[1985] OLRB Rep. June 868

2410-83-U United Food and Commercial Workers International Union, Complainant, v. Foodcorp Limited, Respondent #1, v. Swiss Chalet Employers' Association on behalf of its member Viriato Foods Inc., Respondent #2, v. Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union AFL-CIO-CLC, Local 88, Intervener.

BEFORE: Ian C. Springate, Alternate Chairman, and Board Members F. W Murray and B. Lee.

APPEARANCES: S. B. D. Wahl, L. Steinberg and V. Gentile for the complainant; no one for respondent #1; Bruce Pollock, F. Charron and V. Couto for respondent #2; Michael G. Horan and James Whyte for the intervener.

DECISION OF THE BOARD; June 28, 1985

1. The style of cause is amended to show "Swiss Chalet Employers' Association on behalf of its member Viriato Foods Inc." as a second respondent.

2. This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the grievor, Vitalina Teixera, was terminated contrary to the provisions of sections 64, 66 and 70 of the Act. The most relevant provision appears to be section 66(a) which provides as follows:

3. 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.

4. The grievor was terminated in December 1983 while working as a waitress at a Swiss Chalet restaurant in the City of Mississauga. It is common ground that at one time the restaurant was owned by Foodcorp Limited. The complaint as filed named Foodcorp Limited as the only respondent. However, it is the contention of the Swiss Chalet Employers' Association, acting on behalf of Viriato Foods Inc., that at the relevant time Viriato Foods Inc. was the grievor's employer. In this regard, it is contended that Viriato Foods Inc. now owns the restaurant and operates it pursuant to a franchise arrangement between the company and Foodcorp Limited. All parties participating in these proceedings agreed that the complaint should proceed against both Foodcorp Limited and Viriato Foods Inc., with the Board at the end of the proceedings making a determination as to which of the two had been the grievor's employer. The only evidence relating to this issue was given by Mr. Viriato Couto, the president and sole shareholder of Viriato Foods Inc. This evidence, while fairly limited, suggests that Viriato Foods Inc. and not Foodcorp was the grievor' s employer. Accordingly, for the purposes of this decision, Viriato Foods Inc. will be treated as having been the grievor's employer.

5. On October 19, 1981, the Swiss Chalet Employers' Association and the Canadian Union of Restaurant and Related Employees entered into a purported collective agreement. At the commencement of these proceedings, counsel for the intervener contended that the bargaining rights of Canadian Union of Restaurant and Related Employees had been acquired by Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88. In certain other proceedings the complainant, United Food and Commercial Workers International Union, had already taken the position that the Canadian Union of Restaurant and Related Employees was not a trade union, that Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees, Local 88 had not acquired the bargaining rights of Canadian Union of Restaurant and Related Employees, and that the purported collective agreement was not, in fact, a true collective agreement. Without prejudice to any of these contentions, the parties agreed that the instant complaint should go forward on the assumption that Local 88 is a trade union that has acquired the bargaining rights of Canadian Union of Restaurant and Related Employees, and that at the relevant time it was bound to the collective agreement with the Swiss Chalet Employers' Association. The parties also indicated that they were prepared to assume that the collective agreement was a valid collective agreement binding on Viriato Foods Inc.

6. For ease of reference, we will henceforth refer to the complainant, United Food and Commercial Workers International Union, as the "UFCW", Viriato Foods Inc. as "Viriato Foods" and both Canadian Union of Restaurant and Related Employees and Canadian Union of Restaurant and Related Employees, Hotel Employees and Restaurant Employees Union, Local 88 as "CURRE".

7. On the basis of our finding as to who was the grievor's employer, as well as the assumptions agreed to by the parties, we approach this matter on the understanding that the grievor was an employee of Viriato Foods who came within a bargaining unit of employees represented by CURRE and, as such, was covered by the collective agreement entered into between CURRE and the Swiss Chalet Employers' Association. It is alleged by the UFCW that the grievor was discharged by Viriato Foods because she was a supporter of the UFCW. The UFCW is a rival trade union to CURRE and at all relevant times was actively seeking to win the support of employees at various Swiss Chalet Restaurants, including the restaurant in Mississauga owned by Viriato Foods. Over the objections of the UFCW, the Board granted CURRE status to intervene in the proceedings. The Board did so because, as the bargaining agent of employees of Viriato Foods, CURRE might potentially be affected by any remedial order on the part of the Board.

