Happy Coffee is a franchised caf that has been open for just over a year. It operates

Happy Coffee is a franchised café that has been open for just over a year. It operates seven days a week, from 7 am to 10:30 pm.

On May 30, the union filed an application for certification of a bargaining unit consisting of all full-time and regular part-time employees at Happy Coffee. The representation vote was scheduled for June 5. Mara Wagner, one of the employees, had signed a union membership card during the organizing campaign. She had also worn a bracelet with “union” on it while at work, and she was shown in a photo, along with other employees, on a poster captioned “We’re Voting Yes!” that had been placed on the cafe’s community bulletin board. On May 31, the café owner, Denise Harding, left on a business trip. She returned on the evening of June 2.

On the morning of June 2, Wagner was scheduled to work from 10 am to 6 pm. She misunderstood the time of her shift, and came to work at 6:30 am, intending to work the 6:30 am to 2 pm shift. Jason Morrow, the employee who was scheduled to work that shift, arrived at the same time. Morrow and Wagner discussed the situation, and they decided that Wagner would stay and work. Morrow offered to return at 2 pm to work the 2 pm to 6 pm shift, which was unstaffed.

After the discussion, Morrow sent an email to Harding advising her of the change. Harding wrote back and asked who would be working from 10 am to 6 pm. Morrow responded that he thought that Kim Albright, another employee, was scheduled to work that shift, but that he was not sure. As it happened, no employee arrived to work that shift. Wagner worked alone from 8:30 am to 2 pm, and Morrow worked alone from 2 pm to 6 pm. Ordinarily, two employees would be working on overlapping shifts between 10 am and 6 pm.

On June 3, Harding sent an email to Wagner and another employee asking them to come in for training the next evening, June 4, from 7 to 9 pm. Wagner responded that she was out of town that day but would be available on the following day, June 5.

On June 4, Harding sent an email to Wagner terminating her employment. The reason given in the email was “you did not work your scheduled shift on June 3.”

Prior to the vote, Harding delivered a letter to the employees encouraging them to vote as they wished, although she stated that she would prefer that they not join the union. She also initiated several individual meetings with employees. In one, she alleged that certification could affect work at the café. In another, she alleged that the café might fail if it became unionized, and mentioned that another local café had “staved off” a certification vote by firing two employees.

The representation vote was held on June 5. Seven ballots were cast. Harding filed a complaint with the board, arguing that two of the ballots should not be counted and also challenging the composition of the proposed bargaining unit. Wagner’s ballot was one of the two disputed ballots.

On June 7, the union filed an unfair labour practice complaint alleging that Wagner’s firing was based on antiunion animus.

In mid-August, the board held a hearing on the certification application and the unfair labour practice complaint.

At the hearing, the union stated that it no longer opposed the objection to one of the two disputed ballots being counted. This left Wagner’s ballot as the only disputed ballot.

The Union’s Position

The union argued that Harding knew of Wagner’s union involvement because of the bracelet that Wagner wore, in addition to her appearance in the photo on the pro-union poster. The union also argued that if Wagner was scheduled to receive training, which indicated that the employer intended to continue her employment, her dismissal could only have been motivated by anti-union animus. The union pointed out that Wagner’s dismissal by email happened the night before the representation vote.

The Employer’s Position

Harding told the board that the certification application was a “complete surprise” to her. She stated that Wagner was fired because Wagner could not work without constant and direct supervision.

Harding said she accepted that Wagner misread the shift schedules for June 3. However, Harding argued, when Wagner arrived at the café at the wrong time, she should have gone home and then returned for her scheduled shift. As a result of her actions, Harding said, the café was not fully staffed for part of the day, which jeopardized efficiency and sales.

Harding told the board that earlier in May, the café had held a promotion during which discount coupons were distributed in the neighborhood around the café. Harding said that she had told another employee to tell Wagner that during her shift Wagner was to date-stamp the coupons and distribute them. Wagner stamped the coupons but did not deliver them. As a result, Harding told the board, another employee on a later shift had to re-stamp the coupons with a new expiry date and distribute them.

Harding also stated that the “training session” which she had asked Wagner to attend was a ruse to get Wagner in the café so that she could dismiss her in person, rather than by email.