United Food and Commercial Workers International Union, Local 175 v. Price Club Canada Inc., 1993 CanLII 7898

Ontario Labour Relations Board

[1993] OLRB Rep. July 635

3239-92-M United Food and Commercial Workers International Union, Local 175, Applicant v. Price Club Canada Inc., Responding Party

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.

APPEARANCES: Douglas J. Wray, Richard Wauhkonen, Vince Gentile and Ken Darnell for the applicant; C. E. Humphrey, M. Sherrand and Gail Warnica for the responding party.

DECISION OF ROBERT D. HOWE, VICE-CHAIR AND BOARD MEMBER R. W. PIRRIE; July 16, 1993

1. This is an application for an interim order under section 92.1 of the Labour Relations Act, which provides as follows:

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.

2. In a decision dated March 2, 1993, a majority of this panel ruled as follows:

For reasons which will issue at a later date, the majority of this panel, with Board Member Dav­ies reserving her decision on the matter, hereby dismisses this application for an interim order under section 92.1 of the Labour Relations Act.

These are the reasons for that decision.

3. This application relates to Board File Nos. 1467-92-U, 1535-92-R, 1602-92-R, and 1615-92-U. The first of those four files is a complaint under section 91 [formerly section 89] of the Act in which the applicant (also referred to in this decision as the "Union") alleges that the responding party (also referred to as the "Company") terminated the employment of Kenneth Darnell because of his support for the Union. That complaint was filed with the Board on August 19,1992. File Nos. 1535-92-R and 1602-92-R are certification applications filed by the Union on August 26, 1992, and September 4, 1992, respectively, in relation to full-time and part-time employees at the Company's Westminster (London) store. File No. 1615-92-U is a further section 91 complaint (filed on September 8, 1992) in which the Union alleges a number of other unfair labour practices on the part of the Company (which is said to have contravened sections 3, 65, 67, 71, 81, and 82 of the Act).

4. In an unreported decision dated November 5, 1992, another panel of the Board chaired by the Vice-Chair of this panel wrote, in part, as follows regarding those four files:

5. After hearing submissions on some of the issues in dispute in respect of the certification appli­cations, the Board, in a decision dated October 15, 1992, determined an appropriate bargaining unit for each of the applications and resolved all of the challenges to the respondent's lists except the Union's requested addition of Ken Darnell. Mr. Darnell's status was described as fol­lows in paragraph 15 of that decision:

…..As regards the applicant's requested addition of Ken Darnell, who was discharged by the respondent prior to the filing of that application, it is common ground among the parties that if the Union's section 91 complaint (File No. 1467-92-U) regarding Mr. Darnell's discharge results in his reinstatement, his name would be added to the list. Thus, the resolution of that requested addition must await the disposition of that complaint....

3. At the October 21, 1992 continuation of hearing, the count for the full-time bargaining unit was corrected from 55 out of 101 employees to 55 out of 100 employees. Accordingly, paragraph 16 of the Board's decision dated October 15, 1992 is revoked and the following is substituted for that paragraph:

4. In respect of bargaining unit #1, the applicant has filed membership evidence for 55 out of the 100 employees currently included on the respondent's list for purposes of the count (i.e., not more than 55%). If the Union's aforementioned section 91 complaint results in Mr. Damell's reinstatement, the count will become 56 out of 101 employees (i.e., more than 55%) and the petitions filed by the objectors will become numerically relevant to the issue of whether a representation vote should be taken, since four of the employees in bargaining unit #1 who signed membership cards also signed a petition. However, the counter-petitions filed by the Union will remain num­erically irrelevant as only two of those four employees signed a counter-petition.

5. Since this panel of the Board is not seized of these matters and another panel has substan­tially earlier hearing dates available, these four files have been listed for hearing before another panel of the Board on the following dates (to which the parties agreed on October 21, 1992): February 11, 15, and 17, March 1 and 2, April 1, 2,6,7,8, 20, 21, 27, and 28, 1993.

6. The Union has filed cards for less than forty-five per cent of the Company's part-time employees, and seeks to be certified as their bargaining agent under the following provision, which was section 8 of the Act prior to the Bill 40 (S.O. 1992, c.21) amendments:

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support ade­quate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, 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.

Bill 40 repealed that provision and substituted section 9.2, which provides:

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 ascer­tamed 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.

Section 8 is also relied upon by the Union as an alternative means of obtaining certification for the full-time unit.

