misconduct which is an important indicator of the company’s good faith. It submitted that the usual penalty for theft is discharge.

58. The company noted that its good faith was also demonstrated by the unusual degree of openness about the organizing campaign at the workplace. Mr. Kinch had the opportunity at the meeting prior to the vote in October 1999, to talk to the employees about why they should vote for the union. Mr. Kinch advised management when the campaign was commencing in March 2000. Furthermore, he was not disciplined in the spring of 2000 even though he was involved in “obvious misconduct”. The company was referring to the warnings Mr. Kinch received about “harassing” employees about the union. Mr. Flewelling, the company noted, was not involved with the union at all. The company also claimed that it did not know that there was an organizing campaign in July, 2000. It claimed that there was no organizing campaign at the time of the terminations and no evidence that any such campaign was affected as a result of them. It asserted that if the union wanted to prove that the terminations had had a chilling effect on the campaign it should have called a union organizer (other than Mr. Kinch) as a witness.

59. The company also relied upon the fact that Mr. Smith had first considered giving Mr. Kinch and Mr. Flewelling suspensions until he realized there was a “pattern of theft”, as further evidence of its good faith.

60. The company argued that its witnesses were credible but that Mr. Kinch and Mr. Flewelling should not be believed. It asked that the application be dismissed.

61. In response to a question from the Board about Mr. Smith offering Mr. Flewelling an employment reference, the company responded that Mr. Smith was feeling sorry for Mr. Flewelling who was having a difficult time in his personal life, that Mr. Flewelling showed remorse and that he was a “follower”. It asserted that in human resource “lingo” it was not really a very good reference because it said that he had been caught up in some bad circumstances.

62. The company relied on several excerpts from Canadian Labour Law, 2d ed. Adams, George W. (2000, Canada Law Book) and Ontario Labour Relations Board Law and Practice, 3d ed. Sack, J., Mitchell, Michael and Price, Sandy, (1997, Butterworths).

63. The union responded that the company failed to meet the onus of proof in this case. It argued that the evidence showed that Mr. Kinch and Mr. Flewelling did work outside and had been doing so since they started working as cleaners. It submitted that prior to July 13, 2000 no one had particularly concerned himself with the tasks the cleaners were doing. It asserted that Mr. Kinch was a thorn in the company’s side because of his key role in the organizing campaign. It denied that the fact that the company did not discipline Mr. Kinch for talking to employees about the union was evidence of its good faith. It claimed that the company’s restraint was motivated by its knowledge that it would have a tough case to meet if the union complained. It asserted that the situation on July 13, 2000 was a convenient opportunity to terminate Mr. Kinch. It called it a form of camouflage and said that Mr. Flewelling got caught up in it as a result of his association with Mr. Flewelling. It argued that Mr. Smith felt badly about terminating Mr. Flewelling but not Mr. Kinch even though they were doing the same thing. However, the union argued, the company knew full well that if it terminated Mr. Kinch and not Mr. Flewelling the union would have had an even better case to bring before the Board.

64. The union argued that a violation of the Act occurs even if a legitimate reason for discharge is tainted by anti-union animus. The Board therefore has to look at the surrounding circumstances. It submitted that this employer’s case does not make sense. There is no dispute about Mr. Kinch’s involvement with the union and the company’s knowledge of it. The union claimed that the warnings Mr. Kinch received from Mr. Smith and Mr. Redel in March and April 2000 showed the company was concerned about Mr. Kinch and his role with the union. It claimed that that was emphasized by the meeting with respect to the Peter Fenton incident in June 2000 in which the issue of the union and Mr. Kinch talking to employees was raised again.

