Reasons for decision

Teamsters Local Union No. 31,

applicant,

and

669779 Ontario Limited O/A CSA Transportation,

employer.

Teamsters Local Union No. 31,

complainant,

and

669779 Ontario Limited O/A CSA Transportation,

respondent.

The panel of the Canada Industrial Relations Board (the Board) was composed of Mr. Patric F. Whyte, Vice-Chairperson, and Messrs. Richard Brabander and Norman Rivard, Members. Hearings were held from April 19 to 21, 2017, and from June 20 to 21, 2017, in Vancouver, British Columbia.

Appearances

Mr. David P. Reynolds, for the Teamsters Local Union No. 31;

Mr. Israel Chafetz, Q.C., for 669779 Ontario Limited O/A CSA Transportation.

These reasons for decision were written by Mr. Patric F. Whyte, Vice-Chairperson.

I. Overview and Proceedings Before the Board

[1] On February 9, 2017, the Board received an application for certification (Board file no. 31996-C) pursuant to section 24 of the Canada Labour Code (Part I–Industrial Relations) (the Code) filed by the Teamsters Local Union No. 31 (the Teamsters or the union) to represent “all Warehouse Workers... at and from 18744 – 25 Avenue, Surrey, British Colombia excluding Drivers, Owner-Operators, Drivers of Owner-Operators” employed by 669779 Ontario Limited O/A CSA Transportation (CSA or the employer).

[2] In parallel, on February 15, 2017, the Board received an unfair labour practice (ULP) complaint (Board file no. 32004-C) with a request for interim relief (Board file no. 32005-C) pursuant to section 19.1 of the Code contained therein, filed by the Teamsters, alleging that the employer had violated sections 94(1)(a), 94(3)(a) and 96 of the Code.

[3] In essence, the ULP complaint alleged that the employer terminated the employment of three key union supporters, Messrs. Tennyson Ayles, Ziad Ali and Garrett Bunse, over a period of less than a week during the organizing campaign, respectively on February 3, 8 and 9, 2017. The union suggests that these terminations were intended to undermine the union’s organizing drive.

[4] In order to maintain the status quo ante and to re-establish in the minds of the employees that the Board can and will protect their right to freedom of association, the union, by way of interim relief, sought an order to reinstate the employees whose employment had been terminated and an order that the employer comply with the provisions of the Code.

[5] On February 20, 2017, the Board issued order no. 928-NB in Board file no. 31996-C, in which it determined that the appropriate bargaining unit would be:

all warehouse workers employed by 669779 Ontario Limited O/A CSA Transportation at and from 18744 – 25 Avenue, Surrey, British Columbia, excluding drivers, owner-operators, drivers of owner-operators, Warehouse Auditor, Logistics Coordinators, Warehouse Supervisor, Warehouse Manager and Operations Manager.

[6] The Board also ordered that a representation vote be conducted and that the ballot box be sealed until such time as the Board directed otherwise. Subsequent to the conducting of the vote, the Board scheduled the ULP complaint to be heard at an oral hearing.

[7] On April 18, 2017, in 669779 Ontario Limited O/A CSA Transportation, 2017 CIRB LD 3793, the Board declined to issue the interim order requested, but nevertheless specified the following:

The related ULP complaint (file 32004-C) is before this panel and will be heard shortly. The determination of evidence and the arguments of the parties will allow the Board to decide whether the termination of the three employees was a direct assault on the employees’ rights under Part I of the Code and a threat to their right to organize collectively. If there is any prejudice found as to question the validity of the representation vote, the employees’ right to freedom of association or the personal prejudice of the terminated employees, the Board will be able to fashion the necessary remedy to put the union and the terminated employees back into the position they would have been in prior to any violation that may be found to fulfill the objectives of Part I of the Code.

(page 6)

[8] Hearings for the present ULP complaint were held from April 19 to 21, 2017, and from June 20 to 21, 2017. The Board heard eight witnesses during the hearings. Mr. Ben Hennessy, Director of Organizing, and Messrs. Ayles, Ali and Bunse, the terminated employees at CSA, testified in support of the union. Ms. Sonja Walters, Office Manager in Surrey, Mr. Harpreet Deol, Warehouse Manager in Surrey, Mr. Brent Goss, Material Handler in Surrey, and Ms. Rebecca Huebsch, Director of Operations in Toronto, testified for CSA.

[9] After having considered all of the evidence on file, the testimony heard and the parties’ final pleadings, on August 21, 2017, the Board issued a bottom-line decision in 669779 Ontario Limited O/A CSA Transportation, 2017 CIRB LD 3845. The Board found a violation of section 94(3)(a)(i) of the Code and reinstated Messrs. Ayles, Ali and Bunse, the three employees whose employment had been terminated, with full compensation. It also ordered that a notice be posted on the bulletin boards confirming the rights of employees to freedom of association and the violation of the Code by the employer. Finally, it issued a certification order pursuant to section 99.1 of the Code, certifying the union as the bargaining agent for a unit of employees of the employer (Board order no. 11169-U).

[10] These are the reasons for that decision.

[11] Although the evidence filed by the parties and all of the testimony given have been considered in their entirety, the Board will not deal with each piece of evidence filed at the hearings; it will simply summarize the essential facts for the purpose of its analysis.

II. Positions of the Parties

A. The Union

[12] The union submits that the employer violated sections 94(1)(a) and 96 of the Code by holding “captive audience meeting[s]” with some or all of the warehouse employees at which threats of job loss and terminal closure were made, constituting improper employer communications and interference with the formation of a union.

[13] The union submits that the employer violated section 94(3)(a)(i) of the Code by terminating the employment of the three key union supporters during the organizing campaign, with the express purpose of letting the other employees know that no one is immune to retaliation.

[14] The union asserts that the distinct message delivered to the employees through the employer’s words and actions is that there can and will be further negative effects if the vote results in certification of the union.

[15] The union argues that the termination of key employees during the organizing drive is a direct attack on their rights of freedom of association and freedom to organize. As a result, support for the union would be eroded for the purposes of the vote and for maintaining a cohesive employee group with common goals.

[16] Accordingly, in addition to remedies under sections 99(1) and (2) including a cease and desist order and the reinstatement of the terminated employees, the union seeks remedial certification pursuant to section 99.1 of the Code, because the results of the vote will not likely reflect the true wishes of the employees, in light of the employer’s unlawful conduct.

B. The Employer

[17] The employer denies that it has in any way violated the Code.

[18] The employer denies that threats were made or that any intimidation occurred and submits that no such alleged “captive audience meeting[s]” ever took place, and puts the union to the strict proof thereof.

[19] The employer denies that the terminations were because of the employees’ union organizing activities and submits that each of the three terminations was the result of legitimate workplace discipline.

[20] Specifically, the employer asserts the following reasons for the terminations.

[21] Mr. Ayles was terminated because of his aggressive behaviour toward the office manager when attempting to address pay issues, and for consistently leaving work early when it suited him, and without proper permission, to attend another job.

[22] Mr. Ali was terminated for his poor attitude whereby he would refuse specific work directions and remain instead in the lunchroom playing video games or socializing, and for failing to show up for work on February 5 and 6, 2017, without advising the proper supervisor. He also had previous attendance issues.

[23] Mr. Bunse was terminated for allowing Mr. Ayles into the warehouse knowing that he had been terminated and was no longer an employee and allowing him to remain for a few hours. He also had past incidents of refusing to perform assigned work.

[24] The employer submits that it was not aware that any of the three individuals were engaged in union activity. Further, the employer representative who made the decisions to terminate was unaware of any union organizing activity at the Vancouver warehouse or any involvement by the terminated employees in any union activity.

III. Facts and Evidence

A. General

[25] CSA is an interprovincial and international trucking operation with terminals and warehouses in various provinces in Canada and in the United States, with headquarters in Toronto. It operates a terminal and warehouse in Surrey, British Columbia. The Surrey terminal is a 50,000-square-foot facility, where freight picked up in the United States is stored until it is cleared by customs and then delivered to waiting customers. The pickup and delivery of freight is done by owner-operators, not CSA warehouse employees.

[26] Ms. Huebsch is the Director of Operations responsible for the day-to-day operations and human resources for most of the Canadian terminals, including the terminal in Surrey, British Columbia. Mr. Herman Fallick, the owner and Chief Executive Officer (CEO), is responsible for the other terminals.

[27] Ms. Huebsch advised that in the office area, there is a warehouse manager, Mr. Deol, an operations manager, Mr. Matt Huber, and an office manager, Ms. Walters. The warehouse manager is responsible for all warehousemen, dispatchers, drivers and the scheduling. The operations manager’s responsibilities are to take charge of broker trucks coming up to Vancouver and to act as the senior manager in the terminal. The office manager’s responsibilities are to manage the office, help supervise the warehouse and deal with payroll problems.

[28] In describing the facility, Ms. Huebsch advised that the Surrey warehouse is a bonded warehouse, which means that it is licensed by the government as a high-security facility. Its entrances are under lock and key and the public does not have access to it. Ms. Huebsch’s evidence was that there is an entrance for the owner-operators but they do not have access to the warehouse. In order to gain entrance to the warehouse, one must come to the front keypad area.

[29] The dispatch office is located at the back of the warehouse. The warehouse’s activities consist of material handling duties, i.e., employees unload and load trucks, their main responsibility being to receive shipped goods. There are two work shifts for the material handlers: morning and afternoon. The morning shift employees receive inbound goods and the afternoon shift employees load outbound trucks. There were approximately 15 warehouse employees working from the Surrey location.

[30] Messrs. Ayles, Ali and Bunse were warehouse workers, more specifically material handlers, working at the Surrey warehouse. They were hired on October 31, 2016, February 14, 2013, and May 24, 2016, respectively. When they signed their employment contracts, they acknowledged receipt of the CSA Transportation Canadian Employee Handbook (the Employee Handbook) and agreed to abide by the policies and procedures that it contains during their employment.

[31] The Employee Handbook contains several provisions relevant to this case, notably:

2.9 Termination of Employment

...

2.9.4 Involuntary Termination or Discharge: An involuntary termination shall be fully documented by the Supervisor and discussed with the Human Resources Manager prior to any termination discussions with the employee. An involuntary termination of any employee requires written approval of the CEO prior to implementation.

...

3.4 Attendance Policy

...

If you are to be absent from scheduled work without advance approval, you must call in for each day of absence. You must reach your immediate supervisor or terminal manager when you call. Leaving messages with co-workers or phone/email messages is unacceptable and for which you may be disciplined up to and including dismissal. It is your responsibility to make sure that you speak to one of these people.

...

3.4.3 Absence as Voluntary Termination: If you are absent for two (2) consecutive days without calling in and speaking to your immediate supervisor or your department manager, you will be considered to have voluntary terminated your employment.

...

4.4 Leave of Absence Policy

Only your supervisor or designate may authorize absences from work and, in doing so, shall strive for consistency in the administration of such leaves. This policy statement applies to all employees.

...

5.2 Conduct of [sic] Behavior

...

5.2.4: Supervisors/Managers are responsible for counselling employees promptly when their conduct or behavior is inconsistent with the intent of this policy and must document the interaction for tracking purposes. ...

...

5.6 Disciplinary Procedure

...

5.6.5 Examples of Infractions, Which Normally Result in Discharge for a First Offense:

...

17. Conflict of interest, or acts, which result in conflicts of interest.

18. Giving a false reason for a leave of absence or accepting employment elsewhere during an approved leave of absence.

[32] Messrs. Ayles, Ali and Bunse were the employees leading, in different ways, the organizing drive of the Teamsters.

B. The Union’s Organizing Campaign and Alleged Employer Communications

[33] During the fall of 2016, the CSA warehouse workers in Surrey began to talk about unionizing to protect themselves and to better their working conditions. Messrs. Ayles, Ali and Bunse were regularly in contact and they spoke about how to form a union and how to get everyone to sign cards. Mr. Ayles had contacts at the union and advised that he could work on the organizing drive as long as Mr. Bunse and Mr. Ali helped.

[34] Mr. Ayles approached the union and was given sign-up cards by Mr. Hennessy, a union organizer, in late January 2017. Mr. Ayles started to sign up members and collect the membership fees for the morning shift workers and Mr. Ali did the same for the afternoon shift workers. The signed cards were then sent to Mr. Hennessy. Mr. Bunse advised that he spoke with workers individually in order to convince them to join the union.

[35] On February 3, 2017, Mr. Ayles was terminated. Mr. Ali then assumed control of the organizing drive. Mr. Bunse stated that it was apparent to him and to other employees that Mr. Ayles was terminated for helping to organize the warehouse workers. Mr. Ayles openly discussed with all his co-workers the advantages of joining the union. Mr. Bunse advised that subsequent to this termination, two co-workers came to him; they were visibly upset and scared. They asked him “what do we do now,” to which he responded, “everything will be all right, we have to stick together as a team.” He conveyed this message to five co-workers in total, including the first two. At that time, he feared that he could be next if anyone in the workplace told the employer of his involvement in the campaign.

[36] Although Mr. Ayles had conducted the campaign, Mr. Ali handed out union cards and Mr. Bunse also collected cards that were then given to Mr. Ali.

[37] On February 7, 2017, when Mr. Ali gave him the last card he needed to support an application for certification with the Board, Mr. Hennessy decided to file the application.

[38] On February 8, 2017, Mr. Ali was terminated. Mr. Bunse again had discussions with some of his co-workers and they once again appeared scared and upset about the terminations. He encouraged his co-workers to stay together as a team, to move forward and to stay confident, and said that the union would look after them.

[39] Mr. Bunse stated that Mr. Deol started to call the employees into his office. Mr. Bunse indicated that as he was leaving the lunchroom on that same day, February 8, Mr. Deol called him into the office where he started to talk to him about the plans for the day. While in Mr. Deol’s office, Mr. Goss, a material handler, entered and Mr. Deol asked him to sit down. It was Mr. Bunse’s evidence that Mr. Deol then began to talk about the union, saying that unions are a bad thing and that they do not work. Mr. Deol went on to say that he received an email from Mr. Fallick, CSA’s CEO, indicating that he had heard about the union and wanted to know who had signed up. It also stated that if the union was successful, it was his intention to close down for two weeks and terminate everyone.

[40] Mr. Bunse acknowledged that Mr. Deol conducted afternoon meetings on Tuesdays and Thursdays and that he attended all of them. He indicated that the statements made by Mr. Deol were not made in one of those meetings, but were made individually.

[41] When advised that this contradicted paragraph five of his affidavit which stated, “[o]n Wednesday, February 8th at approximately 7:00 pm, supervisor Harp [Deol] gathered the warehouse workers together and informed us,” Mr. Bunse explained that he meant that Mr. Deol spoke with each of the workers individually. Mr. Bunse advised that he met with Mr. Deol individually and that Mr. Goss came into the office during the meeting.

[42] He acknowledged that he had no knowledge of anyone else being called in but that he believed that what Mr. Deol said was true based on the fact that Mr. Ali had been terminated that morning. He acknowledged that there had been an employee meeting on Tuesday of that week but he had no recollection of whether the union was discussed.

