Labourers' International Union of North America, Local 183 v. Zest Furniture Industries Limited, 1987 CanLII 3028

[1987] OLRB Rep. February 299

1457-86-R; 1562-86-U Labourers' International Union of North America, Local 183, Applicant, v. Zest Furniture Industries Limited, Respondent, v. Group of Employees, Objectors; Labourers' International Union of North America, Local 183, Complainant, v. Zest Furniture Industries Limited, Respondent

EFORE: Judith McCormack, Vice-Chairman, and Board Members F. W. Murray and B. L. lrmstrong.

APPEARANCES: Mark Zigler, Michael Block and Walter Ruszczak for the applicant/complainant; Roy Filion, S. Alosinac and M. Domitric for the respondent; Rolf Klingel for the objectors.

DECISION OF JUDITH McCORMACK, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; February 10, 1987

1. The name of the respondent is amended to read: "Zest Furniture Industries Limited".

2. This is an application for certification in which the applicant has invoked section 8 of the Labour Relations Act. Upon the agreement of the parties, the Board ordered that this application and a complaint filed by the applicant under section 89 of the Act be consolidated for hearing.

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

4. Having regard to the agreement of the parties and the manner in which the Board gen­erally describes bargaining units of this type, the Board finds that all employees of the respondent in the Municipality of Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, persons regularly employed for not more than twenty-hours per week and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining.

5. In accordance with the Rules of Practice respecting applications for certification the res­pondent filed a list of employees. The applicant took the position that seven people on that list should be excluded from the bargaining unit on the basis that they exercised managerial functions within the meaning of section 1(3)(b). The parties agreed to defer the appointment of a Labour Relations Officer to inquire into the duties and responsibilities of the seven challenged people until after the disposition of the application for certification and the section 89 complaint. To the extent that the employment status of some of the challenged people was relevant to the section 8 appli­cation, the parties led evidence on their duties and responsibilities during the course of the hear­ing. As it turned out, it was not necessary for the Board to make findings in this regard for the pur­pose of determining the matters before us.

6. Similarly, the parties agreed to defer the Board's inquiry into the circumstances of a petition filed by employees in opposition to the union. An application under section 1(4) of the Act, a constitutional challenge and allegations that the membership evidence was defective were withdrawn by the parties.

7. The respondent in this matter operates a furniture factory in Toronto in which approxi­mately 49 people are employed in the manufacture of custom furniture. The applicant union's organizing campaign commenced in July of 1986 when Steven Saunders, a machine set-up operator who had been employed by the respondent for approximately two years, contacted the union indi­cating that he and his fellow employees were interested in unionization. Mr. Saunders met with Walter Ruszczak, one of the union's business agents, and Mr. Saunders subsequently became the chief in-plant organizer.

8. A union meeting was scheduled for August 13, 1986 and Mr. Saunders undertook to notify other employees accordingly. At that meeting a number of employees signed union mem­bership cards. Mr. Saunders and another employee, Ken Farquharson, also volunteered at that time to canvass other employees and collect membership cards.

9. On August 14 and 15, Mr. Saunders approached a number of employees at noon hour and at breaks in the lunch area to suggest that they sign union cards. Donata Georgio, another employee, assisted him in this regard by speaking to employees in their own language. If employ­ees approached in this fashion wished to sign cards, Ms. Georgio would then pass them over to where Mr. Saunders was sitting and he would arrange for them to sign cards and pay their mem­bership fees. Mr. Farquharson was also approaching employees to convince them to join the union in this area, and was eventually successful in collecting several cards in other locations. The lunch area consists of an open space on the plant floor where a number of tables have been placed for employees. Mr. Saunders testified that he saw three of the respondent's lead hands, Angelo Dibla­si, Vinco Grbin and Nick Macchirulo watching these activities in the lunch area.

