Ontario Labour Relations Board

[1982] OLRB Rep. January 64

1584-81-U Service Employees' International Union, Local 204, Complainant, v. K-Mart Canada Limited, Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.

APPEARANCES: C. M. Mithcell and A. Ferrens for the complainant; Robert MacDermid and C. A. Cumiskey for the respondent.

DECISION OF THE BOARD; January 20, 1982

1. This is a complaint under section 89 of the Labour Relations Act in which the complaint alleges that the grievor, Mark Lauber, has been dealt with by the respondent contrary to the provisions of sections 3, 64, 66 and 79 of the Act.

2. The complaint arises out of the termination of the grievor's employment with the respondent on September 28, 1981. It is alleged that on or about that date the grievor was dealt with by Shirley Penny contrary to the provisions of section 3, 64, 66 and 79 of the Act in that Mrs. Penny did on her own behalf and on behalf of the respondent, discriminate against the grievor and refuse to continue to employ the grievor contrary to the provisions of the Act.

3. The sections of the Labour Relations Act upon which the complainant relies provide, in part, as follows:

"3. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

65. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act~

79(1) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties-a notice that he does not consider it ad­visable to appoint a conciliation board, as the case may be or

until the right of the trade union to represent the employees has been terminated,

whichever occurs first ………”

Also relevant to this complaint is section 89(5) which provides:

"89(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization."

4. In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:

“……..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."

It is not the function of the Board in cases of this type to decide whether or not the respondent had just cause to refuse to continue to employ the grievor, nor is the Board primarily concerned with the fairness or lack of fairness in the conduct of the respondent. Rather the Board's concern is "whether the conduct of the employer was in any way tainted by anti-union motive" (see Olympia & York Developments Limited, [1978] OLRB Rep. Jan. 68, at paragraph 33). As indicated in Fielding Lumber Company, [1975] OLRB Rep. Sept. 665. at paragraph 10:

“……….in assessing an employer's declared motivation due regard may be had to the peculiarities of the context surrounding an employer's actions. To the extent that peculiarities exist and cannot be reasonably explained an employer may fail, by a process of inferential reasoning, to satisfy the burden placed upon it."

See also Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5, in which the Board stated:

"In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circum­stances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities' (see National Automatic Vending Co. Ltd. case 63 CLLC 16, 278)...

(See also Alpha Laboratories Inc., [1981] OLRB July 823, and Mount Forest Caskets Limited, [1980) OLRB Rep. June 853.) One of the rights protected by the Act is the right of an employee to enlist the aid of a trade union which has been certified as his bargaining agent, in attempting to resolve employment problems that he encounters with his employer, such as scheduling problems (see Bedard Girard Ontario, [1981] OLRB Rep. Oct. 1338.

5. With respect to the alleged breach of the section 79 "statutory freeze", the Board has stated in many cases that the purpose of section 79(1) is to preserve the status quo so as to provide a period of stability free from the disturbance of unilateral change during the sensitive period while the parties are entering into negotiations for a collective agreement. (See, for example, Women's College Hospital, [1981] OLRB Rep. May 597, and Corporation of the Town of Petrolia, [1981] OLRB Rep. March 261.) As stated by the Board in A.E.S. Data Limited, [1979] OLRB Rep. May 368, at paragraph 10:

"The purpose of section 70 [now section 79] is to maintain the prior pattern of the employment relationship, in its entirety, while the parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents unilateral alterations in the status quo which might give one party an unfair advantage either from the point of view of bargaining or of propaganda. The status quo includes not only the existing terms and conditions of employment but also any other established benefits which the employees are accustomed to receive, and which can therefore be considered to be 'privileges.' It is clear that express promises, or a con­sistent pattern of employer conduct, can give rise to such privileges and that they are caught by the statutory freeze. It should be noted, however, that section 70 also freezes the 'rights and privileges' of the employer. The section requires both parties to maintain the existing pattern of their relationship; that is, to conduct their business as before. In Spar Aero­space Products Limited, [1978] OLRB Rep. Sept. 859, the Board dis­cussed the effect of section 70 in the following way:

'The "business as before" approach does not mean that an employer cannot continue to manage its operation. What it does mean is, simply, that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the repre­sentation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be re­garded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit."'

