United Steelworkers of America v. Cooper Industries (Canada) Inc., 1994 CanLII 9958

[1994] OLRB Rep. March 225

3186-92-M United Steelworkers of America, Applicant v. Cooper Industries (Canada) Inc., Responding Party

BEFORE: Judith McCormack, Chair, and Board Members J. A. Rundle and K. Davies.

APPEARANCES: Brian Shell and Barbara Jones for the applicant; R. K. Lee Shouldice, M. J. Steele, B. Whitley and S. Lawrence for the responding party.

DECISION OF JUDITH McCORMACK, CHAIR, AND BOARD MEMBER K. DAVIES: March 9, 1994

1. The name of the responding party is amended to read: "Cooper Industries (Canada) Inc.".

2. This is an application under section 92.1 of the Labour Relations Act for an interim order relating to Board File 3185-92-U. That file involves a complaint under section 91, alleging that Heather Kuepfer was discharged in violation of the Act. By way of interim order, the appli­cant requests that Ms. Kuepfer be reinstated to her employment position in the responding compa­ny's Stratford manufacturing plant. The responding party asserts that Ms. Kuepfer's employment was terminated for reasons unrelated to union organizing or the exercise of her rights, and opposes the interim order.

3. In accordance with Rule 88, the applicant filed its application on Thursday, February 4th, after delivering a copy of it, the complaint under section 91 and a copy of the response form to the responding company. The responding company then filed its response on Monday, February 8th after delivering a copy of it to the applicant in accordance with Rule 89. As part of their filings, both parties submitted first-hand declarations in regard to their respective evidence and written representations in support of their positions. In addition to this material, the Board decided to hear oral arguments, and a hearing was scheduled for Tuesday, February 9, 1993.

4. At the conclusion of the parties' oral arguments, we reserved our decision but advised counsel that we would attempt to issue it as soon as possible, keeping in mind the inherent urgency of this kind of matter. On February 10th, the Board issued the following decision:

A majority of the Board, Board Member Rundle dissenting, directs that Heather Kuepter be reinstated to her employment position pending the final disposition of the matter in Board File 3185-92-U. Our reasons will follow.

We now provide our reasons.

5. The applicant union asserts that Ms. Kuepfer was one of three employees seeking to organize a union at the company's wheel plant. It was common ground between the parties that just prior to these events, Ms. Kuepfer had been on maternity leave. When she returned to work at the beginning of January 1993, she was of the view that certain aspects of her job had changed. As a result, the parties agree, she complained aggressively about this to a number of people, part icu­larly Lori Welch, another employee whom Ms. Kuepfer felt was performing aspects of her former position. On January 12th, Ms. Kuepfer states that she spoke to a co-worker in the presence of other employees about organizing a union. There is no dispute that she was suspended that day.

The company states in its material that Ms. Kuepfer was suspended for being rude and abrasive to Ms. Welch and to the plant manager, and for alleging that the company was improperly disposing of asbestos brakes.

6. Ms. Kuepfer was absent on January 13th and 14th. When she returned to work on Janu­ary 15th, she states in her declaration that she spoke to another employee in the presence of others with respect to organizing a union. The company asserts in its material that Ms. Kuepfer was spo­ken to on that day about missing work, a statement which appears to be disputed by Ms. Kuepfer.

7. Ms. Kuepfer sets out in her declaration that she spent Sunday, January 17th, attending a union organizing meeting and visiting the homes of other employees to persuade them to sign union cards. She also asserts that on January 18th she was ill and attended at her doctor's office. When she returned to work the next day, the parties agree that she provided a doctor's note to the company. Her employment was terminated that day, the same day on which the application for certification was filed. Her letter of termination cites "objectionable work habits". The company states that it did not know about the union campaign at the time Ms. Kuepfer's employment was terminated. There are also a number of other assertions and allegations in the parties' material, many of which are in dispute. These are the circumstances in which the applicant union requests an interim order reinstating Ms. Kuepfer pending the hearing of the section 91 complaint.

8. Since our February 10, 1993 decision, the Board has issued reasons for decisions in Loeb Highland, [1993] OLRB Rep. March 197 and in Tate Andale, Board File No. 3438-92-M, October 13, 1993, as yet unreported [now reported at [1993] OLRB Rep. Oct. 1019]. Since those reasons were issued subsequent to our decision, we did not rely on them in any way in coming to our conclusion. However, as it happens, those reasons capture some of our thoughts in this partic­ular case. We therefore find it a convenient way to express our views in this matter to reproduce excerpts from those decisions. In Loeb Highland, supra, the Board made these comments about interim relief:

13. Section 92.1(1) of the Labour Relations Act confers explicit jurisdiction on the Board to make interim orders:

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.