10. Steve Alosinac is the president and major shareholder of the respondent, and Martin Domitric is the plant manager. They first became aware that there were rumours about a union in the plant on August 14th or 15th of 1986, when a lead hand, Mr. Diblasi informed Mr. Domitric that employees were discussing a union at their lunch hour. Mr. Domitric then advised Mr. Alosi­nac accordingly and the two men discussed the matter briefly.

11. In the morning of Friday, August 15th, Mr. Domitric reprimanded Mr. Saunders for walking around the plant and talking to other employees during working hours. Mr. Domitric told the Board that he had received complaints from Mario Lontini, the lead hand in the finishing department, that Mr. Saunders had been in that department talking to people on work time.

12. At lunch hour that day, Ms. Giorgio had conversations with three employees who then signed union cards with Mr. Saunders. Several hours later, Ms. Giorgio was summoned to Mr. Domitric's office and told that she was being terminated because she had not successfully passed her probationary period. At that point she was five days away from the completion of her three-month probationary period.

13. On the morning of Monday, August 18, 1986, Mr. Saunders was transferred to another warehouse operated by the respondent under the name Rodenbury Investments Limited. This warehouse is located several miles from the plant and is staffed by only two people, Mr. Saunders, and a representative of an unrelated company which rents the warehouse space for the purposes of storing whisky for aging. At noon hour on that same day, Mr. Farquharson was sent home by Mr. Domitric because he was eating his lunch in the parking lot and subsequently terminated for that and other reasons. No membership cards were signed after August 15th.

14. This, then is the sequence of events which prompted the matters presently before the Board. Turning first to the matter of the section 89 complaint, the applicant alleges that the res­pondent has contravened sections 64, 66, and 70 of the Act by, among other things, discharging Mr. Farquharson and Ms. Giorgio, transferring Mr. Saunders and involving itself in the circulation o the petition in opposition to the union.

15. Mr. Alosinac testified with respect to the reasons for Mr. Saunders' transfer. He told the Board that the whisky storage warehouse had opened for the first time on August 14th and bar­riers of whisky started arriving on August 15th. He required an employee who could read and write English fluently to work in the warehouse, and he first selected another employee, Mark Taber, for this position. However, Mr. Taber did not have his own car, which emerged as a problem on his first day of work, August 15th, as he could not get rides to and from work with the whisky man­ufacturer's trucks as Mr. Alosinac had first assumed. The warehouse area is not serviced by public transportation.

16. On Monday, August 18th, Mr. Alosinac approached Mr. Domitric in the morning to see whom else he could suggest who had both the necessary qualifications and his own car. Only approximately 5% of the respondent's employees meet these criteria. Mr. Domitric recommended Steven Saunders and Mr. Alosinac went to Mr. Saunders, explained the situation and told him to follow him out to the warehouse. During the time Mr. Saunders worked at the warehouse, he was paid by Rodenbury Investments Limited.

17. Mr. Saunders testified that Mr. Alosinac collected him on Monday morning at 9:20 and took him out to the new warehouse. The transfer was so sudden that Mr. Saunders' foreman, Matt gray, was not aware of it until Mr. Saunders called him that night and advised him. Initially he received no instructions with respect to his new duties and for the first two or three days "watched the planes fly overhead" until a representative from the whisky manufacturer showed him what to do. Even then the duties were undemanding, consisting of counting whisky barrels when they arrived and signing for them. As a machine set-up operator, Mr. Saunders is one of the more skilled employees in this workforce.

18. Mr. Domitric, who effectively chose Mr. Saunders for the warehouse position, was a terse and unforthcoming witness. He claimed that he was unaware of which employees were involved in the organizing campaign at the time of both the transfer and the two subsequent discharges and reiterated during his testimony that he was "not even interested" in finding out. How­ever, the source of his information was Mr. Diblasi, who was clearly aware of the three grievors' involvement as a result of his observation of the lunch area. Whether or not Mr. Diblasi was him­self a member of management, there is little question that he was providing information to Mr. Domitric at the time. We find it implausible that Mr. Diblasi would feel the need to report to Mr. Domitric on the events in the lunch area which were of obvious interest to the respondent but would say to him only that employees were discussing a union at lunch, as Mr. Domitric maintains.

