[1985] OLRB Rep. February 149

1628-84-R; 1798-84-U United Steelworkers of America, Applicant/Complainant, v. Osterley Investment Ltd., Adam Hay Holdings Ltd., and 462862 Ontario Ltd., carrying on business in limited partnership as Benwind Industries, Respondents

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.

APPEARANCES: David Nicholson and Fortunato Rao for the applicant/complainant; A. A. White and J. Benayon for the respondents.

DECISION OF THE BOARD; February 26, 1985

1This 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. The files were consolidated by decision of the Board (differently constituted) dated December 20, 1984. That decision dealt with the bargaining unit description and the status of one employee, Kevin Lauff, finding that employee to be properly included in the bargaining unit. This Board heard evidence and submissions with respect to the consolidated section 89 and application for certification.

2The respondent called two witnesses, J. Benayon (president of the respondent compa­ny) and J. Weyermars (foreman). The applicant also called two witnesses, J. Fuentes and H. Guenther, both former employees challenging their terminations under section 89 of the Act. 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.

3It is also appropriate to comment at this point that the Board does not consider Benayon a credible witness. His testimony was self-serving and inconsistent. For example, the "lost contract" which was offered as the explanation for the September 20th meeting was described as "significant". Yet, when pressed in cross-examination, Benayon admitted that the value of the contract for 1984 was only 1% of gross sales and, although Benayon stated he expected the 1985 "lost" contract to be about $2-l/2 million (or about 1/2 of the 1984 volume), there was no reasonable basis for this calculation in view of Benayon's own testimony concerning the clients' five-year plan. There is also no credible connection between the loss of the "contract" for 1985, which would not affect production in the September to December 1984 period significantly, if at all, with the announced layoff of approximately 20% of the workforce in September 1984. The Board refers to these examples in only cursory fashion here to illustrate the unreliability of the witness; details are given, infra. Thus, the Board rejects the testimony of Benayon wherever there is conflict with that of Fuentes or Guenther and, further, rejects that testimony as a credible explanation of the reasons for termination of the two employees.

4The Board would add that the testimony of Weyermars is also rejected with respect to the key issue of the explanation for the termination of Fuentes and Guenther. Weyermars appeared clearly uncomfortable when pressed on those issues and, especially with respect to one specific conversation with Benayon about the union. The Board does not accept that Weyermars "forgot" Benayon's response to information that there was a union organizing drive, information which "flabbergasted" Weyermars to use his own word. The Board is prepared to draw an adverse inference from the convenient "lapses" in memory of Weyermars and Benayon on important points.

5Having assessed the testimony and relative credibility of the witnesses, the Board makes the following findings of fact.

6The respondent company manufactures wire and tubular products for use in store fixtures. Benayon is president and part-owner of the respondent company and is a part-owner of another firm, Ontario Store Fixtures. Benayon has a great deal of influence in the manage­ment of Ontario Store Fixtures, including the allocation of sub-contracts from Ontario Store Fixtures to the respondent company.

7In late 1982, the respondent obtained a contract with an American firm. That firm had a five year plan to open approximately 400 stores. In 1983, the firm opened eighty stores; the respondent supplied at least some of the fixtures needed. In 1984, however, only two or three stores were opened; the respondent did only $40,000 to $50,000 worth of business with that firm (of a total volume of $5 million). That work was completed in early 1984. Benayon testified that, in 1985, he was told that the firm would go ahead with the original programme. Benayon stated he expected fifty stores would be opened (this figure was revised to eighty) and this would generate a volume of $2-i /2 million in business with this firm alone. Although Benayon was in continuous contact with the American firm, finally in September he was told that the store openings originally planed for 1985 were not going to proceed. This cancelled contract was asserted as the (or "a") rationale for the layoff announcements. In fact, the respondent did not receive any orders from the American firm for 1985.

