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HomeMy WebLinkAbout2002-2077.McIlwain.03-06-25 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2077/02 UNION# OLB425/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Control Boards Employees' Umon (McIlwaIn) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Michael V Watters Vice-Chair FOR THE UNION JulIa Noble Counsel Ontano LIqUor Boards Employees' Umon FOR THE EMPLOYER Rhonda ShIrreff Heenan BlaIkIe BarrIsters and SOlICItorS HEARING May 28 2003 2 At the heanng of May 28 2003 both partIes presented an opemng statement wIth respect to the ments of the dIspute The Umon then made applIcatIOn for Intenm relIef The applIcatIOn was opposed by the Employer In her opemng statement, counsel for the Umon advIsed that the Umon's eVIdence wIll be as follows 1 The Gnevor Mr BIll McIlwaIn, commenced hIS employment wIth the Employer In 1988 as a Casual employee In the store system. He reqUIred a transfer to another dIstnct In 1994 for famIly reasons The Employer would not grant the transfer The Gnevor therefore, resIgned hIS employment. He was rehIred In the new dIstnct In 1995 2 The Gnevor began workIng In the PetrolIa Store, Store #133 In June, 1995 as a Casual employee The Gnevor's Store Manager was Mr John Nenez, 3 The Gnevor was scheduled to work Sunday ShIftS In Store #133 from approxImately Apnl, 2002 on an ongoIng basIs He was scheduled to work four (4) hour ShIftS on Sundays, from 1200 noon to 400 p.m These were also the hours that the Store was scheduled to be open. The Gnevor was the only employee scheduled to work In the Store for these Sunday ShIftS It was necessary for hIm to come to work well In advance of 1200 noon In order to make the Store ready for busIness at 1200 noon. It was also necessary for hIm to stay In the Store workIng well after 4 00 P m. In order to perform the Store cloSIng procedures The Gnevor dId not get a break dunng hIS four (4) hour scheduled shIft. The Gnevor was compensated for four (4) hours of work by the Employer for the Sunday ShIftS 4 The Umon takes the posItIOn that the Employer acted In vIOlatIOn of the collectIve agreement, IncludIng ArtIcle 31 l(d)(i) wIth respect to the above-noted schedulIng practIces ArtIcle 31 l(d)(i) reads There shall be one (1) fifteen (15) mInute rest penod for each four (4) consecutIve hours of work. 5 The Gnevor raised the Issue of Sunday schedulIng wIth hIS Store Manager Mr Nenez. He was advIsed by the Store Manager that the DIstnct Manager Mr Bob PoulIn, was not prepared to gIve the Gnevor a fifteen (15) mInute break dunng a Sunday ShIft, nor In any way change the four (4) hour ShIft on Sundays The Gnevor IndIcated that he would be proceedIng to file a gnevance 3 6 The Gnevor was advIsed by hIS Store Manager that the DIstnct Manager Mr PoulIn, would make lIfe dIfficult for hIm Ifhe filed a gnevance concermng thIS schedulIng Issue The Gnevor was later advIsed by hIS Store Manager and by the ActIng DIstnct Manager Mr Peter Loupos, that If he persIsted wIth thIS complaInt and filed a gnevance, the DIstnct Manager would arrange to transfer hIm out of the PetrolIa Store #133 to Store #202, the Lakeshore Store In Sarma. Such a transfer would be detnmental to the Gnevor who would be scheduled for fewer hours at Store #202 and therefore receIve less Income At the matenal tIme, the Gnevor was the semor Casual employee In Store #133 The adverse consequences anSIng from thIS threatened transfer to Store #202 were well known to the Employer 7 The Gnevor commumcated to both hIS Store Manager and the ActIng DIstnct Manager that he had no IntentIOn of droppIng hIS complaInt or agreeIng not to file a gnevance He was then advIsed by the DIstnct Manager that he was beIng transferred to Store #202 In SarnIa, 8 SInce hIS transfer to Store #202, effectIve October 14 2002, the Gnevor has expenenced a drastIc reductIOn In hours and Income Subsequent to the