United Food and Commercial Workers International Union v. Jacmorr Manufacturing Limited, 1986 CanLII 1524

[1986] OLRB Rep. December 1709

2059-85-U United Food and Commercial Workers International Union, A.F.L. - C.I.O. - C.L.C., Complainant, v. Jacmorr Manufacturing Limited, Respondent

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members I. M. Stamp and P. O'Keeffe.

APPEARANCES: Bernard Fishbein and John Slaney for the complainant; Steven J. McCormack and Jack Fler for the respondent.

DECISION OF THE BOARD; November 28, 1986

1. This is a complaint under section 89 of the Labour Relations Act. The union contends that the grievor, Connie Campbell was dealt with by the respondent employer, contrary to sections 3, 64, 66, 79(1) and 89(7) of the Act. Ms. Campbell's employment was first terminated on October 9, 1985. She was discharged again on November 13, 1985. This case concerns that second dis­charge. The union contends that it was part of a pattern of anti-union conduct directed at Ms. Campbell and other union supporters. The union makes the same allegation with respect to the discharge of Steven Cliche in December 1985.

The Legal Framework

2. Before reviewing the circumstances leading up to the grievor's second discharge it may be useful to briefly set out the legal framework within which the parties' rights must be deter­mined. The provisions of the statute upon which the grievors rely are as follows:

3. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

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

5. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

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

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

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

89. -(7) Where the matter complaint of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a com­plaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

Since section 79(1) was not pressed in argument, we see no need to reproduce it here.

3. Sections 64 and 66 appear in that portion of the Act dealing with "unfair labour prac­tices". Their purpose is fairly obvious. Freedom of association, and the principle of free collective bargaining, are concepts fundamental to our system of labour relations. Indeed, the preamble to the Act provides that "it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collec­tive bargaining..." Section 3 is a further declaration of employee rights, and is now buttressed by the Constitutional protection for "freedom of association" found in the Canadian Charter of Rights and Freedoms. However these rights would be rather hollow without effective remedies for their infringement. That is the role of the unfair labour practice sections of the Act, for it is an unfortunate reality that, although these employee rights have been entrenched in Ontario law for more than forty years, there are still some employers who are prepared to use their superior eco­nomic power to threaten or punish employees who choose to join a trade union or press for the establishment a collective bargaining relationship. The unfair labour practice sections provide a remedy and a deterrent. How effective a remedy or great a deterrent remains a matter of continu­ing debate.

4. In applying sections 64 and 66 to an employee discharge, the Board must determine whether the reasons given for the discharge are the only reasons, and whether they are tainted, in any way, by anti-union animus. The improper motive need not be the only or even the dominant one. It is sufficient if it was in the mind of the employer, and one of the grounds for the action tak­en. (See R. v. Bushnell Communications Ltd. et al (1973) 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442 (H.C.J.), affirmed 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 (C.A.); Re. JML Shirts Ltd. and Industrial Relations Board 78 CLLC ¶14,122 (NBQB), affirmed 1977 CanLII 2380 (NB CA), 18 N.B.R. (2d) 695 (S.C. Appeal Division); Westinghouse Canada Ltd. [1980] OLRB Reports April 577, affirmed by the Ontario Divisional Court, 80 CLLC ¶14,062.) More­over, since in our experience, employers seldom confess to an anti-union animus, the question of motive becomes the key issue in the case, and the Board must generally rely upon circumstantial evidence and draw inferences about the employer's motivation from all of the surrounding circum­stances, not just the articulated reason for the discharge. In DeVilbiss (Canada) Ltd. [1975] OLRB Rep. September 678, the Board listed some of the factors which might be helpful in determining whether a discharge was for trade union activity:

In this case the following factors are relevant in our determination of whether there was any anti-union motive for the discharge: 1) the existence of a pattern of anti-union activity; 2) the extent of the respondent's knowledge of the existence of union activity and of the employee's involvement in that activity; 3) the manner in which the employee was discharged; 4) the credi­bility of the witnesses.

Ill The existence of a pattern of anti-union activity occurring at or around the time of discharge is circumstantial evidence that will support an inference that the discharge was part of that pat­tern. If an employer exhibits an anti-union motive in the conduct of its affairs during a certain period, then all of its actions during that period become suspect. On the other hand, if the dis­charge is an isolated incident occurring in the context of legitimate behaviour, it is more difficult to conclude that there existed an improper motive for the discharge.

2Knowledge by the employer of union activity and the employee's involvement in that activity is an important ingredient in determining the motive for a discharge. If an employer has no knowledge of union activity among its employees, which might occur in the early stages of an organizing drive, then the possibility of an anti-union motive would be remote. Conversely, if there is knowledge, and that knowledge manifests itself in an anti-union attitude, then there would be evidence upon which the Board could base an inference that the discharge was prompted by an anti-union animus. The inference would become even stronger if the discharged employee is extensively involved in union activity and this involvement is known by the employ­er.

3The manner in which an employee is discharged may offer some clue as to the motive for the discharge. This does not mean that the Board determines whether the discharge is for just cause. Just as the existence of just cause does not offer a defence to employers, the lack of just cause does not establish a case for the employee. The issue is, in these cases, quite a different one - whether there exists any anti-union motive for the discharge. Anti-union motive, however, may be inferred from the manner in which an employee is discharged. If the manner in which the discharge occurs deviates from the normal pattern for such activity, then it is a possible inference that the deviation has some connection with the presence of union activity.

4The Board's reliance upon circumstantial evidence in these cases makes the credibility of wit­nesses an important factor. The manner in which the witnesses testify can often assist the Board in reading between the lines. In this case we found that Siviter was less than frank under cross-examination, especially in respect of his work performance. This lack of frankness was taken into account by us in arriving at our decision.

We must emphasize that it is not a matter of this Board second guessing an employer's decision, or imposing its own notions of fairness upon the situation. Nor is it a question of whether the employer "likes unions" or is "anti-union" in some general sense. The question is whether the dis­charge decision was influenced in whole or in part by employee activity protected by the statute. There must be a causal connection between animus and action.

5. Section 89(7) is a little different, and much narrower. It presupposes an unfair labour practice complaint which has been settled in writing. The statute makes that settlement binding and enforceable. A party cannot repudiate these written accords, and ordinarily the Board will not go behind them. A failure to implement a settlement provides an independent basis for complaint, and may, in appropriate circumstances, support an inference of anti-union motivation in subse­quent employer actions.

Credibility

6. In DeVilbiss, supra, the Board indicated that the credibility of the witnesses - partic­ularly those tendered by the employer - could be an important factor in assessing the propriety of the employer's conduct. So it was here. Over the course of a number of days we were presented with considerable oral and documentary evidence supporting the parties' respective versions of "the facts". Not surprisingly, those versions were significantly different on material points. How­ever, we do not think that it is necessary to embark upon any extensive analysis of the witnesses' relative credibility, or to try to reproduce, in these reasons, a transcript of the testimony, highlight­ing those portions which we find to be credible, credible but incomplete, mistaken, distorted, or simply untrue. It suffices to say that in assessing the witnesses' evidence we have taken into account their demeanor when giving testimony, their performance under cross-examination, the clarity, consistency and apparent quality of their recollections, the reasonableness of their version of the facts in light of contradictory evidence, their apparent ability to be objective and resist the influence of self-interest, speculation, personal opinion, or self justification when giving their evi­dence, and what seems most probable in all the circumstances.