8Even a cursory analysis of the above data reveals several implausible assertions. For example, a programme of 400 store openings over five years, with 80 stores opened in 1983 and only 2 or 3 in 1984, would require over 100 openings in each of the last three years. Yet, Benayon stated he expected 50 (then 80) openings. That figure does not make sense in the circumstances. Further, if 2 or 3 stores generated $40,000 to $50,000 worth of business, even Benayon's figure of 80 stores in 1985 would generate a volume of $1.6 million (assuming $20,000 per store — an advantageous figure for the respondent). Yet, this volume is nowhere close to the $2.5 million Benayon testified he expected in 1985 from the American firm. It is conceivable that the planned openings for 1985 were of bigger stores than those opened in 1984. However, Benayon stated he was never informed by the American firm as to which stores were to be opened or the number of openings planned. Thus, the data offered in justification of Benayon's decision is not internally consistent.

9Benayon testified that employees in the polishing department had approached him in June or July requesting a group insurance plan and a standardization of raises from the usual raise on the employee's anniversary date to a yearly raise for all employees in September. Benayon stated he agreed to consider both matters and instructed management personnel to obtain quotes from insurance companies. The Board need not determine whether these ap­proaches were actually made. However, in view of Fuentes' and Guenther's testimony that no "department" meetings were held in early September to confirm that the benefit plan was to be introduced, the Board rejects Benayon's testimony that he spoke with all employees in departmental groupings before the September 20, 1984 meeting.

10Benayon stated he decided on September 20th itself, as a matter of "fairness", to inform the employees of the lost contract and that ten employees would be laid-off. Benayon could not, however, give a credible explanation for the termination of Fuentes for "lack of work" on September 19th, i.e., the day before the "fairness" meeting, other than to state that, as Fuentes was a cutter, the layoff should start in that department. The Board has further comments about the selection of Fuentes, infra, at paragraphs 25 and 26.

11Benayon testified he told Weyermars about the lost contract on September 17th and told him to start laying off one or two people "right away". The selection of individuals, though, was up to Weyermars. However, Weyermars said he first heard of the lost contract on the 20th, when Benayon told him to arrange the meeting. Later, Weyermars said he learned of the lost contract a few days before the 20th and that Benayon had mentioned the necessity of layoffs between the first conversation about the layoffs and the 20th. Weyermars first heard of the intended number of lay-offs, i.e., 10, at the actual meeting on September 20th.

12The September 20th meeting was held at 3:00 p.m. on company premises during working hours. The employees were told to attend and were paid for the time involved. Benayon announced the loss of the contract and said that, in consequence, ten employees would be terminated. The individuals who would be terminated had not yet been selected and Weyermars would make that decision. Benayon assured employees that "he was not a quitter" and he would "try to find other accounts to replace the lost contract". Benayon also stated the company was introducing a standard wage increase for all employees as of the end of September, although persons who had received a wage increase within the past three months would be reviewed separately. Thirdly, Benayon announced the introduction of the group insurance plan, to be effective January 1, 1985, and explained the coverage.

13Benayon conceded that he could not recall a time either when ten employees had been laid-off at one time or when there had been an announced layoff. The company practice was to terminate one or two employees at a time and hire replacements in order to respond to the ebb and flow of business. Since April 1984 roughly six individuals were terminated due to lack of work and nine as unsatisfactory. It was not company practice to maintain a list of "laid-off' employees for rehire when business picked up. October through December is generally slower but, because "rush jobs" are common, this decline is not certain. As it happened, notwithstand­ing the announcement, only Fuentes and Guenther were terminated. A mere ten days or so later, the respondent obtained a large subcontract from Ontario Store Fixtures. Benayon couldn't recall whether anyone was hired after September 20th. Weyermars acknowledged people had been hired in October, if not in September (after the 20th), but could not recall how many new employees commenced work. Weyermars was also evasive as to when he first learned that the respondent would be receiving the large subcontract from Ontario Store Fixtures. Finally, in this regard, the Board accepts the testimony of Guenther and Fuentes that they were asked to work overtime on a number of occasions in September. Fuentes had even been requested to work overtime the day before he was terminated.

