Southern Ontario Newspaper Guild, Local 87 v. The Globe and Mail Division of Canadian Newspapers Company Limited, 1982 CanLII 841

[1982] OLRB Rep. February 189

2476-80-R; 2478-80-U Southern Ontario Newspaper Guild, Local 87, The Newspaper Guild (CLC-AFL-CIO), Applicant, v. The Globe and Mail Division of Canadian Newspapers Company Limited, Respondent, v. Group of Employees, Objectors; Southern Ontario Newspaper Guild, Local 87, The Newspaper Guild (CLC-AEL-CIO), Complainant, v.. The Globe and Mail Division of Canadian Newspapers Company Limited, Respondent.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members F.W. Murray and W.F. Rutherford.

APPEARANCES: J. Sack, R. Aveling, Linda Torney and Malcolm Scott for the applicant / complainant; Ross Dunsm ore, Orval Maguire, Brenda Biller and Ted Reczulski for the respondent; Don Robinson, Q. C., Thomas A. Stefanik, Dave Rothschild, George Crook and Mike Paxton for the objectors.

DECISION OF THE BOARD; February 26, 1982

1. The Board directs that this application for certification, and complaint be and the

same are hereby consolidated.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour relations Act.

4. Having regard to the agreement of the parties the Board further finds that all district sales representatives employed by the respondent in its circulation department in the Province of Ontario, save and except branch supervisors and persons above the rank of branch supervisor, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period and employees presently covered by subsisting collective agreements, constitute a unit 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 the bargaining unit, at the time the application was made, were members of the applicant on February 25, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)6) 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 in this case does not meet the statutory membership requirements for certification.

6. The union asks the Board to apply the provisions of what is now section 8 of the Act. 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 purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

7. The company publishes a morning newspaper six days per week. The newspaper is circulated in Metropolitan Toronto and vicinity through 8 branch offices. Four of these branches are within Metropolitan Toronto and are referred to as city branches (North, East, West and Central). The remaining branches are located in Oshawa, Richmond Hill, Mississauga and Bronte and are referred to as Retail Trading Zone (RTZ) Branches. Each branch has its own supervisor who is responsible for the day-to-day activities of the district sales representatives (DSR's) working within the Branch. Each DSR is assigned a district within the Branch. The branch supervisor reports to a field co-ordinator (one for the city branches and one for the RTZ branches) who in turn reports to a circulation manager (Mr. Don Clement). The Circulation Manager reports to the Single Copy Manager who is responsible for the distribution of the paper to not only homes but boxes and stores as well (Mr. Nick Russo). The Circulation Manager reports to the Director of Circulation (Mr. Ken Marskell) who in turn reports to the publisher. There are 76 DSR's working in both the city and the RTZ branches.

8. Union Activity commenced in mid-January, 1981 when Mr. Malcolm Scott, A DS R working in the East Branch, contacted Ms. Linda Torney, a local business representative of the applicant trade union. A meeting of the East Branch DSR's took place at Mr. Scott's home on January 27th. The 9 DSR's from the East Branch who attended the meeting signed union membership cards. Mr. Torney testified that as a result of this meeting she thought that Mr. William McLeman, the union's Canadian Director, should become involved. She testified that she wanted to obtain authorization for an organizing drive. The union had been decertified in 1977 after failing to conclude a first agreement. Although it was decided that the DSR's who had attended the January 27th meeting should begin to contact those in the other branches whom they knew on a personal basis to see if there was interest in the trade union, there was no decision made at this time to begin a general canvass. The union's evidence is that prior to February, 1981 contact had been made with at least one individual in six of the eight branches. Mr. McLeman attended a meeting at Mr. Scott's home on February 6th at which six or seven DSR's were present. These DSR's were instructed in how to sign an employee into membership and left the meeting with a list of the names of fellow DSR's to be contacted. When asked in cross-examination if the campaign had gone public by February 6th, Ms. Torney testified that the campaign had started but because collections were being done, the DSR's who had agreed to assist in contacting others did not have time to speak to other DSR's until the end of the week. Mr. Scott was in Sarnia on vacation from February 15th to February 18th inclusive. The application for certification was filed on February 16, 1981 and the terminal date was set for February 25, 1981. The evidence discloses that in addition to the nine cards signed on January 27th one card was signed on February 6th, another on February 11th and another on February 12th, another on February 20th, and a final card was signed on February 24, 1981. The union signed into membership 14 of the 76 DSR's falling within the bargaining unit. The union did not file membership cards signed by persons working in five of the eight branches. In explaining why only four cards were signed after February 6th, Ms. Tourney testified that the initial supporters were no longer interested in being organizers. Mr. Scott testified that prior to February 6th individuals in 6 of the 8 branches had been contacted and "had been willing to get other DSR's to hear us" but that after February 6th they did not want to talk to us. Neither Ms. Torney nor Mr. Scott themselves attempted to sign into membership individual DSR's working in other than the East Branch.

9. Mr. Vein Thampe, the East Branch supervisor, became aware of the union activity within his branch on February 5, 1981. It is his evidence that on that day Mr. Scott and two of his colleagues, Messrs Farmer and Martin came to his office and asked to speak with him. He testified that they told him that the DSR's were attempting to unionize and that Mr. Scott told him that more than fifty-five per cent of the DSR's had been signed into membership and that "only a miracle can stop us". He testified that when asked why they would come to him as a member of management they told him that they trusted him and "never felt it was him but management." He told them that he did not want to hear any more. Mr. Scott gave a different version of the exchange. He testified that while in Mr. Thampe's office for a performance appraisal, Messrs. Farmer and Martin happened into the office. It is his evidence that Mr. Thampe asked if a union organizing campaign was going on and that Mr. Martin "spewed forth" that the union was organizing and going for certification. Neither Mr. Farmer nor Mr. Martin was called to give evidence. Following the meeting with Messrs. Scott, Farmer and Martin, Mr. Thampe contacted Mr. Jeff Nelson, the field co-ordinator and informed him of what he had just learned.. He was instructed to do nothing until he heard back from Mr. Nelson.

10. Mr. Ernie Raftus, the North Branch supervisor, became aware of the union's organizing the next morning. He testified that he was with Messers. Farmer (a personal friend) and Martin at a local tavern on January 6th and that the two East Branch DSR's spent three or four hours complaining about conditions in the East Branch. He was off work on February 6th and called Mr. Farmer, from his home, to see if he was interested in renting an apartment which he was vacating. During the course of that conversation Mr. Raftus asked Mr. Farmer if conditions in the East Branch had improved. Mr. Farmer replied that they were far worse. Mr. Raftus testified that he then told Mr. Farmer that when he worked in the East Branch the DSR's felt they should form a union and asked him if there had been the same development. Mr. Farmer told him that there had been. Mr. Raftus then told Mr. Farmer that if he knew anyone interested in another point of view to have him call. Malcolm Scott called five minutes later. Mr. Scott acknowledged that he thought Mr. Raftus probably wanted to discuss union activities but testified that he didn't want to ignore a call from management. I—Ic also acknowledged that by returning the call he made it clear to management that he was the union organizer. Mr. Raftus asked Mr. Scott if they should be talking and, after Mr. Scott assured him, he spoke about the option of forming an employee association. He also suggested to Mr. Scott that he could provide a communication link with management. After some discussion on this point Mr. Scott said that he would consider speaking with the publisher of the newspaper but no one of a lower rank. Mr. Raftus did not attempt to solicit the names of those who were supporting the union and Mr. Scott answered in the negative when asked if any threats had been made. Immediately following his conversation with Mr. Scott Mr. Raftus contacted Mr. Nick Russo (Single Copy Manager) who was at the North Branch in the company of Mr. Jeff Nelson (City Branch Field Co-ordinator). Messrs. Russo and Nelson traveled to Mr. Raftus' residence and were told by Mr. Raftus that a union organizing drive was in progress. Mr. Raftus testified that when he identified job security as a pressing issue, Messrs. Russo and Nelson disagreed and felt that the larger issues involved hours, down routes and collections. Mr. Russo notified Mr. Ken Marskell (Circulation Manager) and a meeting of the branch supervisors was called for that afternoon.

II. The branch supervisors gathered at the company's head office at about 2:30 p.m. on February 6, 1981. Mr. Ken Marskell spoke to his staff for about twenty minutes at the beginning of the meeting. He advised his supervisors that employees had a right to organize and that they should not talk with employees about the formation of a union. Most of the branch supervisors had not been faced with a union organizing drive before. Mr. Marskell then asked why the DSR's were so disillusioned that they felt they needed a trade union. He asked the branch supervisors where they had failed. The company had assumed that many more DSR's had signed cards than actually had. Mr. Marskell took the position that if the DSR's were looking to unionize the branch supervisors had not been sensitive to the problems they were encountering in the field. Mr. Marskell asked the branch supervisors to identify these problems and to find solutions. Mr. Marskell left the meeting and the evidence is that the branch supervisors spent the next two hours discussing the possible reasons why the DSR's would have opted for a trade union. Mr. Thampe testified that he had never before attended a management meeting similar to this one.

12. A harsh winter can play havoc with the efficient circulation of a morning newspaper. The winter of 1981 was particularly harsh so that the circulation department was beset by a host of problems. There is no dispute on the evidence that the Globe and Mail was plagued by carrier turnover, down routes, customer complaints, arrears in collections and some trucking difficulties. The East Branch, where most of the DSR's had signed union membership cards, was particularly hard hit. Mr. Thampe, the branch supervisor, had been away from work for most of November and December. When he returned to work he found that the performance within the branch had deteriorated. The poor administration of the branch in his absence coupled with the effects of the harsh winter placed a heavy burden on the DSR's working within the branch. Mr. Russo testified in cross-examination that Mr. Marskell told his supervisors on February 6th that however much extra help and money was required to address these problems they should supply it. Mr. Marskell did not testify. Mr. Peter With, the Oshawa Branch Supervisor at the time (since terminated) testified that his understanding was that the branch supervisors were to look after the problems in the field "at almost any cost" so as the employees would not have a reason to complain. The branch supervisors were instructed to hire extra help and $2,000 to $3,000 per branch per month, the equivalent of two part-time employees working under 24 hours per week each, was designated forthis purpose. Mr. Russo testified that the money had been budgeted for the preceding October. In addition, Mr. Russo was given direct responsibility over the branches and immediately following the February 6th supervisors' meeting spent most of his time in the field. Mr. Marskell paid a personal visit to the Mississauga Branch.