8. At the commencement of the hearing, counsel for the UFCW indicated that the complaint was based on the contention that the grievor had been discharged due to her support for the UFCW. Near the end of the hearing counsel for the UFCW, for the first time, put forward an alternative basis for the complaint, namely, that the grievor had been discharged for filing a grievance under the CURRE collective agreement. Counsel for Viriato Foods objected to such an allegation being raised so late in the proceedings. A majority of the Board panel (Mr. Lee dissenting) upheld this objection. While the majority would have permitted the UFCW to raise its alternate ground at a time when counsel for Viriato Foods could have dealt with the allegation when calling evidence and cross-examining the grievor, to allow such an alternative argument to be raised almost at the end of the hearing would, in the view of the majority, have amounted to a denial of natural justice to Viriato Foods. We would note, however, that the possibility that the grievor might have been discharged, in part, because she filed a grievance cannot be a possible defence to the instant complaint, in that such conduct would itself be a violation of the Act. See: Valdi Inc., [1980] OLRB Rep. Aug. 1254.

9. In 1979 the grievor was hired as a waitress at a Swiss Chalet restaurant in Brampton. She quit this job in April 1982. In June of 1982 she started at a Swiss Chalet restaurant in Rexdale owned by Foodcorp Limited. The manager of the restaurant was Viriato Couto who later was to become the owner of Viriato Foods. When testifying before the Board, Mr. Couto agreed that at the Rexdale restaurant the grievor had been a good employee, and had performed the cleaning work that waitresses were expected to perform. Mr. Couto also agreed that at Rexdale the grievor had been promoted to the position of assistant hostess, but at her own request had been returned to the position of waitress. After the grievor had been at the Rexdale restaurant for about one year, Mr. Couto was transferred to another Swiss Chalet store. In September of 1983 Mr. Couto became, through his company Viriato Foods, the franchisee of the Swiss Chalet restaurant in Mississauga, as well as its manager.

10. In November of 1983 the grievor, who was still employed at the Swiss Chalet restaurant in Rexdale, decided that she would like to move to the restaurant in Mississauga because it was closer to her home. There is a sharp discrepancy in the evidence relating to when it was that the grievor first contacted Mr. Couto. According to the grievor, she telephoned Mr. Couto and asked if there were any openings at the Mississauga store, to which he responded she should come in and see him. The grievor testified that during this telephone conversation Mr. Couto advised her that if she were to change restaurants, she would not lose her seniority and that the only difference would be that she would have a different punch card number. Mr. Couto denied that he had talked to the grievor on the telephone. According to Mr. Couto, he had been telephoned by the hostess at the Rexdale restaurant who advised him that she had an employee who wanted to work closer to her home, and that she would send the employee over to see him.

11. Article 13.01 of the collective agreement between the Swiss Chalet Employers' Association and CURRE stipulates that seniority under the agreement is referable to length of service with an Association member, and is to be "on an in-store basis". Article 26.02 indicates that when an employee is transferred unilaterally by the Swiss Chalet Employers' Association, she takes her seniority with her. These two articles, when read together, lead us to conclude that an employee who changes restaurants at her own request does not, under the terms of the agreement, bring her previous seniority with her. This loss of seniority is important in that article 13.02 of the agreement provides that a new employee will be on probation during her first three months and has no seniority rights during that period. Further, article 4.01 stipulates that only employees who have acquired seniority can grieve a discharge.

12. It was the evidence of both the grievor and Mr. Couto that on November 19, 1983, the grievor went to the restaurant in Mississauga and met with Mr. Couto. According to Mr. Couto, at this meeting he advised the grievor that she would be on probation for 3 months. The grievor testified that Mr. Couto did not say that she would be on probation, although she recalled that he stated that she was "to start like new". The grievor added that she now realized that she should have asked Mr. Couto what he had meant by this remark, but at the time she ''let it go''.

