[1993] OLRB REP. APRIL 358
3152-92-M International Union, United Automobile, Aerospace & Agricultural Implement Workers of America - U.A.W., Applicant v. Morrison Meat Packers Ltd., Responding Party
BEFORE: Brain Herlich, Vice-Chair, and Board Members W. H. Wightman and E. G. Theobald.
APPEARANCES: Elizabeth M. Mitchell, Don Caryn, Leslie Cook, Fred Jepson, Terry Hartman and Bill Butler for the applicant; Ian S. Campbell and Ron Dancey for the responding party.
DECISION OF THE BOARD; April 14,1993
This is an application for an interim order filed pursuant to section 92.1 of the Labour Relations Act which, by decision dated February 15, 1993, was denied. These are the reasons for that denial.
This matter relates to Board File 2159-92-U (the "main application") in which the applicant (also referred to as the "union") alleges that the responding party (also referred to as the "company" or the "employer") has violated various sections of the Act. In the main application the union seeks, among other things, the reinstatement of three grievors it asserts were discharged contrary to the Act. In the present case the union seeks an interim order reinstating those grievors pending a final determination in the main application.
The discharges in question occurred on October 21 and 22, 1992. Also on October 22, 1992, the union filed a certification application in respect of the bargaining unit from which the grievors were discharged (the union was certified in respect of that bargaining unit by a decision of the Board (differently constituted) dated November 23, 1992 in Board File 2148-92-R). The main application was filed on October 27, 1992; the present application was filed on February 2,1993.
This panel of the Board commenced hearing the main application on December 14, 1992. That hearing continued, subsequent to the denial of the present application, on dates in February and April, 1993 and is scheduled to continue further on dates which will, if necessary, run into May of this year.
The facts alleged and relied upon by the union emerge from its filings (including the declarations executed by each of the grievors) and can be briefly summarized as follows.
The grievor Hartman commenced employment with the company in June, 1992. During the month of October he supported the union's organizing campaign and solicited membership evidence among fellow employees in an open and public manner. On October 22, 1992 Mr. Tiller, the employer's general manager, handed him a letter dated the previous day advising him that his services were no longer required and promising him 5 days' pay in lieu of notice. Mr. Hartman acknowledges that he had occasionally been late or had missed work but asserts that he had never been disciplined or warned in any way that his employment was in jeopardy. Mr. Hartman, since his discharge, has been receiving Unemployment Insurance benefits ("UI") but because of his financial obligations which include child support, mortgage and car payments has been forced to deplete his savings and most of his RRSP plan. However, his second wife, who has not worked for the last year, has recently started a new job.
The grievor Jepson commenced his employment with the company in mid-January, 1992. In October of 1992 he supported the union's organizing campaign by soliciting support and collecting membership evidence from fellow employees. Mr. Jepson had two significant periods of absence due to work related injuries. On his return from the second of these on October 19, 1992, his supervisor, Ben van den Berg, questioned him about union activity. The following day he was discharged for allegedly having too many sick days (apart from absences due to work related injuries). Five days' pay were received in lieu of notice. He had never been warned that his employment was in jeopardy for absenteeism. He has been the sole wage earner for his wife and three young children although his wife is currently looking for work with fairly limited success. Since his discharge he has been receiving UI as well as a welfare supplement. He is one month behind in his rent and is concerned about the stress and tension of his current situation.
The grievor Butler most recently commenced his employment with the company in August of 1992. During a previous two year period of employment with the company, he served as president of the prior certified bargaining agent. In October of 1992 he supported the union's organizing campaign. On October 22, 1992 he was discharged for two incidents which had occurred the previous day. The union asserts that these incidents either do not properly give rise to discipline or involve rules the violation of which have not previously given rise to discipline. Mr. Butler was not previously disciplined or warned that his employment was at risk. Since his discharge, Mr. Butler has been unable to secure employment and has been in receipt of welfare benefits.
The facts alleged and relied upon by the employer emerge from its filings (including the declaration executed by David Tiller) and can be briefly summarized as follows. There was just cause for the discharges of each of the grievors and none of these discharges was tainted by anti-union animus. While the union has failed to establish that any harm will occur if the order sought is not granted, the employer may suffer substantial harm if it is. Aside from the more obvious harm resulting from an interference in the employer's management of its operations, the particular circumstances of this case may give rise to more specific harm. Since the discharges in October of 1992, the employer has hired new employees to perform the work previously performed by the grievors. If the interim relief were granted the employer would be unlikely to retain those new employees. Further, if the main application were ultimately dismissed, the employer would, in all likelihood, lose the possibility of continuing the employment of the new employees who may well make alternate arrangements in the interim.
