Ontario Labour Relations Board

[1985] OLRB Rep. November 1596

1066-85-R; 1184-85-U Teamsters Union Local No. 880 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. General Metal Products of Windsor Limited, Respondent, v. Group of Employees, Objectors

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and S. O'Flynn.

APPEARANCES: Ken Petryshen for the applicant/complainant; Leonard Lyons and Eugene Zgomba for the respondent; Steve Piskovic for the objectors.

DECISION OF THE BOARD; November 18, 1985

1. The name of the respondent is amended to read: "General Metal Products of Windsor Limited".

2. This is an application for certification in which the applicant requests that the Board apply the provisions of section 8 of the Labour Relations Act. The applicant also filed a complaint under section 89 of the Act alleging improper "layoff" of one employee, D. Hall. The parties agreed that both matters should be heard together. The Board hereby directs that the above application and complaint be and the same are hereby consolidated.

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

4. The parties reached agreement on the bargaining unit description. Having regard to that agreement, the Board finds that all employees of the respondent in Windsor, Ontario, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and sales staff, persons who regularly work not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining.

5. In all, five witnesses testified: R. Dupuis and D. Hall for the applicant; B. Peach, B. Boudreau and E. Zgomba for the respondent. Zgomba is the owner; the other witnesses are employees, Hall being the employee whose "layoff" is contested. Both counsel raised the issue of credibility. The Board has assessed the credibility of the witnesses according to the usual criteria, namely, the consistency of their evidence, the firmness of their memory, their ability to resist the influence of interest to modify their recollections, their capacity to express clearly their recollections, their demeanour while testifying, their responses in cross-examination and what appears to the Board to be reasonably probable when the circumstances and the testimony of the witnesses are considered.

6. The Board has some specific comments about the witnesses. In the Board's view, the applicant's witnesses were candid and straightforward. In particular, Dupuis was an excellent witness who responded to questions with a forthrightness which made no attempt to distort responses even where the reply might be considered to favour the respondent. For example, Dupuis' assessment of Hall's work on the cutter was not couched in "glowing" terms but, rather, was a straightforward evaluation that Hall's progress was satisfactory. Dupuis also acknowledged he was a personal friend of LeBlang and on friendly terms with Legarry and Zgomba. In contrast, Zgomba was frequently evasive on cross-examination and did not respond to the questions actually asked. Further, some of the responses were just not believable. For example, Zgomba insisted his reaction on being informed with the certification application was that if the employees wanted the union, that was fine. However, this detached response just is not consistent with his admittedly highly agitated state during his conversation with Dupuis shortly after his return to the plant. Moreover, Zgomba stated he gave permission to LeBlang and Legarry to hold an employees' meeting during working hours on July 30th without asking how long the meeting would be, the purpose of the meeting or noting that the employees would not be paid for the time spent away from work. Such conduct is not consistent with an employer facing an allegedly serious shortage of work which would require the plant only operate for one shift and the layoff of one employee. Finally, Zgomba contradicted the testimony of other witnesses called by him with respect to key points, such as, the matters discussed at the meeting on Wednesday, July 31st. In that regard, the Board notes that the evidence of Dupuis and Peach regarding that Wednesday meeting was substantially the same. Thus, wherever there is a conflict in the testimony, the Board prefers the evidence of the applicant's witnesses.

7. Having weighed and assessed their testimony and the relative credibility in the context of the above, the Board makes the following findings of fact.

8. The respondent employs about 15 workers and manufactures machine bases. The manufacturing process requires a number of steps commencing with the torch cutting of large pieces of steel. There are two cutting machines and, hence, two employees can perform this operation on one shift. There were three employees working on cutting at the time of the certification application: Dupuis, Boudreau and Hall. Dupuis had worked on cutting for some twenty months and was the most experienced. Boudreau also had considerable experience cutting and, as he preferred the afternoon shift, more often worked that time period. Hall had been hired in June 1985 as a welder. His training was in mig-welding while the employer's operations emphasized arc welding. Hall was transferred from welding after one month and worked as a cutter for approximately two weeks before his layoff. The Board deals with the circumstances leading to Hall's layoff in more detail infra.