19. Mr. Domitric also claimed that he did not know what Mr. Saunders was talking to other employees about when he warned him to stop doing so on Friday morning. Again we find this isingenuous on Mr. Domitric's part, even if his own version of Mr. Diblasi's report is accepted. Moreover, Mr. Domitric's testimony conflicted with that of Mr. Alosinac in this general area; while Mr. Alosinac admitted that he and Mr. Domitric "guessed" that Mr. Saunders was involved on the union's activities after August 19 when the application for certification arrived, Mr. Domitric denied knowing of Mr. Saunders' involvement even at that point. Both Mr. Alosinac and Mr. Domitric told the Board that their lack of concern stemmed from the fact that they did not take the rumours of the union seriously. However, it must have been obvious from the activity in the lunch­room that the campaign was well beyond the point of mere rumours, and in this context we find their assertions unconvincing.

20. Mr. Domitric testified that his posture of uninvolvement was the result of his experience with a previous employer who was found by the Board to have engaged in unfair labour practices. However, his assertions are not consistent with other evidence before us, notably that of Steve Drvaric, another employee of the respondent who testified that Mr. Domitric had approached him to sign a petition against the union. Although Mr. Drvaric participated in the union campaign to the extent of approaching one employee to sign a card after Mr. Saunders was transferred, he was clearly uncomfortable in this role and he was also a countryman and personal friend of Mr. Domi­tric's. We found Mr. Drvaric to be a more credible witness than Mr. Domitric and where their evi­dence conflicts, we accept the evidence of Mr. Drvaric.

21. We do not doubt that Mr. Alosinac required an employee at the whisky warehouse. However, we cannot avoid the conclusion that Mr. Domitric and Mr. Alosinac were aware of Mr. Saunders' central role in the organizing campaign at the time he was transferred. This knowledge and their lack of candour, coupled with the timing, manner and circumstances of his transfer, lead us to the conclusion that the reasons for his removal from the plant were not free from anti-union animus.

22. Evidence was given by both Mr. Alosinac and Mr. Saunders with respect to a loan made by the former to the latter to enable Mr. Saunders to buy new tires for his car when his old tires were slashed in an unrelated incident. We do not find this inconsistent with our conclusion. Aside from the fact that transportation to the warehouse was essential, it seemed that Mr. Saunders was a relatively skilled employee in the plant and that there was some rapport between Mr. Alosinac and him. This does not mean that Mr. Alosinac and Mr. Domitric refrained from interfering in the union's campaign; rather, it is consistent with the fact that the steps taken in the case of Mr. Saun­ders were not as personally detrimental as those taken in the case of the other grievors. In these circumstances, we conclude that effectively quarantining the chief union organizer constituted unlawful interference by the respondent in the applicant's campaign.

23. The discharges of Ms. Giorgio and Mr. Farquharson are more difficult matters. Mr. Domitric testified that he was responsible for the decision to terminate both employees. Ms. Gior­gio was hired on May 20, 1986, and Mr. Dominic told the Board that there were complaints about her work from the first week of her employment. As a result, she was transferred through a num­ber of areas in the plant. In each new area, he testified, there were either further complaints or he observed problems with her work. As a result, in August he decided to check on the expiry date of her probationary period. When he ascertained that there were several days remaining, he termi­nated her on August 15, 1986. Mr. Domitric stated that he had discussed the problems with Ms. Giorgio's work with her on a number of occasions, an assertion that Ms. Giorgio disputes. She tes­tified that she was moved through the plant because the level of work fluctuates in each area and she was moved when another employee was required in an area.

