Ontario Labour Relations Board

[1983] OLRB Rep. March 385

1793-82-U Christian Labour Association of Canada, Complainant, v. Peter Nursing Home Limited, carrying on business as Heritage Manor Rest Homes, and Marian Peter, Respondents

BEFORE: R. D. Howe, Vice-Chairman, and Board Members C. G. Bourne and B. L. Armstrong.

APPEARANCES: Owen V Gray, Frank Kooger, and Debbie McEllistrum for the applicant,~ James E. Bowden, Marian Peter, and H. Peter for the respondents.

DECISION OF THE BOARD; March 30, 1983

1. This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that the respondent has contravened sections 66, 70, 79, and 80 of the Act.

2. In a decision dated February 11, 1983, another panel of the Board ruled on certain objections raised by counsel for the respondents with respect to the enlargement of the original complaint by the complainant, and the order of proceeding. In that decision, the Board ruled that all of the complainant's allegations should be combined and heard together and that the complainant should be allowed to proceed first. It was also noted in paragraph 9 of that decision that counsel for the respondents objected to that panel's jurisdiction to make a procedural ruling that the complainant proceed first, when that panel was not remaining seized of the matter for the purpose of hearing the merits of the case, as it was counsel's position that the panel could not decline jurisdiction after having made a procedural ruling. However, counsel for the respondents did not pursue those objections before the present panel of the Board at the hearing of the merits of this complaint in Chatham, Ontario on February 28, March 1, 2, and 3, 1983. Indeed, he expressly concurred with the view that it would be in the best interest of all concerned parties to have this matter heard on the merits and decided by the Board as expeditiously as possible.

3. A number of the complainant's allegations pertain to section 66, the material parts of which provide as follows:

"No employer, employers' organization or person acting on behalf

of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act."

In cases involving section 66, the Board is not primarily concerned with the fairness or lack of fairness in the conduct of the employer. Rather, the Board's concern is whether the conduct of the employer was in any way tainted by anti-union motivation. Nevertheless, in making that determination, the Board must consider all of the surrounding circumstances. As indicated in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at paragraph 5:

"In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other 'peculiarities' (See National Automatic Vending Co. Ltd. case, 63 CLLC 16,287). .

(See also Charterways Transportation Limited, [1982] OLRB Rep. Jan. 5; Sonic Transport Systems Limited, [19811 OLRB Rep. Oct. 1483; ABC Day Nursery and Kindergarten Limited, [1980] OLRB Rep. April 391; and Fielding Lumber Company, [1975] OLRB Rep. Sept. 665.) Similar principles apply to section 80 of the Act, which is designed to ensure that persons may testify or otherwise participate in proceedings before the Board without fear of recrimination by an employer, a trade union, or a person acting on behalf of an employer or a trade union (see, for example, The International Association of Bridge, Structural and Ornamental Iron workers, [1982] OLRB Rep. Oct. 1487).

5. The complainant's allegations also include a number of alleged contraventions of section 79 of the Act. The Board summarized the purpose and effect of the "freeze" imposed by that statutory provision as follows in A E S Data Limited, [1979] OLRB Rep. May 368, at paragraph 10:

"The purpose of section 70 [now section 79] is to maintain the prior pattern of the employment relationship, in its entirety, while the parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents unilateral alterations in the status quo which might give one party an unfair advantage either from the point of view of bargaining or of propaganda. The status quo includes not only the existing terms and conditions of employment but also any other established benefits which the employees are accustomed to receive, and which can therefore be considered to be 'privileges'. It is clear that express promises, or a consistent pattern of employer conduct, can give rise to such privileges and that they are caught by the statutory freeze. It should be noted, however, that section 70 also freezes the 'rights and privileges' of the employer. The section requires both parties to maintain the existing pattern of their relationship, that is, to conduct their business as before. In Spar Aerospace Products Limited, [1978] OLRB Rep. Oct. 859, the Board discussed the effect of section 70 in the following way:

The 'business as before' approach does not mean that an employer cannot continue to manage its operation. What it does mean is, simply, that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit."

6. The complainant also relies on section 70 of the Act which provides:

"No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act."

7. There were a number of disparities, contradictions, and inconsistencies in the evidence adduced in these proceedings. After carefully considering the testimony of the twelve witnesses who gave evidence before us and the extensive documentary evidence introduced through those witnesses (or received by the Board on the consent of the parties), we have made the findings of fact contained in this decision based upon our weighing of that evidence, in the light of our assessment of the relative credibility of the various witnesses, having regard to factors including the firmness of the witnesses' respective memories, their ability to resist the influence of interest to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the circumstances of the case, and what inferences may reasonably be drawn from the totality of the evidence.

