International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Starplex Scientific Division of Canadian Medical Laboratories Limited, 1981 CanLII 985

Ontario Labour Relations Board

[1981] OLRB Rep. March 346

1289-80-U International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Complainant, v. Starplex Scientific Division of Canadian Medical Laboratories Limited, Respondent.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. D. Bell and B. L. Armstrong.

APPEARANCES: Maureen Kenny, Lorna Moses and Craig Mac Cormack for the complainant; Michael Gordon, Paul Wearing and Kay Starr for the respondent.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL; March 5, 1981

1. This is a complaint filed under section 79 of The Labour Relations Act in respect of alleged violations of sections 3, 56, 58 and 61 of the Act.

2. The essence of the complaint is the complainant's allegation that the respondent committed unfair labour practices by laying off sixteen of its twenty-two production employees on September 15, 1980. The complaint alleges that the employees were laid off in order to prevent them from exercising their rights under the Act, and by example, prevent future employees from exercising their rights under the Act. It further alleges that by laying off the employees, the respondent intentionally interfered with the selection of a trade union and the representation of the employees by a trade union, and that the respondent has refused to continue to employ the employees and discriminated against them because they are members of a trade union, exercising their rights under the Act. The complainant also contends that the respondent sought by those means to intimidate and coerce employees to compel them to refrain from becoming members of the trade union and to refrain from exercising their rights under the Act.

3. The hearing in this matter commenced on October 16, 1980, and continued on November 25, 26 and 27, 1980; December 1, 2, and 17, 1980; January 6, 1981 and February 5, 1981. On the first day of hearing, counsel for the respondent expressed agreement with counsel for the complainant that the burden of proof lay upon the respondent under section 79(4a) of the Act and called as its first witness Kay Starr, who is President of Starplex Scientific Division of Canadian Medical Laboratories Limited ("Starplex") and the Executive Vice-President of Canadian Medical Laboratories Limited. Counsel completed his examination in chief of Mrs. Starr and counsel for the respondent embarked upon but did not complete her cross-examination of the witness that day.

4. Prior to the continuation of hearing on November 25, 1980, counsel for the complainant, by letter dated November 18, 1980, notified the Board and counsel for the respondent that the complainant intended to allege at the continuation of hearing "the facts, acts and omissions set out in the Section 79 complaint of Craig McCormick [sic] and the union and all employees represented by the union, Board File 1672-80-U". File No. 1672-80-U is a complaint under section 79 filed on November 3, 1980 in which the complainant alleges that the respondent breached sections 3, 56, 58, 61 and 71 of the Act when Mrs. Starr issued the following memorandum dated October 22, 1980 to Craig MacCormack, a machine operator and lead hand employed by the respondent, who was in attendance on behalf of the complainant union at the October 3, 1980 hearing of the complainant's application for certification (before another panel of the Board) and at the October 16, 1980 hearing of this complaint:

"On Wednesday, October 15, 1980, I visited the plant after lunch. The machines were not attended and I found you sitting in the Shipper's Office having a soft drink. I spoke with you and asked you to insure that the machines were not left unattended. You took your soft drink and a book and proceeded to find a chair and sit in the machine area. It was obvious that someone had not been attending the machines for some time in that the cartons were overflowing. Also, the area in and around the machines were littered with plastic boxes. The visitor that I had with me slipped on a vial. It is our responsibility to insure that the area in and around the machines you look after, is clear from debris and safe for working.

Food and drink are not permitted in the plant area and there are 'no smoking' signs in the plant. The Cafeteria has been provided for Coffee Breaks and Lunch Hours. Will you please ensure that the problems outlined above are not repeated.

Thank you."

The complaint alleges that the memorandum contains false and misleading accusations and that it ignores established plant policies and practice with respect to employee breaks and with respect to smoking and consumption of food in the plant. The complaint further alleges that Mrs. Starr has harassed Mr. MacCormack because of the complainant's organization campaign, Mr. MacCormack's participation in the campaign and Mr. MacCormack's participation and anticipated participation at Board hearings.

5. At the continuation of hearing on November 25, 1980, counsel for the complainant explained that she intended to raise the matters concerning the complaint in File No. 1672-80-U "not as a separate shot at that file, but rather to go to anti-union animus". Counsel for the respondent argued that the complainant should not be permitted to cross-examine Mrs. Starr with respect to the subject matter of the allegations in that file.

6. After hearing and carefully considering the submissions of the parties, the Board ruled as follows:

"The matters upon which counsel for the complainant seeks to cross-examine are not totally irrelevant to the issues before us in the present case because the existence of anti-union animus during October of 1980 might permit the Board to infer that anti-union animus was also present at the time of the events which form the subject matter of the present complaint. Counsel must be afforded wide latitude during cross-examination.

Counsel for the respondent then requested that the case be adjourned until the following morning, that the Board grant him leave to converse with Mrs. Starr concerning the matters raised by File No. 1672-80-U notwithstanding the fact that counsel for the complainant had not yet completed her cross-examination of Mrs. Starr and further requested that he be permitted to reopen his examination in chief of Mrs. Starr. After hearing and considering the submissions of counsel concerning those requests, the Board ruled as follows:

"Having regard to all of the circumstances, we are prepared to grant an adjournment until tomorrow morning [November 26, 1980] as requested by counsel for the respondent. We are also, in the rather unique circumstances of this case, prepared to grant leave to counsel for the respondent to converse with Mrs. Starr concerning the allegations contained in File No. 1672-80-U. We are not prepared to permit counsel to reopen his examination in chief of Mrs. Starr. We emphasize to both parties that the present complaint is not being expanded to include the allegations set forth in File No. 1672-80-U; we are merely permitting counsel to cross-examine the witness concerning the subsequent events raised in that file since such subsequent events might be of some evidential value in assisting the Board to determine the respondent's motivation for the events which form the subject matter of the present complaint. We also note that since the matters pertaining to the second complaint are new matters which arise out of cross-examination, counsel for the respondent will be afforded full scope of re-examination with respect to them, and will also be afforded full scope to adduce reply evidence with respect to such new facts."