9. Zgomba learned of the certification application through his wife's telephone call on Monday, July 29, 1985; he immediately returned to the plant. The Board comments here that Zgomba's wife is the company secretary. Zgomba's agitation increased with his perusal in the office area of the Board notice regarding the certification application. Zgomba proceeded to the plant floor, spoke briefly to LeBlang and then approached Dupuis at his work station. Zgomba asked Dupuis who was behind the union organizing and if Dupuis supported the unlon. Zgomba added that if the union got in, he would close down the plant. As noted above, the Board accept Dupuis' account of this conversation as the only account consistent with Zgomba' s actions and agitated state. Dupuis replied that he had only heard some general union talk and referred to a person no longer an employee. Dupuis said he would see what he could find out, whereupon Zgomba left.

10. The Board notices were posted on that Monday. Later that day, LeBlang also approached Dupuis while the latter was working and asked if Dupuis knew who had started the union and if Dupuis had signed a card. Dupuis responded that he was trying to find out what was going on. LeBlang then briefly stated his negative views of unions. As well, LeBlang asked Hall if the latter had signed a union card.; Hall replied in the affirmative. (Hall later relayed this incident to Dupuis who replied that Hall should say nothing more about his support for the union, that he had already said too much.) It is here appropriate to comment on the status of LeBlang and Legarry. The applicant conceded that both were members of the bargaining unit. However, the applicant asserted that both are regarded by the other employees as senior and closely related to management. It vvas not disputed that both were long service employees to whom the other employees turned for assistance with various problems. The Board finds that both held positions akin to "lead hands", i.e., as persons in the bargaining unit but who perform some supervisory-type functions, Legarry with respect to the machine shop and LeBlang in fabrication.

11. The following day, Thesday, the employees were told by LeBlang in the early afternoon that they were to attend a meeting at 3:30 p.m. The Board notes that the shift hours varied somewhat but, at the time, the day shift was 7:00 a.m. to 4:30 p.m. and the afternoon shift commenced at 4:30 p.m. LeBlang and Legarry were given permission by Zgomba to hold the meeting on company premises during working hours. The Board finds that Zgomba knew full well the purpose of the meeting was to solicit employee grievances in an effort to stop the certification of the union. The first meeting was held in the company's lunchroom from 3:30 p.m. to approximately 4:15 p.m. and the employees of the afternoon shift were told as they arrived by LeBlang that there would be another meeting for that group too. It was not disputed that this was the first such meeting held at the plant; all others had been conducted by Zgomba.

12. The first meeting was attended by all l)roduction employees. LeBlang and Legarry were in charge of the meeting, although the former did most of the talking. LeBlang started the meeting by stating that this was the employees' chance to voice their grievances and that the complaints would be passed along to Zgomba. Negative comments were made about unions in general. The employees were asked why they wanted the union and employee grievances were solicited. LeBlang wrote down the complaints, including: "housekeeping" (e.g., condition of the crane, clutter in the shop); right to refuse overtime; a standardized work week; complaints about S. Pablo (a supervisor); shift premium. Several of the complaints were raised by Hall. The "petition" was distributed and the employees directed to complete the forms and return the envelopes the next morning. Following the meeting, Hall was told by Pablo of his immediate layoff; Hall relayed this news to employees still in the lunchroom, including Dupuis. Finally, the Board notes that all employees were told late Tuesday afternoon that the plant, which had operated on bi-weekiy rotating shifts since roughly December 1984, was returning to a one shift schedule. (The plant has continued on one shift since then.)

13. Tuesday evening, LeBlang telephoned Dupuis. LeBlang stated that Zgomba had been given the list of employees' complaints and had promised to follow up on them. For example, Zgomba had agreed at once to a shift premium. As well, LeBlang told Dupuis that he (Dupuis) had been chosen to hold the employees' petition forms the next morning. That evening, Dupuis also called Legarry about Hall's layoff. Legarry said he didn't know the reason for the layoff but otherwise confirmed LeBlang's comments about Zgomba's view of the employees' grievances. Dupuis had asked LeBlang about the layoff. LeBlang had commented that Hall was a poor welder and, as the company was moving to one shift, Hall was not needed.

