[1994] OLRB Rep. August 1086

0152-94-M United Food and Commercial Workers International Union, AEL/CIO, CLC, Applicant v. Shirlon Plastics Inc., Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.

APPEARANCES: John Forster for the applicant; William R. Watson, Lisa Kirby and Sydney De Souza for the responding party.

DECISION OF LEE SHOULDICE, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; August 8, 1994

I. Introduction

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

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.

2. On April 19, 1994, after entertaining argument on behalf of the parties, the Board rendered the following oral decision:

3. The Board finds that the applicant has established an arguable case for the relief sought in the section 91 application.

4. With respect to the issue of the balance of harm, the Board finds as follows:

(a) with respect to Christopher Maile, the Board finds that the balance of harm favours the responding party;

(b) with respect to Jocelyn Robert, the Board finds that the balance of harm favours the applicant; and

(c) with respect to Anthony Moore, the Board (Board Member Rundle dissenting) finds that the balance of harm favours the applicant.

3. The Board (Board Member Rundle dissenting) orders Shirlon Plastics Inc. to reinstate Jocelyn Robert and Anthony Moore to their former employment, pending the disposition of Board File 0153-94-U.

4. The Board further orders Shirlon Plastics Inc. to post a Notice, to be forwarded by the Board, in prominent places in the workplace where it is most likely to be seen by its employees interested in these proceedings. The Notice shall remain posted for 60 consecutive working days or until the disposition of Board File 0153-94-U, whichever is earlier.

5. The reinstatement of Jocelyn Robert and Anthony Moore on an interim basis is made without compensation for lost wages and other remuneration. The issue of compensation is left to the panel dealing with the merits of the underlying section 91 application.

6. Reasons for this decision will follow at a later date.

These are the reasons for that decision.

3. This matter relates to Board File 0153-94-U ("the main application") in which the applicant ("the union") alleges that the responding party ("the employer") has violated sections 3, 65, 67, 71 and 82 of the Act by terminating the employment of Christopher Maile, Anthony Moore and Jocelyn Robert, who comprised the three person employee committee responsible for the organization of the employer on behalf of the union. The application for interim relief was filed by the applicant on April 14, 1994 and came on for hearing before this panel on April 19, 1994. At the time we heard this interim application, the hearing of the main application was scheduled to commence on April 28, 1994.

4. In support of the request for interim relief, the union filed with its application the declarations of five individuals - the three affected employees ("the grievors") the union organizer (Mr. John Forster) and Mrs. Connie Maile, a parent of Christopher Maile. In general terms, the declarations describe the commencement of the organizing campaign - the initial meeting between Mr. Forster and the three grievors - and the first steps taken by the grievors to enquire of other employees of their interest in becoming members of the union. The declarations outline the evidence in the possession of the declarants which cause them to believe that management of the employer became aware of the three grievors' involvement with the union. The declarations also outline the negative effect that the terminations of employment have had on the organizing drive.

5. The declarations filed by the employer in support of its position are extremely detailed and comprehensive. Specific incidents during the course of employment which speak to the harm which would be the result of interim reinstatement of each of the grievors are described in the declarations. These events are to a great extent not mentioned by the grievors in their declarations. Before dealing with the substance of the case, we wish to outline our view of the applicable legal principles which have been developed by the Board to date regarding the issuance of interim orders.

II. The Law

6. A two-part test to determine whether an interim order should issue has been established by the Board. The first branch of the test requires the Board to be satisfied, on the basis of the written declarations before it, that an "arguable case" for the remedies requested in the main application has been made out by the applicant. As was pointed out by the Board in Loeb Highland [1993] OLRB Rep. Mar. 197 at paragraph 26:

…..we find it most appropriate to set out as one requirement in a test for interim relief that the main application must reflect an arguable case. By this we mean that if the applicant's assertions can be established, there is at least an arguable breach of the Act, or an arguable case for a remedy within the parameters of some provision of the Act.

7. The second branch of the test requires the Board, by reference to the written declarations of the parties, to consider the relative harm which may result from granting or not granting the interim order sought. The Board in Morrison Meat Packers Ltd., [1993] OLRB Rep. Apr. 358, described this branch of the test as follows (at paragraph 18):

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.

In Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019, the Board described the assessment to be made in the following terms (at paragraph 55):

…..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 work place who might be effected [sic] by the conduct under review.

8. Board jurisprudence dealing with the application of section 92.1 of the Act is still in its infancy. It is, accordingly, fair to say that the full range of the types or nature of the potential harm relevant for the purposes of the balancing of relative harm has not yet been determined by the Board, if it ever could be exhaustively determined. As has been noted many times before, each and every interim relief application is dependent upon the particular facts before the Board. That being so, Board decisions to date do identify some common threads which weave through interim order applications. It is clear, for example, that the power to grant interim orders should not be exercised by the Board if the harm to be avoided is purely or predominantly financial in nature. See, for example, Morrison Meat Packers Limited, supra, at paragraph 23; Price Club Canada Inc., [1993] OLRB Rep. July 635 at paragraph 16; Bryan Forde [1993] OLRB Rep. Dec. 1296 at paragraph 35; and Fort Erie Duty Free Shoppe Inc., [1993] OLRB Rep. Dec. 1307 at paragraph 24.

III. The Parties' Positions

9. The Board asked counsel for the responding party to proceed first with his argument. Counsel submitted that the applicant had not satisfied either branch of the test developed by the Board for the granting of interim relief. Counsel observed that the employer's declarations refute a number of allegations made in the declarations filed by the applicant. A number of discrepancies in the applicant's declarations were highlighted, in particular the allegation that Mr. Maile had completed his probationary period with the employer. Counsel noted as well that the declarations of the employer supported, in detail, the contention that Mr. Moore had quit his employment rather than being fired from employment as is alleged by Mr. Moore.

10. It was conceded by counsel that, for the purposes of determining the existence of an arguable case, the declarations filed by the applicant should be relied upon by the Board. Counsel submitted that the declarations were flawed insofar as there was no allegation contained in the declarations that the employer had any knowledge of the organizing campaign. In essence, counsel submitted that there was an insufficient linkage between the facts contained in the applicant's declarations and the conclusion that management knew of the organizing campaign, and in particular the involvement of the grievors.

11. With respect to the issue of balance of harm, counsel reviewed each grievor separately. As a general observation, counsel noted that the union's declarations established that, as at the date that the first grievor ceased employment, no membership cards had been signed except for those of the grievors. He noted that the signing of other memberships happened subsequent to the cessation of employment of both Mr. Moore and Mr. Maile, and submitted that the real start of the organizing campaign post-dated the departure of these two grievors from employment. Counsel noted the apparent conflict in the applicant's declarations, reflected by the grievors' declarations that some of their former coworkers have indicated a fear for their job if a union card is signed. Counsel wondered how this could be so given the fact that a number of membership cards were signed after the cessation of employment of both Mr. Moore and Mr. Maile.

12. With respect to the individual grievors, counsel dealt first with Mr. Maile. The employer's declarations, which outline a series of workplace accidents by Mr. Maile when driving the employer's forklift, were emphasized by counsel. He noted that the employer had, both verbally and in writing, warned Mr. Maile regarding the accidents and had requested from him proof that he had formal training in operating a forklift. No such proof of training was ever provided by Mr. Maile to the employer. The last incident involving the forklift was immediately prior to Mr. Maile's termination from employment. Counsel submitted that the harm to the employer of reinstating Mr. Maile was twofold: first~ his ongoing employment would affect the possible completion of the three months probationary period, thereby affecting what was described as 'the standard' probationary period. Second, and most importantly, this employee had a poor safety record and it would be unsafe to continue his employment, even for the interim period prior to the determination of the application on its merits.

13. With regard to Mr. Moore, counsel again emphasized the discrepancies in the declarations provided by the parties. Counsel submitted that Mr. Moore had quit his employment as a result of a dispute regarding a raise or bonus that he alleged had been promised to him. Counsel focused on the insolent manner attributed to Mr. Moore in the employer's declarations, and submitted that it reflected someone who is "out of control", and who in essence "thumbed his nose" at management in a prominent and dramatic way. Counsel submitted that reinstating this individual to employment would send the message that "self help" is an appropriate means of seeking a remedy to a dispute in the workplace.