7. In applying those criteria to the evidence before us, we are constrained to conclude that Jack Fler, the owner of the company, was not a credible witness. His evidence was often marked by equivocation, prevarication, and glib self-serving statements from which he would not retreat until confronted by evidence that they must be inaccurate. He was most reluctant to give a "straight answer" to relatively simple questions touching upon his own knowledge of the union's organizing campaign or his direct involvement in the company's decision making - even when that knowledge could not be seriously disputed. These elements of distortion and self justification make Fler's testimony entirely unreliable insofar as it affects the grievor, Connie Campbell, who, in his mind, had brought the union upon him and fomented "trouble" - "trouble" being an insistence upon her legal rights and expressions of frustration when those rights were blatantly disregarded by the company.

8. On the other hand, we accept as genuine, Fler's response to the Cliche situation. Simi­larly, we accept forelady Jan Roberts' testimony concerning Mr. Cliche, but reject much of her evi­dence about the alleged peccadillos of Connie Campbell. As will be seen infra these alleged defaults were documented at the instance of Don Boomer, the plant manager who was a key player in the piece. There is no doubt (and it cannot be seriously denied) that Boomer orchestrated a pattern of illegal discharges designed to thwart the union's organizing campaign. Boomer was involved in both decisions to discharge Campbell. Boomer did not give evidence.

9. In contrast to Fler, the grievor Connie Campbell was generally a candid and credible witness, and (except as noted below) we prefer her testimony wherever it conflicts, on any material point, with that of any of the company's witnesses. This is not to say that we accept her version of events in its entirety, but only that, where it is relevant, we prefer her evidence over that of Jack Fler, Jan Roberts, or employee witnesses Eugene Marks or Gary Meinzinger who were called by the employer. We accept the evidence of the other union witnesses (Voelzing, Koninck, Geil, and Weber/Snider) without reservation. Grievor Cliche was also generally candid, except that he attempted to minimize the significance of the incident which gave rise to his termination. However, as we have already noted, the question is not whether Cliche's alleged misconduct was trivial or serious, but rather whether this was the real and only reason for his discharge.

The events leading up to the termination of Connie Campbell

10. The company is a manufacturer of furniture hardware, door slides, and related steel and plastic products. It operates a plant in Kitchener, Ontario, which employs approximately one hun­dred and thirty workers. The President and controlling shareholder is Jack Fler. At all material times the plant manager was Don Boomer. Jan Roberts is a supervisor in the assembly area where the grievor Connie Campbell worked.

11. Ms. Campbell was hired in mid August 1985 at a time when the company was actively seeking more part-time help. Her husband had worked for the company for some time, and she was hired immediately upon expressing an interest. She was put to work right away. She filled out an application form, but that was a mere formality. There was no initial consideration of the con­tents of her application. The company was content, so long as she could do the job.

12. By all accounts Campbell was a good worker. She almost immediately "made rate", which usually takes a new employee at least two weeks. Thereafter, she continued to perform at one hundred and forty per cent to one hundred and fifty per cent of the rated level. Since the maxi­mum performance recognized under the company's premium payment scheme is one hundred and fifty per cent, the grievor was regularly performing at or near the optimum level.

13. Prior to the union's organizing campaign, there were no complaints about Campbell's performance, punctuality, attitude or work habits. Jan Roberts testified that, on one occasion, when the grievor was working extra hours on Friday and Saturday (her regular tour was Monday to Thursday, 4.30 p.m. to 11.30 p.m.) she lost count of the number of parts that she had produced. Roberts testified that this was not particularly unusual, nor, at the time, warranted anything other than the advice to be more careful. It never happened again.

14. Despite some later adverse comment about Campbell's absenteeism, having considered the company's employment records (which we are not satisfied are entirely accurate) and Roberts' testimony, we find that the grievor's absenteeism rate was not particularly unusual when compared to that of other employees, nor was it the subject of any adverse comment at the time. Those criti­cisms surfaced only after Campbell was terminated on October 10, 1985, and the company was des­perately looking for some reason to do so again. By that time, the grievor had become a key union supporter, and, as such, a thorn in the company's side. Campbell was intelligent, able, outspoken, and tenacious in resisting the company's disregard of its employees' legal rights - relying on the law to protect her. Those are qualities which did not endear her to Boomer or Fler, but, among some employees, earned her the nickname of "Norma Rae" after the heroine in the movie of the same name. If this nickname is meant to signify someone who demonstrates perseverance, courage, and a determination to stand up for her rights, then it is entirely apt. For certain male opponents of the union however, she was too "pushy" and "aggressive". That was the evidence of Eugene Marks and Gary Meinsinger who were called to support the employer's alternative proposition: that even if Campbell had been illegally fired, she was an unsatisfactory employee who should not be rein­stated because she would be an unsettling influence.

15. The irony is that Ms. Campbell is no radical nor was she even the initiator of the union drive. In early October, she had indicated an interest in trade union representation when approached by another employee, but had taken no active steps herself either to sign a union card or persuade other employees to do so. Ms. Campbell's role emerged only after she was discharged on October 10, 1985, because Boomer, the plant manager, believed her to be a union supporter.

16. Boomer was hired by Fler in August and remained in charge of the plant until his departure in late December 1985. Many of the company's subsequent problems can be traced to his approach to labour relations and his willingness to disregard the law if he thought it would fur­ther the company's interests. Boomer was a key figure in the events leading up to Campbell's dis­charge and an active participant in that decision. As noted, Boomer did not give evidence. We draw the adverse inference that his evidence would not have supported the employer's position in these proceedings.

17. On October 10, 1985, Campbell was called into the paint line office, where Boomer accused her of being the "ring leader" in an ongoing union campaign, and charged that she was using company time to solicit union supporters. Campbell denied it. Boomer said that he had been told by reliable employee sources that Campbell was involved, and that he was conducting an investigation. He said he proposed to "nip the union in the bud". Campbell was to be laid off and would not be put back on the payroll unless it was determined affirmatively that she was not a union adherent.

18. This conversation was substantially confirmed by Jan Roberts, Campbell's supervisor. The company does not deny it. It is difficult to conceive of a more blatant, overt or calculated breach of the Labour Relations Act.

19. The grievor was neither the first employee to be discharged nor the last. On October 7, 1985, Cindy Snider was fired. She was the person who had earlier asked the grievor whether she might support union representation and, together with Peter Ellis, another employee, had com­piled a list of employees potentially interested. Snider had worked for the company since October 1984 and the very morning of her discharge her foreman had told her that he would be quite pleased if she was able to work extra hours. He was satisfied with her work and told her that a lead hand job was coming. Later that day, however, Boomer called Snider to his office and told her that she was over-qualified, she was upsetting the other employees, and that he and Fler were only interested in employees who would "give one hundred per cent to the company". Snider said "it's because of the union isn't it", to which Boomer replied "take it as you wish". When Snider indi­cated that she would file an unfair labour practice, Boomer replied "we kind of thought you would". Peter Ellis was fired the following day.

20. Fler testified that he left for Korea on the evening of October 8, and did not return until the evening of October 21. He said that prior to his departure he knew nothing whatsoever about a possible union organizing campaign or the discharges of Snider or Ellis. That was Boomer's responsibility, not his. Fler said that when he telephoned from Korea in mid-October and learned of the organizing campaign and the fact that Boomer had terminated some eight employees for sus­pected union activity he was completely surprised. He ordered Boomer to immediately cease and desist until he (Fler) returned. Fler said that, upon his return, he was also surprised and disap­pointed to learn that Boomer had disobeyed this express order and fired approximately nine more employees.