(See also Madame Vanier Children's Services' [1981] OLRB Rep. June 734, and Humber Memorial Hospital, [1979] OLRB Rep. Aug. 764.) As noted in A.E.S. Data Limited, supra, the "statutory freeze" under section 79 applies not only to rates of wages and other terms and conditions of employment but also to "privileges". The scope of that term was described as follows in St. Mary's Hospital, [1979] OLRB Rep. Aug. 795, at paragraph 10:

"Section 70(2) [now section 79(2)] preserves not only the employees' terms and conditions of employment, but also privileges which, by reason of custom and practice, have become a part of the employment relation­ship. The term 'privilege' is extremely broad and extends to all of those benefits which an employee is accustomed to receiving but to which he is not legally entitled, and which cannot, therefore, be considered a 'right.' In order to determine whether a particular benefit, or aspect of the employment relationship, has become a privilege, it is necessary to examine the circumstances of each particular case since privileges can arise from established custom, practice, or policy. The question is an evidentiary one for, by definition, the Board's consideration must be beyond the strictly legal incidents of the relationship ('rights') and include those aspects of the relationship which give rise to 'privileges."'

Although that case dealt with the scope of the term "privileges" under section 79(2), similar considerations apply to that term in the context of section 79(1). (See also Hotel Canadiana, [1980] OLRB Rep. Aug. 1210, and Scarborough Centenary Hospital Association, [1979] OLRB Rep. July 693.) Moreover, a section 79 "privilege" may be personal to a particular employee. For example, in Cloverleqf Hotel, [1981] OLRB Rep. June 630, the Board found that an employer had contravened what is now section 79 by discharging for refusal to work on Saturdays an employee who enjoyed "a personal privilege absolving her from the normal requirement to work Saturday shifts". An employer's action need not be tainted by anti-union animus to constitute a violation of section 79; the effect of that section is to prohibit (during specified intervals) alteration of wages, any other term or condition of employment, or any right, privilege or duty of the employer, the trade union, or the employees, without any reference to the motivation of the parties (see Wellesley Hospital, [1976] OLRB Rep. July 364, at paragraph 9).

6. With those general principles in mind, the Board must now consider the facts of the present case. The grievor is a sixteen year old student who commenced employment with the respondent at its Bayview Village Shopping Centre ("Bayview Village") store on July 8, 1980. That store is open from 10:00 a.m. to 10:00 p.m. from Monday to Friday and from 9:00 a.m. to 10:00 p.m. on Saturdays. The respondent uses full-time and part-time employees to cover those hours. The store employs approximately seventy-five part-time employees who generally work two nights a week and Saturdays, although some work only week-nights and a few work only Saturdays.

7. Prior to July of 1981 the grievor was employed by the respondent as a part-time employee. He worked in the stockroom from 6:00 to 10:00 on Monday and Thursday nights and was also called in to work on the occasional Saturday. During February of 1981 the grievor joined the complainant trade union and "spoke favourably to [his] fellow employees about the union". Although he never asked anyone to sign a card, Mr. Lauber described himself as an "active" supporter of the complainant who attended all of its meetings and "openly admitted" his support to his fellow employees. Over seventy-five percent of the respondent's Bayview Village employees joined the complainant trade union.

8. On February 20, 1981, the complainant applied for certification as bargaining agent for all employees of the respondent at Bayview Village (Board File No. 2494-80-R). That application came on for hearing before another panel of the Board on March 13, 1981. The respondent contended in those proceedings that the bargaining unit should not be confined to its employees at Bayview Village, as requested by the complainant trade union, but rather should include (subject to certain exclusions) all employees of the respondent employed at its K Mart stores in the Municipality of Metropolitan Toronto (including the Bayview Village store and three other stores). In a decision dated March 25, 1981 in that file, the Board outlined the dispute between the parties with respect to the geographic scope of the bargaining unit and ruled that it was prepared to hear "whatever additional evidence the respondent wishes to adduce in support of its position." As indicated in paragraph 2 of the Board's decision dated September 10, 1981 in that matter, a hearing scheduled for April 29, 1981 for the purpose of hearing such additional evidence was subsequently rescheduled to July 2, 1981 on the agreement of the parties. That hearing was subsequently cancelled at the request of counsel for the respondent who advised the Board that his client had instructed him not to call additional evidence and asked the Board to decide the issue of the appropriate geographical scope of the bargaining unit on the basis of the agreed to facts submitted by the parties at the original hearing held on March 13, 1981.