7. Section 91(12) of the Act empowers the Board to determine its own practice and procedure. Moreover, under section 92(2)(c), the Board has power to accept such oral or written evidence as it in its discretion considers proper, whether admissible in court of law or not. (See also section 15(1) of The Statutory Powers Procedure Act, 1971.) The principal issue in the present case is whether the lay-off in question was motivated (in whole or in part) by anti-union animus. In cases such as this, the Board is very often required to render a determination based on inferential reasoning as an employer does not normally incriminate himself (see Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299.) Therefore, in assessing the employer's explanation, the Board must look to all of the circumstances surrounding the acts in question including the existence of trade union activity, the employer's knowledge of it, unusual or atypical conduct by the employer following upon such knowledge and previous anti-union conduct. A further factor which may be of some relevance in determining this issue in some situations is subsequent anti-union conduct. For example, in ABC Day Nursery and Kindergarten, [1980] OLRB Rep. Apr. 391, the Board found that the evidence of the director of the respondent that he acted free from anti-union considerations with respect to two of the first persons to be terminated by the respondent was thrown in serious doubt by the anti-union considerations which the Board found to have been at least part of the motivation for certain other discharges and lay-offs which occurred subsequently. Accordingly, the Board found that the respondent had not met the evidentiary onus placed on it under section 79(4a) with respect to any of the grievors. (See also Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397, in which a finding that subsequent conduct of the respondent constituted a flagrant breach of the duty to bargain in good faith assisted the Board in assessing the bona fides of the respondent's earlier conduct which was somewhat ambiguous when considered in isolation.

8. The weight, if any, to be given to evidence of subsequent anti-union conduct will, of course, vary with the circumstances of each case. However, this is a matter to be assessed by the Board having regard to all of the evidence in a particular case. For the foregoing reasons, the Board hereby affirms its ruling of November 25, 1980 as set forth above.

9. The respondent manufactures, sells and distributes various types of disposable health care products including specimen collection systems. Since its inception in 1977, the respondent's production has increased substantially as a result of developing new products and acquiring a larger share of the market. In August of 1979, the respondent retained Price Waterhouse Associates as management consultants to study its manufacturing activities, organization and systems. The consultants prepared and submitted in December of that year a report containing recommendations designed to improve the respondent's control over its manufacturing operations. As a result of the report, the respondent implemented a new inventory control system, made some changes in job descriptions and improved its financial reporting and production scheduling.

10. The respondent has also attempted to increase its productivity through automation. Early in 1980 the respondent retained Edward Tischlinger as a consultant concerning production and personnel. Mr. Teschlinger, who is President of a pharmaceutical company located in Orillia (Intra-Medical Pharmaceuticals Ltd.), has a master's degree in engineering and has many years of experience with respect to production of health care products. After conducting time studies, assessing production and examining all of the respondent's equipment, he submitted a written "evaluation on manufacturing and a step by step priority to cure the problems". Included in that report were a substantial number of specific recommendations including sale of certain equipment, rebuilding of other equipment, automation of certain production and modification of the lay-out of the plant. A number of those recommendations were implemented during the spring and summer of 1980 at a cost in excess of $100,000, although some items had not yet been fully implemented at the time of the lay-off.

11. After receiving that report, the respondent arranged for Mr. Tischlinger to continue as its consultant. He also acted as part-time plant manager at the Starplex plant from the spring of 1980 until a new full-time plant manager was hired in November of 1980. The amount of time which Mr. Tischlinger spent at the Starplex plant was variable but averaged two or three days per week. In her testimony before the Board, Mrs. Starr described Mr. Teschlinger's duties and responsibilities as follows:

"Mr. Teschlinger was really a consultant. He couldn't hire and fire without permission from Dr. Mull [the Vice-President of Starplex and President of Canadian Medical Laboratories Limited] and I. He made recommendations to us. It was his responsibility to keep production going. He was not involved in administration, finance or personnel."

12. Mrs Starr testified that "around the end of August" she made a decision, after "an awful lot of discussion" with Dr. Mull who agreed "rather reluctantly", to lay-off employees at the Starplex plant. It was her evidence that in late August of 1980 she received a set of financial statements for Starplex for the month of July which indicated that "labour costs were out of whack". As a result, she instructed Mr. Tischlinger to prepare costings on "a couple of products" which were of particular interest to her. (Neither the financial statements nor the costings were produced as exhibits.) She also visited the plant on several occasions and observed "a lot of people that were not busy". She further testified:

"We had all this equipment which had arrived. We had farmed out the small run products to ARC Industries. Many of these people had skills which would only permit them to use their hands. They couldn't be trained for anything else because of limited education and there was nothing to train them for. It was costing us a lot of money to have people stand around. We could not afford it."

It was her evidence that she and Dr. Mull met with Mr. Teschlinger near the end of August, at which time Mr. Teschlinger stated that he had also concluded that lay-offs were necessary and was waiting for their approval.

13. Mrs. Starr told the Board that although the decision to lay-off employees was made at the end of August, it was not implemented until September 15, 1980 due to the failure of Mr. Tischlinger to carry out the instructions which she gave him at the end of August to "handle the lay-off as quickly as possible". It was her evidence that she, Dr. Mull and Mr. Tischlinger discussed the lay-offs at lunch on Tuesday, September 9, 1980:

"We discussed lay-offs on that day. I was not very happy with the fact that the decision had not been implemented. Mr. Tischlinger told me that he hadn't had time to have a piece of paper typed. I said: 'Fine. I'll type the paper and get the job done.' I instructed him that he had to handle the lay-offs and that he had to handle them that week."

14. Mrs. Starr testified that she transmitted the following memorandum to Mr. Teschlinger on the following day:

MEMORANDUM

To: Ed Tischlinger [sic] FROM: K. Starr

cc: .J. D. Mull DATE: September 10, 1980

The attached has been written for you so that now there can be no excuses. While I appreciate that this is a painful job there can be no further procrastination and the notices must be implemented tomorrow as agreed. yesterday. [sic]

If you have any questions please call me.