65. The union asserted that when the company saw the opportunity to get rid of Mr. Kinch it rushed him and Mr. Flewelling out the door. It claimed that the terminations were a successful attempt to stop the organizing campaign in its tracks. It submitted that the evidence showed that Mr. Kinch and Mr. Flewelling did have duties outside door 11, contrary to the company’s claim. It noted that Mr. Fenutta started work as maintenance manager in February 2000 and by his own acknowledgement his focus was not on the cleaners. Mr. Fenutta was not even involved with the warehouse assignments, although both Mr. Smith and Mr. McDonald said that he was. The union pointed out that Mr. Byrne acknowledged in cross-examination that Mr. Kinch and Mr. Flewelling did have duties outside. The union argued that in his haste to run Mr. Kinch and Mr. Flewelling out the door Mr. Smith never really looked into the matter. He did not want to look into it. The union claimed that he wanted to terminate Mr. Kinch because of his union involvement and acted upon that desire.

66. The union also claimed that Mr. Fenutta did not read his agenda at the meeting on June 24 and did not advise the cleaners that they could be disciplined for time theft. It said that Mr. Kinch and Mr. Flewelling denied that had occurred and that Mr. Byrne could not recall it. The union pointed out that although a number of policies were submitted to the Board no policy was produced with respect to time theft. The union also argued that the fact that the company never really contemplated a warning for Mr. Kinch and Mr. Flewelling is indicative of its bad faith. It denies the claim that Mr. MacDonald gave them a warning on the 12th when he told them to come inside. The union also submitted that the company did not take examples of “time theft” seriously in other circumstances. For example, Mr. Smith was not concerned when he saw two employees chatting for seven minutes on the surveillance tape. The union also noted that nothing happened to Mr. Byrne even though he acknowledged that he would stand outside having a cigarette while others worked. The union denied that by extending the period of time they worked outside in order to smoke, Mr. Kinch and Mr. Flewelling had engaged in serious time theft. It noted that the company’s policy is that employees can smoke outside while working and that any claim that the company would not be aware that employees would take a few extra drags on their cigarettes is preposterous. The union said it is obvious that if employees are allowed to smoke outside they will be outside a little longer and the company was prepared to live with that except in the cases of Mr. Kinch and Mr. Flewelling.

67. The union referred to the video tape evidence relied upon by the company and noted that there is no tape for July 11. It argued that the “big question mark” hanging over the video tape evidence is that there were cameras outside yet there is no video tape of what Mr. Kinch and Mr. Flewelling were doing outside. It noted that Mr. Smith said the view was blocked but that Mr. Fenutta said the cameras were broken. The union also asserted that Mr. Fenutta did not say that they looked at the tape of July 11, only the tapes of July 12 and 13.

68. The union noted that the tape of July 12 showed Mr. Kinch and Mr. Flewelling going outside for only 30 seconds before Mr. MacDonald told them to come back in. The union claimed that there was nothing unusual in cleaners going outside when the dust was blowing in and that Mr. Byrne acknowledged that Mr. Kinch and Mr. Flewelling did cover the hole in the compactor. The union pointed out that they went out ten minutes later to do what they had said they were going to do. The union noted how quick Mr. Smith was to assert that Mr. Flewelling was carrying plywood when it was impossible to be certain what he was carrying. It also noted that the material had a different shape when Mr. Flewelling brought it in. The union claimed that that shows how ready Mr. Smith was to conclude that Mr. Kinch and Mr. Flewelling had committed an offence and how unwilling he was to conduct a proper investigation to determine the truth.

69. The union asserted that there was no evidence to dispute that given by Mr. Kinch and Mr. Flewelling as to what they were doing when they went outside on July 13. According to the union, the problem with Mr. Byrne’s evidence is that the tape shows that Mr. Kinch and Mr. Flewelling were not outside at the same time as Mr. Byrne, only Mr. Kinch was. The tape therefore supports Mr. Kinch’s testimony. The union also questioned why the company pulled the tape out on the 13tth. The union argued that the company rushed the terminations. It pointed out that around 9:00 a.m. Mr. Smith was advised of the “second occurrence” and in the course of the next two and a half hours all the tapes had to be reviewed, the swipe card record reviewed and the interview conducted with Mr. Byrne.