14. Zgomba called a meeting of all employees on Wednesday morning, July 31st. The meeting lasted over an hour and employees were paid for attending. Zgomba had been given a report of the Tuesday meeting by LeBlang and Legarry. The Board rejects Zgomba's characterization of the report of the list of grievances as primarily raising "safety" concerns, in view of the topics on the list itself and the accounts of the meeting on Tuesday. Zgomba reviewed each item on the list complied by LeBlang and asked LeBlang for clarification of some of the points. Zgomba insisted at the hearing that he did not have LeBlang' s list but read from the company's "regulations and policies". However, the Board accepts the testimony of the union's witnesses and one witness called by the respondent that Zgomba indeed had LeBlang's list. Moreover, the Board notes Zgomba declined to file with the Board the "regulations and policies" allegedly read from. Zgomba agreed to virtually all the employees' requests but also stated that implementation had to wait until the certification application was resolved. Further, Zgomba made several negative comments about unions and added that, if the union was certified, all employees would have to be classified (by Zgomba) to determine their wage rate. Dupuis' statement that there were employees who were not "journeymen" and thus who would not receive that rate if a classification scheme was introduced was not challenged by the respondent. It is not necessary for the Board to recount all of the items on LeBlang's list which Zgomba dealt with, although the Board notes that the most thorough account of Zgomba's review of the employees' grievances was from one of the respondent's witnesses. Indeed, according to that witness, Zgomba stated openly "I don't care how you guys vote, it is up to you", thereby clearly revealing Zgomba's knowledge of the petitions. At the conclusion of the meeting Zgomba left and the employees handed the petition forms to LeBlang who then gave the envelopes to Dupuis. Some employees filled out petition forms after the meeting.

15. While it was not disputed that Zgomba had called meetings in the past, the Board finds that such meetings were scheduled after the day shift ended and were not held on a regular monthly basis. In fact, the last meeting occurred at least two months previously.

16. On August 15th, (the first hearing date was August 16th) Zgomba informed the employees that they would not be paid for the meeting on Tuesday, July 30th, although the pay cheques for that period had already issued. The Board notes in passing that, in a letter dated August 13th addressed to the Board, Zgoniba stated that the employees were paid in error for that meeting and would have their next pay docked an equivalent amount. Later on the 15th, however, Zgomba reversed that position and told the employees they would be paid for that time.

17. It is useful to deal at this point with the petitions filed with the Board. On the Tuesday, LeBlang and Legarry were observed going in and out of the office with the petitions. LeBlang was also observed going directly from the office to the first meeting on Tuesday, July 30th, with the petition forms. It was not disputed that the petition forms were typed by Zgomba' s wife in the office. As already noted, the petitions were distributed at the Tuesday meeting and collected the next day. Each employee was given a typed paper indicating opposition to the union. The employee was to fill in his name, place the paper in the envelope and return the sealed envelope. Also as noted, the petition forms were collected after the Wednesday meeting and given to LeBlang and then Dupuis. Another employee, S. Piskovic, gave Dupuis an addressed envelope for the petitions; the individual petitions, each in a sealed envelope, were sealed in that large envelope. Piskovic returned with a new envelope a few moments later as the covering letter for the petitions had not been enclosed. The employees' envelopes were then placed in the new envelope by Dupuis. Piskovic returned to the office with the sealed envelope. Shortly thereafter, Zgomba pinned a Registered Mail receipt on the bulletin board in the lunchroom.

