United Food and Commercial Workers International Union Local 175 v. Hayloft Steakhouse Limited, 1986 CanLII 1669

[1987] OLRB Rep. May 717

3126-85-R; 0135-86-U United Food and Commercial Workers International Union Local 175, Applicant v. Hayloft Steakhouse Limited, Respondent v. Group of Employees, Objectors; United Food and Commercial Workers International Union, Local 175, Complainant v. Hayloft Steakhouse Limited, Respondent

BEFORE: RobertJ. Herman, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: J. J. Nyman and M. McKay for the applicant/complainant; B. H. Stewart, Bill Simpson, John Degroote and Carolyn Kay Aggio for the respondent; David Sepejak for the objec­tors.

DECISION OF ROBERT J. HERMAN, VICE-CHAIR, AND BOARD MEMBER R. R. MONTA­GUE; May 7, 1987

1. These consolidated proceedings consist of an application for certification and a com­plaint filed pursuant to section 89 of the Labour Relations Act, alleging that the respondent has violated sections 64, 66, 70, 79, and 80 of the Act. It was evident from the evidence and submis­sions in these proceedings that the complainant was not pursuing its allegations with respect to sec­tions 79 and 80 of the Act, and the Board dismisses the complaint in that regard.

2. In a prior decision in this proceeding, the Board noted the partial agreement of the par­ties that the bargaining unit should be described in terms of "all employees of the respondent in the Municipality of Metropolitan Toronto", subject to certain exclusions over which the parties remained in dispute. In that prior decision, dated April 16, 1986, the Board declined to appoint a Board Officer to inquire into the disputed exclusions; however, in light of our decision set out below we hereby appoint a Board Officer to inquire into and report back to the Board with respect to the issues raised by the parties over the individuals in question set out in that decision.

3. The respondent owns and operates several restaurants in Ottawa, and one restaurant in Toronto, the restaurant subject of these proceedings. During 1985, the respondent embarked upon a renovation programme with respect to all of its restaurants, involving both structural changes to the respective premises and changes in concept. In November and December of 1985, the respon­dent was primarily concerned with renovations in the two Ottawa restaurants, and when those were finished around Christmas of 1985, concentrated its efforts on the Toronto restaurant reconstruction. The Toronto renovations were substantial, and included at various times removing parts of the ceiling, changing walls, completely relocating the washrooms in the premises, and the mov­ing of the heating equipment for the entire restaurant. With respect to the latter renovation, the disconnecting and moving of the heating units of the restaurant, although problems with heating occurred during the renovation phase as early as Christmas of 1985, the heating units themselves were disconnected and moved around February 3, 1986 thus commencing the major phase of reno­vation and resulting in the major phase of disruption, inconvenience, and imposition to the staff and customers of the Toronto Hayloft Restaurant.

4. Before recounting the chronology of events, we introduce some of the main characters. Bill Simpson is General Manager of all Hayloft operations, including all the restaurants, and all aspects of running and managing those restaurants. Until late February or March of 1986, Simpson ran these operations from an Ottawa headquarters, with the assistance of his second-in-charge, John Payne. Some time during those months, in order to supervise reconstruction of the Toronto restaurant, Simpson moved his base of operations to Toronto. Although Simpson is General Man­ager of all operations, each restaurant has its own on-site Manager, and for the Toronto restaurant at all relevant times that was John Degroote. John Degroote has a brother, Peter Degroote, who was a bargaining unit employee in the Toronto restaurant which John managed. Similarly, Simp­son's assistant John Payne has a brother Peter Payne, who was also an employee in the relevant bargaining unit.

5. On February 1, 1986, John Degroote, (Manager of the Toronto restaurant) convened a meeting at the restaurant in order to discuss with employees various new policies which he intended to implement, and enforce, with respect to his restaurant. The meeting was run by John Degroote with the assistance of Karen O'Brien and Henry Silva. These individuals are challenged by the union as exercising managerial functions, for purposes of the certification application, but the respondent maintains they do not so exercise such functions. All the employee witnesses before the Board testified that O'Brien and Silva were their managerial supervisors. At the meeting, employees were handed a typed summary of the new policies. As John Degroote testified, he wanted to ensure that each employee knew these were the policies and that they understood Degroote would ensure that everyone followed them. He further testified he did enforce them sub­sequent to February 1st. As quoted from the typed summary that all employees received, one of the new policies to be implemented reads as follows:

NO STAFF MEMBER WILL BE PERMITF~ED TO DRINK AT THE BAR. NO ALCO­HOLIC BEVERAGES WILL BE CONSUMED WHILE A STAFF MEMBER 15 IN UNI­FORM. The only time a staff member may consume alcohol on the premises is if you are punched out, out of uniform and sitting at the tables by the windows in front of the Tannery. This applies to everybody, pit drafts and cash out beer etc. Any staff member who wishes to eat, read etc. between shifts may do so in the Tannery but only at the front tables.

This meeting, along with the subsequent meetings to which we will refer, were considered manda­tory by management; employees were expected to attend, whether or not they were on shift at the time, and all employees were compensated for their attendance. In these circumstances, we con­clude that all employees were aware of these policies, including the policy quoted above, and were further aware that management would enforce such policies. We also find that John Degroote did enforce these policies in the Toronto restaurant.