8. The respondent Marian Peter and her husband own the respondent Peter Nursing Home Limited, which owns and operates Heritage Manor Nursing Home (the "Home") in Blenheim, Ontario. The Home was acquired by the respondent company in March of 1981. It provides food, shelter, and personal care for elderly persons. Although it can accommodate 47 residents, it has never achieved full capacity but rather has fluctuated between 31 and 40 residents, with an average of about 35 residents.

9. In late September of 1982, the complainant's organizational activities culminated in the filing of an application for certification with the Board (File No. 1230-82-R). That application was filed by the complainant (also referred to in this decision as the "union") on September 29, 1982. At or about that time, Mrs. Peter became aware that some of the Home's employees were dissatisfied with their wage level. As a result, she introduced a wage increase of Sic per hour, effective October 1, 1982, for all employees of the Home. The (Form 6) "green sheet" arrived at the Home on October 4, 1982 and was posted on the following day. Mrs. Peter was very upset about the complaint's application for certification. She walked around the Home in tears and angrily told a number of employees that she could close the Home and that the residents would have to go somewhere else because she would "go in the hole" with the union there.

10. Approximately a week after the green sheet was posted, Mrs. Peter approached Cindy McKellar during her break and told her that it would take a long time for the union to get a contract since it had taken about a year and a half at her nursing home in Tilbury. Mrs. Peter also stated that she "could close the place down and in a year and a day the union would be out of there

11. Evidence concerning Mrs. Peter's actions following receipt of the green sheet was given in the certification proceedings (before another panel of the Board) by Debbie McEllistrum, a nurses aide who was the complainant's main employee organizer, and by Diane Kankula and Cindy McKellar, two other nurses aides employed by the respondent. Their evidence was called by the union in opposition to a petition circulated by another employee (Patricia Bedford). In rejecting the petition, that panel of the Board wrote as follows (in an unreported decision dated November 15, 1982):

"10. It is clear that from the time the green sheets were posted until October 12th, the terminal day, the owner, Mrs. Peter, kept constantly before the employees the threat of closing the operation down if the union came in. In addition, she emphasized to the employees that they would upset the patients by causing them to move elsewhere when the Home was closed because of the union. There was thus a threat of loss of employment and an attempt to play on the employees' sympathy for the patients before the employees from the date of the posting to the terminal date. It was in this atmosphere that the petition, drawn up on the letterhead of the employer, was circulated among the petitioners. Even if we accept Mrs. Bedford's evidence that her change of heart (which, incidentally, she attributed to almost the identical concerns for cost and patient care as Mrs. Peter expressed to the employees on October 5th) had occurred on September 29th, the petition, based as she said on the green sheets~ did not materialize until after Mrs. Peter's outburst in the cafeteria. Keeping that in mind together with threats and appeals made by Peter during the time when the petition was being signed, and the fact that the petition presented to the employees was drawn up on the letterhead of the employer, we find that the petition in the present case was not voluntarily signed by the employees concerned. In the circumstances, the Board declines to exercise its discretion to direct the taking of a representation vote ."

(See Re Tandy Electronics and United Steelworkers of America et al. (1980), 30 O.R. (2d) (Div. Ct.), in which the Court indicated the extent to which prior Board decisions involving the same parties can be utilized by the Board. Leave to appeal that decision was refused by the Ontario Court of Appeal on March 10, 1980). After receiving the certificate that was issued pursuant to the Board's decision dated November 15, 1982, Frank Kooger, an Ontario Representative of the complainant, gave the respondents written notice to bargain pursuant to section 14 of the Act.

12. Unfortunately, the respondents' anti-union activities did not cease with the events which preceded the certification hearing. Following that hearing the respondents committed a pervasive series of unfair labour practices involving actual and constructive discharges, layoffs, reduction of employees' hours, alteration of terms and conditions of employment and various rights and privileges of employees, displacement of employees by members of the Peter family, and harassment, intimidation, and penalization of employees. For example, Mrs. Peter began to harass suspected union supporters by following them around the Home and closely scrutinizing their activities. Mrs. Peter's overt surveillance activities were particularly concentrated on Ms. McKellar. Although surveillance can have a legitimate application in the work place, an employer may not use surveillance to intimidate or penalize employees in respect of the exercise of their rights under the Labour Relations Act (see, for example, K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60). In the circumstances of this case, we find that Mrs. Peter's surveillance activities contravened sections 66, 79, and 80 of the Act.