70. The union asserted that the company terminated Mr. Flewelling because the union would have had a much easier case if it could show that the company discriminated between the two employees. Mr. Flewelling therefore lost his job as a result of his connection with the union organizer, Mr. Kinch.

71. The union rejected the company’s claim that there was no organizing campaign in July 2000 when the terminations took place and relied upon Mr. Kinch’s evidence to the contrary. It argued that the Board can infer that the terminations had a chilling effect and that the Board has done so on many occasions.

72. The union suggested that the Board should not draw any inference from the fact that the company had made Mr. Kinch a cleaner in 1999 because no evidence was provided as to how that decision was made. Furthermore, the people who made that decision were replaced in the fall of 1999.

73. The union argued that the company did not make out the case that its decision was devoid of anti-union animus. It maintained that the company’s explanations did not add up. It asked that the application be allowed, that Mr. Kinch and Mr. Flewelling be reinstated and compensated and that the union be permitted to hold a meeting with the employees.

74. The union referred the Board to the following decisions: Shoppers Drug Mart, [1996] OLRB Rep. March/April 303; Z-Lite Jenamees, [1995] OLRB Rep. Feb.212; Phillips et al v. Ford Motor Co. of Canada Ltd. et. al., (1971) 1971 CanLII 389 (ON CA), 18 D.L.R. (3d) 641.

75. The Board asked the company during its reply what, if anything, should be made of the fact that on July 13, 2000 when Mr. Smith and Mr. Fenutta saw Mr. Kinch go outside while they were watching the surveillance feed they did not go outside to see what he was doing. The company responded that Mr. Fenutta said Mr. Kinch had no business going out there. It also noted that that morning Mr. Smith and Mr. Fenutta were trying to do a number of things i.e. review the tapes and do the investigation and they could not be in three places at once.

Decision

76. The company argued that demonstrating that a union organizer was terminated for serious misconduct is an important indicator of a company’s good faith. The other side of that coin, however, is that terminating a union organizer who has essentially no disciplinary record for a minor offence is an important indicator of a company’s bad faith. In Hallowell House Limited, [1980] OLRB Rep. 35 the Board made the following comments at paragraph 19:

Seldom will an employer admit that it has been motivated by anti-union animus in discharging an employee. The Board, therefore, is required to draw its own conclusion as to the employer’s motivation and in doing so must draw inferences from the evidence.

The Board looks for a reasonable explanation for the discharge. If the employer provides little or no explanation for terminating an employee and there is concurrent evidence of union activity the Board may, depending on the circumstances, draw the inference that the employer had an anti-union animus and acted in violation of the Act. If the employer establishes good cause for discharge on the other hand, the Board will normally require more cogent evidence of union activity, the grievor’s participation in the campaign and the employer’s knowledge of it before being willing to draw an inference of anti-union motivation. The evaluation of the adequacy of the employer’s reasons for discharge is not aimed at determining whether the employer had just cause for discharge but is rather a step in the more complex process of ascertaining the employer’s motivation. While unfair discharge does not itself establish a violation of the Act, it may be evidence from which the Board will, in certain circumstances, draw an inference of anti-union animus.

