Please answer question one

Case ULP.1 UNFAIR LABOUR PRACTICE CASE CAW-CANADA AND MATRIX LOGISTICS When a union activist is dismissed for smoking in the context of a recent union certification campaign, how is a labour board likely to view that dismissal? National Automobile, Aerospace, Transportation and General Workers' Union of Canada and Matrix Logistics Services Lid. Indexed as: Matrix Logistics Services Ltd. and CAW-Canada Ontario Labour Relations Board Laura Trachuk. Vice-Chair May 1, 2001 DECISION OF THE BOARD This is an application under s.96 fam. 1998, c.8.5.9. 2000.c.38, s.13) of the Labour Relations Act, 1995, S.O. 1995.c.1, Sch. A (the "Act"). The applicant (National Auto-mobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada)) (referred to as the union") alleges that the responding party (Matrix Logistics Services Ltd.) (referred to as the "company) violated ss. 70, 72 and 76 of the Act when it terminated the employment of Joseph Conrad and lan Fleming. Facts The Board heard evidence from nine witnesses. Much of the evidence was contra-dictory and few of the witnesses were able to provide testimony which was unaf-fected 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 Organizing Campaign 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. Conrad and Mr. Fleming were hired by the company in 1997. In the summer of 1999, Mr. Conrad and Mr. Fleming 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. Conrad 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. Conrad's position with the USWA was well known 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. John Lindsay, the company vice-president. Source: A CLRSR200. Some ra ra than asked the employees to vote against the union and give the company six months to resolve any concerns they had. Mr. Conrad spoke at the meeting: in favour of the USWA. Mr. Lindsay told the employees that if the company did not live up to its six-month commitment he was sure that Joseph Conrad would be back with another organizing drive and they could vote "yes" then. The USWA lost the vote on October 5, 1999. Mr. Conrad was one of the scrutineers, In March 2000, six months after the vote, Mr. Conrad commenced a new organ-Izing campaign as promised. The members of the former Retail Wholesale Depart-ment 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. Conrad advised some of the com-pany's team leaders that the campaign would be starting Leaflets were distributed 011 a few occasions in March and April 2000 Around the time that the new campaign began. Mr. Conrad was asked to attend a meeting with Ted Steele, the company's director of human resources, and Fred Forsyth, the maintenance manager. They wamed him to stop harassing employees about the union, Mr. Steele testified that his operations manager had told him that three employees had complained that Mr. Conrad had approached them about joining the union and that they felt harassed. Mr. Steele would not tell Mr. Conrad the names of the employees but said that next time, if it went further, he would. Mr. Conrad claimed that Mr. Steele said "next time when I fire you, I will tell you their names." At the hearing neither Mr. Steele nor Mr. Forsyth could recall the names of the employees who had allegedly complained, Dave Martini, the union's business representative sent Mr. Lindsay a letter protesting against the meeting and an alleged threat to fire Mr. Conrad. Counsel for the company subsequently sent a letter to Mr. Martini in which he denied the allegations in Mr. Martini'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 warned that the union would respond to any perceived reprisals against Mr. Conrad and indicated that the union would apply for certification when it saw fit. The largest percentage of the total number of cards collected in March. Fewer cards were collected in April, May and June. In April the company hired approximately 100 new part-time employees. Approximately a month after Mr. Conrad's meeting with Mr. Steele and Mr. Forsyth, the day-shift operations manager, Hans Schreiber, also warned Mr. Conrad that be had received complaints that Mr. Conrad was harassing employees about the union, Mr. Conrad advised hill 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. Conrad and Mr. Schreiber as to whether that could constitute harassment. Mr. Schreiber advised Mr. Steele about the conversation. Mr. Schreiber acknowledged in cross-examination that prior to his conversation with Mr. Conrad. Michael Jackson, the site manager, had advised him that Mr. Conrad had been spoken to about talking about the union on company time. Mr. Schreiber testified that he also advised his team leaders that Mr. Conrad had been spoken to on the matter. Approximately one week later, the general manager of Matrix Logistics Canada. Hoyt Steed, also told Mr. Conrad to stop talking to employees about the union. In June 2000, Mr. Conrad, pursuant to the company's "open door policy" complained to Mr. Steele that one of the team leaders, Daniel Matthews, 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. Steed. Mr. Conrad said something like, "I would not refuse to clean up the spill because you would fire me and Mr. Steed