United Food & Commercial Workers International Union, Local Union 175 v. Valdi Inc., 1980 CanLII 884

[1980] OLRB Rep. August 1254

0404-80-U United Food & Commercial Workers International Union, Local Union 175, Complainant v. Valdi Inc. (trading as Valdi Discount Foods), Respondent.

BEFORE: George W. Adams, Chairman and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Douglas J. Wray and Frank G. Kelly for the complainant; and B. W. Adams, F. Dragan, and K. Walker for the respondent.

DECISION OF GEORGE W. ADAMS AND W. F, RUTHERFORD; August 25, 1980

1. This is a complaint filed by the United Food & Commercial Workers International Union, Local 175 (hereinafter referred to as "Local 175") against Valdi Inc. (trading as Valdi Discount Foods and hereinafter referred to as "the employer") on behalf of the grievor, Valerie Henry. The complaint had also been brought on behalf of a Carol Etserig but was amended at the outset of the hearing to delete her name.

2. The complaint alleges that the grievor, an employee of the respondent, was dismissed in the course of her duties as union steward and because she was carrying out her proper role in this respect, contrary to the provisions of The Labour Relations Act. At the time of her dismissal a collective agreement was in effect between the employer and Local 175 and, therefore, an initial question pertained as to whether this Board should apply its policy of deferral to grievance arbitration. The panel ruled at the outset of the hearing that it would not defer and our reasons for so ruling will follow a recitation of the facts material to this preliminary issue.

3. Over the previous year Local 175 brought three successful applications for certification in respect of part-time employees affecting stores of the employer located in Metropolitan Toronto, St. Catharines and Hamilton, Ontario. Following the issuance of certificates in these applications, the employer and Local 175 entered into collective bargaining. Bargaining culminated, on February 11, 1980, with a collective agreement recognizing Local 175 as the sole and exclusive bargaining agency for all employees of the employer in its retail food stores in the Province of Ontario regularly employed for not more than twenty-four hours per week and students employed in off-school hours and during school vacation periods. Province-wide recognition is not the usual hallmark of an employer bent on violating the collective bargaining rights of employees. However, the dismissal of the grievor on April 14, 1980 occurred within a few months of the execution of this first collective agreement between the parties and is alleged by Local 175 to have been based on the grievor's conduct as a union steward. Moreover, there is no dispute between the parties that the grievor had not served out the probationary employee period provided for under the collective agreement at the time of her dismissal. It was, therefore, the combination of these factors that caused us to hear the complaint and not to defer to grievance arbitration. The importance of this decision in the light of the Board's previous policy on deferral to arbitration requires some greater explanation.

DEFERRAL TO ARBITRATION

4. The issue of whether or not the Board should defer to grievance arbitration arises when an alternative remedy exists under a collective agreement which is available to the grievor or complainant. Although the complainant has chosen to seek its remedy before the Ontario Labour Relations Board, the Board has a discretion under section 79 to refuse to inquire into a complaint and the existence of an equivalent remedy under a collective agreement has, in the past, been a basis on which the Board's discretion has been exercised. In other words, the Board is not obligated to inquire into every complaint brought under section 79 and its refusal to so inquire cannot, therefore, be characterized as an improper refusal to exercise its jurisdiction. See Regina v. Ontario Labour Relations Board ex parte T. R. W. Electric Components Ltd. (1969), 1969 CanLII 233 (ON HCJ), 9 D.L.R. (3d) 669. On the other hand, it is the Ontario Labour Relations Board that is charged with the responsibility for administering The Labour Relations Act and the important rights it confers on employers and employees. This responsibility is a public duty and a policy of deferral to a more private process where the adjudicators are paid and selected by the parties to a collective bargaining agreement must find its justification within the four corners of The Labour Relations Act to be consistent with that public interest. To many, this justification is not readily apparent. See Bilkin, Are Arbitrators Qualified to Decide Unfair Labor Practice Cases? (1973), 24 Lab. L. J. 818; Simon-Rose, Deferral Under Collyer by the NLRB of Section 8(a)(3) Cases(1976), 27 Lab. L. J. 201; Newman, NLRB Deferral to Arbitration in Unfair Labor Practices(1973), 26 N.Y.U. Conf. on Lab. 37; and Comment, Deferral to Labor Arbitration (1975), 27 Hastings L. J. 403. Why, it can be asked, should the Board ever defer to a private arbitration where a question concerning the application of The Labour Relations Act arises? Arbitrators are expert on the language of collective agreements and do not, as a group, have the expertise in labour board statutory issues that the Board has necessarily acquired through a long, intimate and specialized experience with its statute. The involvement of arbitrators in statutory issues may well result in a lack of uniformity over the meaning of important provisions of The Labour Relations Act or encourage direct judicial construction of an extrinsic statute on an application for judicial review. See McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] 1 S.C.R. 517. In contrast, the Ontario Labour Relations Board is an ongoing administrative agency whose jurisdiction is provided for in the context of a privative clause. It, therefore, is able to achieve a uniform interpretation of the statutory provisions it considers. Indeed, the Board's experience in such matters provides the very justification for the statute's privative clause. There is also the possibility that the deferral of tough statutory questions to grievance arbitration will encourage lengthy, costly, complicated and legalistic hearings in that forum. This result would undermine the very features of grievance arbitration that underlie the policy of The Labour Relations Act requiring its insertion in every collective bargaining agreement. In fact, today, in contrast to Ontario Labour Relations Board proceedings, there is considerable doubt that grievance arbitration is sufficiently expeditious and inexpensive. Finally, there may be important procedural and remedial differences between the Ontario Labour Relations Board and grievance arbitration in any particular case and, where this may be the case, a deferral to grievance arbitration could deprive a complainant of important statutory rights. For example, if a matter did not involve discipline or discharge, a complainant would not have the benefit in grievance arbitration of the reverse legal onus provided for under section 79 of The Labour Relations Act nor would he have access to the Board's expansive remedial powers provided for by this same section. Surely these factors are relevant to any decision by this Board to defer to another forum. And, it is against these considerations that some might ask the more fundamental question of what business does the Ontario Labour Relations Board have in the "subcontracting'' of any public authority to private tribunals?

