Service Employees' International Union, Local 183 v. K-Mart Canada Limited (Peterborough), 1981 CanLII 932

[1981] OLRB Rep. January 60

1704-79-R; 0764-80-U Service Employees' International Union, Local 183, Applicant, v. K-Mart Canada Limited (Peterborough), Respondent, v. Group of Employees, Objectors.

BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

APPEARANCES: M. Mitchell, V. Nicholls and P. Marier for the applicant; R. MacDermid, Martin Szczepaniak and C. A. Cumiskey for the respondent; Linda Schweier, H. Hughes, Joan Rob bins and M. Swift for the objectors.

DECISON OF M. G. PICHER, VICE-CHAIRMAN, AND BOARD MEMBER O. HODGES; January 26, 1981

1Kelly O'Connor and Beverley Clark work in the K-Mart store in Peterborough. Miss O'Connor has worked there for 5 years and is a sales clerk in the toy department. Mrs. Clark, with 4 years experience in the store, is a sales clerk in hardware. In October of 1979 they decided to explore the possibility of a union to represent them and their fellow employees in their relations with their employer. Before long they became the in-plant leaders of a full scale union organizing campaign.

2The campaign became a bitter struggle resulting in this application for certification coupled with a complaint under section 79 of the Act, requiring some sixteen days of hearing. The union's application contains charges of unfair labour practices against the employer, including allegations that employees were subjected to unlawful surveillance, intimidation to prevent them from testifying in Board proceedings and discharge. The union submits that because of the employer's unfair labour practices it has been unable to obtain a majority of the store's employees as members. It alleges that the employer's interference has been such that the employees could not freely express their choice on the question of union representation and that the Board should therefore grant the union a certificate on the basis of the extraordinary provisions of section 7a of The Labour Relations Act. That section provides as follows:

7a. Where an employer or employer's 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.

3The three issues in this application are: first whether the employer has breached The Labour Relations Act; second, if it has, whether its conduct would have deprived employees of the ability to choose freely to be represented by a trade union either in a membership card campaign or in a representation vote; the final issue is whether, if the first two conditions are satisfied, the union has membership support sufficient for the purposes of collective bargain­ing with the employer (hereinafter referred to as "K-Mart"). To assess these issues the Board must review the evidence in some detail.

4Mrs. Clark's sister-in-law is a union steward. Through her she was introduced to Mrs. Phyllis Marier, an organizer with the Service Employees International Union, Local 183. One evening in mid-October Mrs. Clark called Ms. Marier. She arranged for herself and Kelly O'Connor to meet with the union organizer at the Holiday Inn in Peterborough shortly there­after. Within a day or two the three met at that location. Mrs. Marier explained to Clark and O'Connor the outlines of a union organizing campaign and they volunteered their services.

5The campaign plan was fairly simple. Miss O'Connor and Mrs. Clark were to approach other employees to see if they were interested either in joining the union or learning more about it. If they were, Clark or O'Connor would instruct them to meet with Mrs. Marier at the Holiday Inn, usually during the evening, to have union membership explained to them and, if they wished, to sign a union membership card. Starting October 30, 1979 the campaign went forward on that basis. On instructions from the union organizer both employees took care to keep the campaign out of the sight of management and, to the same end, to avoid employees they knew would be sympathetic to management.

6The first ten days of the campaign were successful. Between October 30th and November 7th, 31 of the 90 or so employees in the store joined the union. During that time management was unaware of what was happening. That soon changed.

7On November 8, 1979 the store's manager, Robert Hugh Gilchrist, received a telephone call. The call came from K-Mart's head office in Toronto, from Mr. C.A. Cumiskey, the Vice-President of K-Mart in charge of industrial relations. Mr. Cumiskey informed Mr. Gilchrist that a union was attempting to organize in the Peterborough store. Cumiskey instructed Gilchrist to investigate immediately and to let him know what he could find out. Gilchrist immediately instructed Mr. Thomas, the co-manager of the store and Mrs. Osborne, the store's personnel manager, to find out whether there was any union activity in the employees' ranks. In very little time the store manager confirmed through the store's pharmacist tVat there was a union organizing campaign under way. Gilchrist immediately made a return call the Cumiskey to confirm the union's presence. With that K-Mart began mobilizing to defeat the union.

8Mr Cumiskey immediately told Mr. Gilchrist that he would be in Peterborough the next day. Curniskey also called Mrs. Jennie Fox, the national Manager of Personnel and Employee Relations for K-Mart Canada Limited. Normally based in Toronto, Mrs. Fox was then on the road in Winnipeg. Mr. Cumiskey told her of the union activity in Peterborough and instructe(l her to return immediately to go to the Peterborough store with him on the following Monday, November 12, 1979. Within hours of learning of the campaign initiated by Kelly O'Connor and Beverley Clark, K-Mart had arranged to have the two highest ranking personnel executives in the country in its Peterborough store.

9Mr. Cumiskey arrived at the Peterborough store at 8:00 a.m. on Friday, November 9th. He met initially with Mr. Gilchrist, the store manager. At Cumiskey's request Mr. Gilchrist arranged a meeting to include themselves and the six department managers in the store. That meeting was held that afternoon. According to the evidence of Mr. Gilchrist the meeting consisted of Mr. Cumiskey advising the departmental managers as to what posture they should take with respect to the union. By Mr. Gilchrist's account Mr. Cumiskey told the department managers that they should not comment on the union and that they should direct any questions on that subject to store manager Gilchrist, to the co-manager, Mr. Thomas or to the personnel director, Mrs. Osborne.

10During the course of the day Mr. Cumiskey held a second meeting, this time with the management trainees in the store. That meeting was not attended by Mr. Gilchrist. Since neither Mr. Cumiskey nor any of the management trainees testified in these proceedings there is no evidence before the Board as to the purpose or content of that meeting. That becomes sig­nificant in light of later events. In the hierarchy of K-Mart, management trainees are not unlike officer cadets. While they are subordinate to the department managers in the store from the standpoint of taking instruction, they are in a superior classification, being groomed for higher managerial positions. There are some five management trainees in the Peterborough store. One of them, Mr. Gordon Cooke, is classified as assistant-manager and is responsible for half of the store, known commonly as the "hard-line" section. The hard-line area includes hardware, the department in which Beverley Clark works. Another management trainee, Derek Kilby, is classified as an area assistant-manager. At the material time he was responsible for the toy department in which Kelly O'Connor was employed.

11On November 9th, having met with the department managers and the management trainees, Vice-President Cumiskey also circulated among the employees in the store, as he normally does on any store visit. He stayed in the store until approximately 4:00 p.m. The Vice-President returned the next morning, Saturday, November 10, 1979 and continued to tour the store for an additional two hours.

12The company's efforts to get as much information as possible about the union campaign did not end with the disclosure of the store pharmacist that there was union activity among the employees. The evidence of Mr. Gilchrist establishes that through all of Friday and Saturday he continued to receive more information about the union s activities through his co-manager, his personnel manager, the department managers and Mr. Patrick Ryan, a manage­ment trainee

13The union submits that the evidence respecting Mr. Ryan is particularly significant. At the time in question Mr. Ryan's girlfriend, Madelen Heddon, worked as a sales clerk in the jewellery department. Lorraine Langley, a clerk in the camera department, testified that she phoned Heddon one evening during the union campaign, asking her to go to the Holiday Inn to sign a membership card. Ms. Heddon was willing, but because she did not have transporta­tion it was arranged that she would sign a card at work the next day. The next day, which was either November 8th or November 9th, Madelen Heddon refused to sign a card. According to Langley, Heddon approached her in the store in tears. She stated that her boyfriend, Mr. Ryan, had been given instructions in Mr. Gilchrist's office that if he did not obtain informa­tion for management about the union he would lose his job. Langley further testified that she approached by Heddon later that weekend at a banquet. Heddon was again visibly upset and, according to Langley, said that both she and Mr. Ryan would lose their jobs and that Langley was "to blame for getting [them] into this mess.''

14Counsel for the respondent objected, maintaining that the Board should put no weight on this evidence in that it was hearsay. While the evidence is hearsay insofar as it relates to the communication between Mr. Ryan and his superiors, it is admissible direct evidence going to the fact that Miss Heddon was visibly troubled at the time and that she had an abrupt change of heart about the union. Insofar as it relates to alleged surveillance activities of management trainee Ryan, it is not probative. However it is not inconsistent with other direct testimony. Mr. Gilchrist testified that Mr. Ryan approached him on the 9th or 10th of November and told him that Ms. Heddon had been approached by the union. Mr. Gilchrist's evidence further discloses that Madelen Heddon later came to him in his office and gave him a full account of how she had been approached. It is clear from Mr. Gilchrist's own account that Miss Heddon's purpose in so doing was to demonstrate her faithfulness to management and to put as much distance between herself and the union as she possibly could in the eyes of her employer.

15On Monday, November 12, 1979 things began to change for Kelly O'Connor and Beverley Clark. That day national and local management of K-Mart met in Peterborough and planned their strategy of response to the union's campaign. Also that day the store's manager, Mr. Gilchrist, held the first of a number of meetings with the store's employees on the subject of the union. And that day Kelly O'Connor and Beverley Clark became the victims of what the Board can only describe as a ruthless campaign of surveillance that endured for some three weeks.

16The evidence of surveillance is particularly disturbing. On or about November 12, 1980 Miss O'Connor noticed that management trainee Eric Kilby was following her everywhere that she went in the store. She and Kilby were then working together to prepare the toy department for the Christmas season. In those circumstances they would naturally spend a good part of their working day together. But what happened went well beyond that. Miss O'Connor noticed that if she went to the drinking fountain Kilby would go with her. Whether or not it was convenient, Kilby would take his coffee break at the same time as Miss O'Connor and would sit at the same table. If she shortened her break and came back to work prematurely he would get up and do the same. At all times for two weeks, except during lunch hours, she was never out of Kilby's sight.

17During this same period Miss O'Connor was advised that she was to take no telephone calls paged to her department. Previously she had always been paged when there was a call to the toy department. During this period all calls and pages were directed specifi­cally to Mr. Kilby. The Board accepts the evidence that Miss O'Connor was more familiar with the products in the department than Mr. Kilby. In the normal course she was the logical person to answer calls to the department, the bulk of which were in the nature of customer inquiries about stock. The Board is satisfied that the decision to channel all calls to persons other than Miss O'Connor was a deliberate attempt to isolate her because of her union activities.