21. Is this professed lack of knowledge plausible or probable? We find it difficult to believe - quite apart from our observations about Fler's demeanour and the manner in which he gave his evidence.

22. A trade union organizing campaign is usually a traumatic event for a small employer, and certainly Boomer reacted in that way. It seems most unlikely that he would not have voiced his concerns to Fler prior to Fler's departure or outline the steps which he had taken or planned to take to "nip the union in the bud". It seems odd that he did not reveal the information received from "reliable sources" to Fler, and odder still that anti-union employees did not approach Fler with their information - as they certainly did later. At that point, Boomer had been on the job for only a few weeks and it seems improbable that he would not have advised his new employer about such a significant event which required such drastic (and illegal) action on his part. Nor does it seem likely that he would have had directly disobeyed an express order, if in fact any was given. And, upon his return, did Fler take any immediate action to reinstate the employees or repudiate Boomer's actions? He did not. Indeed, according to Fler, it appears that there was even some active debate about it, with Boomer maintaining that he was right, and Fler expressing the oppo­site view. However, this did not result in Boomer's departure. On the contrary; Boomer continued to run the plant and conduct himself in a way which provoked further unfair labour practice com­plaints.

23. Fler initially testified that he arranged it so that Boomer would no longer have any authority to deal with employees on any issue or case which had union overtones. Later Fler con­ceded that Boomer did retain the authority to direct or discipline employees. Fler testified, how­ever, that the ultimate authority to discharge could not be exercised independently. The evidence discloses that despite Fler's initial disclaimer, Boomer continued to have an active role and played a part in Ms. Campbell's ultimate discharge.

24. The termination of seventeen or eighteen employees between October 7 and October 10, 1985, provoked a flurry of unfair labour practice complaints. Fler decided that he had better talk to a labour lawyer. The complaints were eventually resolved on October 26, 1985, in accord­ance with Minutes of Settlement framed as follows:

MINUTES OF SEiTLEMENT

In the above matter the parties agree as follows:

1. The respondent agrees to reinstate and employ, at their former rates of pay, including bonus rate, as effective Monday October 28, 1985, and to return them to their former jobs, with full compensation for any time lost, but not later than five (5) working days from October 28, 1985, for the following grievors:

Cindy Snider

Connie Patricia Campbell

Stephen Campbell

David Campbell

Diane Zilinski

Fred Buehl

Jeff Voelzing

Mike Bingeinan

Beth Haid

Malcolm Lampshire

Barry Kaufman

Evelyn Konink

Richard Dobson

Dean Doherty

Frank Watson

Peter Ellis

Bill Troupe

2. The respondent agrees to compensate Ron Schmuck for the days off due to his temporary lay-off in October, 1985.

3. The respondent agrees that there will be no intimidation, discrimination, or harassment of employees because of lawful union activities;

4. The complainant hereby seeks leave of the Board to withdraw the above section 89 com­plaints: Board Files Numbers 1701-85-U, 1725-85-U, 1762-85-U, 1763-85-U, 1764-85-U, 1765-85-U, 1830-85-U, 1831-85-U, 1832-85-U, 1833-85-U.

Dated at Kitchener, Ontario, this 26th day of October, 1985.

[emphasis added]

25. From the union's point of view the operative parts of the Minutes of Settlement were the return of the employees to their former jobs, with full compensation, and the undertaking that there would be no further intimidation, discrimination or harassment of employees because of law­ful union activities. The union contends that in Campbell's case the employer failed to comply with either of those obligations. It continued to harass her, and on November 13, 1985, she was dis­charged once again. The union further notes that, more than a year later, the parties have still been unable to finalize the amount of compensation payable to the various employees who had been terminated in October 1985.

26. Despite the settlement, Campbell's return to work was not without incident. By letter dated October 28, 1985, she and other employees were directed to return. In Campbell's case she was scheduled to work as a paint line operator and was to "report to the main office at Jacmorr on or before 4.30 p.m.". That was her normal start time, but not her regular job - despite the agree­ment signed by the respondent two days before undertaking to reinstate the laid off employees and "return them to their former jobs". For some reason not entirely clear, Campbell's return notice also contains an additional paragraph to the effect that "it is important that you understand that by returning to work you will not prejudice or abandon any claims for compensation which are now before the Ontario Labour Relations Board". That was not on the standard form letter sent to the other employees. In addition, her return to work notice contains the handwritten direction "please report to the front office and contact Jack Fler".

27. The grievor reported to Fler's office at about 4.10 p.m., approximately twenty minutes before the scheduled start of her shift. Fler was not there, nor had he left any instructions to wait. The grievor told the receptionist that she would go to the cafeteria for a coffee and asked if she could be paged as soon as Fler arrived. The receptionist seemed content with that. There were no instructions to stay; and it was not unusual for the grievor or other employees to arrive a little early or spend a few minutes in the cafeteria before the commencement of their shift. She thought noth­ingofit.

28. While in the cafeteria Campbell had occasion to speak casually to some of the other employees who were naturally curious about the trade union, the terminations and the subsequent settlement. Campbell talked freely about those subjects, expressed her own views, and showed some of the employees some pamphlets she had obtained from the Ontario Labour Relations Board. Those pamphlets are produced by the Board in an effort to inform employees and employ­ers of their rights and obligations under the Labour Relations Act. They are freely available to the public.

29. While in the cafeteria, Campbell was confronted by Don Boomer who was quite agi­tated and insistent that she go to Fler's office where, he understood, she had been directed. The grievor replied that she had already been there, but Fler was not in, and she questioned Boomer's authority to direct her about. She had been told during the settlement discussions (and Fler testi­fied before us) that Boomer no longer had anything to do with union-related matters, and the return to work of the seventeen discharged employees certainly fell into that category. One must also remember that it was Boomer who initiated the terminations which even Fler agrees were unlawful and unwarranted. One would hardly expect Campbell to be differential, or obsequious. Tempers may even have flared somewhat, and Boomer may have considered the grievor's remarks a challenge to his authority. That is certainly the thrust of the written warning dated October 29 which threatens her immediate dismissal. According to the grievor, Boomer also expressed annoy­ance when told that his actions would be reported to the union. He castigated her for "running to the union" with every little complaint. However, in our view, this was all a "tempest in a tea pot", influenced as much by Boomer's frustration that he had been caught in an illegal act and forced to back down, as any misconduct on the grievor's part. It is also interesting to note that that same day,Boomer issued another written warning to David Campbell, the grievor's husband. It too threatened that any "further disturbances or apparent efforts on your part to disrupt our com­pany's production operations will be cause for immediate dismissal". If Boomer had been relieved of his responsibilities as Fler maintained in his direct testimony, why was he continuing to issue these threats, on the company's behalf, to known union activists? When this contradiction was put to Fler in cross-examination, Fler changed his evidence, conceding that Boomer had not been relieved of his responsibilities. As we will see later, in Campbell's case, Boomer was very active indeed. So was Fler.

30. According to Fler, he was on the plant floor when Boomer advised him that the grievor had returned and was in the cafeteria. By the time that Fler returned to his office, Ms. Campbell was waiting for him.

31. Fler was incensed and in an angry outburst,punctuated by profanity, he accused the grievor of disobeying his written instructions - although how he came to that conclusion we still cannot fathom because Campbell reported to his office before 4.30 as directed, and it was only accidental that Fler was not present. There was no instruction that she should wait, or could not go for coffee, or was prohibited from speaking to other employees in the cafeteria before work as she usually did. Nor would such conditions be consistent with the settlement which provided for uncon­ditional reinstatement. We do not doubt the depth or reality of Fler's anger, but that reaction can be traced more directly to the grievor's union activity and the challenge it posed to his previously unquestioned managerial authority, than to any misconduct on her part.

