United Steelworkers of America v. Tate Andale Canada Inc., 1993 CanLII 7913

[1993] OLRB REP. OCTOBER 1019

3438-92-M United Steelworkers of America, Applicant v. Tate Andale Canada Inc., Responding Party

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members W. H. Wightman and H. Peacock.

APPEARANCES: Robert Healey for the applicant; John W. Woon, Brian McBain and Brian Boucher for the responding party.

DECISION OF R. 0. MacDOWELL, ALTERNATE CHAIR, AND BOARD MEMBER H. PEACOCK; October 13, 1993

1. This is an application for an "interim order" and/or "interim relief' filed in conjunction with an unfair labour practice complaint. For convenience, we will refer to the applicant as "the union" and the proceeding simply as an application for "interim relief'. We will begin with certain background material, then turn to the substantive issues in the case.

I - BACKGROUND

2. In the underlying unfair labour practice complaint, the union contends that employees Heath Sweetman and Rod Cake have been discharged because of their trade union activities. The union asserts that those discharges contravene a number of sections of the Labour Relations Act:

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

4. No employer or employers' organization and no person acting on behalf of an employer or 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 the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

5. 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;

(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.

72. Each of these sections has a slightly different focus, but taken together they serve at least three distinct purposes: they protect the institutional interests of the union, they bolster the employees' right to organize, and they provide specific redress for individuals who have been the target of employer misconduct. The statutory framework for litigating complaints of this kind includes these provisions:

1.- (2) For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the person's ceasing to work for the person's employer as the result of a lock-out or strike or by reason only of being dismissed by the person's employer contrary to this Act or to a collective agreement.

91.-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or

acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts

complained of;

(c) an order to reinstate in employment or hire the person or employee concerned; with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

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

92.2-(2) If the trade union requests an expedited hearing of the complaint, the Board shall begin its inquiry into the complaint within fifteen days after the later of,

(a) the day on which the request is filed with the Board; and

(b) the day on which the request is delivered to the respondent named in the complaint.

(3) The Board shall hear the complaint on consecutive days from Mondays to Thursdays, except holidays, until the hearing is completed.

(4) The Board shall render its decision on the complaint within two days after the hearing is completed, excluding Saturdays, Sundays and holidays. The Board may give its decision orally or in writing.

(5) The Board shall give written reasons for the decision within a reasonable period of time upon the request of either party.

(6) The Board may hear and determine any other application or complaint under this Act together with a complaint to which this section applies.

4. The significance of the unfair labour practice protections is underlined by the way in which the Board is obliged to deal with them. A person unlawfully discharged continues to be an employee for the purposes of the Act (section 1(2)), notwithstanding any termination of the common-law employment relationship, and the employer has the legal burden of proving that its actions were not unlawful (section 91(5)). Upon request, the Board is required to begin hearing the case within 15 days of receiving it. If a violation is found, the Board has broad powers to rectify the situation, and if an employee has been unlawfully discharged, the Board will usually order reinstatement, with compensation, and direct the employer to post a notice advising employees of this result and informing them of their rights. The overriding objective is spelled out in section 2.1 of the Act, which reads, in part:

The following are the purposes of this Act.

1. To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.

2. To provide for effective, fair and expeditious methods of dispute resolution.

3. In this application for interim relief, the union seeks "provisional" reinstatement of the grievors, pending the disposition of the "main" unfair labour practice complaint. The request for interim relief was filed on February 24 and heard on March 1. The hearing of the main application was scheduled to begin on March 11. In practical terms, therefore, the union was seeking interim reinstatement of the aggrieved employees for the several weeks that it might take to hear the merits of the complaint.

4. The provisions of the Act dealing with "interim relief" are as follows:

92.1-(I) 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.

[emphasis added]

104.-(14) The Board may make rules to expedite proceedings to which the following provisions apply:

1. Section 11.1 (rights of access), 73.1 (replacement workers), 73.2 (use of specified replacement workers) or 92.1 (interim orders).

(14.1) Rules made under subsection (14) come into force on such dates as the Lieutenant Governor in Council may by order determine.

(14.2) Rules made under subsection (14),

(a) may provide that the Board is not required to hold a hearing;

(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and

(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

(14.3) Rules made under subsection (14) apply despite anything in the Statutory Powers Procedure Act.

Rules 86 and 89 add these pleading requirements:

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.

It will be noted that the language of section 92.1 is exceptionally broad, permitting the Board to respond flexibly to the problems before it in a manner that may be somewhat different from the remedial exercise undertaken at the end of a case (although, no doubt, "interim" and "final" orders should be congruent). The concluding words of section 92.1 reinforce this "facilitative" or "forensic" thrust.