18Once during the two weeks that she was under Mr. Kilby's constant surveillance Miss O'Connor asked the management trainee why he was following her. He answered "I'm sorry, I can't talk about it". After two weeks of surveillance by Kilby, Mr. Cooke took over as the management trainee in the toy department. He also took over the surveillance of Miss O'Connor. For the period of approximately one week Mr. Cooke subjected Miss O'Connor to some of the most humiliating treatment of an employee that this Board has yet encountered. Cooke, who did not testify to rebut any of the evidence about his conduct, told Miss O'Connor that she was not to leave the department under any circumstances without first getting his per­mission. On one occasion Miss O'Connor asked Mr. Cooke for permission to go to the wash­room. He responded "Okay, I'll take you". Then, in full view of other employees he walked her from the toy department through the store to the ladies' washroom where he stood outside waiting for her.

19In the weeks that Miss O'Connor was being followed and watched by Mr. Kilby, Mrs. Clark was being constantly observed by Mr. Cooke. In the period immediately after November 12th, Mr. Cooke was working in the hardware department, just as Mr. Kilby worked in the toy department. During this time if Mrs. Clark left the hardware floor to go to the stockroom or to another department Mr. Cooke would be right beside her. According to her unchallenged evidence he was always within one counter's distance, in such a way that he could constantly see what she was doing and hear what she was saying. Just as Kilby did with Miss O'Connor, Cooke would follow Mrs. Clark on her coffee breaks and always return at the same time. This he would do notwithstanding that the hardware department might be left uncovered for a period of time, contrary to normal practice.

20On one occasion Mrs. Clark was speaking to a friend in the store, discussing Mrs. Clark's forthcoming wedding. She then noticed Mr. Cooke was present, as always, and was listening. With understandable annoyance she said to him "If you are going to listen you might as well join the conversation. Isn't it true you are supposed to listen to all my conversations?" Mr. Cooke replied "Well yes, I am supposed to". K-Mart did not call its management trainee as a witness to deny that evidence. Nor did the employer call Mr. Cooke to deny the further testimony of Mrs. Clark that, as with Kelly O'Connor, his surveillance of her extended to the indignity of following her to and from the door of the ladies' lounge. Like Kelly O'Connor, Beverley Clark was effectively isolated in the work place. She too was prevented from taking any telephone calls during this period, with all calls to hardware being routed to the manage­ment trainee, contrary to previous practice.

21The evidence discloses that the employer's open surveillance and isolation of O'Connor and Clark was extremely effective. It was plain to other employees that the two union organizers were known to their employer and were being subjected to constant observa­tion. During this time other employees avoided Mrs. Clark and Miss O'Connor. During breaks they, and the two management trainees who followed them, tended to find themselves sitting apart from everyone else. Occasionally other employees asked Clark and O'Connor whether they didn't fear for their jobs. There was no doubt about the employer's feelings: during the same period of time, as elaborated below, K-Mart conducted a battery of meetings with the store's employees which the Board concludes were intended to discourage them from joining the union. The surveillance of Clark and O'Connor ended just as abruptly as it began. It ceased when the employer received notice that the union had applied for certification and was making charges of unfair labour practices against K-Mart. The intimidation of Miss O'Connor and Mrs. Clark did not end there, however.

22The second day of hearing for this application took place in Toronto on February 8, 1980. That day Miss O'Connor, Mrs. Clark, Mr. Douglas Byers and Barry Elford, all of whom were employees sympathetic to the union, appeared at the hearing with the union's repre­sentatives and its counsel. Since the application on its face alleged breaches of The Labour Relations Act by K-Mart, it was apparent that these employees would be giving evidence against their employer in that regard. As it turned out the day was devoted entirely to pre­liminary legal argument; by the end of the day no evidence had been called. That same day the manager of the K-Mart store, Mr. R.H. Gilchrist wrote the following letter to Mrs. Clark, Miss O'Connor, Mr. Byers and Mr. Elford:

It has come to our attention that you have been talking to employees during working hours for the purpose of persuading them to become members of the Service Employees International Union. For your infor­mation, Section 62 of The Labour Relations Act of Ontario provides:

"Nothing in this Act authorizes any person to attempt at a place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union. R.S.O. 1970, c. 232, s. 62."

Please cease engaging in this activity during working hours. Yours very truly, "R. H. Gilchrist" (signed).

23At the outset of the next hearing, on February 13, 1980, counsel for the union brought the above letter to the Board's attention. He submitted that it was intended purely as a veiled threat to discourage the four employees from giving evidence and further participating in the hearings on behalf of the union. He asked the Board to find that the disciplinary warning, issued as it was against four potential witnesses on the day they were to testify, constituted an attempt to unlawfully interfere with the participation of employees in proceed­ings before the Board, contrary to section 71 of the Act which provides, in part:

71.-(l) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has parti­cipated or is about to participate in a proceeding under this Act.

Both parties were given a full opportunity to adduce evidence and make representations on this serious allegation.

24The evidence establishes that by the beginning of February there was no active union campaign in the store or, for that matter, among the employees outside the store. The uncontradicted evidence is that the union campaign had ceased in early December and that by early February with the extreme position taken by the employer and with the matter before the Board, there was little, if any, talk about the union among the employees. It is clear from the evidence before the Board that Mr. Gilchrist was aware as early as November 12th that Miss O'Connor and Mrs. Clark had been talking to employees in the store for the purpose of persuading them to become members of the union. In the total context of this case, which includes extensive anti-union conduct on the part of the employer as will be described in more detail below, the fact that only these four employees received disciplinary warnings on February 8, 1980, the same day that they first appeared to give evidence against the company, leads the Board to the inescapable inference that the letter was intended primarily as a means of intimidation, calculated to give them second thoughts about giving evidence damaging to K-Mart.

25The I3oard finds therefore that K-Mart Canada Limited knowingly and deliberately attempted to intimidate four union witnesses in contravention of section 71 of the Act. The fact that the respondent sought later to apologize to the employees and withdraw its letter when it became known to the Board does not change the quality of its act nor does it diminish the impact of that unlawful conduct on the respondent's employees. While all unfair labour practices are equally unlawful, the Board must view with special concern violations of section 71 of the Act. The Act and proceedings before the Board under it are the means established by law to protect employees involved in a union against the unlawful abuses of their employer. Any attempt to interfere with the ability of persons to testify in Board proceedings must be viewed as the gravest misconduct, striking as it does at the very root of the statutory frame­work fashioned by the Legislature to allow employees to pursue freely the right to engage in collective bargaining. K-Mart's attempt to interfere with the Board's procedures will be further addressed in considering the Board's remedial order.

26K-Mart's anti-union campaign was not aimed only at employees who were known union sympathizers. November 12th marked the beginning of a highly visible and broad campaign by the employer against the union. That day the employer held the first of a great number of meetings with the employees to voice its position and to encourage the employees to oppose the campaign of the trade union. Similar meetings were held November 15th and 16th as well as on November 22nd, 23rd and 24th. A further meeting was held on November 30th and December 1st and a last one on December 13, 1979. Generally each employee was exposed to five separate meetings. Under Mr. Gilchrist's direction the employees were brought into the ladies' lounge in the store in groups of approximately ten to fifteen. Each time the employees, who were kept in the same groups, were given a prepared statement by Mr. Gilchrist. These statements, copies of which were filed in these proceedings, were drawn up in consultation with Mr. Cumiskey and Mrs. Fox.

27The speech given by Mr. Gilchrist on November 12th was as follows:

I'm going to talk to you about unions. Particularly about the attempt pre­sently underway to unionize this store. Should you prefer not to listen, you are free to leave right now and return directly to your department (I really mean this). A number of you have come to me and told me you were asked to attend a union meeting or asked to sign a union card. You ask me what should I do, should I sign? Well I can not tell you what to do because that is against the law, however I believe there are some serious questions you should ask yourself before you do anything.

1. Am I prepared to sign away my rights?

2. Do I want to give up my rights to talk directly to Mrs. Osborne or myself?

3. Do I want to pay union dues for the privilege of working at K-Mart.

4. Do I know whether dues or other charges can be raised at any time without notice?

5. Will such dues and other fees that will be required if I belong to a union be worth this added expense to me?

6. Is it necessary for me to join a union to work at Kmart?

7. What assurance have I that a union can do more for me than I can do for myself?

For example If you want a day off for a wedding I'm sure if you give Mrs. Osborne sufficient notice she will work it out for you.

Now just ask yourself if a third party was to go to Mrs. Osborne on your behalf do your think she would be as obliging?

Vacations Mrs. Osborne does her utmost to accommodate you all for your vacations. As you know during some weeks in the summer many are off at the same period leaving the store with very few full time because your husbands are off and we want you off too if possible.

Now if you have a union your vacations would go by seniority and only so many would be off at one time.

Let me ask you.

How much are the union dues? You mean nobody told you. What did they tell you? That you would immediately get $6.50 per hour? A sche­dule with no nights, few Saturdays? Really their promises are for much more Really, if we were to schedule everyone 10-6 we would be falling over each other. Ask yourself would we require the same number of full time help we have?

Who is going to pay $6.50 per hour? The union? What do you think if a union came to us and said we want $6.50 per hour? Just what do you think the answer would be? Let me tell you in case you have any doubts the answer would be a very firm no and before the union can give you anything they must deal with us.

Then what happens?

Do you go on strike?

I'm new as a manager as you know but I know of you and have felt at home here since I moved to Peterborough 3 years ago. Don't you feel free to talk to me? If you have a problem, don't you feel — I will do my best to oper2te fairly? If you had a problem why didn't you come to me? You didn't have to go outside. The question was asked — What happens if I don't sign a union card? Will I be fired? You will never have to sign a union card for the privilege of working at Kmart. You will never have to pay Union dues to some one else for the privilege of working here.

For some strange reason people feel obligated when contacted by a union organizer. It is really no different than if you were visited by an insurance or door to door salesman. If you were not interested you would simply say so Loud and Clear.

I am not against unions in the right place. I believe if I worked in a factory I would probably be in favour. However in our situation I believe we can serve your best interest by operating this store Union Free.

