Schneiders Office Employees Association v. J. M. Schneider Inc. and Link Services Inc., 1984 CanLII 913

[1984] OLRB Rep. April 609

1309-83-U Schneiders Office Employees Association, Complainant, v. J. M. Schneider Inc. and Link Services Inc., Respondents.

BEFORE: Oen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and E S. Cooke.

APPEARANCES: Ross Wells and Gidge Trepanier for the complainant; R. J. Drrnaj, Brian Eckert, J. MacNicol and P De Vrieze for the respondents.

DECISION OF THE BOARD; March 19, 1984

1. In this complaint filed under section 89 of the Labour Relations Act, the complainant trade union alleges that Philip Honsinger, Philip King, Barbara Lovell and Martha Grove ("the grievors") were dealt with by the respondents in a manner contrary to the provisions of the Labour Relations Act.

2. On the morning of September 13, 1983, the grievors were all at work as programmer analysts in the information systems department of J. M. Schneider Inc. ("Schneiders"). That morning their immediate superior, Paul DeVrieze, approached each of them individually. He told Philip King he wanted to meet with him at 2:30 that afternoon to find out how things were going. He told Barbara Lovell there would be a project status meeting at 2:30 that afternoon. He asked Honsinger to come to a meeting at 2:30. Honsinger thought this was to discuss his future work. DeVrieze asked Grove to attend a 2:30 meeting to discuss the reorganization of the office. Shortly before 2:30, the grievors were each told that the meeting to which they had been invited would be held in a conference room in the Personnel area, three floors below the area in which they worked. The respondents' manager of compensation and benefits, Murray O'Brien, was there when the grievors arrived. Paul DeVrieze walked in, sat down, opened a file folder, and read a prepared text: "After careful consideration, I find I have no alternative but to terminate your employment effective immediately", or words to that effect. He then took the grievors' security badges, without which they could not again return to their work areas. Each grievor was given a letter offering him or her a "termination package". None of the letters contained any explanation of the addressee's termination. Lovell asked DeVrieze "why?" several times. DeVrieze paid no attention. He got up and left without further comment. The grievors were then introduced to an outside consultant whose job search assistance program was part of the termination package they had each just been offered. That was their last day at Schneiders. Before the end of that day, they spoke to their trade union representatives. This complaint was filed the next day, September 14, 1983.

3. On November 22, 1982, the complainant trade union applied for certification as the bargaining agent for a bargaining unit consisting of office and clerical employees of both respondents (Board File No. 1619-82-R). (Schneiders' plant employees have for some time been represented by another trade union, the Schneiders Office Employees Association.) The complainant was found to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act in a decision dated December 20, 1982. The complainant was awarded interim certification in a decision dated April 16, 1983, and gave notice to bargain on June 17, 1983. The last of the disputes over the composition of the bargaining unit was later resolved, and a final certificate was issued October II, 1983. All four grievors are within the bargaining unit described in both the interim certification decision and the final certificate.

4. The parties were still bargaining for a first collective agreement when the grievors were terminated September 13, 1983. The complainant does not now allege that anti-union animus played any part in the respondent's decision to terminate the grievors. The complainant's case is based on section 79(1) of the Act, which reads as follows:

79.-(l) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(emphasis added)

The parties are in agreement that the "statutory freeze" imposed by section 79(1) was in effect as of the date of termination of the grievors. The complainant's case is that the grievors' terminations were contrary to the provisions of the respondent's "Policy Manual". The complainant says that the Policy Manual describes pre-freeze terms and conditions of employment and rights, privileges and duties of both Schneiders and its employees, and that the statutory freeze imposed on Schneiders an obligation to manage its employee relations with employees in the bargaining unit, and particularly the discharge and discipline of those employees, in accordance with the provisions of that Policy Manual. Schneiders' defence is that compliance with the provisions of the Policy Manual was not "frozen" by section 79 or, if it was, a management right to deviate from those provisions was equally preserved, and in any event, that the termination and manner of termination of each of the grievors was consistent with the provisions of the Policy Manual.

5. The "Policy Manual" is a collection of over 30 separate, multi-page policy documents compiled in a binder with a table of contents. The table of contents shows the policies organized into groups designated by letter: "A — Employment Practices", "B — Hours of Work", "C—Employee Benefits", "D —Employee Relations", "E —Pay & Salary Admin­istration", "F — Training", "G — Company and Plant Rules", "H — Discipline", "I — Ter­mination of Employment" and "J — Personnel Records". The policies in each group are numbered, so that each is identified by a letter, number and title — for example: "A-2 Classification of Employees'', ''B—2 Overtime'', ''D—4 Bulletin Boards'', ''D—5 Grievances'', ''G— 6 Parking", and so on. In addition to its letter, number and title, each policy bears an "is­sued" date, a "revised" date, and an "approved" space where that document has been initialed by the President of Schneiders. The earliest "issued" dates fall in 1966. Nearly all the "revised" dates fall in or after 1977. As noted in its Table of Contents, the Policy Manual also contains two prefaces to the actual collection of policies: a document styled "Purpose of the Manual", and another styled "Distribution of the Manual". They read as follows:

I PURPOSE OF POLICY AND ORGANIZATION MANUAL

In this Company, policies are considered guidelines for administrative convenience and consistency. Organization charts show lines of respon­sibility and indicate working relationships.

This manual contains statements of personnel policies and procedures. These are designed to be a working guide for supervisory staff in the day-to-day administration of our company personnel program.

It is hoped that these policies will increase understanding and assist in personal decisions on matters of company-wide policy, and help to assure uniformity of personnel practices throughout the organization. It is the responsibility of each and every member of management to administer these policies in a consistent and impartial manner.

Procedures and practices in the field of employer-employee relations are subject to modification and further development in the light of experience. Each member of management can assist in keeping our personnel program up to date by notifying the Personnel Department whenever problems are encountered or improvements can be made in the administration of our personnel policies.

