United Food & Commercial Workers International Union, Local 175/633 v. 810048 Ontario Limited c.o.b. as Loeb Highland, 1993 CanLII 7835

United Food & Commercial Workers International Union, Local 175/633 v. 810048 Ontario Limited c.o.b. as Loeb Highland

[1993] OLRB Rep. March 197

2912-92-M United Food & Commercial Workers International Union, Local 175/633, Applicant v. 810048 Ontario Limited c.o.b. as Loeb Highland, Responding Party

BEFORE: Judith McCormack, Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Kelvin Kucey, Rick Wauhkonen, Mike Duden and Tom Stuart for the applicant; George Rontiris, Jamie Wilkinson and Harry McGhie for the responding party.

DECISION OF JUDITH McCORMACK, CHAIR, AND BOARD MEMBER D. A. PATTERSON: March 12, 1993

1The name of the responding company is amended to read: "810048 Ontario Limited c.o.b. as Loeb Highland".

2This is an application under section 92.1 of the Labour Relations Act for an interim order relating to Board File No. 2911-92-U. That file involves a complaint under section 91 of the Act, alleging that John Quessy was discharged in violation of the Labour Relations Act. By way of an interim order, the applicant requests that Mr. Quessy be reinstated to his position as a produce clerk at the responding company's store, and granted compensation for the period of his discharge.

3Because this is the first case the Board has decided under the provisions of section 92.1, we find it useful to set out the procedure involved. This application was filed on Monday, January 11, 1993 after the applicant had delivered a copy of the application, the complaint under section 91 and a copy of the response form to the responding company in accordance with Rule 88. The responding company filed its response on January 13, 1993, after delivering a copy of it to the applicant in accordance with Rule 89. As part of their filings, both parties submitted declarations in regard to their respective evidence, and written representations in support of their positions. In addition to this material, the Board decided to hear oral arguments, and a hearing was scheduled for Thursday, January 14, 1993.

4At the beginning of that day, the parties indicated to the Board that they wished to dis­cuss settlement with each other. We then obtained estimates from counsel with respect to the length of their arguments. The purpose of this was to provide us with some means to assess at what point the settlement discussions might have an impact on our ability to hold an expeditious hearing. As it turned out, negotiations broke down between the parties and the Board commenced hearing their arguments at 11:00 a.m.

5At the conclusion of the parties' oral arguments, we reserved our decision but advised the counsel that we would attempt to issue it as soon as possible, keeping in mind the inherent urgency of this kind of matter. On Monday, January 18, 1993, the Board issued the following unanimous decision:

The Board directs that the Responding Party reinstate John Quessy forth­with to his former position pending the final disposition of the matter in Board File 2911-92-U. The applicant's request for interim compensation is denied. Our reasons will follow.

6Before turning to those reasons, we find it useful to comment on two other procedural matters. As we noted earlier, the applicant and the responding company filed a number of declara­tions containing the evidence that they wished to submit with respect to the interim order applica­tion. However, both sets of declarations included a substantial degree of hearsay. Rules 86 and 89 provide as follows:

86. An application for an interim order under section 92.1 of the Act must include:

(a) one or more declarations signed by persons with first-hand knowledge, detailing all of the facts upon which the applicant relies, including what harm, if any, will occur if the interim order is not granted. Each signed declaration must include the following state­ment: "This declaration has been prepared by me or under my instruction and I hereby confirm its accuracy"; and

(b) complete written representations in support of the applicant's position.

89. A responding party must file a response to the application not later than two (2) days after the application was delivered. A completed response must also include:

(a) one or more declarations signed by persons with first-hand knowledge, detailing all of the facts upon which the responding party relies, including what harm, if any, will occur if the interim order is granted. Each signed declaration must include the follow­ing statement: "This declaration has been prepared by me or under my instruction and I hereby confirm its accuracy"; and

(b) complete written representations in support of its position.