13. The evidence in respect of Mr. Marskell's visit to the Mississauga Branch was given by Mr. Frank Barber, a DSR assigned to the Bronte Branch who was in the Mississauga Branch office at the time Mr. Marskell was there, and by Ms. Iris Swatuk, a DSR assigned to the Mississauga Branch. Mr. Barber testified that Mr. Marskell called the eight or nine DSR's present into the branch supervisor's office and asked "What's this I hear about a lot of problems? What do you want? Why so many routes down? What can we do to solve the problems?" It was suggested that extra help be hired to assist with the delivery of down routes. Mr. Marskell wrote down the suggestions. As the meeting was breaking up Mr. Marskell queried Mr. Barber concerning the situation in the Bronte branch. Mr. Barber informed him that there were no major problems but complained about his salary review. Mr. Marskell invited him to come down to head office to discuss the matter, which he did the following Monday or Tuesday. Mr. Barber had been to see Mr. Marskell at head office on previous occasions to discuss his employment problems. It is Mr. Barber's evidence that during the course of their conversation at head office, Mr. Marskell asked "Where's it coming from?" Mr. Barber thought he was referring to the union and told him that he had been contacted and named the person who had contacted him. Mr. Marskell did not pursue the matter but it is Mr. Barber's evidence that he asked him to keep him informed. Mr. Barber admitted in cross-examination that Mr. Marskell spent most of the time talking about business problems. Ms. Swatuk, who had seen Mr. Marskell in the Mississauga Branch office before, acknowledged that there were a number of down routes within the branch and that help was required at the time Mr. Marskell visited in February. She testified that help was provided and was continued until April when it was less difficult to attract carriers. She told Mr. Marskell that the branch office required blinds, garbage cans and a bulletin board and that the DSR's should have business cards. These were supplied following Mr. Marskell's visit to the branch. The business cards were a standard type with a place for the DSR to inscribe his name.

14. Mr. Raftus informed Mr. Marskell during the course of the February 6th supervisors' meeting of his conversation with Mr. Scott and asked Mr. Marskell if he would meet and discuss the district problems with him. Mr. Raftus testified that Mr. Marskell replied that he would meet with Mr. Scott to discuss district problems but not the formation of a trade union. Mr. Raftus called Mr. Scott about 6:00 p.m. that evening and told him that he had discussed the possibility of a meeting with Mr. M arskell but suggested that if Mr. Scott desired they could first meet alone. Mr. Raftus suggested they meet that evening. Mr. Scott suggested the next day. However, he later changed his mind and left a message for Mr. Raftus that evening that he would be unable to meet. Mr. Thampe also spoke with Mr. Scott on the evening of February 6th. He called Mr. Yong Ping, a DSR working in the East Branch, to inform him that he would not be able to attend a branch social function arranged for that evening. Mr. Scott was there and took the phone. It is Mr. Scott's evidence that Mr. Thampe told him who was present at the supervisors' meeting held that afternoon, that the meeting was concerned with the union exclusively and that Mr. Russo was being brought in to handle the situation. Mr. Thampe, while acknowledging that Mr. Scott took the phone and asked a number of questions, denied that he gave Mr. Scott any information concerning the supervisors' meeting.

15. Mr. Russo spent a considerable amount of time at the East Branch during the week commencing Saturday, February 7th. He dropped into the Branch on Saturday February 7th. It is his evidence that he discussed job-related problems with Bob Martin. Mr. Russo testified that he visited the East Branch on Monday, February 9th and spoke privately with a number of the DSR's working in the branch about the problems they were experiencing in the field. He obtained hockey tickets for one DSR who had been promised them earlier but had not received them. It is his evidence that Mr. Scott, whom he did not recall meeting before, introduced himself and asked if he had a few minutes. Mr. Russo testified that Mr. Scott proceeded to tell him everything that was wrong with his job. Mr. Russo maintains that he told Mr. Scott he would look into the status of his performance review but denied that the subject of a union arose during their 45 minute discussion. Mr. Russo testified that in response to the concerns expressed by Mr. Scott with respect to his job security he showed Mr. Scott an issue of "Canadian Business" which was in his brief case. Mr. Russo maintains he showed Mr. Scott the February issue, which contained an article dealing with how difficult it is to terminate an employee, for the purpose of reassuring him with respect to job security. He denies that he showed Mr. Scott the January issue with a sketch showing an employee being kicked out the door. It is Mr. Russo's evidence that on February 11th he arrived at the East Branch at 6:00 a.m., "sat on the control box" and witnessed an "incredible" number of complaints. He testified that Mr. Scott came into the office at about 9:30 a.m. at which time his performance review was completed. He denied that Mr. Scott had been summoned to the office. Mr. Russo testified that the meeting ended at 10:20 a.m. when Mr. Scott asked to see him alone for a minute. It is Mr. Russo's evidence that when they were alone Mr. Scott said to him "I am the man you are looking for", and told him that he was the individual organizing the union and that he was not afraid of the Globe. Mr. Russo maintains that he did not respond. Mr. Russo visited the West Branch on Thursday February 12th and spoke with an number of DSR's about their work-related problems. He visited the central branch on Friday, February 13th and again queried branch personnel about their work-related problems.

16. Mr. Scott's recollection of his meetings with Mr. Russo during the week commencing Saturday, February 7th is not the same as Mr. Russo's. Mr. Scott does not recall meeting Mr. Russo on Monday, February 9th. However, it is his evidence that Mr. Russo was in the branch office on Tuesday, February 10th interviewing DSR's and that Mr. Thampe told him not to leave without seeing Mr. Russo. Mr. Scott recalls that he got to see Mr. Russo at about 12:30 p.m. after he had spoken with three other DSR's. It is Mr. Scott's evidence that Mr. Russo asked him what his job problems were, to which he replied that, along with a number of other problems, his salary review was 2¼ months overdue. Mr. Scott testified that Mr. Russo then said "I understand the DSR's are trying to form a union". Mr. Scott maintains that he confirmed that this was the case and Mr. Russo then asked him how many people were involved, how many branches were involved and could it be stopped. Mr. Russo denies that he made any inquiries of Mr. Scott with respect to unionization. Mr. Scott testified that Mr. Russo next asked what the union would ask for and he mentioned job security and hours. It was in this context that he maintains Mr. Russo showed him an article in the January issue of "Canadian Business" entitled "Friendly Firings" and told him to read it. Mr. Scott testified in cross-examination that he is a person who can be intimidated by higher ups. He admitted, however, that except for the article, which he did not read, he was not threatened by Mr. Russo. Mr. Scott also admitted in cross-examination that he had not been intimidated by either Mr. Raftus or Mr. Thampe.

17. Mr. Scott testified that the next day he arrived at the branch office at 9:45 and met with Messrs. Russo, Thampe and Nelson concerning his salary review. He maintains that afterwards Mr. Russo suggested that he and Mr. Scott go into another office. Mr. Scott testified that when they were alone Mr. Russo asked him the same questions as he had the day before, that he again referred to job security and hours and that Mr. Russo said he could break the back of the union by firing the 24 probationary DSR's. He testified that at this point Mr. Russo said that he would not fire him but let him sit without promotion. Mr. Russo denies making the remarks attributed to him by Mr. Scott.

18. The circulation problems which plagued the company at the time the union was attempting to organize existed prior to that time. Mr. Russo had agreed to travel to the branches and discuss the trucking problems which were being experienced at the end of January. Mr. Thampe who, as noted, returned from India to find his branch in severe difficulty, testified that he promised extra help to Mr. Scott in the second week of January after he had been moved to District #18. Mr. Scott testified in reply that he asked Mr. Nelson for help in November and Mr. Lucas in December but none was forthcoming. He testified that he approached Mr. Thampe in early January and was told no funds were available. The evidence is that the company budgets on a calendar year basis and would have been operating under its 1981 budget commencing January 1, 1981. Mr. Russo testified that the $2,000 -$3,000 which the branches used for extra help commencing in February would have been incorporated into the budget in October, 1980. Mr. Thampe gave uncontradicted evidence that extra help was hired to work in District 7 in mid-January, he also gave uncontradicted evidence that Mr. Farmer, who had eight down routes in District 9, was given help for eight weeks commencing in mid-January. Mr. Thampe met with Mr. Marskell the third week in January to discuss the problems he had encountered in the Branch upon his return to work. It is his evidence that he was told by Mr. Marskell to assess the problem and not to hesitate to take action. Mr. Raftus testified that he had been using additional adult help in the North Branch since mid-September. Mr. With testified that in the Oshawa Branch he was already supplied with extra help. The evidence is that in previous years the company responded to winter-related circulation problems by hiring part-time help to assist with the delivery of papers. Although the graph kept in the Circulation Manager's office depicting the paper's circulation did not show a loss at the relevant time, Mr. Russo testified that he sensed from the number of returns that the graph was in error. The graph was corrected at the end of February to accurately reflect the downward trend in circulation which had developed in January and February. Although Mr. Russo volunteered in cross-examination that the company had hoped to respond to the circulation difficulties with a spring promotion, he described the appropriate short term solution in re-examination as one of filling the routes as quickly as possible by hiring outside persons and sending recruiters to the schools.

19. The applicant trade union corresponded with the bargaining unit DSR's by letter dated February 10, 1981. The letter, over the signature of Linda Torney, reads:

DEAR CIRCULATION EMPLOYEE:

At the request of some of the Globe and Mail District Sales Representatives in your department, the Southern Ontario Newspaper Guild has been contacting Circulation employees like yourself to determine the extent of interest in forming a union.