9. On July 2, 1981, Shirley Penny, the Personnel Supervisor at the respondent's Bayview Village store, complied with the grievor's request for a full-time summer position by giving him the position of full-time salesclerk in the stationery department, which position had become open as a result of a resignation. At that time, the grievor signed the following notation that was entered on his personnel card:

"July 2/81, Mark has accepted the full time position of sales clerk in the stationery dept for summer only. At the beginning of Sept. he will go back to part-time in stockroom or wherever needed. He will be on ABC shift schedule with 2 nights 1-10, 3 days 10-6, Tuesday off with every 3rd Sat. off."

10. The grievor anticipated that he would encounter a heavy school workload when he entered grade 12 in September of 1981. It was his evidence that he advised Mrs. Penny towards the end of August that he would like to work only on Saturdays when he returned to part-time employment in the fall, but that "he might be able to work a weeknight". He added that he "would have to wait until September when school started to make sure". Mrs. Penny, on the other hand, testified that the first time the grievor indicated that he wanted to work only on Saturdays was on September 9th or 11th.

11. At the grievor's request, his last day on a full-time schedule was September 2, 1981. He did not work at all from September 3rd to 11th inclusive as a result of his request to have those days off to afford him a brief vacation before he returned to school. Mrs. Penny could have worked the grievor into the stockroom schedule again or into a part-time (Thursday evening) position in the camera department in early September but did not do so because she was waiting to hear from the grievor concerning his availability.

12. By decision dated September 10, 1981, in Board File No. 2492-80-R, the Board, differently constituted, ruled that a single store bargaining unit was the appropriate unit for collective bargaining in that certification application and certified the complainant trade union as bargaining agent for full-time and part-time bargaining units of the respondent's employees at its Bayview Village Shopping Centre store. On September 6, 1981, the complainant served the respondent with notice to bargain in respect of each of those bargaining units.

13. On or about September 11^th the grievor informed Mrs. Penny that "it would be very difficult if not impossible for [him] to work a weeknight" and that he would "much prefer to work Saturdays only". Mrs. Penny advised the grievor at that time that his limited availability "could be a problem" because she did not have any Saturday only schedules available. However, as she had not yet filled the full-time stationery department position that became open when the grievor left that position on September 2nd, Mrs. Penny permitted the grievor to work in the stationery department on Saturday September 12th. The grievor attended at Mrs. Penny's office again on Friday September 18th to see if she had any work for him for Saturdays only. She repeated that she did not have any schedule available for Saturdays only. However, she permitted him to work in the stationery department again the next day as she had not yet filled the full-time position in that department.

14. Between September 2nd and 24th, Mrs. Penny was actively looking for someone to fill the full-time vacancy in the stationery department. She interviewed several employees from another store that was about to close and was led to believe that one of those employees would be starting work in the Bayview Village stationery department on September 24th. However, on September 23rd Mrs. Penny discovered that the employee in question was not available. Meanwhile, Mrs. Penny had received a telephone call from a former employee named Sharon Brewster who had worked for the respondent at Bayview Village during the previous summer. When Mrs. Penny discovered on September 23rd that the employee from the other store was not available to fill the full-time position in the stationery department, she telephoned Mrs. Brewster and arranged for her to assume that position effective September 28th.

15. Mrs. Penny next saw the grievor on September 25th when he again came in to ask her if she had a schedule for him for Saturdays only. She told him that she still did not have such a schedule but that she could use him in the stationery department on Saturday September 26th as her new full-time stationery department employee would not be starting until the 28th. She also made it clear to him that once the new full-time employee commenced work, she would not require his services in the stationery department on Saturdays and that she had no Saturday only schedule available. The grievor, who was rather upset about Mrs. Penny's failure to provide him with a Saturdays only schedule, "talked to a couple of employees in the store" about Mrs. Penny giving him what he described as "a squeeze play", by "making no effort to find [him] a job" and "hoping that [he] would go away". The grievor was subsequently advised that one of those employees had contacted Alan Ferrens, an official of the complainant who had assisted in organizing the respondent's Bayview Village store. The grievor was also informed that Mr. Ferrens had been in touch with the respondent concerning the grievor's scheduling difficulty.