13. At a staff meeting held at the Home on November 26, 1982, Marie Neville, an R.N. who had become the employees' new supervisor on November 22, 1982, told employees that they should be proud of the Home and the work they performed there, and that they must respect Mrs. Peter because she was the one who was "paying the bills". She also emphasized the importance of following proper procedures and warned the employees that she was going to be vigilant in ensuring that everyone did so. After concluding her comments, Mrs. Neville left the meeting and Mrs. Peter then addressed the employees. Mrs. Peter informed the staff that she had decided to take away the employees' "kitchen privileges". Thus, they would no longer be entitled to a free meal on each shift, nor would they be permitted to use the Home's stove or kettle for preparing their meals and beverages. A charge of 40C per cup of coffee was also introduced at that time. Mrs. Peter informed the employees that she was making those changes "because the union was there" and also told them that they had "brought this on themselves". Mrs. Peter also announced at that meeting that since the union was in, she could no longer afford to keep on as many staff so she was going to lay off two (unidentified) employees. She also suggested that she might not renew the "St. Thomas contract", i.e., a contract under which the Home provides care for certain impecunious residents at a somewhat reduced rate paid by the government. She suggested that further layoffs might result if she decided to move the seven residents covered by that contract from the Home to another (unorganized) rest home owned and operated by the respondent company in Duart, Ontario. She reiterated that it might take the union a year and a half to get a collective agreement.

14. Subsequent to that meeting, the respondents laid off Ruth Pinese, a part-time cleaner. (The elimination of Ms. Pinese's work as a cleaner resulted from the increased use of family members at the Home., as described below.) The hours of students Debbie Want and Michelle Embury, who had each previously worked from 4:00 to 9:00 p.m. three or four days per week, were reduced for the first two weeks of December and were then eliminated altogether when they were laid off in mid December. Part-time nurses aide Becky Hillman and Helen Fysh, a nurses aide who had been employed by the Home on a full-time basis at the time of her layoff, were also laid off in December. (Although Ms. Hillman and Ms. Fysh were subsequently recalled, the two students had not been recalled at the time of the hearing of this complaint. Moreover, Ms. Fysh was given only part-time work when she was recalled.) In addition to those layoffs, cleaner Phyllis Allan was cut back from five days a week at the Home to four days a week.

15. Those layoffs, together with Mrs. Allan's cutback, reduced the number of paid hours of bargaining unit work per week by almost 100, which represented a reduction of approximately 30%. There was not, however, a proportionate reduction in the amount of bargaining unit work required to be performed. Indeed, while there was a temporary reduction (in December of 1982) of about 6% in the number of residents at the Home, the amount of work required to be performed remained relatively constant at all material times since (in the words of Mrs. Neville, who implemented the layoffs in consultation with Mrs. Peter), in December of 1982 "a couple of residents started to deteriorate and they required more care", thereby increasing the amount of work to be done. Thus, there is no factual basis for the respondents' assertion that the employees were laid off "due to shortage of work".

16. At the time of its purchase, Mrs. Peter was advised by the former owner that the Home had sufficient staff to operate at full capacity. Although the Home's "census" had declined from 40 residents in August of 1981 to 33 residents in October (and November) of 1981, the size of the Home's staff complement remained unchanged. The Home had a census of 33 residents in September and October of 1982. (Advertisements had been placed in local papers in an attempt to attract more residents but had not succeeded in increasing the Home's census.) Although the census temporarily dropped slightly further (to 31 residents) in November, it returned to 33 in December. While Mrs. Peter may have had some concerns about the size of the Home's payroll prior to the application for certification, she took no action to reduce the workforce until after the union had been certified. Indeed, she voluntarily increased the size of the payroll in late September by giving employees a substantial wage increase (as described above). Thus, under the circumstances, we are unable to give credence to Mrs. Peter's contention that the impugned lay-offs were necessitated strictly by economic factors and were devoid of anti-union motivation. Financial statements filed with the Board indicate that although the Home experienced a net loss for the month of October (1982) for income tax purposes, its gross income for that month exceeded its actual operating expenses and it remained profitable on a "year-to-date" basis. Moreover, the Home's financial statements do not support Mrs. Peter's contention that she was "going in the hole every month".