Section 92.1(1) of the Act provides:
92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
In support of their respective positions, the parties referred us to numerous authorities including American Cyanamid Co. v. Ethicon Ltd., 1975 CanLII 2598 (FC), [1975] 1 All ER 504 (H. of L.); Yule Inc. v. Atlantic Pizza Deligh.t Franchise (1968) Ltd. (1977), 1977 CanLII 1198 (ON HCJ), 17 O.R. (2d) 505 (Div. Ct.); Ticketnet Corporation v. Air Canada; Air Canada v. A.M.R. Corporation et al. (1987), 21 C.P.C. (2d) 38 (Ont. Sup. Ct.); Taylor v. Atkinson et al. (1984), 6 C.C.E.L. 112 (Ont. Sup. Ct.); White Spot Restaurants Limited, [1988] BCIRCD C274 (October 14, 1988); Western Canada Steel Limited (1989) 6 CLRBR (2d) 123 (British Columbia Industrial Relations Council); International Association of Machinists and Aerospace Workers, members of District Lodge 721 et al. v. Canadian Airlines International Ltd., 92 CLLC 14,016 (B.C. Sup. Ct.); Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Watergroup Companies Inc. 92 CLLC 16,042 (Sask. L.R.B.); and Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. WaterGroup Canada Limited and Aquafine Water Inc., Regina, Saskatchewan, unreported decision of the Sask. L. R. B. File No. 197-92, August 25, 1992.
We have found the submissions and authorities provided to be extremely helpful in assisting the Board in beginning to shape the parameters of the exercise of its recently conferred discretionary powers under section 92.1. The authorities relied upon were not included or adverted to in the materials filed prior to the hearing but rather were filed with the Board at the hearing held in this matter. Pursuant to sections 104(14) and (14.2), rules have been made in relation to applications for interim orders (see Rules 86-93 of the Board's Rules of Procedure). In particular, Rule 93 provides that the Board may decide such an application without an oral hearing. It should come as no surprise that the Board may be more likely to hold a hearing with respect to at least the first applications made under section 92.1. Conversely, as the parameters of the exercise of the Board's discretion begin to develop some clarity and predictability, the Board may well become more inclined, having regard to the need for expedition in any given case, to dispose of such applications without a hearing. Parties who decline to include (or at least refer to) the authorities upon which they rely in the materials they file pursuant to the Rules run the risk that such authorities may not come to the Board's attention in cases where it is satisfied that the matter can be disposed of on the basis of the material filed and without an oral hearing.
The employer urged us to view the interim relief being sought as an extraordinary remedy which should not be lightly granted. The approaches and tests traditionally adopted and applied by the courts in cases where interim or interlocutory injunctions are sought ought to be considered. And while it relied on some similar types of decisions of the courts in various contexts, the union urged us to adopt an approach which specifically considered and incorporated the objects of the Act. Thus, the employer argued that we should follow the courts' approach and follow a three step procedure involving an evaluation of the apparent merits of the main application, an examination of what, if any, irreparable harm might result and for which damages would be an inadequate remedy and, finally, an assessment of the balance of convenience. The union, on the other hand, suggested we ask whether granting the relief would further the objects of the statute and that we proceed to consider some of the more labour relations specific tests adopted by some of our sister tribunals in administering comparable legislative provisions.
While the approach and experience of the courts in dealing with temporary injunctions may be useful, at least by analogy, for the purposes of articulating the kind of inquiry the Board performs in adjudicating applications for interim orders, we are of the view that it would be inappropriate to rigidly adopt that approach and mechanically apply it to the unique kinds of labour relations problems with which this Board must deal. Thus, for example, we find the employer's reliance on the distinction between mandatory and prohibitory injunctions (and the stricter standards which may be applied in the former cases) to be of little value in the labour relations context. Labour relations involve a fluid and ever shifting landscape and any attempt to characterize the particular relief being sought as the equivalent of a mandatory rather than a prohibitive injunction may be subject to fortuitous circumstances capable of significant change from one day to the next. Should the Board adopt a different standard depending on whether a union seeks to restrain an employer from implementing the announced lay off of a union organizer or, alternatively, seeks, say a day later, to have the laid off organizer returned to work? More telling, perhaps, is the fundamental difference between the nature of relief commonly available and granted in the courts as opposed to the typical remedial response that the labour relations community has come to expect from the Board (or even from labour arbitrators). While relief like temporary mandatory injunctions or specific performance is indeed rare in the courts, the labour relations equivalent remedy of reinstatement to employment is part of the daily diet of this Board. We are consequently of the view that extreme caution ought to be exercised in respect of any attempt to transplant approaches or jurisprudence from the courts to this Board.