7These rules make it clear that the accuracy of the declarations which the parties file must be confirmed by persons having first-hand knowledge of the facts. While the Board has the power under Rule 22 to relieve against their strict application, no compelling reasons were advanced in this case as to why we should allow hearsay material, and as a result, we were not pre­pared to rely on it. To the extent that it was necessary to rely on the declarations in this matter, we have used only those facts that were either first-hand, or not in dispute between the parties.

8Counsel for the union also made a number of factual assertions in his argument that were not contained in the application. Rule 20 provides as follows:

20. No person will be allowed to present evidence or make any representations at any hearing about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

9The company's counsel objected to the union's assertions, and the Board reserved its decision at that time. Having considered the matter, we are not inclined to grant permission to allow such factual assertions to be admitted. Among other things, we observe that these assertions were hearsay as well, and the responding company had no opportunity to address them in its mate­rial. Although it was suggested by the union that the facts in question had occurred since the date of Mr. Quessy's discharge on January 5, 1993, it was not at all clear that the facts involved a period of time subsequent to the date on which the application was filed. In the absence of more persua­sive representations in this regard, we are not prepared to allow the union to rely on those assertions.

10Turning now to the substance of this matter, the applicant union alleges in its material that the responding company violated sections 65, 67, 71, 81 and 82 of the Labour Relations Act by discharging John Quessy, who was actively involved in the union's organizing drive at the compa­ny's grocery store. This allegation is in part the subject of the section 91 complaint in Board File 2911-92-U. As a result of the applicant's request for expedition under section 92.2 with respect to that complaint, it was scheduled to be heard on January 26, 1993, and in accordance with section 92.2(3), will be heard on consecutive days from Monday to Thursday until it is completed. The effect is that this request for interim relief is likely to involve a relatively short period of time.

11The parties agreed that the applicant had been certified as the bargaining agent for full-time employees in the meat department on July 13, 1992, and the applicant then apparently com­menced an organizing drive with respect to other employees. There was no dispute that Mr. Quessy had been employed by the company since November of 1990, and was considered a good employee in the grocery department. The union asserts that he was one of several employee organ­izers in the store, and that he had recruited some twenty other employees to membership in the union. During December of 1992, the store owner, Jamie Wilkinson, and the store manager, Duanne Dumesnil, became aware of the union's new organizing drive, and questioned Mr. Quessy and another employee in this regard. The company asserts that Mr. Quessy was told in this conver­sation not to solicit signatures for the campaign during working hours. The parties also agree that Mr. Wilkinson asked Mr. Quessy why he believed that a union was needed at the store, to which he responded by making a reference to better wages. The union then alleges that Mr. Wilkinson said that he would not hesitate to close the store if the union got in, an allegation which is emphati­cally denied by the company.

12The parties do not dispute that in early January, another employee stole a can of soda pop. It also appears to be common ground that Mr. Quessy lied to a company official to cover up this theft. The union is of the view that company officials conducted themselves so as to elicit this lie or to entrap Mr. Quessy; the company characterizes Mr. Quessy's conduct as fraudulently cor­roborating the other employee's version of the theft, and asserts that he was therefore implicated in it. The company also states that it has published rules prohibiting theft which provide for imme­diate dismissal. Both the other employee and Mr. Quessy were discharged on January 5, 1993. It is in these circumstances that the union requests that Mr. Quessy be reinstated pending the disposi­tion of the section 91 complaint.

13Section 92.1(1) of the Labour Relations Act confers explicit jurisdiction on the Board to make interim orders:

92.1- (1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

14The authority granted under section 92.2(1) is very broad, and there is no language which imposes qualifying conditions upon the Board's jurisdiction under this provision. Such extensive discretion is consistent with the Board's function as an expert tribunal on labour relations matters. It seems apparent that the Legislature was prepared to rely heavily on the Board's accu­mulated labour relations wisdom in determining what circumstances should attract an interim order. This is not surprising, since interim relief in labour relations matters may involve unique considerations based on a very specific social and economic landscape. In fact, it is fair to say that the interim relief jurisprudence from other provincial labour relations boards abounds with refer­ences to distinctive features of labour relations.