5. The answer to this question depends upon the fact that the statute creating the Labour Relations Board is the same statute that requires grievance arbitration of all disputes over the interpretation, application and administration of a collective agreement. On a review of The Labour Relations Act, it is difficult to conclude that grievance arbitration is simply a private process and that it is any less important than the Ontario Labour Relations Board in fostering industrial peace and facilitating co-operation between employees and employers. See Weiler, Reconcilable Differences, New Directions in Canadian Labour Law, (1980), chapter 3. Viewed in this light, a policy aimed at integrating their responsibilities and dealing with concurrent jurisdiction problems is not as troublesome as it is in those situations where grievance arbitration shoulders a responsibility under a different or extrinsic statute. For example, in the latter situation the United States Supreme Court has said there should be a trial de novo under Title VII of the Civil Rights Act of 1964 even though the precise issue of racial discrimination has been submitted to final and binding grievance arbitration. See Alexander v. Gardiner-Denver (1974), 415 U.S. 36. But see also the NLRB's distinction in Electronic Reproduction Service Corp. (1974), 87 LRRM 1211 at 1218. Some perspective can be gained on the issue by looking at it from grievance arbitration's viewpoint and asking whether the express statutory policy of encouraging the practice and procedure of collective bargaining would be effectuated if this Board was to police all collective agreements to decide if disputes over the meaning of these documents also constituted a violation of The Labour Relations Act? We think not. Moreover, the complete absence of a deferral doctrine means that parties would face the prospect of incurring the expenditure of time, money and their patience in two proceedings — a prospect unlikely to contribute to a healthy collective bargaining relationship. In addition, there is no longer any doubt that labour arbitrators have the jurisdiction and duty to consider public statutes that bear on the questions brought before them (unless the statute specifically provides otherwise) and there is considerable evidence that the arbitrators active in Ontario are not strangers to the provisions of The Labour Relations Act and the underlying policies. See McLeod v. Egan, supra; and, for example, arbitration cases considering whether a collective agreement exists in light of the provisions of The Labour Relations Act. Automatic Screw Machine Co., Automotive Hardware Ltd. (1970), 1970 CanLII 1634 (ON LA), 21 L.A.C. 255 (Shine); Loblaw Groceterias Co. Ltd. (1972), 1972 CanLII 1980 (ON LA), 24 L.A.C. 369 (Shime). But see Canada Labour Code R.S.C. 1970 c. L-l as amended, s. 54. Grievance arbitration is an institution centered on achieving industrial self-employment and has played a vital role in reducing industrial strife. See Arthurs, "Developing Industrial Citizenship: A Challenge for Canada's Second Century" (1967), 45 Can. Bar Rev. 786; Cox, "Reflections on Labor Arbitration" (1959), 72 Harv. L. Rev. 1482; Adams, "Grievance Arbitration and Judicial Review in North America" (1971), 9 Osgoode Hall L. J. 443; Weiler, "The Role of the Labor Arbitrator: Alternate Versions" (1969), 19 U. Tor. L. J. 16. Moreover, recent legislative change has sought to insure that arbitration remains a relatively inexpensive and expeditious process and the courts now evidence a willingness to defer to arbitral decisions save in the most exceptional circumstances. See The Labour Relations Amendment Act, 1979, S.O. 1979, c. 32. And see generally: Douglas Aircraft Co. of Canada Ltd. v. McConnell et al. (1979), 1979 CanLII 51 (SCC), 99 D.L.R. (3d) 385 (S.C.C.); Heustis v. New Brunswick Electric Power Commission (1979), 1979 CanLII 26 (SCC), 98 D.L.R. (3d) 622 (S.C.C.); Association of Radio & Television Employees of Canada (CUPE-CLC) v. Canadian Broadcasting Ltd. (1973), 1973 CanLII 182 (SCC), 40 D.L.R. (3d) 1 (S.C.C.); Bell Canada v. Office and Professional Employees International Union, Local 131 (1973), 1973 CanLII 18 (SCC), 37 D.L.R. (3d) 561 (S.C.C.). When deferral is looked at in this light, it becomes less self-evident that a policy of giving full play to a process of dispute resolution manned and administered by the parties is inconsistent with the Board's broad statutory mandate aimed at encouraging the practice and procedure of collective bargaining. This is particularly the case if the Board's mandate is viewed not so much in terms of a proprietary interest in its unfair labour practice jurisdiction, but rather in the realization that the purpose of that jurisdiction is to contribute to labour relations stability and harmony. Accordingly, the arguments for and against a policy of deferral to grievance arbitration rely upon significant but conflicting values and this conflict in values, unsurprisingly — has established a "discretionary balance" on deferral questions. The Board will defer but deferral, either before or after arbitration is in no way automatic.

6. It is interesting that the National Labor Relations Board in the United States along with judicial encouragement has developed a very sophisticated doctrine of deferral to grievance arbitration even though grievance arbitration is only recommended to the parties by statute in that jurisdiction. Grievance arbitration is not required by the National Labor Relations Act and its related statutes, nor is there the requirement of a mandatory no strike —no lock-out pledge in every collective agreement. But notwithstanding the absence of such provisions, the National Labor Relations Board will defer to grievance arbitration procedures both before the constitution of an arbitration hearing (Collyer Insulated Wire, A Gulf and Western Systems Corporation (1971), 192 NLRB 837; 1971 CCH NLRB ¶23,385) and after the issuance of an arbitration award (Spielberg Manufacturing Company (1955), 112 NLRB 1080). In the former situation, the NLRB requires that the parties involved in disputes utilize contractually agreed upon methods of arbitration prior to seeking Board review and the Board retains jurisdiction over the matter:

..... solely for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the [NLRA]. (See (1971), 192 NLRB 837 at 843; (1971), 77 L.R.R.M. 1931 at 1938.)"