13. Evidence was led relating to a contract of employment signed by the grievor. There was some confusion in the evidence because both Mrs. Maria Dc Sousa, the hostess at the Mississauga restaurant, and Mrs. Boonsri Wan, an assistant hostess, testified that she had filled in the contract. On all of the evidence, however, we are satisfied that what actually happened was that on separate occasions Mrs. Wan met with the grievor to obtain the relevant information from her, although it was Mrs. Wan who actually filled in the document. Subsequently, Mrs. Wan gave the document to Mrs. De Sousa who, approximately one week after the grievor had commenced work, approached the grievor to obtain her signature on it.

14. The grievor commenced working at the Mississauga restaurant on Wednesday, November 23, 1983. Mr. Couto testified that two days later on Friday, November 25th, it was reported to him that the grievor had tried to stop the other employees from cleaning their work stations and doing other "side work", such as filling salt and pepper shakers. According to Mr. Couto, he did not himself see the grievor trying to stop other employees from doing their work, but this is what had been told to him by Mrs. De Sousa and Mrs. Wan. Mr. Couto testified that he did not discuss these reports with the grievor since she had been working at the restaurant for only two or three days, and he wanted to "see more". Mr. Couto stated that he was subsequently advised by Mrs. De Sousa and Mrs. Wan that groups of waitresses were getting together and talking in groups with the grievor. Mr. Couto added that Mrs. De Sousa had also told him that the atmosphere in the dining room was "no good", something which he himself had also noticed. Twice in his testimony Mr. Couto testified that both Mrs. De Sousa and Mrs. Wan had advised him about problems relating to the grievor, although subsequently he stated that Mrs. Wan had not, in fact, talked to him directly, but had instead passed on her comments to him through Mrs. De Sousa.

15. Mrs. Wan, the assistant hostess, testified that on Friday, November 25th, two days after the grievor had commenced work, she had a discussion with the grievor while the grievor was engaged in cleaning ashtrays and seats in the banquet room portion of the dining room. According to Mrs. Wan, the grievor stated that this is "super clean here". Mrs. Wan understood this comment to be a complaint relating to the amount of cleaning the grievor was required to perform. According to Mrs. Wan, on Sunday, November 27th she advised Mrs. De Sousa of the grievor's comment. Mrs. Wan added that she never again heard the grievor complain about the cleaning. Mrs. Wan did state that during the following weekend she noticed that the grievor had not properly cleaned certain tables, and that she had advised Mrs. De Sousa of this fact.

16. Mrs. Wan also testified that during the second weekend of the grievor's employment, which would have been on December 3rd or 4th, she overheard some waitresses discussing the fact that the grievor had been complaining about there being too much cleaning work to perform. During her cross-examination, Mrs. Wan was asked if she had ever seen the grievor talking with groups of waitresses. Mrs. Wan indicated that she had not. Mrs. Wan further indicated that she had not seen the grievor causing problems with the other waitresses, and had not seen the grievor trying to stop other waitresses from doing their cleaning. Mrs. Wan also testified that she had not told either Mrs. De Sousa or Mr. Couto that the grievor was causing problems with the other waitresses.

17. Mrs. De Sousa testified that a couple of days after the grievor had started work she overheard some waitresses talking about how the grievor was complaining about the cleaning work, and that a few days after this she was advised by Mrs. Wan that the grievor was unhappy with the amount of cleaning required of her. According to Mrs. De Sousa, on Saturday, November 26th, she had passed this information on to Mr. Couto. Mrs. De Sousa testified that about a week later, which would have been on or about December 3rd, she advised Mr. Couto that the other waitresses were upset about the grievor, and also that, in her opinion, the atmosphere in the dining room was not very good. Mrs. De Sousa testified that the grievor had continued to perform the required cleaning work, and that she had not told Mr. Couto anything to the contrary. Mrs. De Sousa further testified that the other waitresses had continued to perform their cleaning work, and she denied the suggestion that she had advised Mr. Couto that the other waitresses were not doing this work, or that the other waitresses had been standing around talking with the grievor.

18. The grievor testified that she did not recall having talked about cleaning work on her first weekend at the Mississauga restaurant. Asked if she had complained about the cleaning work, the grievor replied that she had not, and that cleaning work was something she had been doing for years. The grievor did say, however, that one day while she was busy cleaning, another waitress by the name of Doris asked her about the difference in cleaning between restaurants, to which the grievor replied that at Rexdale there was not as much cleaning as at Mississauga.

