United Food and Commercial Workers International Union, AFL-CIO-CLC v. Research Foods (1976) Limited

[1981] OLRB Rep. March 309

0993-79-R United Food and Commercial Workers International Union, AFL-CIO-CLC, Applicant, v. Research Foods (1976) Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members F. W. Murray and M. J. Fenwick.

APPEARANCES: Martin Levinson, A. Millard and Vincent Gentile for the applicant; Philip Joseph Wolfenden and Harvey Tenenbaum for the respondent; Brian Sherman for the objectors.

DECISION OF THE BOARD; March 20, 1981

[1]. This is an application for certification.

[2]. By a decision in this matter dated November 8, 1979, the Board found that the applicant was a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

[3]. The respondent company produces powdered foodstuffs or spices that are purchased by other companies to manufacture their food products. To produce this product the respondent runs a 24-hour, four day a week operation. The first step in the process is the grating of cheese. The cheese is then put in a melter or cooker at which point spices are added. The material then proceeds to a dryer after which it is sucked into bags. Each function is performed in an area that openly abuts onto the next step in the chain.

[4]. The applicant contends that four persons employed by the respondent exercise managerial functions within the meaning of section 1(3)(b) of the Act and are not, therefore, employees for the purposes of the Act. These people are Michael Gazzaruso, the shipper/receiver and Jack Achjian, Manuel DaSilva and Fillippo D'Onofrio who are plant labourers. The parties agree that Rex Manradge and Dennis Cummings are employees within the bargaining unit. Additionally, the applicant withdrew its challenge to the laboratory technician and agreed with the respondent that he falls in the bargaining unit.

[5]. In Cottage Hospital (Uxbridge), [1980] OLRB Rep. March 304, the Board at pp. 305-306 set out the principles it follows in determining whether a person exercises managerial functions within the meaning of section 1(3)(b) of the Act:

Over the years the Board has developed general guidelines to assist it in evaluating whether an individual exercises managerial functions (see Inglis Limited, [1976] OLRB Rep. June 270, Chrysler Canada Limited, [1976] OLRB Rep. Aug 396 and McIntrye Porcupine Mines Limited, [1975] OLRB Rep. Apr. 261). For those persons whose work has little or no impact on the employment relationship, the Board looks to whether or not they exercise independent decision-making responsibilities in matters of policy or the running of the organization. The Act does not operate to exclude those who only make effective recommendations in this regard. Nor does it exclude persons whose independent decisions are either circumscribed within pre-determined limits set by others or limited to technical and procedural determinations flowing from their expertise in a limited field. (See Libby, McNeil and Libby of Canada, [1967] OLR B Rep. May 193; Inglis Limited, supra; and Dominion Stores Limited, [1976] OLRB Rep. Aug. 44 and Canadian General Electric, [1979] OLRB Rep. Jan. 12.

Different considerations apply to the work of a second group of persons who may be characterized as having a direct effect on the employment relationship or the terms and condition of employment of those in the employ of the organization. Supervisors of employees or those technical experts whose work affects terms and conditions of employment or hiring and employment policies would fall within this group. In determining whether such persons whose work has a direct effect on the employment relationship exercise managerial functions, whose work has a direct effect on the employment relationship exercise managerial functions, the Board assesses whether or not they exercise effective control and authority over employees either in direct contact with the employees or through their decisions. In making this evaluation the Board looks to whether the person has, at a minimum, the authority to make effective recommendations relating to conditions of employment. An effective recommendation is a 'serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees'. (McIntyre Porcupine Mines Limited, supra, at 289).

[6]. The four challenged persons in this case are alleged by the applicant to exercise supervisory responsibilities. Accordingly, in assessing whether they exercise managerial functions the Board will look to whether, at a minimum, they have the power to make effective recommendations in matters affecting the employment relationship of the people they supervise. Particularly pertinent are their duties and responsibilities in such areas as hiring, discharge, discipline, promotion, wages, the assignment of overtime and the granting of time off.