15In terms of that jurisprudence, the parties presented us with the following cases, which include some from the Courts as well: Sobey's Inc. v. United Food and Commercial Workers' inter­national Union, Local JOOOA, (December 22, 1992 - unreported) [now reported at [1992] OLRB Rep. Dec. 1237] (Ontario Court of Justice (Divisional Court)) [since set aside February 9, 1993]; Re Joan Harper and Arlene Cook and Board of School Trustees of School District No. 39 (Vancou­ver) and Vancouver Teachers' Federation, [1989] BCIRCD C79 (April 5, 1989) (British Columbia Industrial Relations Council); Re White Spot Restaurants Ltd. and Food and Service Workers Local No. 112 of Canadian Association of Industrial Mechanical and Allied Workers, [1988] BCIRCD C274 (October 14, 1988) (British Columbia Industrial Relations Council); Re United Food and Commercial Workers International Union Local 280-P Canada Labour Relations Board et al., [1984] CLLC ¶14,069, (S.C.C.); Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. (1977), 1977 CanLII 1198 (ON HCJ), 80 D.L.R. (3d) 725 (Ontario Court of Justice (Divisional Court)); American Cyanamid Co. v. Ethicon Ltd., 1975 CanLII 2598 (FC), [1975] 1 All ER. 504.

16In addition, the parties also invited us to examine the jurisprudence of other provincial labour boards, particularly that of Manitoba and Saskatchewan, and we reviewed the following cases as a result: British Columbia Transit and Transit Management Association, [1988] BCIRCD C317 (December 30, 1988) (British Columbia Industrial Relations Council); Western Canada Steel Limited et al. and Canadian Association of Industrial, Mechanical and Allied Workers, Local 6, (1989) 6 C.L.R.B.R. (2d) 123 (British Columbia Industrial Relations Council); James R. Kennedy and Sheet Metal Workers' International Association, Local Union No. 280, [1991] BCIRCD C46 (February 28, 1991) (British Columbia Industrial Relations Council); Justin Wasilifsky and Nancy Wasilifsky and North Vancouver Teachers Federation et al., [1988] BCIRCD C144 (June 30, 1989) (British Columbia Industrial Relations Council); Health Labour Relations Association and Hospital Employees Union et al., [1992] BCIRCD C43 (March 9, 1992) (British Columbia Industrial Rela­tions Council); Fast Car Co. inc. and New World Television Productions Co. Inc. et al., [1991] BCIRCD C146 (July 23, 1991) (British Columbia Industrial Relations Council); Miscellaneous Teamsters, Local 987 and Alberta Brotherhood of Dairy Employees and Driver Salesman and Northern Alberta Dairy Pool Ltd., [1991] Alta.L.R.B.R. 159 (Alberta Labour Relations Board); Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Macdonalds Consoli­dated, Regina, Saskatchewan [1991] 4:1 SaskLRB 45 (April 19, 1991) (Saskatchewan Labour Rela­tions Board); Saskatchewan Joint Board, Retail Wholesale and Department Store Union v. Water-group Companies inc., [1992] 4:4 SaskLRB 68, (March 4,1992) (Saskatchewan Labour Relations Board); The Canadian Association of Policemen, Moose Jaw Branch and Board of Police Commis­sioners of the City of Moose Jaw, [1992] 4:4 SaskLRB 88 (March 13, 1992) (Saskatchewan Labour Relations Board); United Food and Commercial Workers, Local 1400 v. F. W. Woolworth Co. Limited (June 3, 1992), Doc. No. 142-92 (Saskatchewan Labour Relations Board); Service Employees Union, Local 336 and Wolf Willow Lodge et al. (June 26, 1992), Doc. No. 155-92 (Saskatchewan Labour Relations Board); Saskatchewan Joint Board, Retail, Wholesale and Depart­ment Store Union and Watergroup Canada Limited et al. (#2), [1992] 5:2 SaskLRB 121 (August 25, 1992) (Saskatchewan Labour Relations Board).

