United Food and Commercial Workers Union, Local 175/633 v. 988421 Ontario Inc. c.o.b. as East Side Mario's, 1993 CanLII 7855

[1993] OLRB Rep. August 744

1119-93-M United Food and Commercial Workers Union, Local 175/633, Appli­cant v. 988421 Ontario Inc. c.o.b. as East Side Mario's, Responding Party

BEFORE: Brain Herlich, Vice-Chair, and Board Members F. B. Reaume and H. Kobryn.

APPEARANCES: W. Dubinsky, Eric Desbiens and Michael J. Duden for the applicant; Ei]a Pelto­kan gas for the responding party.

DECISION OF THE BOARD; August 19, 1993

1. This is an application for an interim order filed pursuant to section 92.1 of the Labour Relations Act. The applicant's request relates to a section 91 complaint in Board File 1120-93-U (hereinafter referred to as the "main application") in which the applicant union alleges that the discharges of Albert Francoeur and Eric Desbiens (the "grievors") were in violation of the Act. By decision dated July 5, 1993 [now reported at [1993] OLRB Rep. July 587] the Board ruled as fol­lows:

2. The Board hereby directs that 988421 Ontario Inc. cob. as East Side Mario's forthwith rein­state Eric Desbiens and Albert Francoeur, on an interim basis, pending the final disposition of their unfair labour practice discharge complaint Board File 1120-93-U. We do not think that it is appropriate and we decline to grant any order regarding compensation to the grievors.

3. The Board further directs 988421 Ontario Inc. c.o.b. as East Side Mario's to post the notice attached as Appendix 'A" in prominent places in the workplace, where it is most likely to be seen by employees interested in these proceedings.

4. Reasons for this decision and direction will follow in a subsequent decision.

5. These are the reasons for that decision.

6. Both parties filed materials, including signed declarations, as required by Rules 86 and 89 of the Board's Rules of Procedure. Some issues were raised as to the adequacy and sufficiency of these materials. The employer argued that we ought not to rely on the declarations of the griev­ors since neither declaration includes the statement "This declaration has been prepared by me or under my instruction and I hereby confirm its accuracy" as required by Rule 86. The grievors' dec­larations include the preamble "I make this declaration further to the Complaint filed by the Applicant against the Responding Party relating to my termination from employment on the 8th day of June, 1993" and are each executed by the appropriate grievor. The union argued that this deficiency was highly technical and, if necessary, it asked the Board to relieve against the strict application of the Rules in this regard. The employer has not indicated what prejudice, if any, flows from what it asserts is the union's non-compliance with the Rules. While we are not in any event attracted to the highly technical position advanced by the employer (indeed, such an approach might have led us not to consider any of the employer's materials in view of its apparent non-compliance with Rule 9), we are satisfied that the union has substantially complied with the requirements of Rule 86. Alternatively, in the circumstances of this case we would be prepared to relieve against the strict application of the Rules.

7. The employer also pointed to some portions of the declarations filed claiming these were clearly not within the first hand knowledge of the declarants. There is no question that a party which files declarations which include information not within the first hand knowledge of the declarant does so at its peril. Indeed, in Loeb Highland, [1993] OLRB Rep. Mar. 197 the Board, to the extent it was necessary to rely on the declarations filed, used only those facts that were either first-hand, or not in dispute between the parties. The inclusion of some hearsay along with first hand knowledge in a declaration will, however, not render the entire document void of any utility for the Board's purposes. Where, however, the only support for a critical aspect of a party's case is a hearsay portion of a declaration, the Board may attach little or no weight to that portion of the declaration. In this regard, we note that the company acknowledged that we ought to apply an equally rigorous standard with respect to hearsay portions of its materials as the employer sought to apply to those filed by the union. Related to this issue we note that the employer ulti­mately conceded that, subject to its concern regarding the hearsay nature of some of the informa­tion involved, there was nothing inappropriate in a declarant referring to and incorporating por­tions of a party's pleadings into his declaration without explicitly repeating them. Similarly, while none of the declarations (with an exception noted below) explicitly detail the harm that might result from granting or not granting the order sought, both parties were able to make argument and submissions regarding that harm based on the materials they had filed.

