United Steelworkers of America v. K & U Manufacturing Limited, 1986 CanLII 1541

[1986] OLRB Rep. January 115

3428-84-R; 3429-84-U United Steelworkers of America, Applicant, v. K & U Manufacturing Limited, Respondent, v. Group of Employees, Objectors; United Steelworkers of America, Complainant, v. K & U Manufacturing Limited, Respondent

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members L M. Stamp and S. 0 'Flynn.

APPEARANCES: David Nicholson and Brando Paris for the complainant/applicant; Robert A. McDermid and Ivan Kazakow for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; January 20, 1986

1. File No. 3428-84-R is an application for certification. File No. 3429-84-U is a complaint under section 89 of the Labour Relations Act in which the complainant (also referred to in this decision as the "Union") alleges that the respondent (also referred to in this decision as the "Company") has contravened sections 3, 64, 66(a), 66(c), and 70 of the Act. In addition to the various remedies it is seeking under section 89 of the Act, the Union seeks to be certified under section 8 of the Act on the basis of those alleged contraventions of the Act, in the event that it has insufficient membership support to be certified without a representation vote pursuant to section 7.

2. These matters were initially scheduled to be heard on April 26, 1985. On that day the parties met with a Board Officer to review the issues raised by the proceedings. In a decision dated April 29, 1985 in respect of File No. 3428-84-R, the Board, differently constituted, wrote as follows:

3. Prior to the hearing in this matter, the parties met with a Labour Relations Officer to review the issues raised by this application

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

5. Having regard to the agreement of the parties the Board finds that all employees of the respondent in the City of Brampton, save and except foremen, persons above the rank of foreman, office, sales and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

6. In view of the representations made to the Officer, the Board hereby appoints a Labour Relations Officer to inquire into the list of employees and composition of the bargaining unit and report back to the Board.

7. This matter is referred to the Registrar to be re-listed for hearing on May 10 and May 31, 1985, together with the proceeding in Board File No. 3429-84-U.

8. This panel of the Board is not seized with this matter.

9. Pursuant to that appointment, Board Officer A. Smith met with the parties on May 16 and reviewed the respondent's records pertaining to E. Restaini, B. Simon, K. Singh, and K. Tomislav, whose inclusion on Schedule "X' of the list of employees filed by the respondent was challenged by the applicant. After reviewing those records, the Officer advised the parties that his record check indicated that all of the challenged persons should remain on Schedule "X'. That finding has not been disputed by the applicant.

10. A meeting with the Board Officer initially scheduled for May 23, 1985 was rescheduled to June 6, 1985 on the agreement of the parties. After affording the parties a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence, the Board Officer prepared a written report dated July 17, 1985, which contains examinations of Rudy Koller and James Alfred Mungra. After receiving copies of that Report, the representatives of the parties each forwarded written submissions to the Board concerning the conclusions which they respectively contended the Board should reach on the basis of the Report. Neither party requested that a hearing be held in respect of the matters covered by the Report. Accordingly, the Board will dispose of those matters on the basis of the Report and those written submissions, in accordance with section 67(4) of the Board's Rules of Procedure.

11. The applicant contends that Messrs. Koller and Mungra should be excluded from the bargaining unit on the grounds that they exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations within the meaning of section l(3)(b) of the Act.

12. Over the years the Board has developed a number of guidelines to assist it in determining whether an individual exercises managerial functions within the meaning of section 1(3)(b) of the Act. See, for example, The Royal Ontario Museum, [1985] OLRB Rep. Feb. 325; Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199; Vagden Mills, [1982] OLRB Rep. June 968; Hydro Electric Commission of the Borough of Etobicoke, [1981] OLRB Rep. Jan. 38, and Chrysler Canada Ltd., [1976] OLRB Rep. Aug. 396. In making determinations under section 1 (3)(b), the Board has consistently recognized that effective collective bargaining requires an "arm's length" relationship between employees and persons who exercise managerial functions. In recognition of the divergence between the objectives, priorities, and interests of those groups, section 1 (3)(b) serves to exclude from the scope of "employee" (for purposes of the Act) persons whose inclusion in the bargaining unit would place them in a position of conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as union members or members of the bargaining unit.

13. There is also a well established body of Board case law concerning the meaning of the phrase "employed in a confidential capacity in matters relating to labour relations." See, for example, Airline (Malton) Credit Union Limited, [1981] OLRB Rep. Nov. 1521, and the numerous decisions referred to therein.

14. Having regard to the provisions of section 1 (3)(b) of the Act, and the principles set forth in the aforementioned jurisprudence, the Board has come to the conclusions set forth below, after carefully reviewing the Report and the written submissions of the parties.

15. Mr. Koller was hired by the respondent in December of 1984 as a welder/fitter. He became a working foreman in March of 1985. In that position he spends approximately 80% of his time doing physical work of the type which he performed prior to his promotion. He also assigns work to the welders and fitters employed by the respondent, and checks their time cards to ensure that they are filled out properly. He does not hire, discharge, discipline, layoff, demote, or promote employees, nor does he make effective recommendations concerning such matters. He has no power to require or authorize employees to work overtime, nor does he have any involvement in setting their wages or benefits. He had not granted time off to any employee prior to March 22, 1985 (the date on which the Union's certification application was filed with the Board). In accepting the position of working foreman, Mr. Koller made it clear to Ivan Kazakow, the President and owner of the respondent, that he did not want to get involved in any "labour problems" or "personal matters" concerning employees, and that he was only prepared to be "a working foreman responsible for the job".