6. The next meeting held by management occurred on February 25, 1986, and was chaired by Simpson, who had travelled from the Ottawa office in order to do so. Staff was again expected to attend and were compensated for so doing. Simpson outlined and discussed the renovation plans, their purpose and progress, the projected phases of such renovations, and discussed with employees the proposed change in "concept" of the restaurant. Various other matters were dis­cussed, two of which are worth noting. Simpson discussed new uniforms to go along with the new concept and the new look, and he discussed projected trips to Ottawa for all staff, in order to have Toronto employees see the completed Ottawa restaurant, along with its own new concept. Although the details and timetabling of such trips were to be finalized subsequent to the meeting on February 25, the trips were discussed. Shortly thereafter, lists were posted for employees to sign, indicating on which day they wished to take the Ottawa trip. In its complaint, the complain­ant suggested that the timing of the announcement by management indicating it would pay for the new uniforms, and of the Ottawa trips, provided support for its unfair labour practice allegations, as the announcements were geared to undercut union support by providing incentives to employ­ees. However, it was clear from the evidence that both these matters were raised and discussed at the meetings on February 25, 1986, before management was aware of any union organizing drive, and in any event, the applicant did not seriously pursue these matters in its final submissions.

7. Also at the meeting (on February 25) Simpson advised all staff he would be in Toronto considerably more frequently and more often from that time forth, as the Ottawa renovations were substantially completed and he wanted to oversee the Toronto construction. Simpson also intro­duced his assistant, John Payne, as the Director of Operations for the restaurants, and advised that John Payne would be working with Simpson in Toronto from that time forward. Finally, Simpson opened the meeting to comments or complaints from employees, and received numerous com­plaints from the floor, expressing concern over the effect of the renovations, the inconvenience and discomfort occasioned by the renovations, and more particularly, the effect that those renovations would have on the earnings of the staff. Employees were concerned that the renovations would cause fewer customers to eat at the restaurant, or alternatively, would shut down certain parts of the restaurant, in either event reducing the tips staff could expect. Simpson responded in an apolo­getic and sympathetic fashion, but did not indicate any specific action would be taken to satisfy any of the employees' complaints.

8. Shortly after this meeting, around the first week of March of 1986, employees at the res­taurant began to talk about the possibility of unionization, though nothing concrete was discussed and no particular union was then seeking to organize the employees. Such talk continued over the next week or so, again without any specific action being taken. On March 12, 1986, Simpson met in Ottawa with the owner of the respondent, Saul Shabinsky, as he did every Wednesday, in order to discuss business and various aspects and decisions being made thereto. Although Simpson had independent authority with respect to all aspects of the business and did in fact exercise such inde­pendent decision-making, regular Wednesday meetings were held with Shabinsky in order to dis­cuss whatever aspects of the business were then pertinent. At the meeting on March 12, Simpson discussed with Shabinsky whether employees in the Toronto restaurant should be compensated for their lost income, due to the renovations and the consequent reduction in tips that they would receive. Simpson proposed to Shabinsky that employees be compensated, with the employees of the bar (the Tannery area) to be compensated for the anticipated losses when the bar closed as expected on March 24, and with all other employees to be compensated at the same time for the losses they had already incurred during February and that portion of March to date. Shabinsky apparently concurred with Simpson's proposal in this regard, and Simpson shortly thereafter dis­cussed the compensation with his assistant, John Payne. A firm decision was then made that Toronto employees would be compensated as per the proposal to Shabinsky. No one in the Toronto restaurant, not even manager Degroote, was advised of the decision to compensate employees, nor when such compensation would be announced or paid to employees, until a meet­ing with employees, chaired by Simpson, on March 20th, when the compensation was first announced. We will return to the meeting of March 20.

9. On Friday March 14, 1986, shortly after Simpson had decided to compensate all the employees, but before anyone in Toronto was so advised, John Degroote phoned Simpson from the Toronto restaurant, to advise Simpson that Degroote had just been advised by an employee that a union was organizing in the restaurant and was seeking to be certified for the employees. Simpson advised John Degroote to exercise caution, as the employees had certain rights, and told Degroote that he should not do anything, other than gathering his management staff together, and he ought not to say anything to any employee about the union organizing drive.

10. The following Monday, March 17, according to the previously organized schedule, the first trip to Ottawa of a group of Toronto employees occurred, led by John Degroote. Degroote went with the employees, by van, to Ottawa, and stayed with them in the Ottawa restaurant for a short time. Although he spoke to Simpson and John Payne during the Ottawa visit, Degroote testi­fied they did not discuss the phone call from the previous Friday nor any matter involving the union drive in Toronto. Because of a personal problem requiring John Degroote to return to Toronto, he flew back to Toronto on the afternoon of March 17, rather than returning by van with the other employees. In Toronto, Degroote had to return to the restaurant, since his car was parked there, and he arrived at the restaurant around 6:00 p.m. on the evening of March 17, dur­ing the supper hour. Degroote testified that he had taken the union drive rather personally, since he felt that the employees' desire to be represented by a union was in some large respect tied to some misconduct on his part, or at least that he had not kept the employees under him content. As he testified, "Perhaps I was too stern with respect to the policies and how I had directed" the work place. Upon entering the restaurant, John Degroote asked to see three employees, in sequence and individually, in his office. Degroote indicated he picked the specific three employees he asked to see because he felt he was closer to those employees, had a communication link with them, and could better find out what was going on from them as they would be more inclined to trust him and in turn he to trust them.