The initiators of this organizing drive are probably well known to you as they have worked openly in support of the Guild and have, along with others, signed membership cards in the union.

Your co-workers now need your support.

They are aware that the company has been speaking to employees about the union, and that various promises have been made to you. Much has been made of the company statements that "flexibility" will end if the union gets in. The union has never restricted individual initiative and many former Guild activists are now in management ranks. The Guild will not alter any conditions that are in the best interests of the majority of employees. Enclosed is a copy of a letter from Ken Marskell to City and RTZ District Sales Representatives, issued in September, 1977, during a previous Guild organizing drive. Please read it, and compare it to the promises made today.

Ontario law guarantees you the right to join a union without management interference. A copy of the applicable sections of the Ontario Labour Relations Act is enclosed.

The Guild does not like conducting organizing drives by mail. We would prefer to discuss with you the advantages of unionism in person and to answer any and all questions you may have about the Guild.

If you want to assist in the organizing drive, those of your fellow employees who are already actively working, will be delighted to have your help. However, if you wish to remain anonymous, your signed card will be seen only by yourself, the person who signed you, and the Labour Board. The Guild will respect your confidentiality and the company will never know.

A Guild representative will be contacting you to arrange a meeting to discuss your participation.

The attached letter from Mr. Marskell to DSR's is dated September 9, 1977 and deals with car allowance, salaries at other newspapers, hours of work, number of DSR's summer work load and call back from holidays. The letter concludes:

Working on a personal basis is the way I like it, and it means that I expect and want you to let me know your problems and your ideas for improve­ments. I believe as well that the District Representative structure that we have is much preferable to the structure at other newspapers.

As far as I am concerned, if you have problems, then I have problems as well. The sooner that I hear about them and we resolve them together, the better it will be for all of us.

20. The Globe responded with a memo to its "City and Retail Trading Zone Sales Team" over the initials of Mr. Marskell, dated February 12, 1981. The memo reads:

Members of the staff are being approached by the Southern Ontario Newspaper Guild to support a drive which was launched to form a union in our department. The Guild has every right to do this and, of course, you have every right to act according to your best judgment and not join a union if you so desire. While you are considering the arguments put before you by the Guild, I want you to hear from the Company and understand my feelings about the relationship which now exists between us.

Your work as a district representative has been changing in the last few years. My door is always open and I have tried to be available to discuss any difficulties whatsoever or any ideas or suggestions that you wanted to put forward. My purpose is to resolve those difficulties as there is no more important function in the publishing of our newspaper than making certain that it continues to be delivered to our customers with the same quality and standard of service that you've given in the past.

Globe district representatives are the best paid in Toronto. Better paid than Star representatives in all yearly categories with the exception of year four, a matter at which we are now looking.

Each district representative receives a car allowance of at least $3,300.00 every year. No other group at the Globe including those who are members of the Guild and covered by a union contract receive this much. To my knowledge, this minimum is the highest in Canada.

We are now about to launch what I believe to be the best training programs in North America for new representatives and for those of you who want to upgrade your status. To speed up your work and reduce the amount of time needed to operate as a district representative, I have also introduced mobile radios not only in the City, but only last month in the Retail Trading Zone as well.

We have experimented with a variety of shift systems but have found that by and large, you prefer to set your own schedules in a way that will best suit your own needs. This, interestingly, applies no matter what the season as it is a case of you doing it your way.

No one will deny that the early days of a district representative are difficult days and this is the case of any newspaper, not just the Globe. The learning period — or apprenticeship — is rough-going; but I believe that the new training courses will go a long way to prepare represen­tatives for the supervision and management of their district. And once a representative has learned the ropes, he or she is in a good job which gives him or her much of the freedom of an independent and enables him or her to enlarge their income.

A letter is an imperfect instrument to communicate my feelings about the way we work together and for me to understand your concerns about your career. lf you would like to talk about it and problems that need resolving, give me a call.

It might be of interest to you to know of the management team of 15 in the City and Retail Trading Zone, all have come from the ranks of district representatives. You can make that 16 if you want to include me.

A follow-up memo of February 13th, also over the initials of Mr. Marskell reads:

When you are approached and asked to sign a union card in support of the Guild organizing drive, there are a few points about union member­ship that you should bear in mind.

I. You will all have to pay union dues if the Guild is certified even if you are not a union member,

2. Present Guild dues range, depending on salary from $300.00 to

$500.00 a year. This may be increased annually.

3. When you receive any general increase in salary, the Guild takes the first week's increase in addition to union dues.

4. The Guild may require you to pay special assessments in addition to union dues.

5. A union card is a legal document. It means that you must submit to the rules and bylaws contained in the Union Constitution even if you disagree with them.

6. The Union Constitution requires that you obey the orders of the union executive and not do anything which is, in their opinion, against the interests of the union.

7. The union can put you on trial and cause you to be fined, suspended, or expelled from the union if you don't follow union rules.

8. You may be forced to go on strike when you don't want to.

Remember, if someone is asking you to sign a union card and give them $300.00 to $500.00 of your income each year, you should have all the facts first. Get a copy of the union Constitution and read it. Know what your future obligations will be before making any decision.

In closing, you should know that if more than 55 per cent of the district representatives sign union cards, the union will automatically represent every one of you. There will never be a secret ballot vote in which you have the right to express your true wishes.

21. The union responded to each of the points contained in the company's February 13th memo with a memo of its own dated February 19, 1981. The memo states:

The director of circulation is obviously concerned that City and RTZ DSRs may join the Southern Ontario Newspaper Guild. In his hasty attempt to bring you all the facts that he considered pertinent to the question, he neglected a few points that I thought I should bring to your attention:

1: You will all have to pay union dues of the Guild is certified even you are not a union member.

True, however the Guild collects no dues until a contract satis­factory to a majority of employees in your department is negotiated with the company.

2. Present Guild dues range, depending on salary, from $300.00 to $500.00 a year. This may be increased annually.

If your salary is $300.00 a week, your union dues would be approxi­mately $4.50 per week.

3: When you receive any general increase in salary, the Guild takes the first week's increase in addition to union dues.

The Guild does ask members for the first week's negotiated increase when contract settlements are reached. This policy does not apply to experience increments during the contract or to merit increases.

This money is used to help pay the salary of your co-workers who negotiate your contract and have to be taken off the company payroll to do so.

4: The Guild may require you to pay special assessments in addition to union dues.

True - When the Guild's $4 million strike defense fund is depleted it must be replenished.

5: A union card is a legal document. It means that you must submit to the rules and by-laws contained in the Union Constitution even you disagree with them.

6: The Union Constitution requires that you obey the orders of the union executive and not do anything which is, in their opinion, against the interests of the union.

5 - 6:True - The Guild's constitution is a document determined by its members as a code to follow. The company also has rules. What happens if you don't follow them?

7. The union can put you on trial and cause you to be fined, suspended, or expelled from the union if you don't follow union rules.

True - However, each local is required to have a Trial Board. The Southern Ontario Newspaper Guild has one. It has never met as far as anyone can remember. No trials have taken place and no one has ever been disciplined.

8. You may be forced to go on strike when you don't want to.

The Union's executive cannot force you to go on strike. There will never be a strike unless the majority of employees in your depart­ment vote for it. The Guild accepts that in all cases the wish of the majority will prevail. If the company will bargain in good faith there need not ever be a strike. Remember, however, as a union you have a right to withhold your labour if you want to.

Before you make such an important decision, please talk to us. After all, the company has had their chance to talk to everyone individually about the negative aspects of unionization, now we would like to show you how you will gain, and, believe it or not, how the company will gain when the DSRs have a united voice. A couple of hours of your time could make a tremendous difference to your entire future.

22. There was filed in this matter a statement of desire in opposition to the trade union signed by 51 of the 76 DS R's in the bargaining unit. Because the union filed membership evidence on behalf of less than fifty-five per cent of those in the bargaining unit and is, therefore, not entitled to certification without a vote on the basis of its membership evidence, the Board was not required to conduct a formal inquiry into the voluntariness of the statement of desire. However, the union led evidence pertaining to the manner in which the statement was circulated. The statement of desire was circulated by Mr. David Rothschild who has opposed the trade union in previous campaigns. Mr. Frank Barber testified that Mr. Rothschild visited the Bronte Branch on two occasions. Mr. Billinghurst, the supervisor, was in his office when he visited the first time. Mr. Barber testified that Mr. Rothschild was walking all over so that Mr. Billinghurst would have to have seen him. However, Mr. Barber answered in the negative when asked if there was anything which in his mind connects Mr. Rothschild with management. Iris Swatuk was present in the Mississauga Branch office when Mr. Rothschild circulated the statement in opposition to the trade union. She testified that when he arrived the supervisor left and when he departed the supervisor returned. She testified that Mr. Rothschild approached the DS R's at their desks and explained that those who didn't sign were for the union. Mr. With gave evidence that following the February 6th supervisors' meeting the branch supervisors were instructed to minimize the inter-branch contact between DSR's.

23. The union asks the Board to find that the respondent employer unlawfully interfered with its organizing campaign and that in the circumstances of this case the pre­conditions necessary to the issuance of a certificate pursuant to Section 8 of the Act have been established. The union argues that whereas in most of the reported cases the employer has used his position of influence to threaten employees, the respondent in this matter has used its position of influence to make promises and to bestow benefits. The union argues that regardless of whether the employer uses the "carrot or the stick", if his actions are motivated by a desire to defeat the trade union they are in violation of the Labour Relations Act. The union relies on a series of American cases which deal with the giving of benefits and / or making of promises by an employer during the course of a union organizing campaign (see re Exchange Parts Co. (1964) 375 U.S. 405 (U.S. Sup. Ct.).