18. It is appropriate to here briefly set out the circumstances leading to Hall's layoff. As noted, Hall was hired in June 1985 as a welder and transferred to cutting. Zgomba told Hall that another cutter was needed and, if Hall worked out, he would stay there. On July 30th, Pablo handed Hall a letter dated July 5th indicating that the reason for the transfer was Hall's poor performance as a welder. Dupuis was informed that Hall was being transferred as his welding was not up to par and the cutting area was falling behind. Dupuis asked that he train Hall and the shifts were scheduled to accommodate this; Dupuis had trained two other employees as cutters previously. In Dupuis' view, Hall's progress was satisfactory: the quality of the pieces cut was good; Hall's speed was slow but that was to be expected given his limited experience on the machine. Dupuis informed Zgomba directly on July 26th of his evaluation of Hall. On Saturday, July 27th, Zgomba told Hall that his cutting was good but, as his work was too slow, he would be given another week to improve production. On that Saturday, also, Boudreau indicated to Zgomba that, in his view, Hall was a poor cutter and particularly slow. However, that opinion was based only on the observations that day, as, except for an occasional shift overlap where Hall remained on the cutting machine, Boudreau and Hall worked different shifts. Thus, the Board relies on Dupuis' assessment of Hall's progress.

19. Dupuis testified that there was considerable cutting work available during the week commencing July 29th, including a large order and several smaller jobs. Testimony that the amount of overtime worked in the period prior to the certification application was considerable was not challenged. Indeed, both Hall and Bourdeau worked overtime on Saturday, July 27th. Although there were only two machines, occasionally the three cutters would be working at the same time. At these times, the third man (usually Hall) would weld, grind, paint, move steel, clean-up, etc. These regular "overlap" periods between the shifts ended when the day shift was reduced to nine hours from ten and ended at 4:30 p.m. rather than 5:30 p.m.

20. Again as noted earlier, Hall informed LeBlang on July 29th that he had signed a union card and Hall attended the Tuesday meeting where he voiced some complaints. Immediately after that meeting, Hall was directed by Pablo to report to the office whereupon Pablo told Hall of the layoff. Pablo commented that Hall was being laid off because he had been given a fair trial but was not qualified. It was not disputed that the separation slip indicated the layoff was because of "shortage of work". It should also be noted that Zgomba stated he had decided to layoff Hall on the 27th or 28th but waited until Tuesday when the part-time bookkeeper would be at work to prepare the papers. The Board comments further about Hall's layoff infra at paragraph 27.

21. Counsel for the applicant asserted that the evidence of the union witnesses should be preferred and, in particular, Zgomba lacked credibility. With respect to the "layoff" of Hall, counsel submitted that the respondent had not met the onus of proving the decision was without anti-union animus. Counsel emphasized that Pablo, the individual who actually laid off Hall, was not called as a witness. It was argued that, as Hall had told LeBlang that he had signed a union card, it was reasonable in the circumstances to infer that Zgomba learned of this. That is, the timing of the move to one shift, the layoff of Hall and the union certification application was too close to be accepted as coincidence. In the alternative, even if the layoff was without anti-union animus, counsel asserted the shift change was a violation of section 79 and, given the severity of the impact on Hall, he should be reinstated. It was also stated that Zgomba' s explanation for the move to one shift was not credible and unsupported by documentary evidence of a decline in work orders. With respect to the requested certification pursuant to section 8, counsel argued the required element of a violation of the Act was established in Hall's "layoff" and the threats to job security by Zgomba in the conversation with Dupuis. Further, counsel pointed to the Tuesday meeting ofemployees conducted by LeBlang and Legarry and the Wednesday meeting of Zgomba as improper. Counsel asserted the union had sufficient membership support to satisfy that element in section 8 certifications. Finally, it was argued that, in such a small operation, the effect of the layoff and meetings meant that the true wishes of employees would not be revealed in a representation vote. Counsel pointed to the testimony of Dupuis' current isolation from other employees and the changed atmosphere in the shop as further indication that a vote would not be appropriate. In summary, counsel argued that Hall should be reinstated with compensation and the applicant certified. Counsel referred to several cases in support: Benwind Industries, [1985] OLRB Rep. Feb. 149; Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848; Elbertson Industries Limited, [1984] OLRB Rep. Nov. 1564.