Having sounded this warning, however, it is also clear that portions of the established court approach may be appropriately adapted to fit the labour relations context. The parties did not seriously dispute that an applicant for an interim order could well expect the Board to perform some assessment of the apparent merits of the main application. Indeed, the cases relied upon, whether decisions of the courts or of specialized labour relations tribunals, all indicate this. They differ, however, as to the nature of the standard to be applied, positing standards which range from insuring that the claim is not frivolous or vexatious to requiring a strong prima facie case. Before this Board determines where on this continuum it should locate this aspect of any test for granting interim orders, it is useful to consider the purpose and nature of these types of proceedings. We cannot lose sight of the fact that interim relief is interim - it is not a remedial response to any violation of the Act. There will be no remedial or other response unless and until the Board makes a finding in the main application that the Act has been violated or that other circumstances warranting a remedial or other response have been established. In this respect interim orders under section 92.1 are readily distinguishable from what is commonly referred to as "interim certification" under section 6(2) of the Act. In the latter case the Board must be satisfied as to the applicant's ultimate success in its certification application. Apart from determining what the Board considers appropriate", there are no equivalent legislative preconditions to the exercise of the Board's discretionary power to make interim orders under section 92.1. An interim order represents, in part, an evaluation by the Board, in the face of a conflict and in response to a request by one of the parties, as to the preferred labour relations circumstances to be preserved or created during the course of the litigation of the main application. This evaluation must be capable of expeditious application and be responsive to developments which may be dramatic. To the extent that the amount of time between events giving rise to requests for interim orders and the Board's disposition of those requests can be minimized so too will any undesirable disruptive effects of Board intervention be lessened. The Board's power to grant interim orders will serve to minimize the negative effects or potential serious harm that may result from the passage of time associated with the litigation of the main application.
In this context 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. To the extent that an applicant's apparent case in the main application may be capable of meeting a more rigorous standard, that may be a factor which the Board will possibly consider in determining whether or not to grant the interim order sought.
In the present case, although the parties disputed whether the applicant had met any such higher standard, it was not seriously disputed that, assuming the truth of the union's allegations, the application made out an arguable case for the orders or remedies sought in the main application.
In considering the authorities cited to us, the submissions of the parties, and the nature of the relief sought, we are satisfied that perhaps the most significant factor the Board must weigh will be the relative labour relations harm which could result from granting or not granting the interim order sought. There must be some danger of possible significant harm to the applicant before the Board will grant the relief being sought. Furthermore that harm must be more significant than the possible harm which may result to the responding party if the order sought is granted.
A further factor which the Board may consider is expedition from at least two perspectives. There is no statutory time limit with respect to the bringing of an application for an interim order. However, given the emphasis placed on expedition in both the statute and the rules (the present matter came on for hearing within 5 days of the filing of the application), the Board will expect applications under section 92.1 to be filed in extremely close proximity of the events giving rise to the application. An applicant who delays undermines its own ability to convince the Board of any urgent or pressing need for interim relief. Perhaps more important, however, as the passage of time between the events giving rise to the request and its determination increases so too does the Board's ability to quickly intervene decrease. Furthermore, and at least to the extent that granting an interim order interferes with an employer's management of its enterprise, the length of time during which an employer's action has been implemented may easily impact on the harm consequent from any Board order effectively undoing that measure, even on an interim basis.
Of all of the factors adverted to, we now consider those which we view as most relevant to the particular circumstances of the present application.
There are two aspects of the harm the union seeks to avert which we find troublesome. This Board has always been sensitive to the economic vulnerability of employees and the consequent damage that can be done to a union's legitimate interests through unlawful employer actions directed at individual employees. The Board's sensitivity has been particularly acute during the period of time during which a union seeks to establish its legitimacy and obtain bargaining rights in respect of a particular workplace. Indeed, recent changes to the Act recognize (in section 92.2) the period beginning with a trade union's organizing activities and ending with the disposition of its application for certification" as one during which certain alleged violations of the Act must, on the request of the union, be dealt with on an expedited basis. In the present case, however, we find ourselves beyond the organizing period - the union had been certified some two and a half months prior to filing the present application. Whatever the impact of the discharges may have been on the applicant at the time they occurred, the situation, at least as of the date of filing the present application, is now different. And while the union argued that employees may be reluctant to fully participate in union activities without fear of retaliation so long as the grievors are discharged, there is clearly no allegation or suggestion that the very existence of the union's bargaining rights is threatened, as it might be were the organizing campaign still ongoing. Neither did any of the material included in the declarations filed by the applicant suggest that the union has or will suffer any harm in relation to its ongoing collective bargaining activities.