24. The union asks the Board to take as its reference point in this matter the February 6, 1981 meeting of district supervisors called on short notice at the company's downtown head office. The union asks the Board to find that prior to February 6th (or perhaps February 5th) the company had no knowledge of the union's organizing activities and was carrying on business as usual. It is the union's position that from and after February 6th, a dramatic change took place which can be directly attributable to the company's knowledge of the union organizing. The union's position is that prior to February 6th the many business-related problems referred to and relied upon by the company (carrier turnover, down routes, customer complaints, collections) existed but that it was only after it learned of the union s organizing campaign that the "blank cheque" policy was put into effect and extra help was hired to assist the "overworked and understaffed" district sales representatives; that Nick Russo was given home delivery responsibilities and dispatched to the branch offices where he spent a disproportionate amount of his time at the East Branch; that Mr. Marskell visited the Mississauga Branch; that letters were sent to the district sales representatives over the signature of Mr. Marskell promising a training programme and promotion to management; and that those circulating a petition in opposition to the union were allowed to move between branches although the District Supervisors had been instructed to minimize inter-branch contact between the DSR's. Although the evidence is that circulation was falling prior to February 6th, the union relies on the fact that the company's graph depicting circulation, which hung in Mr. Clement's office, did not indicate a problem as of February 6th and was not corrected until the end of February. Having regard to this fact and to the lack of a business response to its business problem prior to February 6th, the union asks the Board to conclude that when Mr. Marskell asked his branch supervisor on February 6th "How could you have done this to me?" he was referring to the union organizing drive and that the company initiatives which followed were unlawfully motivated by a desire to defeat the trade union. The union asks the Board to accept the evidence of Mr. Scott that he was told by Mr. Russo during the course of their February 11th meeting at the East Branch office that he would go no further with the company and that the union would be broken. The union asks the Board to draw a negative inference from the company's failure to call Mr. Marskell. The union cites American Airlines, [1981] 3 Can. LRBR 90, a recent decision of the Canada Labour Relations Board, as setting down the proper limits on employer free speech during a union organizing campaign. The union asks the Board to find that the content of the letters circulated by the company to the DSR's and the "rap sessions" engaged in by Mr. Russo and Mr. Marskell with the DSR's exceeded the bounds of free speech and constituted undue influence by the employer.

25. The union attributes the collapse of its organizing campaign to unlawful company interference. Whereas, in Mr. Scott's words, prior to company knowledge of the organizing "everyone wanted to talk" and was "very supportive", a dramatic change in attitude confronted the trade union after the company's unlawful response which, in the union s view, made it impossible to contact and sign more DSR's into membership. The union argues that the effect of the company's unlawful activity has made it impossible to ascertain the true wishes of the employees by means of a representation vote. Furthermore, it is the union's position that it has evidenced support adequate for collective bargaining. Relying on Dominion Paving, [1981] OLRB Rep. Oct. 1370, Ottawa General Hospital, [1981] OLRB Rep. Oct. 1461, K-Mart Canada Limited (Peterborough) [1981] OLRB Rep. Jan. 60 and Upper Canadian Furniture, [1981] OLRB Rep. July 1016, the union asks for the issuance of a certificate under section 8 of the Act. The union seeks the full panoply of remedies for the alleged breach of sections 64 and 66(c) of the Act including a cease and desist order, the posting of notices, access by union representatives to talk with employees, a list of employee names and addresses and compensation for its legal expenses, organizing expenses and interest.

26. In its submission the company frames the primary issue as one relating to the extent to which it is permitted to manage its business and to prevent the collapse of its distribution system. The company characterizes the union organization as symptomatic of the business situation the company found itself in and maintains that in the circumstances of this case a proper balance must be struck between the company's right to manage and the employees' right to unionize. Because Mr. Scott had said that the union had organized to the extent that "only a miracle can stop us", the company saw itself confronted with a major business problem affecting its circulation and, in the company's view, was entitled to respond to the problem which it perceived in the manner it did.

27. The company argues that the union satisfies none of the preconditions to the issuance of a certificate under section 8 of the Act. Although the members of the East Branch were signed into membership on January 27th, the company, relying on the evidence of Ms. Torney, the union representative, asserts that the real organizing was not to begin until after collections were completed on February 13th. This contact was not attempted by either Ms. Torney or Mr. Scott and in the absence of evidence from anyone who attempted to organize beyond the East Branch, the company asks the Board to find, on all the evidence before it, that the union was not able to organize because it lacked support among the employees outside the East Branch. The company maintains that only one card was signed on each of February 6, 11, 12, 20 and 24 because no real organizing was attempted during the week of February 9-15 because of the pressures of work and that no real organizing was attempted when Mr. Scott was on vacation between February 16-19. In the face of only 18 per cent support overall and no support whatsoever in five branches, and in the face of a petition in opposition to the union, signed by 51 of 76 DSR's which has not been shown to be anything other than a voluntary statement, and in the face of two prior unsuccessful attempts at representing the employees, the company asks the Board to find that the union has not evidenced support adequate for the prupose of collective bargaining within the meaning of section 8 of the Act.

28. The company relies on Windsor Arms Hotel Limited [1977] OLRB Rep. Dec. 859, Radio Shack[1979] OLRB Rep. Mar. 248 and G. T. Courriers[1979] OLRB Rep. Dec. 1167 in support of its position that only where an employer in some way makes the job security of his employees conditional on the outcome of the union's organizing attempt will the Board find that the true wishes of the employees cannot be ascertained by the taking of a representation vote. The company argues that in this case it never put its employees in a position that would meet the standard. The company argues that the letters which it wrote are well within the bounds of "free speech" and do not create the necessary element of compulsion nor do they in any way make promises conditional on the outcome of the organizing attempt. It is the company's submission that the board should not accept the only evidence relating to a threat to job security before it; that is, Mr. Scott's evidence with respect to his private conversation with Mr. Russo on February 10th or 11th.

29. The company takes the position that it was entitled to meet with its supervisory staff in response to its knowledge of a union organizing campaign and that the only relevant considerations are those relating to actions it took vis-&-vis its employees. The company maintains that on the evidence it must be found that it was experiencing severe business problems relating to circulation and that the actions which it took were in response to these problems. The company argues that it was responding to these problems in advance of February 6th as evidenced by the fact that Mr. With was given extra help in November, that Mr. Thampe had hired additional DSR's in early January and was given approval to spend $200 per week on part-time extra help in the third week in January, that Don Clement was committed to visit the branches to discuss credits and bonuses from January 30th and that Nick Russo was dealing with branch-related trucking problems prior to February 6th. The company maintains that Mr. Russo was aware well before the end of February that the circulation graph which it introduced was in error and that circulation was slipping. It is the company's position that it was responding to this critical problem both before and after February 6, 1981 as it should have done. The company does not accept that the elimination of its business problems eliminates the trade union or creates an unlawful interference with the trade union, and asks the Board to find that in acting as it did it did not violate the Act.

30. The union reiterated in reply that this is a case where the employer has used a carrot rather than a stick and in so doing has acted with the motive of defeating the trade union. The union argues that where the employer's motivation is anti-union (and in this regard we are asked to draw an inference from the timing of the employer's response) the actions which it takes are proscribed by the Act. In these circumstances the union argues that the company's reliance on its business problems does not assist it. The union asks the Board to contrast the company's approach pre and post February 6th and to pay special attention to the evidence of Mr. Russo that prior to the company's knowledge of union activity it was thought that the upcoming spring circulation drive would take care of its circulation problems. The union maintains that the company acted as it did to defeat the union and therefore, a violation of the Act must be found.

31. There are three preconditions which must be satisfied before section 8 of the act can be applied and certificate issued without a vote where, on the membership evidence, a union is not in a certifiable position or even in a vote 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, it must be established that the union enjoys employee support adequate for the purposes of collective bargaining.

32. There are a number of elements which go to make up the alleged company violation of the Act which is relied upon by the union in support of its application under section 8 of the Act. These are, firstly, the alleged intimidation and threatened discrimination against Mr. Scott and the probationary DSR's by Mr. Russo, secondly, the alleged undue influence exerted and promises made in the written correspondence to the DSR's from Mr. Marskell, thirdly, the alleged undue influence exerted by Messrs. Russo and Marskell in the field immediately following February 6, 1981, and finally, the alleged unlawful interference with the union's right to organize and the employees' right to choose a bargaining agent in the form of the initiatives undertaken by the company immediately following February 6th which were ostensibly directed at its circulation difficulties. Considerable evidence with respect to the circulation of the statement in opposition to the applicant trade union was also led. We have reviewed this evidence in conjunction with the other evidence before us. Although the evidence relating to the circulation of the statement of desire may have caused the Board to find it not to have been a voluntary expression (on an application of the principles found in Morgan Adhesives [1975] OLRB Rep. Nov. 813) the issue of the voluntariness of the statement is not before us. The evidence before us with respect to the circulation of the statement of desire does not disclose any unlawful activity by the company.

33. Turning to the alleged intimidation and threatened discrimination against Mr. Scott and the probationary DSR's. Mr. Scott testified that on Tuesday, February 10th, during the course of a conversation with Mr. Russo at the East Branch office, he was shown a copy of "Canadian Business" and in particular, an article entitled "Friendly Firings" which he found to be intimidating. He testified that the next day, after the completion of his performance review, Mr. Russo asked him to go into a private office, asked him a number of questions concerning the extent of the union's organizing, and told him that he could break the back of the union by firing the 24 probationary DSR's and that he would not fire Mr. Scott but let him sit without promotion. Mr. Russo maintained that he showed Mr. Scott a different article than the one Mr. Scott identified and that he did so in response to Mr. Scott's concern for his job security and for the purpose of showing him how difficult it is to fire an employee. It is Mr. Russo's evidence that this conversation took place on Monday, February 9th and that the following day, after the completion of his performance appraisal, Mr. Scott asked to see him alone and identified himself as the individual behind the union organization. Mr. Russo denied that he made the remarks concerning probationary employees and the promotion opportunities of Mr. Scott, attributed to him by Mr. Scott. The issue is one which falls to be determined on a finding of credibility.