11. The first employee he requested come to his office was Suzanne Vollbregt, a dining room waitress. In full view of all the employees then present, John Degroote walked into the res­taurant, stopped Vollbregt during her shift while she was serving tables, and asked that she come to his office forthwith. Vollbregt proceeded as directed into Degroote's office, and Degroote then questioned her about any rumours she might have heard. Specifically, he advised her that he knew a union was being formed, he named (accurately) the three union organizers in the restaurant, and he further indicated that he knew Vollbregt had signed a union card. Degroote also told Vollbregt that he had come directly from Ottawa, where he had been told to clean up "the mess by the end of the week or he would lose his job." Vollbregt and Degroote were casual friends, and she was accustomed to speaking to him, as a friend, at the restaurant. She testified that she felt Degroote probably would not have spoken to her that day if he had not felt on a friendly basis with her. Whatever the reason for Degroote's choosing Vollbregt to question, the tenor of the conversation was not friendly. She testified she felt threatened by the interview and its content. Degroote knew she had signed, people were losing their jobs for no reason (2 part time employees had recently been discharged, and for no reason apparent to the employees), and in that context Degroote had brought her into her office in full view of everyone, during the evening dinner hour and while she was on shift. Although there were some discrepancies in the evidence given by Vollbregt and John Degroote with respect to their conversation, we prefer the evidence given by Vollbregt wherever a conflict exists. Degroote himself testified that the main purpose of the meeting was to find out whether the union rumours were true, and to hear Vollbregt's side of the story. He conceded they had discussed the union during this meeting. Vollbregt subsequently discussed this interview with 2 fellow employees.

12. After finishing his conversation with Vollbregt, and releasing her to return to her tables, Degroote emerged from his office and called another employee, Bob Desrosiers, into his office, again while that employee was in the midst of his shift and serving customers, and again in front of the other employees then present. Degroote's conversation with Desrosiers in part fol­lowed the same lines as his conversation with Vollbregt, enquiring whether the rumours about the union were true and attempting to discover the current state of the discontent or organizing at the restaurant.

13. When that conversation was over, Degroote returned to the restaurant and summonsed Michael Dicks, a pit cook, into his office. Degroote's questioning of Dicks was again similar in nature to his questioning of the two prior employees, as he enquired about the union and whether the rumours were true. We conclude that most, if not all, employees in the bargaining unit would have become aware of these interviews and their content. Vollbregt discussed her interview with 2 fellow employees, and all employees on shift at the time would have seen Degroote, agitated and emotional, take 3 fellow employees from their work stations into his office. In the context of res­taurant employees and the close confines in which they work and socialize, we have no hesitation in inferring that employees would have discussed these events. Indicative of the fact that the news of the events had spread, one of the organizers, as identified by Degroote to Vollbregt, phoned her the next day to ask about her meeting with Degroote. These interviews or interrogations were apparently in direct contravention of Simpson's instructions to Degroote, to do nothing and to not speak to employees, collectively or individually, about the union. Degroote reported these meet­ings to Simpson the following week. Simpson at no time took any steps to correct the effect of Degroote's behaviour nor the impression it would necessarily have left on other employees. Dur­ing this period, employees were discussing (they thought secretly) the possibility of joining a union, although no application had as yet been filed.

14. On March 20, 1986 another meeting was convened of all employees, chaired by Simp­son, and again all employees were expected to attend and were compensated for doing so. Although Simpson had been made graphically aware of employee complaints, certainly by the meeting of February 25 at which he had solicited comments from the employees, no concrete responses or changes had been made up to the meeting of March 20, 1986, and as we noted above, although Simpson had decided to compensate employees for their financial losses on or about March 12 no announcement or indication of this decision had been made prior to the meeting of March 20. By that meeting, Simpson and all of management were well aware that the union organ­izing campaign was going on, as John Degroote had phoned Simpson on March 14 to so advise him. At the March 20 meeting, Simpson reviewed many of the items he had discussed at the Febru­ary 25 meeting, including the new uniforms, the phases and progress of the construction, and he further indicated, for the first time, that all employees were to be compensated for their already incurred or projected losses resulting from the renovations. This compensation was to consist of a lump sum payment, varying with the type of employee involved (i.e. whether part-time or full-time) and Simpson advised employees that over the next week or so individual meetings would be held for them to be given their bonus cheques. The substance of this meeting, including the pay­ment of bonus cheques for compensation for the renovation losses, was reflected in a typed sheet posted shortly after the meeting and handed out to all those employees present at the meeting.

15. In his evidence, Simpson explained the need to meet with each employee individually in order to give them their bonus cheques, on the basis that his bookkeeper had advised him that the ordinary payment method, of direct deposit to the employees' bank accounts, was unsuitable for payment of these varying amounts of bonuses. He further testified that while his bookkeeper felt individual cheques were necessary, Simpson himself felt that the individual meetings were neces­sary in order to present those cheques, not to discuss the compensation but because management wanted to establish rapport with each employee, and meeting with them individually was the appropriate way to accomplish this. No cheques were actually handed out to employees at that meeting on March 20. There was no evidence as to when Simpson made the decision to distribute the bonus cheques through meetings with individual employees.

16. On March 26, the Company received official notification of the union's application for certification, and notices were posted in the work place advising employees of the application, and advising them of their right to object to the union being certified and further advising them how they could exercise such objection if they so desired.

17. During March 26 or 27, Simpson and John Payne met individually with various employ­ees, in order to give them the bonus cheques referred to above. Simpson met with approximately three employees during this period and Payne met with approximately five or six employees. Simp­son testified that when he met with each employee and gave him or her the cheque, they discussed problems in the work place but not the union. One employee, Michael Dicks, testified that he met with John Payne in order to receive his cheque, and that Payne had told him he knew what was going on about the union and that they had discussed the union. Dicks was called as a witness by the petitioner, and testified toward the beginning of these proceedings. John Payne was not called and did not give evidence in these proceedings.

18. All of these events and interviews occurred prior to the origination of the petition filed in these proceedings opposing the certification of the union. The petitioner, David Sepejak, was a bartender in the Tannery in the respondent's Toronto restaurant throughout the relevant period, and he represented himself in these proceedings before the Board. As will be seen, we have con­cluded that the petition does not represent a voluntary expression of the wishes of those employees signing it, and accordingly, the Board will give no weight to that petition. However, we note the intelligent, capable, and reasonable fashion in which Mr. Sepejak conducted himself throughout these proceedings.