In the latter situation, the NLRB will defer to an arbitration award provided (a) that the proceedings be fair and regular in their award; (b) that all parties previously agreed to be bound by the arbitration decision; (c) that the decision of the arbitration panel not be clearly repugnant to the purposes and policies of the NLRA; (d) that the arbitrator or arbitration panel clearly decided the issue on which deferral is sought; and (e) that the issue decided was within the competence of the arbitrator or panel. The last two requirements have arisen out of two recent cases, Banyard v. NLRB (1974), 505 F. (2d) 342 (D.C. Cir) and Stephenson v. NLRB (1977), 550 F. (2d) 325 (9th Cir), and indicate that the deferral doctrine cannot be characterized as analogous to that of an election of forums or an estoppel. The Ban yard and Stephenson cases illustrate that the mere existence of previous arbitration proceedings is insufficient. The parties and the arbitrator must have put their minds to the unfair labour practice aspect of the case and explicitly dealt with it. See Comment— Banyard v. NLRB (1975), 88 Harv. L. Rev. 804; Comment — Stephenson v. NLRB (1977), 11 Loyala of L.A. L. Rev. 199; Nash, "Board Referral to Arbitration and Alexander v. Gardner— Denver: Some Preliminary Observations" (1974), 25 Lab. L. J. 259. More recently see: Suburban Motor Freight Inc. (1980), 247 NLRB No. 2; 103 L.R.R.M. 1113; Servair, Inc. v. NLRB (1979), 102 L.R.R.M. 2705 (9th Cir).

7. It may be that the Board's approach has been somewhat less refined but the American treatment of deferral issues is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited (1954), 54 CLLC ¶ 17,083; John Inglis Co. Ltd. (1953), 53 CLLC ¶17,049; National Showcase Co. Ltd. (1961), 61 CLLC ¶16,185; Heist Industrial Services Ltd. (1963), 63 CLLC ¶ 16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC ¶116, 198 and Collingwood Shipyards, [1967] OLRB Rep. July 376 all approach the deferral doctrine as one that will encourage the practice and procedure of collective bargaining. These cases are also aimed at discouraging dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedures for dispute settlement which they have created. See Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49. But it is also apparent that in those cases the Board acted on the premise that the resolution of the contractual issues was congruent with the resolution of the statutory unfair labour practice issues. See Imperial Tobacco Products (Ont.) Ltd. et al., [1974] OLRB Rep. July 418 at para. 26. This congruence between the contractual dispute and the overlying unfair labour practice complaint is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties. See Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427 at para. 4. However, where key provisions of The Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction. The former situation is reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb. 264 and the latter can be seen in New Gregory House, [1977] OLRB Rep. Sept. 584. Other circumstances in which the Board has been unwilling to defer to grievance arbitration involve cases where arbitration may have been unavailable to the complainant or where relief in that forum could have been inadequate. See Wallace Barnes Company Ltd. (1961), 61 CLLC ¶116,198 and the general discussion in Imperial Tobacco Products (Ontario) Limited, supra. Moreover, where the Board defers to the arbitration process it will nevertheless retain jurisdiction as the NLRB in order to insure (a) that the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and (c) that the outcome of arbitration is neither repugnant to the purposes of the Act nor remedially inadequate. See Imperial Tobacco Products (Ontario) Limited, supra, for a full discussion of these subsidiary principles. We are also of the view similar to positions taken in Banyard and Stephenson, supra, that the Board will not defer or will exercise its retained jurisdiction where the grievance or board of arbitration fails to deal directly and explicitly with the unfair labour practice issues.

8. In light of these principles, what in the instant case caused the Board to refuse to defer to grievance arbitration? The complaint centers on the grievor's union activity and a dismissal but these allegations will not usually, in themselves, be sufficient justification for Board intervention into a collective bargaining relationship or, at least, these matters will not usually constitute a prima facie case for labour board intervention. Most collective agreements provide for the appointment of union stewards and also provide for their activity within the context of the collective agreement. Disputes over the extent and exercise of these contractual rights are not unusual and will not normally rise to the level of a policy concern transcending the particular collective bargaining relationship. (See Douglas Aircraft Co. of Canada Ltd. v. McConnell et al. (1979), 1979 CanLII 51 (SCC), 99 D.L.R. (3d) 385; and Firestone Steel Products of Canada Ltd. (1975), 1975 CanLII 2068 (ON LA), 8 L.A.C. (2d) 164 (Brandt).) Moreover, the general requirement found in most collective agreements that discipline and discharge be effected only for just and sufficient cause will normally provide an adequate remedy if the allegation is made out on the evidence. See Firestone Steel Products of Canada, supra; and Re Stancor Central(1970), 1970 CanLII 1677 (ON LA), 22 L.A.C. 184 (Weiler). Indeed, many collective agreements contain a "no discrimination" provision wherein the employer explicitly promises that there will be no discrimination on the basis of union membership. For example, a disciplinary dispute over union activity within the context of a collective bargaining relationship that has existed for twenty or thirty years would seem to be amendable to resolution by the parties themselves by way of their own dispute resolution procedures. Deferral in such circumstances is more consistent with the practice and procedure of collective bargaining.