[7]. Regarding Mike Gazzaruso, the shipper-receiver at the plant, counsel for the applicant acknowledged that on the evidence contained in the Report of the Board's Officer he could not argue that Gazzaruso exercises managerial functions. He asked the Board to consider, however, that a notice posted by management prior to the application for certification entitled "New Plant Organization" reveals that management considered him to be managerial because it classified him as the "shipping/warehouse foreman". Whether the respondent considered Gazzaruso to be part of management, however, is not by itself relevant to the Board's determination of whether, for the purposes of the Act, he is an employee. In reviewing the evidence of Gazzaruso's duties and responsibilities we find no evidence to support the conclusion that he exercises managerial functions within the meaning of section 1(3)(b) of the Act. We find, therefore, that he is an employee.

[8]. The Board has reached a similar conclusion with respect to the status of the other three challenged persons. Though two of these persons, like Gazzaruso, are identified on management's organization chart as "foremen", the Board has repeatedly stated that classification labels, by themselves, cannot determine the issue. (Moreover, see the Board's decision in Hydro Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38, where a group of foremen were found by the Board to be employees for the purposes of the Act.)

[9]. Some evidence was presented suggesting that Mr. Fillippo D'Onofrio may have fired an employee. This alleged incident, however, took place two weeks after the application for certification. To enhance the reliability of evidence, the Board, in assessing the duties and responsibilities of people in dispute, generally looks only to evidence of events which have taken place up to the date of the application for certification. We find no justification for departing from that practice in the circumstances of this case.

[10]. Standing alone, such factors as the training of other employees, the possession of keys, the absence of punching a time card and the mere assigning of work are not sufficient to establish that a person exercises managerial functions. To be viewed as managerial by the Board, persons must exercise effective control and authority over the people they supervise as would be seen in this case by the power, at a minimum, to make effective recommendations. There is no evidence relating to the duties and responsibilities of Fillippo D'Onofrio, Jack Ashjian or Manuel DaSilva which persuades the Board that they possess the power of effective recommendation in matters affecting the employment relationship of other employees.

[11]. Counsel for the union emphasized that the respondent runs a twenty-four hour operation. He argued that there would inevitably be someone who exercises managerial functions to supervise the night shift. The deduction does not follow automatically and the question can only be determined by an evaluation of the actual duties and responsibilities of the persons in question. In this case the Board is satisfied on the evidence that the respondent company has chosen not to have a member of management continually on the premises throughout the night. Instead they have designated one of their members, Mr. Karl Meyers, to be on call if a problem arises. When necessary he goes to the plant where he has a bed available to him.

[12]. Having regard to all the evidence relating to the duties and responsibilities of the persons in dispute the Board concludes that M. Gazzaruso, F. D'Onofrio, M. DaSilva and J. Ashjian are employees for the purposes of the Act and fall within the bargaining unit.

[13]. The Board further finds that all employees of the respondent in Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

[14]. The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 5th, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

[15]. Pursuant to section 7a of the Act the union has asked the Board to exercise its discretion and certify it as the exclusive bargaining agent of the employees in the bargaining unit without a representation vote. Section 7a of the Act provides as follows:

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

To issue a certificate under section 7a without a representation vote the Board must determine whether the employer has violated the Act, whether the employees would be able to freely express their wishes and whether there is sufficient support for collective bargaining.

[16]. Locking first to the union's support, the Board concludes that the union has membership support adequate for collective bargaining. It is only one card short of having membership support in the bargaining unit of more than 55 per cent of the employees. While a petition in opposition to the application was filed with the Board containing some names which coincide with the names of persons who signed union membership cards, the Board, as explained below, is not persuaded by the evidence that the petition represents the voluntary wishes of the signatories. Accordingly, in evaluating membership support the petition does not cause the Board to doubt the reliability of the membership strength as reflected by the membership cards themselves.

[17]. We turn to the question of whether the employer has violated the Act. Among other allegations the union contends that the employer violated the Act by suspending Rudolph Gonsalves on March 14, 1980, by denying overtime work to Gonsalves, Rex Manradge and Jim Merrimen between March and October 1980 and by acting in a threatening manner towards both Manradge and Merrimen.

[18]. On March 14, 1980 Mr. Jerold Shaffer read the following letter to Mr. Gonsalves.

Dear Sir;

On three separate occasions in the past several months since your return to work on Dec. 3rd. 1979, I have had occasion to discuss with you the serious nature of complaints received from employees that you had threatened, coerced, and used pressure tactics to enforce certain opinions on them. This past week I have had two serious other complaints in this regard including one where an employee has said he may have to resign if this continues. Obviously such a situation cannot be tolerated and it is with regret that I am suspending you for a period to be discussed on Monday, when we will advise you of the length of your suspension which begin Monday at 7:00 A.M.