[43] Mr. Deol and Ms. Walters testified that they were not aware of the union’s organizing campaign until the Notice to Employees giving notice of the certification application was posted on the bulletin board.

[44] That being said, Mr. Deol indicated that it was his practice to hold meetings twice a week to discuss with the afternoon employees any issues related to production and that, at one of the meetings, the issue of the union was brought up by the employees. The discussion concerned questions such as what are the benefits of unionization. It was Mr. Deol’s evidence that he advised the employees that they would have to pay union dues, but otherwise, he did not express any opinion and stated that they would have to decide for themselves. However, Mr. Deol denied that he had heard some employees talking about the union and indicated that he never spoke with any employees individually nor did he raise union issues at a separate meeting held on or about February 8, 2017, with Mr. Bunse and Mr. Goss.

[45] Mr. Goss testified that he attended the twice-weekly staff meetings run by Mr. Deol and that when the union was brought up, it was in the context of who would be eligible to vote. He stated that Mr. Deol did not speak of an email from the owner stating that if the union got in, everyone would be terminated. It was his impression that Mr. Deol was pretty neutral. He thought that the question about the vote was raised prior to the Notice to Employees being posted.

[46] Mr. Goss was aware that Mr. Ayles had been terminated on February 3, 2017, but denied that he had heard that it was because of the union. He became aware that Mr. Ali had been terminated but was not sure when it took place. He was also aware that people were talking about the terminations but did not recall it being connected to the union activities. Mr. Goss had no recollection of employees being that upset about the terminations nor was he aware that Mr. Bunse had spoken with employees about the union.

[47] Mr. Goss agreed that he had heard about the union’s application and it could have been on February 8, prior to the posting of the Notice to Employees on February 9. He confirmed as well that employees were receiving cards from Messrs. Ayles and Ali and that, although not sure, he first became aware of the union at the end of January or early February 2017. He indicated that he had never seen Mr. Deol bringing in people one at a time to speak with them nor was he aware that Mr. Deol was holding group meetings to discuss unionization. When it was put to him that he went into Mr. Deol’s office with some paperwork while Mr. Bunse was there and that Mr. Deol asked him to sit down, Mr. Goss denied it. He denied that a meeting with Mr. Deol and Mr. Bunse ever took place. He testified that at no time did Mr. Deol state that the terminal might close down, and he did not know the name “Herman Fallick.”

[48] On February 9, 2017, Mr. Bunse was terminated. The application for certification was filed on that same day.

[49] Mr. Goss testified that if there had been discussions about the termination of his co-workers, it was not expressed to him and he was kept out of the loop.

[50] Mr. Hennessy testified that he had kept in touch with some employees to provide them with information about the campaign and speak to the three terminations. He wanted them to know that they were protected. He also stated that various employees had expressed fear to him about the threats issued by the employer in respect of the union’s application and some employees who were previously strong supporters of the union had failed, after repeated calls and messages from him, even to return phone calls. Communication in general diminished. He considered that the threats and terminations had had an apparent negative effect on support and that it was unlikely that a vote in these circumstances would reveal the true wishes of the employees. Mr. Hennessy confirmed, however, that no one sought to rescind their cards.

[51] Ms. Huebsch testified that she was not aware of the union campaign when she decided to terminate Messrs. Ayles, Ali and Bunse. She was only made aware of it when the union filed its application before the Board.

C. Employee Terminations

1. Termination of Mr. Ayles

[52] Mr. Ayles had been employed by CSA since October 31, 2016, in its Surrey warehouse. He was terminated on February 3, 2017. The employer told him on that day that his termination was due to a shortage of work.

[53] In describing Mr. Ayles’s hiring, Ms. Huebsch indicated that there was no warehouse manager at that time and that Mr. Huber and Ms. Walters ran the warehouse. She indicated as well that Mr. Ayles was hired by Mr. Huber and that she had not seen Mr. Ayles’s resume.

[54] In his testimony, Mr. Ayles confirmed that he had a criminal record for offences that occurred before the year 2007. He stated that he was not proud of what he had done, but that he was trying to better himself. It was his evidence that he had no knowledge of being asked to supply a criminal record check and that if asked now, he would be honest about his record. He indicated that he had worked in another bonded warehouse before CSA and while not aware if he told anyone else, he did tell Mr. Ali and Mr. Adrian Gallicano, the morning shift supervisor.

[55] Mr. Ayles had also been working at Comox Valley Freightways since December 5, 2016. He stated that he had asked Mr. Gallicano if he could change to the morning shift. He indicated that he had advised Mr. Gallicano that he had another job, and where it was. He stated that there were a number of other people who were also aware of his other job. He was certain that he had advised Mr. Gallicano but did not think he had advised Mr. Deol. This second job started at 2:00 or 3:00 p.m. He agreed that he could have stayed later at work, but he did not want to sit in the cafeteria all day. He would ask Mr. Gallicano if he could go. He denied that there was a lot of work to do.

[56] Mr. Ayles indicated that he did not mind being sent home early if there was no work to do. He testified that, on several occasions, he left early either with the supervisor’s approval or at his supervisor’s request. He added that there was no occasion when he ever left work without the approval of the supervisor. He also added that neither Ms. Huebsch nor any other employer representative expressed any concern about his leaving early in these circumstances. It was his assertion that the matter of his hours was discussed only with his supervisor and that around this time, work was slow. If he had to stay later, he would, and if his work was all done, the supervisor would let him leave early.

[57] Mr. Ali testified that he was aware that during January and February 2017, Mr. Ayles was leaving early because he had another job. He advised that he had overheard Mr. Ayles and Mr. Gallicano talking about it. He specified that it was no secret that Mr. Ayles was leaving early and confirmed that the punch clock was in the lunchroom and was visible to the two dispatchers in the office. He also stated that when it was not busy, he would also ask Mr. Gallicano if he could leave early and he would either be granted permission to leave or asked to stay for a further half-hour.

[58] Mr. Deol indicated that he was not aware that anyone was not working their eight-hour shift. He stated that as supervisor, he rarely, if ever, came in early. He confirmed that Mr. Ayles had worked on the afternoon shift and subsequently switched to the morning shift. It was his evidence that he was unaware of Mr. Ayles’s reasons for switching shifts, and he was not aware that Mr. Ayles had a second job. He did not know that Mr. Ayles was leaving early until the last week of January 2017. He informed Ms. Huebsch of this at that time. Mr. Deol indicated that there was nothing written, but supervisors were not allowed to grant permission for an employee to leave early, only managers. However, he also acknowledged that if there was a formal policy to this effect, he was not aware of it. He did not advise Mr. Gallicano that he was unable to allow employees to leave early since he was not aware of such a policy at the time.

[59] Ms. Huebsch testified that she was advised by Ms. Walters that Mr. Ayles was leaving early in December 2016. She indicated that it was the practice for anyone seeking to leave early to tell a manager or supervisor. She found out about Mr. Ayles’s second job sometime in January 2017, but she did not remember exactly when. She confirmed that employees were restricted from working for a competitor, as outlined in the Employee Handbook.

[60] In early December 2016, Mr. Ayles approached Ms. Walters to discuss a payroll issue and asked for a detailed pay record with a breakdown of hours worked each day. He believed that the hours paid did not match the hours worked. She explained that the punch clock system was a fingerprint scanning system. The information would be sent to the Cloud, from which the employer would then be able to go and pull out information related to an employee’s hours as required.

[61] Upon receipt of Mr. Ayles’s query, Ms. Walters forwarded it to Ms. Huebsch. Ms. Huebsch indicated that it was the first time she was made aware of any concerns that Mr. Ayles had had. Ms. Huebsch explained that it was Mr. Ayles’s position that he was short 20 hours on his first pay and some on his second pay. She advised Ms. Walters that they did not have forms that they shared with employees. Ultimately, the response Ms. Walters received was that all of Mr. Ayles’s hours had been paid.

[62] Ms. Walters advised Mr. Ayles of this in the office. She indicated that he became visibly upset, swearing loudly. Mr. Ayles swore a couple of times and explained that he was not mad at her, but at the employer. Mr. Ayles confirmed that he was angry. He indicated that he was frustrated and just blurted it out, out of frustration. Ms. Walters then asked Mr. Ayles to provide her with records of hours that he thought he had worked and she would forward it to Ms. Huebsch, which she ultimately did, on or around January 12, 2017. The response again was that Mr. Ayles had been paid everything on the time clock. Ms. Walters agreed that Mr. Ayles had asked for a printout of his hours worked but she had no recollection of receiving one from Ms. Huebsch. Mr. Ayles testified that he never received any document that would support the employer’s conclusion.

[63] Ms. Walters testified that when she advised Mr. Ayles of the results of this second investigation, he was at her desk, was upset and swore even louder than the last time. This, in her opinion, was not acceptable office behavior and she advised Ms. Huebsch, who told her that she would follow up with him. Ms. Huebsch indicated that she only became aware of a previous verbal reprimand on Mr. Ayles’s record, for a forklift accident, after the payroll issue.

[64] Ms. Huebsch stated that she had occasion to speak with Mr. Ayles in January 2017 when she called the plant and was able to connect with him on her second attempt, as he had left for the day the first time she called. She stated that she verbally reprimanded him for his conduct in the office and for leaving early. She also advised him not to engage in any further misconduct or he would not be working for CSA.

[65] Mr. Ayles denied that Ms. Huebsch discussed the matter with him. He advised that he walked into Ms. Walters’s office to talk when she handed him the phone to speak with Ms. Huebsch. It was his evidence that Ms. Huebsch started the conversation with “don’t swear” and then advised him that she would explain further when she was next in Vancouver. He denied that she had advised him that his conduct in the office was unacceptable and that she had also spoken to him about leaving early. Ms. Walters was not aware of what the discussion between Ms. Huebsch and Mr. Ayles consisted. She also advised that Mr. Ayles did not approach her further after his discussion with Ms. Huebsch.

[66] Ms. Huebsch was in Vancouver the week of January 16, 2017, flew back to Toronto and went on vacation, returning on Tuesday, January 31. It was her evidence that, while in the Surrey warehouse, she attempted to speak with Mr. Ayles before the end of his shift but he had already left for the day. She finally met him in Vancouver, and she stated that he was disciplined a second time for his conduct in the terminal and for leaving early. When she returned from vacation, she called the warehouse and was advised that Mr. Ayles was continuing to leave early.

[67] Mr. Ayles advised that neither Ms. Huebsch nor anyone else from management had previously spoken to him about his leaving early and that he had had no complaints about his performance.

[68] Mr. Deol also spoke with Ms. Huebsch about Mr. Ayles leaving early. Ms. Huebsch advised him to speak with Mr. Ayles. He was not certain of when he attempted to speak with Mr. Ayles, as he kept no notes, but agreed it could have been December 27, 2016. He indicated that Mr. Ayles was already gone at that time.

[69] Ms. Huebsch instructed Mr. Deol to terminate Mr. Ayles on or around February 3, 2017. However, she had no recollection of whether she had instructed Mr. Deol as to the reason for the termination. She stated that she wanted Mr. Ayles out of the warehouse because he made people uncomfortable. Ms. Huebsch advised that she was not aware of the union campaign at that time and was later made aware by fax that the union had filed an application. She advised as well that she did not consult with anyone else about the termination.

[70] It was Ms. Huebsch’s evidence that if Mr. Ayles indicated that there was no reprimand given to him, this would be false. There is no written confirmation because she was driving at the time that the phone discussion took place. She advised that she had spoken to him when she was in Vancouver and confirmed that it was at this time that she decided to terminate him.

[71] Mr. Deol came in early on February 3, 2017, to speak with Mr. Ayles. Mr. Ayles indicated that he observed the owner, Mr. Fallick, enter the building. He stated that he had observed him enter on other occasions. He advised that he saw Mr. Deol that day between 11:00 a.m. and 12:00 p.m. and noted this because Mr. Deol had never come in that early before.

[72] Mr. Deol asserted that he had not spoken with Mr. Ayles prior to February 3, 2017, as each time that he had tried, Mr. Ayles had already left work. Mr. Ayles was terminated on that day. Mr. Deol indicated that he was unaware of when the decision to terminate Mr. Ayles’s employment was made; he was only told to terminate him and he did. He stated that at no time did he try to contact Mr. Gallicano to discuss the situation, and he was unaware of any discipline that Mr. Ayles had on his record. He also confirmed that he did not have access to Mr. Ayles’s time sheets at that time. He indicated that he had not documented the termination and did not see any written approval by the CEO as required by the Employee Handbook.

[73] Mr. Deol testified that he spoke with Mr. Ayles and advised him that he was being terminated due to there not being enough work. He stated that he took this position because he wanted to avoid a scene. He then escorted him out of the building. Mr. Deol indicated that there was actually enough work. Mr. Ayles confirmed that Mr. Deol came over and told him that things were slow and CSA no longer needed his services. Mr. Deol then told him to go and punch out, which he did.

[74] Mr. Deol denied that he attended at the warehouse early on that day because he had heard about the union and Mr. Ayles’s involvement. He also denied that the termination was related to union activity and that he had been advised to make up some reason.

[75] Mr. Deol confirmed that no reason for termination was committed to writing, that no letter of termination was ever given to Mr. Ayles, nor was he ever provided with a Record of Employment (ROE).

2. Termination of Mr. Ali

[76] Mr. Ali commenced work for CSA on February 13, 2013. During the period relevant to the present file, he worked, amongst others, the Sunday shift as the lead hand. He was responsible for various tasks related to paperwork, security and direction of employees. For example, he was responsible for opening the warehouse in the morning and preparing the required paperwork.

[77] Mr. Ali testified that he received three increases of salary while working at CSA. He advised that his last raise arose out of a discussion with his manager in which he told him that if he did not get a raise, he would not be coming back after his honeymoon. Mr. Ali stated that he had a conversation with Ms. Huebsch about wanting to have a higher position and a raise.

[78] Ms. Huebsch stated that she was not aware that Mr. Ali had been given several raises, nor was she aware that he had applied for a managerial position. She did not recall meeting with him and discussing the issue. She was also aware that he had been married but denied that he had advised her that he would have to leave CSA if he did not get a raise.

[79] Ms. Huebsch claimed that Mr. Ali had an attitude problem, that he liked to do what he wanted and that he felt that he should be a manager. She stated that she spoke with him about it. There were no issues related to his pay as he had received two increases. It was her position that although she had spoken with him over the years about his attitude, she did not issue a written warning; he was a good loader and a verbal warning was sufficient. Mr. Ali asserted that he spoke with Ms. Huebsch from time to time and indicated that he never had any discussions about his leadership or his having an attitude problem. He recalled asking her for more workers on the Sunday shift.

[80] Mr. Ali was scheduled to work on Sunday, February 5, 2017. It was Mr. Deol’s evidence that he received a call from Mr. Ali advising him that he was unable to get to work because of the large amount of snow which had fallen. Mr. Ali initially testified that he had tried to call Ms. Walters but did not get an answer. He advised Mr. Deol that he had no shovel and was not able to dig his car out of the snow. He added that he would try to get to work, hopefully within a half-hour; however, he did not show up for work that day.