77. In this case the company claimed that Mr. Kinch is guilty of “time theft”. However, accusing Mr. Kinch of “theft” does not magnify what he did to a “serious industrial offence.” At most he was guilty of wasting a few minutes in the same way that employees do every day in every workplace. In the same way that the two employees on the surveillance tape did when they stopped to chat for seven minutes. The Board did find that Mr. Fenutta warned the cleaners about “time theft” on June 24, 2000. However, there is no reason that the cleaners would have understood that to be a warning with respect to going outside to perform the tasks they had been performing regularly for a year. The evidence is that the cleaner’s duties were assigned, or evolved, under Ross Gordon, Mr. Fenutta’s predecessor. There was no job description. When Mr. Fenutta started working in February, 2000 he did not assign or change any duties. He held no meetings with the cleaners until June 24. His evidence was that his focus was elsewhere. He did not even assign the cleaners to the areas in which they worked. The cleaners agreed to that themselves. Mr. Fenutta knew that he had never made either area or work assignments and he agreed that the cleaners knew their duties when he started his employment, so how could he be so certain that they had no duties outside? The answer is that he could not be certain. But he and Mr. Smith either refused to consider the possibility that Mr. Kinch and Mr. Flewelling were telling the truth when they said they had duties outside, or, they knew otherwise but chose to maintain that they had no such duties because they wanted to terminate Mr. Kinch. Yet the evidence demonstrated that Mr. Kinch and Mr. Flewelling did have duties outside door 11. At the hearing, all three cleaners agreed that all three of them would help pick up when the UPAC driver came. All three agreed that Mr. Kinch and Mr. Flewelling covered the hole in the garbage compacter. The evidence on the tape was that they did take cardboard out and bring back a different sized piece, consistent with their claim that they were covering the hole. Mr. Smith and Mr. Fenutta claim to have seen that on the tape. Mr. Fenutta agreed that they had complained to him about dust. There was no dispute that the arm on the compactor had broken twice, so trying to avoid that happening by checking the compacter was a good idea. No one claimed it was not.

78. Mr. Kinch and Mr. Flewelling did go outside on a number of occasions on July 12 and 13 so the crucial factual question is whether they had work to do out there. The evidence with respect to July 11 is less reliable but the Board is prepared to assume they went out on a number of occasions that day as well. It is also undisputed that they often smoked cigarettes when they went out. However, it is the company’s policy, well known to Mr. Smith, that employees are allowed to smoke if they are working outside. The company says that it terminated the employees because they had no work to do outside. However, the evidence disclosed that they did have work to do outside. The company ultimately argued that whatever tasks they were doing outside were not assigned to them or were excuses to go out and smoke. Certainly, Mr. Kinch and Mr. Flewelling embraced opportunities to perform tasks outside. No doubt they were motivated to do so because they could smoke. However, it is hardly a termination offence for employees to do jobs they prefer or find to be easier rather than jobs they do not like or are more onerous when given the opportunity. The worst offence that Mr. Kinch and Mr. Flewelling committed is that they both went out to check the hole in the compactor when one person could have done that. The pattern of conduct that Mr. Kinch and Mr. Flewelling engaged in, of attending to jobs outside more than necessary, is not conduct for which one would expect immediate termination. Therefore, the Board was left to conclude that the company wanted to terminate Mr. Kinch. The other possibility is that the company saw an opportunity to terminate Mr. Kinch and in its eagerness to do so failed to properly investigate the matter as it would have done if any other employee was in this situation.

79. In its decision dated January 26, 2001 the Board stated as follows:

The Board heard evidence from nine witnesses. After considering the evidence and the submissions of the parties, the Board finds that the responding party was motivated, at least partially, by anti-union animus in dismissing Mr. Kinch and Mr. Flewelling. In reaching this conclusion the Board was informed by a number of factors. Those factors include, but are not limited to the fact that Mr. Kinch was the applicant’s key inside organizer and that the responding party made a rushed and unconsidered response when it perceived that he and Mr. Flewelling may have committed an offence for which they might be subject to discipline. If the matter had been considered and investigated in a rational way, without the bias created by the desire to get rid of Mr. Kinch, it would have been obvious that termination was a disproportionate response to what occurred. The Board therefore finds that the responding party violated the Act.

80. There were duties for Mr. Kinch and Mr. Flewelling to perform outside. Yet Mr. Smith would not believe Mr. Kinch when he said that. No explanation was ever provided for his refusal to believe Mr. Kinch. There was no evidence that Mr. Kinch had a history of lying, his only history was as a vocal union supporter. Mr. Smith had no difficulty believing Mr. Byrne even though he said Mr. Kinch and Mr. Flewelling were both outside with him when Mr. Smith had just seen on the tape that only Mr. Kinch was. Furthermore, Mr. Smith asked Mr. Byrne remarkably few questions. He did not ask about the cleaners’ duties or he may have received the answers provided to the Board which support the claim that Mr. Kinch and Mr. Flewelling had reason to be outside. There was no explanation for why the company would not give Mr. Kinch and Mr. Flewelling the benefit of the doubt when no one had ever discussed their duties with them, asked them if they worked outside or told them not to work outside.