34. We must choose between the evidence of Mr. Scott and that of Mr. Russo. As in all cases where a finding of credibility must be made the Board considers the deameanor of the witnesses as they gave their evidence, weighs the evidence given against what best accords with reason and the objectives facts, and finally, takes into account any inconsistencies or contradictions in the testimony of a witness which calls into question the accuracy or truthfulness of his testimony. The Board has put its mind to the conflict in the evidence given by Messrs. Scott and Russo with respect to what was said between them on or about February 10th and 11th and has resolved the conflict in favour of Mr. Russo.

35. There is no dispute on the evidence that on the morning of February 6th Mr. Scott called Mr. Raftus, the North Branch supervisor, in response to Mr. Raftus' invitation to Mr. Martin to have anyone interested in another point of view call him. Mr. Scott admitted that by making the call he was identifying himself as the union organizer. In our view, the fact that Mr. Scott would make the call on his own initiative casts a shadow over much of his evidence. The central thrust of his evidence relating to the conversation the previous day with Mr. Thampe was that he assumed a low profile while Mr. Martin "spewed forth". Mr. Scott denied that he had raised the subject of unionization or commented that "only a miracle can stop us." If Mr. Scott attempted to maintain a low profile, as he suggests, why would be publicly identify himself as the union organizer the next morning and consent to speak to the publisher of the newspaper? In the face of the union s failure to call either Mr. Martin or Mr. Farmer to

corroborate the evidence of Mr. Scott as it relates to the February 5th conversation which the three of them had with Mr. Thampe, and in the face of Mr. Scott's decision to identify himself to a manager of the company as the union organizer the very next morning, we are compelled to call into question the credibility of Mr. Scott by rejecting his testimony with respect to a matter which is central to the factual context of this case. Mr. Scott's decision to publicly identify himself as the union organizer on February 5th is consistent with Mr. Russo's evidence that on February 11th Mr. Scott identified himself as "the man you are looking for." Mr. Scott denied that he had made this statement. Notwithstanding the conflict in the evidence of Messrs. Russo and with respect to whether Mr. Russo had been heard to say in the past "when in doubt throw them out", a conflict which we would resolve in favour of Mr. With, we must nevertheless find that we prefer the evidence of Mr. Russo to that of Mr. Scott with respect to the conversations which took place between the two on February 10th and 11th.

36. We are satisfied that Mr. Russo did not make the threatening remarks with respect to the continued employment of probationary DSR's or the promotion opportunities of Mr. Scott, attributed to him by Mr. Scott. With the exception of the magazine article which was shown to him by Mr. Russo, Mr. Scott, who, surprisingly, testified that he was easily intimidated by "higher-ups" in the company, testified in cross-examination that he had not been intimidated by anything else said to him by Mr. Russo or by what was said to him by Mr. Raftus or Mr. Thampe in the conversations which they had. We are satisfied that Mr. Russo, in showing Mr. Scott the magazine article which he says he did, did not attempt to, or did not in fact, intimidate Mr. Scott in violation of the Act. Having regard to all of the foregoing, we are satisfied that neither Mr. Russo nor any other member of management threatened or intimidated any of the company's employees in the period immediately following February 6, 1981.

37. We now turn to the conduct of Messrs. Marskell and Russo immediately following the company's knowledge of trade union activity and the initiatives undertaken by the company at this time which were ostensibly directed at its business difficulties.

38. Section 64 of the Act provides:

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

39. A useful discussion of the purpose and application of section 64 (formerly section 56) of the Act is contained in Skyline Hotels Limited [1980] OLRB Rep. Dec. 1811. The Board commented as follows at pp. 1827-1828:

The striking aspect of this section is that on its face it makes no mention of anti-union motive or purpose. It simply uses the word "interfere", which, in normal parlance, could be taken to connote either intentional or unintentional conduct. As the Board commented in Westinghouse, [1980] OLRB Rep. April 577, at paragraph 54:

section 56 of the Act can be interpreted as prohibiting any employer action which has the effect of interfering with the representation of employees by a trade union regardless of whether or not an anti-union motive exists."

It would not matter, in that event whether the employer could satisfy the Board of a legitimate business purpose for its conduct. But the Board has always had regard to industrial relations reality, and to the scheme of the Act as a whole, and has never interpreted the section in this manner. To do so would of course render meaningless the other specific provisions of the Act, such as section 58, which clearly require the finding of an anti-union motive. Any discharge of a union organizer, or perhaps of any employee during a campaign, for example, could be litigated successfully by a trade union under section 56, whether or not anti-union motive could be shown under section 58. It is impossible to contemplate that section 56 creates that kind of an unfair labour practice. As the Board commented in Ontario Banknote Ltd. (Board File No. 0590-80-U unreported):

5. The union's representative argued, notwithstanding the clear evidence [of anti-union motive] before the Board that, a discharge during a union campaign can have a chilling effect on the ability to organize. That is no doubt true. Other innocent factors, such as lay­offs for good business reasons or a financial downturn might also have a negative impact on the fortunes of a union. As real as those concerns may be to a union, they are not matters which the provisions of the Act are designed to protect unions or employees against. They should, therefore, not to be the basis of a complaint to this Board (National Automatic Vending Co. Ltd. 63 CLLC 11 16,278 at p. 1162).

See also Walker Brothers Quarries Limited, [1980] OLRB Rep. July I 107, at paragraph 16. In the absence of an anti-union motive in other words, it is not a violation of the section if the employer's conduct simply affects the trade union in pursuit of a unrelated business purpose. As the Board said in A. A. S. Communications Ltd., [1976] OLRB Rep. Dec. 751, in commenting on this purposive meaning of the word "interfere":

31. The essential element in any complaint under section 56 is employer interference with a trade union. A distinction must be made, however, between employer conduct that actually interferes with a trade union, and employer conduct that only incidentally affects a trade union. (emphasis added)

As has often been noted, however, the trade union will not in every case be required to prove by affirmative evidence the existence of an anti-union motive. This is so because the effect of certain types of conduct is so clearly foreseeable that an employer may be presumed to have intended the consequences of his acts: A. A. S. Communications, supra: C. W Martin Lumber, [1980] OLRB Rep. May 737; Bank Canadian National [1980] Can. LRBR 470; Radio Officers' Union v. NLRB, (1954) 33 LRR M 2417. Once such conduct has been established, then as a practical matter (and whether or not section 79(4a) of the Act applies to the situation) the onus is upon the employer to come forward with a credible business purpose to justify the conduct (ef. NLRBv. Great Dane Trailers, (1967) 65 LR R M 2465). It is up to the Board then, in all the circumstances to decide what the motive of the employer really was.

In order to succeed under section 64, therefore, the union must establish on the balance of probabilities that the actions complained of were motivated, in part at least, with the intention of interfering with its lawful activities. It is not sufficient that the union demonstrate that it has been adversely affected.

40. It should be observed at this juncture that this Board, with judicial approval, has held that if an employer's actions are motivated even in part by anti-union considerations the employer is in violation of the Act, notwithstanding the provisions of section 74 (formerly section 68) or coexisting legitimate business reasons. (See re Westinghouse Ca nada Limited [1980] OLRB Rep. Apr. 577, affd. by Divisional Court 80 CLLC 11 14,062.) The Board held in Westinghouse (at p. 605) as follows:

Section 68 of the Act does not support the adoption of a predominant motive approach to cases involving major business decisions as argued by the company. The unfair labour practice sections of the Act make it unlawful to discriminate against an employee in respect of his employment or opportunity for employment for anti-union reasons. We do not read section 68 as permitting the employer to act even in part on the basis of anti-union motives, which are clearly proscribed by the companion sections of the statute. (See Academy of Medicine, [1977] OLRB Rep. Dec. 793 at para. 36 and Webster and Horsfall (Canada) Ltd. ([1969] OLRB Rep. Sept. 780), at pages 784 and 785. When reference is had to sections 56, 58 and 61 of the Act, one must conclude that the "cause" referred to in section 68 of the Act is cause which is free from anti-union motive. The purpose of section 68 is to save the employee harmless from the effects of major business decisions which are free of anti-union motive. The section ensures that the mere impact of a bona fide business decision (a decision taken for "cause") cannot be used to infer an anti-union purpose or to support the foundation of a complaint under any other section of the Act.

Against all of the foregoing we are not inclined to follow the approach of some American courts which have adopted the "predominant motive" approach to cases involving major business decisions which impact upon employee rights. In our opinion this approach would do violence to the protections afforded to employees under our Act and would create an indefensible distinction between anti-union employer decisions which affect one or two employees and those which may affect the whole work force. This Board, with judicial support, has consistently found that management actions which may only be partially motivated by anti-union considerations are in violation of the Act. This test is the proper one to be applied in this case. This is not to say, however, that in shaping a remedy to unfair labour practices created by major business decisions the Board will not take co-existing and bona fide economic factors into account.

If it is established on the evidence that the employer's initiatives are motivated even in part by anti-union considerations, the employer will be found to be in violation of the Act. Although the co-existence of legitimate business reasons may be reflected in remedy they will not, for the reasons articulated in Westinghouse, exonerate the employer.

41. We are dealing with an allegation that the employer violated the Act by, in effect, soliciting grievances from bargaining unit employees and acting to rectify these grievances in response to and during the currency of the union's organizing campaign for the purpose of undermining the union's organizing efforts. In particular, the union alleges that the decision of the company to provide additional part-time adult help to the DSR's who required it, which had the effect of lessening the work load and reducing the hours of work, was designed to undermine the trade union. The Board's decisions are replete with cases of unlawful employer coercion and intimidation in the form of discharges, layoffs, changes in working conditions etc. and threats of same. It is not alleged in this case that this employer engaged in so stark an abuse of its authority. The allegation here is that the employer engaged in a more subtle but equally effective abuse of his authority; that he used a carrot rather than a stick. This Board has never had to deal with the issue of whether the solicitation of employee grievances and the conferring of benefits prior to the inception of the statutory freeze period, which is triggered by the notice of application for certification constitutes an unfair labour practice. The Board had, however, touched on the issue in two earlier cases.