We have a personnel supervisor just for you. I don't need a personnel supervisor. I can get schedules from Toronto office, make minor adjust­ments and post them weekly. Mrs. Osborne is here to serve your interest. You also know that if you are dissatisfied with Mrs. Osborne's answer you see me and if you are dissatisfied with my judgement you know you can discuss it with our District Manager and further your can write or phone our Toronto office, or call the labour board or we could call the labour board together. You may decide — I don't want a union but I don't want to get involved so I just won't sign a card. It doesn't work that way, you see if enough people sign, you may get dragged in against your will. If you don't want a union then you have the right to be vocal about it. Say you don't want it loud and clear. You can't sit on the fence. We have sometimes felt that we will give you the opportunity to ask some questions

however we may have to take a rain check before we can answer your questions. It may be necessary in order to protect myself legally for me to answer your question at our next meeting. We hope this meeting had made you aware of your rights. Remember the choice to belong or not to belong to a union is yours.

28With slight variations the same themes were pursued through all of the twenty-five or so meetings which management held in separate small groups with the employees. At each meeting the employees were told that they were free to leave, although each meeting was held on the employer's time and not during a break or after working hours. Not surprisingly, it appears that no employee ever got up and left one of these meetings.

29Counsel for the union objects to what he characterizes as subtle threats to the employees throughout the speeches. In the speech of November 12th, for example, he maintains that Mr. Gilchrist is hinting that the employer will be uncooperative in giving employees time off if the union should come to represent them. He also objects that the employer threatened to remove any flexibility in the choice of vacation time, a factor of con­siderable concern to a number of the employees, most of whom are female and many of whom wish to dovetail their vacation time with their husbands'.

30Counsel for the union expressed special concern about the reference to the number of employees who would be required to work at the store if the union campaign were success­ful. He submits that the passage referring to the scheduling of employees was in fact an insi­dious way of raising an association in the minds of the employees between union affiliation and losing their jobs. There is no evidence whatever that any employee was promised by the union that everyone would be scheduled from 10:00 a.m. to 6:00 p.m. Counsel for the union implies that K-Mart simply created that false issue as a vehicle to convey a threat to the employees about their job security in the event that the union should find majority support among them. The union also objected to what its counsel characterized as a veiled instruction to the employees to mobilize against the union. In this regard he points to the following passages in various speeches:

— Say you don't want it loud and clear. You can't sit on the fence. (November 12th)

— I just want to emphasize again it is your responsibility alone, if you do not want a union say so loud and clear. Employees can voice their opi­nions freely and openly and are not restricted in the same manner as management. (November 15th)

— The company and I believe that it is in your best interest to operate this store union free. If you are not interested, say so loud and clear. (November 22nd).

31These meetings must be viewed in their context. In all of them a small group of employees were present with the store manager, the personnel manager and in most of them, Mrs. Fox, the national director of employees relations for K-Mart Canada Limited. The meetings took place over a time when the two principal union organizers were being openly watched every minute of the working day. Even Joan Robbins, one of the employees opposing the application, testified that she had heard of the surveillance during that time.

32At least one consequence, if not the purpose, of these meetings was to identify and isolate employees who were sympathetic to the union. Employees were invited to ask ques­tions or make statements; those who spoke were invariably the employees most opposed to the union. No one spoke in favour of the union, and in the context of a small meeting employees who secretly favoured the union would naturally feel more and more exposed, if only by their silence.

33It is evident to the Board that the purpose of the meetings was not to inform the employees. Mr. Gilchrist raised the same questions over and over again, as in his rhetorical references to union dues, without ever attempting to answer them in subsequent meetings. An employer is of course, within the limits established by the Act, entitled to express its views about unions. The issue is whether the nature and content of the speeches, in the context of which they were given, was a violation of The Labour Relations Act.

34The Act protects the right of an employer to express its views about the representa­tion of its employees by a union. The very scheme of the Act contemplates that union and employer will be opposed in interest. There is nothing in the Act that restricts or makes illegal an employer's predisposition to remain union free. An employer is free to communicate its feelings in that regard so long as it does not do so in a way that brings intimidation, coercion or undue influence to bear on its employees. Section 56 of the Act provides:

56. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

35In Words and Phrases Legally Defined (London, 1970) undue influence is defined in part as:

"The unconscientious use by one person of power possessed by him over another to induce the other to enter into a contract."

In the context of The Labour Relations Act undue influence includes the unconscientious use by an employer of its power or authority over employees in order to induce them to forego their rights in relation to a union. An employer exerts undue influence on its employees, and thereby breaches the Act, when it takes unfair advantage of its position and authority in an attempt to sway the will of the employees. The line between legitimate employer expression and undue influence is not easy to draw in the abstract, and can only be assessed on a case by case basis.

36In this case the Board cannot accept that it was necessary for the employer to conduct what might have been, by Mr. Gilchrist's own account, as many as twenty-five separate employee meetings on the subject of the union. The evidence establishes that once a week there is a regular meeting of the employees in the store prior to opening. If it had been Mr. Gilchrist's intention merely to communicate to the employees the viewpoint of K-Mart about the union campaign this could have been done by one statement in a single meeting or by a single memorandum to all employees. By breaking the employees down into small groups and confronting them in repeated meetings with three high ranking members of management, in circumstances where employees opposed to the union were invited and encouraged to speak out, the employer went beyond the bounds of free speech. It abused its authority in a deliberate attempt to pressure its employees into opposing or abandoning the union both by the form of the meetings and the subtle threats communicated in the speeches.

37That conclusion finds further support in the conduct of Mrs. Fox. Part of Mrs. Fox's job as Manager of Personnel and Employee Relations involves visiting the various K-Mart stores across Canada. Sometimes she may visit as many as five stores in a period of six days when she is out of her Toronto office. Her visits to stores are normally fairly brief, and usually involve discussions with management and circulating through the store to speak with employees. Prior to the time in question Mrs. Fox last visited the Peterborough store briefly in November of 1978 and once in the spring of 1979.

38The union campaign in Peterborough brought about a substantial change in Mrs. Fox's normal pattern. Her travel time for all of November and December of 1979 was spent entirely in the Peterborough store. She was in the Peterborough store from November 12th to November 23rd and again from November 27th to November 30th and in the month of December she was also in the store on the 5th, 13th and the 14th. These periods of time encompassed practically all of the days on which meetings were conducted with the employees by Mr. Gilchrist. Notwithstanding her evidence to the contrary, the Board is satisfied that the union campaign was the reason, and the only reason, for her presence in the store for that sustained length of time. She collaborated with Mr. Gilchrist and Mr. Cumiskey in the preparation of the speeches to be given to the employees and, as the Board has noted, she attended the majority of the small group meetings where employees were addressed about the union. After each meeting Mrs. Fox would circulate among the employees in the store, osten­sibly to discuss their problems. Not surprisingly the discussions often turned to the union. According to Mrs. Fox, K-Mart employees tend to feel free to talk openly with her. Mrs. Fox testified that on the first day or so that she was in the store people were reluctant to talk about the union but that after the meetings they felt freer to do so. By her own account, towards the end of the first week employees told her who among them was involved in the union.

39During one of her tours of the store Mrs. Fox engaged Mrs. Clark, one of the two original employee union organizers, in conversation. Mrs. Clark protested to Mrs. Fox that she and Kelly O'Connor were being followed by the management trainees. Mrs. Fox's testi­mony is that she then went to Mr. Gilchrist to advise him of what was going on and that he then said that he would look into it. The Board cannot accept that evidence. Mr. Gilchrist, who was cross-examined extensively on the question of the surveillance of O'Connor and Clark, maintained throughout his evidence that he was unaware of any surveillance of the two employees or of any complaints made by them about being followed. On this, as on other crucial aspects of the evidence, the company's account takes on an aura of falsehood that borders on contempt for the truth. The chief witnesses for K-Mart were Mr. Gilchrist and Mrs. Fox. The testimony of each of them was lacking in candour as they repeatedly evaded questions and contradicted themselves and each other. Having regard to the totality of the testimony the Board can place no credence whatever on the evidence of Mr. Glchrist and Mrs. Fox. On the whole of the evidence the Board must draw the inference that like the speeches of Mr. Gilchrist and the tours of Mrs. Fox, the surveillance and harassment of Miss O'Connor and Mrs. Clark were planned, approved and known by Mrs. Fox, Mr. Gilchrist and Mr. Cumiskey, the Vice-President of K-Mart Canada Limited.

40The impact on individual employees of being engaged repeatedly in conversation by a managerial authority of Mrs. Fox's rank cannot be underestimated, particularly when it comes at or about the time of a series of management meetings opposing a union. Mrs. Fox circulated continuously among the employees for three weeks in November. An employee observing her conduct as she spoke with other employees could reasonably suspect that Mrs. Fox would eventually come to know who the union sympathizers were, as indeed she did. An employee exposed both to the battery of meetings held by Mr. Gilchrist and the sustained rounds of the store by Mrs. Fox would reasonably come to entertain a concern for his own security, a concern that joining the union would leave him open to the kind of surveillance and pressure that was then being openly brought to bear on Clark and O'Connor. Management's deliberate blitzing of the employees can only be interpreted by this Board as calculated to put pressure on the employees, to obtain information from them and to bring undue influence to bear on their ability to freely choose to associate with the union. The tactic of having Mrs. Fox attend the anti-union meetings of Mr. Gilchrist and then circulate among the employees, engaging in one on one conversations day after day over several weeks, goes beyond mere management concern for employee problems. It becomes a subtle and effective tactic of intimidation. While a one or two day visit by Mrs. fox to convey the employer's feelings on union representation might not offend the provisions of section 56 of the Act, her presence and activities in the store during the fall of 1979 went beyond that purpose and, in the circum­stances of this case, constituted intimidation and undue influence of the employees contrary to section 56 of the Act.

41The Board heard a considerable amount of evidence respecting the circulation of petitions against the union. Petition activity, which began immediately after the first meeting held by Mr. Gilchrist on November 12th, was sponsored principally by employees Joan Robbins, Linda Schweier and Myrtle Swift. The petition eventually filed by these employees is not numerically relevant to the certification application because the union did not obtain membership support in excess of fifty-five per cent of the employees in the bargaining unit.

42The union sought, however, to establish that the petition was inspired and encouraged by the employer, submitting that the petitioners were in fact the instrument of the employer's overall design to split the employees and defeat the union. The petition may have some further bearing, to the extent that, if voluntary, it would speak to the union's strength among the employees for the purposes of issuing a discretionary certificate under section 7a of the Act.