16. Having regard to all of the evidence, we find no support whatsoever for the applicant's contention that Mr. Koller exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

17. Although Mr. Mungra falls somewhat closer to the line, we have concluded, on balance, that he too is properly included in the bargaining unit. His only involvement in hiring consisted of telling Mr. Kazakow that a lathe operator whom he~ knew was looking for a part-time job. Upon receiving that information, Mr. Kazakow authorized Mr. Mungra to tell the individual that he could work for the Company on a part-time basis. This limited involvement in the hiring of a single person who, as a part-time employee, would not be included in the bargaining unit, is not indicative of an effective power of recommendation in the sense described in the Board's jurisprudence. It is unclear from Mr. Mungra's examination whether or not he was told at the time he accepted the position of working foreman that he had the power to discipline employees. When the Officer initially asked him if Mr. Kazakow had told him whether he had the authority to issue any discipline to anybody, Mr. Mungra stated (at page 27, line 16 of the Report), "No, nothing of that nature was mentioned to me." Later in his examination, the Officer said to him, "I think you said to me that you don't have any authority to issue any discipline to an employee. Was that correct?" Mr. Mungra's reply (at page 31, line 24) was "I think it was mentioned to me that I'm in a position to issue discipline." In any event, it is clear from the evidence that Mr. Mungra has never in fact disciplined any employee. His only involvement in layoffs consisted of a discussion with Mr. Kazakow about a shortage of work, during which Mr. Kazakow, after reviewing the work that remained to be done, concluded that "Alex" (the standard drill operator) would have to be laid off. That isolated instance also falls far short of indicating an effective power of recommendation. As noted by Union counsel in his written submissions, Mr. Mungra ordered some supplies and arranged for two workers to come in half an hour early for a week while Mr. Kazakow was on a three-week vacation. However, the supplies merely consisted of "cutting tools and a jack and some other small tools". Moreover, the temporary substitution of 7:30 a.m. for the normal 8:00 a.m. starting time was done with the consent of the workers involved. Mr. Mungra did not direct them to report at that time, and did not incur any overtime or other expenses for the Company by arranging for that temporary change.

18. Mr. Mungra spends at least two-thirds of his time performing physical work. While he also has some supervisory functions analogous to those generally performed by a lead hand, we have concluded on the totality of the evidence that Mr. Mungra does not have effective control over the employment relationship of any of his fellow employees, and does not exercise any other powers that would place him in a position of conflict of interest if he was included in the bargaining unit. We have also concluded that he is not employed in a confidential capacity in matters relating to labour relations, as there is no evidence that he has a regular, material involvement in matters relating to labour relations.

19. For the foregoing reasons, the Union's challenge to the inclusion of Messrs. Koller and Mungra in the bargaining unit is hereby dismissed.

20. The hearing of the merits of the Union's complaint under section 89 of the Act and application for certification under section 8 commenced on May 10, 1985, and continued on July 23 and September 20, 1985. During those three days of hearing, the Board heard oral evidence from six witnesses and also received a total of 53 exhibits. The findings of fact contained in this decision are based upon our assessment of the totality of that evidence and the inferences which may reasonably be drawn in the circumstances of this case. In resolving conflicts in the evidence, we have had regard to such factors as the consistency of the evidence given by the various witnesses, the firmness of their respective memories, our perception of their ability to resist the influence of self interest in giving their evidence, their capacity to express their recollections clearly, and their demeanour while testifying.

21. The Company's business consists of designing and manufacturing steel mill equipment, and providing various machining and fabricating services. The events which gave rise to these proceedings occurred in March of 1985. At that time the Company was working on two major projects for Dravo Wellman Corporation ("Dravo"), which is a company located in Pittsburgh, Pennsylvania. Dravo manufactures various types of machinery for generating stations. One of the respondent's projects for Dravo consisted of the fabrication of a rotary car dumper. The purchase order for that job was received in February of 1984. The respondent's work on that project was completed on March 8, 1985, and the final shipment of the rotary car dumper was made that day.

22. The Company's other project for Dravo involved the fabrication of a stacker/ reclaimer. The purchase order in respect of that project was received by the respondent in the summer of 1984. It was Mr. Kazakow's evidence that by March 8, 1985, less than a third of that project remained to be completed. However, that evidence was contradicted by George Legierski, who was the respondent's plant supervisor at that time. Mr. Legierski, who is one of the grievors in these proceedings, testified that the project was only forty or fifty per cent complete at that time. We prefer the evidence of Mr. Legierski concerning that matter, and all other matters on which there is conflict between the testimony of Mr. Kazakow and Mr. Legierski, as we found Mr. Legierski to be a more candid and reliable witness than Mr. Kazakow.

23. The respondent had also received from Dravo a contract for certain further work relating to the stacker/reclaimer project, but that work was temporarily stopped in March due to a design problem.

24. In an attempt to obtain further work for the Company, Mr. Kazakow provided Dravo with a quotation for another rotary car dumper on February 15, 1985. Dravo viewed that quotation favourably and indicated that the respondent would be given the work as soon as Dravo received the order from its Vancouver customer. To comply with that customer's requirements, Dravo had specified that if the respondent wished to obtain the work, it would have to hire a quality control welding inspector (in addition to the welding supervisor and the services of the welding engineer that the respondent was required to have in order to maintain its certification by the Canadian Welding Bureau). To meet that requirement, the respondent ran a newspaper advertisement, which was answered by Manny Macedo, another of the grievors in these proceedings. After submitting his resume, Mr. Macedo commenced employment with the respondent on February 25, 1985.