81. Furthermore, the company relied upon the surveillance tapes to show there was a pattern of misconduct when it terminated Mr. Kinch and Mr. Flewelling. However, the tapes do not show that. Mr. Fenutta testified that Mr. Smith only looked at the tape of the morning of July 13 in which Mr. Kinch was only outside for a few minutes and the incident with Mr. McDonald in which they were only outside for a minute. Even if they viewed all of July 12 and 13 they would have seen them going out with cardboard just like they said they did. They would also have seen Mr. Flewelling going out and coming back in within a few minutes on July 13 consistent with checking for the UPAC driver but not consistent with smoking a cigarette.

82. Mr. Smith either knew the employees had duties outside, or did not want to know because he wanted to get rid of Mr. Kinch. Why else would he not have taken advantage of the perfect opportunity to find out the truth? He was watching the surveillance feed from door 11 when Mr. Kinch went outside on the morning of 13th. He could have gone outside to see if Mr. Kinch really was standing around smoking without working or whether he was doing what he was permitted to do, smoke while he worked. Since the whole issue of whether an offence was being committed turned on whether work was being performed surely someone would have gone to ascertain that if there was any interest in a fair and thorough investigation. But no one did go to see. Instead the tape was pulled and the decision was made to terminate Mr. Kinch and Mr. Flewelling. Apparently Mr. Smith was not interested in a real investigation and the Board can only conclude it was because he was determined to get rid of Mr. Kinch once he thought he had the opportunity. Mr. Smith claimed that he accepted Mr. Fenutta’s assertion that the cleaners had no duties outside but he does not appear to have asked him how he knew that or if he had ever spoken to them about it. There is no explanation as to why Mr. Fenutta made that claim when he left it up to the cleaners to know what they had to do. The Board also notes that when Mr. Fenutta and Mr. McDonald saw Mr. Kinch coming in the morning of July 13 he spoke to them casually. It did not sound as if he were concerned that he had been caught doing anything improper. They did not ask him what he was doing outside, instead they ran back to the security room.

83. The Board also found it surprising that a more detailed explanation for the absence of outside surveillance tapes was not provided. Since the key issue was what Mr. Kinch and Mr. Flewelling were doing outside those tapes were important. The explanations provided by Mr. Smith and Mr. Fenutta about their unavailability were not consistent. Mr. Smith said Mr. Aubrey told him the view was obstructed by trucks. Mr. Kinch denied that could have been case. Mr. Fenutta said he was told the outside cameras were broken. Mr. Aubrey did not testify.

84. Mr. Flewelling was terminated because it would have been even more obvious that Mr. Kinch was terminated for his union activity if an employee engaged in the same behaviour was retained. There was no legal reason they could not have terminated Mr. Kinch and kept Mr. Flewelling as there were no just cause provisions in place. Nevertheless, the two employees were not actually treated the same way. Mr. Smith showed a reluctance to terminate Mr. Flewelling which was not displayed toward Mr. Kinch. Mr. Smith was prepared to provide Mr. Flewelling with a reference, which one would not expect from a human resource professional if he really believed Mr. Flewelling had engaged in “theft”. Mr. Smith attributed this difference in treatment to the fact that he considered Mr. Flewelling to be a “follower” and that he would never have been going outside to smoke if it were not for Mr. Kinch. There was no basis provided for this assessment of Mr. Flewelling. In any case, if the company could believe that Mr. Flewelling would follow Mr. Kinch to the extent suggested it would certainly have perceived that it would follow him with respect to union matters.