16. The Manager of the respondent's Bayview Village store at the time of the events in question was Donald Smallwood. Mr. Smallwood testified (during cross-examination) that he was transferred on two days' notice in February of 1981 from the respondent's store in Stratford to the Bayview Village store "because they had a problem in the [Bayview Village] store — they had union activity there". On Monday September 28, 1981 at approximately 2:00 p.m., Mr. Smallwood received a telephone call from Vice-President CA. Cumiskey. Mr. Cumiskey informed him that the complainant trade union had contacted Robert MacDermid, the respondent's counsel to ascertain why the grievor's "hours were cut off', and that Mr. MacDermid had, in turn, contacted Mr. Cumiskey. (The parties were in agreement that on the morning of September 28th, Mr. Ferrens, acting on information received not directly from the grievor but rather indirectly, telephoned Mr. MacDermid with respect to the grievor's problem with his hours. Mr. MacDermid subsequently contacted Mr. Cumiskey who, in turn, telephoned Mr. Smallwood.) After reviewing with Mrs. Penny the grievor's employment history, Mr. Smallwood telephoned Mr. Cumiskey and explained the situation. It was Mr. Smallwood's evidence that Mr. Cumiskey did not give him any instructions concerning "what had to be done with the grievor".

17. Later that afternoon the grievor attended at the store and spoke again with the two employees with whom he had previously discussed the difficulties that he was encountering in attempting to obtain a Saturdays only schedule. After informing him that one of them had contacted Mr. Ferrens who had in turn contacted the respondent concerning his problem, those employees told the grievor that they (the two employees) were of the opinion that he should get work because he had been working at the store for a long time. They also advised him to go to Mrs. Penny's office and ask for work. They suggested that if Mrs. Penny did not give him work, he should tell her that he would be coming in on Saturday to work and if she did not like it she could speak to the union about it. In accordance with their advice, the grievor met with Mrs. Penny at approximately 4:30 p.m. There is come conflict in the evidence as to whether the grievor asked Mrs. Penny if she had any "Saturdays only" work for him (as Mrs. Penny stated in ner evidence) or if she had "any work" for him (as the grievor testified). Whatever the grievor's actual words may have been, the Board is satisfied that Mrs. Penny interpreted the grievor's words as a request for a Saturdays only schedule. When Mrs. Penny replied that she did not have a schedule for him, the grievor became upset because he was of the opinion that she "was trying to give [him] a squeeze play because [he] had been a member of the union and had been standing up to her". He told her that he knew of a woman who, after taking the summer off to be with her children, had not been permitted to return to work at the store because she was not willing to work every Saturday and that he was upset because it appeared to him that Mrs. Penny had Saturday hours for people who did not want them but no Saturday hours for people who did. (Apparently the individual in question had worked in the "ladies wear" department for a number of years, an area in which the grievor had no expertise or experience apart from having "swept the floor in there on a Saturday".) The grievor also told Mrs. Penny that he felt that there was something illegal about the fact that he was 'lust being pushed out the door like this". Mrs. Penny responded that she had been in the business for ten years and knew what was legal and what was not. It was the grievor's evidence that he then stated, "I was told to tell you that I'm coming in on Saturday to work and if you don't like it you can call the union." He further testified that Mrs. Penny replied, "So you'll talk to the union will you?" to which he replied, "Yes", and left the office.

18. Mrs. Penny's evidence concerning what was said at that meeting differed somewhat from that of the grievor. According to her, the grievor told her: "I'm coming in to work on Saturday and you'd had better have some hours for me or I'll call the union", to which she replied that he could call whomever he wanted. She could not recall saying, "So you'll take it to the union will you?"

19. It is unnecessary for the Board to resolve this conflict in the evidence. Whatever the precise words spoken may have been, it is clear that the grievor's statement that he was coming in to work on Saturday, spoken in conjunction with a reference to the union, made Mrs. Penny very angry. She went directly to Mr. Smallwood's office and told him what had transpired. Mr. Smallwood told her that they should terminate the grievor immediately "because of his attitude" and "because the store did not have a schedule for Saturdays only".

20. Mrs. Penny then went to payroll to have the grievor's vacation pay cheque prepared and had the grievor paged. She then prepared and signed a notice of termination of the grievor's employment in which the only reason for termination specified was his "availability being restricted to Saturdays only". That document, which gave the grievor two weeks' notice of termination by making the termination of his services effective October 13, 1981, was also signed by Mr. Smallwood before it was given to the grievor by Mrs. Penny in her office about ten minutes after her intial meeting with the grievor that afternoon.