7. In accordance with the Rules, this application for interim relief and the employer's response, were both supported by declarations from persons purporting to have first-hand knowledge of the facts that the parties relied upon. There were declarations from: Brando Paris, a staff organizer for the United Steelworkers of America, Heath Sweetman and Rod Cake, the two employees who had been discharged, and Brian McBain, the Vice President and General Manager of the responding company.

8. The salient features of these declarations will be set out below. At this point, we need only note that certain facts were not disputed, others were disputed or qualified, and despite the Rules, the material from both parties contained elements of hearsay, opinion, or speculation. However, that is probably inevitable where motivation is in issue, where the Board is being asked to assess the potential consequences of alleged misconduct, and where the litigation itself crystallizes so quickly. For present purposes, we simply note that we have had to take these evidentiary difficulties into account in reaching our conclusion.

9. After reviewing the material filed and the parties' representations, the Board made the following determination dated March 2, 1993:

10. The Board hereby directs that Tate Andale Canada Inc. forthwith reinstate Heath Sweetman and Rod Cake, on an interim basis, pending the final disposition of their unfair labour practice discharge complaint in Board File 3437-92-U.

11. The Board further directs Tate Andale Canada Inc. 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. The company is also directed to provide a copy of this notice to all employees affected by the union's certification application, Board File 3402-92-R.

12. Formal reasons for these decisions and directions will issue in due course.

Appendix "A"

Labour RelatIons Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour

Relations Board

We have posted this notice in compliance with a direction of the Board, issued after a hearing in which both the company and the union had the opportunity to make submissions.

The Board has ordered Tate Andale Canada Inc. to reinstate Heath Sweetman and Rod Cake on an interim basis until the Board considers the reason for their discharge. A hearing before the Board is scheduled to begin on March 11, 1993. The purpose of that hearing is to determine why Heath Sweetman and Rod Cake were discharged.

If the Board ultimately determines that Heath Sweetman and Rod Cake were discharged for misconduct or poor work performance, and their support for the union had nothing to do with it, the temporary reinstatement order will be revoked, and the company will no longer be required to employ them.

If the Board ultimately finds that their discharge occurred because they were union supporters, exercising their rights under the Labour Relations Act, the Board may confirm their reinstatement, and direct that they be compensated for all earnings and benefits lost as a result of their discharge.

Employees in Ontario have these rights which are protected by law:

AN EMPLOYEE HAS THE RIGHT to join a trade union of his or her own choice and to participate in its lawful activities.

AN EMPLOYEE HAS THE RIGHT to oppose a trade union, or subject to the union security clause in the collective agreement with his or her employer, refuse to join a trade union.

AN EMPLOYEE HAS THE RIGHT to cast a secret ballot in favour of, or in opposition to, a trade union if the Ontario Labour Relations Board directs a representation vote.

AN EMPLOYEE HAS THE RIGHT not to be discriminated against or penalized by an employer or by a trade union because he or she is exercising rights under the Labour Relations Act.

AN EMPLOYEE HAS THE RIGHT not to be penalized because he or she participated in a proceeding under the Labour Relations Act.

AN EMPLOYEE HAS THE RIGHT to remain neutral, to refuse to sign documents opposing the union or to refuse to sign a union membership card.

It is unlawful for employees to be fired or in any way penalized for the exercise of these rights. If this happens, a complaint may be filed with the Ontario Labour Relations Board.

It is unlawful for anyone to use intimidation to compel someone else to become or refrain from becoming a member of a trade union, or to compel someone to refrain from exercising rights under the Labour Relations Act.

Tate Andale Canada Inc.

Per:

(Authorized Representative)

10. The Board advised the parties that formal reasons for its decision would be issued later.

11. Those reasons are set out below.

12. It will be convenient to sketch in an outline of the dispute, then turn to the considerations that prompted the Board to make this particular interim order.

II - THE FACTS

13. The company operates a business in Concord, Ontario where it manufactures stainless steel filter screens for customers in the chemical industry. The grievor Rod Cake was hired by the company on January 28, 1991. The grievor Heath Sweetman was hired on July 2, 1991. Both employees worked as welders.

14. The grievors were instrumental in initiating a union organizing campaign. Both grievors were discharged, unexpectedly, in the midst of that organizing campaign.

15. Heath Sweetman was fired on Monday, February 15, 1993. Rod Cake was fired the following morning. Both employees were terminated without notice. Both employees were fired at the beginning of a work week, and a couple of days into the relevant pay period. Cake received no "severance pay". Sweetman was given two weeks pay in lieu of notice.

