Wine Rack fired probationary employee but didn’t connect worker to labour union organizing campaign until after dismissal: Board
An Ontario worker’s dismissal was for just cause and not influenced by his secret union organizing activities, the Ontario Labour Relations Board has ruled.
Miles Krauter was hired by Constellation Brands in early June 2015 to be a wine merchant 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 probationary period.
On July 23, Krauter met with representatives of the Service Employees International Union (SEIU) to discuss potentially organizing 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.
Krauter didn’t want Constellation or his manager to know about his organizing 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 appropriate for what he was trying to achieve, so he stopped organizing for the labour union.
Scheduling 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 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.
Though 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 since the change.
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.
In the end, the Wine Store ended up opening a couple of hours late.
The manager spoke to the acting area manager about it. The 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.
He told Krauter’s manager — who was considered a weak manager and was under supervision — to issue a written warning, which the manager did on Sept. 1.
Krauter responded to the written warning 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 his schedule more often.
At the end of August, the manager of another Wine Rack store became aware that organizers had been there. He asked upper management to review video surveillance of the store, so they did.
The footage and pictures were blurry and they didn’t recognize any of the organizers in it.
The district sales manager was curious to see the pictures, but also couldn’t recognize anyone and didn’t take any further steps to identify the union supporters.
Short leash given to probationary employee
The acting area manager attended a management 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.
The district sales manager said that because Krauter was on probation, his misconduct demonstrated that he was unreliable and therefore unsuitable for continued employment with Constellation.
She felt that Krauter’s actions were “serious and unprecedented,” especially for a probationary employee.
She was aware of the issues with Krauter’s store manager and that the area manager was new, so she decided Krauter should be fired.
The acting area manager wasn’t comfortable with firing Krauter, but another area manager told him he should follow the district sales manager’s direction.
The area manager terminated Krauter’s employment 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 processing 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 surveillance video.
He argued termination was disproportionate to his misconduct and his union organizing activities played a role in the decision to terminate his employment, contrary 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.
Krauter didn’t want Constellation to know about these actions, and it appears he was successful as the first management heard about it was from the manager with video surveillance footage.
Even then, no member of management who saw the video or pictures from it could identify Krauter.
Turtle found that the first time anyone associated Krauter with the video footage was after he had already been fired. And even then, the area manager wasn’t completely sure it was Krauter in the video.
The 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 involved in organizing activities, said Turtle.
Turtle also found that Constellation reasonably considered the consequences of Krauter’s failure to open the store — lost revenue and unhappy customers — and determined his misconduct was serious.
Because Krauter was a probationary employee, the company was entitled to determine he was unsuitable as an employee, said Turtle.
The board vice-chair determined that Constellation had just cause to terminate Krauter’s probationary employment and the decision was not tainted by anti-union sentiment.
For more information see:
• Krauter v. Constellation Brands Inc., 2016 CarswellOnt 18760 (Ont. Lab. Rel. Bd.).