8. Briefly summarized, the union's materials allege that the grievors met with a union representative on May 27, 1993 to discuss unionization. They received union materials, membership application cards and instructions regarding solicitation of members. On the same and following days the grievors became key organizers in the union's organizing campaign and actively solicited fellow employees to become members of the union. This solicitation took place both at and away from the workplace. The union alleged certain other facts, which we find unnecessary to outline or rely on here, leading to the conclusion that the employer was aware of the grievors' union activity prior to their discharges. Both grievors were discharged by letters dated June 8, 1993. The termina­tion letters provide no reasons for the discharge, advise that the grievors are receiving one week's pay in lieu of notice, and notify the grievors that they are barred from entering the employer's premises. Mr. Francoeur was also given a copy of an authorization the employer provided to the Thunder Bay Chief of Police under the Trespass to Property Act regarding Mr. Francoeur. The applicant alleges that since the discharges its organizing campaign has come to a virtual halt and that employees have become afraid to even discuss union matters let alone sign membership cards. The union's materials also detail some of the personal and financial harm the grievors claim they and their family members have and are continuing to suffer as a result of the discharges. We have not found it necessary to rely on this latter aspect of alleged harm.

9. The employer asserts that the grievors were discharged because they were believed to be stealing from their employer. In addition Mr. Desbiens was further dismissed for threatening a fellow employee with physical harm. The company acknowledges that it was aware of union orga­nizing activity but denies any knowledge of the grievors' involvement therein until after the dis­charges. Reliance is placed on the declarations executed by four different individuals filed in sup­port of the responding party in this matter.

10. The Board was referred to a number of its recent decisions dealing with the power to grant interim orders under section 92.1 of the Act (see Loeb Highland, cited above (and the con­curring opinion of Board Member Ronson reported at [1993] OLRB Rep. Apr. 354); Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242; and Morrison Meat Packers Limited, [1993] OLRB Rep. Apr. 358). These cases make it clear that the Board will perform two key assessments in determining whether or not to grant an interim order. First, the Board will make an assessment of the apparent merits of an applicant's case in the main application. This assessment, however, of necessity must be made within certain limited parameters and will rarely, if ever, include any determination as to whether or not the Act has been violated (a determination which will be reserved for the panel dealing with and hearing all of the evidence in the relevant main application). As the Board observed in the Loeb case, cited above, at paragraph 22 and following:

This 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.

….With 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.

8. Similar considerations were outlined by the Board in the Morrison case, cited above, at paragraph 16:

……it is hardly surprising that there are significant differences in the conduct of these types of proceedings. The most obvious difference is that oral hearings need not be held in these cases. Further, given the premium attached to expedition, even in cases where a hearing is held the Board is unlikely to entertain viva voce evidence. And while the parties are required to file dec­larations detailing all of the facts relied upon and signed by persons with first hand knowledge, the rules contemplate no opportunity for cross-examination of the declarants. These procedures are consistent with the need for expedition and the fact that no final determinations are made in these types of proceedings. In this context the Board is obviously unlikely to arrive at any firm conclusions regarding the merits of the main application - at best it can only draw some conclu­sion about the apparent nature of that application. Thus, it appears to us that the most appropri­ate fashion for the Board to evaluate the apparent merits of the main application should resem­ble that in which the Board makes determinations under (both the former section 71(1) and the current) Rule 24 of the Board's Rules of Procedure which reads, in part:

Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing...

In other words unless the Board is satisfied that, assuming the truth of all the facts relied upon by the applicant, an arguable case for the orders or remedies sought in the main application is made out, the applicant's request for an interim order will not be granted.

