No Anti-Union Animus in Firing

First suspended, then terminated, for posting in the lunchroom the names of workers who the employer alleged had been coerced into signing union cards, a worker argued that his termination was tainted by anti-union animus. The employer argued that the termination was for a violation of the company’s “zero tolerance” policy with respect to workplace harassment.
|Canadian Labour Reporter|Last Updated: 02/09/2011

The Board’s Decision: The Employer’s zero tolerance harassment policy was intended to send a clear message to all employees — Union supporters and non-supporters alike — that harassment would not be tolerated. I find that the Employer’s actions were not intended to single out the Union or its supporters, but were instead intended to address workplace harassment issues generally. Like the suspension, I find that [the general manager’s] further investigation and his decision to terminate [the worker] were in no way motivated by a desire to undermine the Union; they were motivated entirely by his desire to ensure the enforcement of a workplace policy that was adopted to address a critical, ongoing issue in the workplace. In summary, neither the direct nor circumstantial evidence in this case, nor the reasonable inferences that can be drawn from that evidence, lead me to conclude that the Employer’s decision to terminate [the worker] was motivated in whole or in part by anti-union animus. In reaching that conclusion, I am mindful both of the fact that I have found … the Employer lacked proper cause to terminate [the worker’s] employment, and of the principle that the absence of proper cause is a factor in determining whether the Employer was motivated by anti-union animus. Although the Employer’s motivation was not tainted by anti-union animus, I find that its decision to terminate [the worker] does not meet the test for proper cause. I am not satisfied the Employer has provided a reasoned explanation which objectively demonstrates a rational connection between [the worker’s] alleged misconduct and the discipline imposed. While the posting of the Notice was proper cause to suspend [the worker], given that he was the perpetrator of the misconduct, given the toxic work environment and given the Employer’s zero tolerance harassment policy, the decision to terminate [the worker] was not rationally connected to [the worker’s] misconduct nor has the Employer advanced a reasoned basis for its decision. I find the Employer terminated [the worker’s] employment without proper cause; however, I find that the decision was in no measure motivated by anti-union animus. I direct the parties to meet with a Board Special Investigating Officer in an effort to reach an agreement regarding an appropriate remedy.