[1995] OLRB Rep. September 1231
2079-95-M United Steelworkers of America, Applicant V. Videolux Canada Inc., Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members W. H. Wightrnan and C. McDonald.
APPEARANCES: Mark Rowlinson and Brando Paris for the applicant; David Cowling and Jean-Michel Ouzzan for the responding party.
DECISION OF S. LIANG, VICE-CHAIR, AND BOARD MEMBER C. McDONALD; September 8, 1995
This is an application for interim relief made pursuant to the provisions of section 92.1 of the Labour Relations Act.
In this application, the union requests the reinstatement of Michel Elbaz to his former position with the company, pending the disposition of a related complaint under section 91 of the Act. The union also seeks further relief restoring certain terms and conditions of employment, and prohibiting management from discussing the union with its employees.
Turning first to the case as its relates to Mr. Elbaz's employment, it was not seriously disputed and the Board finds that there is an arguable case that Mr. Elbaz's activities in connection with the union played a role in the termination of his employment. There are certainly factual issues in dispute, but there is also an ample basis for the case to be heard.
The main dispute between the parties concerns the issue of the balance of harm. The union asserts that interim relief is necessary in this case for a number of reasons. The union was certified on July 11, 1995 to represent a unit of employees of this employer. Mr. Elbaz was instrumental in the organizing drive and continues to play a key role in the union's activities. He is one of two employee members elected to the bargaining committee. He is bilingual, an asset in a workplace where both French and English are spoken. Bargaining has yet to commence, although the union wrote to the company on July 17th requesting certain information for the purposes of formulating bargaining proposals.
The company does not dispute that there may be some labour relations harm as a result of the removal from the workplace of Mr. Elbaz. However, it asserts that where the action occurs after the union has been certified, such harm is considerably diminished. The company also suggests that the fact that the union waited for 17 days after the termination of Mr. Elbaz's employment to file this application undercuts any urgency asserted by the union. In all the circumstances, it is submitted that the harm to the union is minimal and is outweighed by the harm to the company should this application be granted. On this latter point, the company states that it would cause it undue hardship if it were compelled to reinstate Mr. Elbaz because it simply no longer requires his position. Mr. Elbaz first came to the company in November of 1993 as an electrician, to work on the start-up of the company. The start-up work has been completed. In its submissions, the company stated that "there is no more work for electricians".
The declaration of the company states that no one has been hired to replace Mr. Elbaz in his capacity as electrician, and that in fact, no employees have been hired by the company since the date of the termination of his employment.
In Earnway Industries (Canada) Ltd., [1994] OLRB Rep. Nov. 1511, the Board directed the reinstatement of 23 employees pending the hearing of an unfair labour practice complaint. In that case, the employer asserted that these employees had been laid off for economic reasons. In the course of its reasons, the Board alluded to the necessity that an allegation of lack of work be established clearly and persuasively, preferably through supporting documentary evidence. We agree with those sentiments. In previous cases, the Board has referred to the necessity that declarations filed in support of a position taken on interim relief be as complete and detailed as possible, particularly where the facts can be presumed to be within a party's knowledge: see for instance, Metropolitan Toronto Apartment Builders Association et. al, [1993] OLRB Rep. Mar. 219. This is no less true where an employer asserts that it has no work available for an employee whom it has terminated.
In the case before us, it is not disputed that Mr. Elbaz initially came to work for this company as an electrician for the purposes of working on the start-up of this company. It is not disputed that the work for which he had originally been retained ended in September of 1994, and that he was further retained after that to perform both electrical and general maintenance duties. In late February, Mr. Elbaz was told that his employment would be terminated in a week, although he was asked whether he would be willing to continue to work for the company at a considerably reduced wage. When Mr. Elbaz informed the company that he could not afford to work at the wages offered, his services were terminated. It is agreed that the termination of his services was at least partly for financial reasons. The company also asserts that it had told Mr. Elbaz previously that it might no longer require his services.
Shortly after the termination of his employment, Mr. Elbaz had a conversation with the owner of the company, Jean-Michel Ouzzan, in which he asked whether he could come back to work for the company since he was unable to qualify for unemployment insurance without at least twenty weeks of work. The company agreed to take him back to work, at a wage rate negotiated between Mr. Elbaz and Mr. Ouzzan. There is a dispute as to whether the parties agreed to a fixed 20-week contract, or whether there was an understanding that it might continue beyond twenty weeks.