[81] Mr. Deol indicated that everyone else showed up, some coming from as far as 35 to 45 kilometers away. He stated that he needed to call Ms. Walters to get the security company’s number and was able to contact her on the first try. Mr. Ali’s failure to come to work would result in a delay in opening the warehouse and getting the paperwork done, and seven or eight employees depended on him. Mr. Ali confirmed that the office is closed on Sundays and that there were no managers or supervisors in the office. He agreed that there would be security guards and other employees in the warehouse and that he did the paperwork on Sundays.

[82] Mr. Ali testified that there was heavy snow on February 5, 2017. When he went out to his car, there was ice under his wheels, so he asked his brother to give him a push but he was still stuck. He stated that he had called Mr. Deol and advised him that he was unable to come in. He denied that he had advised Mr. Deol that he would try to get to work in half an hour. He conceded in cross-examination that he was not sure about the call to Ms. Walters first. In any event, he stated that he got permission from Mr. Deol to call Mr. Bunse, as he was asked to get someone to cover, and to give that person the password, which he did. The documentary evidence shows that Mr. Ali had also sent a text message to Mr. Gallicano that morning to inform him of his absence, indicating that his car was stuck.

[83] Mr. Bunse testified that he arrived at work at 7:30 a.m. on February 5, 2017. He was let into the building by security, went into the office and waited for Mr. Ali as he was the one to open the warehouse. It was his evidence that at or about 8:15 a.m., he phoned Mr. Ali to find out if he was going to make it to work. Mr. Ali said no and gave Mr. Bunse the alarm code for the warehouse. He said that he would try to get out of his street but he called back an hour later to advise that he could not.

[84] Mr. Bunse stated that he had been trained by Mr. Andrew Deveau, the supervisor before Mr. Deol, and by Ms. Walters. Ms. Walters spoke to the issue of border connections, whether the freight had been cleared at customs and whether it was bonded. Mr. Bunse advised that this came about because Mr. Deveau had noticed that he had finished his work one afternoon and asked if he was interested in being trained on the system.

[85] Mr. Bunse indicated that Mr. Ali was aware that he had been trained on the computer and asked him to do the work for him. Mr. Ali told him to call him if he had any questions or concerns. It was Mr. Bunse’s evidence that he called Mr. Ali four or five times, connected with him each time and was given the answers to his questions.

[86] Mr. Ali confirmed that the paperwork was done on that day and that he knew that Mr. Bunse was capable of doing it because he was aware that Mr. Bunse was in the process of being trained. He advised Mr. Bunse that he would be available throughout the day and spoke with him four or five times that day. He discussed how to do certain things on the computer, what was going on during the day and, upon Mr. Bunse’s request, gave him the border code.

[87] Mr. Ali did not show up for work on February 6 either. Mr. Deol testified that Mr. Ali failed to show up and when asked why, he advised that he did not have a shovel.

[88] Mr. Ali testified that he called Mr. Deol, Ms. Walters and Mr. Gallicano on February 6, 2017, but no one answered, so he texted Mr. Gallicano to advise him that he was still unable to make it into work due to snow problems and that his car was still stuck. He stated that he received no calls back. Mr. Ali acknowledged knowing Mr. Gallicano and identified him as the morning supervisor during the period of time prior to the hearing.

[89] Mr. Ali agreed that he had made no other effort to attend work as he had no other way of getting there. He was aware that everyone else showed up for work on February 5, 2017, but was unsure about the next day.

[90] Mr. Deol confirmed that Mr. Ali did contact him on the morning of February 5, 2017, and that Mr. Ali advised him that he had contacted his supervisor, Mr. Gallicano, to advise him that his car was stuck in the snow and that he would not be able to make it to work. This text exchange with Mr. Gallicano confirmed Mr. Ali’s absence on February 6, 2017, for the same reason—his car was still stuck.

[91] Mr. Hennessy testified that like other persons residing in southwestern British Columbia, he was aware that extreme weather and snow storms occurred in this region on and around February 5 and 6, 2017, and that in general, municipal governments were ill-prepared to maintain roads in these circumstances. Traffic reports broadcasted around this time urged drivers to stay off the roads if possible.

[92] It was Mr. Deol’s evidence that he contacted Ms. Huebsch and advised her of Mr. Ali’s absence. She told him that it was unacceptable and asked Mr. Deol to terminate Mr. Ali. Mr. Deol stated that he terminated Mr. Ali without giving reasons for the termination.

[93] Mr. Deol indicated that he was not aware of any discipline imposed on Mr. Ali except that which was on his file, and that was a verbal reprimand for an incident in 2014. He noted as well that he had occasion to speak with Mr. Ali about watching videos in the lunchroom while not on break but that he had made no notation or formal documentation of the incident.

[94] Ms. Huebsch explained that CSA’s policy is that an employee must contact a manager or supervisor if unable to get to work. She did not dispute that Mr. Ali contacted Mr. Gallicano on Monday but stated that she would not consider him to be a supervisor, notwithstanding the fact that he has that title. Mr. Deol confirmed that the employer’s attendance policy required an employee who was going to be absent from work to call in for each day of absence and speak with his or her immediate supervisor or terminal manager.

[95] It was Ms. Huebsch’s position that Mr. Ali’s failure to attend at work put production behind as paperwork was late being printed. She spoke with Mr. Deol and told him that Mr. Ali should be terminated. She confirmed that she was aware that Mr. Ali had been issued a verbal warning for substandard work in 2014. She advised that she was not aware of Mr. Ali’s union involvement and made no connection between his conduct and the union.

[96] Ms. Huebsch remembered that she had spoken with Mr. Ali about his failure to perform work that he had been asked to do. She indicated that she had been advised of the failure but did not remember if she was told what the issue was. She indicated that she had heard what Mr. Deol had said in his evidence about Mr. Ali watching video games but stated that she was not aware of any disciplinary action being taken.

[97] Mr. Ali denied that he had ever refused to work and sat instead in the lunchroom. He acknowledged that he had received a verbal warning for leaving a skid off of a load but indicated that he had received no other discipline. It was his evidence that he was never counselled for poor attendance or notified of attendance issues prior to the week of his termination. He asserted that Mr. Deol had never spoken to him about his work performance nor had Ms. Huebsch criticized his Sunday work.

[98] Mr. Deol stated that he was not aware that Mr. Ali had ever refused to perform a task in that month. Mr. Deol denied telling Mr. Ali that he was a good employee.

[99] Mr. Ali indicated that when he came back to work on February 7, 2017, and worked his regular shift, Mr. Deol told him that he should not have missed two days of work as he was important for the employer. He testified that, the next day, he was called into the office by Mr. Deol and told that he was being terminated for missing two days of work without calling any manager or supervisor. Mr. Ali reminded Mr. Deol that he was one of the individuals that he had spoken to. It was his evidence that Mr. Deol advised him that the “higher ups,” the “bigger boss,” told him that he had to terminate him. It was Mr. Ali’s opinion that the employer had to get rid of some people and that the real reason for his termination was his involvement with the union.

[100] Mr. Deol indicated that he had heard that there had been a great deal of snow and that some streets had not been plowed. He confirmed that he made no note of his discussions with Mr. Ali or Ms. Huebsch, nor did he contact Mr. Ali’s supervisor. Mr. Deol stated that he was the next person after Ms. Walters to be contacted if an employee was not coming to work on the Sunday and that Mr. Gallicano was the one to contact on the Monday.

[101] Mr. Deol confirmed that the employer’s position was that Mr. Ali did not call to report his absence and that was the reason why he was terminated. He asked if Mr. Ali had called in on Monday and was told that he had not. He stated this to Mr. Ali, who responded, “Harp you know that is not true.” It was his evidence that Mr. Ali did advise him that he would not be in on February 5, but did not advise him that Mr. Bunse was capable of doing the job.

[102] Mr. Bunse indicated that he arrived at the plant an hour early on February 8 and that when he left the lunchroom, he observed Mr. Deol terminating Mr. Ali and heard Mr. Deol say, “it is because you did not give any notice that you weren’t coming in on the 5th and 6th.” He heard Mr. Ali say, “I sent an email to Adrian [Gallicano] and told Garrett [Bunse] I wouldn’t be in.”

3. Termination of Mr. Bunse

[103] Mr. Bunse started working in the Surrey warehouse in May 2016. He was terminated on February 9, 2017, immediately after starting his shift. According to Mr. Bunse, the Operations Manager, Mr. Huber, told him that he got a call from headquarters in Toronto and that they did not need his services anymore. When he asked the reason, Mr. Huber told him that he had not been given any.

[104] On February 5, 2017, Mr. Bunse arrived at work at 7:30 a.m., and he stated that he replaced Mr. Ali as the lead hand that day. Mr. Deol, on the other hand, advised that Mr. Bunse was at work in his capacity as a regular employee with very little knowledge of the system.

[105] Mr. Goss testified that he observed Mr. Ayles walking through the warehouse on his own on February 5, 2017. He advised that Mr. Ayles came up to him, introduced himself and told him that he had been let go but that he was going to get his job back; he mentioned the union and asked Mr. Goss to sign a union card, which Mr. Goss refused to do. Mr. Goss indicated that Mr. Ayles headed towards the office, went in, and was there for about 20 to 30 minutes. He stated that when he went out to smoke the first time, he saw Mr. Ayles talking with Mr. Bunse in the parking lot and was introduced to Mr. Ayles and his wife. He stated as well that they were still there when he went back into the building 15 to 20 minutes later. Mr. Goss advised that when we went back out a second time, a half-hour later, they were still there. Mr. Bunse stated that he did not see Mr. Goss during this time and that Mr. Goss was not introduced to Mr. Ayles.

[106] Mr. Bunse stated that he was in the office between the lunchroom and the drivers’ room working on the computer when Mr. Ayles walked in. He indicated that he had no knowledge of how long he might have been in the warehouse. He stated that it was possible for someone to come through the gate as it was broken. He thought that was likely how Mr. Ayles got into the warehouse. Mr. Ali also confirmed that it was possible for someone to enter the warehouse and get to the office by entering through the back gate and then by way of the drivers’ door which he stated is open every day. Mr. Bunse asked Mr. Ayles how he got into the building. Mr. Bunse indicated that he was aware that the fence from the outside door to the office and warehouse was broken. He denied that he let Mr. Ayles into the building.

[107] Mr. Bunse advised that Mr. Ayles said that he had come in to get a couple of things that he forgot out of his locker. He did not escort him to his locker as he was able to see into the room through a window. He stated that he observed Mr. Ayles get his cigarette case and a high visibility shirt from his locker. Mr. Ayles returned to the office for about ten minutes when Mr. Bunse escorted him to his vehicle. He indicated that while he would not normally escort someone out of the building, he escorted Mr. Ayles to his truck because he had been let go from CSA, and since it was a secure, bonded warehouse, he wanted to ensure that Mr. Ayles did not come near the freight. He confirmed that they left by way of the drivers’ door and that he observed Mr. Ayles leaving the yard.

[108] Mr. Bunse indicated that he did not get into the vehicle but spoke with Mr. Ayles’s wife who was there with their two-and-a-half year old son. He indicated as well that he observed Mr. Goss while standing by Mr. Ayles’s truck. He stayed and spoke with Mr. Ayles for about five minutes and then went back into the warehouse to do his duties. He denied that the content of his discussions with Mr. Ayles was about the union. The gist of the discussion was about family life, work and how it was going. He indicated that he was not aware at that time that Mr. Ayles had no reason to be in the warehouse. He was not aware if Mr. Ayles had spoken with anyone else while in the warehouse.

[109] Mr. Bunse advised that he had been with Mr. Ayles for a total of 15 to 20 minutes from the time that Mr. Ayles entered the warehouse to when he left the area. He denied that he was with Mr. Ayles for the whole period between Mr. Goss’s two trips out of the area.

[110] Mr. Bunse stated that he had contacted Ms. Walters because he wanted to let her know that Mr. Ayles had come in to pick up his things as he felt that management should be aware.

[111] Mr. Ayles’s testimony was that subsequent to his termination, he realized that he had forgotten some things and his wife drove him to the back parking lot of CSA, where he entered the building through the drivers’ door. There is a gate that had been twisted since he started there and the door did not lock. He went to the lunchroom and got his water bottle and his high visibility vest.

[112] When he came out of the lunchroom, he saw Mr. Bunse outside the office and went over and spoke with him. He did not recall anything special about the conversation. He suggested that Mr. Bunse come out to smoke. They went back through the office to his truck, they talked for a few minutes and he got into his truck and left. Mr. Ayles indicated that he spoke with another employee, Riyaz Khan, but did not recall having a conversation with Mr. Goss.

[113] Mr. Deol testified that he had been advised by a shunt driver that Mr. Ayles had been in the warehouse that day and had been observed sitting in the dispatch. It was his evidence that Mr. Bunse confirmed on February 6, 2017, that Mr. Ayles had been in the facility for approximately half an hour and had sat outside on the road for about the same amount of time. Mr. Bunse told him that it was he who had let Mr. Ayles into the building.

[114] Mr. Deol stated that Mr. Bunse explained that Mr. Ayles had returned to the warehouse to retrieve personal items that he had left in his locker. Mr. Deol advised that on that particular day, there was some trouble with the keypad; it froze because a code had been punched in repeatedly. It was his evidence that when someone is terminated, the keypad is changed. He indicated that it had never happened before and has not happened since.

[115] In discussing some physical aspects of the building and its security, Ms. Huebsch testified that there is an entrance into the building where the keypad is. It is opened when a truck comes in and the driver comes in through the door. She acknowledged that there is a fence that goes up to the door and that the fence has a door that goes into the warehouse.

[116] She indicated that as far as she knew, the doors were not always locked. She indicated as well that there were two locked doors and disagreed that people could get into the warehouse. She stated that she had never seen them open.

[117] On February 8, Mr. Deol gave Mr. Bunse a written warning for letting Mr. Ayles into the building. Mr. Bunse indicated that he was not aware of ever being given a warning notice prior to this time.

[118] Mr. Deol denied that he told Mr. Bunse that in his mind the written warning was the end of the matter. Mr. Deol denied that Mr. Bunse advised him at this time that he had not let Mr. Ayles into the warehouse. He also denied telling Mr. Bunse that he would become the Sunday supervisor. Mr. Deol stated that he thought either he or Mr. Gallicano would be the Sunday supervisor.

[119] Mr. Bunse testified that Mr. Deol stated to him that he had let Mr. Ayles into the building, that he was not to do it again and that he should have phoned Mr. Deol or another manager at the time. Mr. Bunse attested to the fact that he had not let Mr. Ayles into the warehouse. He stated that Mr. Deol asked him how long Mr. Ayles was in the warehouse and he replied that he had been in the building for 15 to 20 minutes then went out for a cigarette. Mr. Bunse advised that when he spoke with Mr. Deol, he told him right away what Mr. Ayles was after. He denied that he had told Mr. Deol that Mr. Ayles was in the warehouse for an extended period of time or that Mr. Ayles was never there.