17. Having regard to all of the circumstances, we find that the aforementioned layoffs and the reduction in working hours were contraventions by the respondents of section 66 of the Act. Those anti-union actions were intended to penalize, and did in fact penalize, not only the individual grievors who were laid off or cut back, but also the other members of the bargaining unit who suffered a substantially increased workload as a result of those actions. For example, the unlawful layoffs reduced the employee complement on the night shift from two nurses aides to a single nurses aide. Although night shift responsibility for breakfast time medications was eliminated, additional cleaning and kitchen duties were added which, in combination with the staff reduction on the shift, resulted in the nurses aides who thereafter worked alone on the night shift (including Ms. McEllistrum, Ms. McKellar, Ms. Kankula, Ms. Hillman, and Ms. Fysh) having a far greater workload than before.

18. In view of our finding that the impugned layoffs and reductions in working hours by the respondents were contraventions of section 66, it is unnecessary to determine whether those actions also contravened section 79 of the Act. We are satisfied, however, that the respondents contravened section 79 by altering employees' terms and conditions of employment, and their rights and privileges, as follows, without the consent of the complainant:

(1) wage increments, which had generally been given to each new employee after three months, six months, and one year of employment, were withheld;

(2) employees were not permitted to exchange shifts without the permission of Mrs. Peter, thereby being deprived of the privilege of exchanging shifts by mutual agreement between employees, subject only to the requirement of advising their immediate supervisor (the "R.N.") of the exchange; similarly, requests for time-off, which had previously been granted quite liberally by the R.N., required Mrs. Peter's express approval after the green sheet was posted;

(3) the scheduling of three-day weekends was eliminated thereby depriving employees who worked on a statutory holiday of the privilege of having a substitute day off with pay scheduled immediately before or after a weekend off;

(4) employees' free meal and beverage privileges were eliminated, as was their privilege of using the Home's stove and kettle to heat their meals and beverages; and

(5) a new disciplinary procedure involving written warnings, generally given by Mrs. Neville (often accompanied by Mrs. Peter) at meetings with individual employees, was introduced and applied most vigorously to employees known or suspected by management to be union supporters.

19. Some of those changes were revoked by the respondents on or about December 6, 1982 on the advice of counsel. For example, some of the employees' meal and beverage privileges were restored at that time, but the night shift nurses aide continued to be denied the "supper type of meal" which had traditionally been provided free of charge to the person working that shift. The three, six and twelve month increments that had been withheld from certain employees were also subsequently paid to them retroactively.

20. The respondents also breached section 79 by arranging to have Mrs. Peter's sons perform an increased amount of bargaining unit work, thereby displacing existing bargaining unit employees (see Oakwood Hotel (Toronto) Limited, [1977] OLRB Rep. Aug. 531). For example, during the first two weeks of December, her son Jerry worked a total of six shifts on the 4:00 to 9:00 p.m. "student shift", thereby reducing each of the students employed by the Home to two shifts per week. (He ceased to do that work in mid December when he temporarily left the Home to vacation with his family). Jerry Peter also "filled in" on the night shift from time to time after Ms. McEllistrum was discharged on January 25, 1983. Prior to the posting of the green sheet, Jerry had performed mostly maintenance duties at the Home such as building repairs and upkeep of the yard. (He continued to perform such maintenance work after the respondents were notified of the certification application.) Randy Schmeltz, another of Mrs. Peter's sons, began to work an increased number of hours as a cook at the Home after the green sheet was posted. Prior to the application for certification, some of that cooking had been performed by Phyllis Allan (the aforementioned cleaner). When Ms. Allan was working as a cook, the cleaning duties would be performed by part-time cleaner Ruth Pinese. After the union was certified, Ms. Allan was given only cleaning duties and was no longer given any cooking duties. Thus, Ms. Pinese was no longer called upon to perform any cleaning duties at the Home, and was laid off (as described above).