9. It is clear that this assessment of the apparent merits of the main application is made on the basis of the applicant's materials and assuming that all of the facts alleged by the applicant are both true and provable. There is no doubt in our mind that, on this basis, the applicant has estab­lished an arguable case for the remedies sought in the main application. Indeed, we are satisfied that we would arrive at the same conclusion even if we were to ignore the applicant's materials insofar as they allege actual knowledge by the employer of the grievors' union activities prior to the discharges (allegations which are explicitly denied in the company's materials). It is difficult to imagine circumstances in which the discharge of key inside union organizers during the early stages of an organizing campaign would not give rise to an arguable violation of the Act. This is not to suggest that every such complaint, or, indeed, the instant one, will succeed on the merits. That, however, is not the determination to be made in the context of an application for an interim order. We are satisfied that the union's application makes out an arguable case for the remedies sought in the main application.

10. The second assessment the Board performs involves a relative evaluation of the harm which may result from granting or not granting the interim order being sought.

11. The present case involves the discharges of union organizers. The potential harm flow­ing from such conduct has been recognized by this Board long before the advent of interim relief under section 92.1 and was considered at length in the Loeb case at paragraph 36 and following:

12. Moving 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 be will not.

37. Moreover, 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.

38. Similarly, 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 choose 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.

39. Why 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 Retake 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 say, 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.

40. The 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.

41. The potential labour relations harm flowing from the discharge of a union organizer was also highlighted in the concurring reasons of Board Member Ronson who observed at paragraph 2 in the Loeb case:

It is also clear to me that the Legislature felt that the effect of the termination of an organizer during a union campaign was so severe that, in most situations, the Board should exercise its discretion to reinstate the organizer pending a hearing to determine if the employer's motive was tainted by anti-union animus.

13. The harm the employer seeks to avoid in resisting the interim order sought is that it will be required, if the order is granted, to have employees on the premises whom it suspects have par­ticipated in theft and/or have threatened fellow employees. In the Loeb case the grievor's admitted (although indirect) participation in theft was insufficient to cause the Board to conclude that the potential harm of reinstatement outweighed the potential harm of not granting the order sought. In our case, there is, of course, no admission of wrongdoing on the part of either grievor. Further, while it would be inappropriate for us to make any factual findings in the face of disputed facts, we do find it helpful to briefly analyze exactly what conclusions are possible assuming the truth of all the materials filed by the employer. The only support for any conclusion regarding the grievor Desbien's participation in any theft comes from inconsistent, if not conflicting, portions of the dec­larations of Ray Rose and Rick Fahey. Those relevant portions can be charitably described as mul­tiple hearsay. The only support for any conclusion that the grievor Francoeur participated in any theft can best be described as circumstantial. Furthermore, apart from the assertion that a theft took place on May 18, 1993 there is nothing in the company materials to indicate what, if anything, is alleged to have been stolen. Furthermore, Mr. Rose's declaration specifically acknowledges that there was insufficient evidence to prosecute Mr. Francoeur for theft. Finally, the only support for the allegation that the grievor Desbiens threatened an employee comes from multiple hearsay in the declaration of Mr. Fahey attributing statements to a person identified only as Phil and from the declaration of Mr. Rogers who alleges that Mr. Desbiens said "somebodies legs would have to be broken" if "he" (it is not clear whether the reference is to Mr. Desbiens or Mr. Francoeur) was suspended or fired. Mr. Rogers took these comments as referring to him. We emphasize, again, that we are not making any findings of fact on disputed evidence and, indeed, it may well be that the full picture of all of the evidence (including cross-examination) which emerges in the main application may be significantly different from that indicated by the parties' materials here.

14. We note as well that, at the time this panel granted the interim order sought herein, hearing in the main application was scheduled to commence on July 15, 1993, and to continue from day to day (Monday to Thursday) until completion. Thus, the 10 days that would have elapsed from the date of the hearing in the instant matter to the commencement of the hearing in the main application was significantly less than the period the employer allowed to elapse between its dis­covery of the alleged theft on May 18 and its subsequent discharge of the grievors on June 8, 1993.

15. Having considered the factors just outlined the Board was satisfied that the potential labour relations harm the union sought to avoid was significantly greater than the potential harm of temporarily reinstating the grievors to employment pending the disposition of the main applica­tion. We also concluded that it would be appropriate to leave issues of compensation to be deter­mined in that application. It was for these reasons that the order reproduced above was made.