[120] Mr. Bunse indicated that Mr. Deol then presented him with the written warning and stated that if any non-CSA employee attempted to get into the building, he must call one of the managers. He indicated that Mr. Deol had the document in his possession and presented it to him without change after his denying that he had allowed Mr. Ayles into the building. He stated that he accepted the document.

[121] Mr. Bunse testified that at the same time, Mr. Deol advised him that he would be running the Sunday shift, and he was looking forward to the next Sunday shift.

[122] Mr. Deol denied that he had told Mr. Bunse that he would be the Sunday supervisor and denied that in his mind the written warning was the end of the matter. When it was put to Mr. Bunse that it would be unlikely that he had been disciplined and promoted at the same time, he asserted that he believed he had been given the job.

[123] Subsequently, Mr. Deol scanned that written warning into the system and forwarded it to Ms. Huebsch. He received a call the next day from Ms. Huebsch, who stated that as the warehouse was a bonded facility, Mr. Bunse should be terminated.

[124] Mr. Deol confirmed that he terminated Mr. Bunse on February 9, between 1:30 p.m. and 2:00 p.m., at the start of his shift. He advised him that the reason for his termination was letting Mr. Ayles, a non-CSA employee, into the building and speaking with him for more than a half-hour. He confirmed as well that Mr. Huber was with him at the time and that it was possible that Mr. Huber was the one who terminated Mr. Bunse.

[125] Mr. Bunse stated that there was no reason given for his termination and that he was informed by Mr. Huber. He was escorted to his locker by Mr. Deol to retrieve his things and then was escorted out of the building.

[126] Mr. Deol did not recall Mr. Huber telling Mr. Bunse that he had just got off the phone with Toronto and that they did not give a reason for the termination.

[127] Ms. Huebsch denied that Mr. Bunse’s termination was because of the union as she was not aware of the union at that time. She indicated that the decision was made by Mr. Deol after discussion with her.

[128] It was Mr. Deol’s evidence that he had occasion to speak with Mr. Bunse twice about his work and sent him home early once in December 2016. Ms. Huebsch explained that she did not know Mr. Bunse nor was she aware of him until it was brought to her attention by Mr. Deol that he was not sure if he wanted to keep him as he was not working properly and had been sent home twice for refusing to work.

[129] Mr. Bunse denied having received any previous discipline.

IV. Closing Arguments of the Parties

A. The Employer

[130] The employer pointed out that there were two types of alleged unfair labour practices before the Board—the first dealing with the conduct of the employer, which is of a general nature, and the second dealing with the termination of three warehouse employees.

[131] The employer asserted that it did not know that Mr. Ayles, Mr. Ali and Mr. Bunse were involved in union organizing. More specifically, Ms. Huebsch was responsible for the decision to terminate them and she was not aware of any union organizing by employees of the Surrey warehouse.

[132] The employer argued that the terminations were not the result of the employees’ involvement in the organizing campaign, but the result of workplace discipline.

[133] The employer claimed that Mr. Ayles was terminated for his leaving work early without consent to attend other employment and for his disrespectful attitude towards the office manager.

[134] It suggested that Mr. Ayles was not credible, since he failed to disclose his criminal record at the time he was hired and his record would not have come to light if the employer had not provided the documentation. It also spoke to the demeanour of Mr. Ayles while giving his evidence and his inability to control his temper, stating that his inability to compose himself fits his record of violence.

[135] The employer asserted that Mr. Ali was terminated for failing to attend work on February 5 and 6, 2017, and failing to advise the proper supervisor or to make any contact with the employer at all. In addition, Mr. Ali was spoken to in December 2016 about the need to perform the work he was asked to perform instead of socializing in the lunchroom and was told that if he continued with his attitude, he would be subject to further discipline.

[136] In regard to Mr. Ali’s evidence about his calling in, the counsel questioned the credibility of Mr. Ali, asking if we should believe Mr. Ali or Mr. Hennessy’s affidavit, which states that Mr. Ali first called the office manager Ms. Walters and left a voicemail. Mr. Deol said that he got a call at or about 7:40 a.m., during which Mr. Ali advised him that he would be at work in half an hour, which Mr. Ali denied saying. Counsel questioned whether he in fact tried to get to work, as there was a call to someone else at 8:13 a.m. and nothing thereafter. Counsel stated that Mr. Deol had said that Mr. Ali, in his conversation on the Monday, stated that he did not have a shovel. Counsel also stated that Mr. Ali had made no alternative arrangements to get to work on the Monday. Counsel indicated that Mr. Ali had also denied being spoken to about his work performance.

[137] Counsel observed that when something in evidence worked in his favour, Mr. Ali had a recollection of the event, but when it did not go his way, he could not remember. Counsel observed that this was a curious inconsistency.

[138] The employer indicated that Mr. Bunse was terminated after letting Mr. Ayles into the workplace on February 5, 2017, even though he knew he was a terminated employee. Mr. Bunse had also previously been sent home on two occasions because he had refused to perform assigned work. The employer decided to terminate him on those grounds.

[139] The employer stated that CSA is not only a member of the Partners in Protection program (PIP), a cooperative program between private industry and the Canada Border Services Agency, but is also a member of the World Custom Organization, which along with PIP, regulates the criteria for sufferance warehouses worldwide, including what is required to attain and maintain membership. CSA must have in place a system that demonstrates a commitment to the security of the facility.

[140] On that basis, the employer argued that it took the appearance of Mr. Ayles at the warehouse on February 5 very seriously. Such a person should not have been allowed into the warehouse.

[141] The employer pointed out that Mr. Goss’s evidence was that Mr. Bunse was with Mr. Ayles for a lengthy period of time. It argued that Mr. Goss should be believed because he had nothing to gain from his testimony, while Mr. Bunse did. It added that Mr. Bunse denied that Mr. Ayles was in the warehouse for a lengthy period and denied that they spoke about the union and the campaign, notwithstanding the fact that this was the first time he had seen Mr. Ayles since his termination and he had assumed the organizing role. The employer asked why Mr. Bunse escorted Mr. Ayles out of the building if he did not question Mr. Ayles’s right to be there. Counsel noted that this was a basic contradiction.

[142] Finally, in relation to the alleged captive audience meeting, the employer claimed that the only one to give evidence on the issue was Mr. Bunse. It was his evidence that he was called in on an individual basis, that the captive audience meeting never took place and that to the best of his knowledge, no other meetings were held. The employer pointed out that Mr. Goss did state that the matter of the union did come up once during a routine staff meeting by way of questions from the employees.

[143] The employer stated that Mr. Bunse spoke in generalities about employees being concerned and the union failed to call witnesses to support this claim. The employer advised that it was important to note that no one was called to give further evidence to this matter, that no one was named who could confirm that intimidation took place and that no evidence was presented that anyone did not sign a card as a result. He further advised that no one sought a revocation and that the employees all voted by way of a secret ballot. The evidence given was circumstantial and fell woefully short of supporting the allegations made.

[144] In closing, the employer cited a number of authorities regarding circumstantial evidence, remedial certification and remedy.

[145] In essence, it submitted that even if the Board may accept circumstantial evidence and information on affidavit, it suggests that without direct evidence on a point, opposing parties have no opportunity to cross-examine as to the truth of the evidence. The rationale for this lies in the rules of natural justice and the need for fairness. Thus, it suggested that the Board’s discretion to accept such evidence is subject to natural justice considerations.

[146] The employer pointed to paragraphs 38 and 44 of A.G. Transport Ltd., 2008 CIRB 406, which state the following:

[38] In considering an employer’s defence to a complaint made under section 94(3)(a)(i), the Board does not act as an adjudicator to decide whether or not the employer had just cause to dismiss an employee (see Fiset (1985), 55 di 233; and 85 CLLC 16,041 (CLRB no. 473)).The Board looks at all of the circumstances surrounding the dismissal, and is not required to find direct evidence of anti-union animus: the Board can draw inferences of anti-union motive based on events that took place coincident with the dismissal (Emery Worldwide (1990), 79 di 150 CLRB no. 775)).

...

[44] The employer failed to call witnesses who had first-hand knowledge of incidents that it claims justify Mr. Garcha’s termination. The employer’s sole witness, Mr. Aheer, based a significant portion of his testimony on what he had been told by others. The witness was unable or unwilling to name the individuals who provided the information on which he claims to have based his decision to terminate Mr. Garcha. Although the Board is entitled to accept hearsay evidence, it is also entitled to draw an adverse inference from the employer’s failure to call witnesses who could have provided first-hand testimony regarding events on which the employer relied for the termination decision.

(emphasis added)

[147] The employer then went on to address the remedy of reinstatement as it applies particularly in the case of Mr. Ayles. The employer pointed out that the operation was that of a sufferance warehouse wherein the operation had to be bonded to the tune of $25,000. Counsel indicated that CSA is a member of the PIP program, which is a cooperative program between private industry and the Canada Border Services Agency.

[148] The PIP program has a security profile, which is described as being the fundamental document of the PIP program in which applicants or members provide tombstone information and details on their business operations, including supply chain partners, cargo-handling facilities and procedures, security practices, physical access controls, sealing protocols, information technology infrastructure, etc.

[149] A site validation is conducted every four years, which requires a physical inspection of an applicant’s or member’s premises to verify the information in the security profile.

[150] The employer claimed that convicted individuals may not apply for a position in a secured warehouse and that if convictions are known to the employer, it is not a violation of federal law to refuse to hire. The employer stated that Mr. Ayles’s criminal record indicated that he could be a security risk, which puts CSA at risk of losing its PIP licence.

[151] The employer submitted that a person with a serious criminal record as Mr. Ayles is not the type of person who should be employed by them. Having Mr. Ayles back in the warehouse could jeopardize their PIP status. If Mr. Ayles is reinstated, the employer would have no choice but to terminate his employment or put him on administrative leave. It is the employer’s position that the Board should find an alternative remedy to reinstatement, if need be.

[152] With respect to the union’s request that the Board issue a certification order pursuant to section 99.1 of the Code, the employer submitted that, in Transx Ltd., 1999 CIRB LD 44, the Board found multiple violations of the Code and ordered that a vote take place. Between the time of the order and the vote, the employer failed to abide by the Board’s order and continued to violate the Code. Therefore, in a subsequent decision, Transx Ltd., 1999 CIRB 46, the Board granted the request for remedial certification. The employer submitted that the activities engaged in by the employer in this file do not approach the transgressions that took place in the Transx matters and that, even if the Board was to find a violation of the Code, the violation was not one that would expose CSA to automatic certification. Counsel took the position that certification under section 99.1 was not appropriate in the circumstances before the Board.

B. The Union

[153] The union advised that an organizing campaign began in January 2017, in respect of warehouse workers at CSA in Surrey. The bargaining unit in question was composed of some 15 employees. One of the main union organizers was Mr. Ayles. The employees discussed unionization among themselves and agreed that Mr. Ayles would approach the union. Mr. Ayles handed out cards for signature which were returned to him when they had been signed. This process continued until Mr. Ayles was abruptly terminated on February 3, 2017.

[154] The union submitted that some distribution and collection was done by Mr. Ali, more so after Mr. Ayles’s termination. Mr. Ali was terminated on February 8, 2017.

[155] The union argued that Mr. Bunse was a known union supporter who assisted Mr. Ali and Mr. Ayles in the organizing drive. The union advised that, on February 8, after Messrs. Ayles and Ali had been terminated and after some threats from the employer, Mr. Bunse tried to calm the employees’ fears and to maintain their support for the union. On February 9, 2017, the employer terminated Mr. Bunse. The union asserted that the employer has terminated the employment of these three key union supporters during the organizing campaign, with the express purpose of letting the other employees know that no one is immune to retaliation. It took the position that the employee terminations presented a threat to other employees should the union be voted in.

[156] On that basis, the union submitted that the Board should find that the employer has violated section 94(3)(a)(i) of the Code, failing which the employer will have been successful in undermining the organizing campaign and thwarting the objectives of the Code, particularly that of protecting freedom of association.

[157]  In response to the employer’s alleged reasons for Mr. Ayles’s termination, the union acknowledged that Mr. Ayles received a verbal warning for a minor forklift accident but that it was reduced to writing in accordance with the Employee Handbook.

[158] The union also pointed out that the employer claimed that on at least two occasions, Ms. Huebsch warned Mr. Ayles about his attitude, i.e., having raised his voice and used coarse language. However, the employer failed to produce any documentation of the purported warnings, in spite of a very clear request from the union for production of such materials, if they existed. The union noted that the employer’s own policy is that counselling must be documented.

[159] As to Mr. Ayles leaving early during the months of December 2016 and January 2017, the union pointed to the fact that the employer stated that “[h]e was spoken to about this and was told that the proper procedure was to seek relief from the workplace from his shift supervisor.” The union submitted that no documentation of any warning of this type was produced by the employer or entered into evidence.

[160] The union submitted that the employer never denied that Mr. Ayles had the permission of the supervisor to leave early and it failed to call Mr. Gallicano as a witness to confirm or deny Mr. Ayles’s evidence that he had his permission. It also submitted that Mr. Deol claimed that the supervisor did not have the authority to grant permission to leave early, only the manager. It was the union’s position that this testimony is completely contrary to the employer’s policy as set out in the Employee Handbook, which states that “[o]nly your supervisor or designate may authorize absences from work.”

[161] Counsel for the union went on to say that Ms. Huebsch, who, in his opinion, appeared to say anything at all in the hope of advancing her case, gave evidence that was different from that of Mr. Deol. She claimed that Mr. Gallicano was not a supervisor, contrary to the evidence of other witnesses that he was the supervisor and was excluded from the bargaining unit by virtue of his supervisory responsibilities. Ms. Huebsch stated in cross-examination that “[she] would not consider Mr. Gallicano a supervisor” despite the fact that he wrote up Mr. Ayles for his forklift accident, in his capacity as supervisor. It was counsel’s opinion that this evidence put Ms. Huebsch’s credibility into question.

[162] Counsel noted that Mr. Deol’s evidence was that he terminated Mr. Ayles on February 3, 2017, on the instructions of Ms. Huebsch. He said that the reason given to Mr. Ayles was a shortage of work. Counsel pointed out that an employee junior to Mr. Ayles was retained after this termination for “shortage of work.”

[163] Counsel insisted that neither Mr. Deol nor Ms. Huebsch provided documentation or produced a single note, memo, email or any other record of their conversations with one another or supposed warnings to Mr. Ayles. Counsel stated that no written approval from the CEO was produced respecting the termination of Mr. Ayles, or any of the terminated employees, nor was a letter of termination provided to any of the affected employees. Thus, the process set out in the Employee Handbook was not respected.