42. In Scythes & Company Limited, 52 CLLC 9117,018 this Board rejected as "a matter of conjecture" a submission made on behalf of a trade union applying for certification, that employees would be less likely to vote in favour of the applicant in a representation vote where the employer granted an unconditional retroactive wage increase immediately before the onset of the "silent period". The Board stated:

"As to the wage increase, it was granted without qualification when, for all the respondent knew, the employees were on the point of selecting the applicant as their bargaining agent. It was not a benefit conferred which was to be continued in effect or withdrawn depending on the outcome of the vote. The employees were not the less free to vote in favour of the applicant because they had received a wage increase."

However, in Arnold Steel, General Contractor, [1966] OLRB Rep. Oct. 510, the Board found that "the action of the employer of granting a wage increase. . . following the filing of [the] application [for certification] not only casts doubt in turn upon the petition but also.. . renders it most unlikely that the true wishes of the employees would be disclosed by a representation vote." In the recent Ottawa General Hospital decision, supra, the Board noted the apparent dichotomy between the two earlier Board decisions and commented that it found the rationale contained in the decision of the United States Supreme Court in NLRB v. Exchange Parts Co., supra, to be persuasive.

43. In the Exchange Paris Co. judgment, the leading American authority on the subject, the United States Supreme Court upheld a decision of the National Labour Relations Board that the unconditional granting of certain benefits to employees, namely an additional statutory holiday, an improved overtime arrangement during holiday weeks and an improved vacation scheduling arrangement, prior to a representation election was in violation of section 8(a)(l) of the National Labour Relations Act. Section 8(a)(l) makes it an unfair labour practice for an employer to interfere with, restrain or coerce employees in the exercise of rights under that Act. In the Exchange Parts case, the benefits were put into effect unconditionally and on a permanent basis and there was no other interference with employee rights. The Court observed, in upholding the decision of the National Labour Relations Board:

The broad purpose of s. 8(a)( I) is to establish "the right of employees to organize for mutual aid without employer interference." Republic Aviation Corp. v. Labour Board, 324 U.S. 793, 798, 16 LRRM 620. We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favourable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect ... The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. The danger may be diminished if, as in this case, the benefits are conferred permanently and unconditionally. But the absence of conditions or threats pertaining to the particular benefits conferred would be of controlling significance only if it could be presumed that no question of additional benefits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is tenable.

It is this reasoning which this Board found to be persuasive in the Ottawa General Hospital case, supra.

44. The U.S. Supreme Court ruled in Exchange Parts, supra. that the granting of benefits shortly before an election "with the intention of inducing the employees to vote against the union" (emphasis added) constituted a violation of s. 8(a)(l) of the National Labour Relations Act. Despite this requirement for proof of motive, the NLRB and the Courts have not hesitated to draw an inference of such unlawful motive where benefits are conferred during a union campaign or preceding a representation vote. In NLRB v. Styletek, Division of Pandel-Bradford Inc. (1975) 89 LRRM 3195, it was held that a prima facie violation is established where benefits are granted pending an election and the burden then shifts to the employer to explain. It is to be noted that even where a legitimate business justification or past practice exists, the timing of the granting or conferring of employee benefits must be explained. Timing has been treated as a separate issue from proof of a legitimate business purpose and the NLRB has held that the timing of an employer action, even in response to a legitimate business concern, may support an inference of unlawful motive. (See J.C. Penny v. NLRB (1967) 66 LLRM 2272, NLRB v. Stvletek, supra, NLRB 'u'. Arrow Elastic Corp. (1978) 98 LRRM 2004, Schwab Foods Inc. (1976)92 LRRM 1285, and Big G. Super Market (1975)

90 LRRM 1333.)

45. The NLRB has held that even in the absence of an express promise of future benefits the solicitation of employee grievances by the employer with an express or implied promise to remedy them during an ongoing campaign is a violation of s. 8(a)(l) of the National Labour Relations Act. In NLRB v. Pur 0 Sil Inc. (1974) 86 LRRM 1437, the Board stated:

We believe that where an employer, who has not previously had a practice of soliciting grievances or complaints, adopts such a course when a union engages in an organizational campaign and asks the employees to select a representative to meet with management, it implied to its employees that it will correct the inequities it discovers as a result of its inquiries, thus making union representation unnecessary. We conclude, therefore, that, by soliciting grievances and directing employees to select a representative to meet with management, respondent violated section 8(a)( 1) of the Act.

Similarly in York Division, Borg Warner Corp. (1977) 95 LRRM 1283, the Board stated:

The Board has held that in the absence of an established program, the holding of meetings at which employees are encouraged to air their grievances or problems constitutes solicitation of those grievances and an implied promise of corrective action if employees will reject the union.

(See also NLRB v. El Rancho Market (1978) 104 LLRM 2612; I.H. Communications, 183 NLRB 1129 (1970), Leland Stanford Jr. University (1979) 101 LRRM 2212.)

46. Section 3(2)(c) of the British Columbia Labour Code provides:

No employer, and no person acting on behalf of an employer, shall

(c) seek by intimidation, by dismissal, by threat of dismissal, or by any other kind of threat, or by the imposition of a penalty, or by a promise, or by a wage increase or by altering any other terms of employment, or by any other means, to compel or induce an employee to refrain from becoming, or continuing to be, a member or officer or representative of a trade-union.

In re Tamblyn Drug Mart and Retail Clerks, [1975] 3 Can. LRBR 336, the British Columbia Labour Relations Board was called upon to decide if the decision by the employer to implement the same wage increase for its employees as the union, which was then organizing, had won from its competitor, and to announce its intention to give further increments of the same size and on the same dates as those agreed to by the competitor, violated section 3(2)(c) of the B.C. code. The employer's policy had been to introduce wage increases once per year to reflect increases obtained by the union in negotiation with its competitor. The B.C. Board, in upholding the complaint in part, commented that the test to be applied where it is alleged that "employer activity (such as a wage increase or discipline) is an unfair labour practice because its true purpose and effect was to defeat a union drive (is) whether or not the activity complained of would have occurred in the absence of the organizing drive." The Board in that case found that the absence of any explanation by the company supported the inference that the organizational drive played a large part in the employer's decision and concluded:

Had the Employer merely implemented the first wage increase of the Shoppers Agreement on July 1st, no objection could be taken. The Employer would only have been following its established policy of granting increases on July 1st and would at the same time have been remaining competitive with Shoppers. But the Employer went further than this. It abandoned its July 1st date for future increases, doubled the size of the increase it would grant and published this to all the employees in the midst of an organizing drive by the very union which had just bargained for those increases with Shoppers.

47. If the 1952 decision of this Board in Scythes, supra can be read as standing for the proposition that the granting of benefits to employees during the course of a union organizing campaign or before a representation vote is lawful, unless made conditional on the outcome of the vote, we decline to follow it. Having reviewed the jurisprudence which has developed under statutory language similar to section 64 of the Ontario Labour Relations Act and having considered the interpretation put on that language by this Board, that proposition is not tenable.

48. There is nothing in the Act which prohibits an employer whose employees are unorganized and who are not the subject of a union organizing campaign, from providing terms and conditions of employment which are designed to, and may have the effect of causing employees to turn their back on the option of collective bargaining. However, once a trade union begins to organize, it is protected by the provisions of section 64 of the Act and the employer is prohibited from acting with an intention to interfere with the selection of a trade union or the representation of his employees by a trade union. The section enshrines the employer's freedom to express his views but makes it an offence to use "coercion, intimidation, threats, promises or undue influence" as a means of thwarting the rights of the trade union and/ or its employees. The granting of benefits or the solicitation of employee grievances during the course of a union organizing campaign if motivated even in part by a desire to undermine the trade union, breaches these prohibitions. Regardless of whether this type of activity is characterized as an attempt to threaten employees, as it has been by the United States Supreme Court in Exchange Parts, or as an attempt to make unlawful promises or as an attempt to unduly influence employees, it constitutes an unlawful interference with the trade union and with the right of employees to choose a trade union.

49. The threatening aspect of this type of employer conduct arises, in the words of the U.S. Supreme Court, because "employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and may dry up if it is not obliged." Employees may as easily infer from this type of employer conduct that the benefits conferred, which have not heretofore been enjoyed, will continue or that the grievances solicited, which have heretofore not been considered, will be addressed, if the union is defeated. When considered in this light the conferring of benefits or the solicitation of grievances during the course of a union organizing campaign may also be described as a form of promise that conditions will be maintained if the efforts being made by employees to form a trade union are discontinued.

50. The Labour Relations Act, in addition to prohibiting threats and promises designed to interfere with rights under the Act, makes it an offence for an employer to interfere with the representation of employees by a trade union by resort to "undue influence". The meaning of that term, as used in section 64 of the Act, is defined in K-Mart Canada Limited, [1981] OLRB Rep. Jan. 60 at p. 70 as follows:

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

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

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

The Board has long recognized the sensitive nature of the employer-employee relationship and the position of dominance enjoyed by the employer. The employer decides who will work and under what terms and conditions of employment. The employer is in a position to respond to employee concerns or to ignore them. The scheme of collective bargaining provided under the Act is designed to place employees on a more equal footing with their employer. If, when faced with a move by employees to avail themselves of collective bargaining, an employer uses his authority to confer benefits or to otherwise improve the terms and conditions of employment, and does so with a purpose of undermining the trade union, must it be found that the employer, given the extent of his authority within the employment relationship, has exercised undue influence? The answer, regardless of the coexistence of a business motive, is yes. An employer who takes advantage of and relies upon his control over the employment relationship in this manner unduly influences his employees in contravention of the Act.