25. Mr. Kazakow had also been in contact with American Demag ("Demag"), another company located in Pittsburgh, in an attempt to obtain a job involving a substantial project for Stelco. Having been advised by Demag that the respondent had a good chance of obtaining that order, Mr. Kazakow flew to Pittsburgh on March 11~ 1985, to speak with officials of Dravo and Demag.

26. When he went to Dravo, Mr. Kazakow was informed that the respondent had lost the rotary car dumper job on which it had bid on February 15, 1985. The reason given to Mr. Kazakow was that Dravo's contract contained a $1,000 a day penalty clause, and Dravo was of the view that the respondent was too small to be relied upon in such circumstances. Mr. Kazakow then went to Demag, where he was told that Demag had not yet obtained the aforementioned Stelco job since Stelco' s decision about whether or not to proceed with that order had been delayed for six months.

27. On March 12, 1985, while Mr. Kazakow was in Pittsburgh, Messrs. Macedo and Legierski had a discussion about their dissatisfaction with their conditions of employment. One of Mr. Legierski's main concerns was the fact that he was working between fifty-five and ninety hours per week without receiving any overtime pay. The mechanism used by the respondent to achieve that result was to "subcontract" work to a company that had been registered by Mr. Legierski at the suggestion of Mr. Kazakow. Thus, Mr. Legierski received an amount equal to straight time pay through that company for hours which he worked in excess of forty-four per week. Although that arrangement might be of interest to the Employment Standards Branch of the Ministry of Labour, its legality is not in issue in these proceedings. Its relevance in the present case is limited to a matter of credibility. In this regard, it provides a further instance in which we are satisfied that Mr. Kazakow, who testified that he did not suggest to Mr. Legierski the idea of using such a company, was attempting to mislead the Board.

28. During that discussion about their dissatisfaction with their conditions of employment, Mr. Macedo suggested to Mr. Legierski that a union be contacted. In order to do so discreetly, Mr. Macedo left the respondent's premises and telephoned a representative of the Union from the shop next door. Following that conversation, Mr. Macedo returned to the respondent's premises and spoke with many of the respondent's employees about getting together after work to have a beer and talk about the Union. With respect to the credibility of Mr. Macedo as a witness, we note that although he denied having spoken to any employees about the Union in the office adjacent to the plant, we are satisfied from the evidence of Ghulam M. Butt that Mr. Macedo did speak to Mr. Butt about the Union in that office. Mr. Butt, who was employed by the respondent as a welder at all material times, was called by the respondent as a reply witness. We found him to be a candid and credible witness whose testimony was more reliable than that of Mr. Macedo, who was prone to exaggerate and embellish while giving his evidence.

29. Mr. Legierski also approached a number of the respondent's employees that day about getting together after work to have a beer and to talk about the Union. As a result of further telephone calls by Mr. Macedo, arrangements were made for employees to meet with a Union representative at 7:00 o'clock that evening. Just before leaving for that meeting, Messrs. Macedo and Legierski approached Rudy Koller, who at that time was employed by the respondent as a welder/fitter. When Mr. Macedo asked him if he would like to join them for a beer, Mr. Koller became very angry and said, "So you have the nerve to invite me also for a beer. You want me to sign a union card also. That's the kind of people we need. Can't put a decent eight-hour working day in.... We don't need you. Get out. We don't need a union." In testifying about that conversation, Mr. Macedo told the Board that Mr. Koller told him that Mr. Kazakow already knew what was going on, and also told him (Mr. Macedo) that he would be the first one to be fired the next day when he walked in. In his forthright testimony before the Board, Mr. Koller firmly denied the accuracy of Mr. Macedo's version of that exchange, which version was also not supported by Mr. Legierski, whose only recollection of the conversation was that Mr. Koller "screamed to [Mr. Macedo], 'it's union talk' or something like that." On balance, we prefer the evidence of Mr. Koller over that of Mr. Macedo, whom (as noted above) we did not find to be a completely reliable witness.

30. At the meeting with the Union representative that night, membership cards were signed by eleven persons, including ten of the employees whose names appear on the list of employees filed by the respondent in respect of these proceedings. Among those persons who signed Union cards at that two and a half hour meeting were the grievors Manny Macedo, Chagen Patel, Salim Schmordok, and Ted Prychodzen. Although Mr. Legierski was instrumental in arranging for a number of those employees to attend that meeting, it appears that he did not himself sign a Union card.

31. Mr. Kazakow's return flight from Pittsburgh on March 12 was delayed by bad weather. It was his evidence that he decided while he was on the plane that he would have to layoff some of the respondent's employees immediately, and that unless the Company somehow got some more orders he would have to lay off further employees later on in order to keep the Company out of bankruptcy. When his flight finally landed in Toronto at 6:45 p.m., he was met at the airport by his wife Christina, who was at all material times employed by the Company as a secretary-receptionist. The respondent called Mrs. Kazakow as a reply witness in these proceedings. We found her to be a credible witness, and we accept her evidence that although she was at work in the front office (which is not the aforementioned office in which Mr. Macedo spoke to Mr. Butt about the Union), she was unaware that Messrs. Macedo, Legierski, or any of the other employees, were discussing unionization.