22. Counsel for the respondent submitted the employer's witnesses were credible. Counsel argued Hall was properly dismissed because be was unqualified (both as a welder and as a cutter) and he was not needed on a one shift operation. The change to a one shift operation, it was stated, was based on concern for security because of break-ins, the decline in work orders and the desire to respond to the employees' preference for one shift. Counsel argued the petition was a voluntary secret ballot and should be given weight. It was submitted that there was nothing improper in the various meetings, nor had there been intimidation or coercion by the employer. Rather, all decisions were based on good business practice. Thus, counsel requested that a representation vote be conducted. No Board jurisprudence was referred to in support.

23. The representative of the employee objector stated that relations with management had always been good but, since the union applied for certification, the employees were not even working a regular eight hour day, let alone overtime. The representative agreed with the layoff of Hall and contested the negative testimony concerning Zgomba. Finally, the representative supported the ordering of a representation vote on the ground that he thought 70% to 80% of those who had signed union cards now opposed the union.

24. It is appropriate to first examine the petitions filed with the Board. Apart from the section 8 request for certification, the Board would not normally deal further with the petition as the membership support for the applicant is at a level where a representation vote is required pursuant to section 7(2) of the Act. That is, the effect of a petition, even if proved voluntary, is no more than to persuade the Board to direct a representation vote. However, because of the applicant's request for certification without a representation vote, the circumstances of the petition are indeed relevant. Firstly, the Board notes that it is not disputed that the employees individually marked and sealed their "ballots" (i.e., the petition forms). Accordingly, no evidence was put before the Board as to the circumstances in which each signature was obtained and, thus, there can be no finding of "voluntariness" on this ground alone: Trench Electric, [1976] OLRB Rep. Apr. 163, 167 upheld 76 CLLC 14,041 (Ont. Div. Ct.). There was, however, considerable evidence with respect to the circumstances surrounding the petition from several witnesses. It was not disputed that the petition forms were typed by the employer's wife in the company office. Nor was it disputed that LeBlang and Legarry took the "ballots" from the office area to the Tuesday meeting for distribution, collected the petition forms after the Wednesday meeting to be placed in an envelope with a cover letter also typed in the office by Zgomba's wife and, then, mailed to the Board. Zgomba's wife knew of the certification application and of her husband's reaction to the Board notice; she cannot be regarded as "innocent bystander" with respect to the petitions. Zgomba granted LeBlang and Legarry permission to hold a first ever employees' meeting for the purpose of organizing opposition to the union. Zgomba knew the purpose of the meeting and supported that goal, as is apparent from his discussion subsequent to the Tuesday meeting with LeBlang and Legarry and his review of the employees' complaints on Wednesday. These factors alone constitute overt management involvement in the petitions and render them involuntary: Apple Bee Shirts Ltd., [1983] OLRB Rep. June 835; DI-AL Construction Ltd., [1982] OLRB Rep. Dec. 1822; Irwin Toy, [1971] OLRB Rep. Feb. 52.

25. The respondent strenuously argued the "ballot" was "secret" and could have resulted in support for the union. In fact, the wording of the "ballot" is restricted to the signer indicating opposition to the union. A union supporter would have to refuse to return a ballot (and risk this fact being known) or return a sealed blank ballot or "revised" ballot (with still no security that this fact would not be revealed). Moreover, the "voting" was conducted in circumstances where an unambiguous message as to the employer's preference was being broadcast. Firstly, there is the factual finding that Zgomba questioned at least LeBlang and Dupuis as to whether they signed a union card. LeBlang also questioned Hall as to his support for the union and learned that the latter, in fact, had signed a card. It is likely that other employees were also questioned directly or at least learned that the employer was interested in discovering who of his employees had signed cards. Secondly, there is the Tuesday meeting on company premises during working hours and for which the employees were paid. The Board rejects the respondent's assertion that payment for attendance was unintentional as not credible in the circumstances. LeBlang and Legarry solicited employees' grievances on the understanding that the complaints would be passed to Zgomba. The Board also notes that neither LeBlang nor Legarry, both principal actors, testified at the hearing as to their conduct and conversations throughout this period. There can be little doubt the employees realized that LeBlang and Legarry had the support of their employer in their endeavour, following the solicitation of complaints, of distributing a petition in opposition to the union. These factors, taken together, would also render the petitions involuntary on the basis of a reasonable perception of management involvement: F. W. Woolworth Co. Ltd., [1982] OLRB Rep. May 797; Dad's Cookies, [1976] OLRB Rep. Sept. 545; Burlington Northern Air Freight Canada Ltd., Board File No. 1 198-84-R, Nov. 15, 1984 unreported; Morgan Adhesives of Canada Ltd., [1975] OLRB Rep. Nov. 813; Pigott Motors (1961) Ltd., 63 CLLC 16,264; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387.