21. On September 28, 1981, Mrs. Penny also noted the grievor's termination on his personnel card. As in the case of the notice of termination, the only reason specified on his personnel card for the discontinuance of his employment was: "can't work other than Sats. No Sat only jobs open." However, it was Mrs. Penny's evidence that the grievor was terminated "because of his attitude and because he was only available on Saturdays". She was unable to provide any credible explanation for her failure to specify on the notice of termination and the personnel card that the grievor's "attitude" was one of the reasons for his discharge. The significance of the events that occurred on September 28th in determining the respondent's true motivation for the discharge of the grievor is clearly demonstrated by the following testimony by Mr. Smallwood (in response to a question by Board Member Wightman): "If Mr. Lauber had not come in on that Monday (September 28th), I don't think that he would have been terminated on that Monday. It was what he said on Monday. .

22. The respondent's witnesses gave contradictory evidence concerning when the decision to terminate the grievor was made. It was Mrs. Penny's evidence that during their discussion at approximately 2:00 p.m. on September 28th (following Mr. MacDermid's call) Mr. Smallwood suggested that they should terminate the grievor if they did not have hours for him. She further testified that she told Mr. Smallwood at that time that she agreed. Mr. Smallwood, who was excluded from the hearing room while Mrs. Penny testified, told the Board that the decision to terminate the grievor was not made before 4:30 that afternoon. There was also some inconsistency within Mr. Smallwood's evidence itself. During examination in chief Mr. Smallwood testified that although he told Mrs. Penny at approximately 2:30 p.m. on September 28th that they had to "make a decision" concerning the grievor since he "was on no schedule whatever as of September 2nd", no decision was made at that time. However, in cross-examination after being confronted with the consistency between his evidence and that of Mrs. Penny on this point, he testified that at approximately 2:30 p.m. that day, he and Mrs. Penny discussed that they "would have to terminate Mr. Lauber" but that "no time was put on it" until later that afternoon. However, he also told the Board in cross-examination: "Mrs. Penny and I talked over at 2:30 what we were going to do with Mr. Lauber. It was mentioned that we would have to do something with Mr. Lauber."

23. Only three of the respondent's part-time employees at Bayview Village have a Saturdays only schedule. One of them is a relatively long service part-time employee who advised Mrs. Penny in August of 1981 that he would be "going to Ryerson" in the fall and requested a Saturdays only position. He was given a Saturdays only part-time position that Mrs. Penny had open at that time in the pet and patio department. In August of 1981 a second long term part-time employee who was about to enter college requested and was granted a Saturdays only part-time position as a cashier. The third person with a Saturdays only schedule is a young lady who was hired as a summer student in July of 1981 to work on the checkouts as a cashier. During the last week of August or the first week of September she requested Saturday work and was offered a schedule that was available at that time for a part-time cashier "to work four hours on Saturday morning and afternoon". Although we do not doubt that the grievor honestly believed that Mrs. Penny should have been aware prior to September of his desire for Saturdays only work, having regard to all of the evidence the Board finds that Mrs. Penny was not in fact aware of such desire on his part until September 11th, at which time no Saturdays only schedule was available. Accordingly, the respondent did not contravene the Act by giving those three Saturdays only schedules to employees other than the grievor since the respondent was not aware of the grievor's desire for such a schedule at the time that they were given those schedules.

24. Although the grievor testified that he would have "considered" working a weeknight if an offer of such work had been made to him, having regard to all of the evidence the Board is satisfied that through his various conversations with Mrs. Penny in September, the grievor left her with the distinct impression that he was only available for work on Saturdays. Indeed, the grievor's testimony during cross-examination indicates that he did not offer to work during the week because he was "quite sure that Saturday positions existed". Accordingly, the Board does not find the failure of the respondent to offer the grievor a schedule involving weeknight work to be a contravention of the Act in the circumstances of this case.