Thank you,

K. Starr

Attached to that memorandum was the following notice dated September 10, 1980:

"NOTICE TO ALL EMPLOYEES - STARPLEX

As many of you are aware in that many of you have commented on the fact that there is not enough work for you people to do. [sic] Our business has changed in that automation has taken over a number of the tedious manual tasks. The small volume of products that we have manufactured are no longer feasible for us to manufacture.

The task to revamp the plant and discontinue certain products is now at the point where it is necessary for us to provide lay-off notices.

Our employees will receive one week's pay regardless of whether or not they have been with the company for three months now in lieu of time.

Hopefully with the changes we will be in a position to call back many of you on a seniority and skill basis.

E. Tischlinger

Acting Plant Manager"

Mrs. Starr further testified that she did not find out until 5:00 p.m. on Thursday, September 11th that the notice of lay-offs had not been given to the employees that day. She stated that Dr. Mull advised her that notice had not been given because Mr. Tischlinger did not come down from Orillia as he was supposed to do. However, he promised that Mr. Tischlinger would be there on the following day (Friday, September 12th) to do it.

15. Mrs. Starr's evidence concerning the material events on September 12th and 15th was as follows:

"I followed up on that. On Friday the 12th I wanted to find out whether the notices had been given. Mr. Tischlinger hadn't arrived. I phoned him in Orillia and said: 'Get your behind down here and get those notices implemented or I'll do it myself.' He said 'I'll do it the first thing Monday morning.' I said 'OK'. I told him that he wasn't going to get any more money until it was done. I had a cheque on my desk drawn to his credit. I didn't talk to Mr. Tischlinger about this again until Monday. I came to work on Monday morning around 9:00 a.m. at 4500 Dixie Road. During the morning I had a meeting scheduled and had people in my office all morning. I didn't talk to Mr. Tischlinger on Monday morning. I got a message when I came back from lunch from Mr. Tischlinger. I left for lunch a little after 12:00... I was in a meeting (which included lunch) and said (to my secretary) that I was not to be disturbed… I got back at 2:00 p.m. A telephone message taken by my secretary indicated that the lay-offs had been implemented... When I came back from lunch I also found the envelope for the Ontario Labour Relations Board [containing notice of the complainant's application for certification and related documents]."

Mrs. Starr told the Board that she then called counsel and attended at his office with the documents from the Board. Upon being advised of the events which had occurred, counsel telephoned the Registrar of the Board and conveyed to him the information contained in the following letter which was dictated by counsel in the presence of Mrs. Starr and hand delivered to the Registrar later that afternoon:

"Dear Mr. Aynsley:

Re: Starplex Scientific Division of Canadian Medical Laboratories Limited and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. O.L.R.B. File No. 1194-80-R.

We act for the Respondent Starplex Scientific, Division of Canadian Medical Laboratories Limited and wish to confirm with you the thrust of the telephone advice given to you at 3:30 p.m. on Monday, September 15th, 1980.

Approximately three months ago my client undertook an extensive program to automate and change the physical lay-out of its plant located at 1810 Meyerside Drive in Mississauga, Ontario. At the same time the decision was made that a substantial percentage of the working force in the plant would be laid off when the automation program and rearrangement of plant facilities had been completed.

On Friday, the 12th day of September, 1980 the automation program and rearrangement to facilities program was completed.

On or about Tuesday, the 9th day of September, 1980 senior officials of the Company met to discuss the completion of the program and the impending lay-off of employees. At that meeting it was decided that employees would be given notice of lay-off on Friday September 12th, 1980 and that the advice to employees would be implemented by the acting Plant Manager, Ed Tischlinger.

Mr. Tischlinger, who lives in Orillia, Ontario and who is in charge of another business venture in that municipality was not able to be in Mississauga for the purpose of implementing the lay-off as aforesaid. Accordingly the implementation of the lay-off in question was delayed until Monday, September 15th, 1980.

Accordingly notice of lay-off was given to the employees of the Company at about the hour of 11:00 a.m. on Monday, September 15th, 1980 by the Foreman of the employees in question (Pete Morley) upon the instructions of Mr. Tischlinger.

Sometime on Monday, September 15th, 1980 Quick Messenger Service Canada Limited attempted to serve documents from the Ontario Labour Relations Board upon my client at 1810 Meyerside Drive in Malton, Ontario.

Sometime on September 15th, 1980 the said documents were delivered to the executive offices of my client Company located at 4500 Dixie Road in Mississauga, Ontario and directed to the attention of the Executive Vice-President of the Company, Mrs. Starr. A photostatic copy of the front of that envelope is enclosed for your convenience. In that connection I would draw to your attention that the plant of Starplex Scientific is located at 1810 Meyerside Drive in Mississauga, Ontario.

In any event someone apparently signed the Quick Messenger Service invoice number T410400 on behalf of the Company. I am instructed that the signature in question is not recognized as being the signature of anyone in the employ of the Company. A photostatic copy of the Quick Messenger Service invoice is enclosed for your convenience. The document in question was brought to the attention of Mrs. Starr at about the hour of 2:00 p.m. on Monday, September 15th, 1980. Mrs. Starr immediately contacted counsel and arrived in our offices at about the hour of 3:15 p.m.

As soon as we became aware of the circumstances pertaining to the lay-off in this matter and in view of the application for certification we immediately telephoned you to apprise you of the circumstances herein.

I should tell you that Mrs. Starr has not as of this writing posted the notice to employees (Form 5) because of her concern to cut through traffic and get to counsel's office expeditiously.

I have advised her that she must immediately return to the plant and post the documents in question and return the Form 47, Return of Posting card, to you.

In the circumstances I am drawing this situation to the immediate attention of the Board and would request that this letter be made a part of the record in this proceeding.

The reply to application for certification will be filed in due course and in accordance with the Board's rules."