transfer the Employer transferred another casual employee Into Store #133 ThIS employee has more semonty than the Gnevor Counsel for the Umon advIsed that the Umon's posItIOn on the ments wIll be that the Employer and persons actIng on behalf of the Employer threatened the Gnevor wIth repnsals when the Gnevor IndIcated that he was consIdenng assertIng hIS nghts to file a gnevance and that they attempted to coerce hIm Into not purSUIng same On the Umon's analysIs, by transfernng the Gnevor to a store assIgnment WIth antIcIpated adverse consequences, the Employer In fact carned out the substance of ItS unlawful threat when the Gnevor would not gIve up hIS nghts to file a gnevance Counsel submItted that the Employer's conduct constItutes a vIOlatIOn of artIcles 2 1 and 27 of the collectIve agreement, sectIOn 2 of the Crown Employees CollectIve BargaInIng Act, 1993 and sectIOns 70 72, 76 and 87 of the Labour RelatIOns Act, 1995 I was Informed that the Umon wIll seek the folloWIng remedIes on the ments 1) An order dIrectIng the Employer to return the Gnevor to Store #133 and to reInstate hIm as the senIor Casual employee In the Store 4 11) An order dIrectIng the Employer to compensate the Gnevor for all of hIS monetary losses In connectIOn wIth hIS transfer from Store #133 to Store #202 111) An order dIrectIng the Employer to dIscIplIne the DIstnct Manager Mr PoulIn, and the ActIng DIstnct Manager Mr Loupos, for theIr threatemng and IntImIdatIng conduct towards the Gnevor and for the Interference In the representatIOn of the employees by the Umon, IV) An order dIrectIng the Employer to post, In a conspIcuoUS place In every store In the Gnevor's DIstnct, a statement outlImng and confirmIng the nghts of bargaInIng umt employees to file a gnevance pursuant to the collectIve agreement and the Crown Employees CollectIve BargaInIng Act, 1993 and to otherwIse partIcIpate In the lawful actIvItIes of the Umon, such statement to be sIgned by authonzed representatIves of the Employer and the Umon, v) A declaratIOn that the Employer's schedulIng practIces WIth respect to Sunday work are In vIOlatIOn of the collectIve agreement, and an order that the Employer cease and desIst from vIOlatIng the collectIve agreement; VI) An order dIrectIng the Employer to compensate the Gnevor In an amount equal to fifteen (1S) mInutes pay for every Sunday ShIft that he worked at Store #133 V11) An order dIrectIng the Employer to provIde traInIng to the DIstnct Manager and the ActIng DIstnct Manager wIth respect to the nghts of employees under applIcable labour legIslatIOn and the collectIve agreement; V111) Such further and other order as the Gnevance Settlement Board deems appropnate In response, counsel for the Employer advIsed that the Employer's eVIdence and posItIOn wIll be as follows 1 In Apnl, 2002, the Gnevor IndIcated that he was avaIlable to work on Sundays Subsequently the Gnevor was scheduled on an ongOIng basIs to work a four (4) hour Sunday ShIft from 1200 noon to 400 p.m The Gnevor's scheduled hours corresponded to the Sunday hours of operatIOn for Store #133 The Gnevor was the only employee scheduled to work the Sunday shIft; 2 In late September 2002, the Gnevor raised the Issue of Sunday schedulIng wIth hIS Store Manager Mr Nenez, expressIng concern that he was not scheduled for a fifteen (1S) mInute break dunng hIS four (4) hour Sunday shIft. Mr Nenez then dIscussed the Gnevor's concerns wIth the DIstnct Manager Mr PoulIn, 3 It IS the Employer's posItIOn that Sunday work IS voluntary and that a fifteen (IS) mInute rest penod can be taken throughout the day If the employee IS scheduled to work four (4) or more consecutIve hours The Gnevor was advIsed that when he felt the need for a break dunng the Sunday ShIft, he could lock the 5 Store and post a sIgn on the door IndIcatIng to customers that he would be back In approxImately fifteen (15) mInutes Because the flow of busIness