24. Mr. Domitric produced a list of probationary employees fired between June 20th and August 15th of 1986 which showed the duration of their employment. Although he advised the Board that there was no pattern to the length of unsuccessful probationary periods, we note that the other three employees listed were only retained for 17 days, 25 days and 25 days, respectively. None were discharged after 87 days of employment as in Ms. Giorgio's case, and we do not find the fact that part of that period was vacation satisfactorily explains this discrepancy. Our concern in this regard is reinforced by the timing of the discharge. If there were complaints and problems associated with Ms. Georgio's work from the first week of her employment, and if those problems persisted to the extent Mr. Domitric maintains, we find it curious that she was not discharged until several hours after she persuaded three employees to join the applicant union. Looking at the evi­dence as a whole, we find that the respondent has failed to satisfy us on the balance of probabilities that the reasons for Ms. Georgio's discharge were untainted by anti-union motives.

25. Turning to the discharge of Mr. Farquharson, Mr. Domitric testified that a week prior to his termination he had found Mr. Farquharson eating his lunch in his van in the parking lot. At t lat time he had told Mr. Farquharson not to do so in the future because there had been com­plaints about litter in the parking lot by the respondent's industrial neighbour. As well, Mr. Domi­t ic did not want the plant doors left open. If Mr. Farquharson wanted to leave the plant during 11 inch time, Mr. Domitric also told him to punch out. When he found Mr. Farquharson again eat­ing his lunch in his van on August 18th without having punched out, he told the Board that he tried to warn him again. At that point, Mr. Domitric testified that Mr. Farquharson turned away from him and told him to get lost. Mr. Domitric instructed him to punch out and go home, and that he would let Mr. Farquharson know when he could come back. He advised the Board that he subsequently examined Mr. Farquharson's file and saw a number of absences and late arrivals on his record. As a result, he decided to discharge him. The reasons he gave for the discharge were insubordination, poor work performance and absenteeism. When Mr. Farquharson called the next day to inquire about his status, Mr. Domitric told him that he was fired.

26. Mr. Farquharson was a candid witness who volunteered information that was not neces­sarily in his interests. He acknowledged that Mr. Domitric had previously warned him against eat­ing lunch in his van and that he was eating lunch again in his van on the day Mr. Domitric sent him home. His description of the conversation tallies with Mr. Domitric's, except on two points; Mr. Farquharson denied telling him to get lost and when Mr. Domitric advised him that he was fired, Mr. Farquharson testified that he did not mention insubordination.

27. Having had the opportunity to assess the credibility of both Mr. Domitric and Mr. Farquharson with respect to this sequence of events, we find the evidence of Mr. Farquharson to be ore reliable and we therefore reject the contention that Mr. Farquharson told Mr. Domitric to get lost. The remaining reasons advanced for Mr. Farquharson's discharge consist of an immediate but relatively trivial incident of insubordination (eating lunch in his van), together with his past record.

28. The records submitted by the respondent show that Mr. Farquharson had been absent once during his employment period of five months although he was frequently late. However, his records also show that his lateness problem commenced the day after he was hired and was consistent throughout the duration of his employment. We find it difficult to reconcile the respondent's tolerance of his lateness in the past with the significance subsequently accorded to it in the decision to fire him. While there was some evidence that Mr. Farquharson had been spoken to about his lateness, it seems clear that he would have passed the three-month probationary period established in evidence with at least ten late arrivals and one absence.

29. The remaining reason relied upon by the employer was a verbal warning issued several nonths earlier in regard to Mr. Farquharson's productivity. Taken as a whole, we do not find this ecord convincing when recruited in support of the employer's reasons.

30. The fact that Mr. Farquharson was eating his lunch in his van again after Mr. Domitric's yarning is not insignificant. However, Mr. Domitric testified that his initial response was simply to yarn him again and it was not until Mr. Farquharson allegedly told him to get lost that he sent him iome. Even then, he was not fired until further reflection by Mr. Domitric. In the circumstances of his case, we find it difficult to avoid the conclusion that Mr. Domitric took the opportunity pre­.ented by Mr. Farquharson's infraction to discharge him for other anti-union reasons as well.