51. We now turn to the facts before us in this matter. The company was made aware of the union organizing attempt on February 5th and a special meeting of all branch supervisors, attended by Mr. Russo, the Single Copy Manager and Mr. Marskell, the Circulation Manager, was called for the afternoon of February 6th. The purpose of the meeting was to advise the branch supervisors of their legal responsibilities during an organizing campaign and to determine why it was that the employees felt the need of a trade union. Mr. Marskell took the position that if the DSR's were looking to unionize, the branch supervisors had not been sensitive to the problems they were encountering in the field. The evidence establishes that conditions in the field had been deteriorating throughout the winter of 1980-81. Although the graph depicting the level of circulating did not show a decline, Mr. Russo testified that he knew that the, graph was in error. Indeed, the number of papers returned, the number of customer complaints, the number of down routes, and the arrears in collection stood as evidence to management of the circulation difficulties which the company was encountering through January, 1981. Although some part-time adult help was being provided, and had been provided in the past, there had been no general canvass of the DSR's to discuss individual problems and to ascertain which individuals needed help. We are satisfied on the evidence that prior to February 6, 1981 the company had not established as a priority the solving of individual DSR circulation problems and had not undertaken to provide part-time help whenever it was needed. The assignment of Mr. Russo, a senior manager, and his interview with individual DSR's in the branches supports this conclusion. The evidence of Mr. Scott and Ms. Swatuk is that many DSR's were working additional hours because they required extra help. Notwithstanding Mr. Russo's evidence in reply that the appropriate short-term solution to the company's circulation difficulties was the filling of the routes as quickly as possible by hiring outside persons, the company, rather than taking extraordinary measures in this regard, was intending, as Mr. Russo acknowledged in cross-examination, to recapture lost circulation with a spring promotion.

52. Following the February 6, 1981 branch supervisors' meeting, Messrs. Russo and Marskell visited branch offices. They had only infrequently visited the branch offices in the past. Mr. Marskell visited the Mississauga Branch on either Saturday, February 7th or Saturday February 14th (the evidence in unclear) and spoke with a number of DSR's. Mr. Russo was in the East Branch office on Saturday, February 7th, Monday, February 9th, and Tuesday February 10th. He visited the West Branch office on Thursday, February 12th and the Central Branch Office on Friday, February 13th. Mr. Russo interviewed individual DSR's in each of the branches and inquired of them with respect to their work-related problems and what could be done to remedy these problems. When Mr. Marskell visited the Mississauga branch he also inquired of the DSR's who were present what their work-related problems were and what could be done about them. Indeed, Mr. Marskell in the letter to DSR's dated February 12, 1981 invited DSR's to come forward with their problems. He stated:

A letter is an imperfect instrument to communicate my feelings about the way we work together and for me to understand your concerns about your career. If you would like to talk about it and problems that need resolving, give me a call.

It was suggested that extra help be provided and it is Ms. Swatuk's uncontradicted evidence that help was provided and continued until April. Additional part-time help was also provided in the East Branch after February 6th. Mr. Russo testified in cross-examination that at the February 6th supervisors' meeting, or shortly afterwards, $2,000 to $3,000 per month per branch was allocated for this purpose. He then testified in reply that these funds had been budgeted in October, 1980. However, regardless of when the funds were budgeted they were not being spent for this purpose prior to February 6, 1981. Mr. With testified that at the February 6th supervisors' meeting, branch supervisors were given a "blank cheque" to deal with the problems which had developed in the field. While his evidence in this regard may be an exaggeration, we are satisfied that resources which had heretofore not been used to provide part-time adult help for the DSR's were made available for this purpose from February 6th. In response to complaints voiced at the Mississauga Office to Mr. Marskell, office blinds, garbage cans, a bulletin board and business cards were supplied. Mr. Marskell also agreed to look into Mr. Barber's complaint with respect to his salary review. Mr. Russo arranged to have hockey tickets supplied to a DSR who had been promised them and he also arranged to have Mr. Scott's performance appraisal completed when Mr. Scott complained that it had not been done. These improvements, while not significant in themselves, demonstrate the preparedness of the company at the time to respond to employee problems generally.

53. In summary, there is no dispute that the company was beset by a host of difficulties relating to the circulation of its newspaper during the winter months of 1981. The company knew that it was confronted with these problems prior to February 6, 1981. However, prior to that date the company had made no attempt to solicit the opinions of individual DSR's or to designate the short-term solution of these problems as an immediate priority. Subsequent to February 6th, the date upon which the company first learned of the union organizing attempt, the views of individual DSR's were solicited by the two senior managers of the Circulation Department; Mr. Nick Russo and Mr. John Marskell. A number of minor complaints were acted upon (blinds, garbage cans, business cards, bulletin board, hockey tickets) thereby clearly signaling the DSR's that the company was prepared to listen to and act upon their complaints. More importantly in contrast to the company's approach prior to February 6th, part-time adult help was provided on an across the board basis. The significance of providing part-time adult help on this basis in the context of the work setting cannot be over-estimated. Each DSR is responsible for the delivery of the newspapers within a district. Where carriers cannot be found for individual routes the DSR is required to deliver the papers himself. Even where a route is covered by a carrier the DSR is required to personally deliver the paper to customers who have been missed. The number of missed customers increases with an increase in carrier turnover. The DSR's are paid a fixed salary and not an hourly rate. In these circumstances the provision of part-time adult help to cover down routes directly affects the DS R's hours of work. The hours of work are reduced and hence the equivalent of the hourly rate is increased. The evidence is, and the company was aware, that hours of work was a major concern of the DSR's in the winter of 1981. The evidence establishes that upon learning of the unions organizing activity the two senior managers of the Circulation Department went into the field and solicited employee complaints, that these complaints were acted upon and that additional part-time help, which had the effect of reducing the hours of work of the DSR's was provided.

54. The company asks us to conclude that in doing what it did it was responding to its business problems as it was entitled to do. We have no doubt that the steps taken by the company were intended to and had the effect of addressing its circulation problem. However, given the company's knowledge of its circulation problems prior to February 6th and the nature of its response prior to that date, we are compelled to conclude, on the basis of both the timing and content of its response following its knowledge of trade union activity, that the company acted, at least in part, for the purpose of undermining the trade union and in so doing violated section 64 of the Act.

55. We now turn to a consideration of the company's written communication to the DSR's dated February 12 and 13, 1981. The unions asks the Board to apply the same test as that articulated by the Canada Board in American Airlines and BRA C, supra. After an extensive analysis of the jurisprudence under the Canada Labour Code and other Labour Relations statutes and a discussion relating to the responsive nature of the employer/employee relationship, the Canada Board concluded that under the Canada Labour Code.

The employer's right to communicate with its employees must be strictly limited to the conduct of its business. The employer is only permitted to respond to unequivocal and identifiable adversarial or libelous statements; by this we do not consider as being adversarial, the fact that an employee wishes or does not wish to join a trade union.

... employers' communications are to be permitted inasmuch as they relate to the efficient operation of the business. If they are not, then they must be viewed as a participation or interference in the representation of employees by a trade union and thus in contravention of s. 184(l)(a).

In coming to this conclusion, however, the Canada Board was careful to note that unlike the Ontario Labour Relations Act, the statute from which this Board takes its authority (and the British Columbia Labour Code), the right of the employer to communicate with his employees during an organizing campaign is not codified in the Canada Labour Code.

56. Section 64 of the Ontario Labour Relations Act provides that..... nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence." Even if so inclined, this Board could not impose the type of blanket restriction of employer expression imposed by the Canada Labour Board without doing violence to the Ontario statute. This Board must balance the right of employees to organize without being subjected to coercion, intimidation, threats, promises or undue influence and the right of an employer to express his views. In performing this balancing function, the Board has attempted to take a realistic view of the nature of the employment relationship and the type of inferences which are likely to be drawn by the average employee from words which have been spoken or written by his employer. The Board's approach is summarized in Dylex Limited, [1977] OLRB Rep. June 357 at pp. 366-67 as follows:

Counsel for the applicant took the position that an employer was required to stay neutral during the course of a union organizing campaign. We are of the view that no such requirement exists. Section 56 expressly states that nothing in the section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, threats, promises or undue influence. Where the difficulty inherently arises, however, is in trying to define the line at which an expression of views by an employer becomes "coercion, threats, promises or undue influence." In seeking to establish where the line lies the Board starts with the presumption that employees recognize that employers generally are not in favour of having to deal with employees through a trade union, and that therefore it ought not to surprise them when their employer indicates that he would prefer it if they voted against a trade union. Following from this the Board takes the view that an invitation to employees from their employer to vote against a trade union, in the absence of any surrounding facts or circumstances which would cause the employees to place undue emphasis on such statements, does not constitute under influence within the meaning of section 56. (See Playtex Limited, [1972] OLRB Rep. Dec. 1027.) On the other hand, however, the Board is also cognizant that an employee may be peculiarly vulnerable to employer influences. This point is clearly brought out in the decision of the Canada Labour Relations Board in the Taggart Service Limited case [(1964) CLLR Transfer Binder '64-'66, 91 16,015 at page 13,055] the following excerpt from which was cited with approval by this Board in the leading case of Bell & Howell Ltd., [1968] OLRB Rep. Oct. 695 at p. 706:

An employer may express his views and give facts in appropriate manner and circumstances on the issues involved in representation proceedings in so far as these directly affect him and has the right to make appropriate reply to propaganda directed against him in relation thereto. However, he should bear in mind in so doing the force and weight which such expressions of views may have upon the minds of his employees and which derive from the nature and extent of his authority as employer over his employees with respect to their wages, working conditions and continuity of employment. He should take care that such expressions of views do not constitute and may not be reasonably construed by his employees to be an attempt by means of intimidation, threats, or other means of coercion to interfere with their freedom to join a trade union of their choice or to otherwise select a bargaining agent of their own choice.