In Store #133 was generally slow on Sundays, there were sustaIned penods dunng the Gnevor's four (4) hour shIft when he would not have been reqUIred to serve customers and could have convemently taken hIS break; 4 NeIther Mr Nenez, Mr PoulIn, Mr Loupos nor anyone else actIng on behalf of the Employer ever threatened the Gnevor wIth repnsals If he proceeded to file a gnevance on the schedulIng Issue At no tIme dId anyone actIng on behalf of the Employer ever attempt to coerce the Gnevor Into not purSUIng hIS gnevance 5 The Employer wIll emphatIcally deny that the Gnevor's transfer to Store #202 was In any way Intended to be pumtIve or that It resulted because the Gnevor pursued hIS schedulIng complaInt. Rather the Gnevor's transfer was effected for bona fide operatIOnal reasons InvolvIng the transfer of a number of Casual employees wIthIn the geographIc area. Such transfers were contemplated In September 2002 Just pnor to the date on whIch the Gnevor expressed hIS concerns about the Sunday schedule to hIS Manager Contrary to the Umon's allegatIOns, the transfers were arranged by Mr Loupos and Mr Bnan Parker Manager of Store #202, and not by Mr PoulIn. Such transfers were precIpItated by the folloWIng CIrcumstances (i) some semor Casuals were, at that tIme, gettIng fewer hours than some Jumor Casuals and (iI) at least one (1) Store wIthIn the DIstnct reqUIred an addItIOnal Casual employee In order to meet operatIOnal reqUIrements 6 The transfer of the Gnevor to Store #202 was a lateral transfer and, as such, had no Impact on hIS salary The Employer notes that the Umon has not substantIated the Gnevor's perceIved loss of hours SInce hIS transfer to Store #202 7 It IS the Employer's posItIOn that there has been no vIOlatIOn of the collectIve agreement, the Crown Employees CollectIve BargaInIng Act, 1993 or the Labour RelatIOns Act, 1995 As mentIOned, the Umon seeks Intenm relIef on behalf of both the Gnevor and the Umon In the form of an order that the DIstnct Manager Mr PoulIn, the ActIng DIstnct Manager Mr Loupos, the Employer and any other persons actIng on behalf of the Employer forthwIth cease and desIst from Interfenng wIth the nghts of the members of the bargaInIng umt to file a gnevance The Umon's Intent to seek thIS remedy was commumcated to the Employer In the former's statement of partIculars contaIned In a letter of May 14 2003 At the heanng, counsel for the Umon advIsed that the folloWIng addItIOnal Intenm relIef was beIng sought an order that the Employer and any of the persons referenced above not threaten any 6 member of the bargaInIng umt as follows (i) wIth adverse consequences on the filIng of a gnevance (iI) wIth a transfer to a less desIrable Store as a result of proceedIng wIth a gnevance or (ill) wIth a reductIOn In scheduled hours as a result of filIng a gnevance It was the posItIOn of the Umon that It has an arguable case wIth respect to both aspects of the dIspute With respect to the schedulIng Issue, counsel noted that the Gnevor was scheduled to work four (4) consecutIve hours on Sundays wIthout a fifteen (IS) mInute break, contrary to the clear dIrectIOn contaIned In artIcle 31 l(d)(i) of the collectIve agreement. With respect to the transfer Issue, counsel submItted that the facts alleged, If proven on a balance of probabIlItIes, are sufficIent to establIsh a breach of both the collectIve agreement and the applIcable legIslatIOn. Counsel further argued that the balance of Inconvemence or harm favours the Umon. From her perspectIve, grantIng the Intenm order requested would not cause harm to the Employer In her submIssIOn, such an order would not reqUIre a findIng of fact matenal to the ments of the dIspute Rather the order If Issued, would sImply restate the Employer's oblIgatIOns under the collectIve agreement and applIcable legIslatIOn. Counsel asserted, however that the Umon and ItS members would be preJudIced If the applIcatIOn