43The evidence clearly establishes that the employer acted as a catalyst to the petition. The evidence of Joan Robbins, which the Board accepts as honest and forthright, establishes that she was first made aware of the union's campaign in the store by Mr. Gilchrist's speech on November 12, 1979. The same was true for Myrtle Swift. Mrs. Fox testified that during the course of the first week she visited the Peterborough store employees approached her, asking how they should proceed to oppose the union. She responded that she could not discuss that with them, ard that they should call the Labour Board for that information. That is precisely what Myrtle Swift did. Having obtained information from the Board she proceeded with the assistance of Joan Robbins, Linda Schweier and others. It is clear from the evidence that the three ladies who sponsored the petition were genuinely and voluntarily opposed to the union. While it is true that they might not have mobilized but for the prompting of Mr. Gilchrist and Mrs. Fox, the Board is satisfied that apart from that the sponsors of the petition acted independently of their employer. They can in no way be associated with the breaches of the Act found to have been committed by K-Mart.

44That is not to say that the existence of the petition is a neutral fact in the case before the Board. Given the atmosphere created in the store by the employer, including the open sur­veillance of Mrs. Clark and Miss O'Connor, the continuous small group meetings and the con­stant presence of Mrs. Fox who admitted that she became aware of the petition, it would not be unreasonable for employees to fear that a refusal to side with the objecting employees would become known to their employer and leave them open to the risk of being dealt with like Miss O'Connor and Mrs. Clark. The Board must conclude, for the purposes of the section 7a application, that notwithstanding the good faith of its three sponsors, the petition, in the cir­cumstances of this case, must reasonably be viewed by previously undecided employees as an invitation to stand up and be counted on the anti-union side and that a refusal to do so would be at their peril. We are satisfied that the petition cannot, on the balance of probabilities, be accepted as a voluntary statement by the rank and file employees who signed it. Exposed as they were to speeches of Mr. Gilchrist that contained threats to their well being and job security, to the inquiring presence of Mrs. Fox and to the oppressive measures being used against Clark and O'Connor the employees could not sign that document free of intimidation and undue influence. It cannot, therefore, be looked to with any reliance to assess the measure of support for the union among the employees in the bargaining unit.

45We turn to consider the allegation that the employer unlawfully discharged Geoffrey Clifford Hurle because of his union sympathies. The evidence establishes that Mr. Hurle, a full-time student at Carleton University, was hired by the respondent to work as part of its security staff for the summer, beginning on or about June 16, 1980. On Wednesday, July 9, 1980 Mr. Hurle was discharged. At that time these proceedings were ongoing, the Board having conducted some 10 days of hearing. At the beginning of the hearing scheduled for July 11, 1980 counsel for the union indicated that a section 79 complaint had been filed, alleging that Mr. Hurle had been discharged contrary to The Labour Relations Act. Counsel for the employer argued that the Board should not hear a section 79 complaint as part of these proceedings, nor at all, because Mr. Hurle had been immediately reinstated and had been com­pensated for the one day which he had lost as a result of his termination. On that basis K-Mart maintained that the section 79 complaint was entirely academic and should not be made a part of these proceedings. In the alternative counsel for the employer argued that he was not prepared to meet the case which the union was about to adduce that day in respect of these allegations. The day previous counsel for the union had presented his final argument on the section 7a application. In those circumstances the respondent maintained that the admission of a further complaint at this late hour would take it by surprise and would constitute an un­warranted extension of the section 7a proceedings.

46The Board did not agree. One of the very issues before the Board is the question of whether employees in the Peterborough store of K-Mart are capable of voluntarily expressing their choice about trade union representation. Since the determination obviously requires an assessment of the present state of mind of employees the Board was not inclined to prevent the union from adducing evidence which it maintained would have a clear bearing on that issue. The fact that the respondent might discharge an employee because he is a vocal union supporter as much as six months after the events described above, and indeed during the course of the Board's certification proceedings, could, notwithstanding his immediate rein­statement, make an impression on other employees affecting their ability to opt freely for union representation. (Lorain Products [1977] OLRB Rep. Sept. 734). The Board therefore ruled that the union could bring evidence with respect to the section 79 complaint relating to the discharge of Mr. Hurle, thereby consolidating these two matters. In fairness to the res­pondent, however, the Board adjourned the proceedings to allow the respondent the opportu­nity to prepare to meet the union's case.

47While the Board heard extensive evidence with respect to the hiring, employment and discharge of Mr. Hurle, the thrust of that testimony can be briefly stated for the purposes of this application. Mr. Hurle was hired to perform the function of a store detective. It was his job, for approximately 24 hours a week, to detect and apprehend shoplifters in the store. Dressed in such a way as to look like a customer, Mr. Hurle spent his time watching both customers and staff in the store, whether through direct observation on the floor or by way of one-way mirrors and peepholes located as strategic places on the premises. In this work Mr. Hurle was under the direction of Douglas Evan Armstrong, the manager of security at the Peterborough store.

48Mr. Armstrong gave Mr. Hurle, who had no previous experience, some orientation in the work of a floorwalker. In his first week of employment Mr. Hurle apprehended two youths in an attempt to switch prices on merchandise. As a result one of them was criminally charged.

49On June 26, 1980 Hurle had a conversation with Mr. Armstrong. He related to him that he had had a date with a female employee who had told him of the union's efforts in the store. Hurle related to Armstrong that if the store knew about his own feelings and sympathies towards unions it would fire him. that same day, almost immediately after their conversation, Mr. Armstrong arranged to have coffee with Mr. Gilchrist. He then told the store manager of his conversation with Hurle. Mr. Armstrong related to Mr. Gilchrist that Hurle had expressed pro-union sympathies and that he had told him the name of an employee involved in support­ing the union. Armstrong passed that employee's name on to Mr. Gilchrist. Under cross-examination N4r. Armstrong testified that he thought that it was his responsibility to let Mr. Gilchrist know the identity of the employee whom Mr. Hurle had disclosed as having an interest in the union.

50The evidence of Mr. Gilchrist is even more telling on this point. In his testimony in chief about the conversation between himself and Armstrong, Mr. Gilchrist admitted that it was he who asked Armstrong whether Hurle had mentioned the name of the employee who was involved in the union organizing campaign. That came as a disquieting admission from Mr. Gilchrist who had previously, over the course of a day and a half of testimony before the Board, repeatedly made statements under oath in an attempt to leave the Board with the impression that he was not aware of who the union organizers were and that he was not actively attempting to find out.

51The evidence establishes that Mr. Hurle also had a conversation with Mr. Gilchrist in which Huile clearly indicated that he felt that the union had good cause in attempting to help the store's employees. In that conversation, which took place in the store cafeteria, Mr. Hurle openly stated to Mr. Gilchrist that he believed that the employees wages were inadequate and that their working conditions should be improved.

52On Wednesday, July 9, 1980 Mr. Hurle had yet another conversation with a member of management about the union. He approached Mr. Jack Drysdale, the manager of the men's wear department. He told Drysdale that a friend of his employed at General Motors had received a leaflet from the United Auto Workers instructing members not to purchase clothing at K-Mart. The unchallenged evidence is that Mr. Drysdale reacted with extreme anger to that statement. The manager stated forcefully that the company did not want a union and that the union was the idea of "a handful of employees who don't know what is going on".

53Within an hour and a half of that conversation Mr. Hurle was summoned to the office of Mrs. Osborne, the personnel manager, and was told that his services were no longer required. At that time Mrs. Osborne did not indicate to the grievor that his work had not been satisfactory. She simply stated that sales were down and that he would not be needed.

54At the hearing the company sought to establish that Mr. Hurle had not been a satisfactory employee and that poor work performance was the reason for his discharge. The evidence, however, does not support that assertion. At the time of his discharge Mr. Hurle had been in the store for barely eighteen working days, and then only on a part-time basis. During that period he had apprehended three shoplifters, two of whom were subsequently charged. He received the occasional comment of encouragement or direction from Mr. Armstrong. While he was once told not to smoke in Mr. Armstrong's office, he was never told that his work was unsatisfactory nor warned that his job was in jeopardy because of his work performance. The Board finds that the allegations that Mr. Hurle's work performance was unsatisfactory and the further suggestion that he spent too much working time socializing with staff, a criticism that was never communicated to him before his discharge, are transparent excuses for the deliberate discharge of an employee who was showing himself to be repeatedly out­spoken on the question of the unionization of the store's employees. The discharge of Mr. Hurle is best understood as another instance of the respondent's determination to discourage any talk or activity that could advance the cause of the union. Having regard to the quality of Mr. Gilchrist's evidence the Board can place no reliance whatever on his denials that Hurle was discharged because of his union sympathy. The fact that Mr. Hurle was reinstated almost immediately, on the advice of counsel, does little to blunt the impact that his discharge would have on any reasonable employee.

55There are three other aspects of the case which were the subject of substantial evidence and representations by the parties. The Board is satisfied that these further elements do not materially alter the merits of the case and therefore touches on them only briefly. The first is the allegation of the union that the employer attempted to use electronic eavesdropping devices to spy on the union's organizing campaign. The second is that the union threatened an unlawful strike, and the third relates to the ejection from the store of two union representatives.

56We deal firstly with the allegation of electronic surveillance. Mr. Craig Herman, a former automotive service manager at the K-Mart store in Peterborough, testified that an employee in the furniture department approached him in November of 1979, during his employment, and told him that the employees in the automotive department were being watched and that a listening device had been planted to overhear their conversations. In the first week of November Mr. Herman noticed that a hole had been cut through the wall that separated the automotive department from a storage area known as the furniture loft. The hole, ostensibly an air vent, was positioned in such a way as to allow a person standing in the furniture loft to observe the activities of employees in the automotive department. Shortly thereafter Mr Herman went to the furniture loft where he discovered an electronic device, commonly referred to as an "Andy Gibb microphone", lying on some shelving beneath the newly cut ventilation hole.

57The evidence of Mr. Armstrong, which the Board accepts, establishes that in late October he obtained permission to open the ventilation hole to watch the automotive shop in an effort to solve a series of thefts involving a suspected employee. The hole was cut open for that purpose and as a result, on November 24, 1980, an employee in the automotive department was discharged after being apprehended in the course of stealing goods from the store.