14. With respect to Ms. Robert, counsel conceded that she is considered by the employer to be a good, productive employee. Counsel noted that the employer's declarations establish that Ms. Robert cannot "get along with" visible minorities in the workplace. Counsel focused on a series of escalating incidents with 3 separate employees which included verbal harassment and physical assault, and noted that Ms. Robert had previously been transferred to the day shift in order for management to keep a closer eye on her. It was observed that these steps had had no effect on Ms. Robert. Counsel submitted that the employer had concerns regarding her reinstatement to employment as a result of the obligations imposed on it by virtue of the Human Rights Code, R.S.O. 1990, c.H-19, but acknowledged that should it be required, the employer could deal with these problems.

15. It was the applicant's position that the declarations filed by the applicant provided a sufficient linkage so as to establish an arguable case in the main application. The representative of the applicant submitted that the date of signing of membership cards was irrelevant, and that the critical fact was the timing of the commencement of the organizing campaign and the termination of employment of the three in-plant organizers. It was submitted that reinstatement with full compensation pending the disposition of the section 91 application was the only way to remedy the situation. Mr. Forster then turned to the issue of balance of harm.

16. With respect to Mr. Maile, Mr. Forster submitted that the Board should question whether Mr. Maile truly had safety problems with the forklift. It was pointed out that, subsequent to the warning letter produced by the employer early in the employment relationship, no further written warnings had been issued to Mr. Maile. It was submitted that there would be no undue hardship imposed on the employer to require Mr. Maile to return to the shipping department for the interim period, doing what he previously did. With respect to Mr. Moore, the applicant's representative submitted that no hardship would befall the employer should he~ tool be returned to work pending the determination of the main applications and submitted that irreparable harm would result to the union if one of its main organizers was not returned to work.

17. With respect to Ms. Robert, Mr. Forster submitted that the incidents described in the declarations of the employer do not reflect 'meaningful' events. He focused on her good productivity and noted that if she were not returned to work other employees would perceive that she was being punished for supporting a union. This would result in the intimidation of the employees as a whole.

IV. Reasons for Decision

18. In our view, the applicant has established an arguable case that there has been a breach of the Act. As noted above, the Board's task is to assess whether there exists an arguable case that a breach of the Act may have been committed. The declarations filed by the applicant which are before us establish such an arguable case. The declarations, on their face, describe the extent of the organizing campaign, the involvement of the three grievors in that campaign, and contain some factual allegations which allow for the conclusion that the employer could arguably have breached the Act. With respect to grievors Maile and Moore, there is evidence of their open communication with other employees regarding interest in the union, and the subsequent cessation of their employment. With respect to Ms. Robert, there is evidence in the declarations of Mr. Forster and Ms. Robert that at least one, but possibly up to three, members of management saw her speaking with Mr. Forster and the other two grievors one day prior to her termination from employment. In our view, such evidence is satisfactory to establish an arguable case that a violation of the Act may have occurred.

19. It was the argument of the employer that an arguable case had not been established because the applicant had not alleged that management was aware of the organizing drive, or, in Ms. Robert's case, that the management representatives could have identified Mr. Forster even if they did observe him with Ms. Robert. In our view, the approach urged upon the Board by the employer imposes a far too stringent standard upon the applicant. In section 91 complaints alleging a breach of sections 65, 67, or 71 of the Act, the responding party often has the burden of proof and is required by the Board to proceed first. The rationale behind such a requirement is simple - it is only the employer which knows the full circumstances behind the reason for the impugned conduct. Similarly, in interim applications in the nature of the one before the Board, it is unlikely that the applicant would be able to assert, in signed declarations which attest to the accuracy of their contents, the exact pathway upon which the news of the organizing attempt may have travelled to the employer. Obviously, if that pathway can be identified from first-hand sources it is in the best interests of the applicant to do so by way of signed declarations. But, in our view, it is unnecessary for applicants to make "guesses" as to how management may have learned of the organizing campaign, and the absence of evidence of a pathway of information does not establish a fatal gap in the declarations.