32. Fler said that he did not want to reinstate Campbell, now, and was irritated by what he considered to be "dressing down" Boomer in front of the other employees. He said, she had no right to address senior personnel in that way or to criticize them openly. Fler said that he was tired of all the troubles caused by the union the grievor had started in the plant, and if there was any fur­ther "ruckus" he would bring a gun and escort her off the premises. He wanted to settle things down and she was not "being fair". She was "running around creating havoc". Fler was partic­ularly irritated that she had been talking about the union to other employees, and warned her that she should not do so on company premises or company time. Throughout this tirade, Campbell remained relatively calm, except to point out that the company's problems had been caused, in large measure, by the illegal discharge of seventeen employees.

33. Following her interview with Fler, Campbell returned to work. But she did not return to her former job - despite the terms of the settlement. She was placed at a work bench behind the paint line, away from other employees and with her back to them. The only person close by was Boomer, who came to watch her for a period of time. She had never done that kind of work before and had some difficulties. Her supervisor would not reveal the rate for the job or the anticipated level of production so she could not determine whether she was meeting the established norm.

34. She remained on that job for two shifts. She was then switched to another job behind the plastics department, and, again, away from contact with other employees. In this position she was required to insert one part into another but encountered problems because the parts she was given were not the proper size. When she brought this to the supervisor's attention, she was told to work away at it nonetheless. The entire order had to be re-machined the next day.

35. Mr. Fler hypothesized (he had no direct knowledge) that the apparent difficulty could probably be traced to the fact that some of the parts were produced in accordance with Imperial measurements, while others may have been imported from Europe and had been produced to metric specifications. Nevertheless, that problem should have been immediately obvious, and it is difficult to resist the conclusion that the jobs assigned to Campbell upon her return to work were not only contrary to the terms of the settlement, but were also a form of harassment because of her trade union activity. The grievor believed that she was intentionally isolated and given unfamiliar jobs either as a form of reprisal or a "set up" for some future claim of inadequate performance. In all probability she was right. As we have already mentioned, Boomer did not give evidence, nor did supervisor Cassonell, who apparently had a hand in assigning the grievor to these positions.

36. The grievor's concerns became part of a second, omnibus unfair labour practice com­plaint alleging that a number of the 'returnees' had not been placed in their former positions, had been given undesirable jobs, had been subjected to harassment, had received formal warnings (like David and Connie Campbell) or had been told that any default or apparent failure to be co-opera­tive would lead to dismissal. By this time, there was active opposition by an employee group opposed to the union led by Mark Marchand and Gary Meinsinger. There was also a certification application relying upon section 8 of the Labour Relations Act. Section 8 reads as follows:

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.

37. These issues and controversies were purportedly resolved in accordance with a new set­tlement dated November 7,1985, in which:

1. the employer granted the union voluntary recognition;

2. the union withdrew its outstanding certification application and section 89

complaint;

3. the employees objecting to the union withdrew their statements of opposi­tion;

4. the parties agreed to a mechanism (arbitration) for quantifying the sums

owing to the laid off employees under the previous settlement;

5. the company agreed to remove the reprimands from the records of several

employees including Ms. Campbell;

6. the company agreed to re-hire certain employees who, it had been said,

had quit because of employer harassment; and

7. it was agreed that certain employees, including Ms. Campbell, should be

returned to their former position.

The company further agreed that future transfers and assignments of work would not be made on the basis of union membership or activities and that it would comply with the Minutes of Settle­ment dated October 26, 1985. Those Minutes, it must be remembered, included an undertaking that there would be no further intimidation, discrimination or harassment of employees because of lawful union activities. It was agreed that the November 7 Minutes of Settlement would constitute a "section 89 settlement" which could be enforced pursuant to section 89(7). Finally, the settle­ment included an undertaking by the Union not to institute any proceedings against the company for any incident which arose prior to November 7, 1985, and a stipulation that no evidence of any incident which arose prior to that date would be relied upon. The document was signed, on behalf of the union by various individuals including Connie Campbell, by Jack Fler for the company, and by Gary Meinzinger and Mark Marchand for the objecting employees.

38. Following Ms. Campbell's return to work on October 28, 1985, her career was short-lived. In this respect, we should note that we place only minimal reliance upon the company's daily attendance records which are obviously in error for this period. If those records are to be accepted, she worked only one day before being fired, again, on November 13. Clearly, she worked more than that and, we accept Ms. Roberts' explanation that the days she worked were not recorded on the attendance sheet because she was out of her regular department. On November 5 and 6, she was absent because she had the flu. Such absence was verified by a doctor's note. On November 7 she was attending at the Labour Relations Board to conclude the settlement mentioned above. On November 8, we accept Campbell's evidence that she was available for work but was not called. The recorded absence is, we find, an inaccuracy in the employer's records. In any event, since the company had always regarded work on Friday and Saturday as "extra hours" which were optional, no significance could be attached to them. There was no work available on Monday, November 11, or Tuesday, November 12. The grievor was not called - in. On November 13, she was fired.

39. We set out these details not because we give any credence to the suggestion that the grievor had an attendance problem, but rather to demonstrate the company's attitude during this critical period, and later, when it was pressed to explain why an otherwise productive employee had been discharged. In cross-examination Fler admitted that Campbell's attendance sheet was part of the personnel file, and that he had been keeping track of her attendance since he got back from Korea on October 21. He further admitted that she was the only employee whose attendance he tried to monitor. At first, he said that he was "just interested". Later he conceded that it was because of the "problems" he was having with her at the time. Those problems, of course, were her support for the trade union and insistence upon her statutory rights. Thus, as early as his return from Korea, Fler began to focus on Connie Campbell as the source of his labour relations difficul­ties.

40. In his efforts to (in his words) "settle things down", Fler did more than confront Camp­bell on October 28 and monitor her attendance from the date of his return from Korea. He went out on the shop floor and actively "asked around" about the grievor and her activities. Not surpris­ingly, her name kept "coming up" in discussions with employees opposed to the union such as Danny Burns or Mark Marchand. It was from Burns and Marchand that Fler learned that the grievor might have committed a criminal offence some years before when she was a teenager living in British Columbia. Fler was also told that she was "bothering people" and using the telephone too much. From these conversations he concluded that she was a "road block" to his efforts to con­trol the situation, that she was disobedient, and that she was "breaking the rules" (whatever that means). Fler was annoyed that, despite his reinstatement of the seventeen discharged employees and his later agreement (following further unfair labour practice charges) to abide by his October 26 settlement, the grievor was still actively urging employees to join the union and support the drive for collective bargaining. The scene in reminiscent of the earlier situation where Boomer said he had been informed of the grievor's support for the union. Apparently, there was no shortage of informers.

41. We should perhaps digress for a moment to address a persistent theme in Fler's testimo­ny: that because he would prefer a return to the quiescent status quo, the grievor should discon­tinue her trade union activity on company premises. A related theme was his opinion that she should not discuss the union, Boomer's response to it, the unfair labour practice complaints, the settlements, or any related matters during working hours. This opinion seems to be based upon the view that an employer has the right to control what employees talk about while they are at work. That is not the case. If employees are permitted to talk about their home life, the latest conflict of interest scandal reported in the newspapers, the relative merits of the Liberals versus the Conser­vatives or the Red Sox versus the Mets, they are entitled to discuss recent happenings in the work place, the pros and cons of collective bargaining or their rights under the Labour Relations Act - so long as such discussion does not interfere with their primary obligation which is to work. Section 71 of the Act does not authorize employees to persuade others, during working hours, to become or refrain from becoming a union member; however, the section does not prohibit such activity eith­er.