Mrs. Starr told the Board that there was nothing in that letter which to her knowledge was incorrect. She also testified that she was unaware of any union organizational activities concerning the employees of Starplex until she received the Board documents relating to the complainant's application for certification. She denied that the respondent had at any time discriminated against employees because they were members of a trade union and specifically denied that the respondent intended to interfere with the complainant trade union by the impugned lay-offs. She further advised the Board that laying off the sixteen employees saved the respondent $560 per day.

16. Mrs. Starr testified that in her capacity as Executive Vice-President of Canadian Medical Laboratories Limited (of which Starplex is a division) she has dealt with the Ontario Public Service Employees Union in two bargaining units (one in Hamilton and the other in Simcoe) for over three years. She characterized her relationship with that trade union as being "very, very amicable".

17. Although Mrs. Starr indicated in her examination in chief that she did not care whether the employees of the respondent were members of a trade union or not, she reacted quite emotionally and evasively during cross-examination when shown a copy of a book entitled "Making Unions Unnecessary", initially she merely acknowledged that she "might have seen it" but under further cross-examination she conceded that she had read it and that it was one of the books in her personal library. As suggested by the title, the subject matter of that book (which was entered as an exhibit) is "concepts and strategic approaches leading to the attainment of the 'goal': no unions ". It emphasizes what it describes to be the "positive approach" of "closing the gap between management and labour" by improving communications, permitting employees to participate in job and systems design, and tailoring job opportunity and remuneration to accommodate disparate employee value systems so as to "make it unnecessary for employees to look to a union for the things they aren't getting from management". During cross-examination, Mrs. Starr was asked if she recalled giving a copy of the book to Mr. Werk (the former manager of the Starplex plant), to which she replied: "No, I did not give him that book." However, during re-examination when asked by counsel for the respondent if she had caused the book to be sent to Mr. Werk, she replied:

"I caused distribution of the book. Mr. Werk probably would have received a copy. It would have gone to managers and supervisors. We have an educational program. This was one of the books. But that book would not have been sent to all employees. It would have been too expensive..."

The respondent entered as exhibits in excess of twenty pamphlets and booklets (concerning a variety of topics including employee loyalty, job simplification, the importance of company profits, human rights, workman's compensation, driving safety, telephone manners, Canada Pension Plan and employment standards). Mrs. Starr testified that those were the "kinds of things distributed to all employees" as part of the respondent's educational program. However, the evidence of employees of the respondent who testified before the Board and the evidence of foreman Peter Morey indicates that distribution of such materials to employees was far more limited than Mrs. Starr suggested in her testimony. Moreover, the other materials allegedly distributed to employees are substantially different from the book in question which was distributed only to members of management. Mrs. Starr's demeanour and evasiveness during cross-examination concerning the book lead the Board to conclude that her statement in examination in chief that she did not care whether employees were members of a trade union or not, was lacking in candour. Her lack of candour concerning that matter together with the substantial conflicts between her evidence and the evidence of other management witnesses set forth below leads us to conclude that little weight can be given too much of her evidence.

18. Mr. Tischlinger also testified on behalf of the respondent. It was his evidence that he had suggested that the plant be totally closed down for four weeks but that this was "out of the question due to orders" so he suggested that the work force be reduced instead. (Foreman Peter Morey, who was called as a witness by the complainant and who impressed the Board as a very candid and credible witness, confirmed that Mr. Tischlinger had said in July or August of 1980 that if he had his way, he would have a plant shutdown until all of the modifications to the plant were completed, but that Dr. Mull did not agree with him about shutting it down.) Accordingly, Mr. Tischlinger hand printed and sent the following memo to Dr. Mull on August 28, 1980:

"Need your permission to lay-off people, except for skeleton crew to complete renovation and repair equipment, and rework moulds. Lay-off would be for 3-4 weeks depending on equipment repair and time study of assemblies.

(signed) Ed T."

He informed the Board that Mr. Morey and Mr. MacCormack had suggested to him that employees should be laid off because many of them were "just standing around unoccupied". (In his evidence, Mr. Morey confirmed that he had suggested to Mr. Tischlinger in August that the respondent "had too many machine operators" and "could afford to lay-off a couple"). Mr. Tischlinger testified that although he received permission to implement the lay-offs on September 9, 1980 at the aforementioned luncheon meeting and was told at that time that he was to implement the lay-offs immediately, he "just didn't follow through due to pressing personal circumstances" concerning his own business and customers and "just didn't get around to it" until September 15, 1980, despite his meeting with Dr. Mull and Mrs. Starr on September 9, 1980 and the memo dated September 10, 1980 (set forth above) from Mrs. Starr. Contrary to Mrs. Starr's evidence that the employees would not be recalled due to their lack of education which, in her view, would preclude them from being restrained to operate the new equipment, Mr. Tischlinger testified that "the people who were laid off are supposed to be called back". In response to a question concerning the timing of the recalls, he testified (on November 27, 1980):

"It's hard to say. It depends on when the specialized equipment arrives. It could be February or March [of 1981]. Delivery time is three to six months".

19. Mr. Tischlinger testified that he arrived at the plant about 9:00 a.m. on September 15th. He stated that he was supposed to meet with Dr. Mull about the lay-offs but was unable to do so when Dr. Mull arrived at 9:15 a.m. because he (Mr. Tischlinger) was busy in the plant attempting to repair an injection moulding machine which had broken down. It was his evidence that Dr. Mull left him to work along with Mr. Morey and Mr. MacCormack in an attempt to repair that machine which produced one of the components of the respondent's main product, the B900 speciman container. He further testified that the meeting was postponed until Dr. Mull returned at approximately 10:30 a.m. at which time Mr. Tischlinger, in the presence of Dr. Mull, went over a list of the Starplex employees with Mr. Morey to decide how many employees would be laid off and which employees would be retained in order to maintain production, having regard to their length of service and ability. He then asked Mr. Morey to inform the affected employees of the lay-offs.

20. It was Mr. Tischlinger's evidence that he was not aware at the time of that meeting that the complainant union had applied for certification. He told the Board that he did not become aware of the certification application until the afternoon of September 15th:

"I learned about the application for certification between 1:00 and 1:30 that afternoon when a Mrs. Moses [a representative of the complainant union] called. She asked me if I was aware that there was a union trying to organize the shop. I said: 'No'. I told her that I was the wrong one to talk to as I was just a consultant and didn't get involved in the administration of the company."