IS demed. In substance, she claimed that Umon members mIght be hesItant to exerCIse theIr contractual nghts gIven the "chIllIng effect" of thIS case In thIS regard, relIance was placed on the AffidavIts of the Gnevor and Mr Steve Saysell, both dated May 28 2003 Paragraph eIght (8) of the Gnevor's AffidavIt reads "As a result of the events descnbed In the paragraphs above, I am now concerned that If I attempt to exerCIse my nghts under the collectIve agreement, or If a [sic] contInue to exerCIse my nghts under the collectIve agreement, I wIll be pumshed, or wIll contInue 7 to be pumshed by my Employer I am now concerned that I have effectIvely lost the nght to complaIn through the gnevance procedure" Mr SaysellIs a Gnevance Officer wIth the Ontano LIqUor Boards Employees' Umon. His dutIes and responsIbIlItIes Include servICIng the Umon's members In the Western RegIOn of the ProVInce IncludIng those employed In Store #133 and Store #202.Mr Saysell has represented the Gnevor wIth respect to thIS matter Paragraphs SIX (6) and seven (7) ofMr Saysell's AffidavIt read. "6 It has come to my attentIOn that other members of the OLBEU whom I represent In the Western regIOn, and In the dIstnct supervIsed by the DIstnct Manager Mr Bob PoulIn, are aware of the CIrcumstances concernIng Mr McIlwaIn's transfer IncludIng the CIrcumstances of hIS complaInt and gnevance, and also the alleged threats made by the Employer to transfer hIm, and hIS subsequent transfer by the Employer 7 As a Gnevance Officer on staff at the OLBEU I am concerned that the actIOns and statements, or alleged actIOns and statements of the Employer wIth respect to Mr McIlwaIn's complaInts and gnevance, has had and wIll contInue to have a chIllIng effect on the members of the bargaInIng umt whom I represent, IncludIng but not lImIted to Mr McIlwaIn, wIth respect to eXerCISIng theIr nghts under the collectIve agreement. In partIcular I am concerned that OLBEU members whom I represent wIll fear pumshment and feel IntImIdated and not file a gnevance whIch they would otherwIse file In the dIstnct of Ontano for whIch Mr Bob PoulIn IS the DIstnct Manager (known as DIstnct 4) I am further concerned, based In part upon the tIme lImIts provIsIOns In the collectIve agreement, that OLBEU members whom I represent wIll thereby permanently lose theIr nghts to complaIn or gneve, or otherwIse exerCIse theIr nghts under the collectIve agreement, and any applIcable legIslatIOn." Counsel for the Umon argued that If the gnevor and/or other Umon members faIled to pursue contractual or legal nghts because of fear of pumshment or repnsal, such nghts would be forever lost and could not be exercIsed retroactIvely gIven that tIme lImIts eXIst In respect of same She suggested that the chIllIng effect of thIS type of Employer actIOn IS dIfficult, If not ImpossIble to trace and IS "InsIdIOUS In nature" UltImately counsel submItted that such effect could not be adequately remedIed by a decIsIOn on the ments of thIS dIspute 8 In response to an InqUIry from thIS Vice-Chair counsel agreed that It IS somewhat unusual to ask for an order restatIng eXIstIng legIslatIOn. She argued, however that In the context of a potentIally long case, somethIng should be done to demonstrate the nghts provIded for In the legIslatIOn wIll be enforced. Counsel reIterated that the order sought would not decIde a central Issue In the dIspute but, Instead, would sImply reqUIre the Employer not to Interfere wIth bargaInIng umt nghts From her perspectIve the Issuance of such an order would not determIne If the Interference alleged by the gnevor actually occurred In fact. The Umon relIed on the folloWIng authontIes In support of ItS posItIOn Ministry of Labour and OPSEU (Nield) 1471/96 (Roberts) Management Board Secretariat and OPSEU (Union) 0001/03 (Stewart) Ontario (Ministry of Labour) v Ontario (Grievance Settlement Board) (1997) OJ No 427 (Ont. DIV Ct.) Ontario