16. The grievors stipulate that the union's organizing campaign began in the first week of February, and that they both played an active role, promoting the benefits of trade union representation, and urging their fellow workers to sign union membership cards. Cake describes himself as an "advance man" for Sweetman: if a fellow employee was receptive to Cake's "sales pitch" s/he was directed to Sweetman, who actually collected the employee's card.

17. Between February 2 and February 14, both grievors were involved in these organizing activities, and Sweetman collected membership cards at work whenever he could. Until his discharge, Sweetman was the one who collected all of the cards from union supporters. Cake's role was to help "drum up" employee support for collective bargaining.

18. After Sweetman's discharge, one employee approached Cake to correct and return a card that he had been given earlier. In this respect, Cake was more than "an advanceman". He was Sweetman's alternate, and was so regarded by the employee, who approached Cake unilaterally.

19. Sweetman stipulates that after he was discharged he continued to try to organize support for the union, however:

Many employees told me they were frightened. By February 16, 1993 another supporter, and the only other inside organizer, Rod Cake, had also been fired. People I approached told me they were worried that they would be fired if the company found out they had signed a card. I believe some people did not sign cards because of this fear. In fact, some employees who had been uncertain before February 15, 1993 had definitely decided not to sign after I was fired. I think the fact that Cake and I had been fired influenced their decision.

20. There is no other evidence concerning the "momentum" of the campaign. All that can be said, therefore, is that prior to their discharge, Sweetman and Cake had some success in persuading employees to sign union membership cards, but after they were discharged they had no success at all.

21. The company's position is that it had no knowledge of the grievors' trade union activities, and that those activities had nothing to do with their termination. Brian McBain declares that Sweetman's discharge was the result of poor work performance, which Sweetman had been warned about in the past. McBain maintains that a reasonable employee should have known that his job was in jeopardy - although there is no stipulation that Sweetman 'was actually told that it was.

22. McBain declares that Cake was discharged because he had taken a fan from the company premises about a month before. He had been told to return it, and had not yet done so. McBain states that he decided to treat the incident as "theft", because the fan had not been returned within a reasonable period of time.

23. There is no dispute about the way in which the two employees were terminated.

24. Sweetman declares that on February 15, 1993 he was unexpectedly summoned to the office of Brian Boucher, the shop foreman. He was told that he was being discharged, and handed a letter of termination. When Sweetman asked why he was being fired, Boucher replied that the company was not required to give any reason.

25. Sweetman maintains that he has not previously been disciplined for any reason, that his work record has been satisfactory, and that his performance has been consistent with company standards. He has been laid off twice for lack of work, yet on both occasions, he has been recalled to active employment. We are asked to conclude that his work could not have been totally unsatisfactory, or he would not have been re-hired, twice. His recent discharge is portrayed as an unforeseen event for which there was no prior warning, and which, of course, resulted in his immediate removal from the workplace (albeit with two '. eeks' pay in lieu of notice).

26. Cake stipulates that the "fan incident" began when he removed the device from the garbage in mid-January, believing it to be surplus. From his perspective, the matter had been satisfactorily resolved through discussions with management weeks before. The removal of a discarded piece of equipment was not then regarded as "theft", and he had undertaken to return the device as requested. No one at the time demanded that it be returned immediately. No one at the time indicated that there was any urgency about it, or warned of disciplinary action. Cake stipulates:

On February 16, 1993 at 8:00 a.m., the day after Sweetman was fired, Boucher [the shop foreman] approached me and asked me if I had returned the fan. I apologised and told him that I had not returned it yet. I told him I had forgotten to bring it in but that I would bring it in the next day. He said "No". Nothing more. I said I would go home right now and get it. He said "No" again. Nothing more. He walked away.

Approximately fifteen minutes later Boucher approached me and said "Read this". He handed me an envelope. I read the letter inside [the termination letter].

After I read [the termination letter], Boucher told me to pack up my tools and leave. I went home.and picked up the fan and returned it to Boucher.

As in Sweetman's case, the termination was totally unexpected.

27. There is no declaration from Boucher.

28. The grievors submit that they have openly undertaken a leadership role in the union's organizing campaign, and that their fellow employees know that they have taken on this responsibility (as illustrated by the employee's approach to Cake when Sweetman was not available). Those fellow employees know that the grievors are persons whom they can trust, and to whom they can speak about the union, in confidence, whether or not the employees have previously signed membership cards. The grievors stipulate that this kind of regular contact is impeded now that they are no longer in the workplace.

29. Brando Paris, the "outside" union organizer, is a full-time employee of the union. Mr. Paris is responsible for this particular organizing campaign. He declares that, in his extensive experience, "inside" organizers like the grievors - who are known and trusted by other rank and file employees - are essential to develop and maintain support for collective bargaining.

