FAQ's Cases - Stewart McKelvey

24employees not selected for lay off. No issue was taken by the Union regarding this listing ofemployees apart from evidence from Mr. Copeland that he was a better “flight machineoperator” than the operator that was kept by the Employer. However, this ignored the fact thatthe other “flight machine operator” was a long term (20 year) employee of the Employer andwas the first criteria adopted by the Employer to determine who should be laid off.[107] Similarly, Mr. Dunbar began his employment on April 11, 2011. While there weresome employees employed after his start date, these employees primarily worked in the binproduction area, or worked on the night shift as well as one truck driver who was replacing along term employee who was then on disability.2011 CanLII 72774 (SK LRB)[108] Without second guessing the Employer’s decisions with respect to the personschosen for lay off, the explanations given by the Employer as to the choice of persons to be laidoff provide an adequate explanation.[109] Overall, the Board is satisfied that the explanation offered by the Employer wasboth credible and coherent and that the Employer demonstrated that it had good and sufficientreason for the lay offs. There was a shortage of orders for the products produced at theEmployer’s facility, particularly grain augers. A decision was made in May of 2011 thatproduction would have to be reduced, which meant lay offs would have to occur. That decisionwas made by Mr. Holodryga and communicated to Ms. Outerbridge. However, that decisionwas delayed until after the Farm Progress Show in the hopes that further orders for grain augerswould be achieved. Also, the Employer did not want to have the workplace disrupted during itsPlant Opening Celebration. It was not until after the decision had been made, that the Unionbegan its organizing drive. That drive coincided with the previously scheduled lay offs.[110] That leaves the second question to be determined, that is, whether or not anyanti-union animus played a part in the decision to lay off these employees, or, in particular, Mr.Copeland, Mr. Dunbar or Mr. Phan.[111] Union counsel also argued that the reverse onus provision in s. 11(1)(e) of theAct required the Employer to prove that there was no anti-union animus in the Employer’sdecision. With respect, we cannot agree. Under s. 11(1(e), the Employer has the onus to showthat its actions were not intended to coerce or intimidate employees from the exercise of their