said, "Well there's a thought."Mr. Conrad was again advised to stop talking to employees. The issue of the union was also raised at both meetings. Mr. Conrad said Mr. Steed raised it. Mr. Steed said that he could not remember who raised it but that it always came up between him and Mr. Conrad. Mr. Steed 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. Steele said the union issue was raised by Mr. Conrad who claimed they were complaining about him talking to employees because of his union organizing activities. Mr. Steed said that it was acknowledged at the meeting that Mr. Conrad was the chief union organizer but that they denied that was why they were telling him to stop talking. Mr. Steele said they told him to stop talking to employees because it was disruptive. Mr. Steele said that at the end of the meeting Mr. Conrad was told to go do his job and not talk so much. Mr. Steele testified that aside from a few days of pamphleting in March 2000 he had heard neither "hide 001 hair of the union when he terminated Mr. Conrad. He testified that the company knew Mr. Conrad was the chief organizer on the day shift. However, they were not aware of any involvement that Mr. Fleming had with the union. He claimed that if Mr. Fleming had any interest in the union it was because he was a "follower: Mr. Conrad 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. Conrad was provided with the information by other union organizers. Cleaners' Duties The company claims that it terminated Mr. Conrad and Mr. Fleming 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. Conrad and Mr. Fleming 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, There were three full-time cleaners, Mr. Conrad. Mr. Fleming and Sean O'Shea, There was also a part-time cleaner, Peter Guernsey who was on light duties. The cleaners reported to Mr. Forsyth, the maintenance manager. Mr. Conrad and Mr. Fleming 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 ware-house 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. 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. O'Shea asked Mr. Conrad and Mr. Fleming if he could work exclusively in warehouse 30 because he was having health problems. They agreed to accommodate him. After that, Mr. O'Shea worked in warehouse 30, sometimes with Mr. Guernsey, who was on modified duties. Mr. Conrad and Mr. Fleming assisted them as needed. Mr. Conrad and Mr. Fleming rotated between warehouse 10 and warehouse 40/50. Mr. Forsyth testified that Mr. Conrad worked in warehouse 40/50 and Mr. Fleming worked in warehouse 10 and that that had been the situation since he started in February 2000. That was clearly not the case, Mr. Forsyth 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. Forsyth never assigned them to any particular warehouse nor did he ever discuss a list of job duties with them. Mr. Conrad and Mr. Fleming 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. Conrad and Mr. Fleming 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 daily repair. Mr. Fleming explained in cross-examination that there was a lip sticking out beneath the hole so the cardboard needed to be cut to fit. Mr. Fleming 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. Forsyth for a mask because of the dust. He testified that cutting and putting on the card-board 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. Sean O'Shea However, all three of the cleaners testified that they all performed this task. Mr. Fleming said it took about ten minutes to pick up the cardboard. Mr. Forsyth testified that he was aware of the hole in the compactor but that he never told Mr. Conrad and Mr. Fleming to cover it. He said that they had never filled out a maintenance requisition to have it repaired. However, he acknowledged that Mr. Conrad and Mr. Fleming had complained about dust and that Mr. Conrad had brought him to the compactor to show him how much dust there was. He said that he told Mr. Conrad 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. Conrad came and asked for better dust masks and that he provided them. Mr. Fleming 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. Conrad 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. Forsyth agreed that the compactor arm had broken. Mr. Conrad 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 shoveled snow and cleaned up around the shipping docks. Mr. Fleming 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. Mr. Conrad 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 is 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 card-board on the hole on the compactor. Mr. Forsyth 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. Forsyth had no discussion with his predecessor, George Mitchell, 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. Forsyth testified that the only cleaner who had a reason to go outside was Mr. O'Shea, Mr. O'Shea'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. Forsyth testified that he told Mr. O'Shea that the person in warehouse 30 should go out and clean up the card-board when the cardboard compactor was removed. He could not recall if Mr. Conrad or Mr. Fleming 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. Conrad