Mr. Tischlinger also told the Board that he had been a member of the United Steelworkers Union and had been a union steward for two years in the 1950's.

21. Dr. Mull testified that he had been hoping that it would not be necessary to lay-off any employees and, accordingly, had not given Mr. Tischlinger any permission to lay off employees prior to September 9, 1980. He confirmed that Mr. Tischlinger was told at the September 9th luncheon meeting to proceed immediately to make the lay-offs which he (Mr. Tischlinger) felt to be necessary but that Mr. Tischlinger failed to do so. He further confirmed that Mr. Tischlinger's delay in implementing the lay-offs due to other commitments was a source of great dissatisfaction to himself and Mrs. Starr. His evidence concerning the events which occurred on September 15th prior to the lay-offs parallels Mr. Tischlinger's:

"I attended at the plant on Monday morning September 15th. I walked in at 9:15 and looked first for [Mr. Tischlinger]. He was up to his elbows with machine problems on our number one Engel. He was working with Pete [Morey] and Ed MacCormack. I said to him: 'When are you going to be free?' He said: 'About half an hour.' I turned around. The front office was all upside down as the carpenters were in there tearing walls out. I went down the street to a restaurant for a coffee and read my paper. Then I came back at 10:15 and went to Ed [Tischlinger] and said: 'Let's get this over.' He was free. He called Pete Morey into the office and the two of them sat at a desk. The two of them went over a list of [employees]. I stood at one side just making sure it was done. They went over the list and decided who should be let go. They were doing it on seniority."

It was Dr. Mull's evidence that the respondent hopes to recall some of the employees to train them on the new machines as they become operational.

22. Craig MacCormack contacted Mrs. Moses during the summer of 1980 "to find out about forming a union". After discussing the situation, they decided to "wait until after the holidays to start the drive". During the first two weeks of September, employees signed membership cards provided by Mrs. Moses. Mr. MacCormack served as the collector on more than half of the cards. He testified that the cards were signed confidentially and that to the best of his knowledge there had been no breach of that confidentiality. That the respondent had no knowledge of any union organizational activities prior to September 15, 1980 was confirmed by the evidence of Mr. Morey; the fact that Mr. Morey, who enjoyed a close working relationship with the employees in the plant, was unaware of any such activities makes it highly unlikely that any other member of management such as Mr. Tischlinger, Mrs. Starr or Dr. Mull, whose contact with the employees was much less frequent and intimate than Mr. Morey's, was aware of any organizational activities prior to receipt of the documents from the Board on September 15th.

23. On Friday September 12th, Mr. MacCormack worked at the Starplex plant from 4:00 p.m. to midnight. Shortly after 7:00 p.m. he left the production area of the plant and entered the office to check the front door to make sure that it was locked. (It had been Mr. MacCormack's practice to check the door each evening when he was working on the afternoon shift since the time when Dr. Mull had found the door unlocked on a summer evening during a shift of which Mr. MacCormack was "in charge" as lead hand.) Upon hearing a knock he opened the door and received an Ontario Labour Relations Board envelope from a courier. The envelope was addressed to "Starplex Scientific Division of Canadian Medical Laboratories Ltd., 1810 Meyerside Drive, MALTON, Ontario, LST 1B4". After signing a receipt for it, Mr. MacCormack placed the envelope on secretary-receptionist Lynda Wessell's desk.

24. The plant did not operate on September 13th or September 14th. On Monday September 15th, Mr. Morey arrived at work at 7:30 a.m. He was in the office at 9:00 a.m. when Mrs. Wessell began going through the mail at her desk. When she came upon the envelope from the Board, she asked Mr. Morey what it was. He said that he did not know and suggested that she open it. (The respondent's mail opening procedure is that if a piece of mail is merely addressed to the company, Mrs. Wessell opens it unless it is marked "Personal and Confidential"; if a piece of mail is addressed to a specific person, Mrs. Wessell forwards it unopened to that person.) Mrs. Wessell proceeded to open the envelope and glanced at its contents but still did not know what it was. Accordingly, she handed it to Mr. Morey who "read the top of it" and said: "Well it's got something to do with a union. I'd better give it to Ed [Tischlinger] when he comes in." Mr. Morey's evidence concerning the events which followed was:

"Just as I said that I believe Ed just came in the door. I asked if I could see him. He said: 'Yes'. We went into the office and I gave it [the contents of the envelope] to him. It wasn't in the envelope when I gave it to him. I left the envelope [Exhibit #5] on [Lynda Wessell's] desk when I gave it to him. I told him that I didn't know what it was. I said, 'It's got some union form', and just handed it to him. He very quickly briefed through it-just the first couple of pages. He said he'd better leave it for Dr. Mull to see. He placed it on the corner of the desk. Nothing further was said. I left the office. I went back to the plant."

During cross-examination Mr. Morey indicated that Mr. Tischlinger had looked at those documents for approximately twenty seconds. Mr. Morey also testified that upon returning to the production area, he (Mr. Morey) "mentioned to a couple of people that [the company] had just got something to do with a union" but said that he was not certain what it was all about. Mr. MacCormack was apparently one of those to whom he spoke. He also said to the shipper and Mr. MacCormack: "I wouldn't be surprised if there is a big lay-off now or if they [the respondent] shut the whole plant down." Under cross-examination, Mr. Morey acknowledged that he had no authority to make a statement of that nature. He further acknowledged that no one from the management of the respondent had ever told him that if a union came in, employees would be laid off or the plant would be shut down. His only explanation for making that statement was: "I didn't know what was going to happen. That was the first thing that came into my mind. I've never had experience with a union before. I guess I was kind of shocked about the union part too."