9. In the instant case, however, we are confronted with a dispute over union activity involving a probationary employee and this dispute arises under a first collective agreement. These features of the case caused the Board to exercise its unfair labour practice jurisdiction. The fact that the complaint arises in a first agreement context raised the question as to whether a remedy limited to reinstatement (if the allegations were proved) would be sufficient. The OLRB has an expansive remedial jurisdiction and most recently has developed a fairly sophisticated array of remedies including the posting of notices for the benefit of bargaining unit employees who may have been collaterally affected by an unfair labour practice directed at a fellow employee. See Radio Shack, [1979] OLRB Rep. Dec. 1220; Kodiak Crane Corp., Board File 0549-80-U, July 18, 1980, as yet unreported; Mount Forest Caskets Ltd., Board File No. 2117-79-U, June 3, 1980, as yet unreported; G. W. Martin Lumber Ltd., Board File No. 2342-79U, May 29, 1980, as yet unreported; and ABC Day Nursery & Kindergarten Ltd., [1980] OLRB Rep. Apr. 391. But more importantly, the rights of access of probationary employees to grievance arbitration is the subject of considerable debate in labour relations law and this particular employer was not prepared to agree that no objection in this respect would be raised if the complaint was taken to arbitration. A brief review of the provisions of the instant collective agreement in light of recent case law on the access of probationary employees to arbitration underlines the basis to our concern about the efficacy of grievance arbitration in relation to this complaint.

THE PROBATIONARY EMPLOYEE

10. The principal provisions of the collective agreement bearing on this complaint include:

"ARTICLE H- UNION SECURITY

2.03(a) New employees shall make application for membership in the Union at the time of their hiring and shall become and remain members of the Union in good standing as a condition of employment as soon as their probationary period has been served.

ARTICLE IH- MANAGEMENT

3.01 The Union agrees that the Employer has the exclusive right and power to manage its business, to control the direction of the staff including the right to plan, direct and control the operations, hire, suspend or discharge for good and sufficient cause, relieve employees from duty because of lack of work or other legitimate reasons. The right to establish and maintain reasonable rules and regulations covering the operation of the stores a violation of which shall be among the reasons for discharge, is vested in the Employer, provided, however, that the above rights shall be exercised to the provisions of the Grievance Procedure of the Agreement.

ARTICLE IV- DISCIPLINE OR PART-TIME EMPLOYEES

4.01 No part time employee shall be discharged or disciplined without good and sufficient cause.

4.02(a) The Employer agrees that, whenever an interview is held with an employee that becomes part of his record regarding his work or conduct, the store steward will be present as a witness. The employees may request that the store steward leave the meeting.

(b) During the interview, the employee and the store steward will be given an opportunity for consultation.

(c) In the event the steward is not present, the condition will be brought to the attention of the employee. The meeting that becomes part of the employee's record will be postponed until the steward is available.

(d) If the meeting is held without the steward, any conclusions, verbal or written, will be null and void, except when the employee requests the steward to leave.

4.03 The Employer agrees that upon written request to head office management an employee or the Union, at Step 3, may view all documents pertaining to unsatisfactory conduct or work performance contained in the central personnel file when deemed necessary.

ARTICLE V- PROBATIONARY PERIOD

5.01 Upon completion of one hundred seventy five (175) hours of work, or an accumulation of sixteen (16) weeks in which hours have been worked, whichever comes first, employees covered by this Agreement shall be deemed to have served their probationary period and then shall be placed on the seniority list for part-time employees.

ARTICLE VII- NO DISCRIMINA TION

7.01 The Employer agrees that there will be no discrimination on account of race, colour, creed, sex, age or membership in the Union.

ARTICLE IX- SENIORITY RIGHTS

9.0 1(a) For all new part-time employees, there shall be a probationary period as outlined in Article V and during such probationary period, the Employer shall have the right to discharge a probationary employee with or without good and sufficient cause. Such discharge shall not be subject to the terms of the Grievance Procedure. However, if an employee in continued in employment after such period, seniority shall commence from the commencement of such continuous employment.

ARTICLE XVHI- ADJUSTMENT OF GRIEVANCES

18.01 Either the Employer, the Union or any employee has a right to lodge a grievance with respect to any matter arising out of this Agreement or concerning the interpretation, application or alleged violation of this Agreement.

18.02 Any employee believing that he has been unjustly dealt with, or that the provisions of this Agreement have not been complied with, shall have the right to place such grievances in the hands of the Union, for review and adjustment by the Employer if necessary. Such grievances shall be processed as follows:

18.03 In the case of a discharge, a grievance may be filed by an employee who feels he was unjustly dealt with. Such a grievance must be filed within four (4) working days from the date of dismissal, and shall commence at Step 2. In any subsequent disposal of this case during the Grievance Procedure, the Employer may reinstate the employee with full backpay, suspend the employee for a definite period or sustain the discharge, if mutually agreed to by the parties to this Agreement."

11. The immediate problem the grievor would face at arbitration is Article 9.01(a). The employer is given the right to discharge a probationary employee with or without good and sufficient cause and such discharge is not to be subject to the terms of the grievance procedure. Counsel for the employer adverted to these provisions when questioned on the employer's understanding of the grievor's rights at arbitration were we to defer to that process. However, in emphasizing the presence of this contractual provision, we do not wish to be taken as having ignored the fact that substantial arguments exist in favour of the grievor's access to arbitration notwithstanding Article 9.01(a). For example, it might be argued that 9.01(a) cannot protect a dismissal that is contrary to law (i.e. The Labour Relations Act) and that, in any event, the parties could not have indended, by the probationary period, to give the employer the right to dismiss any employee for lawful union activity. See Re Loblaw Groceterias Co. Ltd. and UCRE(1972), 1972 CanLII 1980 (ON LA), 24 L.A.C. 369 (Shine). Alternatively, emphasis might be placed on the impact of The Labour Relations Act, section 37 and, more particularly, section 37(1) and 37(2) which provide:

(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

(2) If a collective agreement does not contain such a provision as is mentioned in subsection 1, it shall be deemed to contain the following provision:

Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of the first party's appointed to an arbitration board. The recipient of the notice shall within five days inform the other party of the name of its appointee to the arbitration board. The two appointees so selected shall, within five days of the appointment of the second of them, appoint a third person who shall be the chairman. If the recipient of the notice fails to appoint an arbitrator, or if the two appointees fail to agree upon a chairman within the time limited, the appointment shall be made by the Minister of Labour for Ontario upon the request of either party. The arbitration board shall hear and determine the difference or allegation and shall issue a decision and the decision is final and binding upon the parties and upon any employee or employer affected by it. The decision of a majority is the decision of the arbitration board, but if there is no majority the decision of the chairman governs.