[164] With respect to Mr. Ali’s termination, the union pointed out that there was no documentation of any counselling about his alleged poor attendance or supposed attitude problem. The only discipline during Mr. Ali’s four years with the employer was a verbal warning in 2014 for leaving one skid off of a five-skid delivery, which is the lowest form of discipline.

[165] Counsel indicated that the employer alleged that on two occasions in December 2016, Mr. Ali refused to perform duties that were assigned to him by his supervisor, and that Ms. Huebsch gave testimony that she had been informed about these events by Mr. Deol. Counsel contended that Mr. Deol gave no evidence in this regard. In fact, Mr. Ali denied this allegation and the employer provided no dates or particulars of the allegation. In cross-examination, Mr. Deol was asked, “Are you aware of any time when Ziad refused to perform a task he was assigned?” Mr. Deol answered no.

[166] In regard to Mr. Ali’s failure to attend work on February 5 and 6, 2017, the union advised that there was evidence before the Board that there were snow storms in early February and, in general, the mainland had extreme difficulty in clearing streets because municipalities do not possess significant amounts of snow-clearing equipment.

[167] The union asserted that Mr. Ali was unable to get to work on Sunday, February 5, 2017, that he notified his supervisor, Mr. Gallicano, by text and that he received no response at that time. Mr. Ali also called and spoke with Mr. Deol on the phone. Mr. Ali advised Mr. Deol that he would be unable to get to work but would be available during the day to assist the employees by phone, in order to ensure that the necessary printouts and other duties were carried out properly. Mr. Ali spoke with Mr. Bunse several times to assist him in doing the paperwork.

[168] The union pointed out that Mr. Ali contacted Mr. Gallicano on February 6, 2017, and advised him that he was still unable to get to work. He returned to work on Tuesday and was spoken to by Mr. Deol about the need to attend work on a regular basis. In his mind, the matter was over, but he arrived at work the following day to find that he was being terminated.

[169] With regard to Mr. Bunse’s termination, the union indicated that Mr. Bunse had a clean record and that the employer had provided no record of counselling or discipline of any kind being issued to him. It was counsel’s contention that when Mr. Ali did not attend at work on February 5, 2017, Mr. Bunse performed some of the duties normally performed by the Sunday lead hand.

[170] Counsel went on to say that Ms. Huebsch, in her evidence, was adamant that Mr. Bunse had no particular responsibility for the building that day and stated that he was terminated because she thought that he had let Mr. Ayles into the building, although there was no evidence before the Board that he had done so. Ms. Huebsch also stated that Mr. Bunse went outside and sat with a terminated employee; again, there was no evidence that this occurred. Both Mr. Bunse and Mr. Ayles denied this. Mr. Ayles indicated that his wife and son were in the car with him at this time.

[171] The union advised that Mr. Bunse was terminated by Mr. Huber on the orders of Ms. Huebsch, notwithstanding the fact that Mr. Deol had given Mr. Bunse a verbal warning the day before for allegedly letting Mr. Ayles into the building, which Mr. Bunse had denied. Counsel pointed out that Mr. Bunse was given no reason for his termination.

[172] In finalizing his argument, union counsel summarized by saying that in this case, the most visible and vocal of the internal union organizers, Mr. Ayles, was terminated on February 3, 2017. After his termination, organizing activities continued and another organizer, Mr. Ali, who continued to collect signed cards, was terminated on February 8, 2017. On the same day, a third union activist, Mr. Bunse, received a written warning without reasonable cause. When Mr. Bunse continued to speak with other employees in support of the union, he was terminated on February 9, 2017, as soon as he arrived at work. Also on this date, the union filed its certification application with a majority of cards.

[173] Employers typically do not announce that they are terminating an employee for anti-union reasons; they also commonly claim to have known nothing about the union organizing drive. It is very well established that the Board must look at all of the surrounding circumstances to determine whether the employer has overcome the presumption of anti-union animus. Counsel cited A.G. Transport Ltd., supra, in support.

[174] Counsel suggested that, as in Air Atlantic Limited (1986), 68 di 30; and 87 CLLC 16,002 (CLRB no. 600), where the terminations were inconsistent with the employer’s own Employee Handbook and there was no plausible reason for the termination, the Board can find anti-union animus. Finally, counsel spoke to the remedial request for reinstatement of Mr. Ayles. It was his position that the SAFE Framework of Standards, the purpose of which is to secure and facilitate global trade, is an international framework, none of which is binding on any individual or enterprise in the world. Rather, the requirements of the individual country program are binding on the enterprise. Specifically, the requirements of Canada’s PIP program for an individual enterprise are those set out in the enterprise’s Minimum Security Requirements (MSRs).

[175] Counsel pointed out that the Customs Sufferance Warehouses Regulations set out the grounds on which a licence can be cancelled, none of which is the criminal record of an employee. The PIP program speaks to convictions but only in relation to the applicant, which in this case, would be CSA. It was the union’s position that the employer never undertook criminal record checks when hiring employees or otherwise, but in deciding to terminate Mr. Ayles, a criminal check suddenly became a matter of great importance to the employer.

[176] It appears that Mr. Ayles is the only person whose criminal record has been checked by the employer, and, as noted above, it seems that CSA has never been required to perform criminal checks under its MSRs, because it does not appear to have done so. It was counsel’s position that had the employer supplied the record of convictions in a timely fashion, the union might very well have been able to explore the apparent divergence, either through witness evidence, cross-examination or simply research.

[177] In his final submissions, union counsel recognized that the employer’s counsel was correct in pointing out that this was the first unfair labour practice hearing involving the employer, and thus different from the case of Transx, which was found to be a “repeat offender” because it had not only violated the Code but had subsequently failed to respect an order of the Board granted upon determining that initial violation.

[178] However, he argued that a violation of section 94(3) of the Code, the termination, within one week, of all three employees who had acted on behalf of the union—amounting to the termination of 20 percent of the workforce—and the evidence that other employees were worried because of this, considered together in the case before the Board, constituted sufficient reason to apply section 99.1 of the Code and to grant the remedial certification requested.

V. Analysis and Decision

A. Employer Interference and Improper Communications

[179] The union has alleged that CSA’s actions in this case have violated sections 94(1)(a) and 96 of the Code, which read as follows:

94 (1) No employer or person acting on behalf of an employer shall

(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union.

…

96 No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or cease to be a member of a trade union.

[180] The union alleged that the employer’s conduct of holding captive audience meetings at which it threatened employees with job losses and the shutdown of the terminal has amounted to interference with the formation of a union and intimidation contrary to sections 94(1)(a) and 96 of the Code.

[181] Also relevant to this issue is that the Code grants employers the right to express personal points of view, so long as their viewpoint does not include intimidation or other threats:

94 (2) An employer is deemed not to contravene subsection (1) by reason only that they

...

(c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

[182] The onus for establishing a violation of sections 94(1)(a) and 96 is on the complainant. The union will bear the burden of proving that the employer’s actions have undermined the union and its efforts to form a union in the workplace, or that there has been intimidation or coercion used to influence employee choices. Under these sections, anti-union animus need not be proven.

[183] Section 94(1)(a) is aimed at protecting against conduct that seeks to undermine or interfere with the union, as well as conduct that simply has that effect, whether intended or not (Canada Post Corporation (1985), 63 di 136 (CLRB no. 544)). Therefore, an employer may not have intended to interfere with a union’s representation, but if it can be demonstrated that the employer’s conduct had the effect of undermining or interfering with the union, it may nonetheless constitute a Code violation.

[184] In this case, the union asserted that on or about February 8, 2017, Mr. Deol held meetings with some or all of the employees, either individually or in groups. At these meetings, Mr. Deol is alleged to have informed the employees that he had received an email from the CEO of the employer, Mr. Fallick, wanting to know the names of those who had signed union membership cards. The employees were advised that the email also suggested that if the terminal is unionized, the employer will shut it down for two weeks and hire all new employees.

[185] The employer denied the allegations of threats and denied that these meetings ever took place.

[186] The evidence regarding these allegations was sparse. The only witness for the union who spoke about these meetings and the threatening email from the employer was Mr. Bunse. His oral testimony was different from that contained in his affidavit filed with the Board. In his affidavit, Mr. Bunse asserted that Mr. Deol had gathered the warehouse workers together at 7:00 p.m. on Wednesday, February 8, to inform them all of the email received from the CEO. At the hearing, however, Mr. Bunse indicated that no such meeting had taken place. Rather, the email had been discussed with him at a meeting in Mr. Deol’s office, where they were joined by Mr. Goss.

[187] Mr. Bunse initially stated that Mr. Deol started calling employees into his office. However, he then acknowledged that he was unaware of any other individual or group meetings taking place and did not recall whether there had been any discussion of the union at any of the twice-weekly staff meetings routinely held by Mr. Deol.

[188] The evidence from the employer refuted the allegations. Both Mr. Deol and Mr. Goss denied that such a meeting or encounter in Mr. Deol’s office with Mr. Bunse had ever taken place. Both of them testified to the fact that at one of the staff meetings conducted by Mr. Deol, the issue of the union arose by way of questions from employees. Mr. Deol testified that he thought the question was about the benefits of unionization, while Mr. Goss thought the question was about eligibility to vote. Mr. Deol stated that he mentioned the requirement to pay union dues but otherwise expressed no opinion and advised employees that the choice was theirs. Both denied that Mr. Deol had told employees at any time that he had received an email from the CEO suggesting that if the union came in, the terminal would be shut down and employees would be terminated.

[189] No evidence was led to directly dispute this and no evidence was provided to establish that any other meetings with employees were held, either individually or in groups. Nor was there any other evidence to support the allegation that the employer had threatened layoffs and the closing of the terminal should the union succeed.

[190] Accordingly, the Board has not been persuaded that the union has met its burden of establishing that any captive audience meetings and threats as alleged by the union in fact took place and finds that the union has failed to establish that the employer has thereby violated sections 94(1)(a) and 96 of the Code.

B. Employee Terminations

[191] The union alleged that the employer terminated the employment of the three key union supporters, Messrs. Ayles, Ali and Bunse, during the organizing campaign to gather support of the warehouse workers in the Surrey warehouse, in violation of section 94(3)(a)(i) of the Code. Section 94(3)(a)(i) reads as follows:

94 (3) No employer or person acting on behalf of an employer shall

(a) refuse to employ or continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of a trade union or participates in the promotion, formation or administration of a trade union

[192] The Code contains a reverse onus provision, section 98(4), for complaints which invoke section 94(3) of the Code:

98 (4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.

[193] This reverse onus causes the employer to have to prove on a balance of probabilities that its actions toward the employees in question were free from any anti-union animus.

[194] The Board has often outlined its approach to determining unfair labour practice complaints which allege a violation of section 94(3) of the Code because in most of these types of cases, there will not be direct evidence of anti-union motives on the part of the employer. Therefore, the Board must carefully review the facts to see if there are inferences to be drawn that point to the existence of anti-union motives for the employer’s conduct (Clipper Navigation Limited (1991), 86 di 118; and 92 CLLC 16,004 (CLRB no. 900)).

[195] In Conseil des Innus de Pessamit, 2011 CIRB 565, the Board extensively reviewed its jurisprudence on such complaints under section 94(3) of the Code:

[62] In Larose-Paquette Autobus Inc. (1990), 83 di 175 (CLRB no. 840), the Board’s predecessor, the Canada Labour Relations Board (CLRB), stated the following about the Board’s duty in a complaint under section 94(3)(a)(i) of the Code:

This warrants that the Board carefully examine all the evidence to determine whether in fact anti-union animus was present. In order to prove that its action was devoid of anti-union animus, the employer can argue that the penalty imposed on the employee was rational and warranted strictly from the standpoint of sound management.

(page 177)

[63] In Echo Bay Mines Ltd. (1995), 99 di 78 (CLRB no. 1140), the CLRB summarized the principles applicable to complaints filed under section 94(3)(a)(i) of the Code as follows:

The Board has on numerous occasions reiterated its approach when there is an allegation someone has been terminated for union activity. There is seldom direct evidence showing that an employer’s actions are motivated by anti-union animus. Anti-union motives need only be proximate cause for employer action to be found to be a violation of the Code. This policy was summarized by the Board in Air Atlantic Limited (1986), 68 di 30; and 87 CLLC 16,002 (CLRB no. 600):

“The law on the subject of discrimination against employees for having exercised rights under the Code is well settled. If a decision by an employer to take any of the actions described in section 184(3)(a) [now section 94(3)(a)] against an employee has been influenced in any way by the fact that the employee has or is about to exercise rights under the Code, then the employer’s actions will be found to be contrary to the Code. Anti-union motives need only be a proximate cause for an employer's conduct to run afoul of the Code:

... It is a rare experience for labour relations boards to hear an employer who cannot advance a justification for his act—e. g. failure to report to work one day, an act of insubordination to a superior, or merely a re-evaluation of the employee’s performance which showed he did not maintain the standard desired. They may be proper motivations for employer actions but experience shows they are often relied upon around the time the employee is seeking to exercise or has exercised his right under section 110(1) [now section 8(1)].To give substance to the policy of the legislation and properly protect the employee’s right, an employer must not be permitted to achieve a discriminatory objective because he coupled his discriminatory motive with other non-discriminatory reasons for his act.

For these reasons, if an employer acts out of anti-union animus, even if it is an incidental reason, and his act is contemplated by section 184(3) [now section 94(3)], he will be found to have committed an unfair labour practice.

(Yellowknife District Hospital Society et al. (1977), 20 di 281; and 77 CLLC 16,083 (CLRB no. 82), pages 284–285; and 461)’

(page 81)”

[64] In National Pagette (1991), 85 di 1 (CLRB no. 862), the CLRB also summarized the approach to be taken in complaints filed under section 94(3)(a)(i) of the Code, particularly when dismissal is involved, as in the present case:

When the Board examines the merits of an unfair labour practice complaint, particularly one involving dismissal, its role is very different from that of an arbitrator. The reasons for the decision to dismiss an employee are relevant only insofar as they reveal, through their nature, their occurrence in time, their severity or their impact, that the decision was motivated by anti-union animus. In discharging the reverse onus of proof imposed in section 98(4) of the Code, the employer must show that its reasons for dismissing an employee are in no way motivated by anti-union animus.

(pages 9–10)

[65] It is important to remember that each complaint must be assessed in light of its own facts and circumstances. In complaints alleging anti-union animus, the Board generally examines the employer’s conduct in light of the circumstantial evidence, including any coincidence between the time of union activities and the decision or actions that are the subject of the complaint. Regardless of whether an employer has just cause to dismiss an employee, the employer is guilty of an unfair labour practice if there is evidence of anti-union animus.

[196] In A.G. Transport Ltd., supra, the Board stated that it must determine if the employer discharged its burden to establish that its action was not tainted by anti-union animus:

[36] As stated above, when a complaint is filed under section 94(3)(a)(i) of the Code, the mere filing of the complaint is itself evidence that the employee’s termination was tainted with anti-union animus and the onus is on the employer to establish that its action was not tainted by anti-union animus. The Board must therefore determine whether the employer discharged its burden to establish that its action was not tainted by anti-union animus.