17In determining whether interim relief should be granted, other boards have considered such distinctive labour relations issues as whether there is a critical labour relations purpose (White Spot Restaurants, supra), the potential loss of membership support to a union (British Columbia Transit, supra), the impact of delay in labour relations and the fact that labour relations parties have to co-exist after the litigation, Northern Alberta Dairy Pool Ltd., supra) , and the purposes of the various applicable labour relations statutes (White Spot Restaurants, supra; Macdonalds Con­solidated, Regina, Saskatchewan, supra; Watergroup Companies Inc., supra). Indeed, in British Columbia Transit, supra, the British Columbia Industrial Relations Council distinguished a British Columbia Supreme Court decision on the basis that it was so far removed from the labour relations context, and observed that while common law principles surrounding interim relief can offer useful guidelines, they do not take into account labour relations concerns such as loss of membership sup­port.

18In other words, it is incumbent upon the Board to develop a sound and indigenous juris­prudence in regard to interim orders which reflects the complex and unique realities of labour rela­tions. While we echo the views of the British Columbia Industrial Relations Council to the effect that common law principles may provide us with some useful insight, if we were to import in a wholesale or unreflective manner the kinds of tests applied by Courts in considering interim and interlocutory relief, we would be failing in our responsibility as an expert tribunal to develop a jurisprudence attuned to the distinctive features of labour relations in this province. This latter point, that our jurisprudence should reflect the realities of Ontario labour relations in particular, is also important. While we have found much that is instructive in the cases we have reviewed from other provinces, we also feel constrained to note a number of differences in the legislative or other authority which gives rise to their interim powers, in the purposes of their respective labour rela­tions statutes and in the history and climate of their labour relations. Again, an uncritical adoption of any one of the various approaches in these cases would not serve the Ontario labour relations community well.

19With this in mind, we turn first to the company's argument that the Board's interim relief power should be used only in rare and exceptional circumstances. We do not find this a par­ticularly useful approach. Section 92.1(1) contains no hint that it should be reserved to extraordi­nary cases; indeed, unlike some corollary provisions which contain threshold tests, the Ontario provision is available in every proceeding before the Board. This is not to say that the prospect of a flood of interim relief applications does not cause us some concern. However, we think it more appropriate to start from the position of attempting to elucidate a fair and intelligent labour rela­tions test for section 92.1(1). Those cases that meet that test should then attract interim relief, regardless of how many or how few they may be.

20In considering the dimensions of such a test, we note that the cases from other prov­inces reveal an assortment of approaches and considerations in addressing interim order requests. However, there are a number of common themes running through them which may be summarized in the following manner. Most refer to some kind of threshold test in regard to the merits of the main application with reference to which interim relief is sought. Some require that a case not be frivolous or vexatious, a requirement which has also been described as the equivalent of whether there is a serious issue to be tried. Other cases have referred to whether there is an arguable case of breach, or the possibility of a legitimate claim, and a number require that there be a prima facie case, or that there be a strong prima facie case. Secondly, most cases involve a review of the harm which might befall the applicant if the interim order is not granted, and whether that harm is irrep­arable. Finally, the cases refer to the balance of convenience between the parties.

21Turning first to the idea of a threshold test with respect to the merits of the main appli­cation, we have some concern about applying a high level of scrutiny to that application at the time of a request for an interim order. To the extent that such scrutiny may imply a form of prejudge­ment of the final disposition of the main matter, it is not particularly compatible with the scheme for interim relief set out in the Act and the Board's Rules of Procedure. More spcifically, the pro­cedure for interim relief contemplated by the Board's Rules reflects the inherent necessity for expedition in these matters. To that end, evidence is filed by way of certified declarations which are not subject to cross-examination. Indeed, section 104(14) of the Act and Rules 92 and 93 indi­cate the Board may not hold an oral hearing at all, but may receive the parties' arguments in writ­ing as well.