32. After going home for dinner, Mr. Kazakow went to his office where, according to his evidence, he decided that the first employees to be laid off would be Mr. Legierski and Mr. Macedo, because they were his "overhead". In explaining that decision to the Board, Mr. Kazakow described Mr. Legierski as being akin to a manager who looked after the operation in his absence, and did drawings and acted as superintendent of the shop while Mr. Kazakow was there. Mr. Legierski was referred to in various parts of the evidence as a "manager", "plant superintendent", "foreman"~ and "supervisor". While the evidence indicates that he performed some supervisory functions similar to those performed by Messrs. Mungra and Koller after his layoff, it does not establish that Mr. Legierski performed managerial functions within the meaning of section 1 (3)(b). Moreover, counsel for the respondent did not contend that Mr. Legierski was not an "employee" entitled to the protections afforded by the Labour Relations Act, or that if he was not an "employee", the Union could not seek a remedy incidentally beneficial to him by virtue of the detrimental effect which his layoff may have had on the Union's organizational activities. (See, generally, AAS Telecommunications, [1976] OLRB Rep. Dec. 751.) Although Mr. Legierski's employment application (Exhibit #6) clearly indicated that he had prior experience as a welder/fitter, it was Mr. Kazakow's evidence that he gave no consideration to keeping him on to perform that type of work.

33. Mr. Kazakow testified that he had hired Mr. Macedo as a full-time quality control welding supervisor at the insistence of Dravo. However, he stated that he could no longer afford to have this "overhead", and noted that Dravo could not dictate to him any more as the respondent had lost the rotary car dumper job which Dravo had earlier indicated would be awarded to it. He further testified that he did not intend to recall Mr. Macedo because Mr. Macedo had been late for work fifty per cent of the time during the two weeks that he worked for the Company.

34. Mr. Kazakow further testified that he decided on the evening of March 12 to lay off on the following morning Salim Schmordok, who had been hired as a lathe operator on March 6, 1985, but had been temporarily used on various other jobs when he proved unable to operate the lathe satisfactorily. He had also proved to be very poor at welding.

35. The fourth person selected by Mr. Kazakow to be laid off on March 13 was Chhagen Patel, a welder who had commenced employment with the Company on November 16, 1984. Mr. Kazakow, who described Mr. Patel as a "good welder" and an "excellent man", told the Board that it was not easy to decide which of the Company's three welders should be laid off. However, it was his evidence that he decided upon Mr. Patel because welder Lombardi Giuseppe and fitter Elie Eskander formed a very good team which he did not want to disturb, and because Mr. Butt not only welded for the Company but also drove the Company truck. Mr. Patel was unable or unwilling to drive that truck because it had a standard transmission.

36. Mr. Kazakow arrived at work at about 7:00 o'clock the next morning (March 13). When Mr. Legierski arrived approximately half an hour later, Mr. Kazakow asked him to come to his office. Since we found Mr. Legierski to be a more truthful and reliable witness than Mr. Kazakow, we accept Mr. Legierski's evidence concerning that encounter where it differs from that of Mr. Kazakow. Accordingly, we accept Mr. Legierski's evidence that when he went to Mr. Kazakow' s office Mr. Kazakow asked him, "What happened here yesterday?" When Mr. Legierski replied, "Nothing, we were working and everything was fine", Mr. Kazakow said, "I got a phone call that something was happening here." He also told Mr. Legierski, "You should call me first." When respondent's counsel suggested to Mr. Legierski in cross-examination that Mr. Kazakow was just asking him how the work had gone while he was away, Mr. Legierski replied, "I don't think so. He said he got some phone call. He mentioned [Alfred] Mungra. He told me that I should call him first." Mr. Legierski further testified (during cross-examination), "It was like he [Mr. Kazakow] knew what happened in the shop. He asked me what I knew and I was supposed to tell him what was happening there the day before." Mr. Kazakow also told Mr. Legierski, "I have bad news for you. Because I didn't get the contract it means no more job for you here." Upon receiving that information, Mr. Legierski said that he was prepared to quit his employment with the Company as he already had been promised a job by another employer. That job was to commence on March 20. 1985.

37. After speaking with Mr. Legierski, Mr. Kazakow called Mr. Macedo to his office and told him that he was "overhead" that was no longer needed due to a shortage of work. He also told him that he had never before had a full-time quality control welding inspector, and had only hired him to fill that position at the insistence of Dravo, which had subsequently declined to award the Company the rotary car dulnper contract for the Vancouver customer. No mention was made during that meeting of the activities which had occurred in the respondent's plant on the previous day. After telling him that he would pay him until noon that day, Mr. Kazakow accompanied Mr. Macedo to the plant and stood nearby as he said goodbye to his fellow workers before leaving the plant.

38. Mr. Kazakow next spoke with Mr. Schmordok who, as noted above, had only been employed by the Company since March 6. Mr. Kazakow told Mr. Schmordok that he was laying him off because he did not have a job for him. Mr. Kazakow also told him that he would not recall him because he was not qualified. Mr. Kazakow then spoke to Mr. Patel. After explaining that he had been unsuccessful in getting further work while in Pittsburgh, Mr. Kazakow told Mr. Patel that it was necessary for the Company to lay him off due to a shortage of work, but that he would be recalled as soon as things picked up.