25. In their evidence Mrs. Penny and Mr. Smallwood attempted to attach considerable importance to the fact that unlike the respondent's other part-time employees, the grievor did not have a schedule of work. However, the fact that the grievor continued to be employed by the respondent from September 2nd to September 28th without such a schedule clearly indicates that the lack of a schedule of work would not inevitably lead to a termination of employment. Moreover, Mr. Smallwood himself stated at one point in his evidence that since the grievor was not on a schedule, there was no urgency to terminate him. Until Mrs. Penny became aware on September 28th that the complainant trade union had become involved in the grievor's pursuit of Saturdays only work, she appears to have been content to permit the grievor to remain a part-time employee despite his lack of a schedule. Moreover, her failure to give the grievor notice of termination on September 25th even though she "still did not have a Saturdays only schedule open" at that time provides a further indication that she was willing to retain him as a part-time employee who would be given Saturday work if and when it became available.

26. It is evident from Mrs. Penny's testimony that as late as September 25, 1981, she was not contemplating the termination of the grievor's employment. In response to counsel for the complainant's question, "How was it left on the 25th?", Mrs. Penny testified: "I had nothing available for [the grievor]. I assumed that the next move was up to him." She also suggested that she expected that the grievor would "let [her] know if he had other nights available."

27. Apart from the telephone call received by Mr. Smallwood from Mr. Cumiskey as a result of a contact made with the respondent's counsel by an organizer of the complainant in relation to the difficulties that the grievor was experiencing in obtaining hours, and the grievor's statement to Mrs. Penny that he was coming in to work on Saturday, spoken in conjunction with a reference to the union, nothing had changed with respect to the grievor s work situation between September 25th and September 28th. Mrs. Penny was fully aware on September 25th that she had no Saturdays only schedule for the grievor. Thus, if that was the true reason for the grievor's termination, as specified by Mrs. Penny on his notice of termination and on his employment record, it is difficult to understand why the grievor was not given two weeks' notice of termination on September 25th rather than on September 28th.

28. During cross-examination Mrs. Penny denied that she decided to terminate the grievor "all of a sudden" after concluding on September 25th that "the union people had called Mr. MacDermid to explain about Mr. Lauber not getting Saturday hours". She testified that the grievor's "restricted availability to Saturdays only was discussed between Mr. Smallwood and [herself] after September 11th". She further testified that on September 25th before she spoke with the grievor she discussed with Mr. Smallwood what would be done with the grievor but "nothing definite" was decided. Mr. Smallwood, on the other hand, had no recollection whatever of that discussion.

29. Having regard to all of the evidence and the submissions of the parties, the Board is not satisfied on the balance of probabilities that the reasons for the termination of the grievor were not tainted by any anti-union motivation. In particular, we do not believe that the fact that the complainant attempted to assist the grievor with the scheduling difficulty that he was encountering with the respondent, and the fact that the grievor referred to the union in support of his rather militant stance with respect to Saturday work during his first meeting with Mrs. Penny on September 28th, had nothing to do with his discharge. Indeed, Mrs. Penny herself stated during cross-examination that it was because of the grievor's "attitude" that she and Mr. Smallwood decided to terminate his employment on September 28th and "not keep him hanging in the wings". However, she neglected to make any reference to that "attitude" on the grievor's notice of termination and on his personnel card. Under the circumstances, it is reasonable to infer that the reason for this omission was that the grievor's apparent willingness to resort to the complainant for assistance with his scheduling problem was at least part of the "attitude" which Mrs. Penny and Mr. Smallwood found to be unacceptable. Further support for this inference is provided by our finding that Mrs. Penny was less than candid with the Board when, in response to the question put to her by counsel for the complainant, "You weren't very happy that [the grievor] would go to the union?", she stated, "Well I don't know anything about that. I don't recall if I was pleased or unpleased." Having regard to all of the circumstances, the Board concludes that if Mr. Smallwood had not received Mr. Cumiskey's telephone call on September 28th by which he was made aware of the union's involvement in the matter and if the grievor had not referred to the union in support of his increasingly militant stance with respect to Saturday work, the grievor would have been permitted for an indeterminate period of time to remain an employee of the respondent awaiting the availability of Saturday work or a change in his personal circumstances that would permit him to be scheduled for work at other times.