58The unrebutted evidence of Mr. William McCarthy Sandiford, a professional expert in the field of electronic surveillance, establishes that the "Andy Gibb microphone" found by Mr. Herman could not, because of its technical limitations, have been used in the way alleged by the union. The Andy Gibb microphone is a child's toy. It is designed to transmit the voice of a speak from the microphone into a nearby FM radio receiver which can then broadcast the speaker's voice. Mr. Sandiford's uncontradicted testimony establishes that the Andy Gibb microphone is allowed by law to be sold commercially as a toy specifically because if cannot transmit beyond approximately one hundred feet. As listening devices go it is extremely crude. In the conditions described by Mr. Herman, Mr. Sandiford testified that the Andy Gibb microphone could not pick up sounds much beyond a range of eight to ten feet. Given its placement some eighteen to twenty feet above the floor of the automotive depart­ment, the size of that department and the normal noise level within it, the Board must accept the conclusion of Mr. Sandifrod that the toy microphone which Mr. Herman says that he found would have been totally ineffective as a listening device.

59A possibility touched on by counsel for the union is that quite apart from its in­effectiveness, the microphone could have been placed where it was found and deliberately brought to the attention of the employees by the employer, to foster the impression among them that they were being listened to. This Board would have no difficulty concluding that an employer deliberately creating the impression of surveillance of union activity would be engaging in the unlawful interference with the rights of employees, contrary to the Act. (cf. Delchamps Inc. v. NLRB 99 L.R.R.M. 3386 (C.A. 5(1978)); NLRB v. Redwing Carriers, Inc. 100 L.R.R.M. 2492 (C.A. 1 (1978)). On the strength of the evidence before the Board, however, that is a speculative theory at best. On the evidence before us we cannot conclude that K-Mart was responsible for the placement of the microphone as alleged by Mr. Herman or that it deliberately sought to create the impression that it was eavesdropping by means of an electronic listening device.

60Through cross-examination of Phyllis Marier, the union's organizer, counsel for the respondent sought to establish that in a telephone call to the store's co-manager Mr. Thomas on November 12, 1980 her superior, Mr. J.H. Nicholls, threatened an illegal strike at the store. That allegation was denied by Mrs. Marier. Since Mr. Thomas was not called to testify the Board can not take it as established, other than by unreliable hearsay through Mr. Gilchrist, that such a threat was made by Mr. Nicholls. Assuming, without finding, that the union organizer did threaten an unlawful strike, that conduct might be grounds for a com­plaint to this Board, but it could not justify or excuse the employer's recourse to self help by massive unfair labour practices designed to deter the employees from associating with the union.

61The day after the telephone conversation between Nicholls and Thomas, Mr. Nicholls and Mrs. Marier entered the respondent's store and began to distribute pro-union pamphlets. Mr. Gilchrist then confronted Mr. Nicholls and told him to stop distributing the pamphlets, telling him that, if necessary, he would call the police to have him removed from the store. Mr. Gilchrist then turned and walked to the service desk and telephoned the police while Mr. Nicholls and Mrs. Marier continued to distribute pamphlets for a short time before leaving the store.

62The right of an employer to impose limitations on the ability of employees and non-employees to engage in union organizing while on its premises, whether in or out of working areas or working time, has been the source of much litigation. (See, generally, Babcock and Wilcox 351 U.S. 105 (1956); Montgomery Ward and Co. 157 F. (2d) 486 (C.A. 8, 1946); Associated Medicine Services Inc. 64 CLLC ¶116,303; Jim Pattison Industries Ltd. (Courtesy Chevrolet) [1979] 2 Can. LBRR 517 (BCLRB); Consolidated Fastfrate Limited, [1979] OLRB Rep. Apr. 418; Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811; and with respect to retail stores see, May Department Stores Co. 17 LRRM 985 (C.A. 8, 1946); Marshall Field v. NLRB 31 LRRM 2073 (C.A. 7, 1952); Walgreen Co. 91 LRRM 1177 (N.L.R.B. 1976) and see also Murray, No-Solicitation and No-Distribution Rules: Presumptive Validity and Discrimination, 112 U. Pa. L. Rev. 1049 (1964)).

63In this case counsel for the union did not rest his request for certification under section 7a in any substantial part on the basis that union organizers were wrongfully excluded from the retail store premises by the employer. Given the overwhelming evidence of unfair labour practices reviewed above, the Board does not, in light of its decision on the merits elaborated below, deem it necessary to further discuss this aspect of the case. Any comment by this Board on the right of employers, and in particular of employers in the business of retail trade with the public, to prohibit access to their premises for the purpose of soliciting union membership should await an application or complaint where such conduct is more central to the case and where the merits of that issue are more fully argued.

64The Board therefore turns to consider whether the three elements giving rise to the application of section 7a of the Act have been satisfied so as to cause the Board to grant certi­fication to the applicant union. Has the employer breached the Act? Has it done so in such a way as to prevent the employees from voluntarily expressing their wishes as to union repre­sentation? If so, does the union have sufficient membership support for the purposes of collective bargaining?

65The evidence establishes an extensive and continuing pattern of unfair labour practices by K-Mart. They must be viewed together in assessing their impact upon the employees. First, the employer engaged in overt surveillance by following two employees in an obvious attempt to discourage them and other employees from associating with the trade union. This evidence, which establishes a violation of section 58 of the Act, causes the Board particular concern given the impact surveillance may have in discouraging union activity. The general chilling effect of surveillance of union activity is more fully discussed below. Secondly, the speeches of Mr. Gilchrist in some 25 employee meetings coupled with the almost continuous conversations of Mrs. Fox with employees throughout the store over a three week period clearly establish that the employer took unfair advantage of its position of control and authority to being intimidation and undue influence to bear on its employees contrary to section 56 of The Labour Relations Act. Thirdly, the written letter of discipline to employees the same day that they first appeared to testify before this Board on behalf of the union, particularly where their employer had previously known of their activity for over two months without giving them any disciplinary warning whatever, amounts to a deliberate attempt to obstruct witnesses from giving evidence before the Board, contrary to section 71 of The Labour Relations Act. Lastly, the discharge of Mr. Hurle, an employee who had wide contact with the staff of the store, both at work and socially, and whose pro-union leanings were not hidden, was in breach of section 58 of The Labour Relations Act. The significance of this discharge would not be lost on employees, notwithstanding the effort of the company, on the advice of counsel, to reinstate Mr. Hurle the next day.

66The Board has expressed itself in a number of cases on the kind of unfair labour practice that can trigger the application of section 7a and result in the discretionary granting of a certificate: (See Dylex Ltd. [1977] OLRB Rep. June 357; Viceroy Construction Co. Ltd. [1977] OLRB Rep. Sept. 562; Lorain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734; Radio Shack [1979] OLRB Rep. Mar. 248). In this case the Board must first consider the impact of the open and continuous surveillance of two employees who were the spearhead of the union organizing campaign. Spying on employees is not new to the catalogue of unfair labour practices resorted to by employers who are extreme in their determination to stop their employees from exercising their collective bargaining rights. This Board has previously found instances of covert surveillance to be unlawful interference with the rights of employees under the Act; (see, for example, Radio Shack, [1979] OLRB Rep. Mar. 248). In its very first reported decision the National Labour Relations Board was confronted with the tactic of sur­veillance as a method of discouraging union activity. From that time to the present, with the endorsement of the Courts, the NLRB has consistently found surveillance or the attempt to create the impression of surveillance of union activity to be unlawful interference with the rights of union association expressly protected by law; (see, Pennsylvania Greyhound Lines Inc. 1 NLRB 1(1935) at p. 22; A & R. Transport Inc. v. N.L.R.B. 101 LRRN 2856 (C.A.7, 1979) and the Delchamps and Redwing cases, supra).

67Surveillance can have a legitimate application in the work place. An employer may, for example, have to use one form or another of surveillance to protect its property against theft and vandalism or to monitor machinery and processes to ensure the safety of employees. In Ontario, however, an employer may not use surveillance to intimidate employees from exercising their rights under The Labour Relations Act.

68The evidence in the instant case establishes that K-Mart deliberately subjected two ladies who were among leaders to an open and demeaning form of surveillance. Its actions in this regard are disturbing whether they are viewed in light of The Labour Relations Act or from the simple standpoint of human dignity. Conduct so extreme as to include an employee being escorted to the washroom by her supervisor, in the plain view of other employees, be­cause of her wish to be represented by a union constitutes an abuse of employees that will not be countenanced in this Province.

69We should stress that in view of the apparent scope and method of K-Mart's reaction to the union we are not quick to view this conduct as the paternalistic blundering of an unsophisticated employer. In the circumstances of this case the Board concludes from the fact that the surveillance was carried on so openly that it was intended not only to confine the actions of the two union leaders but also to be observed by other employees in an effort to turn them away from the union out of fear that support for the union could result in their being followed. The use of surveillance as a tool to chill free expression and control dissent is well documented. Where an activity, albeit lawful, and its participants are made the object of official" surveillance there tends to be a chilling effect on the ability to both those being surveyed and those who are aware of the surveillance, to express themselves freely in support of the activity being watched. This process, referred to in literature on the subject as the "chilling effect" of surveillance, has become a recognized technique of behavior modification.

70Individuals who are aware of surveillance being conducted by authorities against a legitimate activity may come to redefine the activity as being somehow illegitimate and tend to avoid any association with it. Alternatively, even if an individual who is aware that another is under surveillance does not develop a personal antipathy to that person's activity, he may nevertheless dissociate himself from the victim of surveillance if only to avoid the stigmatiza­tion that tends to attach to anyone who is knowingly being investigated. In one of the earliest studies on contemporary surveillance the authors drew the following conclusion:

[t]he hazards of being investigated — even if one is subsequently cleared — are so great that individuals are induced to limit their behaviour by avoiding (or trying to avoid) anything that might conceivably arouse anyone's suspicion and thus lead to charges and an investigation. (Johoda and Cook, Security Measures and Freedom of Thought, 61 Yale L.J. 296—333 (1952)).

71In the instant case the fact that surveillance of O'Connor and Clark was restricted to the store's premises would not necessarily limit the impact of surveillance to that location. The fear of surveillance can have a spill-over effect into union meetings and private encounters off the employer's premises. Employees who know that surveillance is being conducted at the work place can never be certain that it is not going on elsewhere. Askin, in Surveillance: The Social Science Perspective (4 Columbia Human Rights Law Review 59 (1972) at p. 73) relates the following observation from a study made by a team of social and behavioral scientists:

Actual surveillance of an individual or group or of a particular event, political or otherwise, is not an essential element for chill to occur. With public knowledge that surveillance.., has occurred and is continuing to occur, the individual's perception of the actual event has been influenced. Based on the expectation that surveillance might be going on, people exhibit the same verbal inhibitions as if they were certain through direct knowledge that a surveillance agent were present.