There is also a dispute about the nature of Mr. Elbaz's work during the period of March 7th, when he returned to work for the company, and August 11th when his employment was terminated. However, it can generally be said that the electrical portion of his duties were much less than they had been when he was first hired by the company, and the maintenance portion of his duties were a significant element of his work.
It is difficult to assess without more detailed evidence the claim that Mr. Elbaz's position was no longer required. It seems to be the case, and the union does not dispute this, that the company no longer needs the services of a full-time electrician. However, there is nothing to indicate that it no longer requires those maintenance services that Mr. Elbaz had been providing. Presumably, these services are now being performed by other employees of the company. It appears that Mr. Elbaz's work has therefore been "absorbed" by other members of the work force. How significant or onerous a burden would it be to this company to return Mr. Elbaz to work, on an interim basis, to continue with those duties he had been performing prior to his discharge? In assessing this, it is relevant to note that when Mr. Elbaz requested twenty weeks of work from the company, after his services had been terminated, the company seemed to have little trouble finding him work, as long as the price was right. It was prepared to accommodate him in his request for work, even though at the same time it states that the electrical needs of the company have been gradually decreasing, and even though in January of 1995, it put Mr. Elbaz on notice that it might no longer require his services as an electrician.
The issue of whether there is an economic justification for the termination of Mr. Elbaz's employment may well be before the panel that determines the merits of the unfair labour practice complaint. At this juncture, however, the Board is not satisfied in all of the circumstances that it would be unduly onerous for the company to return Mr. Elbaz to work pending the hearing of that complaint.
We are in agreement that the labour relations harm and impact of the termination of employment of a key union supporter will differ depending on the stage in the collective bargaining relationship at which it occurs. Where such actions occur following certification, where the union s bargaining rights are established, clearly the effect of them is not as compelling as when they occur in the midst of an organizing effort. But it is also not to be understated. As the Board has stated elsewhere, the success and viability of collective bargaining and the life of a trade union depends on the willingness of employees to participate in its activities. Even once a union has been certified, the success of collective bargaining may well turn on the willingness of employees to support a union’s efforts to reach a first agreement, to participate in the formulation of bargaining proposals and strategies and to assist in ensuring that an employer is respecting the rights of its employees under the Act. The willingness of an employee to participate in any of these activities is undermined by a perception that union supporters are met with adverse consequences.
It may be easier for an employer to establish that the harm it will suffer should the Board impose interim reinstatement of an employee outweighs the type of harm to the union s interests, where the actions take place after bargaining rights are established. But in the case before us, we are not convinced that the harm to this employer outweighs that to the union. In the circumstances, we are also not convinced that the 17 day delay in filing this application, from the date of the termination of Mr. Elbaz's employment, is of such significance that it changes our assessment of the harm.
Turning to the other relief sought, the Board is not convinced that these other matters warrant relief at this time. The delay in complaining about them is greater, and there is less reason to think that they will have any significant impact on the union's interests and on the employees in the workplace. Further, the concern of the union with respect to the employer's alleged improper communications with employees (which for the most part seem to involve Mr. Elbaz) can be met in these circumstances through a posting of a Board notice.
Accordingly, the Board makes the following interim orders, which are in effect until the disposition or resolution of the unfair labour practice complaint in Board File No. 2078-95-U:
(a) an order reinstating Michel Elbaz to the position he held as of August 11, 1995; and
(b) an order that the Board Notice as set out in Appendix "A" hereto shall be posted in conspicuous places in the workplace.
DECISION OF BOARD MEMBER W. H. WIGHTMAN; September 8, 1995
The "start-up" work was initially performed by Mr. Elbaz as an independent contractor until September of 1994 when he became an employee. His employment as an electrician ended in February 1995, when he declined to accept continued employment in a capacity other than that of an electrician and at a substantially lower rate of pay.
As indicated in paragraph 9 of the main decision, the next evidence is that of Mr. Elbaz approaching Mr. Ouzzan with a problem. Mr. Elbaz required twenty weeks of covered employment to enable him to qualify for unemployment insurance benefits. Mr. Ouzzan was not the first, and in all likelihood will not be the last, employer to accede to such a request. I am prepared to accept that Mr. Ouzzan acceded to the request with what he regarded as a compassionate response to a cry for help rather as a disregard for the spirit of the Unemployment Insurance Act.