20. Neither does the failure to declare that Mr. Forster was identifiable by the management of the employer. In our view, the evidence establishes that an organizing campaign had commenced at this place of employment, and that there was discussion by employees about the possibility of joining a union. The three grievors were central to those discussions. The observance by members of management of Ms. Roberts outside of the plant with two individuals who had previously been fired, allegedly for their participation in the organizing campaign in our view establishes an arguable case that a breach of the Act may have been committed.

21. At this point, the Board feels it necessary to comment upon the nature of the materials before it. As noted above, the application was supported by five typewritten declarations. In our view, the declarations were, to a certain extent, lacking in specificity. They also seemed to be incomplete in some respects. As an example, the three grievors, for the most part, make no reference in their declarations to their disciplinary records or to any other matters that the employer may have raised regarding the potential harm of reinstating them to employment. The exception to this was Mr. Maile, who states in his declaration that "Nothing was ever said to me before [my termination] about a safety problem ...". This would appear, based on the declarations and written warning produced by the employer, to be patently inaccurate. The only other reference to the grievors' work records is made by Mr. Forster, who states in his declaration that "According to my information all three terminated employees completed their tasks well, had good attendance records, and no letters of discipline on file". This is not first hand information and is unhelpful to the Board. As an aside, it also appears, based on the materials filed by the employer, to be entirely inaccurate. Mr. Forster during argument candidly acknowledged that at least one other part of his declaration was inaccurate. It was evident to the Board that the inaccuracy was one which could easily have been avoided should Mr. Forster have more carefully considered the accuracy of the description of the event to which he was attesting.

22. The Board is sensitive to the fact that these applications are developed, filed, and heard in an expedited fashion. In the event that a significant delay occurs, the application may be dismissed for this reason (see, for example, William Neilson Ltd., [1994] OLRB Rep. Mar. 326). The Board is also aware of the difficulty that the applicant may have in attempting to anticipate the argument of the employer when preparing its declarations. It is, however, our view that a high degree of thought and care must be taken when preparing the declarations to be filed in an interim order application. The declarations are the only materials before the panel of the Board determining the application for interim relief and are, therefore, of paramount importance. The declarations must be full and completely set out all relevant facts in the possession of the declarants. It is not satisfactory to prepare and file declarations of a 'boilerplate' nature which are designed to 'pick' and 'choose' facts or which are incomplete and therefore of dubious quality. As noted by counsel for the employer, the applicant had approximately two weeks to prepare its materials (as compared with 48 hours for the employer). In light of that fact, the applicant should provide the Board with full and complete declarations in support of its application. Applicants which omit essential facts take the risk that their recitations of fact contained in the declarations may not be accepted by the Board as reliable, and therefore that the application for interim relief will be determined solely by reference to the employer's declarations.

23. With these comments in mind, we consider the issue of balance of harm. We will do so for each of the three grievors separately.

(a) Christopher Maile

24. In our view, the balance of harm with respect to the interim reinstatement of Mr. Maile favours the employer. In the applicant's favour, the conduct in dispute consists of the termination of employment of an inside organizer during the course of an organizing campaign. As was observed by the Board in Loeb Highland, supra, and Tate Andale Canada Inc., supra, the termination of an inside organizer during the course of an organizing campaign establishes a significant harm to the union (over and above the harm which inherently occurs to the employee organizer). Accordingly, the potential harm of not granting the interim order in Mr. Maile's case is significant.

25. To be balanced against the harm described above is the harm identified by the employer in its declarations. As a general observation, the harm identified by the employer in this case relates to the health and safety of those working in the plant, including Mr. Maile himself. The employer's declarations suggest that Mr. Maile has had a substantial accident history during the short time he has been employed by the employer. Mr. Maile was employed in the shipping and receiving department of the employer and as part of his job he was required to operate a forklift. Mr. Maile was hired on January 20, 1994. Within 8 days of his hiring, Mr. Maile had both damaged a machine with the forklift and crashed the forklift into the wall of the Plant Office as a result of driving the forklift at a high rate of speed. These two incidents resulted first in a verbal warning and then, on January 28, 1994, a subsequent written warning.