22This means that the Board is not in a position to make determinations based on dis­puted facts. In these circumstances, it would normally be unfair for an interim order to be predi­cated to any significant extent on a decision with respect to the strength or weakness of the main case. That should await the hearing of the main application when the Board hears oral evidence and can make decisions with respect to credibility based on the usual indicia, in a context where the parties have a full right of cross-examination. This is particularly important in cases such as the section 91 complaint to which this application relates, where decisions are often based on infer­ences and the various nuances of credibility play a key role. In other words, the granting of interim relief in this context should usually be based on criteria which minimize prejudging the merits of the main application.

23Our practical concern that the Board's decisions on interim relief be insulated to some extent from the merits of the main application is reinforced by the language of section 92.1(1), which provides that an interim order can be obtained in an intended proceeding as well as in one already filed. If an interim order is available even before the main proceeding has been com­menced, it suggests that interim relief is less dependent upon the main application than one might otherwise think.

24Moreover, a number of the provisions of the Labour Relations Act, including some of those which the applicant alleges were breached in the complaint in this matter, are subject to a reverse onus where a responding party must establish that it did not violate the Act. The effect is to complicate an assessment of the merits, including the issue of what would constitute a prima facie case in these circumstances. In addition, the interim order power contained in section 92.1 applies to an extensive package of legislative amendments, many of which involve new or reshaped jurisdiction for the Board. This means that it may be difficult to evaluate the strength of the merits of any particular case, at least until the Board has had an opportunity to develop case law in these new areas. Lastly, even where the Board can rely on well-established jurisprudence, there must be some allowance for novel arguments to be presented to it from time to time. While no tribunal encourages frivolous applications, it is also true that the Board must be responsive to changes in labour relations if its jurisprudence is to remain vital and relevant.

25At the same time, it is clearly essential that there be some connection between interim relief and the merits of the main application. Common sense suggests that an interim order is inherently subordinate to the main application~ a proposition which is given added cogency in this context by Rule 88. That rule makes it clear that a copy of the main application must be filed along with the request for an interim order, which to some extent offsets our view of the effect of section 92.1 in intended proceedings. Isolating the interim application by the absence of any requirement with respect to the strength of the main application might also carry with it the possibility of abuse, and might strand the Board in a situation where grounds for an interim order might be made out but the main application was entirely and obviously without any merit whatsoever.

26With this in mind, we find it most appropriate to set out as one requirement in a test for interim relief that the main application must reflect an arguable case. By this we mean that if the applicant's assertions can be established, there is at least an arguable breach of the Act, or an argu­able case for a remedy within the parameters of some provision of the Act. While leaving room for some innovation by parties, such a test protects the integrity of the Board's processes by precluding interim relief where the main application is frivolous or vexatious. This provides the Board with an element of security and some coherence between the main application and the interim relief power, but gives recognition to our other concerns described above.

27We also find it more appropriate to consider this requirement as simply one ingredient in a test for interim relief, rather than an initial threshold of some kind. Setting up an assessment of the merits as a preliminary hurdle in an interim relief test suggests a two-step analysis which we find unnecessarily formal in the circumstances.