85. Ultimately, the reasons provided by the company for terminating Mr. Kinch and Mr. Flewelling were untrue. Either the company knew they were untrue but relied upon them to get rid of the key union organizer or it was unwilling, in its eagerness to see the last of Mr. Kinch, to conduct an investigation which would have disclosed the truth for the same reason. What is certain, is that the company did not conduct a good faith investigation as that would have led to the conclusion that, at most, Mr. Kinch and Mr. Flewelling were taking some advantage of the policy on working and smoking. One would expect that the discussion of their job duties which they had never had with Mr. Fenutta would have ensued. A verbal or written warning may been issued after that discussion. When Mr. McDonald told them to come inside that was not a verbal warning as he did not explain what they were not supposed to be doing. In this case such a discussion was necessary as Mr. Kinch and Mr. Flewelling did have duties outside. Furthermore, it was never confirmed whether an Assistant Team Leader, which was the position Mr. McDonald held, had any authority to give a verbal warning.

86. It is true that this organizing campaign was conducted more openly than many and that the company had known of Mr. Kinch’s union involvement for a long time. The company understood that the law did not permit it to terminate someone because he or she was involved in a union. It had been warned of that by the union. Nevertheless, as soon as it thought Mr. Kinch might have done something wrong it jumped at the opportunity to terminate him. The Board will find a violation of the Act even if the termination is only partly motivated by anti-union animus. (see for example Barrie Examiner, [1975] OLRB Rep. Oct. 745, The Corporation of the London, [1976] OLRB Rep. Jan. 990, Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848 and Z-Lite Jenamees, supra). Even if Mr. Smith did see this matter as a serious offence, the Board is not convinced that he was not motivated, at least partly, by the opportunity presented to rid the company of the key union organizer. If someone else had been seen going outside he or she would have been asked why and if the company did not accept the explanation he or she would have been told not to do it again. The employee would not have been fired. There was no evidence that any other employee had even been disciplined for “time left”. Termination is a grossly disproportionate response to the offence.

87. The company relied upon the fact that it had never disciplined Mr. Kinch for talking to employees about the trade union. However, members of management had spoken to him about it on a number of occasions. The union had been quick to warn the company against reprisals but the company was very aware of Mr. Kinch’s activities. Furthermore, the company had taken the position that a certification application would be untimely before October, 2000. If it continued to hold that view it could have expected the organizing campaign to get more active over the summer which would have made terminating Mr. Kinch in July even more appealing.

88. Ultimately the only information the company had when it fired Mr. Kinch and Mr. Flewelling was that they were going outside three times per day for anywhere from one to nine minutes, sometimes alone but usually together. It had no information about what they were doing out there. Mr. Fenutta never assigned them duties and never told them not to go outside. It made no sense for him to assert with any certainty that they had no duties outside but it was convenient in the circumstances for him to deny that they had reason to go out. However, the company did have a number of reasons to believe that Mr. Kinch and Mr. Flewelling did have cause to go out: they told them they did; there was a hole in the compactor where they said it was; they had complained about dust; cardboard did have to be picked up when the UPAC driver came; the surveillance tape showed them going out with cardboard and coming back with a different size piece; they both went out for only a few minutes on the morning of July 13 which is consistent with checking something but not with taking an unauthorized break to smoke a cigarette. The Board therefore found that the company had no honest or reasonable belief that Mr. Kinch and Mr. Flewelling had no duties to perform outside.

89. The Board also found that the termination of Mr. Kinch and Mr. Flewelling had a chilling effect on the organizing campaign. Mr. Kinch gave evidence with respect to the campaign, and although it had slowed down by July, it was ongoing. The evidence demonstrated that it was still an issue between management and Mr. Kinch as it came up repeatedly in the meeting about Mr. Fenton’s treatment of him four weeks before his termination. The Board found that the termination of the key union organizer had a chilling effect on the campaign as a result of the obvious practical problems which result from losing the person who was coordinating it. The Board is also prepared to infer that it had a chilling effect on the campaign because of the message it sends to other workers that their jobs might be in jeopardy if they support the union, or in this case if they even associate with someone who does.