14. The authority granted under section 92(1) is very broad, and there is no language which imposes qualifying conditions upon the Board's jurisdiction under this provision. Such extensive discretion is consistent with the Board's function as an expert tribunal on labour relations mat­ters. It seems apparent that the Legislature was prepared to rely heavily on the Board's accumu­lated labour relations wisdom in determining what circumstances should attract an interim order. This is not surprising, since interim relief in labour relations matters may involve unique considerations based on a very specific social and economic landscape. In fact, it is fair to say that the interim relief jurisprudence from other provincial labour relations boards abounds with references to distinctive features of labour relations.

15. In other words, it is incumbent upon the Board to develop a sound and indigenous jurispru­dence in regard to interim orders which reflects the complex and unique realities of labour rela­tions. while we echo the views of the British Columbia Industrial Relations Council to the effect that common law principles may provide us with some useful insight, if we were to import in a wholesale or unreflective manner the kinds of tests applied by Courts in considering interim and interlocutory relief, we would be failing in our responsibility as an expert tribunal to develop a jurisprudence attuned to the distinctive features of labour relations in this province. This latter point, that our jurisprudence should reflect the realities of Ontario labour relations in particular, is also important. While we have found much that is instructive in the cases we have reviewed from other provinces, we also feel constrained to note a number of differences in the legislative or other authority which gives rise to their interim powers, in the purposes of their respective labour relations statutes and in the history and climate of their labour relations. Again, an uncritical adoption of any one of the various approaches in these cases would not serve the Ontario labour relations community well.

16. With this in mind, we turn first to the company's argument that the Board's interim relief power should be used only in rare and exceptional circumstances. We do not find this a particu­larly useful approach. Section 92.2(1) contains no hint that it should be reserved to extraordi­nary cases; indeed, unlike some corollary provisions which contain threshold tests, the Ontario provision is available in every proceeding before the Board. This is not to say that the prospect of a flood of interim relief applications does not cause us some concern. However, we think it more appropriate to start from the position of attempting to elucidate a fair and intelligent labour relations test for section 92.2(1). Those cases that meet that test should then attract interim relief, regardless of how many or how few they may be.

17. In considering the dimensions of such a test, we note that the cases from other provinces reveal an assortment of approaches and considerations in addressing interim order requests. However, there are a number of common themes running through them which may be summa­rized in the following manner. Most refer to some kind of threshold test in regard to the merits of the main application with reference to which interim relief is sought. Some require that a case not be frivolous or vexatious, a requirement which has also been described as the equivalent of whether there is a serious issue to be tried. Other cases have referred to whether there is an arguable case of breach, or the possibility of a legitimate claim, and a number require that there be a prima facie case, or that there be a strong prima facie case. Secondly, most cases involve a review of the harm which might befall the applicant if the interim order is not granted, and whether that harm is irreparable. Finally, the cases refer to the balance of convenience between the parties.

18. Turning first to the idea of a threshold test with respect to the merits of the main application, we have some concern about applying a high level of scrutiny to that application at the time of a request for an interim order. To the extent that such scrutiny may imply a form of prejudgement of the final disposition of the main matter, it is not particularly compatible with the scheme for interim relief set out in the Act and the Board's Rules of Procedure. More specifically, the pro­cedure for interim relief contemplated by the Board's Rules reflects the inherent necessity for expedition in these matters. To that end, evidence is filed by way of certified declarations which are not subject to cross-examination. Indeed, section 104(14) of the Act and Rules 92 and 93 indicate the Board may not hold an oral hearing at all, but may receive the parties' arguments in writing as well.

19. This means that the Board is not in a position to make determinations based on disputed facts. In these circumstances, it would normally be unfair for an interim order to be predicated to any significant extent on a decision with respect to the strength or weakness of the main case. That should await the hearing of the main application when the Board hears oral evidence and can make decisions with respect to credibility based on the usual indicia, in a context where the parties have a full right of cross-examination. This is particularly important in cases such as the section 91 complaint to which this application relates, where decisions are often based on infer­ences and the various nuances of credibility play a key role. In other words, the granting of interim relief in this context should usually be based on criteria which minimize prejudging the merits of the main application.