30. According to Mr. Paris, the "inside" organizer is the vital link between the union and its supporters or potential supporters. Their presence in the workplace is essential if employees are to effectively pursue their right to join a trade union and seek its "certification" as their bargaining agent. Conversely, the sudden removal of such individuals from the workplace has a chilling effect on the organizing campaign, because employees are likely to be fearful that their jobs will be in jeopardy if they have any further contact with the union or its supporters. Mr. Paris states that that is what has happened here.

31. Mr. McBain disputes the assertions in the preceding two paragraphs; however, as noted, he maintains that the company had no knowledge of, or involvement with, either the organizing campaign or the grievors' support for the union. He does point out that Brando Paris has never been employed by the company, nor to his knowledge has Paris been on company premises. Mr. McBain also expresses a concern (based on double hearsay) that an employee may have been pressured to sign a union card.

32. Despite Rule 89(a), the company did not stipulate any particular harm or adverse consequences which would flow from the interim reinstatement of the aggrieved employees until the propriety of their discharge was litigated (i.e., a few weeks). It is implicit that the grievors' work performance might be no better than it was during the period of their employ; however, there is no indication of any serious problems in this regard. Nor did the company identify any administrative difficulties or economic risk associated with reinstating the two grievors to their former positions for this relatively short period of time.

33. Sweetman's declaration mentions an accident which occurred some weeks before his termination, but nothing much was made of it at the time, and Sweetman was not disciplined in any way, or warned that his job was in jeopardy. Nor did McBain make much of it in his declaration, or suggest that there was any likelihood of anything similar happening again (i.e., that if Sweetman was returned to his regular job for another few weeks there was a tangible risk of property damage or economic loss). Indeed, in Sweetman's case, the period of provisional reinstatement would overlap with the period for which Sweetman had already been paid without any reciprocal obligation to work. The company gave Sweetman "termination pay" in accordance with the Employment Standards Act. It did not take the position that he was disentitled because of "wilful misconduct or neglect of duty".

34. The alleged, "erosion of the company's management rights" was raised in argument, and will be addressed below.

35. An application for certification associated with this organizing campaign was filed on February 19 and scheduled to come on for hearing, in the ordinary course, before another panel of the Board. There was no indication that the union in that application was relying on section 9.2 of the Act. The focus of the application for interim relief was the return of the aggrieved employees to the workplace.

III

36. Since this is one of the first cases to arise under section 92.1 (which came into force on January 1, 1993), it is neither practical nor prudent to attempt any definitive interpretation of its scope. Obviously, the Board has been given a new and broad discretion in any "proceeding or intended proceeding", to fashion such "interim order" including interim relief as it considers appropriate, on such terms as it considers appropriate". However, at this stage, it is probably unwise to make any panoramic pronouncements. As in other statutory areas, the Board's approach to section 92.1 will evolve in accordance with accumulating experience.

37. Nevertheless, we think it is fair to conclude that section 92.1 was intended to be an addition to the Board's remedial arsenal. It was intended to supplement the Board's existing labour relations "remedies" available at the end of a case, so that what the Board must now do, is square its new powers with the established legal framework. Moreover, interim relief is clearly derivative. It does not stand alone. It draws its essence, and must be tailored, to the particular mix of facts in each case, as well as the public and private interests at play in the main application. The main application sets the framework for consideration of the particular facts under review, and the particular interim "order" or "relief' requested.

38. Since that is the starting point for any interpretation of section 92.1, it may be useful for this case to briefly consider the way in which the Board approaches the litigation and resolution unfair labour practice complaints filed in connection with an organizing campaign.

39. In the first place, we might observe that the Board is not a court; and there is no reason to expect that either its adjudicative or remedial approach should mirror that of a court. Civil practice may sometimes provide a useful analogy, but when the Act so clearly involves policy considerations, so systematically modifies common-law premises, and so clearly excludes judicial involvement (see section 110), it would be curious for the Board to make common-law criteria a governing principle of interpretation. This is not to say that the Board's approach to dispute resolution will never resemble that of the courts; however, the criteria applied, and the result reached, are more likely to be based upon the scheme and purpose of the Act, the Board's own experience, and the norms and needs of the industrial relations community. (See generally: Alex Tomko v. Labour Relations Board of Nova Scotia, et al (1975) 76 CLLC ¶14005 (per Laskin, C.J.C.).)

40. In Radio Shack, [1979] OLRB Rep. Dec. 1220, the Board outlined some of the considerations underlying the exercise of its remedial authority: what it should consider, and what it should do when it has found a breach of the Act. This is what the Board said:

41. 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. Remedies should also be sensitive to the interests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board cannot police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast majority of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and of regulation. See generally St. Antoine, A Touchstone for Labour Board Remedies (1968), 14 Wayne L. Rev. 1039; Ross, Analysis of Administrative Process Under Taft-Hartley, [1966] Lab. Rel. Yearbook 299. Giving effect to these general considerations, three basic principles that underpin section 79 [now 91] have emerged.