31. It is true that Mr. Farquharson kept a lower profile with respect to his union activities than either of the other two grievors. However, there is no question that he was soliciting cards and, according to Mr. Saunders, he was approaching employees in the same work area which was under observation by the three lead hands, including Mr. Diblasi. Although the evidence is not unequivocal, in the circumstance of this case we conclude on the balance of probabilities that Mr. Farquharson's discharge was not free from anti-union animus.

32. To summarize at this point, we find that the employer has violated sections 64, 66 and 70 of the Act with respect to the transfer of Mr. Saunders and the discharges of Ms. Giorgio and Mr. Farquharson.

33. Before the Board will exercise its discretion to certify a union under section 8, three conditions must be met. It must be established that there has been:

(1) an employer contravention of the Act, so that,

(2) the true wishes of the employees are not likely to be ascertained; and

(3) that the union has membership support adequate for collective bargaining.

The first condition has been met by our findings above. The Board must now consider whether the second element of section 8 has been satisfied.

34. Before turning to our conclusions on this point, we wish to address an evidentiary prob­lem which arose with respect to the aspect of section 8. Counsel for the applicant sought to intro­duce evidence during the hearing as to statements made by other unnamed employees to a witness with respect to such other employees' feelings or responses as a result of the respondent's activi­ties. When counsel for the respondent objected, counsel for the applicant argued that such evi­dence was pertinent to the issue of whether or not the alleged employer conduct meant that the true wishes of employees were not likely to be ascertained within the meaning of section 8. He sug­gested that the alternative would be to summon the other employees as witnesses to provide direct evidence of their responses and that such a course of action would be both time-consuming and would reveal their identities and their views about union representation. In his view, section 111(1) was designed to protect employees from this kind of exposure.

35. Counsel for the respondent argued that the evidence in question was hearsay and that if the employees alleged to have made certain statements were not called as witnesses or even named, the disadvantages to the respondent in terms of cross-examination and reply were so signif­icant that the respondent would be deprived of a full opportunity of making its case. In addition, if the evidence could not be tested in the usual fashion, its probative value was so low as to militate against its admission.

36. The Board made the following oral ruling which counsel for the applicant requested be included in our written decision (Board Member Armstrong dissenting):

The evidence the applicant wishes to bring forward, while marginally rele­vant is of very limited value to the Board in its present form, that is, hearsay where the source is unidentified. Under the circumstances, we are not pre­pared to allow the applicant to pursue this line of questioning.

We now provide our reasons.

37. In examining whether the employer's contraventions have resulted in a situation where the true wishes of employees are not likely to be ascertained, the Board applies an objective rather than a subjective test. The Board described it in this way in Robin Hood Multifoods Limited, [1976] OLRB Rep. May 250:

In other words, it must be demonstrated by some objective measure that the contravention of the Act, whether by any overt act or subtle subterfuge is so perverse that the likelihood of a mean­ingful expression of employee views is lost.

[emphasis added]

38. In some cases, the Board has referred to the impact of employer misconduct on an "em­ployee of average intelligence and fortitude" (Wolverine Tube, Division of Calumet and Hecla of Canada Limited, 63 CLLC ¶16,296) while in others the bench mark has been expressed in terms of the "typical employee" (Seven-UP/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87). The Board will examine both the nature of the employer's misconduct and the circumstances in which it took p Lace, and its conclusions will vary depending on the specific mix of factors that it finds in any par­ticular situation.

39. Where the impact of misconduct is obvious, it may be that no demonstrative evidence will be required. As the Board noted in Robin Hood Multifoods, supra:

There may be occasions, however, where the contravention would so obviously undermine the likelihood of a free vote (such as a direct or implicit threat to employees' job security) that no demonstrative evidence need be adduced with respect to (whether the conduct was such that the true wishes of the employees were not likely to be ascertained].