26. The declarations submitted by the employer suggest that just over two weeks later, on February 15, 1994, while operating the forklift Mr. Maile dropped a pallet with a number of cartons weighing approximately 30 lbs. each on a spot where an employee had just previously been working. Subsequently, on March 30, 1994, Mr. Maile was using the forklift to stack a pallet loaded with cartons of garden hose on top of another pallet and dropped the cartons, each carton again weighing 30 lbs. The cartons were thrown off the pallet in an area occupied by a number of machine operators working on plant machinery. According to the declaration of Mr. Mohamed, the Group Leader in this department, his investigation of the accident disclosed that other workers had been endangered by Mr. Maile's conduct on this occasion. Mr. Mohamed thereupon assigned Mr. Maile to other duties on March 31, 1994, which was the date of Mr. Maile's termination from employment.

27. There can be no doubt that legitimate health and safety concerns of an employer are considerations which ought to be taken into account by the Board when assessing the balance of harm. Employers and supervisors are obliged to take every precaution reasonable in the circumstances for the protection of workers (section 25(2)(h) and section 27(2)(c) respectively, of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1, as amended). Legitimate health and safety concerns are, therefore, a 'harm' which the Board should weigh in favour of a party to an interim order application such as the one before this panel. However, it is not enough for the employer to merely allege that significant health or safety risks will result to the employer and/or others should the employee in question be returned to his prior employment. In order to satisfy the Board that such concerns are sufficiently serious to warrant significance for the purposes of refusing an interim order that would otherwise issue, the employer must, through its declarations, establish that demonstrable health or safety risks may result should the employee be reinstated to his or her position for the interim period prior to the disposition of the underlying application. There should be evidence before the Board which would lead the Board to believe that there is a risk of unsafe conduct occurring should the employee be reinstated for the interim period pending the disposition of the main application. It will, of course, be the decision of the panel of the Board seized with the interim order application to decide whether, on balance, the health and safety concerns of the employer, added to any other harm demonstrated by the employer, outweigh the harm(s) identified by the applicant which would result from not returning the employee to work. This will, in our view, require the Board to consider such factors as the probability of the unsafe conduct occurring, the probability of injury or damage happening from such an occurrence, and the seriousness of the likely damage or injury which would result from such an occurrence.

28. In the case before us, the Board is satisfied that the employer has provided sufficient evidence of demonstrable health and safety risks should Mr. Maile be reinstated to his position in the shipping and receiving department for the interim period prior to the disposition of the main application. Mr. Maile had, prior to his termination, been employed for just over 2 months with the employer. His safety record in that period of time is poor. The materials before the Board suggest that, save for some fortuitous circumstances, at least one employee (but very possibly more) could have been seriously injured as a result of Mr. Maile's conduct during that 2-month period. The skill of Mr. Maile in operating the forklift does not appear to have improved over time, as is evident from the most recent incident which occurred just prior to his termination from employment. In our view, the evidence before us establishes that it is possible that an accident could occur should Mr. Maile be returned to employment. Most importantly, such an accident would likely involve significant injury to Mr. Maile or other employees of the employer. In these circumstances, we are of the view that the balance of harm, taking into account all of the factors described above, lies in favour of the responding party. Accordingly, we dismissed this application insofar as it relates to Mr. Maile.

(b) Jocelyn Robert

29. With regards to Ms. Robert, the harm which accrues in the favour of the applicant is that same harm which was identified and discussed above in paragraph 24 - the harm to the organizing drive when a key inside organizer is terminated from employment during the course of the drive. No other harm, save and except financial harm to Ms. Robert, was identified in the applicant's declarations.

30. As noted above, the employer asserted that Ms. Robert does not "get along with" visible minorities in the workplace and emphasized the escalating verbal and physical harassment that Ms. Robert has allegedly initiated. The employer identified concerns that it may well be liable for some of Ms. Robert's further conduct of this nature by virtue of the Human Rights Code, should she be returned to the workplace.