25. Between 10:00 and 10:30 that morning, Mr. Tischlinger called Mr. Morey into his office. Dr. Mull was already in the office at that time. Mr. Tischlinger explained to Mr. Morey that the respondent was going to "lay-off anybody that they didn't really need" because "with all the work going on, everybody's in everybody's way" and because "there was a slight shortage of work". Mr. Tischlinger and Mr. Morey then reviewed a list of the employees: Mr. Morey told Mr. Tischlinger that the best female workers were the ones who had been employed by the respondent the longest. Mr. Morey also suggested that Mr. MacCormack be retained rather than another machine operator with longer service because Mr. MacCormack was more knowledgeable and reliable. Thus, four female production employees, Mr. Morey and Mr. MacCormack were selected to continue working and all the other production employees were notified by Mr. Morey shortly after noon that they were laid off "for about two to three weeks". One of the employees included in the lay-off was lead hand Tom Ikeno. At approximately 2:30 that afternoon, Mr. Morey telephoned Mr. Ikeno, who was scheduled to commence work at 4:00 p.m., and told him that he would not have to come to work because the afternoon shift had been laid off. Mr. Morey advised him that he (Mr. Morey) had told Mr. Tischlinger that he thought that Mr. Ikeno's lay-off was a mistake but that it had "gone through anyway". Dr. Mull telephoned Mr. Ikeno at approximately 6:00 p.m. and told him that he had been laid off by mistake and that he wanted him to return to work Tuesday, September 16th on the day shift. Shipper Vishnu Baldosingh was also subsequently recalled. Mr. Morey's testimony concerning the recall of Mr. Baldosingh was as follows:

"A while after [the recall of Mr. Ikeno] I suggested to Ed [Tischlinger] that he call the shipper back because we really needed a shipper. He said: 'Yes. I didn't really intend to lay the shipper off either."

26. During cross-examination Mr. Morey stated that on the basis of what he had seen in the plant up to September 15th, laying off employees seemed like a reasonable thing to do. In re-examination he explained his earlier response in the following words: "At the time [September 15] it would have been reasonable for ten to twelve, say ten people to be laid off, giving us a few more hands... At the time it wouldn't have hurt us."

27. Mrs Wessell was also called as a witness by the complainant. She confirmed that after she opened the envelope from the Board on September 15th in the presence of Mr. Morey, he took the contents into the office which was being used by Mr. Tischlinger. She identified Exhibit #5 as the envelope in question but stated that "the line going through the address" and the words "MRS. STARR 4500 DIXIE RD. MISS." hand printed in the upper left corner of the front of the envelope were not on it at the time she removed the documents from it. It was her evidence that she threw the envelope into the garbage where, to the best of her knowledge, it remained when she left work at 5:00 p.m. that day. She was unable to identify whose hand printing was on the envelope. (She stated that she was familiar with the penmanship of Dr. Mull and Mrs. Starr since she had worked for them at 4500 Dixie Road for six months before her transfer to the Meyerside Drive plant.)

28. Mrs. Wessell testified that about fifteen minutes after Mr. Morey brought the documents into Mr. Tischlinger's office, Dr. Mull came up to the office to speak to Mr. Tischlinger. It was her evidence that Dr. Mull was in the office with Mr. Tischlinger and the respondent's salesman for "about ten or fifteen minutes"; when he came out of the office "he seemed a little upset" and said to the salesman: "Cancel the meeting. I haven't got time." In his testimony, Dr. Mull denied that he was upset. It was his evidence that he told the salesman to cancel the meeting which had been scheduled for that morning with one of the respondent's distributors because he (Dr. Mull) had forgotten to obtain notarization of the certificate of continuing guarantee which the distributor wanted. It was Dr. Mull's evidence that he "had cancelled about eight times before".

29. The complainant called as an expert witness an experienced forensic consultant who expressed the opinion that the person who hand printed the words "MRS. STARR ... MISS." on the board envelope (Exhibit #5) was the same person who had printed the memo (quoted earlier in this decision) dated August 28, 1980 from Mr. Tischlinger to Dr. Mull. Counsel for the respondent asked the Board for a ruling as to whether it would be open to counsel for the complainant to argue on the basis of that evidence that Mr. Tischlinger was the author of the words hand printed on the envelope and to comment adversely upon Mr. Tischlinger's credibility on the basis thereof. It was his submission that counsel should not be permitted to do so because she had not during her cross-examination of Mr. Tischlinger asked him anything about the envelope or whether he had hand printed any words on it. After hearing and considering the submissions of the parties concerning that matter, the Board ruled as follows on January 6, 1981:

"The Board will permit counsel for the complainant to rely upon the expert evidence adduced this morning and to comment upon Mr. Tischlinger's evidence concerning his knowledge of the application for certification in light of that expert testimony. However, we are also of the view that principles of fairness and natural justice require that the respondent, which proceeded first with its case, be afforded an opportunity to adduce reply evidence concerning this matter. In the circumstances of this case, and particularly in view of the failure by counsel for the complainant to cross-examine Mr. Tischlinger concerning the envelope and the printing contained thereon, the Board will exercise its discretion to grant an adjournment to the respondent to give it an opportunity to recall Mr. Tischlinger (who is presently in Florida on business) with respect to the printing on the envelope and also to adduce expert evidence concerning that printing if it chooses to do so after having an opportunity to consult with such an expert. However, any other reply evidence which the respondent wishes to adduce must be adduced today."

30. At the continuation of hearing on February 5, 1981, Mr. Tischlinger testified that it was not his hand printing which appeared on the envelope. He further stated that he did not know whose hand printing it was. Counsel for the complainant chose not to cross-examine him with respect to that evidence. The respondent also called as an expert witness an experienced examiner of questioned documents who expressed the opinion that the envelope and the memo were hand printed by two different people.

31. During November the respondent used a number of temporary employees to perform certain work in the plant. Four temporary employees worked for one day on a "B900 loose cap order"; after checking the B900 vials for cracks, they put the caps on loosely. One of the temporary employees worked at the plant for several days on that order. He also "broke down" some boxes and helped the shipper. Mr. MacCormack testified that any of the employees who were laid off could have done the loose cap order work. This evidence was not refuted by the respondent nor was Mr. MacCormack's evidence that some of the employees who were laid off were "a lot faster" than the temporary employees at checking and capping vials.