40. In other cases, it may be useful for the parties to adduce facts which might enlighten the Board as to the effect of less obvious misconduct in the circumstances of a specific work place, including objective facts which may show that the impact of certain activities is enhanced or dimin­ished in the particular circumstances. But in all cases the test the Board uses will not be how or whether employee "A" or employee "B" was personally affected, but rather the likely impact of the misconduct on the typical employee. Consequently, it is neither necessary nor desirable for the parties to parade a series of employees before the Board to testify as to their individual responses or feelings as a result of the employer's activities.

41. Not only is such a procedure time-consuming and expensive, but the evidence proffered is often unreliable. (See Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848). The Board com­mented on this problem in Wolverine Tube, supra:

Our colleague, in his dissent, apparently takes the position that as there is no direct testimony from the employees themselves that they were in fact influenced by the conduct of the employ­er, there is, therefore, no evidence before us on which we can properly find that [a previous vote] did not disclose the true wishes of the employees. It is, of course, a trite principle in the law of evidence that no party is bound to prove all of its case by direct evidence. Reasonable and necessary inferences may and must be drawn from all the evidence adduced and that which is clearly inferable from the evidence it is much proved as if it had been established by direct evi­dence. Indeed, in reaching a decision as to whether or not employees have or have not been influ­enced by improper conduct on the part of a union or employer, the Board has often been con­strained to view the objective facts and overt acts of the parties with the reasonable inferences to be gathered from them, as more persuasive evidence of the true facts than the subjective assertions and counter assertions of employees, given in the presence of the union or employer, that they were or were not influenced or in what way, by the conduct in question.

[emphasis added]

42. Where such evidence supports the employer's point of view, the peculiar vulnerability of employees can result in a desire on their part to publicly associate themselves with their employ­er. As the Board commented in Brinks Canada Limited, [1982] OLRB Rep. Aug. 1140:

Firstly, the Board's procedures do not favour the taking of viva voce evidence from employees in the presence of their employer at a Board hearing as the optimal means of determining their wishes respecting union representation. The Board's jurisprudence has long recognized the nat­ural affinity of an employee to identify, publicly, at least, with the interest of his employer.

43. Indeed, where an employer has engaged in unfair labour practices, it may be difficult to know whether such testimony has itself been influenced by those activities. (See: Lorain Products (Canada) Limited, [1977] OLRB Rep. Nov. 734.)

44. Even where the evidence is brought out through union witnesses, it may be of little value when the Board has no way of knowing whether a witness is representative of other employ­ees. The fact that the views of a union stalwart remain unchanged does not tell the Board very much about the views of those who are less committed. The Board's task is to assess the impact of particular misconduct on the ability of a typical employee to express his or her wishes, that is, one who is neither unusually intrepid nor unusually timid.

45. Given that the value of this kind of evidence is marginal in the first place, hearsay evi­dence of a similar nature where the source of the hearsay is unidentified will be of even less assis­tance. Thus, the majority of the Board found that its probative value was so low that its disadvan­tages outweighed its utility.

46. The facts of the instant case lead us to the conclusion that the employer's violations have created a climate in this workplace in which the wishes of employees are not likely to be ascertained. The evidence establishes that three union activists in this matter were either abruptly discharged or transferred shortly after they commenced their union activities. The message that these actions would have vividly conveyed to employees was that supporting a union was a perilous undertaking. The respondent's actions go directly to the core of economic dependency which is the basis for an employee's vulnerability in the workplace. As the Board noted in DI-AL Construction Limited, [1983] OLRB Rep. March 356, at page 360:

A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made it clear to employees the depth of the respondent's opposition to the union and likely have created con­cerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employees are not likely to be ascertained in a representation vote. Accordingly I am of the view that the applicant should be certified pursuant to the provisions of section 8 of the Act.

47. The Board has found discharges of union supporters to give rise to a finding that employee wishes are not likely to be ascertained in a number of cases: see Dylex Limited, [1977] OLRB Rep. June 357, Riverdale Frozen Foods Limited, [1979] OLRB Rep. April 338, The Globe & Mail, [1982] OLRB Rep. Feb. 181 and Elbertsen Industries Limited, [1984] OLRB Rep. Nov. 1564.