and Mr. Fleming were to help Mr. O'Shea in warehouse 30 from time to time. Dur-ing the period prior to the terminations, the UPAC driver was coming every day to remove the compactor. Mr. Forsyth testified that Mr. Conrad'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. Conrad and Mr. Fleming that they were not supposed to go outside Mr. Forsyth 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. Conrad said he had talked to Mr. Forsyth about the hole and that he had suggested covering it with cardboard. On June 24, 2000. Mr. Forsyth 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 meet-ing on June 24, 2000. Mr. Forsyth advised the cleaners that Jerry Flaherty 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 indi-viduals taking more than one break and late lunch this is considered time theft and will not be tolerated anyone caught will be dismissed [sic]:"Mr. Conrad denied that Mr. Forsyth said that at the meeting. Mr. Fleming could not recall but agreed it was possible it was said. Mr. O'Shea could not recall what was said was to happen if the break schedule was not followed. Mr. Fleming testified that Mr. Forsyth 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. Forsyth and Mr. Flaherty 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 any thing in writing except the break schedule. Nothing was posted. Many other points were also raised by Mr. Forsyth 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. In cross-examination, Mr. Forsyth 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 in any area. One would have expected that since Mr. Conrad and Mr. Fleming were terminated in Mr. Forsyth's presence for a violation of that policy he would have known about it. Mr. Forsyth's lack of knowledge on this point suggests that he and Mr. Steele never even discussed the theory upon which Mr. Conrad and Mr. Fleming were terminated. According to Mr. Forsyth, Mr. Conrad and Mr. Fleming should not have been smoking even if they were assisting Mr. O'Shea as it was not a designated area. He denied that if they were helping Mr. O'Shea it would have made a difference in whether they should be SewAALRER termi-nated 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. Terminations On July 12, 2000, Mr. Flaherty was walking by door 11. He saw Mr. Conrad and Mr. Fleming go out the door. He went and looked through the window and then immediately opened the door and told them to come back inside. They were outside for approximately one minute. Mr. Flaherty saw them standing at the bottom of the stairs from the door lighting up cigarettes. There was some dispute as to whether Mr. Fleming was actually lighting up; however, there was no dispute that he planned to do so. Mr. Conrad told Mr. Flaherty that they were going to check the cardboard that they placed over the hole in the garbage compactor to stop dust from blowing into the plant. Mr. Flaherty said something to the effect of "never mind the excuses and get back inside. They came back in. Mr. Flaherty testified that he then went to see Mr. Steele. As it was after 2:30, Mr. Steele said they would address it the next day. Mr. Steele said that he was considering suspending them at that point. Mr. Fleming testified that around 1 to 1:30 on July 12, 2000, he and Mr. Conrad 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. Flaherty came out. Mr. Conrad had a cigarette in his mouth. Mr. Fleming did not know whether he had had a chance to light it. Mr. Fleming was showing Mr. Conrad a $10 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. Flaherty 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. Fleming then left while Mr. Conrad stayed behind and spoke to Mr. Flaherty Mr. Fleming 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. The evidence with respect to the next day, July 13, 2000, is rather confusing and contradictory. Mr. Steele testified that when he came to work that day, he found Mr. Forsyth and Tom Walker, the manager of loss prevention, reviewing a surveillance tape of door 11. Mr. Steele testified that they told him that both Mr. Conrad and Mr. Fleming had made several entrances and exits through that door that morning, He also testified that he was told that Mr. Flaherty and Mr. Forsyth 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. Conrad and Mr. Fleming were not outside together that morning. The tape also shows no sign of Mr. Flaherty and Mr. Forsyth. Mr. Forsyth testified that he Mr. Flaherty decided to go down and look at door 11 on the morning of July 13th to see what number it was. When they got there they saw Mr. Conrad (and not Mr. Fleming) coming inside with a stick in his hand. Mr. Conrad 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. Forsyth testified that he wanted to see what the outside cameras showed but they were "broken or something." While Mr. Walker was getting ready to review the tapes, Mr. Steele came in. They told him they had seen Mr. Conrad coming in from outside. Mr. Steele testified that he did not stay at that point but arranged for a meeting to be held at 9:30, Mr. Forsyth said that they then viewed the tapes from the previous day and Mr. Conrad and Mr. Fleming came in and out so many times it was "ridiculous." (They came in and out three times.) He also said that they noticed that Mr. O'Shea had gone out the same door so they decided to bring all three of the cleaners in for an interview. Mr. Steele'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 13th prior to 11 am. He claimed that he reviewed the first exit on July 11th and possibly all of the exits on July 12th and the first one on July 13" He testified that on the tape of July 12" they saw Mr. Fleming 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. Fleming took out a piece of something that looks like cardboard and brought back a different shaped piece. Mr. Steele also testified that they were looking at the surveillance feed when they saw Mr. Conrad go out door 11 at 8:53. When he had not returned by 9.03, Mr. Steele ordered that the tape be pulled. No one went to see what Mr. Conrad was doing outside Mr. Conrad 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 Mon-day or Tuesday of that week the arm had be me too tight and Mr. Forsyth had had to call UPAC to come and get the compactor right away. Mr. Conrad 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. O'Shea and Mr. Walker when the UPAC driver came. He testified that later he covered the hole over the garbage compactor. On that occasion Mr. Fleming was with him. (That occasion must have been after the tape was removed as the tape does not show then going out together that morning.) On each occasion when Mr. Conrad 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. Mr. Fleming testified that on the morning of July 13th at approximately 8 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. Conrad was with him. He tes-tified that the first time he went out he did not smoke but the second time he did. Mr. Steele met with Mr. Forsyth at 11 am. 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. Forsyth was unaware of that policy when he testified. Mr. Steele said that Mr. Forsyth 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 they should be terminated Mr. Steele testified that he asked Mr. O'Shea to come to a meeting on July 13th as he had been seen exiting door 11 right before Mr. Conrad and Mr. Fleming. (In fact only Mr. Conrad went out after Mr. O'Shea.) The meeting took place prior to the meetings with Mr. Conrad and Mr. Fleming. Mr. Steele said he asked Mr. O'Shea 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. Conrad and Mr. Fleming out there and he said that he had. He asked him what they were doing and he said "standing smoking cig-arettes. However, the surveillance tapes show that only Mr. Conrad was outside with Mr. O'Shea on July 13. Mr. O'Shea was not outside when Mr. Conrad and Mr. Fleming went out on July 12". This fact throws both accounts of this conversation into doubt. Mr. Steele knew that as he had just seen Mr. O'Shea go outside on the surveillance tape before Mr. Conrad but not Mr. Fleming, Mr. O'Shea 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. Conrad and Mr. Fleming outside and he said that he had. Again this was not true, and Mr. Steele and Mr. Forsyth would have known it as they just reviewed the tape. Mr. O'Shea said he was asked what Mr. Conrad and Mr. Fleming 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 smok-ing 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 the 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. Conrad's and Mr. Fleming's. Mr. O'Shea testified m cross-examination that he wamed Mr. Conrad and Mr. Fleming separately in September 1999 that they were going to get caught going outside so frequently. They both denied receiving such a warnh1g from him. Mr. O'Shea confirmed that he had seen Mr. Conrad and Mr. Fleming 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 10 to 15 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. Conrad's and Mr. Fleming'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. Mr. Steele and Mr. Forsyth asked Mr. Conrad to meet with them with the inten-tion of terminating him after they met with Mr. O'Shea. 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. Steele's good faith and Mr. Conrad's culpability, it will be set out m some detail. However, it is hard to find that any account is entirely accurate Ultimately what took place was Mr. Steele asked Mr. Conrad what he was doing outside. Mr. Conrad told him, Mr. Steele said he did not believe him and fired him. It is not disputed that Mr. Steele had decided to fire Mr. Conrad before the interview. Nevertheless, Mr. Steele testified that he asked Mr. Conrad what he was doing outside on July 12th and he said he was going to cover the hole in the compactor because of the dust. Mr. Steele then said he asked how he was going to do that without tape or cardboard and that Mr. Conrad said "no comment Mr. Conrad denies that. (If Mr. Conrad and Mr. Fleming went out on July 13th to tape up the compactor, it was after the surveillance tape had been removed so Mr. Steele would not know if they had cardboard and tape or not. The tape of July 12th does show them going out at one point with cardboard which apparently been sic out before they come back in.) Mr. Steele testified that he told Mr. Conrad that they had a large number of