42. If deterrence was all that the Board had to keep in mind, it would be a simple matter to set up a system of penalties which would achieve this end. There is little doubt that penalties could be devised which would provide second thoughts to anyone intent on violating The Labour Relations Act. But the Legislature did not provide the Board with this role and probably with good reason. See Little Bos. (Weston) Limited [1975] OLRB Rep. Jan. 83, at 91. Section 85 [now 98] of the Act is a section that sets out penalties for contraventions of the legislation and allocates the role of applying these penalties to the Provincial Court. Additional penalties may exist elsewhere in appropriate situations. See Criminal Code, R.S.C. 1970, c. C-34, s. 5, 423(2)(a); Re Regina v Gralewicz et al (1979), 1979 CanLII 2963 (ON CA), 45 CCC. (2d) 188 (Ont. C.A.). By implication, and by the absence of punitive language elsewhere in the statute, it is reasonable to conclude that the Board should not fashion its remedies under section 79 with the primary view of penalizing parties. This is not to deny that effective remedies will likely have a deterrent effect, but the primary purpose of a remedy should not be punishment. If it were otherwise, the Board's accommodative and settlement role under section 79 and more generally would be a most difficult one to maintain. Offenders would be wary of compromise lest their candor be subsequently met by stiff penalties issued by the very agency that encouraged an informal and early resolution of a complaint. Indeed, settlement and compromise might have to give way to a public clamor for a more tangible enforcement of the legislation not unlike the current concern over plea bargaining in the criminal law context. Labour law has historically been more interested in accommodation than "two-fisted" enforcement. But of course, the failure to comply with a Board order can result in the application of penalties by the Court in the exercise of the Court's contempt jurisdiction.

43. In the immediate case this principle has importance. For example, affirmative orders that an employer post notices indicating that he has violated the Act and directives that he publicly commit himself to future compliance with the legislation cannot have as their purpose public humiliation, embarrassment and, thereby, punishment. These remedies may be appropriate, as might direct trade union access both to employees on an employer's time and to employee addresses, but only as directives aimed at the removal or rectification (to use the language of the statute) of the consequences of a violation. These types of remedies, and their nature is almost infinite, should have as their purpose the amelioration of the lingering psychic effects of unfair labour practices and the consequent injury to a union's organizational or bargaining strength. The jurisprudence developed by the National Labour Relations Board is replete with other examples and demonstrates the great potential for developing affirmative labour relations remedies under Section 79. See McDowell and Huhn, NLRB Remedies for Unfair Labour Practices, Wharton School of Finance, Univ. of Pa. (1976). However, the Board must consider the appropriateness of each remedy in a Canadian context and in the light of our own statutory framework. For example, square the application of certification extension in Ontario: Mar-Jac Poultry (1962) 136 NLRB 785.

On judicial review, the Divisional Court observed:

So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent, and provisions of the Act itself; then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is innovative, should not be a reason for finding it unreasonable.

41. In our opinion, these "remedial" considerations traditionally reviewed at the end of the case should inform the way in which the Board approaches interim orders or "relief'. In both instances, the Board is required to blend and balance statutory imperatives, policy considerations, and the realities of contemporary labour relations.

42. Where interim relief is sought in connection with an unfair labour practice complaint, one must keep in mind the legal rights and administrative processes that the law is intended to protect; or to put the matter another way, the rights and processes which the impugned conduct may (and may be intended to) undermine. In the context of a union organizing campaign, those rights include not only an individual right to choose without fear of reprisal, but also a correlative group right of self-organization, so that employees may establish a collective bargaining relationship in the manner contemplated by the statute. A remedial philosophy that focuses exclusively on repairing the harm to individual victims, and neglects the general assault on freedom of association, will inevitably fail to promote the statutory objective.

43. If the employer's purpose were only to punish the individual worker for supporting the union, the law might well redress the harm by restoring him/her to the job, and making up the income that s/he has lost. But if the real objective is to break the momentum of the organizing campaign, to eliminate an influential employee advocate, or to send a graphic message to other employees, the set-back to the employees' quest for a collective voice in the workplace may not be so readily remedied.