19. On March 27, Sepejak decided to draw up a petition, obtain employee signatures and oppose the union. Sepejak had been advised by another employee that the Notice of Application of Certification (the Board's form advising employees of the union's application) had been posted in the work place on March 26 and he subsequently read the posted notice. During the week or so prior to March 27 Sepejak had decided that he was going to oppose the union, but it was only by reading the posted notice that he understood in concrete terms how to formulate such a response. On the 27th of March, Sepejak advised his manager, Henry Silva, that he had an appointment, without disclosing the reason for the appointment, and got another employee to cover his shift at the bar. It was not unusual for bartenders to trade off shifts with each other, without prior approval from management, provided the bar was properly attended at all times. Sepejak attended at the Ministry of Labour, where he obtained brochures or pamphlets describing the certification process. From prior discussions with Peter Degroote, the brother of restaurant manager John, Sepejak had learned that Peter Degroote was firmly opposed to the union. The two of them arranged to meet that night, after work, outside the restaurant, in order to discuss potential oppo­sition to the union.

20. Later that evening, at approximately 7:00 p.m., Peter Degroote and Sepejak met at a restaurant in the same neighbourhood, where Peter Degroote advised Sepejak who was for and who was against the union, matters Peter had gleaned through discussions with other employees. It was agreed that because of his familial relationship with the manager, Peter Degroote would not be involved in obtaining the signatures and that he would not be further involved in the circulation of the petition. After that meeting between the two of them, both attended a further meeting at the house where Sepejak was then staying, where various employees discussed their opposition to the union. Despite Peter Degroote's explicit denial during his evidence, we conclude that Peter Degroote did continue to be involved in the petition, by discussing with Sepejak as time went on, which other employees might be opposed to the union and be willing to sign the petition, and fur­ther, in trying to discuss with his brother what was happening with respect to the union. Both Sepe­jak and Peter Degroote's brother John testified to Peter Degroote's further such involvement.

21. Sepejak began collecting signatures on the petition on March 29, and continued through the following days, obtaining the last (23rd) signature on April 4,1986. Sepejak was not scheduled to work and did not work, inter alia, on March 28, 31 and April 1, 2, and 3. Nevertheless, through-out periods of those days, though unusual for Sepejak to do so, he was present in the restaurant and, while there arranged to have various employees sign the petition. Sepejak was in and out of the restaurant and bar area (the Tannery) during the course of those days, sitting on occasion at the bar, though off duty. On at least one of those days (March 31), he was at the bar talking to his girlfriend for approximately four hours, off and on, during which various managers saw Sepejak, as did fellow employees. Notwithstanding the clearly stated policy (as quoted above in ¶5) that "any staff member who wishes to eat, read etc. between shifts may do so in the Tannery but only at the front tables", and notwithstanding the unchallenged evidence of manager Degroote that he strictly enforced this policy subsequent to February 1, 1986, no management member in any way approached Sepejak to indicate he was not to sit at the bar, drinking coffee, and talking to his girl­friend. When we read the policy in its entirety, we conclude that the policy prohibits employees from sitting at the bar when they are not working, whether or not they are drinking alcohol. We draw the inference that employees, all aware of this policy and its strict enforcement, would have thought management was in effect bending the rules to allow Sepejak to sit at the Tannery bar. Indeed, Sepejak himself testified that numerous employees approached him to ask what he was doing and why he was sitting at the bar throughout this period. He also testified that employees knew he was circulating a petition.

22. Sepejak testified that his immediate manager, Henry Silva, had been aware of the union organizing long before the Notice of Application had been posted on March 26, and in fact had told Sepejak he was aware of the union cards being signed and that he (Silva) had in fact seen them. Sepejak testified this conversation occurred prior to his decision to oppose the union and cir­culate a petition. Henry Silva was not called by the respondent to give evidence in these proceed­ings.

23. It was during the period that Sepejak was obtaining the signatures on the petition, that Simpson and John Payne were meeting with numerous individual employees, giving them bonus cheques for compensation for incurred or anticipated losses, and Payne, at least, was discussing the union with those individual employees. Simpson testified that those meetings stopped because legal counsel advised him not to hold them.

24. With these facts in mind, we turn to the submissions of the parties. The union submits that the petition is not voluntary, given the individual meetings management held with three employees on March 17, meetings which were specifically tied to the union organizing drive, and given the meetings with individual employees, where gratuitous bonus cheques were delivered and the union discussed. It is only after these events that the petition orginated. With respect to the complaints alleging breaches of sections 64, 66 and 70 of the Labour Relations Act, the union sub­mits that the same two series of interviews contravened the Act, as those conversations and the content of the conversations were clearly designed to exert undue influence and have a coercive effect on the individual employees, and by inference all employees in the potential bargaining unit.

25. In response, the respondent suggests that there is nothing before the Board which indi­cates that the petition was other than a voluntary expression of the employees' wishes. The fact sit­uations leading to a union organizing in a work place are also often the situations leading manage­ment to take corrective action and to respond to employees' concerns. In counsel's submission, this happened in the instant case, as management became aware of the problems being experienced by employees, and properly and promptly took corrective action to retain a happy work force. The payment of the bonus cheques, and the meetings with employees during which those cheques were handed over, were proper responses to employee discontent and an attempt by management to create a better working relationship with the employees. No part of the purpose of those meetings was an intention to interfere with the union or to exert undue influence on the individual employees. With respect to the individual meetings held by John Degroote on March 17, counsel sought to distinguish those meetings from similar situations canvassed in prior Board cases, on the grounds that Degroote was careful not to ask the individual employees whether or not they had signed union cards or whether they were union supporters. Further, Degroote did nothing subse­quent to those meetings with respect to what he had heard from the employees. Counsel submitted that it was clear that Degroote's conversation with Vollbregt did not have any effect on her as she remained unafraid after that meeting and testified that she was not worried about any specific repercussions. Finally, counsel submitted we ought not to draw any adverse inference from Simp­son being advised by legal counsel to terminate the individual meetings, during which the bonus cheques were paid, as those meetings had been planned properly in connection with the problems experienced in the work place and there was nothing improper in holding them.