A number of labour boards have held that clauses which deny the resolution of a difference over the meaning of a collective agreement by way of grievance arbitration are void as contrary to the purpose of section 37(1). See for example: American Motors (Canada) Ltd., [1973] OLRB Rep. April 211 application for judicial review denied in Re American Motors (Canada) Ltd. and Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1285 et al. (1974), 1974 CanLII 710 (ON CA), 46 D.L.R. (3d) 75; 3 OR. (2d) 528 (Ont. C.A.); Cassiar Asbestos Corporation and United Steelworkers of America, Local 6536, 1975 CanLII 2115 (BC LA), [1975] 1 Can LRBR 212; and Canadian Airline Flight Attendants Association, Local No. 13 and Transair Ltd., [1978] 2 Can LRBR 354; prohibition denied (1978), 1978 CanLII 2102 (MB QB), 86 D.L.R. (3d) 85.

12. Unfortunately, the success of any or all of these arguments is not free from doubt. The "not contrary to law argument" has the complication of locating the legal and evidentiary onus. Must the grievor bear the burden of establishing the truth of his allegation and legal proposition on which she relies? There is no doubt on where these onuses lie before the Board. Moreover, what if the grievor's union activity was but one reason of many for the grievor's dismissal? Indeed, what if it played only a small part in the employer's reasoning? A question arises as to whether any arbitrator selected by or imposed upon the parties would unhesitatingly apply "the taint" theory that lies at the basis of the Board's approach to such matters. See Westinghouse Canada Ltd., [1980] OLRB Rep. Apr. 577; Barrie Examiner, [1975] OLRB Rep. Oct. 745; and Fielding Lumber, [1975] OLRB Rep. Sept. 665. The section 37(1) and (2) argument is subject to a raging debate in both arbitral and judicial circles with respect to probationary employees. Speaking very broadly, to date at least two conflicting arbitral views over the interaction of section 37 and probationary employee contract clauses have evolved. One line of cases sees nothing inconsistent with section 37 where the parties agree that the dismissal of a probationary employee shall not be the subject of a grievance or an arbitration. See for example Bell Canada and Communications Union Canada (1977), 1977 CanLII 2947 (ON LA), 16 L.A.C. (2d) 236 (Kates); Westinghouse Canada Ltd. (Palmer, January, 1976, unreported); Catholic Children's Aid Society of Metropolitan Toronto (Brown, March 19, 1976, unreported); Children's Aid Society (O'Shea, September 26, 1977, unreported); City of Toronto (Roberts, November 27, 1978, unreported); Community Services Board of the City of Sault Ste Marie (1979), 1979 CanLII 3942 (ON LA), 21 L.A.C. (2d) 192 (Brent). Another group of cases takes the view that where the parties create a substantive right in the collective agreement, it would be contrary to section 37 to deny the arbitrability of that right by restricting access to the arbitration process. See for example International Waxes Ltd. (1977), 1977 CanLII 2919 (ON LA), 17 L.A.C. (2d) 62 (Schiff); Toronto Star Newspapers Ltd. (1978), 1978 CanLII 3428 (ON LA), 20 L.A.C. (2d) 392 (Prichard); Toronto Hydro-Electric System (Barton, August 1979, unreported). Judicial authority is equally counter-poised. Compare International Waxes Ltd. (1978), 79 CLLC ¶ 4,203 with Toronto Hydro-Electric System (1980), 80 CLLC ¶ 4,034. Just where the instant collective agreement would fit into this debate with its distinctive wording, which might be viewed as reposing a substantive right in the employer to dismiss probationary employees without just cause is a matter of considerable speculation. Against this background of conflicting authority and philosophy, it can hardly be said that the grievor has free access to grievance arbitration and that the policies underlying The Labour Relations Act would be best effected by deferral to that process. Indeed, this Board has recently experienced substantial delay in the resolution of a statutory complaint brought by a probationary employee where it deferred to grievance arbitration. See Phyllis Barr and Somerville Industries Limited File No. 0758-76-U wherein the Board deferred to arbitration only to have the matter return to it a few years later. And see: Re International Chemical Workers Union, Local 817 and Somerville Industries Ltd. (1979), 1979 CanLII 1883 (ON HCJ), 24 O.R. (2d) 167; Phyllis Barr v. Somerville Industries Limited, [1979] OLRB Rep. June 577.

THE COMPLAINT

13. This then brings us to the substance of the grievor's complaint. She is thirty-one years old; has three children; and had recently returned to the work force now that all her children are in school and having successfully combatted cancer. Her employment with the employer was therefore her first job on returning to work and this job commenced on February 26, 1980. She was hired as a cashier stock clerk at $3.25 per hour. She was employed at a new store that was to open March 5, 1980. At no time up to her termination on April 14, 1980 was she spoken to by any representative of the respondent's management about inadequate performance. Indeed, she consistently scored very high marks on price tests regularly administered to all employees. At the time of her dismissal she had worked 156.5 hours and had been scheduled to work another 20.5 hours during the week of April 14, 1980. We also find as a fact that some time shortly before her dismissal by E. T. Dragon, store manager, she had been advised by Dragon that if she "stuck it out to the end of her contract, the union would be going for full-time employment and [she] would get a full-time job".

14. We find as a fact that on the Tuesday before the grievor was terminated she was elected by her fellow employees as their union steward and Dragon was aware of her status in this respect on the date of her firing. The position of union or store steward is provided for by Article 17.01 of the collective agreement and, by Article 4.02, the steward is given an important status in disciplinary interviews.