(See also Homeware Industries Ltd. (1981) OLRB Rep. Feb. 165.)

In Viceroy Construction Company Limited, [1977] OLRB Rep Sept. 562, the Board found that repeated references to job security appearing in the employer's written communication to employees, coupled with the factual reference to a number of plant closings, constituted a veiled threat to employment security conditional on the decision of the employees to unionize. In Greb Industries Limited [1979] OLRB Rep. Feb. 89, employer communication which touched on job security, but was not otherwise dissimilar to that which is before us, was found to be within the bounds of employer freedom of expression (see also Ottawa General Hospital, supra).

57. We have examined the correspondence which is before us in this matter and other than for the express solicitation of employee grievances or problems, which we have considered as part of the company's broader response to its knowledge of trade union activity, we are satisfied that it is within the bounds of legitimate free expression. There is nothing in these letters which can be read as threatening; there is no reference to job security; there are no promises made conditional on the employee's decision with respect to the union. We do not consider the references to the launching of a training programme and the review of the four year DSR rate to constitute unlawful promises within the meaning of section 64 of the Act. The reference to the number of former DSR's who have made it to the management ranks is a factual statement which, in our view, would not impair employee freedom of choice. The letter of February 13th contains a number of factual statements as attested to by the union's response of February 19, 1981. None of these statements can be read as constituting an implied or veiled threat to job security or the making of a promise conditional on the outcome of the union's organizing efforts. These statements, taken individually or together, do not exceed the bounds of the employer's right to express himself.

58. We reiterate that other than for the open solicitation of employee grievances, which we have dealt with as part of the employer's broader response to union activity, the letters which it sent to the employees on February 12th and 13th are within the bounds of the employer's freedom of expression protected by the statute.

59. We have found that the company violated the Act when it solicited employee grievances and provided additional adult help in response to and for the purpose of interfering with the union's organizing campaign. We must now decide if this case calls for the application of section 8 of the Act. 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. The purpose of the section with its built-in restrictions is summarized in Ex-Cell-O Wildex, Canada, [1977] OLRB Rep. June 370 at p. 373 as follows:

Section 7a (now section 8) allows the Board to certify a trade union as bargaining agent without the membership percentage usually required for outright certificate. It is not surprising, then, that the Legislature has placed a number of legal restrictions on its use. As the wording of the section makes clear, it is not enough that the employer has engaged in conduct prohibited by The Labour Relations Act. This conduct must have resulted in a situation where the true wishes of the employees are not likely to be ascertained from the results of a representation vote. As well, the trade union must, in the opinion of the Board, have membership support adequate for the purposes of collective bargaining in the union found appropriate by the Board.

The logic of these requirements is clear enough. The premise of the Act's certification procedures is that collective bargaining is to be afforded only when it is the choice of the majority. Accordingly, the grant of automatic certification to a trade union, in the absence of documented evidence of majority support, should only be permitted where the true wishes of the employees are not likely to be ascertained through the normal procedures and where the union has sufficient support among the employees in the unit to bargain collectively with the employer.

The Board expanded its views in this regard in Radio Shack[1979] OLRB Rep. Mar. 248 at p. 256 as follows:

Certification under section 7a [now section 8] of the Act is an extra­ordinary process which is not applied by the Board in response to all employer violations of the Act during the course of a union's organizing campaign. The Board is given broad remedial authority to rectify breaches of the Act and accepts that in most situations employees feel protected by the rule of law established under the Act so that they are not unduly influenced when making a secret ballot choice by employer violations of the Act which do not constitute direct threats to the employees' job security or promise of general economic advantage dependent upon whether or not a union is certified. Notwithstanding the absence of this type of violation in the instant case, the Board is satisfied that the employees of the respondent could not feel protected by the rule of law and confident in the efficacy of the protections afforded under the Act such that their true wishes would likely be ascertained by the taking of a secret ballot representation vote.

Notwithstanding proven employer violations of the Act, the Board has declined to apply section 8 in a number of cases. These cases are reviewed in Upper Canadian Furniture, supra.

60. 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 has been told by his employer, either expressly or impliedly, and has 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 Dvlex Limited, supra, Lorain 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, Sommerville Belkin Industries Limited, [1980] OLRB Rep. May 791 and A. Stork and Sons Ltd., [1981] OLRB Rep. April 419.)

61. 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.)

62. This is not a case where the employer has threatened the job security of his employees should they decide to join a trade union and bargain collectively, nor is it a case where the employer has engaged in a pattern of misconduct which would undermine the confidence of his employees in the viability of the Act and the protections afforded them in the exercise of their rights under the Act. The Board must nevertheless put its mind to whether or not the specific violation of the Act which has been found in this case has made it unlikely that the true wishes of the employees can now be ascertained. This determination, apart altogether from whether the union enjoys support adequate for collective bargaining, must be made, not only in light of the nature of the violation, but also in light of whatever other remedial responses are available to the Board and the effectiveness of these responses in redressing the impact of the unfair labour practice. Clearly, if alternative remedial responses provide an atmosphere conducive of free expression, the Board ought not to apply the extraordinary statutory remedy of certification without evidence of the membership support normally required for certification.

63. Before turning our mind to the question of remedy, we are compelled to observe that the union in this case did not approach over 80 per cent of those in the bargaining unit. The union had not recommenced its general canvass of bargaining unit employees prior to the company's unfair labour practice and in response, decided not to pursue its organizing plans but to apply to the Board under Section 8 of the Act. This is not a case, therefore, where it can easily be concluded that the membership support evidenced by the union, although less than the statutory minimum, is but a part of its real support, thereby lending substance to a finding that the union enjoys support adequate for the purposes of collective bargaining. In the circumstances of this case, and in the face of the actual membership support evidenced, the issue as to whether the union enjoys support adequate for collective bargaining is at best problematic.

64. The Board has a broad remedial power under section 89(4) of the Act and has increasingly, with judicial approval, used this authority to shape far-reaching and effective remedies to unfair labour practices. (See re Radio Shack [1979] OLRB Rep. Dec. 1220, Fotomat [1980] OLRB Rep. Oct. 1397, Westinghouse Canada Limited [19 80] OLRB Rep. Apr. 577, affd Supreme Court of Ontario (Divisional Court) 80 CLLC 14,062.) The principles which underline the framing of effective labour board remedies are analyzed in Radio Shack, [1979] OLRB Rep. Dec. 1220. This Board attempts to provide remedies to unfair labour practices which, although not punitive, are fair in the sense that they are fully compensatory and, as far as possible, put the successful complainant in the position he would have been in had there been no violation of the Act. In order to achieve the desired remedial result the Board must be sensitive to the realities of the work place so that a correct assessment of the impact of the unfair labour practice is made. The effect of a miscalculation, in terms of both the fairness and the effectiveness of the remedy, is self-evident. These are difficult determinations which tax the special expertise of the Board to the full.

65. This is not a case which lends itself to a Board order to revert to the status quo ante. In the first place the effect of such an order would be to deprive the employees of the benefits conferred. As importantly, the effect of such an order would be to interfere with the legitimate business operations of the respondent. We are satisfied that this is a case of mixed motive. The company's response to its knowledge of trade union activity was motivated not only by a desire to undermine the trade union but also by a desire to redress its circulation problems. In these circumstances, and where, in the Board view, a combination of other remedies can redress the effect of the unfair labour practice, an order of this type is inappropriate.

66. The effect of the company's unfair labour practice is twofold. Firstly, individual employees may have been influenced with respect to the need for a trade union. The fact that the bulk of the bargaining unit employees were never approached to sign cards does not alter our conclusion in this regard. Secondly, the union has lost the vehicle through which it planned to approach and persuade the unsigned DSR's. The evidence is that following the company's unlawful activity the employees who had indicated a willingness to approach their fellow employees on behalf of the union lost their enthusiasm and were no longer prepared to play a liaison role. We are satisfied that this was as a result of the company's unfair labour practice.

67. Given the nature of the violation in this case and its effect, we are of the view that a remedy which requires the company to post notices which inform the bargaining unit employees that the Board has found the employer in violation of the Act and which contain a statement of the employees' rights under the Act, coupled with an order providing the union with an opportunity to address the affected employees will redress the effect of the employer's actions such that the union will be made whole and the true wishes of the employees can be ascertained. The provision for union access to employees will allow it to attempt to persuade employees of the need for collective bargaining. In addition, the union will have the opportunity to explain to those in the bargaining unit that the benefits which they have received are at least partially the result of the union's presence and furthermore, are subject to whatever unilateral decision the company may make with respect to how it operates in the future. It is our view that in the circumstances of this case, employees so informed will be able to make a voluntary decision as to whether or not to give the complainant union the support necessary to produce effective collective bargaining.

68. Having regard to all of the foregoing,

(i) We hereby declare that the respondent company violated section 64 of the Act when, from February 6, 1981 and following, it solicited employee grievances and provided its district sales representatives with additional part-time adult help in part for the purpose of interfering with the attempt of the complainant trade union to organize its district sales representatives.

(ii) We hereby direct that the notice, marked 'Appendix' to this decision, be posted in a conspicuous place in each of the branch offices for a period of not less than 60 consecutive working days from the date of this decision.

(iii) We hereby direct that a representative of the complainant trade union be given the opportunity to address the district sales representatives in each branch office during working hours on one occasion. Each such address is not to exceed one hour, is to commence after 10:00 a.m. and is to take place within 90 days of the date of this decision. The complainant will notify the respondent one week in advance of the date and time of each address.

69. The application for certification is hereby dismissed.

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 THE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY SOLICITING EMPLOYEE GRIEVANCES AND CONFERRING CERTAIN BENEFITS UPON EMPLOYEES IN CONTRAVENTION OF SECTION 64 OF THE ACT,

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 INTERFERS WITH THESE RIGHTS,

TRE GLOBE AND MAIL DIVISION OF

CANADIAN NEWSPAPERS COMPANY

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 26TH day of FEBRUARY, 1982