31. In our view, these concerns are also legitimate concerns to be weighed when assessing the balance of harm in any particular case. They are, to some extent, similar in nature to the health and safety concerns identified above with respect to Mr. Maile, insofar as the evidence before the Board in any particular case may well suggest that, because of the employee's past behaviour, the balance of harm lies in favour of the employer, and that the Board should therefore not reinstate the individual to employment pending the determination of the section 91 application. In our view, the evidence should disclose previous potential human rights violations by the employee. There should also be some evidence which suggests that it is probable that these types of incidents will continue should the employee be reinstated on an interim basis.

32. In this case, we do not believe that the employer has by its declarations provided sufficient evidence of the required degree of serious conduct which would lead the Board to find that the balance of harm favoured the employer. There is no doubt that the declarations filed by the employer establish that Ms. Robert has had altercations with three other employees in the plant since January, 1994. The reasons for the altercations and their extent are, however, to a great degree indeterminate, as the employer's declarations are couched in general terms and are lacking detail. Ms. Robert makes no reference to these events in her declaration. None of the employees who have been allegedly abused have provided declarations suggesting any racial basis for the altercations. There is not, on the record before us, sufficient detail to lead us to conclude that the harm to the employer outweighs that harm which accrues to the applicant. On balance, we therefore are of the view that the balance of harm favours the applicant. Even if the events are as significant as alleged by the employer, in our view they are not so extreme as to tip the balance of harm in the favour of the employer. Accordingly, we granted the interim relief requested with respect to Ms.. Robert.

(c) Anthony Moore

33. Once again, the harm accruing to the applicant is the harm described in paragraph 24 -the harm to an organizing drive when a key inside organizer is terminated from employment during an organizing campaign. The issue before the Board is whether the employer has provided evidence of sufficient harm to cause the Board to conclude that the balance of harm favours the employer in the circumstances. The majority of the Board concludes that the balance of harm falls in favour of the applicant in this case.

34. As noted earlier, the declarations provided by the parties with respect to the termination of employment of Mr. Moore are positioned at two ends of a spectrum. Mr. Moore alleges that Mr. De Sousa terminated his employment. Mr. De Sousa and the other declarants on behalf of the employer allege that Mr. Moore, in an insolent manner, walked away from the plant and never returned.

35. For the purposes of assessing the relative harms, we have considered the declarations of both the applicant and the employer. The declarations of the employer are fuller and describe events not contained in the applicant's declarations. For the purposes of determining the balance of harm the Board is willing to assume that the behaviour of Mr. Moore was as described by the employer's declarations. However, on balance we do not view the harm as described in the declarations to be so severe as to outweigh the harm which would accrue to the applicant should an interim reinstatement order not be made.

36. In essence, the employer alleges that, two weeks prior to Mr. Moore's termination, Mr. Moore approached Mr. De Sousa demanding that a bonus be paid to him. Mr. De Sousa rejected his request, which rejection led Mr. Moore to kick a door in the plant and clock out in advance of the end of his usual quitting time. Mr. Moore apologized the next day and was warned by Mr. De Sousa about this conduct. Two weeks later, Mr. Moore requested a raise from Mr. De Sousa and, when rebuffed once again, he swore at Mr. De Sousa and Mr. Algranti, the president of the employer, in the presence of office staff. Similar conduct was repeated later that same day, with Mr. Moore again punching out early, never to return.

37. The above facts, if assumed true, obviously disclose conduct which is improper for the workplace. That being said, however, the conduct of Mr. Moore, even if assumed to be as described by the employer, is not so egregious or outrageous as to permit for the characterization of Mr. Moore as being "out of control" should he be reinstated for an interim period pending the disposition of the s.91 complaint. We have no doubt that an employee may conduct himself or herself so egregiously prior to his or her termination that the Board may decide, on those facts, to not reinstate the individual to employment, even on an interim basis. Such a level of conduct of behaviour has not been demonstrated on the facts of this case. Accordingly, a majority of the Board, Board Member Rundle dissenting, found that the balance of harm favoured the union, and ordered that Mr. Moore be reinstated on an interim basis.