II DISTRIBUTION OF MANUAL

This manual is assigned to positions and/or areas which involve supervisory/managerial responsibilities. It has limited distribution in order to keep the burden of maintenance to a minimum. However, it is not intended to be kept secret. Those persons to whom it is issued, or who have the responsibility of maintaining the manual, have an equal responsibility to ensure that employees have access to any policy that affects them.

Your co-operation is requested in keeping the manual up to date when policy or organization changes are sent to you in the future. This manual can be a reliable and effective tool for good management if carefully maintained.

6. Policy D — 5 "Grievances" bears an "issued" date of June 2, 1975. The text of that policy begins with the following statement:

Harmonious relationships between employees and the Company are an important consideration in the operation of our business. However, in every Company there can be honest differences of opinion about working conditions, discipline, rules and policies. Employees are encouraged to bring forward grievances without fear of prejudice or penalty.

The policy goes on to describe a four step grievance procedure, each step involving a progressively more formal presentation at a progressively higher level of management. Step III, for example, reads as follows:

If the problem is not resolved within five (5) full working days of receiving an answer under Step II, the grievance may be presented in writing to the Employee Relations Supervisor. He will notify the department manager that a Step III grievance has been received and will convene a meeting(s) with supervision and the employee to review the grievance.

Note:

(a) The employee may have a member(s) of the Office Committee or other salaried employee (not to exceed 2 fellow employees) attend the meeting with him.

(b) If facts are not in dispute, the grievance meeting may be waived, with the agreement of the employee.

An answer is to be rendered by the Employee Relations Supervisor in writing within five (5) full working days.

7. Because of its importance to this case, the relevant portions of Policy H — 1, "Discipline", are reproduced here in full:

I - POLICY

Rules and regulations are essential to the efficient operation of any company. Therefore, it is the policy of this Company to require adherence to its rules and to maintain a code of employee discipline which respects the dignity of the employees and which aims at prevention rather than punishment.

II - PURPOSE

With the exception of situations which are cause for discharge (see Termination policy), the most important purpose of this policy is to bring about improvement or change in performance before a more serious stage is reached.

To provide a guideline to assist supervision in:

a. Securing and maintaining (i) a high standard of conduct and productivity; (ii) a desirable level of employee morale through fair rules, equitably but uniformly administered and through the right to appeal disciplinary decisions.

b. Making efforts to salvage the borderline performer changing him into a satisfactory and desirable employee.

III - PROCEDURE

Every person who has the responsibility of supervising people, assumes within that responsibility the role that must be carried out in the day-to­day coaching (criticizing, correcting and warnings) of his/her subordinates. However, each Foreman/Supervisor/Manager has the right and authority to decide how much guidance is to be given an employee before embarking on a formal series of steps designed to bring about change or, failing that, lead to discharge.

If the day-to-day coaching does not bring about the desired results and the formal stage is reached, it should follow a pattern similar to that set out in Section A (for bargaining unit employees) or Section B (for salaried employees) of the policy.

B — Established Discipline Procedures (for salaried employees) Step 1

Step 1

This should be a formal discussion between the employee and his superior about the performance or behaviour re: 'the problem'. The employee should be reminded about previous informal talks and the need to improve.

Step 2

Another formal discussion should be held. The employee should be reminded again about former talks. The need to improve and past failure to do so should be stressed. If possible, specify a time within which im­provement is expected.

Step 3 - (*see note)

At the expiry of the specified time, (or earlier, if warranted), a further formal discussion should be held, attended by the employee's superior, a representative of the Office Committee (at the employee's option), and the employee. Make reference to previous discussions and failure to date to show satisfactory improvement. A warning must be stated specifying that failure to show satisfactory improvement within a given period of time will be cause for reconsideration of the employee's continued employment.

The 'gist' of this discussion should be recorded in writing by the employee's supervisor. This written record will be forwarded to the Personnel Department for review with the employee's supervisor. A copy will then be provided to the employee (and to the Chairman of the Office Committee, if a representative was in attendance).

Step 4

If improvement is not achieved by the end of the specified time, the employee's superior will contact the Personnel Supervisor or Employee Re­lations Supervisor (if a supervisory employee, the Director of Personnel) to discuss the situation and jointly recommend a course of action.

This recommendation will be referred to the Vice-President of the function (and to the President, in the case of a supervisory employee) at which level agreement on a course of action will be reached. It is to be re­corded in writing stating the performance and time requirements to be met to avoid discharge. After review of this record with the Personnel Supervisor or Employee Relations Supervisor, a copy will be provided to the employee (and the Office Committee, if appropriate).

Step 5

It is unlikely that a repeat of Step 4 could lead to any alternative except discharge. When a decision to discharge is reached, Personnel must be notified immediately.

• NOTE:

Before Step 3 disciplinary action is started on an employee, who has more than 10 years' service and/or who is a supervisory/management employee, the situation shall be discussed with Personnel and referred to the appropriate Vice-President before action is taken.

(The underlining in paragraph 11(a) appears in the original; "bargaining unit employees" refers to plant employees.)

8. Policy No. I — I is entitled "Termination of Employment". The relevant portions of that policy are as follows:

I - POLICY

It is the intent of the Company to provide continuous employment to all employees. However, conditions may arise which necessitate a termination of employment. When the lay off, discharge or resignation of an employee has been initiated by the Company, advance notice or pay in lieu of notice will be provided to the employee.

II - PURPOSE

To provide fair treatment to an employee whose employment has been terminated by the Company.

To encourage management to take prompt action whenever an employee fails to satisfactorily perform the duties of the job.

III - PROCEDURE

Sections: A — Voluntary Termination

B — Involuntary Termination

C — Exit Interview

D — Termination Pay

E — Vacation Pay

F — References

A termination advice form will be initiated by the employee's superior showing the reason for termination.

Each termination will be classed under one of the following categories.