72In this case the Board further concludes that a kind of surveillance was being carried on by management through the system of employer meetings that were held with employees and the simultaneous activity of Mrs. Fox. The evidence establishes that there was nothing random about the employee meetings. Mr. Gilchrist testified that under his instructions Mrs. Osborne, the personnel manager of the store, prepared lists of ten to fifteen employees on separate cards. As each of the five employer speeches were delivered the same group of employees were assembled in a small room where they were observed by Mrs. Osborne and Mrs. Fox, as well as by Mr. Gilchrist who delivered the speeches. That kind of assembly, encouraging as it did the opponents of the union to speak out, would have the natural conse­quence of stripping away the feeling of anonymity that union supporters might previously have enjoyed. Any normal employee in those circumstances could reasonably suspect that he or she was being brought into meetings of the same small group as much to be observed as to be informed yet again of the employer's position on unions.

73That suspicion could only be reinforced by the subsequent exposure of employees to one on one conversations with Mrs. Fox, the second highest ranking personnel administra­tor of the company in Canada. As Mr. Gilchrist eventually admitted in his evidence, the company did attempt to establish a list of which employees were sympathetic to the union and which were opposed, ostensibly to gauge the numerical strength of the union. In the unusual circumstances then prevailing in the store it would not have been unreasonable for an employee to suspect that the company was watching closely to identify union sympathizers. Under that unseen pressure it would be natural for an uncommitted employee to sense that he was being evaluated and to see his conversation with Mrs. Fox as an opportunity, in the interest of job security, to align himself on the anti-union side.

74Exposing individuals, both in small group meetings and in individual conversa­tions, to situations where they feel that they are being evaluated can have a substantial impact on both their behaviour and their beliefs. Referring to this reaction as "evaluation appre­hension", the study reprinted in Askin, supra, comments:

This apprehension is an active anxiety that subjects feel when they are being evaluated. It leads the individuals to behave in a manner that will win a positive evaluation from the person who is judging him.

The psychological consequence of concern over social evaluation (induced through awareness that one's behaviour is under surveillance) is the arousal of anxiety. This anxiety raises the threshold for expression of all behaviours which could be judged as non-normative, deviant, atypical, or politically dissident. The overt consequences of such an internal state of "evaluation apprehension" are:

(1) a likely avoidance of such evaluative situations;

(2) a limitation or modification of the public speech or actions of the individual who is in such situations, so as to render the speech or action "acceptable" to the sponsors of the surveillance; and

(3) an arousal of feelings of shame and worthlessness by the indi­vidual who avoids such situations, if he is committed to those beliefs relevant to the situation. If he is not yet committed to the belief, he is likely to come to view those beliefs as ille­gitimate, as a direct consequence of the surveillance.

(see also generally, Rosenburg, The Conditions and Consequences of Evaluation Apprecia­tion in Artifact In Behavioral Research 279-349 (R. Rosenthal and R. Rosnow eds. (1969); A Bandura, Principles of Behaviour Modification (1969); W. Gellhorn, Security, Loyahy and Science (1950)).

75The chilling effect of an unfair labour practice is never susceptible of precise measurement. In the instant case the Board cannot purport to say with any precision the number of employees who became alienated from the union because of the sophisticated anti-union campaign of their employer. The Board is satisfied, however, on the basis of the evidence before it, that the open surveillance of the union organizers, the subjection of employees to repeated small meetings and their continued exposure to the scrutiny of Mrs. Fox, would reasonably have caused numbers of employees who might otherwise have sup­ported the union to refrain from doing so. No doubt there were employees in the Peterborough store who, like the objectors who appeared before us, opposed the union voluntarily and would have done so without any prompting from their employer. The preponderance of the evidence, however, points to the conclusion that K-Mart deprived the employees of the Peterborough store as a whole of the ability to chose freely, in an atmosphere untainted by employer undue influence, with respect to whether they wish to be represented by a trade union. The evi­dence establishes that in seven days of campaigning before November 8th, the day the store manager became aware of the union, thirty-one employees had signed union membership cards. After that day, through the period of the speeches and surveillance, only three employees joined the union.

76Counsel for the respondent argues that in fact the union campaign had run its course and had come to an unsuccessful end at the same time, coincidentally, as the employer's campaign began. That argument, however, is plainly inconsistent with the employer’s own judgment of the campaign at the time. By conducting an intense and highly organized anti-union campaign that extended over three weeks, ending only when the application for certifi­cation was filed, K-Mart gave every indication that in confronting the union it believed itself to be dealing with anything but a spent force. If the employer had not interfered with the employees, and their acceptance or refusal of the union membership had been tested in cir­cumstances more conducive to a voluntary choice, the Board might be in a position to assess the respondent's argument that the union had already obtained all of the support that it was going to get when the unfair labour practices began. However, when the employer's very conduct has made that a virtually unanswerable question the Board is not inclined to give the employer the benefit of the doubt on that issue. Skepticism naturally attaches to the defence that the murder victim died of a heart attack seconds before the bullet struck him.

77On the evidence before it the Board must conclude that the employer's conduct achieved its intended consequence, namely to deprive the employees of the ability to freely opt for union representation. We have no doubt that the anti-union campaign in November of 1979, reinforced by both the intimidation of witnesses before the Board in February, 1980 and the discharge of an outspoken union sympathizer in July of 1980, deprived and continues to deprive the employees of the K-Mart store in Peterborough of the ability to freely express their wishes respecting union representation. The Board cannot accept the argument of counsel for K-Mart, ostensibly based upon the study done by Getman, Goldberg and Herman, Union Representation Elections: Law and Reality (New York, 1976) that employees with a predi­lection to union sympathy will support a union while employees with an anti-union orienta­tion will oppose a union and that their choices in that respect are essentially uninfluenced by employer unfair labour practices. As the authors of that study acknowledge at page 70, there is a substantial body of employees whose predispositions do not dictate the way they will vote on the question of union representation (cf. Shapiro, Why do Voters Vote? 86 Yale L.J. 1532 at 1536-37). Moreover, the authors do not question the practical validity of a labour board granting certification in the absence of a demonstrated majority when the employer has engaged in egregious conduct in its campaign of opposition to the union. While there may be different standards of what is and is not egregious, we have a little difficulty in concluding that the overbearing tactics of K-Mart established in this case fall within that category.

78The final issue in respect of the application of section 7a of the Act is whether the applicant has sufficient employee support for the purposes of collective bargaining. An issue preliminary to that question is the determination of the bargaining unit. The union and the res­pondent are disagreed as to its composition. The union takes the position that some eleven individuals including two door-greeters, one check-out supervisor, three clerical employees in the merchandising office, one advertising co-ordinator, three employees in the clerical staff of the general office and one person employed clerically in the cash office should be excluded from the bargaining unit either by virtue of their exercise of managerial functions or because they exercise responsibilities that are confidential in relation to labour relations within the meaning of section l(3)(b) of the Act. Alternatively, the union submits that all office em­ployees should be excluded from the bargaining unit because they have a separate community of interest.

79Having regard to the agreed statement of facts submitted by the parties in respect of the disputed individuals, and to the evidence heard directly by the Board, we are satisfied that none of the aforementioned individuals exercises managerial or confidential duties within the meaning of section l(3)(b) of the Act. The Board is likewise not satisfied that in the circum­stances of a discount store such as the respondent's the relatively small group of office staff should be excluded from a bargaining unit that would encompass all other employees, a group which already includes persons involved in sales and persons not involved in sales. The evidence establishes that the office employees are functionally integrated with the sales and stock room employees in their everyday functions. There is also an interchange between the sales floor and the office, some office employees having previously worked as sales clerks. From the standpoint of community of interest the office employees have at least as much in common with the sales and stock room employees as for example, the mechanics who work in the automotive service department, a group that the union would, without objection from the respondent, include in the bargaining unit. In these circumstances the Board is satisfied that the more comprehensive unit is in this case the more rational and viable delineation of employees for the purposes of collective bargaining. Having regard to these conclusions as well as to the agreement of the parties that the pharmacist should be excluded, the Board finds that all employees of the respondent employed at its K-Mart store in the City of Peterborough, save and except department managers, persons above the rank of department manager, management trainees, pharmacist, persons regularly employed for not more than twenty-four hours per week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for the purpose of collective bargaining.

80On the date of application there were eighty-five employees in the bargaining unit. The applicant has filed membership applications for thirty-four of those employees. It there­fore has a membership strength of forty per cent as of that date. There being no evidence to the contrary, the union must be deemed to retain that strength at the present time. In Victory Construction Co., (supra) at p. 567-68, granting certification under section 7a where membership strength of forty per cent was established, the Board made the following comment about the degree of employee support required for the purposes of section 7a of the Act:

Membership support that is adequate within the meaning of section 7a does not necessarily mean majority support. That section was obviously intended to apply where an application for certification is made by way of a pre-hearing vote. In that situation no more than 35% of the employees in the proposed bargaining unit need be members in order for the Board to order a vote. Momentum can be important in an organizing drive and a trade union might decide to cut off its membership card campaign at or slightly above that threshold in order to obtain the benefit of an early vote rather than seek outright certification. We are satisfied that the Legislature did not intend that a trade union and employees in that cir­cumstance should be any less entitled to the protection of section 7a where the three criteria set out in that section are met.

That is not to say however that membership strength of 35% must auto­matically be seen as adequate membership support. No arbitrary percentage can be arrived at that will apply in all cases. The Act requires the Board to determine what is adequate membership support by the light of its own opinion depending on the facts of each case. In forming its opinion in any case the Board must have regard to all of the surrounding circumstances. Relevant factors include whether the employer's contra­vention of the Act occurred early or late in an organizing campaign, the nature and gravity of the contravention itself and the relative strength and influence of the employee members on other employees within the bargaining unit.