Human Rights Commission and OPSEU (Fox et al.) OS07/01 et al (Stewart) Ministry of Correctional Services and OPSEU (Sammy et al.) 0224/01 (Hams) MinistlY of Health and OPSEU (Belanger et al.) 976/93 (Kaufman) Management Board Secretariat and OPSEU (Union) 0610/02, (Petryshen) Ministry of Community and Social Services and OPSEU (Union) 2779/96 (Kaplan) The Employer opposes the Umon's applIcatIOn for Intenm relIef Counsel for the Employer argued that Intenm relIef IS an exceptIOnal remedy and that the dIscretIOn to grant same should be exercIsed wIth care and restraInt. She submItted that the request, In thIS Instance, relates to a central Issue In the case and IS substantIve, rather than procedural, In nature From her perspectIve, the Umon's applIcatIOn would reqUIre me to preJudge the threshold Issue as to whether persons actIng on behalf of the Employer Interfered wIth the Gnevor's nghts as a bargaInIng umt member Counsel stressed that the Employer emphatIcally demes It acted In thIS fashIOn. She suggested that a predetermInatIOn of the ments could not be 9 aVOIded gIven the eVIdence would have to be carefully scrutImzed to determIne whIch party IS correct. Counsel further observed that the Umon has not alleged that the Employer or persons actIng on behalf of the Employer threatened, IntImIdated, or otherwIse Interfered wIth, the gnevor or other bargaInIng umt members folloWIng the contested transfer She asserted that the Employer to the contrary has partIcIpated In the gnevance process In good faith. I was asked to find that there IS InSUfficIent eVIdence to support the eXIstence of a chIllIng effect, as alleged by the Umon. It was the further posItIOn of the Employer that the grant of Intenm relIef IS unnecessary In thIS Instance as there IS no IndIcatIOn that the Employer IS unwIllIng to follow the law Counsel stressed that the Employer IS not permItted under the collectIve agreement or legIslatIOn to Interfere wIth the legal nghts of the Umon or ItS members and that remedIes are provIded In the event of a breach. In her words, the order sought would merely "restate the law of the land" AddItIOnally she suggested that such an order would Inappropnately presuppose that thIS Employer IS InclIned to dIsregard ItS oblIgatIOns In thIS regard, counsel argued that there could be real harm If the order IS granted but the Umon IS ultImately unsuccessful on the ments She referenced the potentIal harm to the reputatIOns of the IndIVIduals Involved and to the devastatIng Impact such an order could have on labour relatIOns In her VIew such harm would be sIgmficant, lastIng and not easIly undone Counsel contrasted thIS wIth the sItuatIOn In whIch the order IS demed but the Umon IS ultImately successful on the ments On her assessment, In that event, any harm occasIOned to the gnevor or other bargaInIng umt members could effectIvely be remedIed by order of the Gnevance Settlement Board or the Labour RelatIOns Board. 10 The Employer relIed on the folloWIng awards In support of Its posItIOn Re Toronto Transit Commission And Amalgamated Transit Union, Local 113 (1994) 42 L.AC (4th) 61 (Kennedy) Re BrelJ,ers Retail Inc and United BrelJ,ers' Warehousing Workers' Provincial Board (1998) 74 LAC (4th) 113 (Carner) To be entItled to Intenm relIef, the Umon must establIsh that It has an arguable case upon the ments of the gnevance and that the balance of harm or Inconvemence IS In ItS favour AddItIOnally the order requested should be procedural, rather than substantIve, In nature In thIS regard, I am InclIned to thInk that, generally an order for Intenm relIef should not predetermIne a central Issue In the case It IS apparent that there wIll be a marked conflIct In the eVIdence whIch wIll be presented by the partIes The Gnevor wIll say that he was threatened wIth repnsals If he contInued wIth hIS complaInt and filed a gnevance It wIll lIkely be the thrust of hIS eVIdence that