42. Exhibit 4 entitled "Probationary Employee Appraisal" was tendered in evidence as a purportedly objective assessment of Campbell's performance, after a 90 day probation period. The form indicates that her ability is "good", her conduct and performance are "fair" and her atten­dance is "poor". The form is dated November 11, 1985, and includes a notation that the signatory, Jan Roberts, would not recommend retaining Campbell as a permanent employee. In the "com­ments" section one finds the following:

I have questioned the accuracy of piece count on one occasion admitted losing count and over-reporting by about three hundred pieces. Attendance not suitable for production work.

There is also a notation about "reports" of the grievor leaving her work station - "reports" which Roberts said were never made to her even though she was the grievor's immediate supervisor.

43. What was the origin of this appraisal, done barely two days before the grievor's dis­charge? It is rather interesting both because it involved Don Boomer, and because on this branch of Ms. Roberts' evidence, we did not find her to be a very candid or credible witness. She was hesi­tant and quite reluctant to discuss how she came to fill out the form in the way that she did.

44. None of the employees who gave evidence had ever heard of a ninety day probation period let alone a probationary employee assessment. As far as they knew, no similar appraisal had ever been done on them, nor was any other employee appraisal put into evidence. Roberts admitted that, except for the single miscount which was not regarded as particularly significant at the time, she had never discussed with the grievor any of her supposed faults. Nor did she consult with Dale Voelzing who was Campbell's immediate supervisor on the evening shift. Roberts only stayed past five o'clock to complete unfinished paper work and, accordingly, did not have any direct involvement supervising the grievor. Yet she expressed an opinion about Campbell's perfor­mance without ever raising the matter with Voelzing who had that responsibility. Voelzing testified that Campbell had no attendance problems, no performance problems, and did not leave her work station. That judgment is confirmed by the fact that she consistently earned one hundred and forty to one hundred and fifty per cent above the standard rate. Roberts never advised Voelzing of any concerns about the grievor's performance, and he was at a loss to understand the entries she made on the probationary employee appraisal form.

45. However, we are not surprised, considering the way in which the appraisal came about and its subsequent use. It was Boomer who approached Roberts on November 11 to have a "rat­ing" done on the grievor. According to Roberts, Boomer went over the form with her, asking why they wouldn't want the grievor around. The comments about "leaving her work station" were Boomer's. Roberts had never encountered that problem, and in fact could not, because she was seldom around when Campbell was working. Boomer said that this had been reported to him by others, and Roberts duly recorded it. Roberts had heard that story before. Prior to the grievor's first termination Boomer had told her that "his sources" had indicated she was soliciting union support during working hours. Boomer took the appraisal form to the main office to put in Camp­bell's personnel file.

46. In cross-examination Ms. Roberts said that she only did two or three appraisals in all. None of those appraisals was ever produced. None made their way to the office or the employees' personnel file. Ms. Roberts said she still had them in her desk. There is no evidence that any of those appraisals (assuming they exist) were initiated by the plant manager or completed upon his instructions.

47. The evidence points suspiciously to the conclusion that Boomer was "building a case" for the grievor's termination. Having been "caught out" twice before, and reminded by the grievor herself that she could not be discharged for union activity, Boomer sought to construct a justifica­tion for her termination based upon allegedly poor performance. That inference is strengthened by the way in which the performance appraisal subsequently surfaced on November 13, the day the grievor actually was discharged. It was included in a sealed envelope with her final pay cheque handed to her at the end of a short interview. According to Fler, he had never seen the appraisal before (which is hard to believe) but had instructed that a final pay cheque be issued for the griev­or, with related termination documentation, "just in case" he might need it on November 13 if he decided to fire her.

48. On Friday, November 8,1985, the day after the settlement recognizing the union, Ms. Campbell visited the company's main office to pick up some pay cheques. While there, she casually told the office person what had happened the day before, and left a copy of the settlement docu­ment. This was duly reported to Fler who took great umbrage at what he considered to be "union activity" during the office employees' working hours. At first he testified that two office employees had complained to him that Ms. Campbell had tried to persuade them to join the union. Later he said one employee complained.

49. Perhaps that is what Fler really believes, but no office employee gave evidence to that effect or produced the "union literature" which Fler mentioned in his evidence. On balance, we prefer Campbell's version of events which is uncontradicted by any direct evidence. But even if we did not, for the reasons outlined above, we would not accord much significance to brief casual remarks about the union. However Mr. Fler obviously did. This was later cited as one of the rea­sons for Ms. Campbell's discharge on November 13. This was one of the "rules" the grievor had broken. She had talked in a cursory and casual way about the union.

50. On Sunday, November 10, 1985, there was a union meeting to select the employees who would make up the union's bargaining committee. The persons selected were: Connie Camp­bell, Louise Boone, Mark Marchand, and Gary Meinsinger. Marchand and Meinsinger, of course, had been the representatives of the employees opposed to the union and they were not pleased with Campbell's presence on the bargaining committee. Nor was Campbell pleased by the result, since she believed (not unreasonably) that employees who had circulated a petition opposing union representation were unlikely to be firm proponents of collective bargaining or sincerely concerned about promoting the rights of employees or protecting the rights of union supporters whose activi­ties had resulted in the establishment of the collective bargaining relationship. These reservations were merely reinforced in Campbell's mind when Meinsinger told her that she had no business talking to the office girls about the trade union or trying to organize them, and that the employer was going to discipline her for it. As it turned out, that was an entirely accurate portrayal of Fler's views about what happened and an accurate prediction of the company's actions on November 13.

51. How could Meinsinger possibly know about the events in the office on Friday, Novem­ber 8, the company's characterization of those events, and the company's intended response, if he did not talk to Fler, Boomer, or some other managerial person who was concerned about what had happened and was determined to take some action? Meinsinger's evidence in this regard was eva­sive and, in our opinion, his memory was conveniently deficient. He said that he did not know who he had talked to, but heard a "rumour" that the company intended to discipline Connie Campbell because of her allegedly improper discussions with the office employees on Friday, November 8, 1985. He couldn't really remember the source of that "rumour" (which, we repeat, turned out to be a rather accurate assessment of Fler's state of mind and prediction of subsequent events).

52. In our opinion, the most plausible explanation is that Meinsinger had been talking directly to Fler. This is entirely consistent with the relationship between the two men revealed in the evidence before us. Not only was Meinsinger quite willing to give evidence on behalf of the company to the effect that Campbell was a troublemaker whose return to employment would cause problems, but also, he was the person contacted by Fler to investigate the grievor's assertion, at the hearing, that she had been returned to an isolated position - even though it was supervisor K. Cassonell (and perhaps Boomer) who were involved in that work assignment. Meinzinger, working on the day shift, could have no direct knowledge about those matters, yet it was Meinsinger that Fler called to find out about the grievor's situation. Meinzinger was Fler's "contact" upon whom he relied for information.