Any further action of this type on your part will result in further discipline up to and including dismissal, Yours truly,

"H. Tenenbaum"

General Manager

On the following Monday, Tenenbaum imposed a three day suspension ending on Wednesday, March 19th.

[19]. Consistent with his letter of suspension Mr. Harvey Tenenbaum, the president and general manager of Research Foods, initially testified before the Board that he had spoken to Mr. Gonsalves on previous occasions about employees who were complaining that Gonsalves was being over-zealous in advocating his position on union matters. Gonsalves, however, denied that Tenenbaum ever discussed with him the threats alluded to in his letter of suspension. On cross-examination Tenenbaum clarified his evidence. Tenenbaum acknowledged that Gonsalves asked him at the time of the suspension who in particular had complained and what had been said. He admitted, however, that he never did tell him. He further conceded that, apart from the specific incident giving rise to the suspension, he never provided Gonsalves with the details of any of the alleged incidents. Despite the assertions in his letter of suspension, Tenenbaum identified for the Board only one person who had complained about Gonsalves' conduct and was vague about what had actually been said on that occasion.

[20]. On the basis of all the evidence the Board concludes that, contrary to the statements in his letter of suspension and apart from the incident on March 14th which is discussed in further detail below, Tenenbaum neither received complaints that Gonsalves had threatened employees with his views nor discussed such complaints with him.

[21]. The incident which precipitated Gonsalves' suspension involved another employee, Mr. Gus Kokkoros. Tenenbaum testified that on March 14, 1980 Kokkoros told him that Gonsalves had asked him to tell him to which areas of the plant he had keys. According to Tenenbaum, Kokkoros related that Gonsalves had told him not to tell anyone from management that he had asked him about keys. When counsel for the union asked Tenenbaum to explain the coercion in this incident that he had referred to in his suspension letter, Tenenbaum replied that he viewed the statement that Kokkoros shouldn't tell management about the conversation as an implied threat. Additionally, he concluded from his conversation with Kokkoros that Kokkoros had felt threatened. Tenenbaum further said he was disturbed because it appeared that, contrary to the Board Officer's direction, Gonsalves was discussing issues, presumably keys, raised in the Examination hearings into the duties and responsibilities of the persons in dispute.

[22]. In further relating the events of March 14th Tenenbaum testified that he asked Gonsalves to come to his office after Kokkoros told him about the incident. According to Tenenbaum, when he related the incident to him on the way to the office, Gonsalves became irate, refused to come to the office and accused Tenenbaum of continually terrorizing him. After Gonsalves had returned to his work place Tenenbaum re-approached Gonsalves and directed him to come to his office at 10:00 a.m. By Tenenbaum's evidence, it was when Gonsalves went home without coming to his office that he decided to suspend him. He testified that he concluded from Gonsalves' departure that Kokkoros had been telling the truth.

[23]. Gonsalves gave a different account of the events of that day. According to Gonsalves, Tenenbaum came to the cheese room where Gonsalves was working and, put politely, told him not to "mess around" with the union. He further directed him to come to his office. On the way to the office, according to Gonsalves, Tenenbaum rhetorically asked if he was looking for trouble and told him that if he was he would get hurt. In the office area Tenenbaum told Gonsalves that he had heard that he had talked to one employee about something that had gone on at the Examination hearings which was against the law. When he denied having asked another employee about matters raised at the Examination hearings, Tenenbaum, according to Gonsalves, addressed him with foul language, called him a liar and poked him in the chest with his finger backing him up against the wall. By Gonsalves' account, when he left the office Tenenbaum shouted after him not to "mess around" with the union, threatening that if he didn't listen he'd get hurt.

[24]. Consistent with Tenenbaum's evidence, Gonsalves testified that soon thereafter Tenenbaum returned to his work area and directed him to come to his office before going home. Contrary to Tenenbaum's evidence, however, Gonsalves testified that he immediately refused to go saying that if Tenenbaum had something to say about the union he should do so right there. It is common ground that Gonsalves did not go back to Tenenbaum's office. Gonsalves said that when he finished his work he went home directly because he was afraid to go back to Tenenbaum's office. At home Gonsalves responded to a message to call the office and Shaffer read him the letter of suspension.