14Four employees asked questions during the September 20th meeting; i.e., Guenther, Sanduc, Leon and Ashrafi. Benayon could only recall Guenther's question dealing with cost of living increases. Guenther testified that he commented that, without a regular cost-of-living increase, a single raise per year wouldn't really be worth anything. Approximately, a half hour after the meeting ended, Guenther was terminated for "unsatisfactory work". However, Guenther was notified he was granted a raise earlier that week. This wage increase was approved after only five months of employment. Both Benayon and Weyermars testified that raises before the first year of employment was completed were only given to excellent employees. Weyermars also said he told Guenther on several occasions that the welding was unsatisfactory, although he could not recall the dates of such conversations. The Board rejects this explanation and accepts Guenther's testimony that he was never cautioned about his work performance. Guenther's testimony is in part supported by the undisputed granting of a wage increase. At one point, Weyermars also suggested that Guenther was terminated because of the lost contract, in addition to his unsatisfactory work. The Board deals with this infra at paragraph 28.

15Benayon testified that he first learned of the union organizing drive on September 21st from Ashrafi. When Benayon offered Ashrafi the promotion, Ashrafi supposedly asked if the union drive was the reason for the promotion and showed Benayon a blank union membership card. In Benayon's words, he was "shocked" at the news.

16Weyermars said he learned of the union campaign on the 21st as well but from his son in the shipping department. Weyermars said he was "flabbergasted" at the news and told Benayon later that day, on Friday afternoon. Weyermars described Benayon as "upset" and "not too happy" but could not recall any of that conversation. Benayon did not even mention this conversation with Weyermars in his testimony on the point. The Board cannot but draw an adverse inference from this "lapse in memory" as to the content of the discussion.

17Fuentes testified that he and Ashrafi commenced the organizing drive on September 11, 1984. Ashrafi discussed the union with the employees first and then Fuentes approached those employees with cards. Only Fuentes collected the $1 payment although Ashrafi did obtain some signatures on cards. Fuentes signed his first card on the 12th; the last card was signed on the 19th. Employees were contacted outside the factory before and after work and in the lunchroom on company premises. Ashrafi and Fuentes were in daily contact throughout this period. After Fuentes was terminated on the 19th, Ashrafi continued to try to collect signatures but was unsuccessful. On Tuesday, September 24th, however, Ashrafi told Fuentes he was not prepared to continue his involvement in the union organizing campaign. Fuentes also tried to obtain additional cards but was likewise unsuccessful. A few days after his termination, he approached more employees at the bus stop near the respondent company but the employees refused to sign, saying they were afraid they would be fired too. Finally, Fuentes stated some people he had approached said they opposed the union, that one individual said he couldn't sign because he was a foreman and that he could have been observed singing cards in the lunchroom at lunch. In Fuentes' opinion, he was fired as soon as the company learned he was involved in the union organizing activities. Fuentes has not worked since the termination; he applied twice for employment at Ontario Store Fixtures. It was not disputed that there were no complaints about his work.

18Guenther was not formally involved in the union organizing campaign. He did ask several of the younger employees in the shipping department if they were interested in joining the union.

19Ben ayon testified he called Ashrafi into his office on Friday, September 21st and "since we were not going to be busy at Benwind I decided to give him a promotion". Ashrafi was offered a position as foreman at Ontario Store Fixtures to commence the following Monday. Ashrafi accepted on condition that, if he didn't like the job, he could return to the respondent company. In fact, Ashrafi apparently was disenchanted with the job by 11:00 a.m. on Monday, told Benayon that and returned to the respondent. Fuentes, though, testified that Ashrafi told him on Monday, September 24th that he was fired and then rehired on the Tuesday.