53. It is also interesting to note Fler's reluctance to admit any knowledge of the identity of those who had circulated the petition against the union. He said that he had "heard" by November 13 about the election of the bargaining committee but he denied any knowledge of who the anti-union petitioners were. He said he did not know that Marchand and Meinsinger were the leaders of the anti-union petitioners and he only grudgingly admitted that Campbell was a key union sup­porter. Yet on November 7, 1985, Mr. Fler had affixed his name on the settlement document beside that of Ms. Campbell (and others) for the union and Meinsinger and Marchand for the objecting employees. He obviously knew who the objectors were. His testimony in this regard was, quite frankly, a clumsy lie - entirely typical of his evidence, in general. Like his recognition of the union, grudgingly given in the face of a section 8 application which was sure to be successful, he was dragged reluctantly, to the truth only when confronted with evidence which he could not plau­sibly deny.

54. The culminating incident occurred on November 13, 1985. Fler testified (as we have already mentioned) that in the course of numerous discussions with employees, the grievor's name "kept coming up" and "knowing the problems I had with Connie" Danny Burns and Mark Mar­chand volunteered the rumour about her criminal record. Fler said that since he was always run­ning into "road blocks" from her, he decided to check her employment application - just as he had been tracking her attendance since his return from Korea. The application form contains a ques­tion about previous criminal convictions. There was a "No" written in the space provided. Fler decided to confront Ms. Campbell with the rumour and the application form to gauge her response. He told the Board however that the fact of a criminal record was in itself, quite irrele­vant. He made no effort to verify the rumour because, he said, it had nothing to do with her suita­bility as an employee. He did take the precaution of having her final cheque and termination docu­ments ready - "just in case

55. The precise contents of the conversation on November 13 are a matter of some dispute. It seems to be common ground that the grievor was presented with the application and asked if it was accurate. After a cursory examination, the grievor said that it was. She testified that she did not appreciate the "drift" of the conversation, so she just gave the document a quick glance to ver­ify that it was hers. Campbell was then asked specifically, about the criminal record and said either that she did not write in "No" or could not remember doing so. However according to Jan Roberts, what Fler found most distressing was the grievor's response to his question: "do you think I wrote it in". She allegedly said: "you could have". At that, Fler supposedly responded that he didn't want anyone who accused him of such a thing working for the company. Fler testified that he felt that he had lost face, and "it made me feel like I had to prove myself'. Fler was affronted that the grievor would suggest, as he put it, "as President of the company I would stoop so low as to alter a document".

56. Campbell denies that part of the conversation and, according to her testimony, the topic of discussion immediately shifted to her work performance, the probationary assessment, and Fler's assertion that she was not "Jacmorr material". We accept only the latter part of her submis­sion on this point. We think that she probably did make some flippant comment such as "you could have", and that Fler was angry and thought he was being challenged. However it is important to put that comment into perspective. Campbell had no reason to trust Fler or give him the benefit of the doubt. She had been unlawfully fired by Boomer who was present during the conversation. That termination was described by the company as a lay-off for lack of work, which was obviously false. She had been reinstated pursuant to a settlement which the company had not honoured. She had been threatened by Boomer with discharge again (a threat purportedly removed after a second unfair labour practice complaint, but obviously still on Fler's mind, since it formed part of his rea­son for her later discharge). She had been harassed while on the job. Moreover, (although she did not know the details at the time) an inaccurate and misleading evaluation had been produced, and her final pay cheque had been prepared, in advance "just in case" it might be needed. In our opin­ion, the grievor can be forgiven for a certain amount of cynicism about the company's good faith or intentions.

57. Despite the grievor's discharge, she continued to serve on the negotiating committee where, we do not doubt, she was an effective advocate. Ms. Campbell does not have much formal education but she is intelligent, well spoken, and, of course, more firmly committed to the process of collective bargaining than Meinsinger or Marchand. She was determined to achieve a good col­lective agreement for the employees even if it meant that she might appear, to others, to be "push­y".

58. In April, 1986, the company delivered an ultimatum that it would refuse to meet so long as the grievor remained on the bargaining committee. Various reasons were advanced for this posi­tion. It was said that the grievor was "leaking information" about the bargaining to other employ­ees. At another point, the company's negotiator (who did not give evidence) said that she had been counselling employees not to work overtime. The company demanded that she step down from the committee until these allegations had been cleared up. The grievor denied the allegations and refused to step down. The union threatened to file an unfair labour practice complaint.

59. The company eventually backed down when it turned out that its accusations were totally unfounded. This incident is but another example of the employer's readiness to jump to conclusions, identify Ms. Campbell as the source of its problems or ascribe some improper motive to her. It also reveals that union opponents in the plant continued to keep the company informed about the grievor's activities and to pass on any rumour or innuendo which might undermine her position.

60. In direct and cross-examination, Mr. Fler outlined a number of reasons why he consid­ered it necessary to discharge Ms. Campbell. Some of these reasons have already been mentioned. She was causing "trouble". She was a "road block" to "settling down the plant". She was "bother­ing people" (about the union). She was "running around the office creating havoc" (referring to the incident described above where she gave a copy of the settlement to an office person). She was not prepared to follow instructions (i.e. the October 28 incident when she went to the cafeteria rather than await Fler's arrival). She had confronted Boomer in the cafeteria - an event which led to a disciplinary letter, an unfair labour practice complaint, and a settlement in which the company purportedly undertook to remove the disciplinary notation from her record yet now seeks to rely upon it. She was untruthful and disrespectful in the discussion on November 13. She had challenged Fler's integrity.

61. We have considered the evidence. We have considered the company's submissions. We have considered the alleged grounds for Ms. Campbell's discharge. We have considered the verac­ity of the employer witnesses and the plausibility of the reasons advanced for her termination. We find that her discharge was motivated in whole or substantial part by a desire to remove her from the work place because she was a union adherent, and an active supporter of the employees' col­lective bargaining rights. It was a breach of sections 64 and 66 of the Labour Relations Act, as well as the terms of the two previous settlements which included a "no reprisal" clause.

62. It was Campbell who initially mobilized the union supporters. It was Campbell who refused to bow to Boomer's intimidating and grossly illegal conduct - conduct which even the com­pany does not now condone. It was Campbell who was the sole union enthusiast elected to the negotiating committee on Sunday, November 10, 1985 - just three days before her discharge and a week after she had signed the November 7 settlement on behalf of the union. It was Campbell who, to the employer's knowledge had held numerous meetings in her home to encourage employ­ees to support the union. It was Campbell who had reminded Fler that the company was not above the law. She really was a principle source of "trouble", if by that term one means an employee's assertion of her legal rights or the obligation to bargain collectively. So long as she remained at work Fler and Boomer faced a challenge to their previously unfettered managerial prerogatives and in their effort to get rid of her, any pretext would do. We find that she was fired because of her trade union activity.

63. We shall deal more fully with remedy later; however, at this point it is necessary to note two specific arguments raised by the employer. In urging us not to find an unfair labour practice, counsel for the employer asked, rhetorically "what did the employer have to gain?", and even put that question to Ms. Campbell. Counsel asserted that, having recognized the union, and under­taken the process of collective bargaining, there was no "reason" for the employer to commit an unfair labour practice. Counsel further contended (initially at least) that even if the discharge was motivated by anti-union considerations, Ms. Campbell should not be reinstated because she was a disruptive influence in the plant, and her relationship with Fler, the company owner, and some of the other employees was irrevocably poisoned. Eugene Marks and Gary Meinsinger, testified on behalf of the employer, to the effect that things "settled down" in the plant when the grievor's dis­ruptive influence was removed. Their opinion was that the grievor should not be reinstated because she might "stir things up" again.