26. Matters did not end there, however. Directly after the Tuesday meeting, Hall was "laid off" and the employees learned of this. In the Board's view, and the respondent did not assert otherwise, while the matter was characterized as a lay-off, Hall was discharged. The impact on the other employees of the discharge of a fellow employee who had informed an individual regarded as close to management of his union support and had spoken out at the Tuesday meeting must be taken to have a considerable chilling effect. The following day, Wednesday, Zgomba held what must be regarded as a "captive audience" meeting where the employees grievances were reviewed and granted - but not to be implemented until after the certification application was resolved. No employee could miss the message that future benefits depended upon supporting their employer against the union. That captive audience meetings have negative consequences for the voluntariness of a petition has been noted in a number of Board cases, including: Dylex Limited, [1977] OLRB Rep. June 357; Delft Blue Farms Incorporated, [1985] OLRB Rep. July 1013, and the cases cited therein; Ben wind Industries, sup ra; Manor Cleaners Limited, supra.

27. The Board next examines the discharge of Hall. The respondent bears the onus of demonstrating that the discharge was entirely free of anti-union animus. It is useful to refer to the standard enunciated in the Barrie Examiner, [1975] OLRB Rep. Oct. 745:

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

The Board finds that the respondent has not satisfied this onus. The discharge of Hall was allegedly based on Hall's lack of qualifications to perform the work and the change to a one shift operation which purported to make Hall surplus. Firstly, it is not clear that Hall was not qualified to perform the cutting work. Dupuis' assessment indicated that Hall's progress was satisfactory. Even Zgomba' s conversation with Hall on the Saturday only focused upon the need for increased speed. That conversation also referred to a further one week trial period to improve the production rate but Hall was discharged only two days into that week. The other ground for Hall's discharge requires review of the change to one shift. The respondent had operated on two shifts since December 1984 to January 1985. Overtime was frequent and, indeed, both Hall and Boudreau worked overtime the Saturday before the Board notices arrived. It would require compelling documentary evidence to justify such a significant change in operations in view of the overwhelming coincidence of that timing with the notice of the certification application. No documentary evidence whatsoever was produced to the Board. Indeed, the respondent declined to submit even the company "regulations and policies" allegedly read from at the Wednesday meeting. The Board does not regard the break-ins as a significant factor in the decision to move to one shift given the time lapse since those events. To the extent the shift change was intended to respond to the employees' wishes, the change was improper in view of the timing. That is, the employees had generally disliked the second shift for a number of months; responding to the employees' concerns at that point was an attempt to defeat the union certification application. Returning to Hall, the Board has found that Hall told LeBlang that he had signed a union card and that Zgomba undoubtedly became aware of this fact. Further, Hall actively participated in the Tuesday meeting with respect to voicing employees' complaints. Thus, the Board finds that Hall's discharge was not free from anti-union animus and contravened section 66 of the Act: see also Charterways Transportation Ltd., [1982] OLRB Rep. Jan. 5; Benwind Industries, supra.

28. The Board now turns to the applicant's request for certification pursuant to section 8 of the Act. Section 8 reads:

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union had membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

29. The Board in DI-AL Construction Limited, [1983] OLRB Rep. March 356 at 358 stated:

... certification pursuant to the provisions of section 8 of the Act was designed as both deterrent to illegal employer interference in union organizational campaigns, as well as a device to provide a meaningful and effective remedy in those areas where an employer's interference has operated to destroy the free selection process guaranteed by section 3 of the Act. The wording of the section makes clear that certification under section 8 can only be granted if three conditions are satisfied, namely:

(i) The Act has been violated.