28Returning to the themes reflected in the interim order cases from other provincial boards, the next issue is the concept of irreparable harm. This formulation is not as useful to us as it might first appear. In the first place, a review of the cases suggest that it is a rather elastic con­cept, which is often interpreted differently from one case to another. Secondly, the experience of this Board is not that there are two distinct categories involving cases on the one hand where entirely adequate remedies can be applied, and those on the other where the available remedies are clearly deficient. Rather, it is a more accurate reflection of the Board's experience to say that most remedies cannot cure every aspect of the harm which may flow from a breach of the Act, and that at best, the Board attempts to provide some rough approximation. Labour relations matters often involve a cluster of intangible and fluid social relations which may be extraordinarily time-sensitive. Once these relations are ruptured, they are not easily restored through the sometimes clumsy operation of subsequent remedies. Indeed, it goes without saying that remedies are, by their very nature, a substitute for what should have happened.

29At the same time, when creatively exercised, the Board's wide remedial powers under section 91, for example, can often go a considerable distance toward repairing the mischief caused by violations of the Act. Any consideration of interim relief should also take into account the Board's experience in developing remedial orders which speak specifically to labour relations prob­lems. Moreover, we recognize that the imposition of relief before an adjudication on the merits is inherently problematic to some extent.

30In this context, we find it more useful to acknowledge that in terms of our ability to address harm through remedies available at the disposition of the main application, what we are really dealing with is degrees of adequacy on a continuum of damage. Attempting to force this reality into mutually exclusive legal pigeon holes such as irreparable damage as opposed to, say, repairable damage, is more artificial than we need to be, and does not reflect the Board's practical experience.

31If the concept of irreparable harm does not shed as much light as we would like on the test for an interim order, there is no doubt that some analysis of harm is still central. In considering the shape of that analysis, it is useful to return to the Board's own jurisprudence which emphasizes the importance of effective remedies as a critical component of the scheme of the Labour Relations Act. As the Board said in Radio Shack, [1979] OLRB Rep. Dec. 1220:

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.

32Moreover, both the Board and the Courts have long recognized that delay poses special problems in labour relations matters. In Consolidated-Bathurst Packaging Ltd. v. I. W. C., Local 2-69 (1984) 2 O.A.C. 277, the Court noted:

……there is a fundamental principle of labour law that injustice and detriment to the labour rela­tions of an employer and employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the courts may be summa­rized by saying:

In the law which has grown up around labour relations in this province and indeed elsewhere where the common law is pursued, the overriding principal invariably applied is that labour relations delayed are labour relations defeated and denied: The Journal Publishing Company of Ottawa Ltd. v. The Ottawa Newspaper Guild, Ont. CA. released May 17/77 (unreported) [since reported [1977] 1 A.C.W.S. 817 (Ont. C. A.)].

Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc. (1983), 1983 CanLII 1852 (ON HCJ), 41 OR. (2d) 287, the Court commented that delay in labour relations matters often works unfairness and hardship. To some extent then, the Board must ensure that delay does not in itself decide a case.

33The importance of effective remedies, their general imperfection in labour relations~ and the corrosive effects of delay all serve to highlight the critical role interim relief has to play in this area. If harm is not easily cured after the fact, and if delay is critical, it makes some sense to emphasize preventing that harm at the earliest possible point. However, it must be recognized that preventing one harm, to a union applicant for example, may well have a harmful labour relations effect on a responding employer. This suggests that a general predisposition towards preventing harm, rather than curing it, applies to the interests of both parties. In other words, the Board must balance the harm to each party in considering whether to grant an interim order. As a result, rather than separating out the concept of irreparable harm which appears to be a poor fit with the Board's experience in remedial matters, and then proceeding to an examination of the balance of convenience, we find it more consonant with labour relations realities to adopt an approach where we consider both what harm may occur if an interim order is not granted, and what harm may occur if it is. This does not mean that the notion of irreparable harm is entirely irrelevant. It merely reduces it to one of a number of aspects of harm which the Board might consider in this area.