[25]. Concerning the specific incident with Kokkoros, Gonsalves testified that he had gone to the locker room to ask Kokkoros to get him a new pair of work pants. Kokkoros, however, told him that he had no keys. Gonsalves denied that apart from mentioning the word "keys" he discussed evidence given at the Examination hearings. He further denied that he told Kokkoros not; to tell the company about their conversation.

[26]. Numerous factors cast doubt on the reliability of Tenenbaum's explanation for Gonsalve's suspension. According to Tenenbaum the event that precipitated the suspension was the Kokkoros incident. Kokkoros, however, was not called by the employer to testify even though Gonsalves contradicted Tenenbaum's account of the conversation between Gonsalves and Kokkoros. Additionally, while Tenenbaum told the Board that it was when Gonsalves went home instead of coming to his office that he decided to suspend him, his non-appearance at the office was not mentioned in his letter of suspension. When the absence of this reference was put to him at the hearing on cross-examination, Tenenbaum said that his main concern was the duress to which Gonsalves had subjected Kokkoros. Tenenbaum's evidence did not detail, however, what Kokkoros said to cause him to draw this conclusion. Contrary to the apparent reference to the event in his suspension letter, Tenenbaum did not testify before the Board that Kokkoros actually told him that he felt threatened or that Kokkoros said he was going to resign. Nor did Tenenbaum relate to the Board an incident concerning anyone else who had threatened to resign because of threats from Gonsalves. This reference to resigning in the letter of suspension is left entirely unsupported by the evidence. Further, Kokkoros himself did not testify to support Tenenbaum's assertion that he had suffered duress at the hands of Gonsalves.

[27]. In view of the weaknesses set out above, the Board concludes that Tenenbaum did not accurately portray the situation in his letter of suspension. In the circumstances the Board cannot accept Tenenbaum's explanation for Gonsalves' suspension. On the other hand, the Board found Gonsalves to be straightforward in his testimony and was given no cause to doubt the veracity of his evidence. The detail with which he related events further persuades the Board to accept his account of what transpired on March 14, 1980. Regarding knowledge of union activity, Tenenbaum agreed that he knew Gonsalves had been the union's adviser at the Examination hearings that were being conducted during this precise period of time. He further confirmed that Gonsalves was known to him as having particularly strong feelings about the union and working on behalf of the union.

[28]. On the basis of all the evidence, the Board concludes on the evidence that in suspending Gonsalves on March 14, 1980 for three days effective March 17th Tenenbaum was motivated by anti-union animus contrary to section 58 of The Labour Relations Act.

[29]. The next alleged violation of the Act concerns the withdrawal of Friday overtime from three union supporters. On the date Gonsalves was suspended he was working Friday overtime in the cheese room. The normal work week at Research Foods is Monday through Thursday. The work performed on Friday is generally viewed as voluntary overtime. When there is an abundant supply of cheese, some cheese production is done on Friday. If not, then Friday work in the cheese room would be limited to cleaning the buckets and hosing down the room in preparation for next week.

[30]. Prior to Gonsalves' suspension Friday overtime work was available with regularity to the people from the cheese room. On March 20, 1980, however, the day Gonsalves returned from his suspension he, Rex Manradge and Jim Merrimen, all union supporters, were told by Shaffer that they would no longer be working overtime on Friday because there was no more work for them to do. For those in the other sections of the production chain, the availability of overtime work continued as before. This cut back in work had a particularly adverse impact on Merrimen who testified at these proceedings on behalf of the union. To accommodate his personal life, he had previously made arrangements with the company to work only 10 hours a day, Monday through Thursday, instead of the normal 12. He made up the lost time by regularly working five hours on Fridays. When he was cut off from Friday work he lost what he had come to view as part of his regular work week.

[31]. Mr. Tenenbaum and Mr. Shaffer each stated that their decision to no longer call in the people from the cheese room to do Friday overtime work was motivated by a reduction in the available work. They did not, however, support this explanation with records that would demonstrate a decline in cheese production. Whether or not there was enough cheese to engage in production each Friday, it is undisputed that the cheese room had to be cleaned. Both Mr. Tenenbaum and Mr. Shaffer testified that after March 20th they asked people from the dehydration section who were working on Friday anyway to clean the cheese room. They testified that in their view it did not make economic sense to call in people from the cheese room simply for the one or two hours it would take to clean it.