19. All of the evidence indicates that the grievor was a capable waitress. The grievor testified that while at the Rexdale restaurant, she had acquired the nickname of "Speedy Gonzales". Mrs. De Sousa testified that the grievor had been very good with customers, and that she had advised Mr. Couto of this fact. When being cross-examined, Mr. Couto agreed with the suggestion that there had been no complaints from customers about the grievor's work performance. Mr. Couto commented that the grievor had been a good and fast waitress at Rexdale and remained a good and fast waitress at Mississauga, although at Mississauga she had been stopping other waitresses from cleaning their stations.

20. It will be recalled that on November 19, 1983, prior to the grievor commencing work, she was advised by Mr. Couto that she would start "like new". When Mrs. De Sousa had the grievor sign the employment contract, which was about one week after she had started working at the Mississauga restaurant, Mrs. De Sousa made it clear to the grievor that she was not being credited with her seniority at Rexdale. Near the end of November or on the first day of December, 1983, the grievor telephoned Mr. James Whyte, a business representative with CURRE, with respect to the loss of her seniority. On December 2, 1983, Mr. Whyte filed a written grievance on behalf of the grievor relating to her seniority standing. In testifying before the Board, Mr. Couto indicated he was uncertain as to when it was he had received the grievance. At one point he indicated that he had placed the notation "Received December 13, 1983" on the grievance form, although, subsequently, he commented that the date may have been put on the grievance by someone at the Swiss Chalet Employers' Association. Mrs. De Sousa recalled that Mr. Couto had mentioned the grievance to her, but was unsure if this was during their conversation about the grievor on November 26th or during their meeting about a week later, which would have been on or about December 3rd. It is clear that the discussion must have been at this second meeting, since on November 26th the grievance had not yet been filed. Mr. Couto testified that upon receipt of the grievance he advised the grievor that he was not happy about it. According to Mr. Couto, in the same conversation he also asked the grievor why she was trying to keep "the girls" from cleaning their stations, to which the grievor made no reply. In his cross-examination Mr. Couto was asked if, during this discussion, he advised the grievor that she would be fired. Mr. Couto replied that he had not, since he expected that the grievor would improve.

21. The loss of her seniority upset both the grievor and her husband, and, according to the grievor, it resulted in the two of them getting into an argument about the loss of her seniority as well as the amount of money she was making. On a day that Mr. Couto placed as being a Saturday, a few days after he had talked to the grievor about her grievance, which would most likely have been Saturday, December 10th, Mrs. De Sousa came upon the grievor crying in the dining room. The grievor explained to Mrs. Dc Sousa that she was upset about the loss of her seniority. It was Mrs. De Sousa's testimony that she asked the grievor why she was upset when she had been told before she started she would not keep her seniority. Mrs. Wan testified that she had overheard Mrs. De Sousa's comment to the grievor, although her recollection was that Mrs. De Sousa had stated that the grievor had been told she would start like a new girl. After a brief discussion with the grievor, Mrs. Dc Sousa took her to see Mr. Couto. Mrs. De Sousa testified that at this meeting Mr. Couto said to the grievor that she had known before she started that she would not keep her seniority, and the grievor acknowledged that this had been the case. For her part, the grievor in cross-examination indicated she could not specifically recall if Mrs. De Sousa had asked her why she was upset when she had known she would not keep her seniority, although she agreed that Mr. Couto might have asked her such a question.

22. According to Mr. Couto, after the grievor had left his office on the day of the crying incident, he asked Mrs. De Sousa if the atmosphere in the restaurant was bad, and Mrs. De Sousa replied that the same problems continued, namely, that the grievor was speaking with groups of waitresses and there was a bad atmosphere. According to Mrs. De Sousa, however, on the day in question she had not discussed these matters with Mr. Couto. Further, as already noted, it was Mrs. De Sousa's evidence that she had not seen the grievor talking with groups of waitresses, and had not told Mr. Couto that she had.