the transfer to Store #202 was, In effect, pumshment for proceedIng wIth a gnevance concernIng the Sunday schedule In contrast, the Employer's wItnesses wIll lIkely deny that they threatened, coerced or IntImIdated the gnevor They wIll assert, rather that the transfer was bona fide and made for valId operatIOnal purposes I note that there wIll be a further conflIct as to the extent ofMr PoulIn's role In the contested transfer At thIS Juncture, It seems probable that resolutIOn of the dIspute may necessItate findIngs on credIbIlIty The Umon here seeks an Intenm order that Mr PoulIn, Mr Loupos, the Employer and other persons actIng on behalf of the Employer cease and desIst from Interfenng wIth the nght of the Gnevor and other members of the bargaInIng umt, to file a gnevance It IS clear that the Gnevor filed hIS gnevance and proceeded to arbItratIOn notwIthstandIng the alleged threats, 11 IntImIdatIOn and coerCIOn. On the InfOrmatIOn before me albeIt lImIted, It does not appear that he was deterred by the conduct complaIned of In the cIrcumstances, I find It somewhat dIfficult to understand the statement In the Gnevor's AffidavIt that he has "effectIvely lost the nght to complaIn through the gnevance procedure" At thIS stage of the proceedIng, there IS no eVIdence, or Indeed suggestIOn, that the Employer actually Interfered wIth the nght of other employees to file a gnevance or that they were threatened wIth transfer to a less desIrable locatIOn wIth reduced hours If they proceeded wIth a gnevance The Umon, as mentIOned, relIes on what counsel refers to as the "chIllIng effect" On my readIng, Mr Saysell's AffidavIt IS speculatIve as to whether thIS effect has already occurred or wIll occur In future The document does not provIde any firm detaIl on thIS pOInt. I also note, on thIS aspect of the case, that thIS dIspute has come to the Gnevance Settlement Board for adJudIcatIOn by way of an IndIVIdual, and not a Umon, gnevance AwardIng the InJunctIve relIef sought by the Umon would Imply that employees In DIstnct 4 reqUIre some protectIOn because the Employer and ItS representatIves have prevIOusly engaged In, or are In future InclIned to engage In, Inappropnate and unlawful conduct. GIven the close nexus between thIS request and the ments of the dIspute the lack of sufficIent eVIdence of Employer mIsconduct; and the potentIal harm to IndIVIdual reputatIOns and labour relatIOns generally that could result, I am not prepared to exerCIse my statutory dIscretIOn to grant the Intenm relIef claimed. ThIS dISposItIOn IS reInforced by the fact that remedIes eXIst In the collectIve agreement and In legIslatIOn to combat the type of Employer conduct complaIned of here 12 ArtIcle 2 l(a) of the collectIve agreement reads The Employer and the Umon agree that there wIll be no IntImIdatIOn, dISCnmInatIOn, Interference, restraInt or coerCIOn exercIsed or practIced by eIther of them or theIr representatIves or members because of an employee's membershIp or non-membershIp In the Umon, or because of the exerCIse by an employee of a nght under thIS Agreement or under the Crown Employees CollectIve BargaInIng Act. A breach of thIS provIsIOn may be addressed through resort to the Gnevance Procedure, as described In artIcle 27 of the collectIve agreement. The relevant statutory provIsIOns are as follows CROWN EMPLOYEES COLLECTIVE BARGAINING ACT 1993 2 (1) SubJect to subsectIOn (2), the Labour RelatIOns Act, 1995 shall be deemed to form part of thIS Act. LABOUR RELATIONS ACT 1995 70 No employer or employers' orgamzatIOn and no person actIng on behalf of an employer or an employers' orgamzatIon shall partIcIpate In or Interfere wIth the formatIOn, selectIOn or admInIstratIOn of a trade umon or the representatIOn of employees by a trade umon or contnbute financIal or other support to a trade umon, but nothIng In thIS sectIOn shall be deemed to depnve an employer of the employer's freedom