64. There are several answers to this. In the first place, the employer recognized the union only in the shadow of its its own grossly illegal conduct and a certification application relying on section 8 of the Act which was likely to be successful. Even then, the employer awaited confirma­tion that the union represented at least fifty per cent of the employees - something that was pru­dent from the union's point of view to protect it from a subsequent termination application (see section 60 of the Act). The employer did not honour its first settlement, and despite the settlement of a later complaint, which purportedly removed a written reprimand from the grievor's record (concerning the cafeteria incident), that same issue surfaced again in Fler's reasons for discharging her on November 13. The company did not comply with the second settlement either. It fired Ms. Campbell because of her union activity. The parties now have a collective agreement (which has twice been challenged by dissenting employees), but almost a year after the seventeen employees were terminated, the amount of compensation to which they are entitled has still not been final­ized.

65. In fact, the employer had quite a bit to gain from firing the grievor - as Fler frankly indi­cated, although putting a different construction on his motive. The grievor was a leader with cour­age and determination not to be bullied or denied her statutory rights. She was the one most responsible for mobilizing employee support for the union. She believed that "the law" would pro­tect her. Her removal from the work place would undermine the cohesion of the union supporters, encourage and support union opponents, and send a graphic message to employees about what happens to those who challenge the employer's authority or assert their statutory rights. Ms. Campbell's fate would certainly give pause to any employee contemplating union office, a position on the bargaining committee or any other union role which would bring him/her to the particular attention of the employer. To be identified as a "key union supporter" is to court discharge - an action which would be abetted and applauded by the anti-union employees. Even if Ms. Campbell was ultimately reinstated (as we find she should be) the employer has been successful in keeping her out of the plant for more than a year. With the passage of time, employee turnover, the contin­uing efforts of the anti-union employees, and the example of what befalls those who support the union too vocally, the union's support has, quite probably, been seriously eroded.

66. What of the evidence of Marks or Meinsinger that Campbell was a "troublemaker" or too "pushy". We give no effect to it whatsoever; nor is it important, in our view, that Fler may have "lost confidence" in her, or that there may be some continuing friction between them. An unfair labour practice complaint is not a popularity contest. Few employees would ever be rein­stated if the Board considered their employer's reluctance to have them back.

67. We were also troubled by Marks' evidence, under oath, that he had accepted the union and the collective bargaining relationship when it is perfectly plain (and not disputed by the employer) that he has supported two proceedings before this Board attacking the union's bargain­ing rights and the collective agreement. There is nothing wrong with that. There is nothing wrong with opposition to the union. Marks would have been more candid to simply admit it, rather than making comments which are simply unworthy of belief. His readiness to utter outright lies suggests much about the difficulties which the union may have in establishing a viable collective bargaining relationship.

The Cliche Case

68. Steven Cliche began working for the company in early September 1985. He was employed primarily as a press operator, and worked, without incident, until his discharge in mid-December 1985. Like the other employee witnesses, he had never heard about any probation peri­od. Cliche was fired because of an alleged incident involving a female employee about twice his age. Cliche and the employer have quite different views about the gravity of his alleged "offence".

69. According to Cliche, he was "playing around" one morning and delivered a friendly kick to the behind of Amy Hillier, a fellow worker. Hillier told him to "watch his manners". He apologized for what he described as a "playful nudge" and said that he didn't mean anything by it. The next morning, however, Hillier refused to follow Cliche's advice about the proper way to carry out a particular work function, prompting Cliche to become annoyed and call her a "fucking idi­ot". In the grievor's submission these incidents were trivial. The employer's reaction was out of all proportion to the events and was motivated by his support for the union.

70. According to Jan Roberts, Amy Hillier did not consider it trivial. Roberts testified that Hillier came to her office crying. Hillier declared that she would no longer work in Robert's department and that she did not have to put up with being kicked or sworn at. Hillier threatened to quit. Roberts was concerned because Hillier was a valuable employee with many years service. Roberts did not want to lose her.

71. Roberts approached Cliche and sent him home "pending investigation". She then reported the situation to her superiors. Boomer said that she had done the right thing. Fler said to leave Cliche "on suspension" and he would take care of the matter. Later, when Cliche phoned Roberts he was directed to speak to Boomer. Boomer was unwilling to discuss the matter on the phone. Cliche learned of his termination a few days later when he received his final pay cheque and separation certificate in the mail.

72. Fler testified (and on this matter we believe him) that he did not approve of what Cliche had allegedly done, and sought the advice of Madigan who had been retained to negotiate the col­lective agreement. Madigan told him that there were grounds for discharge, and while Fler was not sure whether Cliche was a probationary employee, Fler knew that Cliche had not been around very long. He did not question the report received from Roberts, investigate further, or ask Cliche for his side of the story. He simply directed the office staff to mail Cliche his termination papers.

73. Cliche was neither an early nor active union supporter. In early to mid-October he attended a union meeting together with fifty or sixty other employees. Boomer stationed himself outside the meeting place where, for a time at least, he may have been able to identify some of the employees who chose to attend. However, there is no direct evidence to show that Boomer saw Cliche nor, if he did, was there any reason for Boomer to believe that Cliche was a particularly active union supporter. There was nothing to distinguish Cliche from the other workers who went to the meeting. Given Boomer's willingness during this period to fire anyone thought to be con­nected with the union, the fact that Cliche was spared, probably indicates either that Boomer did not know that Cliche was at the meeting or attached no particular significance to his attendance. Cliche was not fired until two months later and, in contrast to Campbell's situation, there is no evi­dence that he was regarded as a "troublemaker" or a key union supporter.

74. This is not to say that Cliche's discharge was "fair", or that a termination was the most appropriate response in the circumstances. It may well be that Fler should have considered his side of the story, or that a discharge was an over-reaction. It may well be that a discharge was "unjust" and that the employer's interests would have been adequately protected and promoted by some lesser penalty. But that is not really the point. The question before us is whether the decision to discharge Cliche was motivated by his participation in the trade union or other activities protected by the Labour Relations Act. We find that it was not. His complaint must therefore be dismissed.

Remedy

75. We have already discussed Ms. Campbell's case at some length. We have no doubt whatsoever that she was victimized because she was identified as a union supporter, but we are not entirely sanguine about returning her to a work place in which she will inevitably face the hostility of both the employer and those employees who continue to oppose the union. If we are to carry out our statutory mandate, we should try to devise a remedy which, insofar as possible, puts Ms. Campbell and the union in the position that they would have been in had she not been unlawfully discharged and, again, insofar as possible, neutralizes the advantages which the employer may have gained by its own unlawful conduct. Those advantages include keeping her out of the work place, for a year, while this litigation proceeded and the chilling effect which Ms. Campbell's dis­charge would likely have upon other employees who might fear for their jobs if they were identi­fied as union supporters.

76. Boomer's response was heavy-handed and overt. Fler's response was more subtle and specific. The message was the same: employees who supported the union would face reprisals. The fact that there was a network of anti-union informers, prepared to report to Fler about the activi­ties of their fellow-workers, would only heighten the employees' apprehensions. In the circum­stances, it is difficult to construct a remedy which fully reflects the industrial relations reality, and the real possibility that, by its illegal conduct, the employer may well have accomplished its objec­tive. There are not very many employees with the fortitude of Ms. Campbell and, in our experi­ence, when employees are presented with the choice of renouncing their support for a union or fac­ing employer hostility and reprisals, they often embrace the former option. A discreet discharge here and there may not even be particularly expensive or uneconomic from a long run point of view for (to adopt Boomer's phrase), a few selective discharges may "nip the union in the bud" -particularly if the employees victimized do not have an inexpensive and expeditious remedy for the violation of their statutory rights. They are faced with immediate unemployment and potential penury while this Board conducts its hearings and deliberates. It is not a well balanced equation, -particularly since the employer's superior ability to bear the costs of litigation may itself become a tactical consideration.