39. In addition to its full-time work force, the respondent employed several persons on a part-time basis. Those persons, who each had jobs with other employers, worked for the respondent in the evening whenever their services were needed. Some of them provided their servicesas "subcontractors", under arrangements similar to that described above in relation to Mr. Legierski. Although Mr. Kazakow initially told the Board that none of those persons worked after the start of March, further cross-examination by Union counsel with the assistance of the Company's records concerning the hours worked by such persons revealed that following the layoff of the grievors, several of those part-time employees continued to perform work for the Company, some of which could have been performed by Mr. Legierski, Mr. Macedo, or Mr. Patel.

40. After speaking with Messrs. Legierski, Macedo, Schmordak, and Patel on March 13 to advise them of their layoff, Mr. Kazakow spoke with Mr. Mungra to advise him thathe intended to promote him to the position of working foreman in charge of machining. He also spoke with Mr. Koller to advise him that he wished to promote him to the position of working foreman in charge of fabricating. Messrs. Mungra and Koller each agreed to accept those positions.

41. Mr. Kazakow held a meeting with the Company's employees at approximately 10:30 that morning. He was accompanied at that meeting by another member of management, who was not called as a witness in these proceedings. Mr. Kazakow told the Board that the purpose of that meeting was to inform employees of the changes that he had made as a result of the shortage of work. At the meeting, employees were informed of the four layoffs and were also told that there might be further layoffs unless the Company obtained more work. It was also announced at that meeting that Messrs. Mungra and Koller had becotne working foremen in charge of machining and fabricating respectively. Mr. Kazakow told the employees that if the Company could start to make a profit, there would be a bonus for employees as there had been three years earlier. He also said, "We'd better work more friendly. If anyone has a problem, they'd better come to me." In his evidence in chief, he told the Board that he did not say anything else at that meeting. However, in cross-examination he acknowledged that he told employees that they were not to work more than forty-four hours per week unless he specifically requested them to do so, "because the Company could not afford to pay overtime."

42. During his cross-examination by counsel for the Union, Mr. Kazakow adamantly denied that anything was said about coffee breaks at that meeting. When asked if he had said that the Company had fifteen-minute coffee breaks while a lot of other places only had ten-minute coffee breaks, Mr. Kazakow stated that they had talked about that many times before, but not at that meeting. He added that he was "300% sure it was not at that meeting". However, that evidence was contradicted by the evidence of Gulam Butt who, as noted above, was called as a reply witness by the respondent. During cross-examination, Mr. Butt testified that management mentioned at that meeting that the respondent gave its employees fifteen-minute coffee breaks, while many other employers only gave their employees ten-minute coffee breaks. In resolving the conflict between the testimony of Mr. Kazakow and the testimony of Mr. Butt, we prefer the evidence of Mr. Butt, who impressed us as being a more impartial and credible witness than Mr. Kazakow.

43. It was Mr. Kazakow' s evidence that at the time of that meeting he had no knowledge of any union activities. He testified that he did not find out about them until approximately 12:30 p.m. on March 14 when Mr. Patel told him that while he was in Pittsburgh on March 12. Mr. Macedo had called aside each of the employees one by one during working hours to talk about the Union.

44. On Friday March 15, Mr. Kazakow decided that it would be necessary to temporarily layoff fitter/welder Ted Przychodzen on the following Monday. Mr. Przychodzen had been working on the aforementioned contract from Dravo on which work had been stopped as a result of a design problem. After the design problem had been resolved, Mr. Kazakow attempted to recall Mr. Przychodzen on May 1, but was told by Mr. Przychodzen's wife that he was already working somewhere else.

45. The particulars set forth in Appendix "C" to the Union's section 89 complaint include an allegation that on or about March 14, 1985, Mr. Kazakow informed Mr. Przychodzen that he could no longer work more than forty-four hours per week for the respondent unless he could arrange to work any hours in excess of forty-four as a subcontractor. However, Mr. Kazakow denied ever having discussed anything like that with Mr. Przychodzen, and Mr. Przychodzen was not called to contradict that evidence. Thus, as recognized by Union counsel in his submissions to the Board, that allegation is not supported by the evidence adduced before the Board in these proceedings.

46. Mr. Kazakow went away on vacation on March 28 and did not return until April 18. After he returned, the remainder of the respondent's aforementioned stacker/reclaimer project was shipped out. Since there was no work left for them to do, Mr. Kazakow laid off welder/ fitter Lombardi Giuseppe and boring mill operator Alexander Basevich on April 22, 1985.

47. The Union filed its application for certification with the Board on March 22, 1985. The Registrar sent notice of that application, together with the other documents which customarily accompany such notice, to the respondent on April 4, 1985. On April 11, 1985, after being advised that the Form 6 Notice to Employees of Application for Certification and of Hearing had not been posted due to the absence of the owner, the Board (differently constituted) authorized a Board Officer to enter the respondent's premises to post that notice. After returning from vacation, Mr. Kazakow opened the envelope from the Board containing the aforementioned documents and returned a telephone call from Board Officer Angus Smith, who had been authorized by the Board to enquire into the Union's section 89 complaint (in File No. 3429-84-U) and to endeavour to effect a settlement, pursuant to section 89(2) of the Act.