21. In addition to being contraventions of section 79 of the Act, the respondents' actions described in paragraphs 17 and 19 of this decision also breached section 66 as they were motivated at least in part by anti-union animus. Moreover, we are satisfied that the flurry of written warnings imposed upon the grievors who testified in opposition to the voluntariness of the petition in the aforementioned certification proceedings contravened not only sections 66 and 79, but also sections 70 and 80 of the Act. It is unnecessary to dilate unduly on the subject matter of those warnings which, for the most part, dealt with relatively trivial matters and represented transparent attempts to punish and harrass supporters of the complainant. For example, four written warnings were given to Ms. McKellar on December 6, 1982. She had never before received a written warning, nor had her conduct or work performance been criticized by management in any way during her period of over two and one half years of employment at the Home. Two of those four warnings purported to be based on failures by Ms. McKellar to communicate with Jerry Peter with respect to "setting up for dinner". Mr. Peter, who was "replacing" one of the students who normally worked on that shift, was quite familiar with the day-to-day operations of the Home and, on his own admission, needed no instructions about the dinner set up. On the evidence, it is clear that the fact was also apparent to Mrs. Neville, who gave the warnings in question with the concurrence of Mrs. Peter. Moreover, it was palpably unreasonable under the circumstances to expect a nurses aide to give instructions on such a routine matter to Mrs. Peter's son. The other two written warnings which Ms. McKellar received that day also pertained to picayune matters that would not have attracted a written warning or any other disciplinary action but for the respondents' desire to penalize, harass, and intimidate Ms. McKellar in respect of her pro-union activities.

22. By late December the respondents' campaign of harassment against union supporters and the adverse atmosphere and working conditions which had been created at the Home by the respondents' illegal actions had begun to bother Ms. McKellar to such an extent that she decided to resign from the staff of the Home. Accordingly, she submitted a written resignation on December 20, 1982, effective December 23, 1982. Although she had not obtained alternate employment at the time of her resignation, she began to work at another establishment on January 11, 1983. (Ms. McKellar's resignation resulted in the recall from lay-off of Ms. Hillman and Ms. Fysh.) Having regard to all the evidence, we find that the respondents' harrassment, intimidation and penalization of Ms. McKellar contravened sections 66, 70, and 80 of the Act. We also find that the respondents' illegal actions amounted to a constructive discharge of Ms. McKellar, whom we find to be entitled, in the circumstances of this case, to be offered reinstatement, with compensation for lost wages and benefits arising from her termination of employment, whether or not she accepts reinstatement.

23. Diane Kankula was also dealt with contrary to sections 66, 70, and 80 by the respondents. In addition to having her one year increment withheld and being given two written warnings (one in the Home's "communication book" and another on the Home's newly introduced "Employee Warning Record") in December for a minor incident concerning sticky floors, Ms. Kankula, who had never before been disciplined or criticized concerning her job performance at any time during her twelve months of employment at the Home, was scheduled to work an inordinate number of consecutive shifts during January and February of 1983, with relatively few days off on weekends.

24. The respondents also dealt with Debbie McEllistrum contrary to the Labour Relations Act in a number of respects. Ms. McEllistrum was hired by the Home on June 2, 1982 as a full-time nurses aide on the understanding that she would work only the night shift. However, when the R.N. (Bonnie Collins) advised her in mid October that Mrs. Peter had told her that she was not happy with Ms. McEllistrum's work and wanted her to be put on days so she could be "watched", Ms. McEllistrum wrote a note to Mrs. Peter in which she expressed her willingness to try other shifts. Accordingly, Ms. McEllistrum began to work all three shifts in November. Prior to the certification of the complainant but after Mrs. Peter had become aware of the fact that Ms. McEllistrum was an active union supporter, Mrs. Peter threatened Ms. McEllistrum's job security by telling her that "if the union got in, the place was going to be closed down". Mrs. Peter also gave Ms. McEllistrum an oral warning about failing to polish the chairs at the Home, despite the fact that Ms. McEllistrum had been following all the instructions and training which she had been given by management concerning the monthly polishing of chairs. The respondents also illegally withheld (until late January of 1983) the six month pay increment that Ms. McEllistrum was entitled to receive as of December 2, 1982. In addition to the aforementioned oral warning, Ms. McEllistrum, who prior to the posting of the green sheet had received no criticism whatever from any member of management about her work performance, was further criticized by Mrs. Peter concerning a burned tea kettle for which she was not responsible. When she telephoned Ms. McEllistrum about that incident, rather than listening to Ms. McEllistrum's explanation, Mrs. Peter told her, "You've had your chance and it's almost up", and then hung up on her. Ms. McEllistrum was also given two separate warnings (along with Ms. Kankula) concerning the aforementioned minor incident involving sticky floors. The first of those warnings was written in the Home's communications book where it could be read by other employees of the Home. It appears from the evidence that this was the first time any employee had received a written warning in that fashion. Ms. McEllistrum wrote the following response to that written warning:

"Mrs. Neville — I think you were misinformed about hallway floors. They certainly were scrubbed on nights December 2/82 by myself & Diane [Kankula]. You did not come to us in the morning with this complaint. . ." Notwithstanding that response, Ms. McEllistrum was given a second written warning about the same incident by Mrs. Neville, with the concurrence of Mrs. Peter who was present when Mrs. Neville gave Ms. McEllistrum the latter warning. Although Mrs. Peter did not say anything, she remained there throughout the meeting, "glaring" at Ms. McEllistrum. Ms. McEllistrum also received a written warning for allegedly smoking in the kitchen of the Home. She received that written warning a week after the incident was alleged to have occurred and at a time when she was unable to recall whether or not she had in fact been smoking in the kitchen on the day in question. The significance of that ''misconduct" is best appreciated in the light of the fact that members of the Peter family also smoked in the kitchen from time to time, despite the "no smoking" sign posted there.

25. Ms. McEllistrum was also given a written warning for failing to make an immediate room by room search on January 10, 1983 when she discovered that one of the residents was missing. Although Ms. McEllistrum could have been more diligent on that occasion, her reasonable belief that Mrs. Peter and her son Randy had the situation under control, and the necessity of calming down a resident who mistakenly thought that she was about to die, are substantial mitigating factors. In any event, we find that management seized upon this incident as a basis for further penalizing Ms. McEllistrum for her pro-union activities, and as part of the respondents' continuing efforts to build a record against Ms. McEllistrum with a view to masking an anti-union termination of her employment. At a meeting on January 14, 1983, at which Ms. McEllistrum was given a written warning concerning that incident, Mrs. Peter made a number of highly provocative statements to Ms. McEllistrum. While Ms. McEllistrum was attempting to write her explanation of the incident on the warning form, Mrs. Peter told her in a loud, hostile voice that she did not trust her and that she was "a liar, an incompetent, not capable of looking after [herself] let alone the residents". In addition to other inflammatory statement, Mrs. Peter asked Ms. McEllistrum why she did not get a job elsewhere. This prompted Ms. McEllistrum to ask, "If you think I'm so incompetent, why don't you fire me?" In light of all of the circumstances, we infer that Mrs. Peter was attempting to provoke Ms. McEllistrum into resigning from the staff of the Home. While no resignation was forthcoming, Mrs. Peter's intemperate remarks did succeed in provoking Ms. McEllistrum to respond in kind with anger and hostility. Following that exchange, Ms. McEllistrum refused to sign the warning form and left the office.

26. Management subsequently cited Ms. McEllistrum's "behaviour" during that meeting, together with her "past record" as a basis for suspending her without pay "pending full review of [her] employment status". During that review, management became aware of another incident involving Ms. McEllistrum. That incident and her "past record", including several alleged incidents which had never been drawn to Ms. McEllistrum's attention prior to the hearing of this matter, were put forward in these proceedings as the sole basis for the termination of her employment. Although the accounts of that incident by management witnesses contained a number of contradictions and inconsistencies, it appears that Ms. McEllistrum was negligent in the performance of her duties in that she forgot to record in the Home's "daily record book" the fact that one of the residents, who is a diabetic on a one thousand calorie diet, had for dessert a piece of apple pie which, to the knowledge of all concerned (including the resident), she should not have eaten. In their testimony before the Board, Mrs. Peter and Mrs. Neville suggested that Ms. McEllistrum was also responsible for the pie coming into the resident's possession, but their evidence concerning that aspect of the matter was contradictory, inconsistent, and unconvincing. Although we do not condone Ms. McEllistrum's negligence in failing to note the matter in the daily record book to alert the next shift of the situation, in the light of all the circumstances of this case we find that anti-union animus played a substantial role in the actions taken by the respondents against Ms. McEllistrum, including her discharge, of which she was informed on January 25, 1983 at a negotiating session which she attended as a representative of the union. Accordingly, we find that the harassment, intimidation, discipline, and discharge of Ms. McEllistrum by the respondents contravened sections 66, 70, and 80 of the Act.

27. Since counsel were in agreement that the posting at the Home of a "notice to employees" concerning his case would tend to cause unnecessary concern and anxiety among the residents of the Home, the Board will direct that a notice be mailed to employees rather than posted at the Home. In addition to the usual declaratory relief, cease and desist orders, reinstatement directions, and directions concerning compensation for lost wages and benefits, in the circumstances of this case involving repeated abuses of the respondents' scheduling powers, the Board finds it appropriate to direct the respondents to provide the complainant with a copy of each work schedule forthwith after it is posted in the Home. That direction will remain effective until the parties enter into a collective agreement or the complainant's bargaining rights are terminated.