77. In order to redress an unfair labour practice complaint which necessarily effects the grievor, other union supporters, and the union itself, we make the following declarations and rem­edial directions:

78. We find and declare that the grievor, Connie Campbell, was discharged contrary to sections 64, 66 and 89(7) of the Labour Relations Act. We find and declare that she was discharged because of her trade union activity, not because of any default or culpable misconduct on her part. The allegations raised to discredit her were mere camouflage and a pre­text to hide the employer's illegal intentions.

79. We direct that Ms. Campbell be reinstated in employment forthwith, to her former job, or some of her job agreeable to her and for which she is suited, with full accumulated seniority.

80. We further direct that Ms. Campbell be compensated, forthwith, for all wages and benefits lost, and all other losses sustained by her between the date of her termination and the date of her reinstatement pursuant to this Board order. Such compensation shall include interest calculated in accordance with Practice Note 13 and must be paid, in its entirety, within twenty-one (21) days of the release of this decision. If such compensation is not paid, in full, or some question arises about the amount owing to Ms. Campbell, the present panel of the Board will remain seized and will schedule a hearing, on a peremptory basis, if necessary, to deal with the matter. We do not want Ms. Campbell to face the same difficulties as those employees discharged in October 1985, whose entitlement to com­pensation has still not been finally resolved.

81. For reasons similar to those enunciated in Radio Shack, [1979] OLRB Rep. Dec. 1220, affirmed by the Divisional Court at 80 CLLC at para. 14,016 and again at para. 14,017, the respondent is directed to post copies of the attached Notice marked "Appendix" after being duly signed by Mr. Fler, the respondent's representative. Copies of this Notice must be posted in conspicuous places on the employer's premises where they will most likely come to the attention of the employees. Rea­sonable steps must be taken by the company to ensure that the said Notices are not altered, defaced, or covered by any other material. Rea­sonable physical access to the premises must be given to the union so that it can satisfy itself that this posting requirement has been and is being complied with.

82. Given Ms. Campbell's pivotal role in organizing the union and the subsequent uncer­tainty, misrepresentation and inuendo surrounding her discharge advanced by the employer and certain friendly employee witnesses, we consider it imperative to demonstrate to the employees that their employer's position is not the last word or the only version of the truth, and that they can rely upon the Board to conduct an impartial adjudication of their rights. Employees, like Cliche, who engage in inappropriate conduct, cannot expect to shield themselves behind the Labour Relations Act, but, by the same token, union adherents, like Connie Campbell, cannot be victim­ized. To this end, and in order to help dispel any residual questions, concerns, suspicions, or fears of the employees, we hereby direct that the employer provide a copy of this decision at its own expense to all current employees. A posting of the decision is not enough. An employee who must scan a Board decision hurriedly, while at work, will not be able as easily to absorb its meaning and hence understand its significance (and his/her legal rights) as an employee who can read the deci­sion, at home, in a more relaxed fashion.

83. In view of the opposition, by Fler and others, to Ms. Campbell's return, we believe she should be accorded certain specific protections lest the employer be tempted to treat the Board's Order in the same way as it treated the previous settlements - purporting to accept them, but, all the while, seeking some pretext to remove Ms. Campbell from the work place. We therefore direct as follows:

(1) For the period of two years from the date hereof, the employer must not hold any meeting with Ms. Campbell which involves or could potentially result in discipline, unless she is first given a full and complete opportu­nity to have present, the trade union representative of her choice.

(2) No discipline or termination shall be imposed upon Ms. Campbell unless she, and the union, are advised, in advance, in writing, of the specific reasons therefore.

(3) Ms. Campbell shall be allowed free access to her personnel file in order to review any and all documentation contained therein. Such file shall contain all material upon which the employer intends to rely in its deal­ings with her.

80. Finally, the Board directs that the respondent and its officers and any person acting on behalf of the respondent cease and desist from:

(a) interfering with the formation selection or administration of the trade union;

(b) refusing to employ, continuing to employ or discriminating against a per­son, in any way, because s/he was or is a member of the union or was exercising rights under the Act;

(c) threatening or penalizing employees because they have been or may become members of the union or have or may exercise any rights under the Act.

81. The Board will remain seized in case there is any difficulty implementing any aspect of this decision and remedy.

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 BOARD PANEL HEARING OUR CASE CONSISTED OF A VICE—CHAIRMAN, A BOARD MEMBER REPRESENTING EMPLOYERS AND A BOARD MEMBER REPRESENTING EMPLOYEES. THE ONTARIO LABOUR RELATIONS BOARD HAS RULED, UNANIMOUSLY, THAT WE HAVE VIOLATED THE ONTARIO LABOUR RELATIONS ACT. AND HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN, OR HELP ESTABLISH TRADE UNIONS;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY OF THESE THINGS;

WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS.

IN PARTICULAR

WE WILL NOT THREATEN OUR EMPLOYEES WITH DISCHARGE OR ANY OTHER FORM OF REPRISAL BECAUSE THEY HAVE JOINED A UNION OR WISH A UNION TO REPRESENT THEM.

WE WILL NOT DISCRIMINATE, PENALIZE OR DEPRIVE OUR EMPLOYEES OF WORK POSITIONS, OR BENEFITS BECAUSE THEY HAVE SUPPORTED A UNION.

WE WILL NOT ATTEMPT TO GET EMPLOYEES TO INFORM UPON THE UNION ACTIVITIES OR SYMPATHIES OF THEIR FELLOW EMPLOYEES.

WE WILL NOT REWARD EMPLOYEES WHO INFORM ABOUT THE UNION ACTIVITIES OR SYMPATHIES OF THEIR FELLOW EMPLOYEES NOR PENALIZE EMPLOYEES WHO EXPRESS THOSE SYMPATHIES.

WE WILL NOT INTIMIDATE, COERCE, OR PRESSURE EMPLOYEES, IN ANY WAY, INTO WITHDRAWING SUPPORT FOR THE UNION.

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

IN ACCORDANCE WITH THE BOARD'S DIRECTION:

WE WILL IMMEDIATELY RETURN CONNIE CAMPBELL TO HER FORMER JOB, OR SUCH OTHER JOB AS IS AGREEABLE TO HER, AND FOR WHICH SHE IS SUITED.

WE WILL IMMEDIATELY PAY COMPENSATION (INCLUDING INTEREST) TO CONNIE CAMPBELL FOR ALL WAGES AND BENEFITS LOST BETWEEN NOVEMBER 13, 1985, WHEN THE BOARD FOUND SHE HAD BEEN UNLAWFULLY DISCHARGED, AND HER RETURN TO

WORK.

WE WILL NOT IN ANY MANNER WHATSOEVER DISCRIMINATE AGAINST, COERCE, RESTRAIN, INTIMIDATE OR PENALIZE Ms. CAMPBELL BECAUSE SHE HAS OR MAY EXERCISE HER RIGHTS UNDER THE LABOUR RELATIONS ACT.

THE BOARD HAS DIRECTED THAT A COPY OF ITS DECISION BE PROVIDED TO ALL OF OUR EMPLOYEES SO THAT THEY WILL BE FULLY INFORMED ABOUT THE PROCEEDINGS BEFORE THE ROARD. WE WILL COMPLY WITH THAT DIRECTION.

JACMORR MANUFACTURING LIMITED

PER:

AUTHORIZED SIGNATURE)

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.