48. During re-examination on July 23, 1984, Mr. Kazakow told the Board that as of that time only three people remained at work, as the Company had only one small job which was itself almost completed. He further testified that he had put the respondent's building up for sale and hoped to move to smaller premises. He indicated that no one knew if and when the Stelco job would come through, and expressed concern that the bank might close his Company down.

49. The layoff of Messrs. Legierski, Macedo, Schmordok, and Patel on March 13, and Mr. Przychodzen on March 18, 1985, forms the major thrust of the Union's complaint under section 89 of the Act. As noted above, it is alleged that in laying off those individuals, the respondent contravened several provisions of the Labour Relations Act, including sections 64, 66(a), 66(c), and 70, which provide as follows:

50. 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.

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

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

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

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

It is well-established in the Board's jurisprudence that a discharge or layoff will constitute an unfair labour practice if it is motivated in whole or in part by anti-union considerations. See, for example, Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, in which the Board wrote, in part, as follows (at paragraph 4):

. . .Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive....

(See also Holiday Juice Ltd.. [1984] OLRB Rep. Oct. 1449; Starplex Scientific Division of Canadian Medical Laboratories Limited, [1981] OLRB Rep. March 346; Knud Simonsen Industries Limited, [1980] OLRB Rep. Oct, 1466; B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645.); and Tillotson-Sekisui Plastics Limited, [1979] OLRB Rep. Oct. 1027).

44. Having carefully considered all of the evidence and the submissions of the parties, we have concluded that the respondent, through Mr. Kazakow, was motivated at least in part by anti-union considerations in respect of the layoff of Messrs. Legierski, Macedo, Schmordok, and Patel on March 13, 1985. Although Mr. Kazakow testified that he did not become aware of any Union activities until March 14, we do not find that testimony to be credible. Having regard to all of the circumstances, we are satisfied on balance that Mr. Kazakow became aware sometime on March 12 that his employees were being encouraged by Messrs. Macedo and Legierski to consider unionization. As noted above, when he met with Mr. Legierski shortly after 7:30 a.m. on March 13, Mr. Kazakow stated that he had been told in a telephone call on the previous day that "something was happening", and rebuked Mr. Legierski for not calling him first. Another indication of management's awareness of union activities was their reference at the aforementioned employee meeting to the fact that the Company's coffee breaks were five minutes longer than the ten-minute coffee breaks given by many other employers. Under the circumstances, including Mr. Kazakow's attempt to mislead the Board by telling us that he was "300% sure" that coffee breaks were not discussed at that meeting, it is reasonable to infer that the matter of coffee breaks was raised by management at that meeting in an attempt to persuade employees that some of their existing working conditions were more favourable than those enjoyed by some other employees and that, accordingly, a union was not needed. Mr. Kazakow's admonition to employees to "work friendly"~ and his warning that "[i]f anyone has a problem they'd better come to me", are also indicative of his awareness that his employees were moving toward unionization. His concern about the possibility of collective employee action is also betrayed by the fact that he told employees that they were not to work more than forty-four hours per week unless he specifically requested them to do so, "because the Company could not afford to pay overtime." Since the Company had not been in the practice of paying overtime for hours worked in excess of forty-four, there would have been no need for Mr. Kazakow to make that statement unless he was of the view that something had happened, or was about to happen, that would make it likely that the Company's failure to pay overtime would be called into question.

45. Further support for the Union's contention that the layoffs were at least partially motivated by anti-union considerations is provided by the fact that the persons selected for layoff included Messrs. Legierski and Macedo, who were the two employees who decided that the Union should be contacted, and who spoke with other employees on March 12 to invite them to get together after working hours that day to have a beer and talk about the Union. Moreover, those layoffs, the promotion of two employees opposed to the Union, and the aforementioned meeting with employees, alloccurred the very next day after many of the respondent's employees met with a Union representative and joined the Union. As noted above, although Mr. Legierski' s employment application clearly indicated that he had prior experience as a welder/fitter, it was Mr. Kazakow's evidence that he gave no consideration to keeping him on to perform that type of work. His failure to even consider that as a possible way of keeping Mr. Legierski as an employee until such time as the Company obtained further orders provides a further indication that Mr. Kazakow was intent on ridding the Company of Mr. Legierski as a result of his union activities on the previous day.

46. In concluding that the respondent contravened the Act in respect of those layoffs, we have also taken into account our finding that Mr. Kazakow, the sole witness called by the respondent concerning its motivation for those layoffs, was not a reliable witness. As noted above, we have found that he attempted to mislead the Board concerning a number of matters, including the amount of work that remained to be done on the stacker/reclaimer as of March 8, 1985, the contents of his discussion with Mr. Legierski on March 13, 1985, the subject matters that were discussed at management's meeting with employees that day, the amount of work performed by part-time employees and "subcontractors" following the March 13 layoffs, and the time at which he first became aware of his employees' union activities.

47. For the foregoing reasons, we find that the respondent contravened sections 64 and 66 of the Act by laying off Messrs. Legierski, Macedo, Schmordok, and Patel on March 13, 1985. We are also satisfied that the "captive audience" meeting held that day involved a further contravention of section 64 of the Act, and also a contravention of section 70. Although an employer is free to express his views within the limits described in section 64 (see, generally, Vogue Brazziere Incorporated, [1983] OLRB Rep. Oct. 1737), he cannot use coercion, intimidation, threats, promises, or undue influence, as management did at that meeting by announcing the aforementioned unlawful layoffs, advising employees that two employees opposed to the Union had been promoted, promising the employees that there would be bonuses if the Company made a profit, and stating, "We'd better work more friendly. If anyone has a problem, they'd better come to see me." While some of those statements might not involve a contravention of section 64 in another context, in the circumstances of the present case we are satisfied that they constituted thinly veiled threats that employees would be penalized if they supported unionization, and promises that they would be rewarded if they did not.