20. Our practical concern that the Board's decisions on interim relief be insulated to some extent from the merits of the main application is reinforced by the language of section 92.1(1). which provides that an interim order can be obtained in an intended proceeding as well as in one already filed. If an interim order is available even before the main proceeding has been com­menced, it suggests that interim relief is less dependent upon the main application than one might otherwise think.

21. Moreover, a number of the provisions of the Labour Relations Act, including some of those which the applicant alleges were breached in the complaint in this matter, are subject to a reverse onus where a responding party must establish that it did not violate the Act. The effect is to complicate an assessment of the merits, including the issue of what would constitute a prima facie case in these circumstances. In addition, the interim order power contained in sec­tion 92.1 applies to an extensive package of legislative amendments, many of which involve new or reshaped jurisdiction for the Board. This means that it may be difficult to evaluate the strength of the merits of any particular case, at least until the Board has had an opportunity to develop case law in these new areas. Lastly, even where the Board can rely on well-established jurisprudence, there must be some allowance for novel arguments to be presented to it from time to time. While no tribunal encourages frivolous applications, it is also true that the Board must be responsive to changes in labour relations if its jurisprudence is to remain vital and rele­vant.

22. At the same time, it is clearly essential that there be some connection between interim relief and the merits of the main application. Common sense suggests that an interim order is inher­ently subordinate to the main application, a proposition which is given added cogency in this context by Rule 88. That rule makes it clear that a copy of the main application must be filed along with the request for an interim order, which to some extent offsets our view of the effect of section 92.1 in intended proceedings. Isolating the interim application by the absence of any requirement with respect to the strength of the main application might also carry with it the pos­sibility of abuse, and might strand the Board in a situation where grounds for an interim order might be made out but the main application was entirely and obviously without any merit what­soever.

23. With this in mind, 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. While leaving room for some innovation by parties, such a test protects the integrity of the Board's processes by precluding interim relief where the main application is frivolous or vexatious. This provides the Board with an element of security and some coherence between the main application and the interim relief power, but gives recognition to our other concerns described above.

24. We also find it more appropriate to consider this requirement as simply one ingredient in a test for interim relief, rather than an initial threshold of some kind. Setting up an assessment of the merits as a preliminary hurdle in an interim relief test suggests a two-step analysis which we find unnecessarily formal in the circumstances.

25. Returning to the themes reflected in the interim order cases from other provincial boards, the next issue is the concept of irreparable harm. This formulation is not as useful to us as it might first appear. In the first place, a review of the cases suggest that it is a rather elastic con­cept, which is often interpreted differently from one case to another. Secondly, the experience of this Board is not that there are two distinct categories involving cases on the one hand where entirely adequate remedies can be applied, and those on the other where the available remedies are clearly deficient. Rather, it is a more accurate reflection of the Board's experience to say that most remedies cannot cure every aspect of the harm which may flow from a breach of the Act, and that at best, the Board attempts to provide some rough approximation. Labour rela­tions matters often involve a cluster of intangible and fluid social relations which may be extraordinarily time-sensitive. Once these relations are ruptured, they are not easily restored through the sometimes clumsy operation of subsequent remedies. Indeed, it goes without saying that remedies are, by their very nature, a substitute for what should have happened.

26. At the same time, when creatively exercised, the Board's wide remedial powers under sec­tion 91, for example, can often go a considerable distance toward repairing the mischief caused by violations of the Act. Any consideration of interim relief should also take into account the Board's experience in developing remedial orders which speak specifically to labour relations problems. Moreover, we recognize that the imposition of relief before an adjudication on the merits is inherently problematic to some extent.

27. In this context, we find it more useful to acknowledge that in terms of our ability to address harm through remedies available at the disposition of the main application, what we are really dealing with is degrees of adequacy on a continuum of damage. Attempting to force this reality into mutually exclusive legal pigeon holes such as irreparable damage as opposed to, say, repair­able damage, is more artificial than we need to be, and does not reflect the Board's practical experience.

28. If the concept of irreparable harm does not shed as much light as we would like on the test for an interim order, there is no doubt that some analysis of harm is still central. In considering the shape of that analysis, it is useful to return to the Board's own jurisprudence which empha­sizes the importance of effective remedies as a critical component of the scheme of the Labour Relations Act. As the Board said in Radio Shack, [1979] OLRB Rep. Dec. 1220:

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 it 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.