The Decision

26. There are two issues which the Board must decide. First, whether the petition repre­sents a voluntary expression of the wishes of the employees who signed it, and second, whether the Company has breached any or all of sections 64, 66, and 70 of the Act. We propose to deal with those two issues in sequence. Before we turn to the evidence with respect to the voluntariness of the petition, we can usefully refer to two prior cases of the Board. In Radio Shack, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of its enquiry with respect to whether a petition is a voluntary expression of the employees who signed it as follows:

27. The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC ¶16,264 in the following terms:

"In view of the responsive nature of his relationship with his employer and of his nat­ural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or inter­fered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories."

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in decid­ing whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its orig­ination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not manage­ment might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.

Reference might also usefully be made to the following passage from Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, wherein the Board more recently reaffirmed its approach to such employee statements:

40.... Before reviewing each off these issues it is useful to understand the general legal and pol­icy background against which petitions are considered by this Board. There is usually and natu­rally an identity of interest between an employer and those of his employees interested in oppos­ing an applicant trade union. In this context the circulation of a statement of desire involves petitioners approaching their fellow employees to solicit support. Understandably, an employee so approached may worry or feel anxious that his refusal to sign such a petition will become known to his employer given this natural interest employers have in employees opposing the trade union. But, this identity in interest between employer and opposing employees, standing alone, has never been viewed by this Board as undermining the reliability of signatures placed on a circulated petition. If this were not so, a petition could never be found to be voluntary. On the other hand, this is not to say that a similarity in interest between employer and petitioners is irrelevant and, indeed, it is the reason why this Board subjects the origination and circulation of a statement of desire in opposition to an application for certification to considerable scrutiny. There is an onus on those employees who present the documentary evidence to the Board to demonstrate that the signatures contained therein constitute a voluntary expression of the wishes of those employees who on recent and earlier occasions joined the applicant trade union. It is in this context that the Board, in the often cited Pigott Motors (1961) Ltd. case, 63 CLLC ¶16,264, made the following observations:

41. Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obviously suggest a relationship between the employer and the petition­ers that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such circumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solic­ited and thus prompt the Board to respond in a similar fashion.

42. We return now to the evidence. Three employees were individually called into John Degroote's office, despite their being on shift and working at the time, and were summonsed to these meetings in front of all other employees then working at the restaurant. Each of the three employees was questioned about the union presence at the restaurant and about whether the rumours about the union organizing were true. Though Degroote was specifically instructed by Simpson not to discuss the union with employees, from their perspective, they would have no way of knowing that senior management in Ottawa was opposed to the types of meetings Degroote held. With Vollbregt, Degroote identified the names of the three union organizers and indicated he was aware she had signed a card. These conversations with the three employees took place in a general context of concern about the renovations, and of concern about the recent firings of two part-time employees, for no cause apparent to the employees. Given that the three employees were taken to these meetings in front of other employees, and given that at least one employee, Vollbregt, related the circumstances of her meeting to another employee, we conclude that all of the employees would have been made aware, shortly thereafter, of management's views with respect to unionization. Confirmatory of this, as noted earlier, one of the union organizers phoned Vollbregt the next day, having heard about her meeting with Degroote. Further, since manage­ment indicated to Vollbregt that they knew she had signed, employees would likely have felt that management would be aware of which employees had signed cards and in the context of the peti­tion, which employees had or had not signed any potential petition. In all these circumstances, most of the employees would have concluded that management was opposed to the union, had already been able to identify some employees involved with the union and could well identify others, and adverse consequences might follow because of the union campaign or the employees' involvement in it. These circumstances lead us to conclude the petition does not represent reliable evidence of the wishes of those who signed it and we do not find it to be voluntary.

43. Silva's conversation with the petitioner Sepejak, in which he indicated he had seen the union cards, also causes the Board concern. Sepejak was the person primarily responsible for the origination of the petition, and he was responsible for obtaining the signatures of the majority of the names obtained. Prior to his beginning the petition, he was told by his immediate supervisor Silva, that Silva knew who had signed union cards. We are not satisfied that Sepejak was not moved to oppose the union and to circulate a petition because of what he learned from Silva, that management was aware of the union, and of those who had signed union cards. Sepejak could well have initiated and circulated the petition out of a desire to respond to management's awareness of and concern about the union. We are not satisfied that the petition is voluntary on this basis as well.

44. Both the granting of the individual bonuses and the process during which the bonus che­ques were handed out were extraordinary actions on behalf of this employer. Prior meetings with employees had taken place collectively, rather than on a one-on-one basis, and there had been no meetings with either Simpson or John Payne and individual employees prior to the meetings during which the cheques were given. When the bonus cheques were handed to employees, the union organizing campaign was discussed by a senior manager. The circumstances of and discussions dur­ing these meetings would quickly have become known by other employes. These meetings would likely have conveyed to them that management was opposed to the union, and that management was prepared to pay some money to support its opposition, and accordingly we cannot accept the voluntariness of the petition for this reason also.