[32]. About a week prior to the resumption of the Board's own hearings in the fall of 1980 following the Officer's Examination hearings which were held through the winter and spring of 1980, it is agreed that Tenenbaum told Gonsalves and Merrimen that they could, at any time, come in for Friday overtime even if there was not cheese production, and thus for clean-up only.

[33]. The three witnesses who testified on behalf of the union all work in the cheese room. The Board is satisfied on the evidence that the decision not to give them Friday overtime work from March 20th onwards was a departure from past practice. While the company attributed this alteration in scheduling to a shortage of cheese, no records were produced to support this assertion, and, when pressed, Tenenbaum indicated that the Monday to Thursday cheese production re-named relatively constant. The evidence does not support the conclusion that anything happened as of March 20th to precipitate a change in policy. If at that time the company simply made a business decision not to use cheese room people for clean up alone because it was not economically sound, the Board has difficulty understanding why shortly before the resumption of the Board's hearings Tenenbaum would have told Gonsalves and Merrimen that they could come in on Friday whenever they wanted even if it was for clean-up only. The apparent absence of a business underpinning for this further change in scheduling policy is heightened by the fact that Shaffer, the person in charge of scheduling, was unaware of Tenenbaum's offer in October of 1980 to allow Gonsalves and Merrimen to come in on Fridays for clean-up only. At the hearing Shaffer reiterated his view that there was no economic justification for calling in a person on Friday just to clean the cheese room.

[34]. The timing of the withdrawal of overtime cannot be ignored. The Examination hearings into the duties and responsibilities of the challenged persons were still continuing in March, 1980. Gonsalves was the union's adviser and both he and Merrimen testified for the union. The Board has already concluded that in suspending Gonsalves on March 14th Tenenbaum was motivated by anti-union animus contrary to the Act. On the date of his return he and the two other union supporters were told that they would no longer be given overtime work on Fridays. For the reasons canvassed above the Board is not persuaded that the decision to withdraw overtime was in fact motivated by business concerns even if in the abstract the decision was economically sound. In all of the circumstances, the Board concludes that the respondent was motivated by anti-union animus when it refused, with two exceptions, to offer Friday overtime work to Gonsalves, Merrimen and Manradge from March to October, 1980.

[35]. Merrimen and Gonsalves both testified that on two occasions Mike Gazzaruso, the circulator of the petition and the person who appeared on behalf of the petitioners throughout the proceedings, admitted to them that the company was paying his legal fees. The first occasion was just prior to Gonsalves' suspension and the second was during the summer of 1980. The Board has carefully reviewed all the evidence relating to these two alleged admissions and concludes that Gazzaruso made the statement on each occasion. Whether the company is in fact paying the petitioner's legal fees is another question. We note though that neither Mr. Tenenbaum nor anyone else from management testified that they were not in fact paying Mr. Gazzaruso's legal bill for these extended proceedings.

[36]. Mr. Rex Manradge gave evidence relating to an incident which occurred during the actual circulation of the petition at the end of August 1979. He testified that in an effort to persuade him to sign the petition Mike Gazzaruso approached him three times on August 31, 1979, the final day of circulation. Mandrage stated that when he complained to Tenenbaum that Gazzaruso was bothering him, Tenenbaum asked him to sign "the paper" for the company. According to Mandrage, Tenenbaum told him that if the union got in their benefits would be cut and they would have to work nights. Mandrage testified that he went on to say that if there was a layoff the people who signed for the union would be the first to be affected. Manradge stated that he told Tenenbaum he wanted to remain neutral. According to Manradge, Tenenbaum told him that while he was a good guy he could be real mean if he wanted to. Manradge stated that the conversation ended with Tenenbaum telling him that "the paper" was with Gazzaruso and asking him to get more people in the cheese room to sign.

[37]. Manradge testified to another incident. September 11, 1979 was the date originally scheduled by the Board to hear the certification application. By the agreement of the parties, however, it was adjourned to October 2, 1979. According to Manradge, Tenenbaum approached him on September 11th asking him why he had to go and see "the union guys" again. When Manradge denied seeing anybody, Tenenbaum, according to Manradge, insulted him and bounced him against the wall waving a paper in his hands which Manradge stated he did not see. Manradge testified that he went on to say "Don't you know you have to go to court... You'd better not show up in court." The Board notes that Rex Manradge was in receipt of a "Summons to Witness" issued by the Board dated September 6, 1979.