30. Counsel for the respondent contended that it would be senseless for the respondent to discharge an employee for anti-union reasons after the union was certified. However, as submitted by counsel for the complainant, the discharge of a known union supporter could well be calculated to have a demoralizing and chilling effect on a bargaining unit just as collective bargaining was about to commence. Moreover, the precipitate act of discharging the grievor within minutes after his reference to the union in support of his stance with respect to Saturday work may well reflect not a calculated scheme to impair the complainant's bargaining rights, but rather merely an ill-advised impulsive reaction by Mrs. Penny and Mr. Smallwood to the unfamiliar "attitude" of an employee who dared to exercise his right under the Act to enlist the aid of his bargaining agent with respect to a problem concerning his employment.

31. For the foregoing reasons, it is our conclusion that the termination of the grievor was tainted by anti-union motivation and that the respondent breached section 66 of the Act by refusing to continue to employ the grievor because he was a member of the complainant trade union or was exercising his right under the Act to enlist the aid of the complainant trade union in attempting to resolve a problem concerning his employment.

32. We further find that by permitting the grievor to work the Saturday hours available on September 12, 19 and 26, the respondent granted the grievor a personal privilege to work such Saturday hours as the respondent had available from time to time at its Bayview Village store in a position for which he was qualified. That personal privilege was a "privilege" within the meaning of section 79 of the Labour Relations Act. We further find that in altering that privilege without the consent of the complainant by terminating the grievor's employment on September 28, 1981, the respondent contravened section 79(1) of the Act, since its action occurred within the period during which such conduct is prohibited by that section.

33. The Board therefore orders:

(1) that Mark Lauber be reinstated by the respondent as a part-time employee at its Bayview Village Shopping Centre store;

(2) that Mark Lauber be fully compensated by the respondent for the lost wages and benefits sustained through the respondent's viola­tions of the Act;

(3) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Practice Note 13, dated September 8, 1980 (published in [1980] OLRB Rep. Sept.);

(4) that, subject to section 79(1) of the Act, Mark Lauber be permitted by the respondent to work such Saturday hours as the respondent has available from time to time at its Bayview Village Shopping Centre store in a position for which he is qualified, and such other hours as may from time to time be mutually agreed upon by Mark Lauber and the respondent; and

(5) that the respondent post copies of the attached notice marked "Appendix", after being duly signed by the respondent's repre­sentative, in conspicuous places on its premises at its Bayview Village Shopping Centre store where it is likely to come to the attention of the employees and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.

34. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE UNION PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY REFUSING TO CONTINUE TO EMPLOY MARK LAUBER AND BY ALTERING WITHOUT THE CONSENT OF THE UNION MR. LAUBER'S PRIVILEGE TO WORK SUCH SATURDAY HOIJRS AS WE HAVE AVAILABLE FROM TIME TO TIME AT THIS STORE IN A POSITION FOR WHICH MR. LAUBER IS QUALIFIED.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES,

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION,

To ACT TOGETHER FOR COLLECTIVE BARGAINING,

To ENLIST THE AID OF A TRADE UNION THAT HAS BEEN CERTIFIED AS THEIR BARGAINING AGENT.

IN ATTEMPTING TO RESOLVE EMPLOYMENT PROBLEMS THAT THEY ENCOUNTER WITH THEIR EMPLOYER.

To REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT REFUSE TO CONTINUE TO EMPLOY OR OTHERWISE DIS­CRIMINATE AGAINST ANY EMPLOYEE BECAUSE HE OR SHE HAS JOINED THE SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 2O4, OR BECAUSE HE OR SHE IS EXERCISING ANY OTHER RIGHTS UNDER THE LABOUR RELATIONS ACT.

WE WILL OFFER TO REINSTATE MARK LAUBER AS A PART—TIME EMPLOYEE AT THIS STORE.

WE WILL COMPENSATE MARK LAUBER FOR ANY WAGES AND BENEFITS THAT HE HAS LOST AS A RESULT OF OUR REFUSAL TO CONTINUE TO EMPLOY HIM, PLUS INTEREST,

WE WILL PERMIT MARK LAUBER TO WORK SUCH SATURDAY HOURS AS WE HAVE AVAILABLE FROM TIME TO TIME AT THIS STORE IN A POSITION FOR WHICH HE IS QUALIFIED, AND SUCH OTHER HOURS AS MAY FROM TIME TO TIME BE AGREED UPON BY MR. LAUBER AND OURSELVES.

K-MART CANADA LIMITED

PER: (AUTHORIZED REPRESENTATIVE)

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.

DATED this 29TH day of JANUARY 1982