20Despite this "promotion" to Ashrafi, Benayon stated at another point in his testimony that he could only "recommend" new hires to the plant manager at Ontario Store Fixtures. Benayon later attempted to add more consistency into his earlier explanation regarding Ashrafi's promotion by stating he recommended Ashrafi to the plant manager who actually hired Ashrafi. This contradiction is not readily explained, as Benayon's initial testimony regarding Ashrafi's promotion was clear. However, the Board need not finally resolve this conflict other than to note this further undermines Benayon's credibility.

21The Board does accept Benayon's statement that he was informed about Guenther's subsequent application for employment at Ontario Store Fixtures but was not so informed of Fuentes' application. Guenther was, in fact, hired by Ontario Store Fixtures on October 13, 1984 and has continued to work there up to the hearing date; Benayon stated he did not interfere in the hiring decision.

22The respondent submitted that Fuentes had been terminated due to a work shortage resulting from the loss of the major contract. It was argued that this practice of termination when work was short conformed to the usual company practice and, as Fuentes was a cutter, the first step in the production process, he was the logical first choice. The respondent also suggested the applicant should have called other employees to corroborate the testimony of Fuentes that the terminations had "chilled" the organizing drive. The respondent asserted that the September 20th meeting was called for the purpose of informing the employees of the benefit plan, the standardized wage increases and the loss of the American contract and that there was nothing improper in this meeting. In summary, the respondent submitted the evidence did not indicate a violation of the Act and the section 89 charges should be dismissed. The certification application, it was argued, should be resolved on the basis of the card count or, if there was doubt, through a representation vote since a union should not be certified against the wishes of the employees.

23The applicant submitted that the issue of credibility should be resolved in favour of Fuentes and Guenther but the Board should also expressly find Benayon and Weyermars were lying with respect to the explanations for the terminations and the September 20th meeting. Further, the failure to call Ashrafi should be held against the respondent, not the applicant. In the applicant's view, once the "layoff' explanation was found not to be credible, there was no innocent explanation for the terminations and, hence, there should be a finding that the Act had been violated. Counsel contended there was ample evidence to support a conclusion that the true wishes of the employees could not be ascertained through a representation vote, i.e., thus, providing the second element in a section 8 certification application. There were two terminations (Fuentes and Guenther) and one "promotion" (Ashrafi) of persons who were, or could reasonable have been regarded as, union organizers. The September 20th meeting was akin to a "captive audience" meeting at which threats to job security were made. Such threats to job security have been found to satisfy this aspect of the section 8 complaint; Manor Cleaners Limited, 1982] OLRB Rep. Dec. 1848 was referred to in support. Counsel submitted that the third element, that there was sufficient union strength for collective bargaining, was demonstrated as well. The union had signed over 40% of the bargaining unit members before Fuentes was terminated and none thereafter. By way of remedy, the applicant sought reinstate­ment with compensation for Fuentes and Guenther, notices to be posted in the respondent's premises, at least one union meeting with the employees also on company premises and certification pursuant to section 8 of the Act.

24Section 8 of the Act reads:

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

25The Board first examines the Fuentes termination. As noted, the respondent's expla­nation for the termination was a shortage of work due to the "lost contract". Quite simply, the respondent's account of the loss of the contract with the American firm and its impact on the respondent's business does not hang together. The Board has already noted the inconsisten­cies in the data presented by Benayon (see paragraph 8). The lost contract might well have affected the level of production in 1985; it would not, however, require the layoff of ten employees in September, 1984. The "work shortage" argument is even more transparent when one considered that Fuentes worked overtime in September and even had been requested to work overtime the day before his termination. Weyermars testified that production usually was planned for about two weeks ahead, although such orders could come in at any time. This known scheduling pattern yet further undermines the "work shortage" explanation. The Board is convinced that the only plausible account of the Fuentes termination was that Benayon learned that Fuentes was signing union membership cards. Benayon's protestations of lack of knowledge of the union campaign are rejected. Fuentes had approached a number of employees to solicit cards, including employees opposed to the union (and a foreman). Some solicitation occurred in the company's lunchroom. In the circumstances, it is only reasonable to assume that Benayon became aware of the organizing drive and Fuentes' involvement on September 19th.

