[1994] OLRB Rep. September 1228
0418-94-M Communication, Energy and Paperworkers Union of Canada, Applicant v. Intercon Security Limited, Responding Party
BEFORE: Pamela Chapman, Vice-Chair, and Board Members G. O. Shamanski and D. A. Patterson.
APPEARANCES: Melissa Kronick, Kim Ginter and Stephen Ritchie for the applicant; Clifford J. Hart, Ray Harsant, Peter Lalonde, John Ranger and Gord Chizmeshya for the responding party.
DECISION OF THE BOARD September 2, 1994
This is an application for interim relief pursuant to Section 92.1 of the Act.
At the hearing of this matter on May 10, 1994, the Board issued the following oral ruling:
a. The Board hereby directs that Intercon Security Limited forthwith reinstate Stephen Ritchie, on an interim basis, pending the final disposition of the unfair labour practice discharge complaint Board File No. 0417-94-U. We do not think it is appropriate at this interim stage; and we therefore decline to grant any order regarding compensation to Mr. Ritchie;
b. The Board further directs Intercon Security Limited 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.
These are our reasons for that decision.
The facts in this matter were largely undisputed. The applicant union ("the union") had been campaigning to organize employees of the responding party ("Intercon") at their head office since the end of January, 1994. Intercon became aware of this activity shortly after it began, and as a result held a number of meetings with employees at the head office during February, 1994. Inter-con also set out its views about unionization in a company newsletter issued in February, as it had done in previous issues in August and November, 1993.
Stephen Ritchie ("Ritchie") had been employed by Intercon since June, 1987. His most recent position was that of Shift Supervisor at the Weston Centre, where Intercon's employees provided security services to tenants occupying a 20-story multi-use building.
On the weekend of April 2 and 3, 1994, Ritchie learned of the organizing campaign at head office, and obtained telephone numbers for the union organizers.
On Monday, April 4, 1994, Ritchie was advised by a member of management at the Weston Centre, Peter Lalonde, that he was being suspended for two days. The suspension related to a break and enter and theft which had occurred at the premises of one of the retail tenants early in the morning of April 2, 1994, while Ritchie was on the midnight shift. Ritchie claims that he was told by Lalonde that he was being suspended for removing his memo book, which contained a report of this incident, from the premises, which was admittedly contrary to company policy. Inter-con states that the suspension was imposed because of this infraction, and also because Ritchie failed to hook up a VCR which had been returned after repairs on March 31, 1994. Ritchie admits that he did not hook up the VCR, because according to him he was not permitted to do so without direct authorization; Lalonde claims that he gave him permission to do so the same day it was returned.
During the conversation with Lalonde on April 4, 1994, Ritchie commented on the union campaign at head office, saying words to the effect that unionization was inevitable, that situations like the suspension were the reason that employees wanted a union, and that unionization would spread once started. There was some conversation about whether or not Ritchie and/or other employees at the Weston Centre had or would be signing up with the union; Lalonde admits that he asked him whether or not he was "going union". Lalonde reported this conversation to John Ranger, Operations Manager, in a memo sent the same day.
On April 5, 1994, Ritchie spoke to other employees at the Weston Centre about the possibility of joining the applicant union, and it was decided that he would contact the union. He did so on April 6, and arranged to meet a representative of the union on April 7, 1994. Ritchie signed a card at that meeting, and obtained other membership cards and literature, which he distributed to employees at the Weston Centre on April 8 and 9, 1994.
On April 8, 1994, Ritchie met with Ranger to discuss his suspension. During this meeting he presented to Ranger a copy of one of two memoranda that he had removed from the drawer of a desk in the security office at the Weston Centre near the end of the evening shift on April 6, 1994. While not scheduled to work at that time, Ritchie was visiting the site to see if other employees coming off shift wanted to go out for a drink, which Intercon admitted is not unusual. While waiting for the other two employees, and while they were out of the office, Ritchie opened the desk, which he claims was open, and found two memos written by Lalonde about his suspension. Lalonde states that the desk is always locked, that it contains confidential client and employee information, and that no other employee is authorized to enter the desk.
Lalonde was alerted by Ranger that Ritchie possessed a copy of Lalonde's memo to Ranger, and he commenced an investigation into the matter. When he interviewed Ritchie on April 12, 1994, Ritchie admitted to having obtained the memo in the manner described by him above. On April 13, 1994, Lalonde advised Ritchie that he was being suspended immediately with a recommendation that he be terminated. The termination was announced officially later that day.