...

[38] In considering an employer’s defence to a complaint made under section 94(3)(a)(i), the Board does not act as an adjudicator to decide whether or not the employer had just cause to dismiss an employee (see Fiset (1985), 55 di 233; and 85 CLLC 16,041 (CLRB no. 473)).The Board looks at all of the circumstances surrounding the dismissal, and is not required to find direct evidence of ant-union animus: the Board can draw inferences of anti-union motive based on events that took place coincident with the dismissal (Emery Worldwide (1990), 79 di 150 CLRB no. 775)).

[197] The Board will look at a number of different factors in making its assessment, including the coincidence in timing of the termination and the union activity, the disciplinary record of the terminated employee and the employer’s normal practice in its handling of disciplinary matters (Quick Coach Lines Ltd., 2001 CIRB 144).

[198] In the light of these elements, the three terminations will be examined separately.

C. Mr. Ayles

[199] Mr. Ayles had worked at the employer’s warehouse in Surrey since October 31, 2016. The evidence shows that he was a key supporter of the union campaign. He was the person who approached the union and assumed the leadership of the organizing drive inside the warehouse. He was given membership cards and started to sign up members and collect the membership fees in late January 2017. This evidence has not been contradicted.

[200] Mr. Ayles was terminated on February 3, 2017. Mr. Deol told him on that day that he was being terminated due to a shortage of work, as confirmed by the testimony of both Mr. Ayles and Mr. Deol. Mr. Deol also admitted that shortage of work was not the real reason for the termination and suggested that he had given that reason in order to avoid a scene.

[201] Despite having advised Mr. Ayles that he was terminated due to a shortage of work, the employer submitted that the real reason for his termination was disciplinary. The employer submitted that Mr. Ayles was terminated for aggressively confronting the office manager, Ms. Walters, in December 2016 and mid-January 2017, over not being paid his full hours, and, in the same period, for leaving work early when it suited him, without proper authorization and to attend at another job. It submitted that Mr. Ayles also had a previous verbal warning on his record, for a forklift accident that occurred in 2016.

[202] The union did not deny that some of these incidents took place. However, it denied that any of these were the real reason for his termination. Mr. Ayles himself stated that he had accepted the discipline for the forklift accident without event. He confirmed that he did raise his voice and swear when talking to the office manager but told her that his anger was not directed at her but at the employer and that it arose out of frustration. He also confirmed that he was leaving early but disputed that it was unauthorized or improper. He stated that he had always obtained permission from his supervisor, Mr. Gallicano, before leaving.

[203] In looking at the whole context in which Mr. Ayles was terminated, it is evident that there are significant gaps and contradictions.

[204] On the one hand, Ms. Huebsch indicated that she had verbally reprimanded Mr. Ayles on two occasions, for both his conduct in Ms. Walters’s office and his leaving early. Once it was while she was driving in mid-January, and the second time was while she was at the Surrey warehouse during the week of January 16, 2017.

[205] On the other hand, Mr. Ayles denied that he had ever been disciplined or reprimanded for either his behaviour in Ms. Walters’s office or his leaving early. Mr. Ayles testified that at most, Ms. Huebsch had told him, while on the telephone, not to swear and that she would explain further when she was next in Vancouver.

[206] Further, he suggested that he never left without the permission of his supervisor, and that many people were aware that he had another job. It was no secret when he left early since when he did so, he punched out and was visible to the dispatch employees. There was no deception. As far as he knew, there was no issue with it at all. Mr. Ali confirmed that he was aware of Mr. Ayles’s other job and had heard Mr. Ayles and Mr. Gallicano speak openly about it. Mr. Ali also confirmed that he had done the same thing; he asked to leave early if it was not busy and was either granted permission to leave or asked to stay a little longer.

[207] There is no documented evidence to support the employer’s position that Mr. Ayles was reprimanded for these issues. There are no notes of conversations having taken place between Mr. Ayles and either Ms. Huebsch or Mr. Deol. There are no documented reprimands contained in Mr. Ayles’s disciplinary file. This is in contrast to the documented incident of the forklift accident, which was fully admitted and accepted by Mr. Ayles. Moreover, the failure to reduce the discipline to writing would be contrary to the requirements outlined in the Employee Handbook. No one else was able to confirm that such discipline was ever issued by Ms. Huebsch for either type of conduct.

[208] Mr. Deol acknowledged that he never spoke to Mr. Ayles about leaving early, even though he said that Ms. Huebsch had asked him to.

[209] The evidence also indicates that neither Ms. Huebsch nor Mr. Deol ever consulted Mr. Gallicano to determine whether he had given permission to Mr. Ayles to leave early, as alleged by Mr. Ayles. Ms. Huebsch testified that the practice for anyone seeking to leave early was to tell a manager or supervisor. This is confirmed by the Employee Handbook, which indicates that a “supervisor or designate” may authorize absences. Yet, Ms. Huebsch failed to ask his direct supervisor whether he had sought and been given permission. At the time of these reprimands, Ms. Huebsch was thus not even aware as to whether the absences were unauthorized and properly the subject of discipline.

[210] Even if one were to accept that Mr. Ayles had been disciplined for his conduct in mid-January, there is little evidence to explain why a decision was taken to terminate Mr. Ayles’s employment on February 3, 2017. Ms. Huebsch testified that she made the decision to terminate him while at the Surrey warehouse in mid-January, after reprimanding Mr. Ayles for his misconduct in the office and for leaving early. According to Mr. Deol, at that time, he was not yet aware that Mr. Ayles was leaving early. It is true that Ms. Huebsch was said to have taken vacation until January 31, 2017, after her week in Surrey, but it is also clear that all that was needed was one single phone call to Mr. Deol to direct that Mr. Ayles be terminated. Still, no steps were taken until February 3, 2017.

[211] It is also notable that Mr. Ayles’s probationary period ended in late January. If these disciplinary issues were so significant to Ms. Huebsch that she decided to terminate Mr. Ayles in mid-January, it is curious that she did not take the steps to have his employment terminated before rather than just after the expiry of his probationary period.

[212] Ms. Huebsch testified that she did not consult anyone else about her decision to terminate Mr. Ayles and did not get approval of the CEO as required by the Employee Handbook. She directed Mr. Deol to terminate Mr. Ayles on or about February 3, 2017, but could not recall if she had told Mr. Deol why he was to be terminated. The reason for termination was never reduced to writing. Mr. Ayles never received a termination letter or an ROE. Mr. Deol told Mr. Ayles at the time that it was because of a shortage of work but admitted that that was not the real reason. He denied, however, being told to make up a reason. At the hearing, Ms. Huebsch gave yet another reason for the termination, stating that she wanted to get him out of the warehouse because he made people feel uncomfortable.

[213] In looking at all of the evidence, the Board finds that it is questionable whether Mr. Ayles in fact was leaving early without authorization, and even if so, it is questionable whether he was in fact disciplined for this prior to his termination. The termination itself appears to have been made in haste, without investigation, without consultation, without preparation and without any documentation. Additionally, it is not even clear from the evidence that Mr. Deol, who carried out the termination, was actually aware of the reasons for it.

[214] Mr. Ayles claimed that he was not aware of the reasons for his termination at the time, other than being told that it was because of a shortage of work, and only learned through these proceedings of the reasons for termination offered by the employer.

[215] Based upon all of the above, and combined with the undisputed role of Mr. Ayles in the union’s organizing drive and the coincidental timing of his hasty termination, for questionable misconduct, the Board has not been convinced that the termination of Mr. Ayles was only for legitimate disciplinary reasons. The Board concludes that the employer has failed to discharge the onus of establishing that the termination of Mr. Ayles was not tainted by anti-union animus.

D. Mr. Ali

[216] Mr. Ali had worked for CSA in Surrey since February 2013. Mr. Ali was involved in the union campaign since the beginning and was an active part of the group that started the organizing drive in January 2017. He briefly took the lead after Mr. Ayles was terminated on February 3, 2017, and signed up members until his employment was terminated.

[217] On February 8, 2017, Mr. Ali was terminated, allegedly for not showing up for work on February 5 and 6, 2017, and failing to advise the proper supervisor or make any contact with the employer to justify his absence. The employer submitted that Mr. Ali had also received a verbal warning in December 2016 for playing video games and socializing in the lunchroom instead of following work directions, demonstrating that he had an attitude problem. It is not disputed that Mr. Ali had a previous verbal warning documented in his disciplinary file for leaving a skid off of a five-skid delivery in 2014.

[218] Mr. Ali denied that he had previously been spoken to about an attitude problem, failure to perform work as directed or playing video games during non-lunch time. He maintained that his absence was justified by the snow storm on February 5 and 6, 2017, and that he did properly inform the employer.

[219] The evidence shows that in the four years that Mr. Ali was in the employ of CSA, he received a number of pay increases and was given the lead hand responsibilities on Sundays, which included opening the warehouse and preparing the required paperwork. This is not in dispute.

[220] Although Ms. Huebsch stated that she had warned Mr. Ali about his attitude, she conceded that she never issued a written warning, as she felt a verbal warning was sufficient. However, there is no record or other evidence of a verbal warning being issued and noted in the disciplinary file as required by the Employee Handbook and as had been done in the case of his 2014 verbal warning concerning the skid.

[221] Mr. Deol was not aware of any previous discipline for Mr. Ali’s attitude or failure to follow work directions. He stated that he was unaware of any previous discipline except the 2014 skid delivery issue. He suggested that he had spoken to Mr. Ali about video games in the lunchroom while not on break but did not write him up or issue any formal reprimand for it. Further, Mr. Deol was not aware that Mr. Ali ever refused to follow work directions.

[222] Concerning Mr. Ali’s absence on February 5 and 6, 2017, it was not contested that there were snow storm conditions and that an inordinate amount of snow had fallen in the greater Vancouver area such that in some instances people were unable to get to their places of business. Mr. Ali indicated that his car was stuck and he was unable to go to work. Mr. Deol advised that every other employee showed up at work on February 5, 2017.

[223] With respect to Mr. Ali’s absence on Sunday, February 5, 2017, the evidence does not support that Mr. Ali failed to advise his proper supervisor or manager of his absence. Mr. Ali testified that he called the manager, Mr. Deol, directly, and this was confirmed by Mr. Deol himself. Mr. Ali advised Mr. Deol that his car was stuck in the snow and therefore he would not be attending at work that day.

[224] There are some inconsistencies as to what direction the conversation took. Mr. Deol asserted that he was told by Mr. Ali that he would try to get to work within half an hour. Mr. Ali denied saying this. Nonetheless, the evidence confirms that Mr. Ali contacted Mr. Deol to advise of his absence. There is also documentary evidence that Mr. Ali also contacted Mr. Gallicano, the supervisor, by text that same morning, to advise that his car was stuck and he would not be able to make it in that day.

[225] Mr. Deol stated that Mr. Ali’s absence was problematic because there were no supervisors or managers on site on Sundays and Mr. Ali was supposed to open the warehouse. However, it was the evidence of both Mr. Ali and Mr. Bunse, who was scheduled and did come into work that morning, that Mr. Ali and Mr. Bunse were in contact throughout the day and that Mr. Bunse agreed to and did open the warehouse and took on Mr. Ali’s duties that day. They both testified that Mr. Bunse called Mr. Ali several times during the day with questions, and that he was able to reach him and get the advice and assistance he needed. This evidence was not disputed.

[226] Mr. Ali was also absent on February 6, 2017, due to the snow storm. He stated that he had tried to reach Mr. Deol, Ms. Walters and Mr. Gallicano by phone but no one answered. He ultimately texted Mr. Gallicano. A copy of the text messages was provided by the union which indicates that Mr. Ali had contacted Mr. Gallicano and advised him that he would be unable to attend work on February 6 because his car was still stuck.

[227] The employer did not dispute the fact that Mr. Ali contacted Mr. Gallicano on February 6, 2017. Mr. Deol confirmed that the policy, as set out in the Employee Handbook, required an employee to call and contact his or her immediate supervisor or department manager. Ms. Huebsch also did not deny that Mr. Ali contacted Mr. Gallicano, but suggested that she did not consider Mr. Gallicano to be a supervisor, despite his title, as well as all of the evidence to the contrary, which demonstrates that he was the morning shift supervisor at the warehouse and in fact signed the verbal reprimand given to Mr. Ayles, in his capacity as supervisor.

[228] On February 7, 2017, when Mr. Ali was back at work, Mr. Deol spoke to him and told him he should not have missed work. Mr. Ali suggested that he thought that was the end of it. However, it was not. The very next day, he was terminated. The reason given was that he had missed two days of work without calling any manager or supervisor.

[229] Ms. Huebsch testified that upon learning from Mr. Deol of Mr. Ali’s absence on those two days, she determined that Mr. Ali should be terminated and directed Mr. Deol to do so. She did not investigate whether or not the employer had been properly notified by Mr. Ali of his absence. Ms. Huebsch did not consult Mr. Gallicano about whether he had been contacted on either day, but confirmed in her testimony that she relied on section 3.4.3 of the Employee Handbook as the reason for termination. This provision, as already indicated, deems an employee to be voluntarily terminated if he is absent for two consecutive days without calling in and speaking to his immediate supervisor or department manager. She then directed Mr. Deol, the very manager whom Mr. Ali did call to report his absence, to terminate Mr. Ali for failing to report his absence.

[230] Ms. Huebsch stated that Mr. Ali’s absence was problematic because it put production behind since paperwork was delayed. However, there appears to have been no investigation by Ms. Huebsch as to whether production had been delayed or whether others had been able to fill in and perform the required work.

[231] Mr. Ali confirmed that the reason given to him at the time of his termination was that he was terminated for missing two days of work and failing to call in to report his absence to a supervisor or manager. According to Mr. Ali, when he confronted Mr. Deol about the fact that he had called him directly, Mr. Deol responded that the “higher ups,” the “bigger boss,” had told him to terminate Mr. Ali.

[232] When all of this evidence is reviewed, it is difficult for the Board to conclude that the termination of Mr. Ali was only for legitimate disciplinary reasons. The Board acknowledges that it is not its role to determine or assess whether the employer had just cause for the termination. However, in these circumstances where the evidence, including the employer’s own witness, indicates that the absences were reported, the stated reasons for the termination are simply not plausible or convincing.

[233] The employer’s evidence regarding previous discipline is also not well substantiated. Other than the minor discipline in 2014, the employer was unable to show any documentation related to further discipline, despite the fact that the employer was required to document all reprimands and counselling. The employer’s allegations concerning an attitude problem and a failure to perform work were not documented and were all denied by Mr. Ali. Ms. Huebsch seemed to recall speaking to Mr. Ali about his failure to perform work as directed, but could not recall the specific issues. Yet Mr. Deol, who is the on-site manager, did not recall any previous discipline except the 2014 documented incident, nor was he aware of Mr. Ali refusing to perform work as directed.

[234] Like that of Mr. Ayles, the termination appears to have been made in haste, without investigation of the circumstances, without consultation, without preparation and without any documentation.