44. It is not easy to calculate the value of the employees' "lost opportunity" to make a fair and free choice about trade union representation. It is not easy to repair an administrative process that depends for its efficacy on the free exercise of employee wishes. It is not easy to assess the value of lost leadership in the formative stages of an organization - although it is perhaps self-evident that a voluntary organization, be it a club, church or trade union, depends upon the zeal and commitment of its core members. However intangible these qualities of energy or commitment may be, a voluntary organization like a trade union cannot form or function without them - particularly in its early stages when workers may be unfamiliar with their rights, when the statutory freeze or "just cause protection" may not yet have been triggered (see sections 81 and 81.2 of the Act) and employers may be more inclined to resist unionization, legally or illegally. For it is a sad fact of the industrial relations scene that almost fifty years after the employees' right to collective bargaining was entrenched in law, some employers continue to resist the exercise of those rights, or penalize employees who dare to do so. That is why section 111 of the Act preserves the anonymity of union supporters, lest their identification expose them to employer reprisals. If the Legislature had been confident that employees had nothing to fear, or Board remedies were a complete answer to illegality, it would not have shrouded the organizing process with such secrecy (incidentally reversing, by statute, the decision of the Supreme Court of Canada in Globe Printing Co. 1953 CanLII 10 (SCC), [1953] 3 DLR 561).

45. A remedial approach that does not take into account these labour relations realities will necessarily be deficient, and to that extent ineffective, as either redress or deterrent.

46. Where the Board concludes that a breach of the Act has occurred, it is required to construct a remedy that is sensitive to these concerns and, insofar as possible, rectifies the labour relations status quo disrupted by the illegal act. Where the Board is called upon to grant interim relief in a "pending or intended proceeding", it must consider whether an affirmative order is necessary either to neutralize the potential impact of an alleged unfair labour practice, or to enhance the Board's ability to address the labour relations situation, whether or not an unfair labour practice has occurred.

47. It must be recognized that early intervention, stressing immediacy rather than severity, can have a powerful preventive effect and reduce the necessity for later more intrusive action. Whatever balance may commend itself in particular cases, self ordering is preferable to Board intervention, and an early, moderate response may encourage accommodation and may be preferable to a later, more intrusive one. It is in no one's interest to encourage layers of litigation. If timely interim relief offsets the potential advantage of illegal action, discourages such action, promotes settlement or reduces the likelihood of further litigation, such results are all completely consistent with the statutory objective.

48. It is essential that Board orders - interim or final - be sensitive to the realities of the workplace; and one such reality is the employee's ignorance of the law. One cannot realistically expect rank and file employees to be familiar with their rights under the Labour Relations Act. But one can be sensitive to their fears, and responsive to the concern that the law may favour those with economic power or the ability to act unilaterally. Accordingly, quite apart from the relief available to aggrieved individuals, there may be an independent value in an order that reassures other workers that the law stands above the fray, and proclaims that the legal result will rest on statutory principles, not the personality or relative power of the participants. In our system of industrial relations there is ample scope for the exercise of economic power, but it is not, and cannot be, the basis for resolving statutory rights.

49. As the Board noted in Radio Shack, and we here repeat: a remedial order (be it interim or final) can, and often should, include an informational component - not least because the discharge of union supporters in the midst of an organizing campaign may have an adverse impact regardless of the propriety of such discharge. An employer's actions may inhibit the exercise of employee rights, whether or not it intends to do so; and may undermine the mechanism for testing employee wishes, whether or not there is ultimately a finding of illegality. Again, timely intervention, without finding of fault, may be the most appropriate course in such circumstances, in order to promote the statutory policy, and protect the established administrative processes.

IV

50. On a motion for interim relief, it is neither necessary nor desirable for the Board to make any determination of the merits of the underlying application (here an unfair labour practice complaint with a certification application in the wings). The Act and Rules both contemplate a summary process, based upon written material, where there may not even be a formal hearing (see section 104(14) and Rules 92 and 93). Within that framework, it is neither fair nor feasible to try to resolve disputed facts or explore the nuances of the law. That is best left to the hearing "on the merits", where the Board will have to hear directly from witnesses whose credibility could be an issue, and the parties will have more flexibility to develop their case in their own way.

51. Of course, under section 92.1, the Board will have to take into account the kind of case it has before it, what we have described as the "contours" of the case (including disputed facts), and the likely disposition should one party or the other be successful. But, on an application for interim relief the focus is on preserving rights pending the hearing on the merits, rather than a meticulous assessment of the relative strength of each party's case. Accordingly, a party may be entitled to an interim order or interim relief if the material filed establishes an "arguable" or prima facie case for the ultimate relief requested.