6. In this interim order application which was filed on February 8, 1993, the Union requested an interim order reinstating Mr. Darnell into his former position with the responding party. (It also requested interim compensation for Mr. Darnell, but that request was not pressed by the Union at the hearing of this application.)

7. In support of this application, the Union filed two declarations, one by Mr. Darnell and the other by Richard Wauhkonen, an organiser for the Union. The material portions of Mr. Dar­nell's declaration may be summarised as follows. Mr. Darnell commenced employment at the Company's Westminster Store in October of 1990 as a "maintenance man". After becoming aware in April of 1992 that the Union was attempting to organise the Company's employees, he signed a Union membership card on June 9,1992, and became an active supporter of the organizing drive. From June to August of 1992, Mr. Darnell spoke with numerous co-workers, advocating the bene­fits of a union in the workplace and directing them to one of the Union's key inside organizers. During July various members of management saw him talking to other Union supporters. On August 10, he posted in the Company's lunchroom a newspaper article regarding a Union contract settlement. On the following day he posted another article regarding pay equity. Shortly after this he was called into the Store Manager's office and informed that his employment was being termi­nated for stealing cigarettes. Mr. Darnell denies that he stole cigarettes or anything else from the responding party, and expresses the view that he was terminated because of his affiliation with the Union. He is married and lives with his wife and two children, aged ten and twelve. His wife does not work outside of the home, and he is the sole provider for his family. Since the time of his ter­mination, he has been unable to find employment. He has been receiving Unemployment Insur­ance Benefits which, at the time he signed the declaration on February 5,1993, were to be termi­nated in the near future. As a result of his termination, Mr. Darnell and his family have been forced to severely reduce their expenditures. He and his wife are no longer able to pay their monthly utility bills, and their children are no longer able to join their classmates on school out­ings.

8. Much of the material contained in Mr. Wauhkonen's declaration essentially reiterates the allegations contained in the Union's unfair labour practice complaints, and is not based upon his "first-hand knowledge", as required by Rule 86(a) of the Board's Rules of Procedure. It is unnecessary to detail those allegations or to determine what weight, if any, should generally be given to hearsay material contained in declarations filed with the Board in support of an applica­tion for an interim order under section 92.1 of the Act. It suffices for purposes of this decision to merely note that if those allegations are true, Mr. Darnell will in all probability be entitled to be reinstated with compensation for lost wages and benefits, and the Union will very likely be certi­fied without a representation vote.

9. Thus, assuming that all of the facts relied upon by the applicant are true, the Board is satisfied that an arguable case has been made out for a number of the orders sought in the proceed­ings to which this application relates, including Mr. Darnell's reinstatement. We turn then to the more difficult matter of weighing the labour relations harm which could result from granting or not granting the interim reinstatement of Mr. Darnell sought by the application in the instant case.

10. Paragraph 6 of Schedule "A" to the (Form A-40) application indicates that the appli­cant "relies on the harm alluded to in the Declarations of Mr. Darnell and Richard Wauhkonen as its reasons in support of this Application." In addition to the aforementioned harm which the ter­mination has caused to Mr. Darnell and his family, those declarations indicate that the termination of Mr. Darnell has harmed the Union by creating a chilling effect on its organizing drive. In his declaration, Mr. Darnell expresses the belief that his termination "has caused the Union great prejudice in signing up members", as it "has frightened other employees from joining the Union or even talking about it for fear they may also be terminated." Mr. Wauhkonen asserts in his declara­tion that "Mr. Darnell's termination has caused much unrest amongst the Respondent's employees and has created a chilling effect on the Union's campaign." He also expresses a belief "that the Union will suffer further prejudice if an interim order reinstating Mr. Darnell is not granted and the harm already done not mitigated as far as possible."

11. In his able submissions on behalf of the Union, Mr. Wray also submitted that if interim reinstatement is not granted, the discharge could have a chilling effect on any attempts by the Union to organize the office and clerical workers who are excluded from the bargaining units, could undermine existing support for the Union, and could have an adverse effect on a representa­tion vote.

12. The Company filed with its response a declaration by Gail Warnica, who is the Compa­ny's Director of Human Resources, Ontario Region. That declaration reads as part in follows:

13. Kenneth Darnell's employment with the company was terminated on August 11, 1992. The sole reason for the termination of Mr. Darnell's employment was the company's conclusion that he had been involved in the theft of cigarettes from the company on August 10, 1992.