(ii) The true wishes of employees are not likely to be ascertained in a representation vote, or otherwise.

(iii) In the opinion of the Board, the applicant has membership support adequate for the purposes of collective bargaining.

30. The applicant has established the first condition necessary for certification pursuant to section 8. That is, the Board has found that the discharge of Hall, the employer's involvement in the petition and the captive audience meeting contravene sections 64, 66 and 70 of the Act.

31. The Board next examines the membership support enjoyed by the applicant. A total of 8 membership cards were filed in respect of 16 employees in the bargaining unit for purposes of the count. As noted, the applicant is in a vote position, that is, a representation vote is required under section 7(2) of the Act. However, certification without a vote, pursuant to section 8, is the alternative sought by the applicant.

32. It is useful to refer to a relevant passage in Manor Cleaners Limited, supra, at this point:

21. The issue of whether membership strength is adequate under section 8 has been found by the Board in prior cases not to be simply a question of numbers or percentages. In Viceroy Construction Company Limited, [1977] OLRB Rep. Sept. 562, the Board stated at paragraph 22:

No arbitrary percentage can be arrived at that will apply in all cases. The Act requires the Board to determine what is adequate membership support by the light of its opinion depending on the facts of each case. In forming its opinion in any case the Board must have regard for all the circumstances.

Some of the circumstances or factors which have been considered by the Board in assessing 'adequacy' are:

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, supra; District of Algoma Home for the Aged (Algoma Manor), supra);

(2) the circumstances surrounding the cards signed prior to the employer interference and the number of cards signed (Lorain Products, [1977] OLRB Rep. Nov. 734);

(3) the existence of a full-time unit which showed membership sufficient to support collective bargaining by its part-time counterpart (Robin Hood Multifoods, [1981] OLRB Rep. July 972; Windsor Airline Limousine Limited, [1981] OLRB Rep. Mar. 398);

(4) the severity of the employer conduct insofar as it related to the number of cards signed - 'the chilling effect' (K-Mart, [1981] OLRB Rep. Jan. 60.);

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) Somerville Belkin, supra).

In assessing adequacy, the Board must engage in some measure of speculation regarding the union's prospects of successfully engaging in the sequel to certification, collective bargaining. If the union can and has mastered the totality of its support in the bargaining unit, certification under section 8 should not be used to foist union representation on those employees who would not have chosen this freely for themselves. The assessment must be taken with care (see Skyline, supra, at paragraph 62).

33. Certification pursuant to section 8 does not require majority support. In the Board's view, the applicant has demonstrated a significant degree of support within the bargaining unit, at least sufficient to engage in meaningful collective bargaining. That is, the applicant has satisfied the third element set out in paragraph 29, supra.

34. The Board now considers the second requisite element for certification, namely, whether the true wishes of the employees are likely to be ascertained in a representation vote. The Board deals with this element last because the applicant already is in a "vote" position and the Board must be persuaded that a vote should not be ordered. Substantial employer misconduct is required to justify this extraordinary remedy of certification pursuant to section 8: Radio Shack, [1979] OLRB Rep. Mar. 248, upheld 79 CLLC 14,316 (Ont. Div. Ct.); Ex-Cello Wildex Canada, [1977] OLRB Rep. June 370; Benwind Industries, supra; Manor Cleaners, supra. The Board, however, does look to the cumulative impact of the employer's improper activities: K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972; Benwind Industries, supra. In this case, there was the discharge of Hall, improper interference in the "petition" and a captive audience meeting at which there were open inducements (shift premium, settlement of grievances) to employees not to support the union. As well, the Board must determine whether the remedies which could be directed with respect to violations of the Act would effectively "restore the atmosphere" to the point where the union could continue to conduct its campaign, as an alternative to certification under section 8. In this regard, the Board notes the testimony that the atmosphere in the shop has changed markedly since the certification application and the first Board hearing. For example, other employees are afraid to talk openly with Dupuis, now a known union supporter. In the words of one of the respondent's witnesses, the employees are trying to "lie low" until this is resolved. The Board also notes that this is a small shop and, consequently, the chilling effect of the improper employer conduct is that much greater. In light of all the circumstances, then, the Board concludes that the true wishes of the employees are not likely to be ascertained in a representation vote.