15. On Saturday, April 12, 1980 the grievor was scheduled to report for work at approximately noon. She, however, called Dragon that morning to advice him that her children had chicken pox and she did not want to expose the babysitter to them. He advised her that she need not come in. However, she came in anyway to "cash-off', i.e. balance her weekly receipts, and to seek permission to switch her days off for the next week with another employee so that she could look after her children. The only person who had the next Monday and Tuesday off was Carol Etserig and Dragon approved the switch. The grievor returned home and did not work on Saturday, April 12, 1980. However, Carol Etserig did work that day and had her employment terminated by Dragon later that afternoon. She telephoned the grievor at home at approximately 6.30 p.m. that evening and requested her to find out why. The grievor therefore telephoned Dragon at his residence. She testified that he told her he could not discuss it then but would get back to her in a couple of days. She further testified that on Monday, April 14, 1980 Dragon telephoned her at home and told her that his reasons for terminating Etserig were none of her business or anyone elses. She said she therefore changed the subject and inquired about her hours for the week now that Etserig was terminated. Dragon said he would investigate and call her back. However, shortly thereafter she called the store and asked Keith Walker, the assistant store manager, whether she should come in on her hours or Etserig's hours. Walker told her to come in on the Wednesday, but then Dragon picked up the telephone. She testified that he told her "it won't work" and that "he had to let her go." She said he told her that they were going to have "personality clashes in the near and distant future" and that she had "extra-curricular activity behind the scene". She told him that if it was the union steward's job that he "could have it" and Dragon said he did not say that. She asked about her marks, her work as cashier, and her floor work and Dragon said all were excellent. She said he told her that there had been no differences "in the past". She testified that subsequently she had conversations with Walker who expressed the opinion that her firing had been a mistake and that he could not believe she had been terminated. Walker was the grievor's immediate supervisor or, at least, she worked more closely with him than with Dragon. Debbie Yandt, a fellow employee, testified that the grievor got along with all employees in the bargaining unit and that in relation to a Betty O'Connor it was her, Debbie Yandt, who had had problems. She also testified that she (Yandt) had made very vociferous complaints to Dragon about apparent favouritism in scheduling hours and that no action had been taken against her.

16. E. T. Dragon testified. He reports to a Harry Ludgns and was assisted in setting up the store at 1337 London Road, Sarnia by Greg Batson and Peter Black. At the opening of the store there were eleven employees on staff and all were cashier stock clerks responsible for all aspects of the store's operation. He said he knew of the grievor's election as union steward and that, indeed, the ballot boxes had been stored in his office. He testified that the store did not maintain formal evaluation reports on employee performance save for the recording of shortages on the cash register. The grievor's performance on the cash register was satisfactory. It was his testimony that he had decided to dismiss Etserig a few weeks before April 12, 1980 and that he and Walker felt that both Etserig and the grievor should be dismissed. However, Walker testified that he was only advised of Dragon's decision to dismiss the grievor on April 14, 1980, the day she was dismissed. It was clear from his cross-examination that he did not share in or agree with Dragon's decision.

17. Etserig's dismissal was not contested by Local 175 and, on the evidence presented by the respondent, would not appear to have been motivated by anti-union animus in any way. Her termination occurred immediately after working out of another employee's float on the cash register. This breach of company policy caused a public disturbance when the other employee complained and the incident was in the wake of a series of previous errors on the cash register. However, there was no indication in the evidence that the grievor's job performance was in any way inadequate or subject to the problem's that plagued Etserig's performance.

18. Attempting to lay a foundation to the grievor's termination, Dragon told the Board that in the first week the store was being set up, Harry Ludgns told him he should dismiss the grievor "because she had a big mouth." He did not advise Dragon why he thought this but said Dragon would have the opportunity to do this over the next short period of time. Ludgns was not called to testify and over the next few weeks the grievor proved herself to be a good employee. We find that it is highly unlikely that Dragon was acting on this observation when he dismissed the grievor in the midst of her union steward duties over Etserig's termination. Had Dragon been seriously following Ludgns' advice we think it unlikely that he would have scheduled her to work past her probationary period during the week of April 14, 1980. Dragon testified that a second incident occurred on March 8, 1980 when Peter Black had an occasion to raise his voice at the grievor, telling her "to get busy" and that "she was not long for this company." Dragon said that Black also told him he should get rid of the grievor. However, the grievor denied the incident; Black was not called to testify; and, on Dragon's own admission, the grievor's subsequent job performance was excellent. Therefore, even if the second incident occurred, there would have been no reason to act on Black's outdated advice and the scheduling of the grievor during the week in question suggests that Dragon had no such preconceived plan. His earlier approval of an exchange in work hours between Etserig and the grievor for the following week is further evidence of this. Dragon also testified that the grievor did not get along with her fellow employees and recalled a conflict he thought she had had with another employee, Betty O'Connor. However, on cross-examination and on the uncontested evidence of the grievor, the incident with Betty O'Connor involved Debbie Yandt and Dragon was aware that the grievor's fellow employees had elected her to represent them as union steward. Moreover, O'Connor was no longer an employee at the store when the grievor was dismissed. The grievor did complain to Dragon about the unfairness in the scheduling of her hours, but she did this privately and would appear to have been just one of a number of employees who voiced concern. Therefore, although Dragon testified that he and the grievor "did not get along", there is no objective evidence to support this assertion and the grievor's relationship with Keith Walker, her more immediate supervisor, was obviously good. Dragon testified that he felt the grievor "was trying to run things" but the only basis to this concern would have been the grievor's proper conduct as union steward in relation to Etserig's termination.

