Canadian Employment Law Today

Employer didn't know about dismissed worker's organizing efforts Company fired probationary employee for lateness; didn't connect worker to organizing campaign until after dismissal BY JEFFREY R. SMITH AN ONTARIO worker's dismissal was for just cause and not influenced by his secret union organizing activities, the Ontario La- bour Relations Board has ruled. Miles Krauter was hired by Constellation Brands in early June 2015 to be a wine mer- chant at one of the company's Wine Rack stores in Ottawa, which are retail outlets selling wine and other alcoholic drinks. As a new employee, Krauter was subject to a pro- bationary period. On July 23, Krauter met with representa- tives of the Service Employees International Union (SEIU) to discuss potentially organiz- ing Wine Rack employees to join the union and collectively bargain with Constellation. He signed a card and began organizing plans. Krauter began visiting several Wine Rack stores in the Ottawa area. He was sometimes accompanied by an SEIU representative and sometimes on his own. Most of the time, he identified himself simply as a fellow worker, but a few times he mentioned his name or store number. He didn't want Constellation or his manager to know about his organiz- ing activities, so he usually checked ahead to make sure management wasn't present at the stores he was visiting. About one month later, on Aug. 22, Krauter decided SEIU's structure wasn't ap- propriate for what he was trying to achieve, so he stopped organizing for the union. Schedule mix-up led to store opening late Krauter's work schedule was usually posted more than one month in advance, and he was aware that on a schedule posted in mid- July that he was scheduled to work at 2:15 p.m. on Aug. 30. However, about 10 days before that date, the manager changed the schedule so Krauter was supposed to open the store at 10:45 a.m. ough the manager's policy was to mark schedule changes in red and notify Krauter of any changes, he failed to do so this time and Krauter was unaware of the change, even though he had worked a few shifts with the change on the schedule. When Krauter didn't arrive to open the store on Aug. 30, the manager telephoned him to find out why he wasn't there. Krauter came to the store immediately to help the manager open it, but the store ended up opening a couple of hours late. e manager spoke to the acting area manager about it. e acting area manager felt a failure to report to work and open the store was serious, but Krauter's manager assumed some responsibility because he acknowledged he hadn't told Krauter about the schedule change. e acting area man- ager told Krauter's manager — who was con- sidered a weak manager and under supervi- sion — to issue a written warning, which the manager did on Sept. 1. Krauter responded to the written warn- ing by pointing out he wasn't informed of the schedule change and didn't happen to notice it in the posted schedule. However, he said he would be more cautious in the future and check the schedule more frequently. At the end of August, the manager of an- other Wine Rack store became aware that organizers had been there trying to drum up support. He asked upper management to review video footage from the store's sur- veillance cameras. e footage and pictures were blurry and they didn't recognize any of the organizers appearing in it. e district sales manager was curious to see the pic- tures, but also couldn't recognize anyone and didn't take any further steps to identify the union supporters. Short leash for probationary employee e acting area manager attended a man- agement meeting with the district sales manager on Sept. 3. While reviewing the week's events, he described Krauter's failure to open his store on time and the written warning that was issued to Krauter after- wards. e district sales manager said that because Krauter was on probation, his mis- conduct demonstrated that he was unreli- able and therefore unsuitable for continued employment with Constellation. She felt that Krauter's actions were "serious and un- precedented," especially for a probationary employee. She was aware of the issues with Krauter's store manager and that the acting area manager was new, so she made the deci- sion herself that Krauter should be fired. e acting area manager wasn't comfort- able with firing Krauter, but another area manager told him he should follow the dis- trict sales manager's direction. e acting area manager terminated Krauter's employ- ment on Sept. 6 for not opening the store when he was scheduled to do so. After Krauter was dismissed, the other area manager saw Krauter's photo while pro- cessing the dismissal and recognized him as possibly one of the union organizers in the surveillance video. He phoned the acting area manager who had fired Krauter and told him "it looks like we got the union guy." He also called the district sales manager and said "it almost looks like him. I'm not sure though." Krauter filed a labour relations complaint, claiming that although he tried to keep his organizing efforts secret from Constellation, management found out about it from the sur- veillance video. He argued termination was disproportionate to his misconduct and his union organizing activities played a role in the decision to terminate his employment, con- trary to the Ontario Labour Relations Act. Ontario Labour Relations Board vice- chair Paula Turtle found that Krauter's union organizing activities, by his own admission, were kept under the radar. He didn't want his employer to know about them, and it ap- pears he was successful since the first man- agement heard about it was from the store manager with video surveillance footage. Even then, no member of management who saw the video or pictures from it could iden- tify Krauter. Vice-chair Turtle found that by the time anyone linked Krauter with union organiz- ing, he had already been fired. And even then, the area manager wasn't completely sure it was Krauter in the video. e fact that he called the acting area manager and the district sales manager to tell them showed neither knew before then that Krauter may have been depicted in the video and was in- volved in organizing activities, said Turtle. Vice-chair Turtle also found that Con- stellation reasonably considered the con- sequences of Krauter's failure to open the store — lost revenue and unhappy custom- ers — and determined his misconduct was serious. Because Krauter was a probationary employee, the company was entitled to de- termine he was unsuitable as an employee, Turtle said. e board vice-chair determined that Constellation had just cause to terminate Krauter's probationary employment and the decision was not influenced by anti- union sentiment. For more information see: • Krauter v. Constellation Brands Inc., 2016 CarswellOnt 18760 (Ont. Lab. Rel. Bd.). 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