The applicant claims in a complaint made to the Board pursuant to section 91 of the Act that the responding party violated sections 2.1, 3, 65, 67, 71 and 82 of the Act by terminating Ritchie for his union activity. In the application for interim relief, they sought immediate reinstatement of Ritchie until the disposition of the unfair labour practice complaint. The main application and a related application for certification were filed together with the application for interim relief on May 5, 1994, and the hearing concerning interim relief was held on May 10, 1994. The hearing of the main application was then scheduled to begin on May 19 1994.
In numerous previous cases dealing with section 92.1, the Board has undertaken a two-step inquiry. First, the Board assesses, based upon the materials before it and assuming that the facts relied upon by the applicant are true, whether or not the applicant has made out an arguable case for the relief sought in the main application. If an arguable case is shown, the Board then balances the harm in not granting the interim relief sought against any harm which would result from granting it, in the context of the purposes and the scheme of the Act, to determine whether or not a remedy should be ordered. (See 810048 Ontario Limited c.o.b. as Loeb Highland, [1993] OLRB Rep. March 197 at paragraphs 26, 33 and 34; Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242 at paragraphs 9 and 11; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019 at paragraphs 51 and 55; J. C. V.R. Packaging Inc., [1993] OLRB Rep. Nov. 1145 at paragraphs 14 and 17).
After considering the allegations detailed in the declarations filed in the present case, we concluded that the applicant had made out an arguable case for the relief sought in the main application. At the time of his discharge, Ritchie was the key inside organizer for the union at the Weston Centre. He was discharged within 10 days of his first discussion with other employees at the site about joining the applicant union, and only a few days after he began to circulate cards for signature. As the Board stated in East Side Mario's, [1993] OLRB Rep. Aug. 744 at paragraph 9:
It is difficult to imagine circumstances in which the discharge of key inside union organizers during the early stages of an organizing campaign would not give rise to an arguable violation of the Act. This is not to suggest that every such complaint, or, indeed, the instant one, will succeed on the merits. That, however, is not the determination to be made in the context of an application for an interim order.
The Board in East Side Mario's, supra, also stated that they would have been satisfied that there was an arguable case even in the absence of evidence that the employer was aware of the organizers' activities, a fact which was disputed in that case. That is not the situation here, as there is no dispute that Intercon was aware of the union organizing campaign at the head office, and indeed had taken steps to respond to it, at the time of Ritchie's termination. Furthermore, the conversation between Ritchie and Lalonde on April 4, 1994, only a few days before the termination, clearly raised the spectre of unionization at the Weston Centre and revealed Ritchie's possible involvement in and likely support for such a campaign. This information was conveyed immediately to Ranger by Lalonde, who were both then involved in the decision to terminate Ritchie.
Turning to the second aspect of the inquiry under section 92.1, the balancing of harm, we note that the potential harm flowing from the discharge of a union organizer has been considered at length in numerous decisions of the Board, including East Side Mario's, supra at paragraphs 11 to 12, quoting Loeb Highland, supra at paragraphs 36 to 40, and Tate Andale, supra at paragraphs 42 to 44 and 56 to 58. This harm includes not only harm to an individual employee, which can generally be remedied through reinstatement combined with financial compensation, but more importantly, the chilling effect on other employees who may see the discharge as a warning not to become involved with the union. As noted in Loeb Highland, supra, at paragraph 40:
The combination of the economic vulnerability of employees and their assumption that an employer does not welcome a union means that a union organizing drive is a relatively fragile enterprise in which momentum is often critical. Where a campaign is disrupted by an unlawful discharge, the Board's jurisprudence under section 9.2 of the Act reflects the fact that such momentum cannot easily be restored by the reinstatement of an employee at some point farther down the road.
Given the early stage in the organizing campaign at the Weston Centre at which this conduct occurred, the small number of employees (nine according to the application for certification), Ritchie's key role in solicitation, and the employees' knowledge of the employer's likely reaction to a union campaign given the statements made in three newsletter articles in the past year, we had no difficulty in concluding that the potential harm to the union's organizing campaign was significant. Intercon urged us, however, to conclude that any such harm was outweighed by the harm to the company which would flow from even interim reinstatement of Ritchie.
The harm alleged by Intercon was that of having to employ an individual who might be guilty of what they characterized as a "breach of trust", in a sensitive position involving security services. They also suggested that having to continue to employ Ritchie might impact negatively on their relationship with third parties, that is the tenants for whom services are provided at the Weston Centre, as they would likely share Intercon's concerns. This latter argument was not particularly compelling in the circumstances of this case, however, as the incident which led to the termination did not relate to the provision of security services to tenants, in contrast to the earlier episode involving Ritchie's role in the investigation of a theft from a tenant which led only to a brief suspension.