19. A union steward plays an important role in the collective bargaining process in the area of contract administration. Indeed, the instant collective agreement recognizes this fact. Inevitably, the union steward will have to seek information from and question management representatives about their actions or about work conditions. While these duties require diplomacy and tact if they are to be performed effectively, personality conflicts can arise. Such conflict, whether real or perceived, cannot be the basis for discipline unless it is accompanied by clearly improper conduct, i.e. abusive language, threatening, improper ridicule, physical contact. In the instant case, not only is there no hint of improper conduct, there is no objective evidence of a personality conflict between the grievor and Dragon. Union stewards cannot be in fear for their own jobs if they are to pursue effectively the legitimate grievances of fellow employees. A similar point was developed by Professor Brandt in Re Firestone Steel Products (1975) 1975 CanLII 2068 (ON LA), 8 L.A.C. (2d) 164 at 167-8 where he wrote:

"For the purposes of assessing whether or not conduct is insubordination the standard of conduct that the company is entitled to expect should be different when applied to the acts of union committeemen engaged in the legitimate discharge of their duties. For,. . . a committeeman is, while attempting to resolve grievances between employees and company personnel, always functioning on the border line of insubordination. His role is to challenge company decisions, to argue out company decisions and, if in the discharge of that role he is to be exposed to the threat of discipline for insubordination, his ability to carry out his role will be substantially compromised. This is not to say that a committeeman has a carte blanche to ignore at will management instructions and to instruct others not to carry them out. His immunity, if it may be called that, is limited to acts or omissions committed in the discharge of his functions and to acts or omissions which may reasonably be regarded as a legitimate exercise of that function. To put it succinctly, a committeeman is not entitled to punch a foreman in the nose as one of his means of attempting to bring about a settlement of a grievance.

Therefore, it is necessary in the instant case to determine whether or not the grievor was acting as a committeeman throughout the incident and secondly, if so, whether his conduct was, in that context, legitimate."

20. On the facts before the Board, we are not satisfied that the respondent, through Dragon, terminated the grievor for reasons unrelated to her status as a union steward and her inevitable questions of Dragon about the termination of a fellow employee. The fact that Debbie Yandt, the alternate union steward, was not and has not been terminated is immaterial in our view. Indeed, the obvious "chilling effect" of the termination of one union steward would make any additional termination unnecessary and much too obvious. In cases under section 79 of The Labour Relations Act the legal onus of establishing that its actions have not violated the statutory rights of grievors or complainants resides with the respondent employer and no part of an employer's decision can be affected by an anti-union animus. See Fielding Lumber Company Limited [1975] OLRB Rep. Sept. 665 at para. 18; The Barrie Examiner [1975] OLRB Rep. Oct. 745 at para. 17; The Pop Shoppe (Toronto) Limited[1976] OLRB Rep. June 299 at para. 4; and Regina v. Bushnell Communications Ltd. (1975), 2 O.R. (2d) 422; appeal dismissed, (1976) 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 (Ont. C.A.). The following excerpt from The Barrie Examiner, supra, at para. 17 is representative of the burden shouldered by respondents under section 79(4a):

"In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd. [1974] OLRB 450. In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred."

21. In our view, the absence of previous conflict between Dragon and the grievor; the grievor's good relationship with her immediate supervisor, Keith Walker; the grievor's superior job performance; and the fact that her dismissal followed on the heels of her actions as union steward in the Carol Etserig matter, all go against Dragon's assertion that he had simply got up the nerve to implement the previous advice of Messrs. Ludgns and Black. The grievor's proper actions as union steward are not only supported by the collective agreement between the parties but by sections 3,42, 56, 58 and 61 of The Labour Relations Act. The grievor, Local 175 and the other employees in the bargaining unit all have statutory rights to this effect. The grievor has a statutory right to act as she did. Her fellow employees have a statutory right to be so represented. And Local 175 has a statutory right to have employees act as union stewards on its behalf. In our view, these rights are fundamental to effective collective bargaining and contract administration. See J. Harris & Sons Ltd. et al (1960), 60 CLLC ¶ 16,177.

REMEDY

22. This then brings us to the appropriate remedy. It goes almost without saying that the grievor is to be immediately reinstated to her former position and that she is to be compensated for all lost wages and benefits together with interest. We so award. See Hallowell House [1980] OLRB Rep. Jan. 35. But is this sufficient? We think not. In Radio Shack [1979]OLRB Rep. Dec. 1220 the Board recently reviewed its approach to remedies and their central importance to effectuating the policies of and rights conferred under the Act. It emphasized the need to use its experience in the tailoring of remedies to meet the needs of individual cases. In this respect it wrote (at pages 1253-1254):

"Section 79(4) is the section of the Act under which remedies of the kind relevant to this case are made. Its very open-ended wording presents this Board with both the greatest opportunity to fashion carefully tailored effective remedies and the greatest temptation to exceed proper statutory bounds. The Solomonic difficulty in applying the broad powers granted to the Board under this section are apparent from the words used.

'79(4)... where the Board is satisfied that an employer,.., has acted contrary to this Act it shall determine what, if anything, the employer, . . . shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, any one or more of,

(a) an order directing the employer, . . . to cease doing the act or acts complained of;

(b) an order directing the employer,.. . to rectify the act or acts complained of; or

(c) an order.. . to compensate in lieu of hiring or reinstatement for loss of earning or other employment benefits in an amount that may be assessed by the Board against the employer

It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of administrative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, A Touchstone/or Labour Board Remedies(1968), 14 Wayne L. Rev. 1039; Ross, Analysis of Administrative Process Under Tqft-Hartley, [1966] Lab. Rel. Yearbook 299...