81In approaching its discretion to grant certification under section 7a of the Act the Board must make some prognosis as to the future viability of bargaining. In so doing it does not necessarily view the membership strength which the applicant has on the date of certifica­tion as a static and immutable figure. Where the evidence establishes that a work place has been subjected to the chilling effect of unfair labour practices that tend to suppress any expres­sion of pro-union sentiment, it is not unreasonable to expect that the granting of a Board certi­ficate, with or without the assistance of other remedies under The Labour Relations A ct, will in some degree restore the legitimacy of the trade union in the eyes of the employees. The Board therefore takes into account the potential for union support to grow among employees who beforehand might have been afraid to associate themselves with the union. With the granting of a certificate, assuming that all unfair labour practices will end, there is little reason to doubt that the union's base of support will grow and that more and more employees will come forward to participate in the endeavours of their bargaining agent.

82In determining whether a union has support adequate for collective bargaining purposes within the meaning of section 7a of the Act the Board's concern is whether there is a number of employees, sufficiently representative of the employees in the bargaining unit, with the ability to negotiate with their employer on the content of a collective agreement. In this regard bargaining ability is to be distinguished from bargaining power. The question is not whether they can mount a successful strike, or whether they will eventually realize substantial gains at the bargaining table. Rather, it is whether they have the core of support sufficient to negotiate with the employer. A section 7a certificate, like any certificate, is only a beginning and need not be seen as anything more.

83In the instant case the employer struck early and struck hard at the union's campaign. Notwithstanding the force of its unfair labour practices the union has shown itself to have a substantial core of support and determined leadership in the employee ranks. In these circumstances, we are satisfied that the applicant union has membership strength suf­ficient for the purposes of collective bargaining within the meaning of section 7a of The Labour Relations Act and that it should be certified.

84In the light of the extreme conduct of the employer in this case, the Board is further of the view that it should exercise its remedial jurisdiction under section 79 of the Act to estab­lish conditions that will promote fuller employee participation with a view to producing more constructive bargaining between the employees and their employer. In the circumstances of this case the grainting of a certificate will not, of itself, undo the public indignity that the two employees who championed the union were subjected to by their employer. The granting of a certificate will not of itself erase the impression conveyed over some 25 meetings with employees that the union is disreputable and has no place among the employees of K-Mart. The granting o F a certificate will not remove from the minds of employees the memory of the searching and questioning presence of Mrs. Fox. Nor will the granting of a certificate remove from the minds of the employees the belief, pushed upon them so forcefully by their employer, that membership in a union and good service to an employer are somehow incompatible. When those messages have been made to permeate a work place by pervasive unfair labour practices, as they have in the instant case, the Board will not hesitate to provide relief adequate to redress the imbalance. To fail to do so would risk consigning the section 7a certificate to a climate where a collective agreement will be difficult, if not impossible, to realize. In this case, therefore, through its remedial authority the Board seeks to restore the union and the employees who support it to the legitimacy that their lawful activity was intended to have.

85In light of the imbalance created by the respondent's conduct a comprehensive remedial order is required. In determining the content of the order, the first consideration is the means to redress the employer's violation of the Act in publicly inflicting indignity and harassment on the two employees chiefly responsible for the union. As the Board has noted, Miss Kelly O'Connor and Mrs. Beverley Clark were stigmatized and ostracized by their employer's del berate plan to discredit them and their beliefs in the eyes of the other employees. This is not a situation where they can easily be put back in the position they would have been in if the employer had not engaged in unlawful conduct. If, for example, they had been dis­charged, they would be readily compensated and restored by an order of reinstatement without loss of wages or benefits. It is somewhat more difficult to make them whole for this violation of the Act. That is no reason, however, not to try.

86The open surveillance of the two employees leading the union campaign was central in the employer's strategy to drive the union out. It had an impact at three levels, touching as it did the employees being watched, their fellow employees and the union itself. What remedies, then, will protect these individuals and redress the wrong that was done?

87A declaratory finding that K-Mart has breached the Act coupled with an order that it cease and desist from the surveillance and harassment of these two employees in the future will not restore them to where they would have been if the Act had not been breached. They should have been able to pursue their union campaign freely and without interference, whether or not the union should ultimately succeed in being certified. The Act protects employees individually as well as unions. The granting of a certificate to the union under section 7a of the Act should not, therefore, be construed as a remedy for the infringement of their individual rights. A declaration and a cease and desist order from the Board are clearly appropriate to protect them from any future recurrence of such conduct. But that will not compensate them for the abuses that they endured for some three weeks, nor for the longer period of their ostracism.

88The Board has considered whether ordering a personal written apology from the employer to these two employees would redress the harm that has been done. In the normal case that form of redress would go a long way to repairing the wrong done. It would be a convincing form of reparation where, for example, the Act was violated by the unauthorized excesses of a single supervisor. In those circumstances an apology from higher management could be a credible and acceptable measure of redress. It might even be sufficient where the surveillance and harassment of employees had been a deliberate but misguided employer deci­sion where the employer's overall conduct has not been such as to undermine the credibility of a subsequent apology.

89Unfortunately those conditions do not obtain in this case. The evidence before the Board is that the employer has been too easily given to the facile use of apologies in the past. Early in the proceedings when it came to the Board's attention that witnesses had been inti­midated by letters of discipline the respondent promptly issued a letter of apology and sought to convince the Board that the matter was now a non-issue. Still later in the proceedings, when it was alleged, as we have found, that an employee was discharged for his union sympathies, we were urged to ignore the matter because he had been reinstated immediately on the ins­tructions of the respondent's counsel. Against that background, and in the extreme circum­stances of this case, we are forced, reluctantly, to conclude that the employees concerned could too readily, and with some justification, view an apology from K-Mart by Board order as a meaningless gesture. While in another case ordering an apology might be an appropriate Board response, in this case the conduct of the respondent has been such that an apology would have little, if any, remedial value.

90We are satisfied that to remedy the impact of the pervasive unfair labour practice of the employer, including the effect on other employees of surveillance of Clark and O'Connor, the numerous speeches of the store manager to employees isolated in small groups, the repeated exposure of employees to individual conversations with Mrs. Fox, the intimidation of Board witnesses and the discharge of an employee, the Board's order should include the posting in the work place of a statement by K-Mart that it has been found to have violated the Act and that it will in the future refrain from such conduct. The Board must closely consider whether such a notice will redress breaches of the Act suffered personally by Clark and O'Connor.

91The posting order, first introduced by this Board in Radio Shack, [1979] OLRB Rep. Dec. 1220, is a remedy generally intended to be supplementary to the remedies granted to individual employees. In an analysis of the purpose of the posting order, the Board noted in Valdi Inc. [1980] OLRB Rep. Aug. 1254 at 1267-70, that the reinstatement with compensation of an individual who was discharged for union activity will not necessarily, of itself, undo the chilling effect on other employees of the unfair labour practice. As the Board commented (at pp. 1269-70):

the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with backpay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist for those occasions where he will not... One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements. . . Making employees aware of the meaningful rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear for job security will be lessened with the realization that someone more authoritative than the employer has voice in deter­mining what he can do to those who support a trade union and that some­one more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any [ears, confusion or ill-will created by a situation which has been equitably resolved.

92In this case a posting order is manifestly appropriate to dispel the fear among the employees that we have found would be the natural consequence of their employer's unfair labour practices. It is appropriate to assure all of the employees that they need not fear any more surveillance, intimidation or discharges at the hands of their employer because of their association with the union. The posting order is designed to have restorative impact on the employees and the union as a whole. It may also, in some measure, undo some of the ostracism experienced by Kelly O'Connor and Beverley Clark and reassure them that they will not again be subjected to relentless, open surveillance at the hands of their employer. But while a posting order should hiring security for the future, it will not compensate them for past events which, in the contemplation of the Act, they should not have experienced.

93We therefore consider whether monetary damages are appropriate for that purpose. As the Board concluded in The Journal Publishing Company of Ottawa Ltd. [1977] OLRB Rep. June 309 at 323-24 and reiterated in Radio Shack, supra, at p. 1255, the language of section 79 of the Act confers upon the Board the power to award compensation in the form of general damages arising from a breach of the Act. That conclusion was confirmed by the Court in Tandy' Electronics Limited v. United Steelworkers of America, 80 CLLC ¶1 14,017 (Ont. Div. C:.) where at p. 12,093 the Court commented:

So long as the award of the Board is compensatory and not punitive; so long as it flows from the scope, intent and provisions of the Act itself, then the award of damages is within the jurisdiction of the Board. The mere fact that the award of damages is novel, that the remedy is inno­vative, should not be a reason for finding it unreasonable.

94In the instant case Miss O'Connor and Mrs. Clark were deliberately made to suffer extraordinary indignity as a means of destroying their freedom to associate with a trade union. The surveillance and harassment which they suffered should not be beyond redress merely because it involved no pecuniary loss to themselves. The interference with their rights under the Act by means of personal humiliation should, therefore, not be seen as beyond redress by some degree of monetary compensation.

95Compensation for an unfair labour practice involving an assault on an employee's dignity must be assessed carefully, and will be awarded only in the most extraordinary of cases. There are numbers of instances where an employee who is the victim of an unfair labour practice may incidentally suffer a loss of dignity or self-esteem. An employee who is discharged for organizing a union may suffer emotional stress as a result of his unemployment. In that instance, however, it is the discharge itself that is the violation of The Labour Relations Act. The remedy should be tailored to the wrong. The breach of that employee's right not to be so discharged can be remedied by his reinstatement with full compensation for all wages and benefits lost.

96Different considerations apply when, as in this case, a calculated offence to the dig­nity of the individual is the very means by which an unfair labour practice is achieved. If the Act is truly to provide protection from that kind of abuse and, for the reasons explored above, a declaration, a cease and desist order, a posting or apology will not be appropriate to redress the wrong done, a remedial order must include the possibility of monetary compensation. Where an employer has subjected employees to public indignity as a deliberate means of furthering its unlawful purpose and the Board concludes that no other remedy will adequately redress that particular unfair labour practice, it may deem it appropriate to order the compen­sation of the victimized employees to remedy the infringement of their rights under The Labour Relations Act. We are satisfied that this is such a case. The Board's remedy in this case, therefore, will include payment of compensation to Miss Kelly O'Connor and Mrs. Beverley Clark for the humiliation and harassment to which they were subjected by K-Mart of Canada Limited. An incidental effect of such compensation will also be to counter the impact of the surveillance on other employees. In terms that the employees can readily understand, the two employees concerned will be compensated and be seen to be compensated by this Board in a way that should enhance the effect of the Board's posting order. All of the employees should know that such abuses will not go uncorrected. While such compensation is not easy to quantify, and elaboration of the Board's principles in this regard should await the experience offurthercases, we are satisfied that in the circumstances of this case the sum of $500 to each of Miss O'Connor and Mrs. Clark is an appropriate amount of compensation.