B — Involuntary

(I) Discharge

The Company reserves the right to suspend or discharge any employee, without notice, for cause including:

— having or consuming intoxicants or unauthorized drugs on Company property;

— theft;

— disorderly, immoral or indecent conduct;

— continued absence or irregular attendance;

— habitual lateness;

— loitering during working hours;

— smoking in prohibited areas;

— insubordination or refusal to do work assigned;

— wilful or deliberate violation of safety practices or Company/Plant rules;

— any offence or combination of offences that, while not specifically listed, is considered to be serious or detrimental to the welfare of this Company, and/or its employees.

A discharge of a salaried employee must only be done following consultation with the Employee Relations/Personnel Supervisor. (Director of Personnel in the case of a management employee.)

Note:

The procedure for discharge for bargaining unit employee is established by the Collective Agreement and Discipline policy.

(2) Lay-off

(3) Retirement

(4) Death

9. Johanne Kelly testified with respect to the history and use of the Policy Manual in Schneiders' dealings with its office employees. Ms. Kelly began her employment with Schneiders in August of 1967 as a clerk in the industrial engineering department. She is currently a financial analyst. She was the first Vice-President of the complainant trade union. Prior to that, and since 1975, she was the chairperson of the Office Committee referred to in the Grievance and Discipline policies quoted in paragraphs 6 and 7 of this decision.

10. Ms. Kelly was first elected to the Office Committee as a department representative in 1972. Between that time and the formation of the complainant trade union in late 1982, the number of departmental representatives on the Office Committee varied between seven and ten. Documentation which came into Ms. Kelly's possession when she became chairperson of the Office Committee includes a memorandum dated September 8, 1969, from Schneiders' then Director of Human Resources to members of office supervisory and management staff to replace a former Office Committee. It indicated that the Committee would be meeting together on a regular basis and that its members should be allowed time off from their regular duties to do so. It emphasized that the Office Committee was not a trade union, and would not have negotiating powers. However, the memorandum directed that proposed changes in routines or relocation of personnel were to be discussed by managers in an informative way with the Office Committee representative for their area. Major changes affecting the entire office force were to be discussed with the full Office Committee. The memorandum expressed the expectation that individual members of the Committee might approach supervisors on behalf of fellow office workers. Supervisors were urged to accept such representations in a positive spirit.

11. It was Ms. Kelly's experience from and after 1972 that meetings and discussions of the kind described in the 1969 memorandum did take place from time to time. Indeed, in 1975 the Policy Manual was the subject of a number of meetings over the course of several months, at which the Office Committee and the respondent's then Manager of Personnel, Ralph Misner, reviewed the Manual page by page. In the course of that review, the Office Committee asked for specific policies dealing with job posting and a grievance procedure. Such policies were formulated in 1975 and added to the Policy Manual at that time.

12. As chairperson of the Office Committee, Ms. Kelly was custodian of one of the existing copies of the Policy Manual. The procedure followed when Schneiders added or changed policies was that the new policy would be set out in a document issued in the form described in paragraph 5 of this decision, initialed by the President of Schneiders and circulated to Policy Manual holders for insertion in their manuals. When the policy document represented a revision of an existing policy, the covering memorandum requested that the policy holder replace the old pages with the new ones. Discussion with respect to a new or revised policy might take place between management and the Office Committee after the policy had been issued in this way; apart from the review in 1975, however, there was generally no prior discussion. It was understood that the amendment of existing policies or introduction of new policies in the manner described could not be the subject of a grievance under the grievance procedure, but that a failure to follow a policy "in force" could be. Ms. Kelly said that there had been difficulties from time to time in the application of existing policies, and that she had dealt with such difficulties at the stage at which a written grievance was to be submitted to the Personnel Department. She had handled submission of such grievances over the years when she had been chairperson of the Office Committee. Ms. Kelly admitted there might have been occasions when policies were not followed and the failure did not become the subject of a formal grievance because the affected employee chose not to grieve. There had also been occasions when it appeared that the job posting provisions had not been followed. On each such occasion, however, the Personnel Department had discussed the situation with Ms. Kelly and persuaded her that the apparent deviation was appropriate and, indeed, fell within the range of circumstances which the written policy on job postings expressly contemplated would justify a departure from the usual rules. Ms. Kelly also acknowledged awareness of inconsistencies in the application of the provisions of the overtime policy. She understood some employees had been required to take compensating time off, when the policy offered them the choice between time off and payment for overtime. This became the subject of a memorandum to supervisors dated November 2, 1983, in which Schneiders' President, Ken Murray, said:

It would appear that the application of our Overtime Policy is not being consistently applied. The problem is with the application of overtime pay versus time-off in lieu.

I would urge you to re-read the policy and ensure that the policy is administered as written.

13. Whatever may have been the record of supervisory faithfulness to other policies, it was Ms. Kelly's uncontradicted evidence that, except in the grievors' cases, the discharge and discipline policies had always been followed "to a 'T"'. By way of example, Ms. Kelly described a discipline meeting she attended with one of the office employees in late December, 1983 concerning that employee's lateness. In that meeting, the employee's supervisor had him read the Policy Manual's provisions regarding lateness. The supervisor prepared a written memorandum of the nature of the difficulty, which concluded with the words: "I will document this lateness and follow company policy until this matter is resolved." The employee in question was asked to sign the memorandum, and a copy of the signed memorandum was given to Ms. Kelly. Although this particular example occurred after certification and, indeed, after this complaint had been filed, there was no suggestion that what happened on this occasion was in any way unusual or affected by the certification or by the fact that this complaint was outstanding.

14. The grievors all had knowledge of and exposure to the Policy Manual. Mr. King said that he was given a copy of the Manual to read when he was hired in 1972. He also consulted it at a later time, when there was a death in his family. His supervisor circulated copies of revisions to policies when such revisions were issued. Ms. Lovell was hired in October, 1981. She was aware of the Policy Manual. When her uncle died, she asked her supervisor for the day off. He referred her to his secretary, who consulted the Policy Manual to see whether she could have the day off in those circumstances. Mr. Honsinger was shown the Policy Manual when he was hired in June, 1977. Ms. Grove was hired in February, 1980. She had seen and consulted the Manual with respect to personal problems. She had also borrowed the Manual from DeVrieze for the express purpose of obtaining authoritative information on the company's vacation pay and benefit provisions, so that these could be discussed with the vendor of a new payroll computer program. There was no suggestion that these experiences were atypical or unusual for employees in the bargaining unit.