entrances and exits on tape and it was time theft." He claims that Mr. Conrad said that if they had it on tape he would not comment. Mr. Steele said they then told him he was being fired for time theft, gave him a handwritten note to that effect, and walked him off the premises. It was acknowledged. however, that at some point Mr. Conrad said he had been cleaning up cardboard with Sean O'Shea but they told him the [UPAC truck had left 35 minutes prior. (That did not make sense given what they had asked Mr. O'Shea. Furthermore, the tape for July 13, 2000, shows that Mr. O'Shea and Mr. Conrad were outside at the same time.) Mr. Steele said that he could not believe that Mr. Conrad was that stupid and that he had just given him cause to fire him. Mr. Conrad asked if he was supposed to get a warning and Mr. Steel said that Mr. Flaherty had given him a waring the day before. Mr. Conrad uttered a profanity and asked who Jerry Flaherty was. He said that he (Mr. Flaherty) might be Mr. Forsyth's assis-titit team leader but he was not his team leader). He said that he had never seen a posting for that position. Mr. Steele said something like, "Thank you for saying that in front of us. At the tim,e of mis exchange Mr. Conrad already knew he was being fired. Apparently he made that comment about Mr. Flaherty as there had been no posting fur his position according to the company's normal practice. Mr. Steele tes-tified that he also told Mr. Conrad that Mr. Forsyth had warned him on June 24th about "time theft." Mr. Conrad denied that. Mr. Forsyth testified in cross-examination that when Mr. Conrad was asked what he was doing outside, he described fixing the compactor arm and helping Mr. Fleming with the cardboard on the compactor and cleaning up the cardboard. Mr. Forsyth said they did not believe Mr. Conrad'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. Mr. Steele and Mr. Forsyth then asked Mr. Fleming to come to a meeting. They had decided to terminate him before the meeting. Mr. Fleming did not know that Mr. Conrad had been fired. In examination-in-chief Mr. Steele claimed that he told Mr. Fleming that they had film evidence of him going out and taking breaks. Mr. Steele testified that he asked what they were doing and Mr. Fleming said "smoking." Mr. Fleming denied that. Mr. Steele said that he asked Mr. Fleming if he was begging to be caught and said, "I guess SC>" He asserted that Mr. Fleming said that if he had it to do over again he would not. Mr. Steele also said that he asked Mr. Fleming if he remembered Mr. Forsyth mentioning time theft at the meeting in June and that he remembered it was a serious issue. Mr. Steele told Mr. Fleming 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. Steele agreed that Mr. Fleming told him be was outside fixing the hole in the trash compactor. Mr. Steele also said, confusingly, that he did not discuss being outside on July 13th with Mr. Fleming, Mr. Steele said that was "moot" and they were only talking about July 12th. He said to Mr. Fleming. "I can't believe in your situation you would do this." (Mr. Steele was aware of some per-sonal problems Mr. Fleming was having.) Mr. Steele acknowledged that he told Mr. Fleming 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. Fleming with an employment reference. Mr. Fleming called that evening to find out what kind of reference he would receive and Mr. Steele said that he would recommend him for employment Mr. Forsyth testified that they asked Mr. Fleming what he was doing outside and he said he was fixing the hole in the compactor. Mr. Forsyth said he asked him how he was going to do that without any tape. He also testified that Mr. Fleming said he went to see if the UPAC was there. Mr. Forsyth said they then asked him what he was really doing and he said "smoking." Mr. Forsyth then testified that they asked Mr. Fleming if he remembered what was said at the meeting ( on June 24th) and he said he remembered being told about Mr. Flaherty and time theft and that if he had it to do over again he would not do it. Mr. Forsyth said Mr. Fleming was terminated because of time theft. Mr. Fleming denied Mr. Steele's and Mr. Forsyth's account of the meeting. He testified that Mr. Steele 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. Steele was referring to the day the meeting was taking place, July 13th. He said that Mr. Steele did not believe he was outside doing what he claimed. He said that Mr. Steele asked him if he remembered Mr. Forsyth'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. Steele then said that this is the part of the job! hate" and that it was one of the hardest decisions he had to make. Mr. Fleming testified that that is when he got nervous and asked if there was anything he could say to change Mr. Steele's mind. Mr. Steele said unfortunately Mr. Fleming was caught up in a bad situation and he could not let go of one without the other." Mr. Steele then wrote his termination note and told him he was fired, Mr. Fleming said he called Mr. Steele later to find out what kind of reference he would give him. Mr. Steele said he was a good worker caught up in unfortunate circumstances and suggested he try "CFM" where they were