90. For all of the above reasons the Board made the following declarations and orders:

(a) The Board declares that Matrix Logistics Services Ltd. has violated sections 70, 72 and 76 of the Labour Relations Act, 1995.

(b) The Board orders Matrix Logistics Services Ltd. to cease and desist from such violations.

(c) The Board orders Matrix Logistics Services Ltd. to reinstate Jerry Kinch and Bill Flewelling to their former positions as cleaners forthwith.

(d) The Board orders Matrix Logistics Services Ltd. to compensate Jerry Kinch and Bill Flewelling for any losses arising from their unlawful terminations.

(e) The Board orders Matrix Logistics Services Ltd. to post six copies of the Notice to Employees (attached as Appendix “A”) in locations in the workplace where they are likely to come to the attention of employees. The Notices are to remain posted for 60 days.

(f) The Board orders Matrix Logistics Services Ltd. to permit the applicant to convene a meeting of employees at its Kennedy Road, Mississauga location. The meeting shall be of one-hour duration and shall exclude management staff. Such meeting shall take place during normal working hours and employees shall attend without loss of pay.

Request for Reconsideration

91. Subsequent to the Board’s decision, the company submitted a request for reconsideration. In the request, the company essentially reargues its case and submits that the evidence supports its claim that it did not violate the Act when it terminated Mr. Kinch and Mr. Flewelling. For all of the above reasons the Board is not persuaded by those arguments.

92. The company also argues that the Board should reconsider its decision as it did not grant the company’s request to strike out certain portions of the union’s pleadings at the outset. However, the pleadings referred to were only submitted as background and were not relied upon by the union in making its case. The evidence related to those pleadings was not relied upon by the Board in making its decision. Therefore the company was not prejudiced by the Board’s decision not to strike out those pleadings.

93. The company also asks the Board to reconsider its decision because it was not permitted it to cross- examine Mr. Flewelling using tapes of door 11 which were not considered when the decision was made to terminate him. The Board did not consider it useful, appropriate or relevant to introduce that evidence at that stage in the hearing. In any case, Mr. Flewelling gave the answer the company was seeking to elicit by showing him those tapes so it was not prejudiced by the Board’s ruling.

94. The company also claims that the remedy the Board awarded to Mr. Kinch and Mr. Flewelling is punitive. However, the remedy does no more then compensate Mr. Kinch and Mr. Flewelling for their losses and tries to put them in the position they would have been in had the violation not occurred. Furthermore, it is consistent with the Board’s remedial orders in other cases where union organizers have been terminated for union activity. The company never made any alternative argument with respect to an appropriate penalty should the Board find that the termination was a violation of the Act. However, on reviewing the matter in drafting these reasons the Board has decided that it would appropriate for a written warning to be issued to Mr. Kinch and Mr. Flewelling for taking excessive advantage of the smoking while working policy, in particular their practice of checking the hole on the garbage compactor together when one person was superfluous to that task. The Board’s order is amended accordingly.

95. The company also complains that the Board should not have directed the company to permit the union to meet with the employees as there was no credible evidence that such a meeting was necessary. The Board has a wide discretion under section 96 of the Act to fashion a suitable remedy when the Act has been violated. It is important for the Board to fashion effective remedies for violations that occur during an organizing campaign if the purposes of the Act are to be served. The Board did find that there was a chilling effect for the reasons set out in paragraph 90 above. Providing the union with access to the employees is an appropriate remedy for the opportunity lost to the union by losing its key organizer. The meeting ordered by the Board is also intended to counteract, to some extent, the chilling effect of terminating the key union organizer. Again this remedy is consistent with orders the Board has made in other cases where union organizers have been terminated (see for example Z-Lite Jenamees, supra and Radio Shack, [1979] OLRB Rep. Dec. 1220 where extensive notice and access to employees were ordered).

96. For all of the above reasons the application was allowed and the request for reconsideration is dismissed except for the implementation of a written warning as set out above.

“Laura Trachuk”

for the Board