32. Moreover, both the Board and the Courts have long recognized that delay poses special problems in labour relations matters. In Consolidated-Bathurst Packaging Ltd. v. I.W.C., Local 2-69(1984) 2 O.A.C. 277, the Court noted:

…….there is a fundamental principle of labour law that injustice and detriment to the labour relations of an employer and employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the courts may be summarized by saying:

In the law which has grown up around labour relations in this province and indeed elsewhere where the common law is pursued, the overriding princi­pal invariably applied is that labour relations delayed are labour relations defeated and denied: The Journal Publishing Company of Ottawa Ltd. v. The Ottawa Newspaper Guild, Ont. C.A. released May 17/77 (unreported) [since reported [1977] 1 A.C.W.S. 817 (Ont. CA.)].

Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc. (1983), 1983 CanLII 1852 (ON HCJ), 41 OR. (2d) 287, the Court commented that delay in labour relations matters often works unfairness and hard­ship. To some extent then, the Board must ensure that delay does not in itself decide a case.

33. The importance of effective remedies, their general imperfection in labour relations, and the corrosive effects of delay all serve to highlight the critical role interim relief has to play in this area. If harm is not easily cured after the fact, and if delay is critical, it makes some sense to emphasize preventing that harm at the earliest possible point. However, it must be recognized that preventing one harm, to a union applicant for example, may well have a harmful labour relations effect on a responding employer. This suggests that a general predisposition towards preventing harm, rather than curing it, applies to the interests of both parties. In other words, the Board must balance the harm to each party in considering whether to grant an interim order. As a result, rather than separating out the concept of irreparable harm which appears to be a poor fit with the Board's experience in remedial matters, and then proceeding to an exami­nation of the balance of convenience, we find it more consonant with labour relations realities to adopt an approach where we consider both what harm may occur if an interim order is not granted, and what harm may occur if it is. This does not mean that the notion of irreparable harm is entirely irrelevant. It merely reduces it to one of a number of aspects of harm which the Board might consider in this area.

34. Of course, this leaves open to some extent the sort of harm we envision as relevant to this balancing process. Given the fact that this jurisprudence is in its infancy, it makes sense to allow the parameters of that harm to evolve in the context of concrete situations which will be pre­sented to us. Suffice it to say at this point that balancing the harm to the parties is not an exer­cise which takes place in a vacuum, but rather in the context of the purposes and scheme of the Act, which also serve to provide definition for the type of harm we would find persuasive. It is also worth noting that the Board has more flexibility in crafting interim orders than it may in final remedies. Because they are temporary, and because they are not dependent on a finding of a violation, for example, the Board has the relative luxury to conceive of interim justice as an endeavour in problem-solving, rather than fault-finding.

In Tate Andale, supra, the Board made these observations:

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 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.

41. 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.

42. 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.

43. 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 III 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).

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

9. This brings us to the facts before us. We observe firstly that there is little doubt that there is an arguable breach of the Act on the face of the section 91 complaint. If the applicant's allegations were proven, they would amount to violations of section 65, 67 and 71 of the Labour Relations Act.

10. Moving on to the specific balance of harm in this case, the Board has frequently recorded the chilling effects of a discharge of a union organizer on an organizing campaign. Again, we find it convenient to use portions of Loeb Highland, supra, to summarize our own views about this particular matter:

36. Moving on to the specific balance of harm in this case, the Board has frequently recorded the chilling effects of a discharge of a union organizer on an organizing campaign. For example, in Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board said as follows:

However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with back-pay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist of those occasions where he will not.

37. Moreover, the Board has found on quite a number of occasions that the discharge of a union organizer during a union campaign may lead to a situation where the true wishes of employees can no longer be ascertained, despite the Board's ability to reinstate the organizer. In other words, the intimidatory effect is so powerful that employees can no longer express their real views on unionization, with the result that certification is granted without a test of employee wishes. For example, in DI-AL Construction Limited, [1983] OLRB Rep. Mar. 356, the Board said in this regard:

A discharge is one of the most flagrant means by which an employer can hope to dis­suade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made clear to employees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employ­ees are not likely to be ascertained in a representation vote.