14. The company in coming to the conclusion that Mr. Darnell had stolen cigarettes from the company relied on a videotape which shows Mr. Darnell in the act of stealing cigarettes. The behaviour exhibited by Mr. Darnell in the tape is consistent only with an intention to steal.

15. The company has well-established rules under which theft is cause for discharge.

16. The company has had a consistent, long-standing practice of terminating employees for theft.

17. The termination of Mr. Darnell's employment was consistent with the company's rules and practice regarding termination for theft.

18. The termination of Mr. Darnell's employment was in no way related to any union activity in which he is alleged to have been involved.

19. Employees of the company are aware of the reason for the termination of Mr. Darnell's employment. If Mr. Darnell were to be reinstated at this time it is my belief that it would be interpreted by employees as an indication that the company's rules cannot be enforced by the company and that theft of company property will not result in termination of employment.

20. Part V of Schedule "A" to the Company's response reads as follows:

V. The Resoondin2 Party will Suffer Harm in the event that the Order is Granted

15. The Application for Interim Relief seeks to return to the workplace an employee whose employment has been terminated for very serious misconduct. Given the nature of the Responding Party's business, employee honesty is an important consideration for the Respond­ing Party. Not only would returning Mr. Darnell to the workplace put the Responding Party at risk of a repetition of the conduct that originally lead to his discharge, but would undermine the efforts of the Responding Party to ensure that there is a clear understanding on the part of employees of the consequences of theft. The effects on the employer of a return of Mr. Darnell to the workplace are significant and cannot be compensated for.

16. In the case of Mr. Darnell, in the event that he is reinstated the financial loss that he has suf­fered can be compensated by an award of damages.

(The first four parts of that schedule detail requests that the application be dismissed on the grounds of non-compliance with Rule 86, unreasonable delay in bringing the application, lack of a sufficiently strong labour relations interest to justify the granting of an interim order, and lack of a prima facie case to justify the granting of interim relief.)

14. It is clear from the foregoing that Mr. Darnell and his family have suffered a substantial financial loss as a result of his discharge. To the extent that other employees may have concluded that Mr. Darnell's discharge was based upon his support for the Union, their concern that they too might suffer such loss may well have had a chilling effect on the Union's organizing drive. How­ever, as indicated above, the Union filed its applications for certification on August 26, 1992, and September 4, 1992. Thus, the level of employee support was crystallized for purposes of those applications on the terminal dates in September of 1992 which were assigned to those applications. Nothing which this Board could have granted by way of interim relief in late February or early March of 1993 would have altered any chilling effect which the Company's termination of Mr. Dar­nell may have had upon the Union's ability to sign the Company's employees into membership in the late summer or early fall of 1992.

15. Section 92.1 came into force on January 1, 1993. This application was not filed with the Board until February 8, 1993. Thus, this application could have been filed approximately a month earlier than it was. Although it is unnecessary to decide whether a delay of that magnitude will generally prompt the Board to dismiss an application for an interim order, we note that such delay lends considerable credence to the responding party's contention that the matter is not sufficiently urgent in nature to warrant the granting of an interim order. While no blame can be attributed to the applicant in respect of the period from August 11,1992 to January 1,1993, the fact that interim relief was not available at the time of the discharge and during that ensuing period of four and a half months also militates against the granting of interim relief in the circumstances of this case, in which it was impossible for the Board to intervene in a timely fashion to effectively reverse or sub­stantially mitigate the chilling effects of the discharge.

16. Although the adverse financial situation in which Mr. Darnell and his family have been placed as a result of his termination certainly engenders feelings of sympathy for them, that does not, by itself, warrant the granting an interim order under section 92.1 of the Act. If, as contended by the Union, the Company's discharge of Mr. Darnell contravened the Act, he will be entitled to be reinstated and to be compensated for all lost wages and other benefits, with interest. Although it is doubtful that reinstatement and damages can entirely remedy all of the harm suffered during a period of unemployment resulting from a discharge in contravention of the Act, it is clear that the harm that the applicant seeks to avoid in relation to Mr. Darnell (and his family) is predominantly, if not exclusively, financial in nature. We are not persuaded that it would be appropriate for the Board to grant an interim order in respect of harm of that type in the circumstances of this case.