to express VIews so long as the employer does not use coerCIOn, IntImIdatIOn, threats, promIses or undue Influence 72 No employer employers' orgamzatIOn or person actIng on behalf of an employer or an employers' orgamzatIOn, (a) shall refuse to employ or to contInue to employ a person, or dISCnmInate agaInst a person In regard to employment or any term or condItIOn of employment because the person was or IS a member of a trade umon or was or IS eXerCISIng any other nghts under thIS Act; (b) shall Impose any condItIOn In a contract of employment or propose the ImposItIOn of any condItIOn In a contract of employment that seeks to restraIn an employee or a person seekIng employment from becomIng a member of a trade umon or eXerCISIng any other nghts under thIS Act; or (c) shall seek by threat of dIsmIssal, or by any other kInd of threat, or by the ImposItIOn of a pecumary or other penalty or by any other means to compel an employee to become or refraIn from becomIng or to contInue to be or to cease to be a member or officer or representatIve of a trade umon or to cease to exerCIse any other nghts under thIS Act. 76 No person, trade umon or employers' orgamzatIOn shall seek by IntImIdatIOn or coerCIOn to compel any person to become or refraIn from becomIng or to 13 contInue to be or to cease to be a member of a trade umon or of an employers' orgamzatIOn or to refraIn from eXerCISIng any other nghts under thIS Act or from performIng any oblIgatIOns under thIS Act. 87 (1) No employer employers' orgamzatIOn or person actIng on behalf of an employer or employers' orgamzatIOn shall, (a) refuse to employ or contInue to employ a person, (b) threaten dIsmIssal or otherwIse threaten a person, (c) dISCnmInate agaInst a person In regard to employment or a term or condItIOn of employment, or (d) IntImIdate or coerce or Impose a pecumary or other penalty on a person, because of a belIef that the person may testIfy In a proceedIng under thIS Act or because the person has made or IS about to make a dIsclosure that may be reqUIred In a proceedIng under thIS Act or because the person has made an applIcatIOn or filed a complaInt under thIS Act or has partIcIpated In or IS about to partIcIpate In a proceedIng under thIS Act. It IS abundantly clear from a reVIew of the above provIsIOns that the Employer IS prohIbIted from IntImIdatIng, coercIng, threatemng, or otherwIse Interfenng wIth employees In an effort to deter them from eXerCISIng theIr nghts under the collectIve agreement or statute ThIS would Include the nght to proceed wIth a complaInt or gnevance RemedIes and sanctIOns agaInst an offendIng Employer may be pursued by the Umon, or an affected employee, under both the collectIve agreement and the Labour RelatIOns Act, 1995 In my Judgment, the Umon's request for Intenm relIef, In substance, asks that Mr PoulIn, Mr Loupos, the Employer and other persons actIng on behalf of the Employer comply wIth the collectIve agreement and, In partIcular wIth eXIstIng legIslatIOn. I have not been persuaded that It IS necessary to restate the above-cIted legIslatIve reqUIrements In the form of an Intenm order I am satIsfied that the Employer IS aware of these reqUIrements and that It IS subJect to sIgmficant remedIes and sanctIOns for breach of the prohIbItIOns referenced thereIn. In summary I have not been convInced that dIscretIOn should be exercIsed to grant the Intenm relIef claimed. More specIfically I conclude that the Umon has not establIshed that the 14 balance of harm or Inconvemence IS In ItS favour For purpose of thIS analysIs, I assume the eXIstence of an arguable case The heanng wIll accordIngly proceed on the ments on dates agreed to by the partIes NotIce IS to be gIven to the thIrd party at Store #133 who wIll potentIally be affected by a findIng for the Umon. For all of these reasons, the applIcatIOn for Intenm relIef IS demed. Dated at Toronto thIS 25th day of June, 2003 - I