15. Johanne Kelly said she had a discussion with the respondent's Vice-President of Human Resources, Jack MacNicol, in February, 1983, after the complainant's certification application had been filed. She asked him whether the Policy Manual was still in effect, and he gave her an unqualified "yes". MacNicol acknowledges a conversation in which he says he told Ms. Kelly that the Policy Manual continued to be a "framework", that each decision would be made on the merits, and that common sense rather than literal interpretation would apply. Ms. Kelly and Mr. MacNicol also described the purpose of the Policy Manual differently. Ms. Kelly thought of it as containing the employees' terms of employment, the rules by which they had to abide and the benefits they would get. It was, she said, "the bible". MacNicol preferred to describe it as a "guideline" for managers.

16. Mr. MacNicol's association with Schneiders is considerably shorter than Ms. Kelly's. He has been Vice-President of Human Resources at Schneiders only since April of 1982. Prior to that he was Director of Human Resources of the parent company, The Heritage Group Inc., for three years. He confessed to having limited experience with the application of the Policy Manual in the period before the complainant filed its certification application. His first discussion of the Manual with the old Office Committee had occurred only shortly before the certification application was filed. He had suggested at that meeting that the Policy Manual required a thorough review. That review did not occur. In cross-examination he flatly denied that the policies in the Manual had been designed to be followed or that they provided a description of terms and conditions of employment. When it was suggested to him that the tone and content of Mr. Murray's memorandum of November 2, 1983 was inconsistent with his position in this regard, MacNicol countered that he had drafted that memorandum, and that its real purpose had merely been to de-fuse a bargaining issue which had arisen during collective bargaining.

17. In these circumstances, does section 79 of the Act require compliance with the provisions of this Policy Manual during the period of the "freeze"? The operation of the statutory freeze was described in Laurentian University of Sudbury, [1979] OLRB Rep. Aug. 767 in the following terms:

18. Section 70 [now 79], read as a whole, manifests a legislative intent to maintain the prior pattern of the employment relationship in its entirety while the parties are formalising their collective bargaining relationship or negotiating a collective agreement. This ensures that there will be a fixed basis from which to begin negotiations and preserves the status quo during the bargaining process. The status quo includes not only the existing terms and conditions of employment but also other established benefits which the employees are accustomed to receive and which can, therefore, be considered to be "privileges". It is clear that expressed promises, or a consistent pattern of employer conduct, can give rise to such privileges and they will be caught by the statutory freeze. As the Board noted in St. Mary's Hospital, mow reported at [1979] OLRB Rep. Aug. 795]:

"Section 70(2) preserves not only the employees' terms and conditions of employment, but also privileges which, by reason of custom and practice, have become a part of the employment relationship. The term "privilege" is extremely broad and extends to all of those ben­efits which an employee is accustomed to receiving but to which he is not legally entitled, and which cannot, therefore, be considered a "right". In order to determine whether a particular benefit, or aspect of the employment relationship, has become a privilege, it is necessary to examine the circumstances of each particular case, since privileges can arise from established custom, practice or policy. The question is an evidentiary one for, by definition, the Board's consideration must go beyond the strictly legal incidents of the relationship ('rights') and include those aspects of the relationship which give rise to 'privileges'.

In order to demonstrate the existence of a privilege, it is not necessary to establish a contractual right, a formal written policy, or an express promise. It is sufficient if there is an established, and well entrenched, course of conduct which gives rise to the reasonable expectation that a benefit, previously given, will be continued."

22. Section 70 is not a strait jacket which prevents an employer from responding to changing business conditions; it merely requires both parties to maintain the existing pattern of their employment relationship; that is, to conduct their relationship "as before". In Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 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."

In Spar the Board decided that the practice of granting annual merit evaluation and increases was sufficiently well entrenched as to become a ben­efit, which the employees reasonably expected to receive and was, therefore, a "privilege" within the meaning of section 70 of the Act. In Scarborough Centenary Hospital Association, [1978] OLRB Rep. July 679, the Board found that section 70 prevented an employer from revoking the privileges of free parking during the currency of the freeze. On the other hand, in AES Data Limited, [1979] OLRB Rep. May 368, the Board found that the employer was entitled to re-assign job functions since, in that case, the subject employees could not reasonably expect to continue performing their jobs in exactly the same way despite changes in the mode of production and market conditions. A similar conclusion was reached in Scarborough Centenary Hospital Association, [1969] OLRB Rep. Jan. 1049, where the Board reaffirmed an employer's right to make ordinary business and production decisions, i.e., to conduct its business as before. Finally, in A. N Shaw Restorations Ltd., [1978] OLRB Rep. June 479, the Board held that a union which had waived certain rights under its collective agreement could not adopt a different posture during a statutory freeze and insist upon compliance. Section 70 requires the Board to determine the pre-existing rights, privileges and duties of the parties, and then consider whether the conduct complained of alters those rights, privileges or obligations.

18. This is not the first case in which the Board has encountered a manual which purports to describe the employer's employee relations policies: see Corporation of the Town of Petrolia, [1981] OLRB Rep. Mar. 261; Grey-Owen Sound Joint Homes for the Aged, 1119831 OLRB Rep. Apr. 522; Ontario Hydro, [19831 OLRB Rep. Sept. 1536; and, in a slightly different vein, Laurentian University of Sudbury, supra. It becomes unnecessary to search for an employer's policies in the pattern of its behaviour when the employer has published a description of those policies. That is not to say that the employer's past behaviour becomes irrelevant when such a document is found. The document may not define every aspect or element of the pattern of employment. Past practice may establish an additional frozen element on a subject untouched by the Manual, just as it can where an expired collective agreement establishes the basic pattern frozen by section 79: see, for example, Wellesley Hospital, [1976] OLRB Rep. July 364 and Scarborough Centenary Hospital Association, [1978] OLRB Rep. July 679. Similarly, a pattern of past behaviour may establish that a policy described in the document is not the policy applied in practice and should not, therefore, be treated as frozen and enforceable under section 79 (by way of analogy see A. N Shaw Restoration Ltd., [19781 OLRB Rep. June 479).