52. In the instant case, there is not much doubt that the applicant meets that threshold. Where the union's two key organizers are unexpectedly discharged at the height of the organizing campaign, there is a prima facie case of a breach of the Act, and there is reasonable cause for employees to believe that an unfair labour practice has occurred; moreover, in cases of this kind, where the employer bears the legal onus of establishing that it has not contravened the Act, it is hardly surprising that the union requests that the "pre-discharge" status quo be maintained until the employer meets the statutory onus cast upon it. If the employer is obliged to establish that its removal of the employees from the workplace was not unlawful, there is nothing counter-intuitive about keeping them there until it does so. However, quite apart from the question of legal onus or the strength of the union's case, we are satisfied from the material before the Board that there really are reasonable grounds for the employees to believe that Cake and Sweetman were discharged because of their trade union activities (whether they were or not); and that that situation is likely to persist unless the Board intervenes, and until the employer establishes that these terminations were not in fact tainted by any anti-union motivation.

53. In other words, whether or not the employer is ultimately successful on the main application, the sequence of events under review is likely to inhibit the free exercise of employee rights, unless there is some positive and tangible assurance that those statutory rights will be protected. If an outsider regards these discharges as at least suspicious, an employee in the workplace would reasonably fear the consequences of his/her involvement with the union. And that, in fact, was Sweetman's experience when he approached individuals who had previously expressed some interest in collective bargaining. Thus, whatever the motive for these discharges may actually have been, there is likely to be an adverse impact in the workplace until the aggrieved employees' rights are resolved through impartial adjudication.

54. The question, though, is whether some interim direction is appropriate to address these concerns, and, if so, what form it should take.

55. In answering that question, we do not think it is very helpful to consider what a Court might do on an application for an interim injunction. For the reasons already outlined, we see no reason to import common/civil law considerations into the interpretation or administration of the Labour Relations Act (i.e., the Rules of Equity, undertakings as to damages, etc. - again, see the comments of Laskin, C.J.C. in Tomko, supra). On the other hand, we do think it is necessary to consider what "harm" may occur if an interim order is not granted, and what "harm" may occur if it is granted; moreover, that assessment should be made from a labour relations perspective, having regard to the scheme and purpose of the Act, of which section 92.1 is a part. In our view, the interests to be considered include those of the employer, the union, the aggrieved employees, and other employees in the workplace who may be effected by the conduct under review. However, we also think we should consider what may be described as a "general" or "public" interest in ensuring that the statutory objective is achieved, insofar as possible, in accordance with the administrative process prescribed, without protracted litigation. To the extent that the early intervention can have a moderating or prophylactic effect, that course is to be considered.

56. What is the "harm" potentially suffered by the union, the employees, and the process, if interim relief is not granted - that is, if the Board does not reinstate the grievors, or otherwise take steps to restore the labour relations status quo prevailing at the time of their discharge? Least significant, we think, is the potential wage loss to the aggrieved employees, which is fully recoverable (if they are successful) within a few weeks, and, in Sweetman's case, is moderated by the fact that he has already received some severance pay. More important, in our view, is the likely impact on other employees, who may have had an appetite for collective bargaining, but have just seen the union's two principal proponents summarily removed from the workplace in the midst of the organizing campaign. This is not a neutral event, and it would be totally unrealistic to expect employees to regard it that way.

57. It is one thing for lawyers to be confident in the efficacy of the legal process to vindicate statutory rights. It is quite another to expect employees to have such confidence, or to still the nagging suspicion that relative economic power might influence the result. Nor is this idle speculation, for even among sophisticated labour law practitioners there is an ongoing debate about the utility of Board remedies, and since the early 1970's the Statute has been amended on several occasions to broaden the remedial options - suggesting, we think, some Legislative doubts about the effectiveness of what was there before. And unless the Board does so, there may be no authoritative voice to reassure employees of their statutory right to join a union, or not, free from improper interference.

58. For most employees, the law is an unfamiliar, even alien abstraction. The reality is the employer's economic power and the "right" (or at least opportunity) to move unilaterally to deprive them of their livelihood. Accordingly, the most effective way to counteract the "message" of a summary discharge is an equally speedy reinstatement - accompanied by formal notification to employees of the terms and limits of such temporary reinstatement, as well as a summary of their statutory rights, in order (to use the words of the panel in Radio shack) to "take account of the economics and psychology permeating the situation at issue". Indeed, in the context of an organizing campaign, where the certification application has not yet been disposed of, that Board response is particularly attractive, unless there are compelling employer interests that point in some other direction. During this sensitive period, labour relations realities commend this prophylactic approach.

59. If the Board is engaged in a process of weighing relative "harm", what harm does the employer articulate as flowing from a temporary restoration of the pre-discharge status quo? An interim order is not a neutral event from the employer's perspective either. But what is the potential adverse impact in the particular circumstances of this case?

60. Nothing in the material filed by the company establishes any real risk of economic loss, or even major inconvenience if Sweetman and Cake are reinstated to their former positions, for the short period that tt would take to litigate their discharges. In neither case do the purported reasons for discharge involve any serious compromise of business interests, and in Sweetman's case, he has already been paid for a portion of the time during which his temporary reinstatement would obtain. An employee whom the employer itself has regularly rehired does not pose any serious harm of reinstatement for a few weeks.