48. In this case, the respondent's counsel argued, among other things, that since Mr. Saun­ders was reinstated to his former job by agreement of the parties on the last day of the hearing, his reappearance should serve to ameliorate any damage which may have been done by the employer's activities. Considering that the gap between Mr. Saunders' disappearance and his return was some two months, and the fact that Mr. Farquharson and Ms. Giorgio have not been reinstated, we do rot find this persuasive. Whatever curative effect Mr. Saunders' reinstatement may have produced not sufficient to undo the mischief that has been done to the ability of employees to freely express their wishes. The Board has come to a similar conclusion in circumstances where the cura­tive steps were far more extensive than that described here (see Elbertsen Industries Limited, supra). We are satisfied that the second element of section 8 has been established in this case.

49. Finally, we must consider whether, in our opinion, the applicant has membership sup­; ort adequate for the purpose of collective bargaining. The respondent's counsel pointed to the fact that only one person who signed a membership card also signed the petition and argued pervasively that this entitled the Board to conclude that the employer's conduct did not influence the wishes of union members. The voluntariness of the petition was deferred at the parties' request and as a result, there has been no finding in this regard. The only evidence we have before us with respect to the petition is that of Mr. Drvaric which we do not find reassuring in this respect. The fact that the petition was circulated after the two discharges and the transfer means that we have no way of knowing whether potential union members might have opted for the petition because it was the safest course of action in the climate of this work place. In other words, we find the fact of 1 he petition ambiguous and of little assistance one way or another. However, even assuming, with­out finding, that the petition was voluntary and that the lead hands are included in the bargaining unit, it is clear from the membership evidence filed that the applicant has the support of some 47% of employees. Under the circumstances, we are satisfied that there is membership support ade­quate for collective bargaining.

We therefore determine that the applicant be certified as the bargaining agent for the employees in the bargaining unit set out earlier.

51. Since we have previously determined the appropriate bargaining unit, a final certificate will issue. If the parties are unable to settle the question of whether the lead hands are to be included in that bargaining unit, they are entitled to pursue the matter by way of an application under section 106(2) of the Act (see Robin Hood Multifoods, [1985] OLRB Rep. July 1159).

52. Furthermore, since we have found that the respondent violated the Act, the Board hereby directs the respondent, pursuant to section 89:

a) to forthwith reinstate Donata Giorgio and Ken Farquharson to employ­ment to the positions that they held immediate prior to their discharge;

b) to pay to Donata Giorgio and Ken Farquharson compensation for their loss of wages and benefits;

c) to pay Donata Giorgio and Ken Farquharson interest on the compensa­tion ordered by the Board, such interest to be calculated in the manner described in Practice Note No. 13, dated September 1980;

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

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

53. The Board remains seized to resolve any dispute with respect to implementing these orders.

DECISION OF BOARD MEMBER F. W. MURRAY;

1. I dissent,

2. 1 do not share my colleague's doubts concerning the testimony of Domitric, the plant manager.

3. 1 believe the testimony of both S. Alosinac and M. Domitric concerning the temporary transfer of Saunders to the whisky warehouse operation.

4. I also believed the testimony of M. Domitric concerning the terminations of both Far­quharson and Ms. Giorgio.

5. Accordingly, I would not have found the transfer of Saunders and the discharges of Ms. Giorgio and Mr. Farquharson to be in violation of sections 64, 66 and 70 of the Act. It follows therefore that I would not have certified the applicant under section 8 of the Act.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

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

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

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

TO ACT TOGETHER FOR COLLECTIVE BARGAININGG;

To REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT INTIM IDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL COIWERSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UN ION.

WE WILL NOT LAYOFF, DISCHARGE OR THREATEN TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE' 5 UNION ACTIVITY OR SYMPATHIES.

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

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

ZEST FURNITURE INDUSTRIES LIMITED

PER: _______________________________

(AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 60 consecutive working days.

DATED this 10th day of FEBRUARY . 1987.