[1993] OLRB REP. APRIL 354
2912-92-M United Food & Commercial Workers International Union, Local 175/633, Applicant v. 810048 Ontario Limited c.o.b. as Loeb Highland, Responding Party
BEFORE: Judith McCormack, Chair, and Board Members J.A. Ronson and D.A. Patterson.
[The decision of the majority in this case dated March 12, 1993 is reported at [1993] OLRB Rep. March 197: Editor]
DECISION OF BOARD MEMBER JAMES A. RONSON: April 23, 1993
As a result of the intense discussion surrounding the recent amendments to the Act (commonly referred to as Bill 40), I think there can be little doubt that the Legislature intended that the Board should enquire immediately into the circumstances surrounding every termination of an employee acting as an "in-house" organizer for a union during an organizing campaign. This case is the first such situation to come before the Board. The applicant union has requested that this panel grant interim relief by ordering the respondent employer to put the organizer back to work while another panel of the Board deals with the merits of the termination by way of the new expedited hearing process of the Board.
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.
In this case the organizer was terminated for providing a false alibi for a thief (also an employee). The alleged facts were put before us in the form of declarations which, on both sides, contained a large measure of hearsay based on the information and belief of the declarants. Given the time constraints it may well be that this is the best the Board should expect in these cases. In any event, from the material before us, both sides alleged a strong factual basis for submitting that the panel hearing the merits of the unfair labour practice should rule in their favour.
By concurring with my colleagues I do not in any way intend to comment adversely on the employer's reaction to the problem of theft in its workplace. It is generally known that theft costs the retail industry millions of dollars every week. I am aware also that employers in the retail food trade consistently enforce a policy of "zero tolerance" when an employee becomes part of this very serious problem. Termination of employment is a severe penalty, but then the same may be said if a criminal conviction resulted from the same circumstances.
I have assessed the aspect of continuing risk to the employer, i.e. the likelihood that the union organizer might become involved in a theft from the employer during the fairly short period that it will take to decide the expedited case on the merits. I assess that risk as minimal and therefore concur in ordering that the union organizer be returned to work without compensation.