34Of course, this leaves open to some extent the sort of harm we envision as relevant to this balancing process. Given the fact that this jurisprudence is in its infancy, it makes sense to allow the parameters of that harm to evolve in the context of concrete situations which will be pre­sented to us. Suffice it to say at this point that balancing the harm to the parties is not an exercise which takes place in a vacuum, but rather in the context of the purposes and scheme of the Act, which also serve to provide definition for the type of harm we would find persuasive. It is also worth noting that the Board has more flexibility in crafting interim orders than it may in final rem­edies. Because they are temporary, and because they are not dependent on a finding of a violation, for example, the Board has the relative luxury to conceive of interim justice as an endeavour in problem-solving, rather than fault-finding.

35This brings us to the facts before us. We observe firstly that there is little doubt that there is an arguable breach of the Act on the face of the section 91 complaint. The complaint alleges that a union organizer was fired by the company as a reprisal for his union activities, to interfere with those activities and to influence other employees against joining the union. If these allegations were proven, they would amount to violations of sections 65, 67 and 71 of the Labour Relations Act which provide as follows:

65. 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.

66. 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;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

The respective declarations filed by the parties leave no doubt that there is a dispute between the company and the union in this regard. In this sense, the main application satisfies this aspect of the interim order test.

36Moving on to the specific balance of harm in this case, the Board has frequently recorded the chilling effects of a discharge of a union organizer on an organizing campaign. For example, in Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board said as follows:

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 back-pay 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 of those occasions where he will not.

37Moreover, the Board has found on quite a number of occasions that the discharge of a union organizer during a union campaign may lead to a situation where the true wishes of employ­ees can no longer be ascertained, despite the Board's ability to reinstate the organizer. In other words, the intimidatory effect is so powerful that employees can no longer express their real views on unionization, with the result that certification is granted without a test of employee wishes. For example, in DI-AL Construction Limited, [1983] OLRB Rep. Mar. 356, the Board said in this regard:

A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made clear to employ­ees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employ­ment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bar­gaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employees are not likely to be ascertained in a representation vote.

38Similarly, in Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443, the Board was faced with a situation where a company had laid off a number of employees during an organizing campaign in violation of the Labour Relations Act. In this case, however, the company recalled the employees shortly thereafter and issued a letter indicating that employees were free to chose union representation or not. The Board found that the damage had already been done, despite the recall and letter, and that employees were no longer able to express their true wishes with respect to union representation. The Board came to a similar conclusion in Elbertsen Industries Limited, [1984] OLRB Rep. Nov. 1564, despite the reinstatement of an employee laid off in violation of the Act, although there were other factors which resulted in that finding as well.

39Why is the impact so severe when a union organizer is discharged? The Board has previ­ously commented on the peculiar vulnerability of employees who depend on the employer for their livelihood. In Pigott Motors (1961) Ltd. (1962), 63 CLLC ¶16,264, the Board said:

There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natural desire to want to appear to identify himself with the inter­ests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

In Roytec Vinyl Co., [1990] OLRB Rep. June 727, the Board commented on this problem in another context:

In the Board's experience, employees are often concerned that they may be subject to such reprisals by their employer for union activity. The Board's jurisprudence is replete with exam­ples of employees who were discharged or penalized in some way, at least in part, because of their support for unionization. For an employee who fears that joining a union will lead to a dis­charge or other penalty, the result he or she contemplates can be a loss of economic security, the loss of the social milieu of the workplace, a concomitant loss of self-esteem, identity or social standing, the uncertainty of finding another job and the possibility of a slide onto social benefits. Of course, in most cases such a bleak picture will not come to pass; nevertheless, the mere possibility of any of these consequences may exert a powerful influence on an employee contemplating collective bargaining, a regime frequently not welcomed by employers.

For similar reasons, a discharge has been referred to in arbitral jurisprudence as the "capital pun­ishment" of labour relations.

40The combination of the economic vulnerability of employees and their assumption that an employer does not welcome a union means that a union organizing drive is a relatively fragile enterprise in which momentum is often critical. Where a campaign is disrupted by an unlawful dis­charge, the Board's jurisprudence under section 9.2 of the Act reflects the fact that such momen­tum cannot easily be restored by the reinstatement of an employee at some point farther down the road.