38. Similarly, in Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443, the Board was faced with a situation where a company had laid off a number of employees during an organizing cam­paign in violation of the Labour Relations Act. In this case, however, the company recalled the employees shortly thereafter and issued a letter indicating that employees were free to chose union representation or not. The Board found that the damage had already been done, despite the recall and letter, and that employees were no longer able to express their true wishes with respect to union representation. The Board came to a similar conclusion in Elberisen Industries Limited, [1984] OLRB Rep. Nov. 1564, despite the reinstatement of an employee laid off in vio­lation of the Act, although there were other factors which resulted in that finding as well.

39. Why is the impact so severe when a union organizer is discharged? The Board has previously commented on the peculiar vulnerability of employees who depend on the employer for their livelihood. In Pigott Motors (1961) Ltd. (1962), 63 CLLC ¶16,264, the Board said:

There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natu­ral desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act.

In Royrec Vinyl Co., [1990] OLRB Rep. June 727, the Board commented on this problem in another context:

In the Board's experience, employees are often concerned that they may be subject to such reprisals by their employer for union activity. The Board's jurisprudence is replete with examples of employees who were discharged or penalized in some way, at least in part, because of their support for unionization. For an employee who fears that joining a union will lead to a discharge or other penalty, the result he or she con­templates can be a loss of economic security, the loss of the social milieu of the work­place, a concomitant loss of self-esteem, identity or social standing, the uncertainty of finding another job and the possibility of a slide onto social benefits. Of course, in most cases such a bleak picture will not come to pass; nevertheless, the mere possibil­ity of any of these consequences may exert a powerful influence on an employee con­templating collective bargaining, a regime frequently not welcomed by employers.

For similar reasons, a discharge has been referred to in arbitral jurisprudence as the "capital punishment" of labour relations.

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.

4t. This raises the question of whether even interim reinstatement can prevent this kind of harm. We have no illusions that the powerful effect of a discharge in these circumstances can be entirely counteracted by earlier measures. Nonetheless, common sense suggests that early rein­statement can at least help to minimize some of the potential harm to an organizing campaign.

11. Among other things, the company argued that since the application for certification had already been filed, the campaign was over since no more membership evidence could be submitted at this point. As a result, either the potential harm to the union or the benefit of an interim order was minimized. Although it was not known to the parties whether or not there would be a vote directed by the Board on the certification application, the company argued that we should require the union to tell us how many cards it had filed, and draw conclusions from this as to whether a vote would be directed. Even if a vote was ordered, counsel argued, it would be a secret ballot vote so that employees would be free to express their views, and there were two other employee organizers who could still electioneer, although he acknowledged that one was currently on Work­er's Compensation benefits. He also noted that Ms. Kuepfer could still electioneer as well, albeit from outside the plant.

12. Counsel for the union submitted that there was still the possibility that the Board might direct a vote on the certification application, and as a result, the chilling effect of the discharge was still critical and the union needed to have Ms. Kuepfer back in the plant to maintain and build sup­port in this regard. In his view, the fact that any vote would be conducted by secret ballot would not be sufficient to counteract the climate of fear that a discharge creates, and he referred to the Board's jurisprudence with respect to section 9.2. In terms of the possibility of a vote, counsel pointed out that a group of employees opposing the union had filed material late in the certifica­tion application, and might seek to intervene. (A lawyer representing those employees was present in the room during the argument on the interim order but did not attempt to formally appear.) While the union knew how many cards it filed, it did not know, for example, how many were valid and whether the Board was conducting an investigation into any of them. Having Ms. Kuepfer electioneer from outside the plant, counsel argued, would only highlight the fact to other employ­ees that she was no longer working there. Even if there were no vote, the union would be entering a sensitive period after certification where it had not yet had a chance to establish that collective bargaining could yield some benefit to employees and the potential harm of the discharge would still be felt.

13. We accept that a discharge perceived by employees as a reprisal for union activity can cause considerable damage throughout the process of organizing employees, obtaining certification and embarking on a collective bargaining relationship. Before the application for certification is filed, it may halt or slow recruitment of employees to membership. After the application is filed, it may dry up sources of information necessary to pursue the application, scare off potential wit­nesses, and influence the results of a representation vote. As the Board noted in the context of interim certifications in City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1, even the period after the union has established the required membership support is one of high expecta­tions and uncertainty. Similarly, during the post-certification period employees may be too intimi­dated to help formulate bargaining proposals, serve on a negotiating team or identify themselves with the union in other ways. If the application for certification is unsuccessful, such a discharge may kill any further organizing. Even after a first collective agreement is signed, a union needs to mobilize and maintain employee support as employees are required to serve as stewards, sit on committees and participate in a myriad of activities necessary to administer the collective agree­ment and keep the relationship viable. It is for these reasons that the Board has considered the chilling effect of discharges even during the term of a collective agreement and has ordered post­ings to counteract that effect (Valdi Inc., [1980] OLRB Rep. Aug. 1254 and Silknit Limited, [1983] OLRB Rep. Aug. 1362).