28. In view of management's use of disciplinary meetings as a form of harassment and intimidation of union supporters in this case, the Board also finds it appropriate to direct that, until such time as the parties enter into a collective agreement or the union's bargaining rights are terminated, no representative of the respondents shall meet with any employee in the bargaining unit for the purpose of disciplining that employee unless the employee is permitted to have with him or her at the meeting a representative of the complainant or another member of the bargaining unit selected by the employee. (It is unnecessary in this case for the Board to express any view concerning whether unionized employees have the right to such representation under the Act irrespective of such circumstances.) Furthermore, in view of the part which management meetings with employees have played in the respondent's anti-union activities, we shall also direct (as the Board did in the K-Mart case, supra) that the respondents permit a representative of the union to have access, with reasonable advance notice, to all meetings of employees called or convened by a representative of the respondents, which involve discussion of collective bargaining or representation of employees by the complainant, with equal time to be afforded the union representative to respond to statements or comments by management, such access to be provided until a collective agreement is concluded or the union's bargaining rights are terminated.

29. Thus, the Board has found that the respondents have engaged in a pervasive series of unfair labour practices directed primarily against known or suspected supporters of the complainant. Although the respondents' unlawful conduct has not prevented the complainant from obtaining a certificate, extensive remedial relief is necessary to compensate the grievors for the losses which they have suffered and to place them and the complainant as nearly as possible in the position they would have been in if the respondents had not contravened the Act. In the absence of such relief, the collective bargaining rights which flow from the certificate could prove to be nugatory. The remedies granted by the Board do not, of course, prevent the respondents from making operational changes (not precluded by the freeze) for valid business reasons devoid of anti-union animus.

30. The Board therefore declares that the respondents have contravened sections

66, 70, 79, and 80 of the Labour Relations Act, and hereby orders that the respondents:

(1) cease and desist from breaching sections 66, 70, 79, and 80 of the Labour Relations Act;

(2) reinstate Debbie McEllistrum, Ruth Pinese, Debbie Want, and Michelle Embury forthwith, and compensate them for all lost wages and benefits sustained through the respondents' violations of the Act;

(3) restore Helen Fysh to full-time employment, and compensate her for all lost wages and benefits arising from her layoff and subsequent recall on a part-time rather than a full-time basis;

(4) offer to reinstate Cindy McKellar, and (whether or not she accepts reinstatement) compensate her for all lost wages and benefits arising from her termination of employment;

(5) compensate Becky Hillman for all lost wages and other benefits arising from her layoff;

(6) revoke the one day reduction in the weekly days of work of Phyllis Allan, and compensate her for all lost wages and benefits sustained as a result of that reduction;

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

(8) remove from the records of the Home and destroy all written warnings and other disciplinary notations given to the grievors during December of 1982 and January of 1983, with the exception of notations pertaining to Debbie McEllistrum's failure to record the "apple pie incident" in the Home's daily record book, which notations are to remain in Ms. McEllistrum's file as a written warning (subject to any collective agreement provision that may become applicable with respect to the removal of disciplinary notations from personnel files);

(9) restore in totality the meal and beverage privileges and all other rights and privileges enjoyed by employees prior to the onset of the "freeze", and maintain all such rights and privileges for the duration of the freeze period;

(10) compensate employees for the free meals and beverages which they were deniedas a result of the respondents' breach of the freeze;

(11) cease and desist from using members of the individual respondent's family to perform during the freeze period bargaining unit work to an extent beyond that which was performed by them before the onset of the freeze;

(12) schedule for Diane Kankula a sufficient number of days off on weekends to compensate for the inordinate number of consecutive shifts that she was scheduled to work during January and February of 1983;

(13) at their own expense, mail a copy of the attached notice marked "Appendix", after being duly signed by the respondent Marian Peter, to the residence of each person employed at the Home at any time during the period from September 29, 1982 to the date of this decision;

(14) take all necessary steps to ensure that until such time as the complainant and the respondent company enter into a collective agreement or the complainant's bargaining rights are terminated, no representative of the respondents shall meet with any employee in the bargaining unit for the purpose of disciplining the employee unless the employee is permitted to have with him or her at the meeting a representative of the complainant or another member of the bargaining unit selected by the employee;

(15) permit a representative of the complainant to have access, with reasonable advance notice, to all meetings of employees called or convened by any representative of the respondents, which involve discussion of collective bargaining or representation of employees by the complainant, with equal time to be afforded the complainant's representative to respond to statements or comments made by the representative of the respondents, such access to be provided until such time as the complainant and the respondent company enter into a collective agreement or the complainant's bargaining rights are terminated; and

(16) provide the complainant with a copy of each work schedule forthwith after it is posted in the Home, until such time as the complainant and the respondent company enter into a collective agreement or the complainant's bargaining rights are terminated.