23. The grievor was terminated on Friday, December 16, 1983. Mr. Couto testified that he alone made the decision to terminate her. According to Mr. Couto, his decision was based on the reports he had received about the complaining the grievor had been doing, her speaking with groups of waitresses, and her action in stopping other waitresses from cleaning their stations. Mr. Couto testified that on either Wednesday, December 14th, or Thursday, December 15th, he advised Mrs. De Sousa that if the grievor did not improve, he would have to discharge her. Later in his testimony, Mr. Couto stated that he decided to discharge the grievor as soon as Mrs. De Sousa advised him that the situation had not improved. When questioned about this, however, Mrs. De Sousa indicated that no such discussion had occurred. Mrs. De Sousa testified that during the morning of Friday, December 16th, Mr. Couto advised her that he was going to let the grievor go because he was not happy with her attitude and because of the atmosphere in the dining room. According to Mrs. De Sousa, Mr. Couto did not ask for her opinion about the grievor's attitude or the atmosphere in the dining room. Mrs. De Sousa stated that she recalled bringing the grievor in to see Mr. Couto and that she had been present when he had discharged her.

24. On or about December 22, 1983 a grievance meeting was held concerning the grievor's seniority grievance. Present at the meeting were the grievor, Mr. Couto, Mr. Whyte from CURRE and Mr. Frank Charron from the Swiss Chalet Employers' Association. In his examination-in-chief, Mr. Couto stated that at the meeting he made the comment that he had told the grievor on her first day of work that she would be "a new girl" on three months probation, but that now she had filed a grievance about the matter and was trying to stop the girls from doing their cleaning. According to Mr. Couto, the grievor acknowledged that this was true. When being cross-examined, Mr. Couto repeated the comment that at the meeting he had told the grievor that she had previously been informed that she would not retain her seniority. He also repeated his statement that at the meeting he told the grievor that she had been preventing the other waitresses from doing their cleaning work, although later in his cross-examination he made the statement that this issue had not, in fact, been talked about.

25. It was the testimony of Mr. Whyte, the representative from CURRE, that while the grievor's seniority standing and her complaining were discussed at the meeting, there was no discussion relating to claims that the grievor had been trying to prevent other employees from doing their cleaning. Mr. Whyte testified that both at the meeting, and in a separate private conversation with himself, the grievor stated that she had done wrong and "opened her mouth" too much. Mr. Whyte added that when he asked the grievor if she wanted to grieve her discharge, she replied that she did not, but would prefer to start afresh in another store. For her part the grievor initially denied that at the meeting she had acknowledged complaining, but when questioned by counsel for CURRE, the grievor agreed that she had told Mr. Whyte she was sorry that she had opened her "big mouth" to complain about the cleaning.

26. Following the meeting on December 22nd, Mr. Charron of the Swiss Chalet Employers' Association formally denied the grievor's seniority grievance. It was not taken to arbitration. It is clear from Mr. White's evidence that, in his view, the grievor was, in fact, a probationary employee without any seniority. It is also clear from Mr. Whyte' s evidence that although he had offered to assist the grievor in grieving her discharge, given his view that she was a probationary employee and the collective agreement provision denying probationary employees the right to grieve a dismissal, it was his opinion that such a grievance would not succeed. It is of some interest that, when testifying before the Board, the grievor stated that it had been her impression at the December 22, 1983 meeting that Mr. Whyte was trying to help her, although without success. The grievor subsequently applied for employment with other Swiss Chalet restaurants, but was not hired. She then contacted the UFCW, which filed this complaint alleging that she had been terminated due to her activities on behalf of the

UFCW.

27. The grievor testified that she had become a supporter of the UFCW while still an employee at the Rexdale restaurant. After she decided to move to the Mississauga restaurant, the grievor had a discussion with an official of the UFCW, in which she agreed to try to get employees at Mississauga to join the UFCW. The grievor testified that she spoke to Mississauga employees about joining the UFCW, and she showed a number of them UFCW membership cards which she kept in her locker. According to the grievor, on one occasion she showed the UFCW cards to "Debbie", the CURRE steward at the Mississauga restaurant, and Debbie advised her not to show the cards to anyone during working hours or else she might get fired. The grievor testified that it was on the basis of this advice that she only showed the cards to employees when no one in management was around.