hiring Again the Board does not find that any account of this meeting is very reliable, Mr. Fleming 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. Steele and Mr. Forsyth 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. Mr. Forsyth testified that when Mr. Conrad and Mr. Fleming 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 bad it somewhere else. The company did not rely in argument upon the apparent absence of tape as evidence of anything Mr. Steele testified that the only reason he terminated the two employees was because of their "theft of time." He claimed that he only considered Mr. Conrad's union involvement to the extent that it made him more cautious. He said that he considered suspending the two workers on July 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. Steele as to the policy to which he was refer-ring. He said it was going outside when they were supposed to be inside." Mr. Steele also testified that he believes Mr. Fleming to be a "follower and that he would never have engaged in time theft on his own. Mr. Steele testified that he went outside to look at the hole in the garbage com-pactor 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. Steele 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 July 12th that that was the reason Mr. Conrad and Mr. Fleming gave for going outside that day. Mr. Steele testified in cross-examination that he had no idea how long the hole had been there nor whether it was usually covered with cardboard. Mr. Conrad had no discipline on his file. The verbal warning he received in March 2000 was never recorded. Mr. Fleming also had no prior discipline on his file Decision 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 Ltd. and S.E.L.U., Local 183, [1980] 1 Can LRBR499 at pp. 504-505. (1980) OLRB Rep. 35. para, 19, the Board made the following comments: Seldom will an employer admit that it has been motivated by ant1-unton animus in discharging an employee. The Board, therefore, 1s required to draw its own conclusion as to the employers motivation and in doing so must draw inferences from the evidence In discharging an employee, the Board looks for a reasonable expla-nation for discharge If the employer provides title 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 m 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 grievers' 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 dis-charge is not aimed at determining whether the employer had just cause for discharge but 1s 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, In this case the company claimed that Mr. Conrad is guilty of time theft." However, accusing Mr. Conrad 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 min-utes. The Board did find that Mr. Forsyth warned the cleaners about "time theft" on June 24, 2000. however, there is no reason that the cleaners would have under-stood 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 George Mitchell, Mr. Forsyth's predecessor. There was no job description. When Mr. Forsyth 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 m which they worked. The cleaners agreed to that themselves. Mr. Forsyth knew that he had never" made either area or work assign-ments 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. Steele either refused to consider the possibility that Mr. Conrad and Mr. Fleming 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. Conrad. Yet the evidence demonstrated that Mr. Conrad and Mr. Fleming 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. Conrad and Mr. Fleming covered the hole in the garbage compactor. The evidence on the tape was that they did take cardboard out and bring back a different sized piece, consistent with the claim that they were covering the hole. Mr. Steele and Mr. Forsyth claim to have seen that on the tape. Mi. Forsyth 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 compactor was a good idea. No one claimed it was not Mr. Conrad and Mr. Fleming 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 11th is less reliable but the Board is prepared to assume they went out on a number of occasions that day as well. It is so undisputed that they often smoked cigarettes when they went out. However, it is the company's policy, well known to Mr. Steele, 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. Conrad and Mr. Fleming 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. Conrad and Mr. Fleming committed is that they both went out to check the hole in the compactor when one person could have done that. Questions 1. What is your overall view of the way the company handled the union certification drive? 2. If you were a labour board chair, how would you respond to the evidence con-cerning Mr. Lindsay's speech of October 1999 on the subject of unionization at the company? 3. What is your view of the company's approach to health and safety issues, as illustrated in this case? 4. To the extent that the company had a significant problem with "time theft" caused by employees' smoking, how might it have addressed this problem, other than by dismissing certain employees? 5. Had you been the arbitrator or labour board chair in this case, what would your ruling have been, and why