19. The Policy Manual before us addresses directly the pattern of the employment relationship between the respondent and its employees. It purports to describe substantial and significant portions of that pattern. The respondent took steps to ensure that new employees were aware of the existence, purpose and contents of the Policy Manual. It intended the Manual to be authoritative. It behaved as though it was authoritative, and instructed managerial employees to do the same. When the respondent intended to change the pattern it had created, it did so only by formally amending the contents of the Manual. While the respondent could have selectively ignored its own policies or permitted its managers the freedom to apply them on an ad hoc basis at their individual whim, it undertook, in effect, not to do so. By describing them as "guidelines", MacNicol would have us think the policies were optional. The words "guideline" and "guide" are used in the preamble to the Manual (see paragraph 5, supra), but use of these words in describing the policies need not lend them any optional flavour. A "guide" is "... one who directs another in his ways or conduct ..."; "to guide" is "to lead or direct in a course of action ... to conduct the affairs of (a household, state, etc.) ..." (The Shorter Oxford English Dictionary, Clarendon Press, Oxford (1973), p. 901). A "guideline" is s'... an indication or outline of future policy or conduct (as of a government) ..." (Webster's Third New International Dictionary, G. & C. Merriam Company, Springfield, Mass. (1971), p. 1009). Read in context, the words "guide" and "guideline" as used in the Manual were obviously used in this imperative sense. Some of the policies in the Manual are skeletal; portions of others are expressly framed as suggestions or recommendations. Those policies might fairly be described as a "framework". The identification of common sense and the merits of an individual case as important factors in the application of these policies does not diminish Ms. Kelly's description of the Manual as "the bible" for this employment relationship. We do not accept that adherence to policies in the Manual was intended to be or held out to be "optional" in the sense suggested by MacNicol. We need not decide whether any or all of the provisions of the Policy Manual became terms of individual employment contracts enforceable at common law. We are satisfied that the Policy Manual in this case sets out terms or conditions of employment and rights, privileges and duties of the employer and employees within the meaning of section 79.

20. There was some evidence that the overtime policy was not consistently applied before the freeze. The respondent argued that the Board's "business as usual" approach should therefore permit continued inconsistency in the application of the policies in the Manual. The evidence of deviation by individual managers from the overtime policy published by the respondent establishes neither an abandonment of that policy, or of the Policy Manual, by the respondent, nor the introduction of a new method of amending policies. While Mr. Murray's memorandum of November 2, 1983, is some evidence of a failure by some managers to apply the overtime policy as written, it is also evidence that such deviations were and remained unauthorized. Having repudiated prior managerial deviations from policy, the respondent can hardly claim that the authority to so deviate was legitimately part of the pattern frozen by section 79. In any event, evidence of deviation from policy, whether authorized or not, was limited to the overtime and, perhaps, job-posting policies. The respondent offered no evidence of any prior deviation from the discipline policy on which the complainant relies. In the absence of such evidence, we have no difficulty finding that the discipline and discharge policies as written in the Policy Manual were in fact the respondents' policies on those subjects at the time the statutory freeze came into effect.

21. The respondent argued that if the freeze preserves the Manual's policies, it preserves also management's prior "right" or "privilege" to change those policies without prior consultation with the Office Committee or, now, the complainant. We reject that contention. We have found that the prior pattern of the employment relationship did not afford individual managers discretionary authority to selectively ignore the respondent's published personnel policies. While the prior pattern did permit the modification of policies by written amendments authorized by the President and circulated to Policy Manual holders, that was not done before the onset of the freeze and could not, in our view, have been done thereafter without violating section 79. In an unorganized setting, an employer's ability to unilaterally effect changes in the pattern of his relationship with his employees is undoubted and substantial. If the employer's pre-freeze ability to unilaterally change wages and working conditions were to be treated as a right or privilege preserved by the terms of section 79, that section would be deprived of all meaning.

22. Accordingly, we find that section 79 of the Act operated to impose on the respondent the obligation not to discipline or terminate office and clerical employees except in accordance with the policies expressed in the Policy Manual and, particularly, the portions of policies H — 1 and I — 1 quoted in paragraphs 7 and 8 above. We must still determine whether the termination of the four grievors violated those policies. In order to assess that question, we must consider management's dealings with the grievors up to the point of termination and the reasons given by management for the terminations themselves.

23. DeVrieze could not remember the exact date, but thought the decision to terminate the grievors was made before August 24, 1983. He made the decision in consultation with Brant MacPherson, Gerry Fischer and Jack MacNicol. MacPherson was, at that time, DeVrieze's immediate superior. MacPherson, in turn, reported to Fischer, the company Comptroller. MacNicol testified that the policies in the Policy Manual were never considered when these men made the decision to terminate the four grievors. DeVrieze said that the grievors were terminated because they were incompetent, inflexible, and unable to adapt to the changes which had been taking place and would continue to take place in the information sys­tems area of Schneiders. Schneiders had been changing from one computer system to another. The grievors and others had had various parts to play in the conversion process. DeVrieze described a number of tasks he had assigned to each of the grievors at various times, and went on to explain how he felt each grievor's performance of the assigned tasks had been inadequate. It will be unnecessary to review his complaints in detail.