28. It was the testimony of Mrs. De Sousa and Mrs. Wan that, prior to the grievor's termination, they had no knowledge of the UFCW organizing campaign. Mr. Couto stated that he also had not known about the UFCW organizing campaign, or that the grievor was assisting the UFCW. Mr. Couto also stated that, prior to the grievance meeting on December 22nd, he had not talked to a representative of CURRE. According to Mr. Couto, the CURRE representative had at times come by the restaurant, but only to talk to the CURRE steward. Mr. Whyte for his part testified that he first heard about the UFCW organizing drive among Swiss Chalet restaurant employees in August of 1983, and that from that time onwards he made inquiries about the UFCW. Mr. Whyte stated that in his meetings with employees at the Mississauga restaurant it was more than likely that he asked them about the UFCW. Mr. Whyte further indicated that he made a point of asking Swiss Chalet restaurant managers if they had seen any evidence of the UFCW. Mr. Whyte testified that while he had no specific recollection of speaking to Mr. Couto about the UFCW, he believed he could have done so, and on more than one occasion.

29. Before assessing the merits of this case, we would make several comments relating to the role of CURRE and CURRE officials in these proceedings. CURRE sought, and over the objections of the UFCW was granted, status to participate in these proceedings. At the commencement of the proceedings, counsel for CURRE took a "low key" essentially neutral role. As the hearing progressed, however, there was evident a growing hostility between the CURRE and UFCW representatives, as well as an ever more active involvement in the proceedings by counsel for CURRE. This state of affairs appears to have been caused primarily by suggestions by counsel for the UFCW that CURRE representatives had some involvement in the grievor's termination. In particular, it was suggested that Debbie, the CURRE steward, had advised Mr. Couto that the grievor had been organizing for the UFCW. A leaflet distributed to Swiss Chalet employees by the UFCW with respect to the proceedings before the Board did not help matters. This leaflet, which was put out over the grievor's name, although she testified that she had not written the material or even seen it prior to the leaflet's distribution, made disparaging remarks about CURRE, while at the same time praising the UFCW for taking up the grievor's case at the Board.

30. The evidence indicates that officials of CURRE did not play any role in the grievor's termination. To the contrary, they sought to be of assistance to the grievor. It will be recalled that when the grievor showed UFCW membership cards to Debbie, the CURRE steward, Debbie advised her not to show the cards to anyone during working hours so as to avoid the possibility of being discharged. Following the grievor's termination, Mr. Whyte from CURRE met with management in an attempt to assist the grievor. The grievor herself testified that it was her impression that Mr. Whyte had tried to help her. We have no doubt but that when Mr. Whyte testified before the Board, he sought to give an honest account of the events he was involved with. Some of Mr. Whyte's testimony was not favourable to the grievor, particularly his statement that on December 22nd the grievor stated that she had opened her big mouth too much. However, the grievor herself, after first denying that she had done so, admitted that she had made such a comment to Mr. Whyte. Further, certain aspects of Mr. Whyte's testimony, including his statement that at the meeting on December 22nd there was no discussion about the grievor trying to prevent employees from doing their cleaning, and his statement that he believed he had spoken to Mr. Couto about the UFCW, did not assist the employer's case.

31. As already noted, the complaint before us alleges that the grievor was discharged contrary to the Labour Relations Act because of her support for the UFCW. The complaint

was filed with the Board under section 89 of the Act. Section 89(5) deals with the burden of proof in complaints such as this in the following terms:

On an inquiry by the Board into a complaint under subsection (41 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.

32. In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, which was one of the early cases decided by the Board after the enactment of what is now section 89(5). the Board commented on the effect of the provision as follows:

… 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 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.

Another relatively early case relating to the reversal of the onus of proof was Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299 wherein the Board stated:

Section 79(4a) [now section 89(5)] of The Labour Relations Act l)laces the legal burden upon the employer in complaints

such as the one before us, to satisfy the Board, on the balance of probabilities, that it has not violated the Act. In order for the Board to find that there has been no violation of the Act it must be satisfied that the employer's actions were not in any way motivated by anti-union sentiment; the employer's actions must be devoid of "anti-union animus." (See the Bushnell case (1974) 4 OR. (2d) 332.) The employer cannot engage in anti-union activity under the guise of just cause or under the guise of business reasons. Regardless of the viable non-union reasons which exist the Board most be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti-union motive and which the evidence establishes to be the only reason for its conduct. (See Borne Examiner, [1975] OLRB Rep. Oct. 745 and The Corporation of the City of London, [1976] OLRB Rep. Jan. 99.)