61. In Cake's case, assuming that the "fan incident" could be characterized as "theft", it is hardly likely to be repeated, nor would Cake's interim reinstatement likely provoke a plague of petty pilfering by other employees. There is no indication that this has been a problem in the past, or that dishonesty is contagious, or that Cake's temporary reinstatement would encourage theft or be viewed as Board condonation of employee misconduct. To the extent that such impression might arise, it can be adequately addressed by a notice to employees, explaining their rights and obligations, as well as the limitations of the Board's temporary order. Such notice can clearly indicate that the law does not protect employees from the consequences of their own misconduct - if that is indeed the reason why they have been discharged. At the same time, the notice can reassure employees that poor performance or alleged misbehaviour cannot be used as a pretext for interfering with statutory rights.

62. No doubt if the Board were to restore the two grievors to their former positions, they would have to work and the company would have to pay them for a short period of time. But to characterize this as serious harm is, in our opinion, entirely misplaced. The company will receive the benefit of the employees' labour in the interim, just as it did before - and, on the facts of this case, without much prior complaint.

63. This is to not to say that participation in union activity conveys a cloak of immunity permitting workers to engage in conduct disruptive to the ongoing operation of the business. But in this case, it is a little difficult to see what real harm the company will suffer if Cake and Sweetman are reinstated for the period it takes to test the purported reasons for their termination. Nor does this interim resolution (i.e., reinstatement of the pre-discharge status quo) appear incongruous in a statutory regime where the legal onus rests on the employer to establish the validity of these terminations.

64. The reinstatement of the aggrieved employees may well interfere with what the company describes as its "management rights". But in the context of an unfair labour practice proceeding, that phrase has little analytical content; for what is really at issue is the existence, basis or extent of such "management rights" (here to unilaterally dispose of employees), in light of the statutory rights and processes set out in the Labour Relations Act.

65. No one doubts the employer's right, more or less, to deal with its property and run its business as it sees fit; nor does this panel question the value of entrepreneurial initiative, business flexibility, and so on. That, too, is part of the "economics and psychology permeating the situation at issue" mentioned by the Board in Radio Shack. But whatever the content of these "management's rights", they must be exercised within a framework of law which here contemplates a weighing of relative harm; and if financial, economic, or organizational interests are to be weighed in the balance, they must be identified and substantiated.

66. The company has not done so here; and to the extent that its symbolic authority may be temporarily eroded, that too can be addressed in a notice, which explains to employees that if Cake and Sweetman were not in fact discharged for exercising statutory rights, their discharge -and the employer's managerial authority - will be sustained.

67. In all the circumstances of this case, the Board was persuaded that employees Cake and Sweetman should be temporarily reinstated pending the disposition of their unfair labour practice complaint, and that there should be a notice to employees in the terms set out above -

CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; October 13, 1993

1. 1 could not conceive of a democratic society not guaranteeing freedom of association in the fullest sense of that word provided only that the purposes of such association are lawful. Association for purposes of bargaining collectively is lawful. Ancillary purposes such as protecting against, or seeking redress for, arbitrary action in breach of an agreement are similarly lawful.

2. The recently legislated "interim relief' provisions, within which this application is framed, are apparently intended to reinforce the existing guarantee that individuals are free to join a trade union and participate in its lawful activities without fear of penalty. I think the majority are also correct in inferring a further purpose of trying to ensure against parties electing to engage in an activity during the organizing period which may subsequently be found to have been in breach of the Act but, the penalty for which the offending party may view as being worth the price of an advantage, real or imagined, resulting from the activity giving rise to the penalty.

3. In my view, the decision accurately forecasts that under present law employees terminated during an organizing drive will in all likelihood be reinstated, in the absence of a compelling labour relations argument, economic or otherwise, to the contrary, notwithstanding that at some future date the grounds for termination may be upheld by this tribunal or an arbitrator.

4. It would seem to me this further assurance of the protection of an individual's rights to join a trade union provides yet further reason for the Board to have confidence in the secret ballot vote as a means of determining the true wishes of all employees and to rely on such votes with greater frequency it being within the discretionary power of the Board to do so.

5. While I do not associate myself with all of the majority obiter I do agree with the facts as recited and the interpretation of the law resulting in reinstatement of the two employees. Given that the Board has made no findings as to the grounds for termination, and that the reinstatement may ultimately prove to be temporary. I am given to wonder if posted notices such as required in paragraph 9 of the majority decision should not more properly be signed by "the Board" rather than the employer.