24. DeVrieze described his own style of management as "management by walking around"; each person who worked for him was described as "a resource". DeVrieze claimed to understand the concept of progressive discipline, but felt it was inapplicable to professional employees. He thought progressive discipline was all right for clerical employees, but felt that professionals were hard to discipline, and for that reason he had "difficulty with that policy". It was not clear whether he meant he had difficulty with Policy H — 1 in the Policy Manual, or difficulty with the idea of a policy of progressive dicipline in dealings with professional employees. In any event, DeVrieze claimed that each grievor was aware, before the termi­nation decision was made, that his or her continued employment was in question by reason of inadequate job performance. He was quite adamant on this point, despite his inability to pinpoint how and when each grievor would have received this information.

25. Each grievor said he or she had not received a written warning of any kind; they were uncontradicted in that respect. We heard no evidence that anyone produced or provided to any of these grievors any disciplinary documentation of the kind contemplated by Steps III and IV of the "Established Discipline Procedures (for salaried employees)" reproduced in paragraph 7 above. Each grievor was able to demonstrate that most, if not all, of the matters complained of by DeVrieze in his evidence had occurred prior to his or her having received a positive job evaluation, promotion or salary increase. With the exception of Honsinger, none of the grievors had had any warning of any kind, oral or written, whether pursuant to the discipline procedure or otherwise, that their employment at Schneiders was in jeopardy, and had no reason in September of 1983 to suppose that his or her performance was considered unsatisfactory by DeVrieze or his superiors. The evidence with respect to Mr. Honsinger is a good yardstick against which to test Mr. DeVrieze's contrary claims that all the grievors had been warned.

26. Unlike the other three grievors, Honsinger did acknowledge that his job performance had undergone a significant decline in the months prior to his termination. His wife had given birth to a son in January of 1983. The child was born with a serious health problem, and died four months later. During and after that four-month period, Mr. Honsinger's distraction and the deterioration in his work performance were evident both to him and to Mr. DeVrieze, who responded with apparent compassion. He reassigned Honsinger to less demanding, less critical projects. He offered Honsinger the opportunity to take time off to come to grips with his personal tragedy. The first offer of that kind was made before the summer of 1983. Honsinger remained at work. On August 22, 1983, however, DeVrieze told Honsinger he was to be moved from the office he was in to a less desirable office, as there were others "more deserving" of the use of Honsinger's office. DeVrieze also told Honsinger that "if you don't pick up your socks, you're out". This was the first and only warning Honsinger ever received. Up to this point Honsinger was under the impression that DeVrieze was prepared to bear with him while he dealt with his personal problems. Honsinger reacted negatively to the proposed office move. He spoke to his union representatives, and a meeting was arranged August 24, 1983, involving Honsinger, DeVrieze, and trade union officials Judy Susanna and Gidge Trepanier. DeVrieze was asked whether Honsinger was to be terminated. DeVrieze said "no". He suggested that Honsinger take time off — as much as he needed to take to "get his act together". DeVrieze said he would take care of any company problem concerning Honsinger's absence, and that he would guarantee Honsinger's job would be there when Honsinger returned. Honsinger took DeVrieze at his word. He left work, obtained professional assistance and, on the advice of those professionals, returned to work a week and a half later, in early September.

27. DeVrieze admits that the decision to terminate Honsinger had been made before he met with Honsinger August 24th. He did not then tell Honsinger he was to be fired. He could point to no occasion thereafter when he had in any way qualified the "guarantee" given at the August 24th meeting. He could point to no meeting at which he had expressly told any of the grievors that their job was on the line because of their performance to date. Despite this, DeVrieze said he thought they ought to have known they might be fired. MacNicol told us that the grievors should have been aware that termination was a possibility, because there had been earlier terminations and the office was functioning in an atmosphere in which everyone was "looking over their shoulder". We heard evidence that there had been terminations and demotions among managerial personnel responsible for the area in which the grievors worked. We have also the uncontradicted evidence of the grievors concerning a meeting on September 1st or 2nd at which one of those events, the de facto demotion of Brad MacPherson, was announced. After that meeting, DeVrieze asked his department to stay. He told that group (which included the grievors other than Honsinger) that they should not take MacPherson's demotion as indicating that management was displeased with their performance. Indeed, DeVrieze told them that top management was pleased with the conduct of the projects they were working on at that time. The only conclusion the grievors could be expected to have drawn from all of this was that the company was concerned about the competence of its managers.

28. We expressly reject DeVrieze's assertion that the grievors knew their jobs were on the line before the decision was made to terminate them. The discipline procedure set out in the Policy Manual requires clear, unambiguous and, ultimately, written communication to em­ployees of any management concerns with their performance and of specific requirements for improvement, before any failure to perform or improve becomes the subject of a termination decision. We do not accept that these requirements were in any way satisfied by some process of osmosis, or that the grievors could be expected to receive critical messages despite the reassuring words and conduct of Mr. DeVrieze. We find that there was a total failure by the respondent to follow policy H — 1 in its dealings with the grievors. Indeed, we find that prior to their termination King, Lovell and Grove had no reason to think that their employment was in jeopardy by reason of the respondent's assessment of their job performance. While Honsinger had an oral warning to that effect on August 22nd and 24th, someone had by that time already decided that he and the other grievors would be terminated. The opportunity to im­prove DeVrieze offered at that point was a total sham. If Schneiders' management had earlier lost patience with Honsinger's struggle to come to terms with his grief, this was not a message DeVrieze had been willing or able to convey to Honsinger. If Schneiders' management was sufficiently dissatisfied with the work of the other three grievors to consider their termination for that reason, DeVrieze made no effort to alert the grievors and provide the constructive criticism and objective standards from which both they and their employer might ultimately have benefited. In short, Schneiders, through DeVrieze, failed to manage its human resources in the manner contemplated by the personnel policies initialled by its President. This failure to follow even the spirit of the discipline policy in the case of these four grievors becomes all the more curious in light of evidence that a fifth termination was under consideration in the summer of 1983. Larry Stecho was an intermediate programmer analyst in the same department. As far as DeVrieze was concerned, he was also "not working out". Stecho, however, was not terminated. DeVrieze met with him, told him his job was on the line and offered him the opportunity to improve. DeVrieze distinguished his treatment of Stecho by saying that Stecho was not a "professional". DeVrieze took this approach in Stecho's case, he said, because Stecho did not have the same formal training and practical experience as the four grievors, and would have a harder time getting another job. While an assessment of that sort might form part of an estimate of Schneiders' potential exposure to damages for wrongful dismissal, it does not justify abandonment of Policy H — 1 with respect to professionals.