48. Although the matter is not entirely free of doubt, we have concluded, on balance, that the respondent did not contravene the Act in laying off Mr. Przychodzen on March 18, 1985. Neither Mr. Przychodzen nor anyone else was called by the Union to contradict the respondent's evidence that Mr. Przychodzen was temporarily laid off at that time as a result of a work stoppage caused by a design problem in respect of the Dravo contract on which he had been working. Moreover, as noted above, it was Mr. Kazakow's uncontradicted evidence that he attempted to recall Mr. Przychodzen on May 1, after the design problem was resolved, but was told by Mr. Przychodzen's wife that he was already working somewhere else. In reaching this conclusion, we have also taken into account the fact that there is no evidence that Mr. Przychodzen engaged in any union activities that would differentiate him from any of the respondent's many other employees who joined the Union. In this regard, there is no evidence that he played a leadership role such as that played by Messrs. Macedo and Legierski, nor was his layoff effected precipitately and made to coincide with the layoff of those two persons, as were the layoffs of Messrs. Schmordok and Patel.

49. We are similarly satisfied that the respondent's layoff of Lombardi Gieuseppe and Alexander Basevitch on April 22, 1985 did not contravene the Act. As indicated above, the remainder of the stacker/reclaimer project had been shipped out by that time, and we are satisfied on the totality of the evidence that the sole reason for their layoff was that, for business reasons beyond the control of the respondent, there was no work left for them to do.

50. The remedy in respect of the aforementioned unfair labour practices must be tailored to fit the somewhat unique circumstances of this case. Although we have concluded that it was the union activities in which the employees engaged on March 12 that precipitated the four layoffs which occurred on the following day, we are satisfied on the totality of the evidence that the loss of the rotary car dumper job and the non-availability of the Demag project for Stelco would have resulted in some layoffs later that month and in April in any event. (It was not alleged that the employees' union organizational activities prompted the respondent to reject orders or to otherwise avoid obtaining new work, and the evidence adduced in this case would not support such a finding. See, generally, Academy of Medicine, [1977] OLRB Rep. Dec. 783.) In view of his dissatisfaction with his employment by the respondent, we are satisfied on the balance of probabilities that Mr. Legierski would have resigned from that employment by March 19, 1985 and gone to work for the other employer who had promised him a job beginning March 20, 1985. Accordingly, the compensation payable to Mr. Legierski will be limited to the period from March 13, 1985 to March 19, 1985 inclusive. We are further satisfied that Messrs. Macedo and Patel would have been laid off by the respondent by April 22, 1985 at the latest, when the stacker/reclaimer was shipped out. We also find that Mr. Schmordok would have been permanently laid off by March 31, 1985 at the latest, due to his unsatisfactory work performance. Thus, the compensation to be paid to them must reflect those circumstances. In view of our finding that Mr. Legierski would have resigned from the employ of the respondent by March 19, 1985, and our finding that Mr. Schmordok would have been permanently laid off by March 31, 1985, the Board's reinstatement order will be limited to Messrs. Macedo and Patel, and will become operative as soon as the respondent has work to perform which they are respectively qualified to perform.

51. Where the Board finds that a party has committed an unfair labour practice, it will generally direct that party to post a notice in conspicuous places in the work place, to attempt to remedy the adverse psychological impact of the contravention of the Act. See, for example, Holiday Juice Ltd., supra, and Valdi Inc., [1980] OLRB Rep. Aug. 1254. In view of the large number of layoffs which have occurred, we also find it appropriate to supplement our usual "posting" order with a "mailing" order, to ensure that all bargaining unit employees will receive notice of the Board's decision in this matter. (See, generally, Wilco- Canada Inc., [1983] OLRB Rep. June 989.) To offset the effect of the aforementioned "captive audience" meeting~ the Board will also order that the Union be permitted to convene a one-hour meeting of all employees in the bargaining unit on the respondent's premises during working hours, in the absence of management.

52. For the foregoing reasons, we are satisfied that but for the respondent's unfair labour practices Messrs. Macedo, Schmordok, and Patel would in all probability have been actively employed by the respondent on March 22, 1985 when the Union filed its certification application. However, Mr. Legierski would not, as he would likely by that time have resigned his employment with the respondent to take up employment with the other employer who had promised him a job beginning March 20, 1985. Mr. Przychodzen would also have been absent from work that day on indefinite layoff, and would not have been offered recall until May 1, 1985. Thus, neither Mr. Legierski nor Mr. Przychodzen should be included as employees for the purposes of determining the "count" under section 7 of the Act. However, Messrs. Macedo, Schmordok, and Patel must be included in the number of employees in the bargaining unit at the time the application was made, for to exclude them would be to permit the respondent to benefit from its action of laying them off on March 13, 1985, in contravention of the Act.