[38]. Counsel for the employer sought to impeach the credibility of Manradge by raising an event that occurred a year later in September of 1980. The employer produced one of Manradge's time cards and asked if on the day in question Manradge had punched the clock two times at night rather than once when he arrived in the morning and once upon leaving at night. As the respondent operates on twelve-hour shifts, double punching is feasible. Manradge denied, however, that he had done so. Having regard to the a.m. and p.m. code embodied in the respondent's time clock, the Board is persuaded that Manradge was less than candid when he denied double-punching the time clock on that occasion. The Board is further satisfied on the evidence, however, that he was at work both in the morning and afternoon that day and was not trying to deceive the company into paying him a full day's wages for a day upon which he did not actually work. The Board is most concerned, however, with Manradge's lack of candor in at least one element of his testimony.

[39]. Counsel for the employer asked the Board to reject all of Manradge's testimony on the basis of the time card incident and to accept instead the evidence of Tenenbaum where it conflicts with Manradge's.

[40]. As indicated in the Board's evaluation of the suspension incident, however, the Board has found that Tenenbaum, like Manradge, has been less than candid in some of his evidence. The Board was particularly impressed with the quality of evidence given by Merrimen and Gonsalves. It was straightforward, reasoned, detailed and unexaggerated. Where their evidence is in conflict with Tenenbaum's the Board, prefers their testimony. These conflicts raise further doubts about the reliability of some aspects of Tenenbaum's evidence. In these circumstances the Board declines to use the double-punching incident to reject outright all of Manradge's evidence in favour of Tenenbaum's version of the events of September 4 and September 11, 1979. A further evaluation of their respective evidence is therefore required.

[41]. Tenenbaum admitted that as of September 4, 1979 he had in his possession a photocopy of the petition in opposition to the union's application for certification which had been circulated by Mike Gazzaruso. Gazzaruso admitted that he left a copy on Harvey Robinson's desk. Mr. Robinson is the assistant general manager of Research Foods. It is undisputed that Robinson showed the petition to Tenenbaum. When Gazzaruso was asked why he had given a copy of the petition to the assistant general manager he said, "I just thought he should know about what was going on".

[42]. It is further undisputed that on September 4, 1979 Tenenbaum showed the petition to Merrimen. The Board accepts Merrimen's evidence of the surrounding circumstances. Merrimen testified that he was approached by both Tenenbaum and Robinson and was told that he would be given a raise whether he supported the union or not. When Tenenbaum then asked him whether he would support the company against the union, Merrimen said he'd go along with the majority. Tenenbaum replied that the company was in the majority and took Merrimen to his office to show him a copy of the petition. The Board accepts Merrimen's further evidence that Tenenbaum told him that if the union got in it would disturb their shifts and they would have to work with a reduced staff because the competition was too tough. We note that when asked about this occasion by counsel Robinson and Tenenbaum gave somewhat conflicting accounts. Tenenbaum, for example, said that he told Merrimen he didn't know what the majority of employees wanted but knew from the petition that a lot were against the union. Robinson, on the other hand, said that Tenenbaum told Merrimen that the "list" in his office showed that the majority were opposed to the union. Whatever Tenenbaum in fact said on this point, it is clear on the company's own evidence that they were extremely interested in the petition and that they showed it to an employee to demonstrate the extent of support against the union.

[43]. Turning back to the events of August 31st and September 11th we note that the threats Manradge alleged Tenenbaum made to him are similar to those we have accepted in Merrimen's evidence.

[44]. The Board has found that Tenenbaum was motivated by anti-union animus in March, 1980 both when he suspended Gonsalves and when he withdrew voluntary Friday overtime from Gonsalves, Merrimen and Manradge. It is apparent from the company's own evidence that Tenenbaum showed particular interest in the petition when on September 4th he showed it to Merrimen to persuade him that a majority of the employees were against the union. Furthermore, he told Merrimen that the union would disrupt the shifts and cause the staff to be reduced. Given these circumstances, the Board concludes, on the balance of probabilities, that Manradge's account of the events of August 31, 1979 and September 11, 1979 are to be preferred where contradicted by Tenenbaum. The Board concludes therefore that on August, 31, 1979 in violation of sections 56, 58 and 61 of The Labour Relations Act, Tenenbaum asked Manradge to sign the petition against the union and threatened that if the union got in their benefits would be cut, they would have to work nights, and those who signed for the union would be the first to be laid off. The Board further accepts that on September 11, 1979 contrary to section 71 of the Act, Tenenbaum warned Manradge not to appear at the Board's hearing.