In any case, the events which followed will likely ensure that in the future Mr. Ouzzan will defend the integrity of the Unemployment Insurance Account by not accommodating job applicants whose stated objective is to qualify for U.I. benefits. Moreover, it should also serve to get the union-management relationship at Videolux off to a flying start.
I had understood the intent of the provision for interim relief under section 92.1 was to address "mischief' in the course of organizing efforts. By accepting the invitation to apply the provision post-certification the Board brings the legislative concept into further disrepute. Just as parties learned to use the provision for "leave to prosecute" as a means of drawing the Board into their disputes, it has become the case, even more quickly, that the provision for "interim relief' is being used in a similar fashion with the result that the Board appears to be integral to the problem.
We were able to offer the parties dates to hear the merits of this case well in advance of the September 18 date agreed upon. I would have denied the application and set hearing dates peremptorily beginning within five working days.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
THE BOARD HAS ORDERED VIDEOLUX CANADA INC. TO REINSTATE MICHEL ELBAZ UNTIL THE BOARD DECIDES WHETHER THE TERMINATION OF HIS EMPLOYMENT WAS LEGITIMATE.
A HEARING BEFORE THE BOARD IS SCHEDULED TO BEGIN ON MONDAY. SEPTEMBER 18, 1995. THE PURPOSE OF THAT HEARING IS TO DETERMINE WHY MICHEL ELBAZ WAS TERMINATED FROM EMPLOYMENT.
IF THE BOARD IN THE END DECIDES THAT THE REASONS FOR THE TERMINATION OF EMPLOYMENT HAD NOTHING TO DO WITH THE UNION, THEN THE TEMPORARY REINSTATEMENT ORDER WILL BE REVOKED AND THE COMPANY WILL NO LONGER HAVE TO EMPLOY MICHEL ELBAZ.
IF THE BOARD IN THE END DECIDES THAT THE TERMINATION OCCURRED BECAUSE OF MICHEL ELBAZ'S UNION ACTIVITIES, THE BOARD MAY CONFIRM THE TEMPORARY ORDERS.
EMPLOYEES IN ONTARIO HAVE THESE RIGHTS WHICH ARE PROTECTED BY LAW,
AN EMPLOYEE HAS THE RIGHT TO JOIN A TRADE UNION OF HIS OR HER OWN CHOICE AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES.
AN EMPLOYEE HAS THE RIGHT TO CAST A SECRET BALLOT IN FAVOUR OF, OR IN OPPOSITION TO, A TRADE UNION IF THE ONTARIO LABOUR RELATIONS BOARD DIRECTS A REPRESENTATION VOTE.
AN EMPLOYEE HAS THE RIGHT NOT TO BE DISCRIMINATED AGAINST OR PENALIZED OR
THREATENED OR FORCED TO DO ANYTHING OR NOT TO DO ANYTHING BY AN EMPLOYER
OR A TRADE UNION OR A REPRESENTATIVE OP AN EMPLOYER OR A TRADE UNION
BECAUSE HE OR SHE IS EXERCISING RIGHTS UNDER THE LABOUR RELATIONS ACT.
AN EMPLOYEE HAS THE RIGHT NOT TO BE PENALIZED OR THREATENED OR FORCED TO
DO ANYTHING OR NOT TO DO ANYTHING BECAUSE HE OR SHE PARTICIPATED IN A
PROCEEDING UNDER THE LABOUR RELATIONS ACT INCLUDING ATTENDING A HEARING AS
A WITNESS OR A POTENTIAL WITNESS.
AN EMPLOYEE HAS THE RIGHT TO REMAIN NEUTRAL, TO REFUSE TO SIGN DOCUMENTS
OPPOSING THE UNION OR TO REFUSE TO SIGN A UNION MEMBERSHIP CARD.
IF AN EMPLOYEE IS PENALIZED OR THREATENED OR FORCED TO DO ANYTHING OR NOT TO DO ANYTHING FOR EXERCISING ANY OF THESE RIGHTS, A COMPLAINT MAY BE FILED WITH THE ONTARIO LABOUR RELATIONS BOARD.
This is an official notice of the Board and must not be removed or defaced.
DATED THIS 8TH DAY OF SEPTEMBER, 1995.