[235] Added to this is the timing of Mr. Ali’s termination, which occurred not only during the organizing drive, but specifically after the termination of Mr. Ayles and when Mr. Ali had taken over the lead role in the union’s drive and was continuing to collect cards. According to Mr. Hennessey, Mr. Ali’s termination occurred the day after Mr. Ali had given him the last card needed to support the certification application.

[236] Overall, the Board considers that the allegation suggesting that Mr. Ali was terminated for not showing up to work and failing to advise the employer is not convincing and that the employer has failed to meet the onus of establishing that its actions were not tainted by anti-union animus.

E.  Mr. Bunse

[237] Mr. Bunse had been working in the Surrey warehouse for CSA as a warehouse worker since May 2016. He was terminated on February 9, 2017. He was a supporter of the union and openly discussed unionization with his co-workers.

[238] The employer alleged that Mr. Bunse was terminated because he had allowed Mr. Ayles entry into the warehouse on February 5, 2017, knowing that his employment had been terminated and that he was not allowed in the facility for security reasons. The employer suggested that Mr. Bunse had permitted Mr. Ayles to remain in the warehouse for approximately two hours and sat in the parking lot with him for a further 45 minutes.

[239] The employer notes that in terms of prior misconduct, Mr. Bunse had been sent home twice for failing to perform work which he had been assigned. The union alleged that Mr. Bunse had a clean record and that the employer provided no record of counselling or discipline of any kind being issued to him.

[240] Much evidence was given by a number of witnesses on what took place on February 5, 2017, in connection with Mr. Ayles’s presence in the warehouse, much of which appears to be contradictory in many respects. In the Board’s view, however, it is not necessary to sort out all of the contradictory evidence in this circumstance other than a few essential facts.

[241] Despite the contradictions in the evidence, in the end, the employer was unable, in the Board’s view, to establish that Mr. Bunse had in fact allowed Mr. Ayles into the warehouse. In that respect, Mr. Goss testified that he saw Mr. Ayles walking through the warehouse on his own on that day, but was not able to speak to how he got in.

[242] Mr. Bunse denied letting Mr. Ayles into the warehouse. He testified that he was in the office when Mr. Ayles walked in. He asked Mr. Ayles how he had got into the warehouse and was told by Mr. Ayles that there was a broken fence that had allowed him to come in from the outside drivers’ door to the office.

[243] Mr. Ayles testified that he had come into the warehouse through the drivers’ door where there is a twisted gate that does not lock. He did not know that he was not permitted back into the warehouse and simply went to pick up some forgotten belongings.

[244] It was Mr. Deol’s evidence that he had been advised that Mr. Ayles was in the warehouse and had been observed sitting in the dispatch. He went to speak to Mr. Bunse about it and was advised by Mr. Bunse that it was he who had let Mr. Ayles into the warehouse. Accordingly, he gave Mr. Bunse a written warning for letting Mr. Ayles into the building.

[245] Mr. Bunse denied that he had let Mr. Ayles into the warehouse and testified that when Mr. Deol gave him the written warning, he informed Mr. Deol that he had not let Mr. Ayles in. Mr. Deol denied this. While there is a dispute about what was said at the time of issuing the written warning, there is still no evidence that Mr. Bunse did let Mr. Ayles into the warehouse. At most, it was what Mr. Deol believed was the case. There was no evidence provided to establish that Mr. Ayles could not have made his own way in through the outside drivers’ door. There is also no evidence that Mr. Deol investigated the incident beyond speaking to Mr. Bunse directly and no evidence that Mr. Deol spoke to Mr. Goss or anyone else in the warehouse at the time to get further information.

[246] The same is true concerning the contradictory evidence about how long Mr. Ayles remained in the warehouse or how long Mr. Bunse spent with Mr. Ayles in the yard outside afterward. Mr. Bunse denied that it was two hours and testified that it was approximately 20 minutes inside and 5 to 10 minutes outside while having a cigarette. It does not appear that Mr. Deol investigated this matter or spoke with anyone else who might have had information about this at the time. The written warning simply states that he allowed him to stay for a few hours. The focus of the warning, however, appears to be on the fact that Mr. Bunse had let a non-CSA employee into the warehouse and that he should not do this again.

[247] In any event, Mr. Bunse accepted the written warning on February 8, 2017, and thought this was the end of it. However, the next day, he was terminated at the start of his shift.

[248] Concerning the termination, Ms. Huebsch stated that she had received a copy of the written warning from Mr. Deol and decided that since the warehouse was a secure facility, Mr. Bunse should be terminated. She called Mr. Deol the next day to tell him to do so.

[249] Mr. Deol indicated that he was the one who terminated Mr. Bunse and the reason he gave Mr. Bunse for this was for his letting Mr. Ayles into the warehouse. However, when questioned on this, Mr. Deol admitted that perhaps he was not the one who had terminated Mr. Bunse and it may have been Mr. Huber.

[250] Mr. Bunse testified that it was in fact Mr. Huber who had terminated him, giving no reason at all. When Mr. Bunse asked for the reason, Mr. Huber answered that he had just been told by Toronto to terminate him and did not tell him why. Mr. Deol did not recall this. Mr. Huber did not testify.

[251] As to the allegations that Mr. Bunse was spoken to and sent home on two previous occasions for refusing to perform work, the Board notes once again that the employer has not provided any documentation as to the discipline allegedly imposed on Mr. Bunse for failing to perform his work duties. The only evidence on that matter was Mr. Deol’s testimony that he had spoken twice with Mr. Bunse and sent him home once on December 1, 2016, due to his failing to perform work adequately. Ms. Huebsch had never heard of Mr. Bunse before and was not aware of this issue at the time. She stated that she recalled that Mr. Deol had told her that he was not sure if he wanted to keep him because he was not working properly and had to be sent home twice for refusal to work.

[252] Mr. Bunse denied this and maintained that he had a clean record and had not been previously disciplined prior to the written warning concerning the incident with Mr. Ayles.

[253] It appears to the Board that even if Mr. Bunse had been previously counselled, it was not documented as required by the Employee Handbook and does not appear to have been relied upon in any event. Ms. Huebsch indicated that she was the one who decided to terminate Mr. Bunse and did not claim in her testimony to have relied on this alleged past discipline.

[254] In reviewing the evidence concerning Mr. Bunse, the Board is of the view that it is questionable whether the employer has established that Mr. Bunse did in fact allow Mr. Ayles into the warehouse and that this was the true reason for Mr. Bunse’s termination. The employer’s own evidence is unclear as to who terminated Mr. Bunse’s employment and why, or what reason was given to Mr. Bunse at the time.

[255] Ultimately, the Board concludes that the employer has not met its burden to overcome the presumption that Mr. Bunse’s termination was tainted by anti-union animus. Mr. Bunse was acting as a key supporter of the union campaign when he was terminated. Mr. Bunse was the last of the three key union supporters and his termination came about on the same day the application for certification was filed, even though he had already received formal discipline for the very incident for which he was allegedly terminated.

[256] The timing is also suspect, as it was evident by this time that the employer was aware that employees were asking questions about unionization and that Mr. Deol in particular had addressed some of these questions at his routine staff meeting. For Mr. Bunse, this came the very next day after Mr. Ali had been terminated and the day after Mr. Bunse claimed to have spoken with employees to attempt to allay their fears and encourage them to continue their support for the union despite the employer’s actions.

[257] Consequently, the Board finds that the employer has failed to prove, on a balance of probabilities, that Mr. Bunse’s union activities did not play any part in its decision to terminate him.

VI. Conclusion

[258] As the Board’s case law indicates, it will seldom get direct evidence of anti-union animus and it is thus entitled to look at circumstantial evidence to make certain inferences and conclusions, placing everything in context based on the overall circumstances in each case.

[259] Having examined each of the terminations individually, the Board cannot help but find a pattern to the employer’s conduct in the present case. The coincidence in timing of all three terminations is persuasive in establishing the existence of anti-union animus. All three terminations took place within one week, which happened to be the culminating week of the union’s drive, before the filing of the certification application on February 9, 2017. The three individuals who were terminated happened to be the three main union organizers and supporters who had been actively speaking with employees about unionization and soliciting memberships during that time. As far as the Board is aware, no other terminations of any other employees occurred during this time.

[260] The terminations of these three union supporters all came about quite suddenly and in relation to an incident or conduct that appears to have taken on somewhat exaggerated significance. In all three cases, the actual alleged misconduct was not clearly established by the employer to have occurred or to have been contrary to the employer’s disciplinary practices, as described, or as outlined in the employer’s Employee Handbook.

[261] In all three cases, there was no evidence of a proper investigation being conducted to confirm the facts and circumstances surrounding the alleged misconduct. Key individuals who could have shed light on the incidents in question were never consulted at the time. In particular, Mr. Gallicano, the morning supervisor, was involved in two of the three incidents, but he was not questioned or consulted at the time of the alleged misconduct. Nor was he called upon to testify in this case to explain or give his perspective on the incidents at issue.

[262] In two of the three cases, the terminations of Mr. Ali and Mr. Bunse, discipline or some lesser form of reprimand was issued at the time for the misconduct in question, but then subsequently, all of a sudden, Ms. Huebsch decided that the individual should be terminated for that same conduct, without further investigation or consultation.

[263] In all three cases, allegations of previous “issues” with their work performance such as attitude problems or attendance issues are alleged to have been part of the disciplinary record of each of the three individuals. Yet, in each case, with the exception of certain previous discipline that was documented and unrelated to this case, such as the skid and forklift incidents, previous discipline or counselling for these problems or issues is denied by each employee. Furthermore, the employer has been unable to provide any documentation to substantiate that such problems had been identified by the employer, had been addressed with the employee, or existed as part of their disciplinary record.

[264] In two of the three cases, there is controversy or conflict in the evidence as to why the employee was terminated and the reason given to the employee at the time of termination. Ms. Huebsch indicated that she had directed Mr. Deol to terminate Mr. Ayles, but could not recall if she had told him why. Mr. Deol then gave a completely different reason to Mr. Ayles than that now alleged by the employer and Ms. Huebsch specifically. In the case of Mr. Bunse, Mr. Deol could not recall whether he was even the one who had terminated him, or whether it was in fact Mr. Huber, and he does not recall exactly what was said. Mr. Bunse claimed that he was given no reason at all except that Mr. Huber had been told to terminate him.

[265] If the employer was of the view that the misconduct of each employee was so severe and of such concern as to warrant termination, one might think that the reasons for the termination would be more clearly determined and communicated. The fact that they were not, in these cases, gives the Board cause to question whether the alleged reasons were the true reasons for the terminations or simply those offered to mask or legitimize terminations undertaken for anti-union reasons at the time that the union’s organizing drive was reaching its peak and the employer was getting wind of it.

[266] Moreover, in all three cases, the usual or proper disciplinary process, as set out in the Employee Handbook, was not followed. For example, in each case, there was no pattern of documented progressive discipline leading up to termination. Further, in each case, no consultation with other company officials or the CEO of the employer took place and it was Ms. Huebsch alone who made the decision to terminate, seemingly very quickly and suddenly. In each case, no termination letter was prepared or presented to the employee setting out the reason for termination.

[267] The fact that all three cases share the same or a similar pattern while occurring within a single week during the union’s organizing drive is striking. As the Board said in Air Atlantic Limited, supra, employers are often able to advance justifications for their actions. However, experience has shown that such justifications are often relied upon around the same time that the employee is seeking to exercise his rights under the Code. Upon a full review of the evidence, it appears to the Board that this is what this employer has attempted to do in the present case.

[268] The employer, however, maintains that it was not aware of the union’s organizing activities at the time of the terminations and specifically that Ms. Huebsch, who worked in Toronto, not Surrey, was unaware of the union organizing activities or that these three employees were specifically involved. The evidence of Mr. Deol and Ms. Huebsch was that neither was aware of the union’s organizing activities until the posting of the Board’s Notice to Employees on February 9, 2017.

[269] However, general discussion about unionization had commenced in the fall of 2016 and the drive to sign up employees began in earnest in late January. The evidence demonstrates that Ms. Huebsch was present in the warehouse in Surrey during the week of January 16–20, 2017, at the time that the organizing drive was starting to gear up. Further, Mr. Deol, who had daily contact with most warehouse employees, was, at the very least, aware of some discussion of unionization on or before February 8, 2017. He himself testified that employees had asked questions about the benefits of unionization at one of his routine staff meetings and that he had addressed some of their questions, mentioning payment of union dues and advising employees to decide for themselves.

[270] Mr. Deol was in frequent contact with Ms. Huebsch during that same time, discussing the terminations of Messrs. Ayles, Ali and Bunse. There was also evidence from Mr. Ayles that Mr. Fallick, the CEO of the employer, was in the warehouse on February 3, 2017, the day Mr. Ayles was terminated.

[271] In addition to Mr. Deol’s evidence, there was also the evidence of Mr. Goss, who confirmed that there had been discussion about the union amongst employees. He too was at the staff meeting at which unionization was discussed with Mr. Deol. Mr. Goss also testified that he was aware of the terminations of Mr. Ayles and Mr. Ali. Further, Mr. Ayles testified that he believed others were aware of the union activities when certain drivers started to shun him.

[272] It is a relatively small workplace where word is likely to travel quickly or be overheard and, if there were employees in the terminal who were not supportive of the union, it is not unreasonable to believe that one or more of them may have informed the employer of the union activity going on at the time.

[273] In the Board’s view, it is not unreasonable in all of the circumstances to infer that the employer indeed had some knowledge of the union’s organizing drive and knowledge of who the main supporters were and that anti-union animus played a part in the employer’s decisions to terminate the employment of the three key organizers during that week.

[274] In light of all of the above, its assessment of the evidence and inferences drawn, the Board concludes that the employer has failed to discharge the onus of establishing that the terminations were devoid of anti-union animus and finds that the employer has violated section 94(3)(a)(i) of the Code.

VII. Remedy

[275] Having found the employer in breach of section 94(3)(a)(i) of the Code, the Board considered the numerous forms of remedial relief sought by the union and made the orders and declarations contained in its bottom-line decision 669779 Ontario Limited O/A CSA Transportation (LD 3845), supra, which are set out below:

1) The Board declares that the employer violated section 94(3)(a) of the Code by dismissing Messrs. Ayles, Ali and Bunse;

2) The Board directs the employer to reinstate Messrs. Ayles, Ali and Bunse, forthwith to the same positions that they held at the time of their termination, should they wish to do so, with the same terms and conditions;

3) The Board directs the employer to compensate each of the employees, Messrs. Ayles, Ali and Bunse, for the wages and other benefits they would have earned from the date of their termination to the date of their reinstatement, less any amounts received as earnings during the compensable period which will be subject to mitigation, if applicable;

4) The Board directs the employer to post on bulletin boards throughout the warehouse a Notice, as attached hereto, confirming the rights of employees to freedom of association and to join the union of one’s choice, and informing the employees of the violation of the provisions of the Code by the employer. This Notice must remain posted for a period of sixty (60) days commencing August 21, 2017; and

5) The Board grants the union’s request for outright certification and orders that the ballots cast in the vote held on February 22, 2017, be destroyed 30 days after the issuance of this decision. The parties will find enclosed the Board’s certification order.