45. After these three series of events, the petition originates and Sepejak begins to obtain signatures. Although most of the people signing actually signed outside the restaurant premises, arrangements for most of those signatures were made by Sepejak on the premises, during periods when Sepejak was not working. Though unusual for him to be on the premises on such days, for several days in procession, he spent large amounts of time sitting in the restaurant, talking to indi­vidual employees, and then leaving the restaurant for short periods in order to obtain signatures. During some of these lengthy periods in the restaurant, Sepejak sat at the bar, drinking coffee and talking to his girlfriend, with the full awareness of management that he was doing this, and with the knowledge of other employees that management must have been aware. Management did nothing to prevent Sepejak from sitting at the bar, despite the well known policy that employees were not to sit at the bar and drink or eat when they were off shift, and despite employees' awareness that management had been strictly enforcing this policy. Again, the likely perceptions of employees would have been that management was condoning Sepejak's behaviour in collecting signatures from within the employer's premises, and employees would have understood that management was thereby opposed to the union and prepared to allow special dispensation for employees similarly opposed. Again, at this point the bonus cheques had been distributed, Payne had discussed the union with employees, and Degroote had already held his meetings with the three employees.

46. Whether any employee would perceive that the names on the petition would come to the attention of management, given Peter Degroote's known involvement in the petition, and the fact that his brother was manager (and that they lived in the same house) is unnecessary for us to decide given our decision on the other grounds discussed above.

47. In all these circumstances and for all these reasons, we are not prepared to conclude that the petition represents a voluntary expression of the wishes of the employees signing it, and accordingly we give no weight to that petition.

48. We turn now to a consideration of the unfair labour practice complaints. The three sec­tions alleged to have been breached by the respondent read as follows:

49. 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.

50. 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 officer or representative of a trade union or to cease to exercise any other rights under the 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.

71. The Board was referred to several cases, one of which is particularly apposite. In J. Pas­cal Inc., [1985] OLRB Rep. July 1075, in somewhat similar circumstances the Board stated as fol­lows:

72. This is not a case where it is alleged that union supporters were discharged or penalized in any way. Rather, the union relies solely on the statements made by management officials. The Act does not require that an employer stay neutral during a union organizing campaign. To the contrary, section 64 expressly states that nothing in the section 'shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, threats, prom­ises or undue influence'. Where the difficulty arises is in trying to draw the line at which an expression of views by an employer becomes "coercion, threats, promises or undue influence", which are prohibited by the section. As noted in the Dylex Limited case, [1977] OLRB Rep. June 357, in seeking to establish where the line lies, the Board starts with the presumption that employees recognize that employers are generally not in favour of having to deal with employ­ees through a trade union, and that, therefore, it ought not to surprise them if their employer indicates that he would prefer it if they did not support the union. On the other hand, however, the Board is also aware that an employee may be particularly vulnerable to employer influences. An employer cannot, when expressing his views, make statements that may be reasonably con­strued by employees to be an attempt by means of coercion, intimidation, threats, promises or undue influence to interfere with their freedom to join and support a trade union of their choice.

73. Although we are of the view that in their discussions with employees neither Mr. Wilson nor Mr. Pittarelli directly threatened any employee, we are deeply concerned about their conduct in speaking with employees on a one-to-one basis about the union. We do not believe that much turns on the question of whether Mr. Ross and Miss Crisman were actually asked if they had joined the union. It is clear that management engaged them in one-on-one discussions about the union in which management was likely to ascertain whether or not they were union supporters. It is acknowledged that Mr. Pittarelli asked both Mr. Ross and Miss Crisman why they had joined the union. The action of senior management in talking with individual employees about the union and indicating management's opposition to the union likely had a greater impact on the employees than if they had been addressed as part of a larger group or if they had read man­agement's views in a printed letter. In this regard we view as noteworthy Mr. Pittarelli's testi­mony that at the commencement of his meeting with Miss Crisman, she commented that she should have listened to her mother and stayed away from unions. The implication we gather from this comment is that because of the interest shown in her by management relating to the union, Miss Crisman concluded that somehow she had acted improperly in involving herself with the union. In our view, the actions of Mr. Pittarelli and Mr. Wilson in engaging in one-on-one discussions with Mr. Ross and Miss Crisman about the union involved an interference with their right to select a trade union. We view their actions as an attempt to unduly influence employees which went beyond the freedom to express their views provided for in section 64 of the Act. In this regard we would adopt the following reasoning of the National Labour Rela­tions Board in the Peoria Plactic Co. case, 29 LRRM 1281.

Under the circumstances of this case, we find it unnecessary to determine whether or not, during the course of the private interviews with employees in the unit at their homes, the President and Vice-President of the Company threatened to close the plant or stated that they would never sign a contract with the Union. We find that the cumulative effect of the interviews, which admittedly established Employer's disap­proval of Petitioner, held with a majority if not all, employees in the unit immediately before the election, was to interfere with a free choice of bargaining representative regardless of the non-coercive tenor of the Employer's actual remarks. While we have made it clear, that absent unusual circumstances, both Employers and Unions are free to use any legitimate methods of electioneering, we have, at the same time, consist­ently condemned the technique of calling all or a majority of the employees in the unit into the Employer's office individually or calling upon them at their homes to urge them to reject a union as their bargaining representative as conduct calculated to interfere with the free choice of a bargaining representative regardless of whether or not the Employer's actual remarks were coercive in character.

In all the circumstances, we find that Mr. Wilson and Mr. Pittarelli, and through them the res­pondent, violated section 64 of the Act. We do not, however, believe that their statements also amounted to violations of sections 66 and 70.