32. It appears from the evidence that some of the grievors have been recalled. However, the Board was not provided with the recall details in view of the agreement of the parties that in the event that a violation of the Act was found to have occurred, the Board would remain seized to resolve any issues concerning quantum of compensation which the parties were unable to resolve through agreement.

33. Section 79(4a) of the Act provides:

" On an inquiry by the Board into a complaint under subsection 4 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act of employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization."

Certain of the alleged violations of the Act in this matter cast upon the respondent the burden of proving that it did not act contrary to the Act, namely, the alleged violations of sections 58 and 61 of the Act; section 79(4a) does not apply to the other alleged violations of the Act (see Craftline Industries Limited, [1977] OLRB Rep. Apr. 246). Accordingly, the Board will apply the "reverse onus" only to those allegations to which section 79(4a) has application.

34. In the Barrie Examiner case, [1975] OLRB Rep. Oct. 745, the Board stated:

"...the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred".

Similar considerations are applicable to lay-offs. In Tillotson-Sekisui Plastics Limited, [1979] OLRB Rep. Oct. 1027, a case involving a complaint in respect of the lay-off of twenty-three employees, the Board stated (at paragraph 11):

"This matter falls within the ambit of section 79(4a) which places the burden of proof in a complaint such as this upon the employer. The Board referred to the nature of the onus which falls to the respondent in these matters in the Pop Shoppe (Toronto) Limited case [1976] OLRB Rep. June 299, wherein at paragraph 4 the Board stated:

'Section 79(4a) of The Labour Relations Act places the legal burden upon the employer in complaints such as the one before us, to satisfy the Board, on the balance of probabilities, that it has not violated the Act. In order for the Board to find that there has been no violation of the Act it must be satisfied that the employer's actions were not in any way motivated by anti union sentiment; the employer's actions must be devoid of 'anti-union animus'. (See the Bushnell case (1974), 4 O.R. (2d) 332.) The employer cannot engage in anti union activity under the guise of just cause or under the guise of business reasons. Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti-union motive and which the evidence establishes to be the only reason for its conduct. (See Barrie Examiner [1975] OLRB Rep. Oct. of 745 and The Corporation of the City of London [1976] OLRB Rep. Jan. 99.)'"

(See also Knud Simonsen Industries Limited, [1980] OLRB Rep. Oct. 1466, and B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645.)

35. It was submitted on behalf of the respondent that the impugned lay-offs could not have been motivated by anti-union animus because management was unaware of the complainant's application for certification at the time the employees were laid off. However, having regard to all of the evidence before us, we are not satisfied that the Board documents had not come to the attention of management by the time of the lay-off. Accepting as we do the highly credible evidence of Mr. Morey that he handed the Board documents to Mr. Tischlinger and, in doing so, referred to them as a "union form", at which point Mr. Tischlinger looked through the documents for approximately twenty seconds before placing them on the corner of his desk and saying that he had better leave them for Dr. Mull to see, and having regard to the relative credibility of the witnesses who testified before us, we are unable to give credence to the testimony of Mr. Tischlinger and Dr. Mull that those documents were not brought to Dr. Mull's attention prior to the time of the lay-offs on September 15th. Mrs. Wessell's credible testimony that Dr. Mull appeared to be upset when he left Mr. Tischlinger's office after ten or fifteen minutes supports the inference that Mr. Tischlinger brought the documents to Dr. Mull's attention as Mr. Tischlinger told Mr. Morey he would and as would be quite natural for the consultant and acting plant manager to do under the circumstances. Moreover, even if we were to disregard Mrs. Wessell's evidence on this point and accept the evidence of Dr. Mull and Mr. Tischlinger that their first encounter on the morning of September 15th occurred while Mr. Tischlinger was too busy attempting to repair a machine to meet with Dr. Mull at the time, the evidence clearly indicates that Dr. Mull was already in Mr. Tischlinger's office when Mr. Morey was summoned to the office to assist in selecting employees to be laid off. Having regard to all of the circumstances including Dr. Mull's demeanour while testifying concerning the events of September 15th, we do not believe that Dr. Mull was unaware of the Board documents when Mr. Morey came to Mr. Tischlinger's office between 10:00 and 10:30 that morning.

36. Although we are not satisfied on the evidence before us that Mr. Tischlinger was the person who struck out the Meyerside plant address on the Board envelope and printed Mrs. Starr's name and office address on it, we are left without explanation with respect to how the documents came to be removed from Mr. Tischlinger's desk, the envelope came to be removed from Mrs. Wessell's waste basket, and the documents and envelope came to be delivered to Mrs. Starr's office at or before 2:00 p.m. that day. This substantial gap in the respondent's case serves to emphasize the unsatisfactory nature of its evidence concerning management's awareness and treatment of the Board's document's on the morning of the lay-offs.

37. There are also other circumstances which support the Board's conclusion that the respondent has not established on the balance of probabilities that no anti-union animus existed in the mind of the respondent at the time of the lay-offs. The evidence of the respondent's witnesses was in conflict concerning when the decision to lay-off employees was actually made; Mrs. Starr testified that the decision was made at the end of August but Dr. Mull and Mr. Tischlinger testified that it was not made until September 9th. There was also conflict of their evidence concerning the reasons for and probable duration of the lay-off. Mrs. Starr indicated that the reasons were excessive labour costs and employee redundancy due to automation of the plant. She intimated that the lay-offs would be permanent since many of the employees could not be trained for anything other than manual operations because of their limited education. Mr. Tischlinger, on the other hand, testified that the purpose of the lay-off was to permit the plant renovations to be completed, equipment to be repaired and moulds to be reworked. It was his understanding that the lay-off would last for only two or three weeks. Dr. Mull also saw the lay-off as a relatively short term measure which would be concluded by recalling employees to train them on the new machines as they became operational.

38. The Board is satisfied that some of the grievors would have been laid off on September 15th regardless of whether the respondent had received notice of application for certification that morning. This conclusion is supported by Mr. Tischlinger's memo dated August 28th to Dr. Mull and by the evidence that a decision to lay-off some employees was made by management at the luncheon meeting on September 9th. However, having regard to all of the evidence before us, we find that the respondent was motivated at least in part by anti-union sentiment to lay-off more employees than it would have laid off if it had not received the Board documents that day. Although the memo of August 28th refers to maintaining a "skeleton crew", the witnesses called by the respondent conceded that there had been no discussion prior to September 15th of the actual number of employees to be laid off. During cross-examination concerning her late August discussion of potential lay-offs at the Starplex plant, Mrs. Starr stated that the subject "wasn't a significant matter; it was just one of a number of things". This statement lends some support to the contention by counsel for the complainant that although some lay-offs may have been contemplated prior to the time at which the respondent became aware of the application for certification, the respondent did not plan such an extensive lay-off involving as it did over two-thirds of the production workers at the plant. The attempt by management witnesses to justify the lay-off by referring to Mr. Morey's statement that there were too many employees also supports our conclusion that a smaller lay-off was contemplated; as indicated above, Mr. Morey had merely suggested during the summer of 1980 that the respondent could afford to lay-off "a couple" of machine operators. It is also evident from the testimony of Mr. Morey that the number of employees laid off on September 15th was greater than could be justified by bona fide business considerations. As indicated above, he testified that it would have been reasonable for the respondent to lay-off ten or twelve employees on September 15th, not sixteen. The "mistaken" lay-off of Mr. Ikeno provides further support for our finding that an unjustifiably large number of employees were laid off that morning, as does the subsequent recall of the shipper whom Mr. Tischlinger also "didn't really intend to lay-off."

39. Having regard to all of the evidence before us, and having particular regard to the highly credible evidence of Mr. Morey, the Board finds that at most twelve of the sixteen grievors would have been laid off on September 15, 1980 if the respondent had not received notice of the complainant's application for certification that day. Accordingly, the Board finds that the respondent breached sections 58 and 61 of the Act by laying off four of the sixteen grievors that day. In the circumstances of this case, it is necessary for the Board to make any findings with respect to Mrs. Starr's motivation for forwarding the memo dated October 22, 1980 to Mr. MacCormack (which action forms the subject matter of the complaint in File No. 1617-80-U) and, accordingly, the Board declines to do so.

40. The Board therefore orders:

(i) that each of the four grievors with the longest respective periods of service with the respondent be reinstated in active employment by the respondent forthwith;

(ii) that the said four grievors be fully compensated by the respondent for all lost wages and benefits sustained by them between September 14, 1980 and their respective dates of reinstatement in active employment;

(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Practice Note. 13 dated September 8, 1980; and

(iv) that the respondent post copies of the attached notice marked "Appendix", after being duly signed by the respondent's representative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty 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 physical access to the premises shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.

41. The Board remains seized of this matter in the event that a dispute arises concerning the implementation of the Board's order.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

1. I dissent.

2. While I am in agreement with the majority's basic characterization of most of the facts of this case, I find it impossible to accept the approach taken with regard to remedy.

3. The so-called "reverse onus" as set out in section 79(4a) of The Labour Relations Act places an extremely heavy evidentiary burden on the employer. This burden is justified by sound labour relations policy considerations. As the Board stated in the case of Modern Pattern Works Ltd., [1976] OLRB Rep. Feb. 67:

"The reverse onus acknowledges that the reasons for the employer's action lie peculiarly within its knowledge."

In the case of I C.B. Warehousing, [1976] OLRB Rep. Oct. 621 the Board makes the following observation and direction:

44. Having regard to all of the evidence, therefore, the Board is left in doubt as to whether or not the grievor was discharged for union activity. Given the reverse burden provision of section 79(4a), when the Board entertains such doubt at the end of the case, it must resolve the doubt in favour of the complainant.

45. Accordingly, the Board directs that the respondent forthwith reinstate Mr. Robert Lahaie in the same position and with the same working conditions and benefits which he had on the date of his discharge and that he be compensated for lost wages. The Board remains seized of the matter to deal with any disagreement that may arise between the parties with respect to the assessment of compensation or any other aspect of the implementation of this order.

46. In the case at hand, the majority has found that "the respondent has not established on the balance of probabilities that no anti-union animus existed in the mind of the respondent." It was also noted that there was conflict in the evidence concerning the reasons for and probable duration of the lay-offs. Given the unsatisfactory state of the respondent's evidence, I cannot accept the majority finding that "some of the grievors would have been laid off on September 15th regardless of whether the respondent had received notice of application for certification that morning."

47. Where an employer has created a situation of uncertainty, it should be the employer who bears the burden of that uncertainty. Since there is a lack of satisfactory evidence with regard to the lay-offs, this uncertainty should be resolved in favour of the employees who have exercised their rights under The Labour Relations Act - not the employer who has been found to have violated that Act.

48. For this reason, I would have ordered that all employees be re-instated with appropriate compensation.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY LAYING OFF FOUR OF THE SIXTEEN GRIEVORS WHO WERE LAID OFF ON SEPTEMBER 15, 1980,

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN AND PARTICIPATE IN THE

LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY ANO ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS,

WE WILL NOT LAY-OFF OR FAIL TO RECALL FROM LAY-OFF ANY EMPLOYEE BECAUSE HE HAS SELECTED THE INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AS HIS EXCLUSIVE BARGAINING REPRESENTATIVE.

WE WILL RECALL TO ACTIVE EMPLOY~ENT EACH OF THE FOUR GRIEVORS WITH THE LONGEST RESPECTIVE PERIODS OF SERVICE WITH THE COMPANY,

WE WILL PAY THE FOUR GRIEVORS WAGES AND OTHER BENEFITS LOST BY THEM (PLUS INTEREST) AS A RESULT OF THE VIOLATION OF THE ACT FOUND BY THE BOARD.

STARPLEX SCIENTIFIC DIVISION OF

CANADIAN MEDICAL LABORATORIES

LIMITED

DATED: March 5, 1981 PER: (AUTHORIZED REPRESENTATIVE)

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.