29. We find that, in terminating the grievors, Schneiders' failed to follow either the let­ter or the spirit of its Discipline policy, Policy H — 1. It is therefore unnecessary to decide whether substantial compliance or compliance with the spirit of the policy would have been enough to satisfy the requirements of section 79. However, the respondent argued that the Policy Manual offered management a choice of applying either its Discipline policy, H — 1, which requires a series of warnings not given here, or its Termination of Employment policy, I — 1, which, it argues, permitted the respondent to discharge the grievors "for cause" without first exhausting the procedure prescribed by the Discipline policy. The language relied on appears in section III B(l) of Policy I — I as follows:

The Company reserves the right to suspend or discharge any employee, without notice, for cause including:

The list set out thereafter (and reproduced in paragraph S above) does not expressly describe the reasons given by DeVrieze for termination of these grievors. The respondent relies upon the word "including" to sweep in those reasons. The quoted language, however, purports only to "reserve" a right. The right reserved is the right of an employer at common law to discharge for cause without notice. It is no more broad than that, and would not take in the reasons offered by DeVrieze, even if we found them more believable than we do. In addition, we are satisfied that the word "including" was meant to sweep in only causes which are of the same nature as those set out in the list. None of DeVrieze's complaints were in that class. We are satisfied that there was in this case no cause which would have justified the discharge of any of the grievors without notice within the meaning of Policy I — 1.

30. The complainant argued that the reverse onus provisions of section 89(5) apply here, where it is alleged that the discharge of an employee violates section 79 of the Act. While the Board's decisions in Bell Shirt Company Limited, 111978] OLRB Rep. Apr. 373 and Merrymount Children's Home, 111981] OLRB Rep. June 742 suggest that the section 89(5) onus does not apply to the alleged breach of section 79, this view was doubted in Wilco-Canada Inc., [19831 OLRB Rep. Jan. 165 (at ¶10). The question was not resolved in Wilco-Canada, Inc., and it is unnecessary for us to do so here, since the complainant has established its case on a balance of probabilities.

31. We find that the termination of these grievors violated the Labour Relations Act. That finding is not the result of applying any abstract or personal standard of fairness to the actions of the employer. What we have applied are Schneiders' own self-imposed standards of procedural and substantive fairness — the standards Schneiders told its employees they could expect it to apply in its dealings with them. Section 79 of the Labour Relations Act requires that an employer maintain its own pre-freeze standards for the duration of the freeze; the section does not preserve any employer "right" or "privilege" to abandon those standards.

32. Having found that the termination of the grievors violated section 79 of the Act, what is the appropriate remedy? Section 89(4) of the Act provides that:

where the Board is satisfied that an employer ... has acted contrary to this Act it shall determine what, if anything, the employer ... shall do or refrain from doing with respect thereto and such determination, with­out limiting the generality of the foregoing may include ... any one or more of,

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compen­sate in lieu of hiring or reinstatement for loss of earnings or other employment benefits

The complainant asks that we order the reinstatement of the grievors and require that they be compensated for earnings and other employment benefits lost. We are satisfied that that would be an appropriate remedy in this case. Reinstatement, we note, would not afford the grievors a guarantee of continued employment with Schneiders. It would, however, restore to them the benefit of their employer's discipline policy for so long as it remains in force. The grievors are also entitled to compensation for the earnings and other employment benefits lost as a result of the respondent's breach. That compensation shall include interest, in accordance with the principles outlined by the Board in Hallowell House Limited, [1980] OLRB Rep. Jan. 35.

33. The complainant also asks that we order the respondent to sign and post notices to employees advising them of the Board's decision, the rights upheld thereby and the employer's undertaking to respect and comply with both. A "posting remedy" was first awarded by the Board in Radio Shack, [1979] OLRB Rep. Dec. 1220. Judicial review of the use of that remedy was denied in Re Thndy Electronics Ltd. and United Steelworkers of America et al, 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29; 80 CLLC ¶14,017 (Ont. Div. Ct.). The rationale for the remedy and its use were elaborated in Valdi Inc., [1980] OLRB Rep. Aug. 1254 at paragraph 24:

However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organizing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring a stop to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with backpay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist for those occasions where he will not.

... We would add that our concern for remedial effectiveness is not limited to situations where employers are respondents. Trade unions have important obligations under the statute as well and individual employees who are mistreated by them must also be assured of future lawfulness. One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements However, we believe the posting of notices should not be confined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear for job security will be lessened with the realization that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who lawfully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confusion or ill-will created by a situation which has been equitably resolved.

The grievor in Valdi was a recently elected union steward whose termination, the Board found, had been motivated by the grievor's election to and performance of the duties of that office. As a result, the language of the passage quoted is most appropriate to an analysis of the effects of and proper remedial response to unfair labour practices in which improper motivation plays a part. Is improper motivation a necessary prerequisite to the use of this remedy? We think not. The object of a posting is to reassure employees that the respondent, whether employer or trade union, will thenceforth conform to the requirements of the Labour Relations Act, and that effective remedies exist and will be brought to bear when these requirements are not met. A violation which results from ignorance or disregard of the rights and freedoms protected by the Labour Relations Act can adversely impact employee faith in those protections, even in the absence of improper motivation. This effect extends to employees other than the direct victims of the improper conduct, and the posting remedy is intended to redress that effect. The remedy for trade union violations of the duty of fair representation in section 68 of the Act, for example, has included a posting order even where there was no allegation or finding that the trade union harboured any subjective ill-will toward the employee complainant: see North York General Hospital, [1982] OLRB Rep. Aug. 1190; Savage Shoes Limited, [19831 OLRB Rep. Dec. 2067.