(d) Compensation

38. The union's representative requested that the Board reinstate the grievors with full compensation to the date of reinstatement. The Board declines to do so. As a general observation, the Board is of the view that the decision to order payment of compensation for the period of time up to the time of the interim order should be left to the panel deciding the underlying section 91 application. To order compensation to be paid at this time would require extraordinary circumstances, which are not present before us.

39. For the reasons set out above, the Board made the order dated April 19, 1994.

DECISION OF BOARD MEMBER J. A. RUNDLE; August 8, 1994

1. Due to the serious and sensitive nature of the allegations respecting Ms. Robert contained in the respondent's declarations, I would not have reinstated Ms. Robert. The respondent's declarations disclose a pattern of behaviour on the part of Ms. Robert that in my view should lead the Board to conclude the balance of harm favours the respondent. Further the impact on Ms. Robert's co-workers whom she is alleged to have harassed both verbally and physically is another factor to which I would have given weight in concluding the balance of harm favoured the employer.

2. The respondents declarations also disclose a pattern of behaviour on the part of Mr. Moore that would lead me to conclude the balance of harm favours the respondent's position. Mr. Moore received a verbal warning on March 15 for conduct on March 14. Mr. Moore's conduct on March 28, while dealing with the same subject matter as the March 14 incident, escalated to another level. Mr. Moore on March 28 when advised he would not receive a raise was verbally abusive to the president of the company, challenged managerial authority and knowingly violated company rules. Mr. Moore punched out that day, March 28, never reporting for his shift the next or any subsequent shifts thereafter. This pattern of conduct on the part of Mr. Moore should lead the Board to conclude that Mr. Moore walked away from his job and never returned, therefore the balance of harm falls in favour of the respondent.

3. The respondent's filed as the majority states, "extremely detailed and comprehensive declarations" in support of its position. The incidents mentioned in the respondents declaration in support of their position are not to a large extend mentioned in the applicant's declarations. I endorse the comments in paragraphs 21 and 22 of the majority decision. The importance of the declarations is set out in William Neilson Ltd., (1994] OLRB Rep. Mar. 188 where the Board states at paragraph 6:

"It is noteworthy to observe that the assessment made by the Board as to whether am "arguable case ' exists or a remedy in the main application is one made by reference to the one or more declarations tiled by the applicant. Consistent with the principle that interim orders should be granted in an expeditious manner, the Board's Rules of Procedure do not allow for cross-examination on the declarations filed by the parties. Accordingly, the Board is not in a position to make factual determinations in situations where the declarations of the parties disclose contradictory factual allegations. As a result, the Board will consider the first hand factual allegations made in the declaration(s) filed by the applicant. The Board assesses whether the facts described by the declarants make it at the very least an arguable case that a breach of the Act may have been committed."

4. The declarations in the case at hand disclosed contradictory factual allegations which leads in my view to a most unsatisfactory adjudicative decision. A much more satisfactory solution from a labour relations perspective in a situation where the parties positions as evidenced by the declarations are so diametrically opposed is to stand down the interim order hearing and have the case proceed on the merits in an expedited fashion. This solution which is available by statute to the Board preserves the underlying intent of the interim orders provision of the Act while allowing for a more satisfactory labour relations result. In all interim order applications the merits are heard on an expedited basis within 7 to 10 days following the section 92.1 application. Further, the respondent bears a reverse onus to prove their case in either the interim order application or the merits, therefore why not expedite the matter and hear the merits as quickly as possible.

5. In discussing Ms. Robert's case the majority at paragraph 31 outlines what the evidence should disclose in order to assess where the harm lies. With respect, I do not agree with the nature of the evidence required. It would appear that the majority is requiring more than one incident of "human rights violations" and requiring evidence to prove incidents of this sort will occur in the future". In situations involving incidents as sensitive as we find in Ms. Robert's case employers responses are governed by the requirements of the Human Rights Code. A response that appears to be contrary to the response envisaged by this Board.

6. For the above reasons I would not have reinstated Ms. Robert or Mr. Moore on an interim basis.