26Once this assumption is made, Benayon's subsequent behaviour forms a coherent pattern. That is, Benayon tells Weyermars to start terminating employees immediately and may even have suggested the cutting area as the first choice (or Benayon might have realized Weyermars would start there). Of course, it is also possible Benayon told Weyermars to fire Fuentes. The Board need not finally choose between these alternatives. Benayon decides the following morning to meet with all employees and makes both threats to job security and promises as to employment conditions. The one employee who appears to press the employer on raises is terminated immediately. The next day the curious interview with Ashrafi takes place and, as a result, Ashrafi ceases to participate in the campaign. Then, suddenly the subcontract with Ontario Store Fixtures is received. Not only are there no more terminations but new employees are hired.

27The Board finds that the respondent has not satisfied the onus of showing that the termination of Fuentes was free of anti-union animus. The Board considers that the "work shortage" explanation was a fabrication but, even if there was to be some decline in work, the selection of Fuentes to be terminated was not without taint: see, for example, Barrie Examiner, [1975] OLRB Rep. Oct. 745; Charterways Transport ation Ltd., [1982] OLRB Rep. Jan. 5. Thus, the termination of Fuentes constitutes a violation of sections 64, 66(a) and 70 of the Act.

28The Board need deal only briefly with Guenther's termination. There was no credible evidence before the Board of unsatisfactory work performance so as to justify termination. The belated explanation of the "work shortage" factor which was also raised is rejected for the reasons set out above. Guenther was not a union organizer. However, he did speak in support of the union to two employees in the shipping department. Most importantly, Guenther, in effect, challenged Benayon at the September 20th meeting with his advocacy of regular cost-of-living increments and, implicitly, a real increase in wages in addition. It was reasonable for Benayon to have concluded (albeit erroneously) that Guenther was a serious supporter of the union. Guenther's termination a bare half-hour after the meeting was no coincidence. The Board, then, finds that this termination also contravened sections 64, 66(a) and 70 of the Act.

29The September 20th meeting itself violated the Act. An employer need not remain neutral on the subject of unionization, however, an employer must not use his economic dominance to threaten job security or promise improvements in employment conditions: Dylex Limited, [1977] OLRB Rep. June 357, upheld 77 CLLC ¶14,112 (Ont. Div. Ct.); Viceroy Construction Co. Ltd., [1977] OLRB Rep. Sept. 562; Globe & Mail, [1982] OLRB Rep. Feb. 189; K Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60. Benayon did both. No reasonable employee would miss the message: ten employees, yet to be selected, were to be terminated, wage increases were to be standardized as of that very month; abenefit plan was to be introduced for the first time, effective January 1985. Even if the question of benefits had been raised earlier, the timing of the announcement was also not coincidence. Moreover, the September 20th meeting followed immediately in the wake of the Fuentes termination, thereby, enhancing the impact of the message.

30The Board need not finally determine what transpired between Benayon and Ashrafi. If there was a firing then a rehire, as Fuentes stated Ashrafi told him, the firing contravened the Act and the "rehire" underscored the employer's position as the "source" of all benefits. If, as Benayon claims, there was a promotion, the Board regards this, too, as illegal conduct by the employer intended to interfere with the union organizing campaign contrary to sections 64, 66 and 70 of the Act.

31The applicant has satisfied the first element required in a section 8 application, i.e., contravention of the Act. The Board then turns to the next issue, whether the true wishes of the employees would not likely be ascertained on a representation vote.