53. Having regard to all of the evidence, we find that there were sixteen employees in the bargaining unit at the time the Union made its certification application, and that nine of them were members of the applicant on April 16, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act. Thus, we are satisfied that more than fifty-five per cent of the employees in the bargaining unit at the time the application was made, were members of the applicant at the pertinent time.

54. We are further satisfied that there are no circumstances in the present case that would make it appropriate to direct that a representation vote be taken. Indeed, the respondent's aforementioned unfair labour practices have created a situation in which the true wishes of the employees would be unlikely to be ascertained by a representation vote, for as frequently noted by the Board in its jurisprudence, a discharge or indefinite layoff is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a union as their bargaining agent. (See, for example, Elbertson Industries Limited, [1984] OLRB Rep. Nov. 1564, and DI-AL Construction Limited, [1983] OLRB Rep. March 356). In the instant case, the respondent's action of laying off Messrs. Macedo and Legierski, the two employees who originated the Union's organizational activities, together with two other employees who had joined the Union on the previous evening, while at the same time promoting two employees who were opposed to the Union, would have made abundantly clear to employees the depth of the respondent's opposition to the Union, and would likely have created concerns among them that if they were to support, or to continue to support the Union, they might jeopardize their own continued employment. Moreover, as indicated above, those layoffs and promotions were announced by management at a "captive audience" meeting at which management promised that there would be bonuses if the Company started to make a profit, and told employees that they had better "work more friendly" and come to management if they had a problem.

55. A certificate will issue to the applicant for the following bargaining unit, pursuant to section 7(3) of the Act:

all employees of the respondent in the City of Brampton, save and except foremen, persons above the rank of foreman, office, sales and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

56. Since the applicant is entitled to certification under section 7 of the Act, it is unnecessary to deal with its application for certification under section 8.

57. For the reasons set forth above, the Board hereby declares that the respondent has contravened sections 64, 66, and 70 of the Labour Relations Act and, pursuant to section 89 of the Act, hereby orders that the respondent:

(1) cease and desist from contravening sections 64, 66, and 70 of the Labour Relations Act;

(2) reinstate Manny Macedo and Chhagan Patel as soon as the respondent has work to perform which they are respectively qualified to perform;

(3) compensate Manny Macedo, Chhagan Patel, George Legierski, and Salim Schmordok for all lost wages and benefits sustained by them through the respondent's violation of the Act;

(4) permit the Union access to its plant during working hours for the purpose of convening a meeting for a maximum of one hour to address bargaining unit employees out of the presence of any member of management;

(5) post copies of the attached notice, marked "Appendix", after being duly signed by its President, in conspicuous places in its plant, where they are likely to come to the attention of employees, and keep the notices posted for sixty consecutive working days; reasonable steps shall be taken by the respondent to ensure that the notices are not altered, defaced, or covered by any other material; reasonable physical access to the premises shall be given by the respondent to a representative of the Union so that the Union can satisfy itself that this posting requirement is being complied with; and

(6) at its own expense, mail a copy of this decision, and of the attached notice marked "Appendix", after being duly signed by its President, to the residence of each bargaining unit employee employed by it at any time during the period from March 13, 1985 to the date of this decision, and forthwith provide the Union with a list of the names and addresses of all of the employees to whom that material has been sent pursuant to this order.

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

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A SERIES OF HEARINGS ARISING OUT OF THE EFFORTS OF THE UNITED STEELWORKERS OF AMERICA TO BECOME THE COLLECTIVE BARGAINING AGENT FOR OUR EMPLOYEES. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY LAYING OFF MANNY MACEDO, GEORGE LEGIERSKI, SALIM SCHMORDOK, AND CHHAGEN PATEL ON MARCH 13, 1985, AND BY HOLDING A "CAPTIVE AUDIENCE" MEETING WITH OUR EMPIOYEES ON THAT DAY, THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS:

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM.. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING TO INTERFERE NITH THESE RIGHTS;

WE WILL REINSTATE MANNY MACEDO AND CHHAGEN PATEL AS SOON AS WE HAVE WORK TO PERFORM WHICH THEY ARE RESPECTIVELY QUALIFIED TO PERFORMS

WE WILL COMPENSATE MANNY MACEDO, CHHAGEN PATEL, GEORGE LEGIERSKI, AND SALIM SCHMORDOK FOR ALL LOST WAGES AND BENEFITS SUSTAINED BY THEM THROUGH OUR VIOLATION OF THE ACT.

WE WILL PROVIDE THE UNION WITH ACCESS TO OUR PLANT DURING WORKING HOURS FOR THE PURPOSE OF CONVENING A MEETING FOR A MAXIMUM OF ONE HOUR TO ADDRESS BARGAINING UNIT EMPLOYEES OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT

WE WILL MAIL AT OUR OWN EXPENSE A COPY OF THE BOARD'S DECISION AND THIS NOTICE TO THE RESIDENCE OF EACH BARGAINING UNIT EMPLOYEE EMPLOYED BY US AT ANY TIME DURING THE PERIOD BETWEEN MARCH 13, 1985 AND THE DATE OF THE BOARD'S DECISION, AND WILL PROVIDE THE UNION WITH A LIST OF THE NAMES AND ADDRESSES OF ALL OF THE EMPLOYEES TO WHOM THAT MATERIAL HAS BEEN SENT.

K & U MANUFACTURING LIMITED

PER: ___________________________

PRESIDENT

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

This notice must remain posted for 60 consecutive working days.

DATED this 20TH day of JANUARY 1986.