Similar arguments have been made in previous discharge cases where serious misconduct on the part of organizers has been alleged. In Loeb Highland, supra, the Board noted at paragraph 43 that ordering reinstatement would mean that the company would have to employ an employee who admitted to lying about a theft from the employer, and who was alleged to have been involved in that theft, which can certainly be seen as a significant breach of trust. Nonetheless, the Board went on to conclude that this harm, particularly over the brief period prior to the start of the hearing in the main application, was less substantial than that likely to be suffered by the union, "having regard to the critical momentum of an organizing campaign and the corrosive effects of delay". The Board noted further that it was unlikely that the misconduct would be repeated in the interim. In East Side Mario's, supra, the Board reached a similar conclusion and ordered the reinstatement of employees whom the employer suspected of having participated in theft and/or threatened fellow employees. And in Tate Andale, supra, at paragraph 61 the Board concluded that the misconduct of one of the discharged employees which had been characterized by the employer as a theft was unlikely to be repeated, and was equally unlikely to provoke an outbreak of similar conduct by other employees, particularly during the brief period prior to disposition of the main application.
We were satisfied that these considerations applied equally here, and that as such the employer had not asserted any significant harm arising from an interim reinstatement. Intercon argued further, however, that in balancing the relative harms we should consider the impact of what they alleged was unreasonable delay on the part of the union in filing for interim relief. In essence, they asserted that the harm to the organizing campaign could not be as substantial as that alleged by the union given their lack of haste in coming to the Board, or in the alternative that the fault for any such harm now lay with the union.
The Board has considered delay as a relevant factor in determining the balance of harm in several previous cases. In Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358, an application was dismissed in part because of a substantial delay of 3 1/2 months in the filing of the application. The delay in that case was somewhat unique, as it occurred in part because amendments to the Act which introduced the Board's interim relief power came into effect approximately two months after the discharges in question. Nonetheless, the Board considered the delay relevant to the issue of harm, noting that the passage of time meant that the sensitive period of organizing had passed (the union had been certified 2 1/2 months prior to the filing of the interim relief application) and that there was no real allegation of continuing harm in terms of the union's collective bargaining activities. Instead, the harm asserted related almost entirely to the financial impact on the individual employees who had been discharged, which the Board weighed against the harm which would result from having to remove the incumbents, who had been working throughout the period of delay, in the case of a reinstatement. It is also notable in Morrison Meat Packers Ltd., supra, that the Board had commenced hearings on the main application some two months prior to the filing of the application for interim relief, with hearings continuing in that matter at the time of the interim relief hearing.
In a more recent case, William Neilson Ltd., [1994] OLRB Rep. March 326, the Board considered the issue of delay in finding that significant harm would flow to the employer if interim relief was granted. The union's complaint in that matter related to a layoff of twenty-eight employees which occurred as a result of the employer's decision to contract out certain work. The union did not file its complaint with the Board for seventeen days after they were advised of the contracting out, during which time the employees were laid off, the subcontracting arrangements were implemented, and structural changes to the workplace involving significant cost were effected. Given these facts, the Board concluded that "the potential harm to the employer of an interim order of the nature requested by the union was effectively permitted to grow significantly by reason of the union's delay".
The Board in this case, then, confirms that delay may be a relevant factor in assessing the degree of harm suffered by one party where the passage of time increases the harm, as it did in William Neilson Ltd. In the present case, however, there was no claim that the harm to the employer had resulted from or had increased because of the alleged delay by the union, and indeed no intervening events appear to have occurred which would support a claim of that type. It is also important to note that the harm to the employer which was identified in William Neilson Ltd., supra, was not being weighed against the potential harm to the union and to employees in the context of an organizing campaign, but rather against financial harm to individuals arising from layoff, which the Board found could be remedied adequately if not fully by way of compensation.
Turning then to the facts of the present case, the termination of Ritchie occurred at the end of the day on April 13, 1994. This application was filed, along with the main application under section 91 and the application for certification, on May 5, 1994. This delay, in the view of this panel, is not substantial. Furthermore, none of the circumstances which led to the findings concerning delay in Morrison Meat Packers Ltd., supra, and William Neilson Ltd., supra, are present here. For that reason, we concluded that any delay was not relevant to the balancing of harm in the circumstances of this case.
The union sought by way of interim relief an order reinstating Ritchie to his previous position, compensation for his losses, and a posting at the workplace. In Tate Andale, supra, at paragraph 58, the Board commented as follows on the most appropriate remedy for the discharge of a union organizer:
…..(T)he 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.
- For these reasons, we ordered reinstatement of the discharged employee, and the posting of a notice, as detailed in paragraph 2 above. We did not, however, order compensation to Ritchie, as this is a remedy which does not relate to the harm which is sought to be redressed by this order for interim relief, namely the potential chilling effect on employees' right to express their wishes concerning representation by a trade union. The issue of harm to the individual employee can properly be dealt with by the panel hearing the main application once the issue of cause has been considered.