33. With these general principles in mind, we turn now to consider the facts of the present case. One issue raised by the evidence is whether or not Mr. Couto viewed the grievor as a probationary employee. It is generally understood that during an employee's probationary period, the employer has an opportunity to assess the suitability, of a new employee, not only with respect to her ability to do the work assigned, but also her general suitability, which includes her ability to work in harmony with others. See: Re United Rubber Workers, Local 56] and Rosedale Plastics International, [1 L.A.C. 71 (Anderson). The collective agreement between CURRE and the Swiss Chalet Employers' Association recognizes this by purporting to restrict the right of probationary employees to grieve a discharge. Because the issue in these proceedings is what motivated Mr. Couto's decision to discharge the grievor, our concern 15 not with the issue of whether the grievor actually retained her previous seniority, but rather, whether Mr. Couto believed this to be the case. We are satisfied that Mr. Couto did, in fact, view the grievor as a probationary employee without any seniority. Even if Mr. Couto did, as the grievor claims, advise her on the telephone before they met that if she changed restaurants she would keep her seniority, it is apparent that he subsequently had a change of mind. The grievor acknowledges that when Mr. Couto formally offered her a job he indicated she was "to start like new". In addition, from Mrs. De Sousa's testimony, we are satisfied that Mr. Couto referred to the grievor as a probationary employee.

34. Given the grievor's admitted comment to Mr. Whyte that she had "opened her mouth" too much, as well as the testimony of Mrs. De Sousa and Mrs. Wan, we are led to conclude that the grievor did, in fact, make certain comments about the amount of cleaning required in the restaurant and that her comments became the subject matter of discussion among some of the other waitresses. We are further satisfied that Mrs. De Sousa passed this information on to Mr. Couto within a few days of the grievor's starting work, and again during the weekend of December 3rd and 4th. Mrs. De Sousa also told Mr. Couto that, in her view, the atmosphere in the dining room was not very good. Given that Mr. Couto viewed the grievor as a probationary employee, he might well have viewed these matters as a basis for terminating her. Notwithstanding this, certain aspects of Mr. Couto's evidence as to why he discharged the grievor cause us some concern.

35. One area of concern relates to Mr. Couto's claim that he discharged the grievor because he had been advised by Mrs. De Sousa and Mrs. Wan (either directly or through Mrs. De Sousa) that the grievor was stopping other waitresses from doing their cleaning, and talking to groups of waitresses. The evidence indicates that while there was one instance where the grievor did an unsatisfactory job of cleaning tables, at no time did the grievor refuse to clean, stop others from cleaning, or talk with groups of waitresses. Further, both Mrs. De Sousa and Mrs. Wan denied having told Mr. Couto that the grievor had engaged in any such conduct. The second aspect of Mr. Couto's evidence that causes us concern is his statement that he discussed the grievor with Mrs. De Sousa one or two days before he discharged her, and that Mrs. De Sousa advised him that the problems were continuing, namely, the complaining about the cleaning and stopping other waitresses from doing their work. Mrs. Dc Sousa, however, denied that any such conversation took place.

36. We have no reason to doubt the evidence given by Mrs. Dc Sousa and Mrs. Wan. While Mrs. Dc Sousa had some difficulty remembering dates and the sequence of events relating to the contract of employment signed by the grievor, in our view this does not detract from the general reliability of her evidence. Mrs. De Sousa and Mrs. Wan did not contradict themselves or each other with respect to major occurrences. Further, their evidence was generally consistent with much of that given by the grievor. (As for the grievor, it is clear that on a number of occasions she sought to tailor the evidence to assist her case, although when pressured on cross-examination she reversed herself.) While we view Mrs. De Sousa and Mrs. Wan as credible witnesses, the same cannot be said with respect to Mr. Couto. Several times he contradicted himself. His testimony that he had received complaints about the grievor stopping other Waitresses from doing their work and standing around talking with groups of waitresses, as well as his claim that he had received a complaint about the grievor just prior to her discharge, were contradicted by Mrs. Wan and Mrs. De Sousa. In these circumstances we are prepared to accept the evidence of Mrs. De Sousa and Mrs. Wan where it conflicts with that of Mr. Couto. Further, in our view, the differing evidence given by Mr. Couto was not the type of detail likely to be the result of a faulty memory. This, in turn, leads us to conclude that Mr. Couto deliberately sought to mislead the Board with respect to certain of his evidence.

