Great Lakes Fishermen and Allied Workers' Union v. 538391 Ontario Limited c.o.b. as Peralta Foods - Ilda C., 1987 CanLII 3081

Ontario Labour Relations Board

[1987] OLRB Rep. September 1162

1573-86-U Great Lakes Fishermen and Allied Workers' Union, Complainant v. 538391 Ontario Limited c.o.b. as Peralta Foods - Ilda C., and Vito Peralta, Res­pondents

BEFORE: Robert D. Howe, Vice-Chair, and Board Members J.A. Rundle and H. Peacock.

APPEARANCES: Paul Falzone and Mike Darnell for the complainant; R. G. McLister and Vito Per­alta for the respondent.

DECISION OF THE BOARD; September 24, 1987, as amended October 7, 1987

1. The name of the corporate respondent is amended to "538391 Ontario Limited c.o.b. as Peralta Foods - Ilda C". (For ease of reference, that respondent is also referred to in this decision as the "Company".)

2. This is a complaint under section 89 of the Labour Relations Act in which the complain­ant (also referred to in this decision as the "Union") alleges that Antonio Santos, Antonio Fialho, Jose Palhaca, Jose Coutinho, Ildebrando Guardado, Joao Borda D'Agua, and Joaquim Paparola have been dealt with by the respondent contrary to sections 66, 70, and 79 of the Act.

3. During the thirteen days of hearing which were devoted to this complaint, the Board heard the evidence of sixteen witnesses. In addition to that oral testimony, the Board also has before it 34 exhibits which were entered during the course of these proceedings. It is unnecessary to detail that testimony and the contents of those exhibits. It is sufficient to note that in making the findings of fact set forth in this decision, the Board has carefully considered all of that oral and documentary evidence, the submissions of the parties concerning that evidence, and such factors as the firmness of the witnesses' respective memories, their ability to resist the influence of self-inter­est to modify their recollections, the consistency of their evidence, their capacity to express their recollections clearly, and their demeanour. We have also assessed what is most probable in the cir­cumstances of the case, and considered the inferences that may reasonably be drawn from the totality of the evidence.

4. The respondent corporation is a fishing company owned by Vito Peralta and his father, Salvatore Peralta. Since the latter is retired and does not play an active role in the operation of the Company, it is directed, managed, and controlled by its President, Vito Peralta. The Company's major asset is a fishing vessel named the "Ilda C". Vito Peralta and Salvatore Peralta agreed to purchase that boat and its fishing gear from Adriano Codinha, the owner of Saco Fisheries Lim­ited, in August of 1983. The respondent corporation was incorporated in September of 1983 to provide a corporate vehicle through which that purchase could be carried out. However, the sale was not completed until December of that year, when the (Ontario) Ministry of Natural Resources (the "MNR") approved the transfer of fishing licence CH0342 ("342"), which had historically been fished by the "Ilda C". That licence was transferred to Vito Peralta and Salvatore Peralta personally, rather than to the Company. Nevertheless, the income generated by means of that licence has been included in the Company's financial statements, and it has been treated by its owners as an asset of the Company at all material times.

5. Although it was initially contemplated that the Company would show a profit, the imposition of quotas on various species of fish by the MNR (in March of 1984) prevented the Com­pany from generating sufficient revenue to be profitable. During the summer of 1985, the Com­pany's accountant recommended that Vito Peralta and Salvatore Peralta liquidate the Company's assets and terminate its operations. However, it is apparent from the totality of the evidence that the Company's profitability was not their only concern. At all material times, Vito Peralta and Sal­vatore Peralta also each owned (through a holding company) a fifty per cent interest in Etna Foods of Windsor Limited ("Etna"), which employs over sixty persons to process the fish caught by the "Ilda C" and approximately nineteen other boats, including others (the "Peralta boats") in which members of the Peralta family have a financial interest. Etna is profitable, but needs reliable sources of fish in order to maintain its profitability. Thus, Vito Peralta decided that the "Ilda C" would continue to operate in 1986 notwithstanding its unprofitability. Two other Peralta boats were also on the water during the 1986 fishing season: the "Mummery Brothers" and the "F.B. Clay". (Three other Peralta boats did not fish that year: the "Leanic", the "Mar Paula", and the "Lee Jay".)

6. Antonio Santos is an experienced fishing boat captain, who obtained a captain's licence in Portugal in 1968. He came to Canada in 1976. After working as a fisherman for approximately three months, Mr. Santos went to Ohio, where he served as the captain of a fishing vessel for four years. After that he returned to Canada and captained the "A.B. Hoover" for (Mr. Codinha's) Saco Fisheries Limited for three fishing seasons (1981, 1982, and 1983). In 1984, Mr. Santos became the captain of the "Bessy Ann". He remained the captain of that boat until it stopped fish­ing in the late summer or early fall of 1985, when its quota for that year was exhausted. Mr. Santos was introduced to Vito Peralta a few months later by Mr. Borda D'Agua. Through discussions between Messrs. Peralta and Santos in November of 1985, it was agreed that Mr. Santos and his crew would go out on the "Ilda C" for two or three weeks to fish the remainder of the (1985) bass and pickerel quotas on 342.

7. There are a number of conflicts in the evidence concerning the arrangements which were made between Vito Peralta and Antonio Santos during the winter of 1985-86 regarding the 1986 fishing season. