[1982] OLRB Rep. April 552

1792-81-R Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Applicant, v. Charterways Transportation Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. Wilson and C. A. Ballentine.

APPEARANCES: J. McNamee for the applicant; Thomas Stefanik and Bill Heslop for the respondent; no one appeared for the objectors.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER J. WILSON; April 1, 1982

1. This is an application for certification in which the applicant trade union asks the Board to apply the provisions of Section 8 of the Act.

2. Having regard to the agreement of the parties the Board further finds that:

(1) all employees of the respondent at Cooksville, Ontario, save and except supervisors, foremen, office staff and persons regularly employed for not more than 24 hours per week (hereinafter referred to as bargaining unit #1), and

(2) All employees of the respondent at Cooksville, Ontario regularly employed for not more than 24 hours per week, save and except supervisors, foremen, persons above the rank of supervisor or foreman, and office staff (hereinafter referred to as bargaining unit #2),

constitute units of employees of the respondent appropriate for collective bargaining.

5. The Board is satisfied on the basis of all the evidence before it that less than forty-five per cent of the employees of the respondent in each of bargaining units #1 and #2 at the time the application was made, were members of the applicant on November 27, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. Subject to whatever determination is made under section 8 of the Act, the union does not meet the statutory membership requirements for either a vote or outright certification in either of the two bargaining units.

6. There are two preliminary matters to be disposed of before turning to the merits of this application. In a decision dated January 12, 1982 a panel of the Board comprised of the same chairman and labour representative, but a different management representative from the one assigned to hear this case, found that the company's decision to terminate Donna Fowler, a bargaining unit employee, violated section 66 of the Act. At the outset of the hearing in this matter, counsel for the respondent employer asked to have the panel assigned to the case replaced by a panel comprised of members who had had no involvement in the prior matter. He argued that in finding a company violation of the Act in the prior matter, findings of credibility were made. Counsel advised that he would be calling the same witnesses and, in these circumstances, wanted a panel comprised of members who had not already made findings of credibility in respect of his witnesses. We hereby affirm our oral ruling to deny the respondent's request. The prior exercise of a panel's quasi judicial responsibilities does not disqualify the members of that panel from hearing a related matter. The prior exercise of quasi judicial authority does not support a claim of apprehended bias.

7. The second preliminary matter relates to a series of particulars filed by the respondent employer. The respondent filed 14 paragraphs of particulars describing acts of vandalism and sabotage done to its buses during the period of the union's organizing campaign and describing threats made to persons who were opposed to the trade union. Nowhere in these particulars is there set out the name of any person who is alleged to have engaged in this vandalism or sabotage or made these threats. The Board ruled at the hearing that the respondent was free to lead all relevant evidence in defence of the allegations against it and to cross-examine on all matters relevant but that in the absence of a formal complaint it could not use these proceedings to establish alleged unlawful acts unrelated to the issues raised by this complaint. During the course of the hearing, an issue arose as to whether evidence could be led with respect to the incidents of vandalism and sabotage which took place during the relevant period as a defence to the allegation that the company carried on an inordinate number of meetings with individual employees during this period. The panel ruled that the respondent could adduce this evidence for the purpose stated.

8. There are two conflicts in the evidence before us which we must resolve. The first relates to what was said between Mr. A. Hoornweg, the terminal manager, and Mr. Dan Harris, a bargaining unit employee, in Mr. Hoornweg's office on September 9, 1981. Mr. Harris testified that he was called into Mr. Hoornweg's office on that day by Mr. Evan Weston, the operations manager. It is his evidence that in the presence of Mr. Weston, Mr. Hoornweg said that he had been informed by a reliable source that he was trying to get a union in the company. Mr. Harris testified that he denied the allegation following which Mr. Hoornweg discussed the pros and cons of unionization, said the company would not like to see a union established and suggested the formation of an employee association. Mr. Harris estimated that he was in Mr. Hoornweg's office for about 2-3/4 hours. Mr. Hoornweg gave a different account of his September 9, 1981 meeting with Mr. Harris. It is his evidence that he had been told by a bingo driver that Mr. Harris had been seen collecting names of other drivers and that he wanted to find out what he was doing. Mr. Hoornweg testified that a great deal of soliciting goes on amongst the drivers in connection with lottery tickets, hockey pools, catalogue selling etc. but that he had heard that some drivers were organizing sex parties and selling sexual aids and that it was his business to know what Mr. Harris was doing. Mr. Hoornweg admitted that drivers are not usually called in to account for soliciting but explained that he was concerned about the "sex thing" that had come up late in the summer. It is Mr. Hoornweg's evidence that Mr. Harris denied that he had been collecting names and then informed him that "a lot of people in our company would like to get an Association started." Mr. Hoornweg testified that he then told Mr. Harris about an unsuccessful attempt to form an employee association in 1977 and advised him that if the employees wanted an association they should get proper advice. Mr. Hoornweg estimated the length of the meeting at 45 minutes. He acknowledged that Mr. Weston was present but could not recall who it was who informed him that Mr. Harris was collecting employee names. Mr. Weston did not appear to testify. It is to be observed that the union commenced to sign employees into membership on September 8, 1981 and that 7 of the 56 cards filed in support of the application were signed on that day and two more were signed the following day.

9. In all cases where a finding of credibility must be made, the Board considers the demeanor of the witnesses as they give their evidence, weighs the evidence against what best accords with reason and the objective facts, and takes into account any inconsistencies, contradictions or lapses of memory which call into question the accuracy or truthfulness of the testimony. Where, as in this case, there is a person who has witnessed the conversation or event giving rise to the conflict and that person is not called as a witness, the Board is entitled to draw an inference adverse to the party who could reasonably have been expected to call the person as a witness. (See The Law of Evidence in Civil Cases, Sopinka and Lederman, Butterworth & Co. (Canada) Ltd., 1974, p. 535.) Mr. Weston, in his capacity as operations manager of the company, was present throughout the conversation between Mr. Harris and Mr. Hoornweg on September 9, 1981. However he was not called to corroborate Mr. Hoornweg's version. Notwithstanding his departure from the company, we are aware of no reason why he could not have been subpoenaed to testify in this matter and in the result, we are compelled to draw the inference that he would not have corroborated Mr. Hoornweg's testimony. Having regard to the considerations which must be taken into account in assessing credibility to the timing of this conversation relative to the commencement of the organizing drive, and to the inference which must be drawn because of the failure of Mr. Weston to testify, we are compelled to resolve the conflict between Mr. Harris and Mr. Hoornweg with respect to what was said between them on September 9, 1981 in favour of Mr. Harris.

10. The second conflict in the evidence relates to what was said between Ms. Lynda Mathews, the dispatcher, and Mr. Ron Freemantle, a bargaining unit employee, on or about November 26, 1981. Mr. Freemantle testified that he had been told that there would be a union meeting on November 26, 1981 and that he asked Evan Weston, the operations manager, about it and that Mr. Weston replied that he knew nothing about it. Mr. Freemantle testified that he was called back into the office a short while later by Ms. Mathews, and in the presence of Mr. Weston, asked how many employees had signed the petition against the union and if he knew anything about the association. He testified that he was further asked if he had signed for or against the union. It is his evidence that Mr. Weston asked him to identify those who were giving him a hard time and that Ms. Mathews asked him to identify those employees speaking on behalf of the union. He testified that he asked to see Ms. Mathews again that afternoon and informed her that he didn't want to be involved on either side to which she replied that he didn't have to answer any more questions if he didn't want to. Ms. Mathews testified that Ron Freemantle visited her office on the morning of November 26, as he often did, and asked about a union meeting that evening. Ms. Mathews testified that she said she knew nothing about the meeting. She testified that he returned a short while later and said he was being bothered. lt is her evidence that at this point Ray Wedley, a bargaining unit employee, summoned him away but that he returned at about 4:00 p.m. that afternoon and told her that he was being harassed by both union supporters and those circulating the petition against the union. She testified that she told him the decision was up to him and he did not have to be harassed by anyone. At this point she maintains that he asked her how many drivers the company had and when she replied quite a few he asked the exact number. She testified that at this point she felt that she was being set up and terminated the conversation. Ms. Mathews testified that although Mr. Weston was standing at the back of the room, he was on his way out at the time so that the conversation was not in front of him.

11. Having weighed the evidence of both Mr. Freemantle and Ms. Mathews, we are satisfied that Ms. Mathews attempted to elicit information from Mr. Freemantle with respect to who was pressuring him. We are satisfied that no threats, either implied or express, were made to Mr. Freemantle concerning his job security or that of anyone else and further, that he was told by Ms. Mathews that he did not have to be harassed by either those for or against the union.

12. Having resolved these conflicts, we hereby make the following findings of fact in this matter.

(i) The comany operates a school bus and charter bus service from 16 locations in Ontario, including Mississauga. The employees at five of these locations are organized and the company has negotiated collective agreements in each of these locations. The employees at two of these five organized locations (Sarnia and London) have chosen to be represented by an employee association. It is company policy that where a terminal manager becomes aware of union organizing activity, he is to notify head office and not to in any way interfere with the organizing.

(ii) Mr. Dan Harris, a bargaining unit employee with two years' service, was called into Mr. A. Hoornweg's (terminal general manager) office on September 9, 1981 and told that the company had been informed by a reliable source that he was trying to bring in a union. He denied his involvement. Mr. Hoornweg discussed the pros and cons of unionization and suggested the possibility of forming an association. Mr. Harris, was not threatened by Mr. Hoornweg with respect to his or anyone else's job security.

(iii) Mr. Hoornweg contacted his legal advisor and received from him, on September 16, 1981, the following letter.

I confirm that you have advised me of the fact that a number of employees of the company have approached you asking for your advice as to what they can do with respect to what appears to be an organizing attempt being made by the brewery workers union of part-time employees of Charterways Limited in Mississauga.

I also confirm your advice to me that no application for certification has been made.

I also confirm your advice to me that you have not given any advice or suggestion to your employees and that you have, pursuant to the corporate policy of Charterways Transportation Limited, advised employees that you are not able to respond to questions of that nature without first checking with company counsel.

First may I tell you that you have taken exactly the correct steps. It is clearly improper, in my view, for you to be giving employees any advice with respect to the question as to whether or not they wish to be represented by a trade union. As you know, employees in the Province of Ontario have the absolute right to join the trade union of their choice and to participate in its lawful activities. This right is protected by the provisions of the Labour Relations Act of Ontario. Although the statute does not say so, it is implicit within it that an individual also has the right not to join the trade union, at least during an organizing attempt, if he does not wish to be represented.

It is clearly improper for an employer or employer representative to undertake any activities aimed at interfering with the free exercise of that right. So strict are the rules pertaining to that subject that you are better not to venture any expressions of opinion at all on the subject of the selection of a trade union as bargaining agent, even though your right to "freely express your views" is preserved in the statute. I say this because any expression of opinion which you may make can be used through the purposes of suggesting that you have attempted to use your position as a member of management to persuade people not to join the union. Any such attempt at persuasion" will no doubt be characterized by a trade union and, given the jurisprudence, the labour relations board as intimidation, coercion, or undue influence.

Therefore, a better view is if you ought not to say anything.

I think you should feel free to tell employees asking these questions that you are not permitted to answer those questions both as a matter of law and as a matter of corporate policy. You should feel free to provide employees with a copy of "A Guide To The Labour Relations Act" which is a layman's guide to the statute published under the authority of the Ministry of Labour. This is a document in the public domain, and although it contains many inaccuracies, it will at least apprise an employee who is capable of reading it with some notions of his rights, obligations, and liabilities under the provisions of the statute.

In addition, you should feel free to tell any employee questioning you on the subject that this is an area of law of some specialty and is considered to be something which is beyond the experience of the general practitioner. You should be prepared to indicate to any such employee because of the difficulty of the area of law, they ought to consult a solicitor of their own choosing.

It is likely that an employee who makes that request of you will not know any solicitors. For that reason, I do not feel that there is any impropriety in your giving any employee so requesting it, a copy of this letter which not only sets forth the company position on the subject, but also contains the following list of names of lawyers who have in the past appeared before the Ontario Labour Relations Board representing groups of employees in certification applications. The list is as follows:

Robin Cumine - 364-5371

Cy Abbass - 363-2397

Brian Bellmore - 598-2323

It often happens in matters of this nature that an employee will ask you whether or not he can expect to receive from the company, financial assistance, with respect to his legal fees. You are obliged to advise any such employee that these matters are strictly between him and his counsel and that you as representative of company are not permitted to discuss that matter with him nor to suggest that there might be any assistance from the company.

I trust this is sufficient for your purposes.

(iv) Mr. Hoornweg called his supervisory staff, including Ms. Lynda Mathews, dispatcher, to a meeting in his office on September 17, 1981, advised them of the union organizing which was taking place, ordered them not to interfere and provided them with a copy of the letter he had received the previous day from his legal advisor.

(v) The union organizing drive commenced upon the start-up of the school term, the day following Labour Day. The work force divided into a pro-union and an anti-union group early in the campaign. The evidence of two of the employee organizers who testified is that the organizing drive began to falter when the organizers ran out of people they knew personally. This occurred near the end of September. About 90 per cent of the bargaining unit employees had been approached by the end of September.

(vi) Mr. Fred De Beer, a bargaining unit employee with 13 years’ service, first became aware of the union organizing effort on October 4, 1981 when he was given a pro-union letter by a fellow bargaining unit employee, Ms. Lora West. He took the letter to Mr. Hoornweg and asked him what he intended to do. Mr. Hoornweg told him that there was nothing he could do or say and gave him a copy of the letter he had received from his legal advisor on September 16, 1981. The letter contained the names and telephone numbers of three lawyers who have acted for employees in certification matters before the Ontario Labour Relations Board. Mr. De Beer told Mr. Hoornweg that he would probably oppose the trade union. Mr. Hoornweg also gave a copy of the letter to Mr. R. Nezezon, another bargaining unit employee who approached him and asked about the union.

(vii) Mr. De Beer visited the office of one of the lawyers named in the letter given him by Mr. Hoornweg on October 20, 1981 and a statement in opposition to the union was drawn up. Mr. De Beer gave two of the blank statements to a fellow bargaining unit employee, Ms. Sandy Gerbrandt, and kept one for himself.

(viii) Ms. D. Fowler, a bargaining unit employee and union supporter, was suspended from work on October 5th and terminated from her employment on October 7, 1981, ostensibly because of a poor driving record. This termination was the subject matter of the prior complaint referred to earlier. The Board, in a decision dated January 12, 1982, found that the termination of Donna Fowler was in violation of the Act. The essential findings in that decision are outlined in para. 20 as follows:

Ms. Fowler was active in a union organizing campaign at the time she was discharged. The company was aware of the campaign and one of its officials admitted to a bargaining unit employee that the company knew who the union supporters were and intended to "whittle" them out one by one. Two of Ms. Fowler's three accidents, which the company categorized as preventable on October 7th, were not categorized as preventable prior to that date. We do not accept that the company acted solely on Mr. Beggs' characterization of Ms. Fowler's accidents as preventable some 10 weeks after they occurred. The company's decision to rely on two previous accidents, which had not been classified as preventable when they occurred, must weigh heavily against it. When the company's decision in this regard is considered in light of the ongoing union organizing campaign, Ms. Fowler's involvement in it and Mr. Weston's admissions, we are satisfied that the company, in relying on its preventable accident policy, was motivated by anti-union considerations. Accordingly, we hereby find that its decision to terminate Ms. Donna Fowler violated section 66 of the Act.

(ix) The union applied for certification on November 18, 1981 and a terminal date of November 27, 1981 was set by the Board. The company received notice of the application on November 20, 1981. Because many of the drivers come to the terminal infrequently, the company arranged to have a copy of the notice delivered to each bargaining unit employee. The following letter was given to each driver along with a copy of the notice.

To All Drivers

Due to the difficulty of all drivers being able to read the attached Form 6, "Notice to Employees", our Legal Department were allowed permission from the Ontario Labour Relations Board to send it by registered mail or other means. You are however required to sign for receipt of the letter, so as to ensure that no one is missed.

Your cooperation will be appreciated.

Mr. Hoornweg, Mr. Weston, Ms. Mathews (the dispatcher) and Mr. De Beer delivered the notices. Mr. De Beer delivered notices to the homes of those employees who, like himself, lived in Georgetown. Because the drivers who live in Georgetown are seldom required to come into the terminal, Mr. De Beer is the person who normally takes them their pay cheques and other communications from the company.

(x) Mr. De Beer, Sandy Gerbrandt, and Dick Nezezon, all bargaining unit employees, actively circulated statements of desire in opposition to the union following the giving of notice, during the week ending November 27th. They and 4 other bargaining unit employees visited the offices of the lawyer retained by Mr. De Beer after work on November 20th.

(xi) On Tuesday, November 24th, Fred De Beer asked Barbara Campbell, a bargaining unit employee to sign the statement in opposition to the union and told her that the company would give the employees an association.

(xii) Fred De Beer told Jennifer Hill, a bargaining unit employee, on October 5, 1981 that if she signed for the union she would "end upon the street with no wages". She was reassured by Mr. Hoornweg on October 7th that she would not lose her job. Mr. De Beer, when circulating the statement of desire, then told Ms. Hill on November 23rd that she could not lose her job for signing with the union.

(xiii) Mr. Dick Nezezon, one of the bargaining unit employees circulating the statement in opposition to the union, called Belle Crawford, another bargaining unit employee, at her home on November 23rd and told her if she joined the union she would not have a job, told her the union had threatened to blow up his house, and told her that the company wanted an Association. She did not believe his statement that she would lose her job if she joined the union.

(xiv) Mr. Nezezon called Roberto Tomano, a bargaining unit employee, at midnight on November 23rd and asked her to meet him for coffee the next day and suggested she use her school bus to meet him in the plaza. With the exception of stopping for breakfast or coffee, or going to a plaza located near the terminal, drivers are not allowed to use company vehicles for personal use. Ms. Tomano did not meet Mr. Nezezon for coffee and knew that he could not give her permission to use a company vehicle for personal reasons.

(xv) Sandy Gerbrandt was very active in circulating the statement of desire. She met a number of drivers at the Westdale Mall on Wednesday, November 25th. While they were meeting on her bus, Linda Mathews, the dispatcher and a close friend of Ms. Gerbrandt's, approached. She beckoned Ms. Gerbrandt to leave the bus and they had a conversation outside the bus. Ms. Mathews testified she was at the mall to buy some "treats" for a safety meeting that evening (which was later cancelled) and gave Ms. Gerbrandt the name of a doctor she had asked for. Ms. Gerbrandt arranged to have another driver cover her shop runs on Thursday, November 26th so that she could devote more time to the circulation of the statement in opposition. Ms. Mathews, as dispatcher, was advised by Ms. Gerbrandt that she could not do her shop runs that day because of personal reasons.

(xvi) Mr. Nezezon had arranged for an employee meeting to take place on Thursday evening, November 26th. At the urging of Mr. De Beer the meeting was cancelled. Mr. DeBeer announced over the in-bus radio system that the meeting had been cancelled. He had no sooner made the announcement when Mr. Hoornweg came on the air and stated that the radio was not to be used for personal messages "especially like the last one". There is a company rule prohibiting employees from using the radio for personal reasons.

(xvii) Mr. Ron Freemantle, a bargaining unit employee with one year's service, was called into the dispatchers' office by Ms. Linda Mathews on November 26, 1981 after making inquiries with respect to the employee meeting scheduled for that evening. Ms. Mathews attempted to elicit information from Mr. Freemantle with respect to who was pressuring him to sign a union card. No threats, either implied or express, were made to Mr. Freemantle concerning his job security or that of anyone else. He was told by Ms. Mathews that he did not have to be harassed by those either for or against the union.

(xviii) A greater number of employees than usual were seen entering the supervisory offices of the company during the week of November 23-27.

13. The union asks the Board to certify it pursuant to the provisions of section 8 in this matter. Section 8 of the Act provides:

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purpose 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.

There are three preconditions which must be satisfied before section 8 of the Act can be applied and a certificate issued where, on the membership evidence, the union is not in a certifiable position. An employer violation of the Act must be established. It must be established that as a result of the employer violation of the Act the true wishes of the employees cannot be ascertained and finally, the Board must be satisfied that the union enjoys support adequate for the purpose of collective bargaining.

14. The Board found in its earlier decision that the respondent employer violated the Act when it terminated the employment of Donna Fowler. The essential facts which support the Board’s findings of a breach of the Act are set out herein. Did the employer commit any additional breaches of the Act? With the exception of Mr. Hoornweg's attempt to influence Mr. Harris on September 9, 1981 we are unable to find on the evidence before us any additional violations of the Act. This is not to say that if we had been required to examine into the voluntariness of the statement of desire in opposition to the union we would have found it to be a voluntary expression. The statement was circulated by two individuals who could reasonably have been perceived by the bargaining unit employees as tied to management. The one, Fred De Beer, worked closely with management, acted as a conduit between the company and its Georgetown employees and, as was known to bargaining unit employees, visited the manager's office immediately upon learning of the union organizing drive. He was given a copy of the letter from the company's legal advisor reproduced above. The letter contains the names of three lawyers, recommended by the company's legal advisor, who have acted for employees against trade unions. It is not unreasonable to assume that in these circumstances Mr. De Beer might have felt himself under an obligation to his employer to follow through with formal, legally assisted opposition to the trade union. The other employee primarily responsible for the circulation of the petition, Sandy Gerbrandt, was a close personal friend of the dispatcher and was observed during working hours by the dispatcher, with apparent consent, carrying on a meeting with a number of employees in her bus at a local plaza.

15. The issue to be determined in this case, however, is not the voluntariness of the statement in opposition but whether or not the company unlawfully interfered with the union s organizing efforts. There is no evidence upon which to find that the bargaining unit employees who were circulating the statement in opposition were acting on either the implied or express instructions of management or were making threats to the job security of other bargaining unit employees on instruction from management. While the Act allows for employer freedom of speech subject to the prohibition against coercion, intimidation, threats, promises or undue influence, we are unable to find that the giving of the letter dated September 16, 1981, prepared by the company's legal advisor, to the bargaining unit employees who sought advice from the company with respect to their opposition to the trade union constitutes a breach of the Act. However, we draw a clear distinction between the giving of the letter to employees seeking advice from management and the giving of the letter to employees not seeking the advice of management. Where the latter initiative prevails, a negative inference can be drawn with respect to the company's motive. The hand delivery of the notices in circumstances where very few of those affected would have seen the notice had it been posted in the work place does not constitute a breach of the Act. The evidence is that the use of the company's radio system to cancel the employee meeting scheduled for the evening of November 26th was done without the knowledge of the company and indeed, when Mr. Hoornweg heard the second announcement he immediately went on the air and voiced his disapproval. There is no evidence to link the increased number of visits by bargaining unit employees to the company offices to unlawful interference by the company in the protected activities of the union. Finally, we are not prepared to find that the questions put to Mr. Freemantle by Ms. Mathews on November 26th constitutes an unlawful interference by the company with the rights of Mr. Freemantle or the trade union.

16. We are satisfied that the meeting called by Mr. Hoornweg on September 9th and the comments made to Mr. Harris were motivated by anti union considerations and constitute an unlawful interference with his right to bargain collectively and with the right of the union to organize the company's employees. Having said this, however, we are compelled to observe that, while Mr. Hoornweg attempted to head off the organizing before it could gather momentum, the effect of his intervention was negligible. Mr. Harris did not accept what Mr. Hoornweg had said and in the three weeks immediately following their meeting, the union signed into membership the bulk of those who signed membership cards. On the evidence of both Mrs. West and Mrs. Fowler, it was not until the union supporters ran out of personal friends, around the end of September and before Mrs. Fowler was terminated that the organizing began to falter.

17. We must decide if the attempt by Mr. Hoornweg to influence Mr. Harris on September 9, 1981 and the termination from employment of Mrs. Fowler on October 7, 1981 have made it such that the true wishes of the employees in the bargaining unit cannot be ascertained. As is clear on the face of the section, automatic certification is not the statutory response to every employer violation of the Act committed during a union organizing campaign (see re Radio Shack [1979] OLRB Rep. March 248 at p. 256 and Upper Canadian Furniture [1981] OLRB Rep. July 1016). Where an effective remedy to an unfair labour practice, other than certification without the required membership support, can be framed, the Board will not invoke section 8. The circumstances which have triggered the application of the section are reviewed in the recently released Globe and Mail case, [1982] OLRB Rep. Feb. 189 as follows.

The Board has found in a number of cases that the employer, in violating the Act, made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascertained. An employee is unable to express his true wishes where he had been told by his employer, either expressly or impliedly, and had reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, Lorraine Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734, Riverdale Frozen Foods Limited, [1979] OLRB Rep. April 338, Straton Knitting Mills Limited [1979] OLRB Rep. Aug. 801, Somerville Belkin Industries Limited, [1980] OLRB Rep. May 791 and A. Stork and Sons Ltd. [1981] OLRB Rep. April 419.)

The Board has also applied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice. In these circumstances the Board is forced to the inevitable conclusion that the true wishes of the employees are not likely to be ascertained. (See re Radio Shack, supra, K-Mart, supra, Skyline Hotels Limited, supra and Robin Hood Multi Foods [1981] OLRB Rep. July 972.)

18. This is not a case where the employer has threatened the job security of his employees generally, nor is it a case where the employer has engaged in a pattern of misconduct which might threaten the confidence of his employees in the rule of law. The initial violation of the Act occurred on September 9 and, although we have not as yet shaped a remedy, its impact was not such as to make it unlikely that the true wishes of the employees could be ascertained. The remedial response of the Board to the subsequent violation, the reinstatement of Mrs. Fowler with full compensation and the posting of a notice acknowledging the rights of employees under the Act, coupled with the absence of any further breaches of the Act, make it likely, in our view, that the true wishes of the employees can be ascertained. Accordingly, without having to determine if the union enjoys support adequate for collective bargaining, we find that this is not a case which permits the application of section 8 of the Act.

19. We hereby declare that the company violated the Act when Mr. Hoornweg called Mr. Harris into his office on September 9, 1981 and attempted to elicit information from him with respect to the union and to influence him with respect to the advantages of forming an employee association. Accordingly, we order the company to cease and desist from any unlawful interference with the protected activity of the applicant trade union. The company is ordered to post forthwith copies of the attached notice marked "Appendix" 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 ensure that the said notices are not altered, defaced or covered by any other material. In addition, because of the nature of the respondent's operation, which made it necessary for the respondent to hand deliver copies of the notice of application to the bargaining unit employees, the respondent is directed to copy and hand deliver to each of its employees the notice marked above as "Appendix".

20. The application for certification is hereby dismissed.

DECISION OF BOARD MEMBER C. A. BALLENTINE;

1. I cannot agree with the conclusion reached by the majority, that the true wishes of the employees can be ascertained by the posting of a notice and an order by the Board that the company cease and desist from any further unlawful interference with the protected activities of the applicant trade union.

2. The Board has found that the company violated the Act on two separate occasions. The first instance was on September 9, 1981 when Mr. Hoornweg, the terminal manager, called a member of the bargaining unit into his office and attempted to gain information from him with respect to the union and to influence him with respect to the advantages of forming an employee association. The second violation was October 7, 1981 when Ms. D. Fowler was fired. In that case the Board, in a decision dated January 12, 1982, reinstated Ms. Fowler with full compensation.

3. In paragraph 14 of the decision, the majority speculates that if it had been required to examine the statement of desire in opposition to the union, it would have found it not to be a voluntary expression because it was circulated by two individuals who could have been perceived by the employees as tied to management. The petition was motivated by a letter received by Mr. Hoornweg from the company's legal advisor, dated September 16, 1981. (The full content of the letter is found in the decision starting at page 555.)

4. The letter advises Mr. Hoornweg of what procedures to follow if any employees approached the company asking for advice and what they can do with respect to an organizing attempt by the Brewery Workers Union. The letter advises that an individual has the right not to join the trade union. The letter advises Mr. Hoornweg that he should feel free to provide a copy of "A Guide to the Labour Relations Act" and a copy of the letter to any employee that may approach him. The letter contains the names and telephone numbers of three (3) solicitors who have in the past appeared before the Ontario Labour Relations Board in certification applications.

5. Mr. Hoornweg gave evidence that he called in his supervisory and office staff on September 17th and gave them a copy of the letter. He later gave copies to Fred De Beer and Dick Nezezon, the two individuals who circulated the petition.

6. The majority have found in paragraph 15 of the decision that the letter prepared by the company's legal advisor and given to Mr. De Beer, Mr. Nezezon and other employees, is not a breach of the Act. It is my position that the letter is a skillfully contrived document which was used by the company to motivate opposition to the trade union. When this is coupled with the violations of the company on September 9th and October 7th, it presents a well organized scheme executed by the company for the express purpose of defeating the union's organizing campaign - all of which is illegal. In total, it is a gross interference with the protected activity of the applicant trade union and the right of employees in the bargaining unit to join a union of their choice.

7. The company's scheme to defeat the union's organizing campaign started on September 9th when Mr. Hoornweg, its terminal manager, violated the Act, and it never let up until the union's organizing campaign was chilled near the end of September and came to a complete stop after one of its organizers was fired illegally on October 7th. After October 7th the union continued its endeavour to sign up more people but to no avail. The opposition team led by Mr. Fred de Beer was operating in high gear aided and motivated by the letter dated September 16, 1981 which the company received from its legal advisor. The applicant trade union never had a chance; the organizing drive was dead because of the company's illegal acts. It is my position that the applicant trade union has satisfied the three preconditions necessary to obtain a certificate under section 8 of the Act. These preconditions are as follows:

(1) The employer has violated the Act.

(2) The true wishes of the employees cannot be ascertained because of the illegal acts of the company.

(3) The applicant trade union has adequate support for purpose of conducting collective bargaining.

It is my opinion that a certificate should be issued to the applicant trade union.

Appendix "A"

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 ATTEMPTING TO ELICIT INFORMATION FROM ONE OF OUR EMPLOYEES WITH RESPECT TO THE UNION AND TO INFLUENCE HIM WITH RESPECT TO THE ADVANTAGES OF FORMING AN EMPLOYEE ASSOCIATION.

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 AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS,

CHARTERWAYS TRANSPORTATION LIMITED

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.

DATED this day of , 1982.