37. Mr. Couto sought to mislead the Board into believing that the grievor's conduct had been much more serious than it was. He also sought to mislead the Board into believing that just prior to making his decision to terminate the grievor, he had received a report about serious misconduct on her part, when in fact he had not received any negative reports about the grievor for close to two weeks. These facts throw serious doubts on the evidence of Mr. Couto as to why he decided to discharge the grievor. As noted in the Barrie Examiner and Pop Shoppe cases, supra, given the reversal of the onus of proof in matters such as this, an employer is required to satisfy the Board as to what prompted it to discharge an employee, and that the reasons were not tainted by an anti-union motive. However, Mr. Couto's abrupt change from his apparent willingness to wait and see if the grievor would improve, as well as his attempts to mislead the Board with respect to certain critical matters, throw into real doubt his purported justification for discharging the grievor.

38. It may have been that Mr. Couto decided to terminate the grievor only because of her complaining, and that he embellished his evidence about the seriousness of her conduct because he felt it would make a more convincing story. Likewise, he may have falsely claimed that Mrs. Dc Sousa complained to him about the grievor shortly prior to her termination because he felt that this would sound more convincing than some other perfectly innocent explanation as to why there had been a delay between receiving his last negative report about the grievor and her discharge. However, it is also possible that, shortly prior to the grievor's termination, Mr. Couto became aware of her activities on behalf of the UFCW, and at least, partly because of this, decided to terminate her. In this regard, Mr. Couto's evidence that he knew nothing about the UFCW organizing campaign is highly suspect, given that he sought to mislead the Board about other matters and Mr. Whyte's evidence that he believed that he had discussed the UFCW with Mr. Couto on more than one occasion. Mr. Couto had the onus to satisfy us that the grievor' s discharge was not motivated by the fact that she had been organizing for the UFCW. He has not done so. In these circumstances, we are led to conclude that Mr. Couto, and through him Viriato Foods Inc., has not discharged the section 89(5) burden of proving that it did not act contrary to the Act as alleged in the complaint.

39. Having regard to the foregoing, the Board finds that Viriato Foods Inc. contravened section 66 of the Act by discharging the grievor. To remedy that contravention of the Act, the Board directs that Viriato Foods Inc. reinstate the grievor and compensate her for all lost wages and other benefits subject to the general rules of mitigation.

40. A majority of the panel is of the view that, in accordance with the Board's general practice, it would be appropriate for a notice to be posted advising employees of the results of these proceedings and of their rights under the Labour Relations Act. Mr. Murray disagrees. It is Mr. Murray's view that such a posting will not serve any useful purpose. Having regard to the majority view, the Board hereby directs Viriato Foods Inc. to post copies of the attached notice marked "Appendix", after being duly signed by an authorized representative of the firm, in conspicuous places in its restaurant where it is likely to come to the attention of employees, and keep the notice posted for 60 consecutive working days. Reasonable steps shall be taken by management to ensure that the notice is not altered, defaced or covered by any other material. Reasonable access to the premises will be given to a representative of the UFCW so that it can satisfy itself that this posting requirement is being complied with.

41. The Board will remain seized of this matter in the event that a dispute arises concerning the interpretation, implementation or quantification of the Board's order.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR HELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE HAD AN OPPORTUNITY TO PRESENT EVIDENCE. THE BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY DISCHARGING VITALINA TEIXERA BECAUSE OF HER ACTIVITY ON BEHALF OF THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, THE BOARD ALSO FOUND THAT CANADIAN UNION OF RESTAURANT AND RELATED EMPLOYEES, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES UNION, LOCAL 88, WAS NOT INVOLVED IN ANY WAY WITH MRS. TEIXERA'S DISCHARGE. THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES.

TO FORM, JOIN OR HELP UNIONS,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING.

WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT TERMINATE OR OTHERWISE DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES.

WE WILL REINSTATE VITALINA TEIXERA AND PAY HER CMPENSATION FOR ALL LOST WAGES AND OTHER BENEFITS.

FOODCORP LIMITED

AUTHORIZED REPRESENTATIVE

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

DATED this 28TH day of JUNE . 1985.