41This raises the question of whether even interim reinstatement can prevent this kind of harm. We have no illusions that the powerful effect of a discharge in these circumstances can be entirely counteracted by earlier measures. Nonetheless, common sense suggests that early rein­statement can at least help to minimize some of the potential harm to an organizing campaign.

42Counsel for the company argued that section 9.2 of the Labour Relations Act provided the cure for any damage done to the union's campaign, and that as a result, no interim order was necessary. There is no doubt that the existence of section 9.2 provides a potent remedy in certain kinds of cases:

9.2 If the Board considers that the true wishes of the employees of an employer or of a member of an employers' organization respecting representation by a trade union are not likely to be ascertained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

Of course, for the reasons set out above, our interim order test is more dependent upon balancing the harm to the parties, and minimizing that harm at an early stage, than it is on the difficult exer­cise of speculating on the relative adequacy of various remedies. This means that we find it prefer­able to emphasize protecting, at least to some extent, the ability of employees to freely express their wishes on unionization, rather than relying at this point on a subsequent remedy based on that ability having been impaired. We also note, however, that section 9.2 is not available in the section 91 complaint to which this application relates. Rather, it will only be available if an applica­tion for certification is eventually filed, if the employer is found to have contravened the Act, and if such contravention results in a situation where the true wishes of employees are not likely to be ascertained. Moreover, all section 9.2 provides is certification, leaving open the question of whether the potential undermining of union support may have a broader or long-lasting effect, whether or not an application for certification is ever filed. As a result, while acknowledging the utility of section 9.2, we do not find it provides us with much comfort in the circumstances of this case.

43We conclude, then, that the potential harm of not granting the interim order is signifi­cant. This brings us to a consideration of the harm that may result from granting the order. Interim reinstatement of Mr. Quessy will mean that the company must continue to employ an individual who admittedly lied to company officials, and lied to them about a theft. We recognize that any theft is of considerable concern to an employer, and, the company asserts, in this particular indus­try. There is no doubt that this is an unpalatable and difficult prospect for the company, and that reinstatement in these circumstances may have at least some temporary negative effect on the man­agerial authority of the company, and perhaps in particular, on its policy with regard to theft.

44However, we observe that any interim reinstatement order will only be in effect until the disposition of the main application, which is scheduled to start less than two weeks hence. It also seems unlikely that the discharge offence will be repeated within such a short period of time. In these circumstances, the potential harm to the company is minimized. Of course, this fact mini­mizes the harm to the applicant as well. On the other hand, having regard to the critical momen­tum of an organizing campaign and the corrosive effects of delay, even a number of days may make a substantial difference in amplifying the chilling effect of the discharge of a union supporter. On balance, we find that the harm from granting the order is less than the harm which may flow from not granting it. Having regard both to our conclusion in this respect and our finding that the sec­tion 91 complaint reflects an arguable breach, we conclude that an interim order reinstating Mr. Quessy is appropriate.

45However, we decline to award interim compensation for the period between Mr. Ques­sy's discharge and his interim reinstatement. While we accept that Mr. Quessy's financial loss may also have a chilling effect, if compensation is ultimately determined to be appropriate the delay in its provision exacts a relatively minor toll, given how quickly Mr. Quessy has been reinstated and the early scheduling of the section 91 complaint. This is particularly true in a context where the Board usually awards interest where it finds compensation is payable. In contrast, the difficulty of the company attempting to retrieve any amount paid if the Board ultimately finds that it did not violate the Act is considerable. Again, in considering the balance of harm with respect to this mat­ter, it appears to us that compensation is more appropriately dealt with by the Board panel addressing the merits of the section 91 complaint.

46Our colleague's concurring opinion will follow shortly.

[The concurring decision of Board Member Ronson dated April 23, 1993 will be reported in [1993] OLRB Rep. April: Editor]