23. In the Radio Shack case itself an array of remedies were utilized, many for the first time, in an attempt to redress the pervasive unlawful conduct present in that case. These remedies included damages for breach of the bargaining duty; posting of notices, mailing of notices; trade union access to company bulleting boards, to employee addresses, and to employees on company premises; cease and desist directions; and trade union "equal right of reply" rights at all labour relations meetings convened with bargaining unit employees by the company on its premises and time. New and important remedies were also developed and applied in Westinghouse, [1980] OLRB Rep. Apr. 577, in order to redress the complex impact of unlawful acts involving the relocation of a plant. But it is too easy to characterize these cases as exceptional and to forget about the remedial needs of the "run of the mill" unfair labour practice case, whether it involves an isolated dismissal, a change in working conditions, or some other act which comes nowhere close to the kind and range of conduct dealt with in the Radio Shack and Westinghouse cases. The Board must, however, resist this tendancy. Recently, in Hallo well House, supra, the Board indicated that it would award interest in all cases involving a money order as an additional remedy. The Board has accepted that it should not develop remedies which are primarily aimed at punishment, but the quid pro quo for this restraint must be that all remedies are fully compensatory. Hallo well House dealt with the concept of full compensation in an economic sense.

24. However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with backpay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist for those occasions where he will not. (Indeed, if the experience in the United States indicating that only a small percentage of NLRB reinstated employees have the courage or will to return to work is applicable in Ontario, our reinstatement remedy may be ever less effective than this. See Stephens and Chaney, "A Study of the Reinstatement Remedy Under the National Labor Relations Act" (1974), 25 Lab. L.J. 31. However, one principal difference between the NLRB and the Board is the greater speed with which remedies may be mobilized and finalized under Ontario's Labour Relations A ct. This factor may be an important difference to the effectiveness of our reinstatement orders.) We would add that our concern for remedial effectiveness is not limited to situations where employers are respondents. Trade unions have important obligations under the statute as well and individual employees who are mistreated by them must also be assured of future lawfulness. One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements. This remedy, in the usual form of a posting of a notice for sixty days in a conspicuous location(s) in the workplace, was first developed by the Board in Radio Shack, supra, although its origin in labour law is ancient. See for example: The Falk Corporation (1940), 308 U.S. 453, 5 LRRM 677 at p. 682; Bradford Dyeing Association (1940), 310 U.S. 318,6 LRRM 703 at p.715. In more exceptional cases the posting of a notice will be insufficient and mailing, publishing, and reading of notices may be directed in order to redress the impact of unfair labour practices in question. See Radio Shack, supra, at p. 1270. See also Comment, Labor Remedies (1968), 54 Virginia L. Rev. 38 at p.48. And more generally, Comment, NLRB Remedies — Moving Into The Jet Age (1975), 27 Baylor L. Rev. 292. However, we believe the posting of notices should not be confined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear for job security will be lessened with the realization that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confusion or ill-will created by a situation which has been equitably resolved.

25. In the instant case, and in accord with our observations on the importance of posting notices, we further direct the respondent to cease and desist in the interference with the representation of bargaining unit employees by the trade union and representatives and to post the attached notice at its place of business at 1337 London Road, Sarnia.

ORDER

26. The Board directs the respondent:

(i) to immediately reinstate Valerie Henrie to her position of cashier stock clerk and to compensate her for all lost monies and benefits together with interest thereon;

(ii) to cease and desist in its interference with the representation of bargaining unit employees by the Canadian Food and Allied Workers, Local 175 and its designated representatives;

(iii) to post at its place of business at 1337 London Road, Sarnia, copies of the attached notice "Appendix". Copies of such notice, to be furnished by the Registrar, shall, after being duly signed by an authorized representative of the respondent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive working days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that such notices are not altered, defaced, or covered by any other material. Representatives of the complainant trade union shall have reasonable access to the respondent's premises to insure that the respondent has complied with this directive.

PARTIAL DISSENT OF J. A. RONSON:

1. The majority decision sets forth what amounts to a universal policy concerning the posting of notices. I cannot agree that in every case a notice should be posted.

2. In order for a remedy not to be punitive, it should arise and be granted out of and as a result of evidence before the Board which clearly demonstrates the need for the remedy. There is no evidence of such need in this case, and with such a small group of employees, the information grapevine is very short.

3. In my opinion, the complaint arises because a manager was completely unaware of the rights of a union steward, and the resulting obligations upon the employer arising out of the provisions of the Act. To tar the employer with anti-union animus by ordering a posting, when the evidence discloses no basis for such animus but rather personal differences between the manager and the steward, is both unfair and punitive.

4. If the Board is concerned with the psychological impact of an unfair labour practice complaint on the bargaining relationship, it may well have to consider whether the same impact should be countered when it is obvious that a case is without merit and such fact should have been obvious to the complainant. The effect of tarring an employer with anti-union motives by laying a complaint that is without merit cannot be redressed by simply accepting that the employer can post a copy of the Board's decision on its notice board. Some people, no doubt, would feel that the employer was gloating over its "win".

5. In this case the trade union laid a second complaint regarding the dismissal of a second employee. It was withdrawn at the start of the hearing. The evidence at the hearing was to the effect that the employer had good and valid cause for deciding to terminate. To prevent imbalance, this fact should also be stated in the Board's notice.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

Pursuant to a Decision and Order of the Ontario Labour Relations Board and in rder to effectuate the policies of The Labour Relations Act we hereby notify our employees that:

After a hearing in which both sides had the opportunity to present their evidence, the Ontario Labour Relations Board has found that we violated The Labour Relations Act by discharging Valerie Henrie and has ordered us to post this notice and keep our word about what we say in this notice.

WE WILL NOT discourage membership in or representation by the Canadian Food and Allied Workers, Local 175.

WE WILL deal with union stewards appointed under the collective agreement in a manner consistent with that agreement and the provisions of The Labour Relations Act.

WE WILL offer to reinstate Valerie Henrie to her former position without prejudice to seniority or other employment rights and benefits and we will pay her for monetary losses together with interest thereon arising from her termination.

VALDI INC.

(trading as Valdi Discount Foods)

Per: (Authorized Representative)

Dated: August 25, 1980

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.