(page 3)

[276] Two aspects of the Board’s remedial award warrant comment.

A. Reinstatement of Mr. Ayles

[277] The employer argued that if the Board were to find a violation of section 94(3)(a) and consider reinstating the terminated employees, it should consider an alternative remedy in the case of Mr. Ayles.

[278] Employer counsel argued that his criminal record would make Mr. Ayles un-bondable and therefore not able to work in a secure warehouse. Further, it asserted that because of his criminal record, Mr. Ayles presents a security risk to the employer and to its PIP status and licence. Accordingly, if the Board were to reinstate Mr. Ayles, the employer would feel compelled to terminate his employment or put him on an administrative leave.

[279] In fashioning the remedy that it did in relation to Mr. Ayles, the Board took this into consideration. However, the Board is of the view that the unlawful conduct of the employer in regard to the termination of Mr. Ayles’s employment warranted his reinstatement, as a remedy for the employer’s breach of the Code. While the Board understands that the employer may see this as problematic, this must remain an issue for it to resolve. The employer did not appear to have been sufficiently concerned to conduct a criminal record check at the time it hired Mr. Ayles and it will have to consider its options going forward. The Board, however, must consider a remedy in light of and consistent with the objectives of the Code and is of the view that in the circumstances here, reinstatement is the appropriate remedy.

B. Remedial Certification Pursuant to Section 99.1

[280] The Board’s decision to grant the union’s request for remedial certification and to decline to count the ballots cast in the representation vote held on February 22, 2017, also warrants further comment and explanation.

[281] In its application, the union requested that the Board certify the union pursuant to section 99.1 of the Code, which prescribes the following:

99.1 The Board may certify a trade union despite a lack of evidence of majority support if

(a) the employer has failed to comply with section 94; and

(b) the Board is of the opinion that, but for the unfair labour practice, the trade union could reasonably have been expected to have had the support of a majority of the employees in the unit.

[282] Remedial certification pursuant to section 99.1 of the Code is an extraordinary form of relief available to the Board where it feels the circumstances warrant granting it. As a general principle, such a remedy is designed to deter the employer from engaging in unlawful tactics by denying it the fruits of its misconduct and also to attempt to repair the harm caused by the employer’s conduct to the ability of employees to choose freely and voluntarily when deciding whether or not they wish to have union representation. Section 99.1 was added to the Code in 1999 following a comprehensive review of Part I of the Code and consultation process undertaken by a Task Force led by Andrew Sims. The report and recommendations of the Sims Task Force, Seeking a Balance: Canada Labour Code, Part I Review (Ottawa: Human Resources Development Canada, 1995), are instructive in explaining the intent behind the provision which Parliament ultimately adopted.

[283] The Task Force noted that in certain situations, employees’ efforts to unionize are met with significant opposition by employers, to such a degree that it becomes impossible to ascertain the true wishes of employees because of the fear of retaliation. Accordingly, it recommended that in those rather exceptional circumstances of intolerable conduct by the employer and where, but for that conduct, the union could reasonably be expected to have achieved majority support, the Board should have the power to grant certification without evidence of majority support of the employees. The Task Force set out its view in this way:

Certification as a Remedy for Unfair Labour Practices

In some cases, employee efforts to unionize are met with such vigorous employer opposition tactics that it becomes truly impossible to measure majority support. Unfair labour practices, such as firing known union supporters, can put such a chill on organizing efforts that obtaining majority support may be impossible. In extreme cases, holding a vote may be pointless because of the employees' fear of retaliation. Labour codes in Canada generally allow boards the discretion to grant a certificate, even where majority support has not been proven, where illegal conduct by the employer has precluded that support.

The objective is twofold: first, to deter such conduct by the rare employer who uses it; and second, to allow employees the representation they would have achieved but for the employer's misconduct.

Unions urged us to recommend a Board power to direct certification in such cases. We believe it is appropriate to do so, but subject to conditions. It should be an unusual remedy, reserved for truly intolerable conduct. The power to grant a certificate should depend upon a finding of an unfair labour practice and upon a finding that, but for the illegal conduct, the union could reasonably have been expected to achieve majority support within the bargaining unit.

Recommendation:

The Board should be given explicit statutory discretion to remedy unfair labour practices by directing a certification notwithstanding a lack of proof of majority support where, but for the unfair labour practices, the union could reasonably be expected to have achieved majority support within the bargaining unit.

(pages 64–65; emphasis added)

[284] The wording of section 99.1 illustrates that Parliament essentially adopted the recommendation of the Task Force on this issue. It created an exceptional remedial power that was not unlimited, but was intended to address a particular set of circumstances. Its purpose is directed at remedying those circumstances where the employer’s conduct renders true employee wishes and the level of support for the union impossible to determine by the usual means, that is, by way of membership evidence filed or by way of a representation vote. When the employer’s conduct renders those means of verifying employee support ineffective or unreliable, then such a remedy pursuant to section 99.1 may be resorted to, and certification granted, without evidence of majority support. This may only be done, however, if the Board is also able to find that, but for the illegal conduct, the union could reasonably be expected to have majority support.

[285] The next question becomes: what type of employer conduct renders true employee wishes and the level of support impossible to determine by the usual means? Two types of employer conduct that may be influential in these types of cases would be terminating the employment of known union organizers, as identified by the Sims Task Force, and threatening job security and working conditions, such as loss of benefits, or layoffs, shutdowns and plant closures. However, there are no set criteria and in any given case, the Board must look at the nature and severity of the employer’s unlawful conduct and the impact it is likely to have on the employees and their ability to freely express their true wishes in the particular circumstances.

[286] Since section 99.1 was introduced, the Board has exercised its discretionary power under that section to grant remedial certification in only one instance, in Transx Ltd. (46), supra. In an initial decision, Transx Ltd. (LD 44), supra, the employer was found to have violated sections 94(1), 94(3) and 96 of the Code by, among other things, terminating the employment of known union organizers for anti-union reasons. As remedy, the Board ordered the employer to cease and desist from interfering with employees’ rights, ordered the reinstatement of the terminated employees with compensation for lost wages and benefits, and ordered the employer to permit union meetings to take place during working hours and on company premises or any other location of the union’s choosing at the employer’s expense. In addition, the Board ordered that a representation vote be taken.

[287] Subsequent to that Board decision, the union filed a second complaint alleging that the employer continued to violate the Code with its anti-union activities. In Transx Ltd. (46), supra, the Board found that the employer had hired private investigators to monitor the activities of certain employees involved in union activities, and had targeted those employees for dismissal, some for the second time. The employer had also failed to comply with other aspects of the Board’s original remedial order. The Board, having found continued violations of the Code for anti-union animus, and disregard for the Board’s orders, ultimately granted remedial certification and declined to count the results of the vote that had been ordered in the previous decision.

[288] The Board, when considering the request by the union to grant remedial certification, determined that the circumstances before it were those clearly intended to fall within the scope of section 99.1. Having also found that the union could reasonably have been expected to have had majority support, it found that the conditions of section 99.1 had been met.

[289] In reaching this conclusion, the Board looked at whether or not the nature and severity of the employer’s misconduct had created such an environment of fear of employer retaliation for union support that the results of the vote that had been held would not reflect the true wishes of the employees. The Board, in Transx Ltd. (46), supra, described its reasoning as follows:

[127] Among the evidence submitted to the Board was evidence that the employer’s actions, including its recent discharge of union members, created a level of concern among employees that retaliatory action from the employer would follow on identification as a union supporter. There was evidence that the employer might move its operations if it became unionized. In addition, the original panel found that the employer had violated sections 94(1), 94(3) and 96 of the Code by discharging significant numbers of employees.

[128] The Board must therefore be concerned not with one, but with two rounds of firings.

[129] There is evidence that persuaded the present panel that the employer failed to comply with the previous Board order of May 10, 1999.

[130] There has been significant intimidation in the workplace by the employer, including the clandestine surveillance of employees, that in the circumstances appears to have been motivated by anti-union animus and aimed at establishing grounds for the dismissal of union supporters.

[131] The evidence also indicates that there was a significant level of support for the bargaining agent both prior and subsequent to the initial round of dismissals. There is little question, however, that with the dismissals, a failure to comply promptly with Board orders, workplace actions directed at union members and the suggestion that unionization would result in the closure of the work location, there is a great danger that a vote would not reflect the true wishes of the employees. In the circumstances, the present Board is of the view that but for the unfair labour practices, Teamsters Local 31 could reasonably have expected to have had the support of the majority of the employees.

[290] The Board thus certified the union despite the lack of evidence of majority support, “in order to deter further employer failures to comply with section 94 and in order to attempt to undo the harm already done to employee free choice” by the employer’s violations of the Code.

[291] By way of contrast, in Hamlet of Kugaaruk, 2010 CIRB 502, the Board declined to grant remedial certification after finding that a letter sent by the Hamlet to its employees went beyond the permissible communications envisaged by the Code and interfered with the union’s relations with its members, during a certification proceeding, in violation of sections 94(3)(a)(i) and 94(1)(a) of the Code. In that case, a letter had been sent to employees suggesting that they might lose the benefit of certain work practices and bonuses if they were to join the union. The evidence also showed, however, that when the Hamlet learned of the nature of the Administrative Officer’s letter, it retracted the letter with a written apology to the employees.

[292] In Hamlet of Kugaaruk, supra, the facts did not include any dismissals of union organizers, and the impermissible communication in question did not threaten termination or lay-offs. Further, the written communication was later retracted, assurances were given that no losses of the kind mentioned would be suffered if the union were voted in and a written apology was issued to employees. It is fair to say that the Board did not see these circumstances as creating a similar climate of fear of employer retaliation as in the Transx Ltd. (46), supra, case.

[293] Perhaps more importantly, in Hamlet of Kugaaruk, supra, the Board had already certified the union based upon a demonstration of majority support of employees by way of membership evidence filed with the certification application. That was not a situation where the employer’s conduct rendered employee wishes difficult or impossible to ascertain, which is what remedial certification is aimed at addressing. Consequently, there was no need to resort to remedial certification pursuant to section 99.1 in that circumstance.

[294] This is quite often the situation before this Board which has historically operated on a card-check system of certification based upon the filing of membership cards by the union with its certification application as evidence of majority support. Under this card-check system, a representation vote is not mandatory and the Board is able to certify a union if the union is able to file sufficient membership evidence to demonstrate majority support. If it already has majority support by way of membership evidence, a union will not need to request certification as a remedy for employer misconduct.

[295] This card-check system was also in place at the time Transx Ltd. (46), supra, was decided, but a vote had been ordered because the level of membership evidence filed with its application showed only between 35 and 50 percent support for the union. The union was unable in those circumstances to demonstrate majority support by way of membership evidence, claiming that this was due to the chill created by employer misconduct. The Board was thus not able to certify on the basis of the cards and was mandated to order a representation vote. In those circumstances, the Board had to assess the effect and impact of the employer’s illegal conduct on employee wishes and whether the results of the vote would reflect their true wishes. It found that the vote would not do so in those circumstances.

[296] For a brief period, between 2015 and 2017, the Code was amended so as to implement a mandatory representation vote system of certification. Under this system, the Board could not certify the union on the basis of majority support demonstrated by the membership cards filed and was required by legislation to hold a representation vote to establish (or confirm) majority support for the applicant union. A vote would be triggered where the membership evidence filed with the application showed over 40 percent support for the union. With this system in place, the Board could more often find itself in a position where it is called upon to ascertain whether the results of a vote, held in the face of employer misconduct, would reflect the true wishes of employees.

[297] It was during this brief period of legislated mandatory votes that the present application for certification was filed. Despite the fact that the legislation has since been amended and the Board again employs the card-check system of certification, the present application for certification and related unfair labour practice complaint are governed by the provisions of the Code then in place, including the mandatory representation vote system of certification.

[298] It is with all of these principles in mind that the Board was asked in this case to consider invoking section 99.1 to issue a remedial certification as a remedy for the employer’s unfair labour practices.

[299] In the present case, the evidence established—and the Board has already found—that the employer was in breach of section 94 of the Code. The Board found that the employer violated section 94(3)(a)(i) when it terminated the employment of the three main union in-house organizers in succession during the union’s organizing drive and that such terminations were motivated by anti-union animus.

[300] From the evidence presented, the Board was able to infer that the employer was aware of the union activity before the application for certification was filed and was aware of who the union organizers were. A pattern then developed whereby the main inside organizer was terminated and, as another employee took his place, then the new inside organizer was terminated. The three terminations took place during the organizing drive, with the final termination occurring on the same day the certification application was filed. They all took place within a very short time frame of approximately one week. It was evident to the Board that the inside organizers were targeted by the employer as part of a strategy to intimidate employees and send a message that employees connected to union activity would be faced with job loss or other severe consequence.

[301] It is notable that in the present case, the workplace was small, and the proposed bargaining unit was composed of only 15 or so employees. With the termination of the three main organizers within such a small workforce, in such a short period of time and during the brief period during which the organizing took place, the likely impact of these happenings on the remaining employees could only be significant. The Board was satisfied that such a combination of factors and actions on the part of the employer created a climate of fear amongst the remaining employees and had a significant chilling effect on the willingness of employees to demonstrate union support in the upcoming vote.

[302] Again, the situation prevailing at that time was a certification system of mandatory representation vote. Therefore, despite the level of support demonstrated by the membership cards filed with the certification application, a representation vote was still required to be held. The evidence established that the employees would be attending the vote with the knowledge that if they supported the union, they might suffer the same fate as the union organizers and lose their jobs or otherwise suffer adverse terms and conditions of employment. In these circumstances, the Board concluded that the results of the vote that had been ordered on February 22, 2017, would not likely reflect the true wishes of the employees.

[303] Finally, the Board was also satisfied on the facts of this case and the sufficiency of the membership evidence filed with the Board in support of its certification application that but for the actions of the employer, the union could reasonably have been expected to have had the support of a majority of the employees in the unit. The conditions for warranting the exercise of the Board’s discretion pursuant to section 99.1 of the Code, to certify a union without the evidence of majority support by the method mandated by the certification process contained in the Code at the relevant time, have been met in the circumstances of this case.

[304] As the Board stated in Transx Ltd. (46), supra, it would prefer that certification be based on the exercise of free choice of employees. However, where the actions of the employer, as in this case, have seriously compromised or interfered with the free choice of the employees by its violations of the Code, the Board will certify the union, despite a lack of evidence of majority support, where it is reasonable to expect that the union would otherwise have had majority support.

 

[305] On the basis of all of the above, the Board ordered, pursuant to section 99.1 of the Code, that the union be certified as the bargaining agent for the unit sought.

[306] This is a unanimous decision of the Board.

 

 

	____________________ Patric F. Whyte Vice-Chairperson
____________________ Richard Brabander Member		____________________ Norman Rivard Member