97To further correct the imbalance the Board's remedy will also include an order designed to insure the trade union access to the respondent's premises, during working hours, to speak to the employees in groups of like number as were addressed by the respondent's store manager, as well as the opportunity to attend any future meetings sponsored by the employer on the subject of the union, with equal time to respond. Further, the union will be given reasonable access to employer bulletin boards on the store premises to communicate with the employees during the process of negotiations for a collective agreement. The Board's order will also insure that in the event Mr. Cuminskey, Mrs. Fox or any other officer or agent of the company attends at the store for the purposes of communicating with the employees with respect to collective bargaining that officers of the trade union be given adequate notice and a corresponding and simultaneous opportunity to do likewise.

98Lastly, to redress the unfair labour practices of the employer and establish the conditions for collective bargaining in an atmosphere devoid of fear and suspicion the Board's order will include the posting of an undertaking by K-Mart that it will in the future refrain from surveillance, the interference with witnesses in Board proceedings, the discharge of employees or any other form of intimidation, coercion, or undue influence designed to inter­fere with the right of employees to join and participate in the lawful activities of a trade union.

99In summary, and for the purposes of clarity, the Board finds that the respondent K-Mart of Canada Limited has:

(1) violated sections 58 and 61 of the Act by the overt surveillance of Kelly O'Connor and Beverley Clark;

(2) violated section 56 of the Act by intimidation and undue influence in both the form and content of the employee meetings addressed by Mr. Gilchrist;

(3) violated section 56 of the Act by intimidation and undue influence in the conversations with employees and the extended presence of Mrs. Fox in the Peterborough store;

(4) violated section 71 of the Act in the attempt to deter four employees from giving evidence in Board proceedings; and

(5) violated section 58 of the Act by discharging Mr. Hurle because of his union sympathies.

The Board therefore orders that K-Mart Canada Limited:

(1) cease and desist from surveillance of employees in its Peterborough store for the purpose of interfering with their rights under The Labour Relations Act;

(2) cease and desist from intimidating or exerting undue influence upon employees whether through meetings, individual conversations or otherwise, to prevent employees from exercising their right to asso­ciate and participate in the lawful activities of a union;

(3) cease and desist from disciplinary measures or any other conduct intended to intimidate employees from freely giving evidence in any proceeding under The Labour Relations Act;

(4) cease and desist from the discharge or the threatened discharge of any employee because of that employee's union activity of sympathies;

(5) pay forthwith the sum of $500.00 each to Kelly O'Connor and Beverley Clark for the extraordinary harassment and indignity to which they were subjected;

(6) provide the union forthwith with a list of the names and addresses of employees in the bargaining unit and keep the list updated from time to time for one year or until the union has entered into its first collective agreement with the respondent, whichever shall first occur;

(7) permit the union access to the Peterborough store during working hours for the purpose of conducting three separate meetings, such meetings to be within six weeks of the date of this order or such further time as may be agreed by the parties, in groups of 10 to 15 employees in the ladies' lounge and out of the presence of any member of management.

(8) permit representatives of the union access, with reasonable notice beforehand, to any meeting of employees sponsored by the employer which involves the discussion of collective bargaining, with equal time to be afforded the union representatives to respond, such access to be provided for one year, or until a collective agree­ment is concluded, whichever shall first occur;

(9) give union representatives reasonable notice of any visit to the Peterborough store by Mrs. Fox or any other officer or agent of the respondent for the purpose of discussing employee relations with members of the bargaining unit and to allow such union represen­tatives equal and simultaneous access to the employees as is permitted to Mrs. Fox or such other officer or agent of the re­spondent, such access to be provided for one year, or until such time as a collective agreement is concluded, whichever shall first occur;

(10) provide the union for a period of one year from the date hereof, reasonable access to all employee notice boards in the Peterborough store for the posting of union notices, bulletins and other union business literature, to allow the employees ready access to informa­tion from the union concerning all aspects of the employees' representation including the negotiation of a collective agreement with their employer;

(11) post copies of the attached notice marked 'Appendix' after it is signed by an appropriate officer of the respondent. The appendix is to be posted in conspicuous places on the store premises in Peter-borough, where it will be reasonably accessible to all employees, including all places where notices to employees are customarily posted. The notice shall be posted forthwith for a period of 60 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable access to the premises shall be given by the respondent to two representatives of the union to satisfy itself that this posting requirement is being complied with.

100A certificate will issue. The Board remains seized of this matter in the event of any disagreement respecting the interpretation or implementation of this decision.

DECISION OF BOARD MEMBER J. D. BELL:

1. I agree the company did commit certain unfair labour practices. However I do not wish to be associated with many of the objectives used, the obiter quoted, nor many of the in­ferences arrived at in the majority decision.

2. I further agree with the redress ordered except in two matters. First, I question the propriety of awarding $500.00 each to Kelly O'Connor and Beverley Clark as damages. In my opinion such damages are punitive, not compensatory and therefore are not within the juris­diction of the board, Tandy Electronics Limited v. United Steelworkers of America, 80 CLLC ¶114,017 (Ont. Div. Ct) ¶12,093. Secondly, I am unable to accept the majority's position of certifying the union under section 7a of the Act.

3. In a study prepared by the Ontario Ministry of Labour, 15 unions were granted certification under section 7a from the time of passage of the 1975 amendment until March 31, 1980. Of those, only 6 had negotiated a first collective agreement. However, during the same time period, there was a 75-80 per cent success rate in the negotiation of first collective agree­ments for certified units taken as a whole.

4. While this remedy may seem to be an effective way of dealing with employer unfair labour practices at the certification stage, it certainly appears that it will be far less effective at the collective bargaining stage unless the union has a strong core of support. Bargaining is, after all, a legitimate power struggle within the adversarial system of collective bargaining in Ontario.

5. Although the petition against the union was found by the majority to not be 'numerically relevant', the fact is that 101 employees did sign the petition (including a number of part-time employees). The majority at paragraph 43 found that "the ladies who sponsored the petition were genuinely and voluntarily opposed to the union.., and that the Board is satisfied that the petitioners acted independently of their employer." This apparent solid front against the union makes the section 7a certification unreasonable in light of the 1980 amend­ment to The Labour Relations Act. Here the payment of union dues under section 36(a)(l) can compel employees, whether or not they are members of the union, to pay union dues.

6. It should be sufficient in this case to implement the orders detailed in paragraph 99 by the majority. To also certify the union under section 7a is a clear case of overkill. The union should now be given the opportunity to organize with conditions placed on the employer to prevent any further unfair labour practices.

7. Therefore, in light of the fact that the union has only 40% membership support, and 59% signed the petition in opposition to the union, a rational solution to this case would be to allow a continuation of the organizational campaign to see if the union can gain sufficient additional support to become the freely designated representative of the employees as contemplated by the Act.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUT EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALLOF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS,

WE WILL NOT ENGAGE IN SURVEILLANCE OR HARASSMENT OF EMPLOYEES FOR THE PURPOSE OF INTERFERING WITH THEIR RIGHTS UNDER THE LABOUR RELATIONS ACT,

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON EMPLOYEES, WHETHER

THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT EMPLOYEES IROM EXERCISING THEIR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT INTIMIDATE EMPLOYEES FROM FREELY GIVING EVIDENCE IN ANY PROCEEDING UNDER THE LABOUR RELATIONS ACT.

WE WILL NOT DISCHARGE OR THREATEN TO DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES,

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

WE WILL PAY FORTHWITH THE SUM OF $5OO:OO EACH IN COMPENSATION TO KELLY O'CONNOR AND BEVERLY CLARK AS ORDERED BY THE LABOUR RELATIONS BOARD.

WE WILL PROVIDE THE SERVICE EMPLOYEES INTERNATIONAL UNION FORTHWITH WITH A LIST OF THE NAMES AND ADDRESSES OF EMPLOYEES IN THE BARGAINING UNIT AND KEEP THE LIST UPDATED FROM TIME TO TIME AS ORDERED BY THE BOARD.

• 2 -

WE WILL PROVIDE REPRESENTATIVES OF THE SERVICE EMPLOYEES INTERNATIONAL UNION ACCESS

TO THE STORE DURING WORKING HOURS FOR THE PURPOSE OF CONDUCTING THREE SEPARATE MEETINGS OF THE EMPLOYEES IN THE BARGAINING UNIT, IN GROUPS OF 10 TO 15, IN THE LADIES' LOUNGE AND OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT,

WE WILL PROVIDE REPRESENTATIVES OF THE SERVICE EMPLOYEES INTERNATIONAL UNION ACCESS, WITH REASONABLE NOTICE BEFOREHAND, TO ANY MEETING OF EMPLOYEES SPONSORED BY K—MART WHICH INVOLVES THE DISCUSSION OF COLLECTIVE BARGAINING, WITH EQUAL TIME TO BE AFFORDED THE UNION REPRESENTATIVES TO RESPOND,

WE WILL GIVE THE SERVICE EMPLOYEES INTERNATIONAL UNION REASONABLE NOTICE OF ANY VISIT TO THE PETERBOROUGH STORE BY MRS. FOX OR ANY OTHER OFFICER OR AGENT OF K—MART CANADA LIMITED FOR THE PURPOSE OF DISCUSSING EMPLOYEE RELATIONS WITH MEMBERS OF THE BARGAINING UNIT AND WILL ALLOW UNION REPRESENTATIVES EQUAL ACCESS TO THE EMPLOYEES AS IS PERMITTED TO MRS. FOX OR ANY OTHER REPRESENTATIVE OR AGENT OF K-MART,

WE WILL PROVIDE THE UNION, FOR A PERIOD OF ONE YEAR FROM THE DATE OF THE BOARD'S ORDER, REASONABLE ACCESS TO ALL EMPLOYEE NOTICE BOARDS TO POST UNION NOTICES, BULLETINS AND OTHER UNION BUSINESS LITERATURE TO THE ATTENTION OF THE EMPLOYEES,

K-MART OF CANADA LIMITED (PETERBOROUGH)

PER: (AUTHOR IZED REPRESENTATIVE)

DATED: JANUARY 26, 1981

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.