It is of note that the Saskatchewan Labour Relations Board, in granting the relief sought in the WaterGroup Canada Limited and Aquafine Water Inc. case, supra, observed at page 6 as follows:
It is critical to our decision to grant the injunctive order in this case that the collective bargaining relationship between these parties is at an early and fragile stage. Though the union has succeeded in obtaining the right to represent these employees, it has yet to demonstrate that its representation will have any positive effect. It has yet to reach any agreement with the Employer on any of the range of issues which may be of concern to members of the bargaining unit.
We have little difficulty accepting that, as a general matter, during the course of negotiations for a first collective agreement, a collective bargaining relationship can be described as early and fragile. We doubt, however, that the fact that interim relief is sought during this period will invariably militate in favour of it being granted. One cannot help but notice that in the Saskatchewan decision there was a clear and unmistakable nexus between the union's lack of opportunity to yet demonstrate the positive effects of collective bargaining and the alleged violation of, among others, freeze provisions when the employer announced its intention to unilaterally implement a reorganization resulting in several layoffs.
In any event, the union relied most heavily on the harm it claimed could result for the three grievors in the event they were not reinstated. The declarations executed by each of the grievors indicated that they are each, to perhaps varying degrees, currently suffering financial hardships as a result of their continuing unemployment. It was not disputed that it was appropriate for the Board to consider the potential harm to the grievors in determining the present application. And while we may have serious doubts that reinstatement and damages can entirely repair the harm suffered during a period of unemployment resulting from an unlawful discharge, we are satisfied that the harm the applicant seeks to avoid in relation to the grievors in this case is primarily, if not exclusively, financial in nature. We are not persuaded that the Board ought to intervene and use its power to grant interim orders to avoid or limit harm which is purely financial. Furthermore, while the potential cumulative effect of ongoing financial difficulty may transform the harm being suffered into something greater than the sum of its parts, we would hope that the Board's new abilities and procedures to enhance the expeditious resolution of matters, will make such a possibility remote in the context of matters brought before the Board. In the present case while the grievors have been suffering the consequences of their discharges since October of last year, the period that is relevant for our purposes is that between the filing of the present complaint and the ultimate resolution of the main application, a period which will likely be in the range of three months. We are not persuaded that length of delay is sufficient to transform the essentially purely financial nature of the harm involved.
We are also concerned with the dual aspect of delay in this case. The present application could have been filed approximately one month earlier than it was. Without deciding whether the Board would decline to entertain an application simply on the basis of a one month delay in filing, we are concerned about that amount of delay in this case, although that concern is perhaps alleviated by the fact that the measure of when this application might have been filed is the day on which recent changes to the Act became effective. Of greater concern to us is the passage of time for which no blame can be attributed to the union since it results, essentially, from the fact that interim relief was not available at the time of the grievors' discharges in October of last year. However, that passage of time, even if not the fault of any of the parties, precludes any possibility of the Board intervening in a timely fashion, i.e. virtually simultaneously with the events giving rise to the main application. It provides added force to the employer's concern about the possible effects of an interim order since the employer may lose the services of employees who have already been at work for several months and that loss may be irrevocable even if the employer succeeds in the main application. So while the union argued that the anticipated delay between the discharges and their ultimate resolution is a factor which militates in favour of granting interim relief, we are of the view that the passage of time during at least a portion of that period in fact militates against granting interim relief. While the union may properly point to the delay between filing the present application and the disposition of the main application, the likely greater delay from the date of the discharges to the date of filing the present application (even though only part of this period of delay is directly attributable to the union) in fact militates against the granting of interim relief since it hampers the Board's ability to intervene in a timely fashion and consequently minimize the harm to the employer consequent on the intervention.
It was in view of all of the factors adverted to and, in particular, having regard to our assessment of the relative harm which may be suffered by the employees, the union and the employer, an assessment which, in the circumstances of this case, included considerations related to the timing of the application and our concerns regarding the various aspects of delay or passage of time in this case that we decided not to grant the interim order sought.
Subsequent to the hearing in the present matter, decisions of other panels of the Board have issued (as yet unreported decisions) in 810048 Ontario Limited c.o.b. as Loeb Highland (March 12, 1993; Board File No. 2912-92-M) [now reported at [1993] OLRB Rep. Mar. 197]; Reynolds-Lemmerz Industries, (March 15, 1993; Board File No. 3207-92-M) [now reported at [1993] OLRB Rep. Mar. 242]; and Metropolitan Toronto Apartment Builders Association, (March 15, 1993; Board File No. 3164-92-M) [now reported at [1993] OLRB Rep. Mar. 219]. Although these decisions were obviously not available to the present parties and were not relied on in determining the present application, we note that we see nothing inconsistent as between the present decision and those just referred to.