14. At the same time, the situation becomes progressively less fragile as different water-marks in this process are attained. If the union has filed membership evidence for over 55% of employees, and there are no other difficulties in the case, the union may be certified without a vote. In these cases, it may be in a less vulnerable position after the application for certification has been filed. Once the application has been disposed of and if the union is certified, a breathing space has been secured, and the kind of momentum which characterizes an organizing campaign becomes less critical. And after the first collective agreement is signed, it is normally anticipated that the situation will stabilize even further.

15. Obviously the stage at which an interim order is requested may be one of many relevant considerations in the Board's decision. However, we find our own thinking in this regard is aptly summarized in these remarks of the Board in Tate Andale, supra:

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. Ar1d 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.

(emphasis original)

16. In this particular case, the application for certification has not yet been determined. In these circumstances, the fact that an application has been filed does not provide us with much reas­surance in terms of the kind of chilling effect which may be created by Ms. Kuepfer's discharge, and we are not inclined to place much weight upon it.

17. Looking at the situation as a whole, we conclude that the potential harm of not granting the interim order is still significant. This brings us to a consideration of the harm that may result from granting the order. The company asserts in its various declarations that Ms. Kuepfer has been rude and used abusive language to Ms. Welch, and that if Ms. Kuepfer is reinstated, it will be extremely disruptive, chaos will result and Ms. Welch may quit. It is not in dispute that Ms. Welch and Ms. Kuepfer no longer work in the same area of the plant, but the company asserts that they may have to pass each other in the lunchroom and on their way to and from their respective work areas.

18. We accept that the relationship between Ms. Kuepfer and Ms. Welch is a difficult one at this point in time. Nevertheless, the fact that they are no longer working together will help to minimize their contact, and it seems somewhat unlikely that chaos will result in these circum­stances. In arriving at our conclusion in this regard, we were cognizant of the fact that the section 91 complaint had been expedited under section 92.2 with the effect that the hearing into the merits of the complaint was scheduled to commence within two weeks.

19. As a result, we concluded that the harm which might stem from granting the interim order requested was less than the harm which might occur if it was not granted, and we issued the order set out above.

DECISION OF BOARD MEMBER J. A. RUNDLE; March 9, 1994

1. I dissent.

2. While the applicant may be able to establish an arguable case in this instant, I think an analysis of the resulting harm clearly favours the dismissal of the application.

3. Turning first to the harm likely to be suffered by the union, I would dispute the finding of my colleagues. Although a dismissal may have a chilling effect on an organizing campaign, I think that such an effect is far less significant where the application for certification has already been filed. Once the application is filed, the focal point of the campaign is, for all intents and pur­poses, over. Moreover, membership evidence would have already been collected and thus employee preferences have been determined. I would also agree with counsel for the employer who argued that while the certification had not yet been determined, even if it were put to a vote, the ballots would be secret and employees would be free to express their views. It would seem to me that the harm to the union in denying this application is minimal.

4. In contrast, the issuing of an interim order would be a heavy burden to the employer. Reinstatement of Ms. Kuepfer would undoubtedly cause a substantial disruption in the workplace. Not only would the employer's authority be undermined in terms of its ability to discipline other employees in the workplace, but the reinstatement of Ms. Kuepfer would ultimately serve only to cause serious labour relations harm.

5. Finally, I think that both Loeb Highland, [1993] OLRB Rep. March 197 and Tate Andale, [1993] OLRB Rep. Oct. 1019 are distinguishable from this case on the basis of timing of the dismissals. The grievors in Loeb Highland, supra and Tate Andale, supra were dismissed during the organizing campaign, but prior to the filing of the application. However, as mentioned above, the grievor in this instance was dismissed after the application had been filed - a difference which I would find to be significant.

6. For all of the above reasons I would dismiss the application.