32Substantial 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, 216 (Ont. Div. Ct.); Ex-Cello Wildex, Canada, [1977] OLRB Rep. June 370; Manor Cleaners, supra. The Board does, however, look to the cumulative impact of the employer's illegal activities: K Mart Canada Ltd., supra; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972. In this case, there were two illegal terminations (Fuentes, Guenther), one instance of improper interference in the union campaign with respect to another individual (Ashrafi), a "captive audience" meeting at which blatant threats to job security (ten termina­tions) and open inducements (raises, benefit plan) were made. As well, the Board must assess whether the remedies which could be directed with respect to the violations of the Act would effectively "restore the atmosphere" to the point where the union could continue to conduct its campaign. The Board does not consider that possible here in view of the circumstances, particularly the repeated illegal conduct. When all these factors are considered together, the Board is prepared to conclude that the true wishes of the employees, indeed, are not likely to be ascertained in a representation vote.

33The applicant filed 23 membership cards in respect of the 51 employees in the bargaining unit. The cards of Fuentes and Guenther have been included in these figures. However, the one remaining lost card has not been included. (The Board in its decision dated December 20, 1984, in paragraph 5, directed a record check of the respondent's employment records; that check has not as yet been completed). Apart from this card, then, the applicant successfully solicited support from 45% of the bargaining unit between September 11th and 19th. No cards were signed after that date, the date of the Fuentes termination.

34It 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, 11981] 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%) (Sommerville 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 mustered 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).

35The applicant had achieved sufficient support to warrant a representation vote in just over one week. The conduct of the employer on the 19th and 20th in particular constituted serious and repeated violations of the Act. The "chilling effect" of that conduct was severe enough to dramatically impact on the organizing activities: one organizer, Ashrafi, refused to participate further; employees told Fuentes they were afraid to sign cards lest they be fired too; no further cards were signed. The Board accepts Fuentes' testimony that he expected to sign approximately ten additional cards, sufficient to entitle the applicant to automatic certifi­cation. It is true that this estimate cannot now be tested empirically. However, the Board regards Fuentes as a candid and truthful witness and considers this testimony on this point as highly credible. The Board has no difficulty in finding that the applicant has demonstrated member­ship support adequate for collective bargaining.

36The applicant has, thus, satisfied all the requisite elements in a section 8 application. The Board, for the foregoing reasons, therefore, exercises its discretion pursuant to section 8 of the Act and, consequently, certifies the applicant as bargaining agent for:

all employees of the respondent in the Municipality of Metropolitan Toron­to, save and except foremen, persons above the rank of foreman and office and sales staff.

37A certificate will issue to the applicant.

38The Board has found the respondent to be in violation of sections 64, 66 and 70 of the Act in the termination of Fuentes and Guenther, the conduct of the September 20th meeting and the "interaction" with Ashrafi. The applicant, however, has not requested any remedial orders with respect to Ashrafi.

39Consequently, 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; that such notices be posted for 60 days and that the respon­dent take all reasonable steps to ensure that the notices are not altered or defaced or covered by any other material; that reasonable access be given by the respondent to a representative of the applicant so that the union can satisfy itself that this posting requirement is being complied with.

(b) That at least two representatives of the applicant be given an opportuni­ty to hold two separate meetings, the first of which will occur within 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 meeting will be held in the same fashion at a time satisfactory to the applicant. The respondent is ordered to make it a requirement of all employees to attend such meetings.

(c) That the representative of the applicant will be provided reasonable notice of and access to any future meeting of employees sponsored by or called by the respondent which involves a discussion of the pros and

cons of collective bargaining with equal time to be afforded the appli­cant's representative to respond.

(d) That the respondent offer to reinstate forthwith J. Fuentes and H. Guenther and that the respondent compensate for loss of credited service, wages and benefits, from the date of termination, less earnings during that period;

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

40The Board will 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 INTERFERES 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 THE UNITED STEELWORKERS 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 PROVIDE REPRESENTATIVES OF THE UNITED STEELWORKERS 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.

OSTERLEY INVESTMENT LTD., ADAM HAY HOLDINGS LTD., AND 462862 ONTARIO LTD., CARRYING ON BUSINESS IN LIMITED PARTNERSHIP AS BENWIND INDUSTRIES.

PER: ___________________________________________________

(AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 80 consecutive working days.