17. We are not prepared to give any weight to Union counsel's submission that Mr. Dar­nell's discharge could have a chilling effect on any attempts by the Union to organize the Compa­ny's office and clerical workers, because no mention of that potential harm was made in the appli­cation, nor in either of the declarations filed by the applicant. As regards the discharge's potential adverse effect on a representation vote, no such vote will be conducted until after the panel charged with hearing the merits of the aforementioned applications and complaints has determined whether or not the Company contravened the Act by discharging Mr. Darnell. If his discharge was violative of the Act, the addition of Mr. Darnell's name to the list will result in the full-time count becoming 56 out of 101 (i.e., more than fifty-five per cent), and in the petitions filed by the objecting employees becoming numerically relevant. If those petitions are found to be volun­tary, a representation vote will only be directed if the Board concludes that the true wishes of the employees would be likely to be ascertained by means of a representation vote despite that dis­charge and any other contraventions of the Act by the Company. Otherwise, the Board will be in a position to certify the Union without a representation vote. Since the Union has not filed a suffi­cient number of membership cards to obtain a representation vote in respect of the part-time bar­gaining unit, its certifiability for that unit will depend upon whether or not certification without a representation vote is available to it under the applicable statutory provision. Thus, in the circum­stances of this case, there is relatively little merit in the applicant's contention that if interim rein­statement is not granted, Mr. Darnell's discharge could have an adverse effect on a representation vote.

18. Although the possibility that Mr. Darnell's ongoing unemployment and concomitant financial difficulties may undermine existing support for the Union is a matter of legitimate con­cern, in the circumstances of this case the possible harm to the applicant if interim reinstatement is not granted is not of greater significance than the possible harm which may result to the responding party if the order sought by the applicant is granted. If, as contended by the responding party, Mr. Darnell was discharged for stealing cigarettes from the Company in contravention of well-estab­lished rules under which theft is cause for discharge, his interim reinstatement could not only cre­ate a risk of further theft on his part, but could also indicate to other employees that the Company cannot enforce those rules, thereby undermining the Company's efforts to ensure that there is a clear understanding on the part of its employees of the consequences of theft. Such harm, which is particularly significant in the context of the industry in which the Company operates, could not be effectively compensated for or otherwise redressed.

19. For the reasons set forth above, and with particular regard for our assessment of the rel­ative harm which could be suffered by the applicant and the responding party (which, in the cir­cumstances of this case, included considerations relating to the applicant's one month delay in fil­ing the application, and the further period of four and a half months which had elapsed between the date of the discharge and the date on which section 92.1 came into force), we decided not to grant the interim order sought by the applicant, in the exercise of our discretion under section 92.1 of the Act.

DECISION OF BOARD MEMBER KAREN DAVIES; July 16, 1993

1. I have read the decision of the majority and with the greatest respect I dissent. The harm the applicant will suffer from the Board's denial of the interim relief outweighs the harm that the employer will experience if we were to grant the relief.

2. The majority appears to have drawn a "bright line" when determining whether to grant interim relief in an unfair labour practice case like this. It appears to have made the filing of an application for certification the event before and after which the likelihood of the Board granting interim relief is greater and lesser, respectively.

3. I do not believe that a "bright line" ought to be drawn at all in unfair labour practice interim relief cases. However, if one is going to be drawn at all, it should not be at the early point of application for certification. Drawing a line as the majority has done is not only arbitrary, it fails to take into account the fact that there are other important statutory rights that stand apart from the right to be certified, and that these rights can be impaired -- perhaps permanently and irreversi­bly -- even after the date on which an application for certification has been filed.

4. At a minimum, the majority should have considered the potential harm to the employ­ees and union up to the date of the disposition of the certification application. On this point, section 92.2 of the Act should be instructive. That section allows a union to request an expedited hearing on a s.91 complaint alleging that an employee has been disciplined, discharged or other­wise penalized contrary to the Act "during the period beginning with a trade union's organizing activities and ending with the disposition of its application for certification." (emphasis added) With this section the legislature has, in recognizing the importance of expedition and the detrimental effect of delay in dealing with a union's allegation of an unfair labour practice during a union's organizing campaign, signalled its view of the particularly vulnerable period of the organizing cam­paign as extending up until the disposition of the application for certification, not only up until the date the application is filed.