35. The applicant, thus, has satisfied all the required elements in a section 8 application. The Board, for the foregoing reasons, exercises its discretion pursuant to section 8 of the Act and certifies the applicant as bargaining agent for:

all employees of the respondent in Windsor, Ontario, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and sales staff, persons who regularly work not more than twenty-four (24) hours per week and students employed during the school vacation period.

36. A certificate shall issue to the applicant.

37. The Board has found the respondent to have contravened sections 64, 66 and 70 of the Act. The Board does not regard it as necessary to deal specifically with section 79. In devising an appropriate remedy, the Board notes that the plant has continued to operate on one shift and no new employees have been hired since Hall was discharged. The Board sees no compelling reason at this point to alter the single shift operation. The Board recognizes that only two cutters can operate the machinery during one shift. However, in the Board's view, it has not been established that there is insufficient work to occupy Hall. As noted, Hall performed a number of duties besides cutting, including grinding, welding, painting, etc. Moreover, Hall was neither the most junior employee or even the most junior welder. As the Board has found Hall's termination to be in violation of the Act, he must be reinstated as set out below.

38. Consequently, the Board orders:

(a) that the respondent sign and post copies of the attached Notice marked "Appendix", as supplied by the Board, in conspicuous places on its premises and to keep such notices posted for sixty (60) working days and to take all reasonable steps to ensure that the Notices are not altered or defaced or covered by any other material;

(b) that the respondent provide reasonable access to a representative of the applicant to permit the applicant to satisfy itself that the respondent has complied with this posting order;

(c) that the respondent give two representatives of the applicant an opportunity to hold two separate meetings, the first of which will occur within the two weeks of the receipt of this decision or at a time satisfactory to the applicant, with all employees, without loss of pay, on the respondent's premises during working hours but without the presence of any member of management. Each of these meetings may be as much as one hour in length. The second meting will be held in the same fashion at a time satisfactory to the applicant. The respondent is further directed to require all employees to attend such meetings;

(d) that the respondent, for one year from the date of this decision or until a first collective agreement is reached, whichever occurs first, give reasonable notice to the applicant and permit access to the applicant to any future meeting of the employees sponsored by or called by the respondent which involves a discussion relating to collective bargaining with equal time to be afforded the applicant's representatives to respond;

(e) that the respondent offer to reinstate forthwith D. Hall and that the respondent compensate him for loss of credited service, wages and benefits, from the date of termination, less earnings during that period;

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

39. The Board shall remain seized to resolve any dispute as to the implementation of these orders.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERS WITH THESE RIGHTS.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT LAY OFF, DISCHARGE OR THREATEN TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES.

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

WE WILL PROVIDE REPRESENTATIVES OF TEAMSTERS UNION LOCAL No. 880 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA ACCESS TO OUR PREMISES DURING WORKING HOURS FOR THE PURPOSE OF CONDUCTING TWO SEPARATE MEETINGS OF THE EMPLOYEES IN THE BARGAINING UNIT OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT.

WE WILL FOR ONE YEAR OR UNTIL A FIRST COLLECTIVE AGREEMENT IS REACHED, WHICHEVER OCCURS FIRST, PROVIDE REPRESENTATIVES OF THE TEAMSTERS UNION LOCAL No, 880 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA ACCESS, WITH REASONABLE NOTICE BEFOREHAND, TO ANY MEETING OF EMPLOYEES SPONSORED BY US WHICH INVOLVES THE DISCUSSION OF THE PROS AND CONS OF COLLECTIVE BARGAINING, WITH EQUAL TIME TO BE AFFORDED THE UNION REPRESENTATIVES TO RESPOND.

GENERAL METAL PRODUCTS OF WINDSOR LIMITED

PER: ____________________________________________________ (AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This Notice must remain posted for 60 consecutive working days.

DATED this 18TH day of NOVEMBER 1985