[45]. Given Tenenbaum's involvement in the petition and the threats he made while the petition was still being circulated, the Board is not persuaded that the petition represents the voluntary wishes of those who signed.

[46]. We turn to consider whether the taking of a representation vote would reflect the true wishes of the employees. A substantial amount of time has passed since the union's application for certification was filed, since Tenenbaum participated in the circulation of the petition and since he originally threatened adverse consequences if the union was successful. The evidence reveals, however, that the employer did not take steps to diminish the adverse effects of its initial anti-union conduct. On the contrary, the employer engaged in further violations of the Act six months later while the Examination hearings were in progress. He wrongfully suspended Gonsalves and cut three union supporters off of Friday overtime. Though it would appear on the evidence that as of October, 1980 the overtime was again available to these employees, the Board is not satisfied that the adverse impact on employees of the employer's violations of the Act has been dissolved.

[47]. Further pertinent to the ability of employees to freely express their wishes is a notice posted by the employer on September 23, 1980:

NOTICE SEPT. 23/80

As a result of complaints made to the Dept. of Labour by several employees we have been advised by an inspector that the holiday pay for employees must be on the basis of the Employment Standards Act. Employees according to the act must be paid for 7 statutory holidays a year, provided all other requirements of the act are complied with.

New Year's Day Labour Day

Good Friday Thanksgiving Day

Victoria Day Christmas Day

Dominion Day

As it is our desire to avoid conflict with the Dept. of Lab. and disputes over such matters, we will comply strictly with the law as outlined and pay according to the act for the statutory holidays that the act describes.

[48]. Prior to this notice the union had successfully submitted a complaint to the Employment Standards Branch of the Ministry of Labour alleging that the employer was not properly paying its employees holiday pay. As a result of the claim the employer was required to pay between $1,200.00 and $1,400.00.

[49]. The year prior to the union's complaint, the employees were given nine holidays. Tenenbaum testified that on the average the respondent gave employees eleven holidays a year. According to Gonsalves, they have received nine holidays annually since 1977. Whatever the actual number, it is evident that the employees annually received at least two more holidays than required by The Employment Standards Act.

[50]. The notice of September 23, 1980 states that the employer will comply strictly with the law. The union alleges that by this notice the employer was cutting the number of holidays and virtually punishing the employees for the union's success with their complaint before the Employment Standards Branch. The employer, on the other hand, contends that the notice was posted merely to indicate its intention to abide by the law. It denies that it intended to cut employees' holidays.

[51]. On the balance of probabilities and in the context of the other violations of the Act engaged in by the employer, the Board concludes that this notice constitutes another violation of the Act. For years the respondent has provided its employees, on an annual basis, with at least two holidays in excess of those required by statute. By the employer's own evidence it has given, on average, four more than required. The Board is satisfied that in posting this notice stating that from hereon it would comply strictly with the law the employer intended to tell employees that it would be reducing the number of their annual holidays. The Board concludes that it did this to further demonstrate to the employees the adverse consequences that would tow from an association with the union.

[52]. The posting of this notice was a highly visible act which would quickly come to the attention of employees who, quite naturally, are concerned about their holidays. The employer's threatened reduction of holidays would, in the Board's view, have an adverse impact on the ability of the typical employee to freely express his wishes. Furthermore, the employer's denial of overtime to three union supporters and its suspension of the union's advisor at the Examination hearings were also visible acts in a small, open plant which the Board concludes would compromise the ability of an employee to decide whether or not to support the union.

[53]. Having regard to all the circumstances the Board concludes, on the balance of probabilities, that the employees' true wishes would not be ascertained in a representation vote.

[54]. The three criteria in section 7a of the Act have been established. Accordingly, the Board, pursuant to its discretion in section 7a, certifies the union without a representation vote.

[55]. A certificate will issue to the applicant.