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

APPENDIX

THE LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES

MAILED TO EMPLOYEES BY ORDER OF

THE ONTARIO LABOUR RELATIONS BOARD

We have mailed this notice to you in compliance with an Order of the Ontario Labour Relations Board issued after a hearing in which we and the union participated. The Ontario Labour Relations Board found that we violated the Labour Relations Act by harassing, disciplining, and discharging Debbie McEllistrum; laying off Ruth Penese, Debbie Want, Michelle Embury, Becky Hillman, and Helen Fysh; recalling Helen Fysh to part-time rather than full-time employment; reducing by one day Phyllis Allan's weekly days of work; surveillance, harassment, and unlawful disciplining of Cindy McKellar; withholding the one-year pay increment of Diane Kankula, disciplining her twice for a minor incident, and scheduling her to work an inordinate number of consecutive shifts; arranging to have Jerry Peter and Randy Schmeltz perform an increased amount of bargaining unit work; altering employees' terms and conditions of employment and a number of their rights and privileges during the "freeze" imposed by the Act; and by other actions described in the Board's decision in this matter.

The Act gives all employees these rights:

To organize themselves;

To form, join, and participate in the lawful activities of a trade union;

To act together for collective bargaining;

To refuse to do any and all of these things.

We assure all of our employees that:

WE WILL NOT do anything that interferes with these rights.

WE WILL cease and desist from breaching the Ontario Labour Relations Act.

WE WILL reinstate Debbie McEllistrum, Ruth Penese, Debbie Want and Michelle Embury forthwith, and compensate them for all lost wages and benefits.

WE WILL restore Helen Fysh to full-time employment and compensate her for all lost wages and benefits.

WE WILL offer to reinstate Cindy McKellar, and will compensate her for all lost wages and benefits arising from her termination of employment.

WE WILL compensate Becky Hillman for all lost wages and other benefits arising from her layoff.

WE WILL revoke the one day reduction in the weekly days of work of Phyllis Allan and compensate her for all lost wages and benefits sustained as a result of that reduction.

WE WILL pay interest on the compensation for lost wages ordered by the Board.

WE WILL remove from the records of the Home and destroy all written warnings and other disciplinary notations given to the grievors during December of 1982 and January of 1983 (with the exception of one written warning to Debbie McEllistrum specified in the Board's decision).

WE WILL restore in totality the meal and beverage privileges and all other rights and privileges enjoyed by employees prior to the onset of the freeze and will maintain all such rights and privileges for the duration of the freeze period.

WE WILL compensate employees for the free meals and beverages which they were denied as a result of our breach of the freeze.

WE WILL cease and desist from using members of the Peter family during the freeze to perform bargaining unit work to an extent beyond that which was performed by them before the onset of the freeze.

WE WILL schedule for Diane Kankula a sufficient number of days off on weekends to compensate for the inordinate number of consecutive shifts that she was scheduled to work during January and February of 1983.

WE WILL mail at our own expense a copy of this notice to each of our employees.

WE WILL take all necessary steps to ensure that until such time as the union and the Home enter into a collective agreement, or the union's bargaining rights are terminated, no representative of the Home shall meet with any employee in the bargaining unit for the purpose of disciplining that employee unless the employee is permitted to have with him or her at the meeting a representative of the union or another member of the bargaining unit selected by the employee.

WE WILL permit a representative of the union to have access, with reasonable advance notice, to all meetings of employees called or convened by any representative of the Home to discuss collective bargaining or representation of employees by the union, with equal time to be afforded to the union's representative to respond to statements or comments made by the representative of the Home, until such time as the union and the Home enter into a collective agreement or the union's bargaining rights are terminated.

WE WILL provide the union with a copy of each work schedule forthwith after it is posted in the Home, until such time as the union and the Home enter into a collective agreement or the union's bargaining rights are terminated.

PETER NURSING HOME LIMITED

carrying on business as

HERITAGE MANOR REST HOME

Per Marian Peter

THIS IS AN OFFICIAL NOTICE OF

THE ONTARIO LABOUR RELATIONS BOARD

DATED THIS 30TH DAY OF MARCH, 1983