35. During the individual meetings demanded by John Degroote, he specifically discussed the union, and asked each employee what was going on with respect to the union organizing cam­paign in the restaurant. In his meeting with Vollbregt, he identified the three union organizers and told her he knew she had signed a card. That both Vollbregt and Degroote considered themselves more than mere acquaintances does not excuse such conduct. Unilaterally imposed conduct which is otherwise an unfair labour practice does not become innocent and blameless because of an exist­ing friendship between two people. (We do not suggest that Degroote and Vollbregt were other than friends.) From those interviews, employees would clearly have viewed and understood man­agement to be opposed to the union, and given Degroote's manner and clear indication that he took personally the entire union organizing drive, employees would further have understood that they had somehow acted improperly if they supported the union. We also view those interviews as a clumsy attempt by Degroote to ascertain whether the employees he spoke to were for or against the union, and as presenting a message to all employees, that management was going to make some attempt to ascertain whether specific employees had joined the union, or alternatively, what specific employees knew about the union organizing drive. These conversations, their tenor and their content, were designed in part to either put pressure upon employees to oppose the union, or alternatively, exert undue influence upon employees to disclose to management the substance and extent of the union organizing drive. Holding the meetings for either of these purposes, or convey­ing during those meetings either of these management concerns or objectives, constitutes a viola­tion of sections 64, 66(c) and 70.

36. Turning to the meetings held with individual employees, during which employees were given their bonus cheques, Simpson testified that although he discussed various problems with the employees, in the three meetings he held the union was not discussed nor was it mentioned. The timing of events, Simpson's evidence that he decided on the bonuses March 12 but said nothing to Degroote about them until after he knew about the union drive, and the fact that Payne did discuss the union in these meetings, raise some suspicions about what occurred in the meetings held by Simpson. However, we found him to be a credible witness and on balance we accept his evidence, and are satisfied he did not discuss the union in any respect during his meetings with individual employees.

37. However, regardless of whether the union was discussed during meetings when the bonuses were paid, we find that those meetings and payments, together, constituted breaches of section 64 of the Act. Employees barely knew Simpson and Payne, as both had been based in Ottawa until the end of February. Employees had never had individual meetings with either of them, nor had they ever received such bonuses before. Although Simpson made the decision that bonuses were to be paid before he knew of the union drive, there was no evidence he decided to hold the one-to-one meetings before he became aware of the drive. We do know he announced to Degroote and the employees his intention to pay the bonuses only after he knew of the organizing. In these circumstances, we are satisfied that the scheme of payment of the first-time gratuitous bonuses, given by a relatively unfamiliar senior manager during a one-to-one meeting of a kind never before held with the individual employees, was a scheme designed in part to exert influence on employees to oppose the union. That Payne, at least, discussed the union when he met with employees is confirmatory of this conclusion. As the United States Supreme Court noted in NLRB v Exchange Parts Co. [1964], 375U.S. 405 (per Harlan J.):

"The danger inherent in well timed increases is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow, and which may dry up if it is not obliged."

Management chose to use a "carrot" rather than a "stick", but in the circumstances it was still undue influence, and accordingly was a breach of the Act.

38. We turn now to remedial relief. We have found that the petition was not voluntary, and we therefore give no weight to it. The applicant's right to certification cannot be affected by the Board's ultimate decision respecting the individuals in dispute with respect to their inclusion or exclusion from the bargaining unit, as discussed in the prior decision of the Board in these pro­ceedings. On the basis of all the evidence before us, the Board is satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on April 4,1986, 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 said Act.

39. Therefore, pursuant to the Board's discretion under section 6(2) of the Act, and pend­ing the final resolution of the description of the bargaining unit, the Board certifies the applicant for all employees of the respondent in the Municipality of Metropolitan Toronto, save and except managers and those above the rank of manager. The individuals identified as in dispute in the prior Board decision of April 16, 1986 will remain excluded from the unit until such time as the parties agree to their disposition, or until the Board Officer has completed his or her inquiry and the Board has resolved their status and the description of the bargaining unit. A formal certificate must await a final determination of the appropriate bargaining unit.

40. With respect to the breaches of the Act, we again refer to J. Pascal Inc., sup ra:

41. This is not a case where the employer has threatened the job security of employees should they decide to join a trade union. Neither is it a case where the employer has engaged in a pat­tern of misconduct which would undermine the confidence of his employees in the viability of the Act and the protections afforded them in the exercise of their rights under the Act. In addi­tion, the evidence falls far short of establishing that the employer's conduct brought the union organizing campaign to an end. Apart from the possibility that "some" employees may have been telephoned after this time, it is clear that Mr. Frechette stopped meeting with employees in an attempt to get them to sign union cards. A substantial number of bargaining unit employees were never contacted at all by Mr. Frechette. In our view, this is not a case where it would be appropriate to certify the union pursuant to the extraordinary provisions of section 8.

The case before us is similar to the J. Pascal case in that this is not a case in which the respondent has threatened the job security of employees, nor a situation where the respondent has engaged in a pattern of misconduct seeking to dissuade employees from the exercise of their rights under the Act. What has occurred rather, are isolated incidents of various officers of the employer commit­ting breaches of the Act, in their desire to stem the union organizing flow. Having regard to our finding that the respondent has violated the Act, the respondent should be required to post notices advising employees that the Board has found it to be in violation of the Act and also advising employees of their rights under the Labour Relations Act. Accordingly, the respondent is directed to post signed copies of the notice marked "Appendix" to this decision in conspicuous places where they are likely to come to the attention of employees in the bargaining unit, 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 complainant so that it can satisfy itself that this posting requirement is being complied with.