5. Drawing a "bright line" at the date of application not only ignores the clear signal of the legislature, it also does not take into account the dynamics of employee-employer relations. An employee's real or perceived economic vulnerability vis-a-vis his or her employer does not end when a certification application is filed. Employer unfair labour practices seriously jeopardize union support and inhibit lawful union activity even in a relatively mature collective bargaining relationship (which this is not). This fact of employee vulnerability has long been recognized by this Board. For example, in Silknit Limited ([1983] OLRB Rep August 1362), an unfair labour practice discharge of a union steward occurred well into the collective bargaining relationship. The Board in that case stated:

It goes without saying that the grievor must be immediately reinstated and compensated for all lost wages and benefits together with interest. We so award. However, we do not think that this, in itself, is sufficient, for it does not redress the "chilling effect" on other employees who would be aware of the discharge and understand its origin. The evidence before the Board is that Mr. Islam's discharge is a matter of some concern to the employees who recently elected him to rep­resent them; moreover, the dismissal of the grievor in the circumstances here conveys a strong warning to other employees which would inevitably dissuade them from engaging in activities which, in fact, are protected by the statute."

6. Employees who witness the economic, social, psychological and emotional losses that are experienced by an employee who has been discharged because of his or her union activities are likely to be hindered from freely exercising their rights under the Act to support a union and to participate in lawful union activities. This deprivation of the ability to exercise statutory rights is an important harm in and of itself. Moreover, this will impact on the level of support a union receives and can sustain, and this can have negative consequences for the union for its entire tenure at that workplace. In addition, the potential ripple effect an unfair labour practice discharge creates is a harm that should be taken into account. This would recognize that a chilling effect lingers with an employee long after he or she leaves the workplace at which the unfair labour practice was com­mitted. As an employee comes into contact with other employees at new workplaces, his or her negative experiences are sure to impact upon the other employees' views of the desirability of enforcing their statutory rights.

7. I also disagree with the majority statement that "the harm that the applicant seeks to avoid in relation to Mr. Darnell (and his family) is predominantly, if not exclusively, financial in nature", and that it is not appropriate for the Board to grant an interim order to prevent that type of harm. Assuming that there is such a category in the labour relations arena as "pure financial harm" for which interim relief should not be made available, this is not it. There is a significant element of non-monetary harm that a discharged employee suffers that is irreparable and that can­not be compensated in an award of damages. Stress, anxiety, indignity, lifestyle adjustments, loss of the social milieu of the workplace, loss of self-esteem, identity or social standing, and the uncer­tainty of finding another job (Roytec Vinyl Co., [1990] OLRB Rep. June 727) are examples of harms that are not of a financial nature.

8. Each day that Mr. Darnell remains discharged, employees at the company's workplace may be dissuaded from exercising their statutorily protected rights, the union's level of support can be jeopardized, and Mr. Darnell can incur the types of personal harm outlined above. I agree with the Board in Loeb Highland ([1993] OLRB Rep. March 197) that the emphasis in interim orders should be on protecting rights rather than relying on a subsequent remedy based on the rights being violated. Based on this, I think any reliance by the majority on the possible availability of a certificate pursuant to a s. 9.2 remedy and/or reinstatement with compensation at the end of the hearing on the merits appear to be misplaced. These remedies will not adequately address the impact of the chilling effect on the support for the union and it can do nothing to retroactively rec­tify the daily chilling effect on employees' appetite to exercise their rights under the Act, or the non-financial harms Mr. Darnell would have suffered.

9. I would conclude then, that the potential harm of not granting the interim order is sig­nificant. This brings me to a consideration of the harm that may result from granting the order.

10. Interim reinstatement of Mr. Darnell would mean that an employee who is suspected of theft would be back in the workplace. I recognize that any theft is of considerable concern to an employer. However, the low rate of recidivism in theft cases should go some length to address the employer's concerns, and in this respect the potential harm to the employer is minimized. (See George Adams' study "Grievance Arbitration of Discharge Cases" (Industrial Relations Centre, Queen's University, 1978) which found that the rate of recidivism for employees who were discip­lined for dishonesty was the lowest of all categories studied.) See also the concurring opinion of the management board member in Loeb Highland, ([1993] OLRB Rep. April 354) in which the risk of a theft occurring during the period of interim reinstatement was assessed as being minimal.

11. The employer also claimed that interim reinstatement would have a negative effect on the managerial authority of the company, and particularly on its policy with respect to theft. This harm could be minimized by posting a Notice to Employees similar to the one that was utilized in Tate Andale Canada Inc. ([1993] OLRB Rep. March 254). It would explain that the reinstatement of Mr. Darnell is on an interim basis only, until the reason for his discharge is determined, and that if ultimately he is found to have been discharged for theft his discharge may be confirmed.

12. In view of the above, I would have granted the relief sought by the applicant and ordered the interim reinstatement of Mr. Darnell.