34. The Board is not always asked for a posting order where the complaint alleges a violation of section 79 unaccompanied by improper motivation. Where the request has been made, the Board has granted it in some cases (Hotel c'anadiana, [1980] OLRB Rep. Aug. 1210; Cloverleaf Hotel, [1981] OLRB Rep. June 630; Merrymount Children's Home, [19811 OLRB Rep. June 742) and denied it in others (Homewood Sanitarium of Guelph, Ontario, Ltd., 111982] OLRB Rep. Feb. 230; Le Patro d'Ottawa, [1983] OLRB Rep. Feb. 244). The considerations which led the Board not to grant a posting order in the Homewood Sanitarium case are set out in paragraph 10 of that decision:

We do not consider that a posting order would be appropriate in the circumstances of this case. It appears from the submissions of the parties that the respondent Hospital misconceived the requirements of section 79 of the Act and believed, in good faith, that the provisions of that section prevented it from altering the wages of the organized nurses. In this instance there has been a technical violation of the section, with no evidence of any deliberate attempt to chill union support. In these circumstances the Board will not normally make a posting order. There is no reason to believe that a declaration coupled with an order for com­pensation will not fully redress the wrong that has occurred.

In the case before us, the violation did not result from a good faith attempt by the employer to comply with its obligations under section 79. Here, the respondent gave no thought to those obligations. It abandoned a long-standing personnel policy which provided its office employees, or at least appeared to provide them, with some of the security of a right not to be discharged without just cause, one of the benefits usually won by trade unions in collective bargaining. Whatever may have been the respondent's subjective intent in abandoning that policy at the time it did, when it was subject to both the statutory freeze and the obligation to bargain with the complainant, the likely objective result was to instill in the newly-organized employees the fear that important benefits they enjoyed before certification could be tossed aside at the caprice of the respondent's managers, despite the bargaining process and the protections of the Labour Relations Act, while that Act still restrained the employees from responsive collective job action. The breach cannot be described as "technical" in the sense employed in Homewood Sanitarium. Where the result is the loss of 4 jobs without warning or explanation, a full remedy must include redress of the adverse impact on employee perception of the collective bargaining system. Accordingly, there will be an order that the respondent post a suitably worded Notice to Employees.

35. In the result, the Board directs the respondent J. M. Schneider Inc.:

(a) to immediately offer to reinstate Philip Honsinger, Philip King, Barbara Lovell and Martha Grove to the positions each occupied prior to his or her termination on September 13, 1983;

(b) to fully compensate Philip Honsinger, Philip King, Barbara Lovell and Martha Grove for all earnings and employment benefits lost by them as a result of the respondent's violation of the Act, such compensation to include interest to be calculated in the manner described in Practice Note No. 13; and

(c) to post copies of the attached notice marked "Appendix", duly signed by an authorized officer of the respondent, in conspicuous places on its premises where it is likely to come to the attention of the emloyees represented by the complainant, and keep the notices posted for sixty consecutive working days, and take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material.

36. The Board remains seized of this matter in the event of any dispute between the parties concerning the interpretation or implementation of this decision including, without limitation, the calculation of the compensation and interest awarded to the grievors.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE SCHNLIDERS OFFICE EMPLOYEES ASSOCIATION PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE AROIJR REIATTONS ACT BY NOT COMPLYING WITH THE PROVISIONS OF OUR POLICY MANUAL IN OUR DEALINGS WITH AND TERMINATION OF PHILIP HONSINGER, PHILIP KiNG, BARBARA LOVELL AND MARTHA GROVE,

THE IAROUR RELATIONS ACT PROVIDES THAT WHERE A TRADE UNION REPRESENTS EMPLOYEES AND HAS GIVEN WRITTEN NOTICE OF ITS DESIRE TO BARGAIN WITH A VIEW TO MAKING A COLLECTIVE AGREEMENT WITH RESPECT TO THOSE EMPLOYEES AND NO COLLECTIVE AGREEMENT IS IN OPERATION, THE EMPLOYER SHALL NOT, EXCEPT WITH THE CONSENT OF THE TRADE UNION, ALTER THE RATES OF WAGES OR ANY OTHER TERM OR CONDITION OF EMPLOYMENT OR ANY RIGHT, PRIVILEGE OR DUTY OF THOSE EMPLOYEES OR THE EMPLOYER, UNTIL THE MINISTER OF LABOUR HAS APPOINTED A CONCILIATION OFFICER OR MEDIATOR UNDER THE LAROUR RELATIONS ACT AND,

(1) SEVEN DAYS HAVE ELAPSED AFTER THE MINISTER HAS RELEASED TO THE PARTIES THE REPORT OF A CONCILIATION BOARD OR MEDIATOR, OR

(2) FOURTEEN DAYS HAVE ELAPSED AFTER THE MINISTER HAS RELEASED TO THE PARTIES A NOTICE THAT HE DOES NOT CONSIDER IT ADVISABLE TO APPOINT A CONCILIATION BOARD.

WE ASSURE OUR EMPLOYEES THAT:

WE WILL HENCEFORTH COMPLY WITH THESE REQUIREMENTS.

WE WILL IMMEDIATELY OFFER TO REINSTATE EACH OF PHILIP HONSINGER, PHILIP KING, BARBARA LOVELL AND MARTHA GROVE TO THEIR FORMER POSITIONS,

WE WILL PAY EACH OF PHILIP IIONSINGER, PHILIP KING, BARBARA LOVELL AND MARTHA GROVE COMPENSATION FOR ANY EARNINGS OR BENEFITS LOST AS A RESULT OF OUR BREACH OF THE ACT, PLUS INTEREST.

J. M. SCHNEIDER INC.

PER:

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 19TH day of MARCH . 1984