41. This concludes a consideration of the merits of this proceeding, and we turn finally to an issue concerning the admissibility of certain evidence with respect to the petition. At the hearing, after hearing the evidence of the respondent's first two witnesses, counsel for the respondent sought to call a third and final witness. Counsel for the respondent indicated he wanted to call this witness for the sole purpose of questioning her with respect to custody of the petition during the period when she had sole possession, and further, that he only decided to call her as a witness because of the impression he had formed from settlement discussions that occurred after the com­mencement of the hearing. The Board ruled that it would not allow this witness to be called by the respondent. Counsel for the respondent thereupon indicated he had no further evidence to call, subject to his express reservation that he objected to the Board's decision and that he would be requesting that the Board reconsider its decision in that regard. The evidence being concluded, final submissions were entertained, and the Board adjourned the proceedings, reserving its deci­sion.

42. Prior to rendering the decision set out here above, the Board received a request for reconsideration from counsel for the respondent, seeking reconsideration of the ruling preventing him from calling the witness in question, and asking that the hearing be reopened to allow him to do so. Having considered the submissions in support of this request, and the submissions of coun­sel for the union in response, we decline to reopen the hearing to allow counsel to call the witness.

43. Counsel for the respondent indicated in his submissions at the hearing that the sole pur­pose of calling the witness to testify was to fill in the gap with respect to custody of the petition. In reaching our decision, we have not found it necessary to consider whether concern over custody of the petition might render it involuntary. For the other independent and unrelated reasons set out above, we have concluded that the petition is involuntary, and the witnesses' testimony, as counsel submitted at the hearing, would not have touched on the reasons we have found the petition to be involuntary. Whether or not we were correct in not allowing the witness to be called, the evidence we were advised she would have given would not in any manner touch on our decision and the con­clusions we have reached. Even if we had no concern about custody of the petition, we would still find the petition to be involuntary and the respondent to have breached the Act as it did. To hear the evidence now would serve no purpose.

44. In his reconsideration request counsel raises for the first time additional, quite different, reasons for calling the witness. He thus seeks by way of reconsideration to raise matters he could have and ought to have raised when making his submissions at the hearing. The Board will not allow counsel to only now raise these matters as a basis upon which we should allow him to call the witness. Reconsideration is not an opportunity for counsel to raise new matters that could have been and should have been addressed at the hearing, and are only raised after the hearing for the first time. Further, even if we were to allow the respondent to call the witness to be questioned with respect to the new matters counsel now suggests she will attest to, that evidence would only touch on the circumstances under which Sepejak collected signatures, as discussed in ¶30, supra. If we accept as true all that counsel submits the witness would give evidence of, we would still find the petition involuntary, for the reasons set out in ¶'s 27 to 29, and still reach the same conclusions with respect to the section 89 complaint. Hearing her evidence would therefore only delay matters, to no useful purpose and we accordingly decline to reopen the hearing on this ground as well.

45. That concludes this stage of these proceedings. All that remains is the consideration and disposition of the individuals in dispute with respect to the bargaining unit. That matter, as noted above, is referred to a Board Officer. This panel is not seized.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I disagree with my colleagues on two matters. I would find that the petition is voluntary and the employer has committed no unfair labour practice.

2. With respect to the petition, the reasoning of the majority effectively nullifies the peti­tion process by objecting employees before the Board. Time and again the Board has stated that it logically follows that employees will feel that their employer is opposed to union organization. Now the actual existence of employer opposition to the union, (absent any other unfair labour practice), is enough to "taint" a petition and make it involuntary. If the standard is that an employer must not indicate to employees that it is opposed to the union, and must persuade the Board of that fact, then I suggest we should no longer invite employees to become involved in a process that could reasonably be described as a charade.

3. There is absolutely no evidence that Ms. Vollbregt was threatened or coerced at the meeting with Mr. Degroote. She testified that she was made uncomfortable and upset by the meet­ing because she felt Mr. Degroote was taking advantage of their friendship. She agreed that she had not been threatened or coerced by Mr. Degroote. It is noteworthy that what my colleagues describe as "a clumsy attempt by Degroote to ascertain whether the employees he spoke to were for or against the union", was done in contravention of the instructions given to Mr. Degroote by the employer.

4. My colleagues choose to disregard the effect of the evidence that:

(a) Messrs. Simpson and Payne arrived on the scene before the employer learned of the union campaign;

(b) Messrs. Simpson and Payne came to Toronto because they had learned of the employees' dissatisfaction with the effect that renova­tion work was having on their wages and tips; and

(c) The employer made the decision to pay bonuses before it learned of the union campaign.

5. With the reasoning of my colleagues, an employer in such a situation finds itself caught between the proverbial rock and a hard place. If the employer refuses to act on the expressed con­cerns of the employees then both employee morale and the business suffer. If it decides to pay bonuses and subsequently learns of a union campaign, it cannot rescind the decision. That would be an unfair labour practice. But when it pays the bonuses the employer representatives must not meet personally with the employees. Such actions become a "scheme", and the bonuses become a "carrot". Employers who find themselves in such a position must wonder how the Board perceives the problems involved in doing business in this Province. Can they no longer communicate with their employees once a union appears on the scene?

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE UNION FULLY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT. IN OUR ATTEMPTS TO INFLUENCE EMPLOYEES NOT TO SUPPORT THE UNION.

THE LABOUR RF[AT!ONS ACT GIVES ALL EMPLOYEES THE RIGHT:

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 AND ALL OF THESE THINGS.

WE ASSURE ALL OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

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

HAYLOFT STEAKHOUSE LIMITED

PER: ______________________________________

AUTHORIZED REPRESENTIVE

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

This notice must remain posted for 80 consecutive working days.

DATED this 7TH day of MAY 1987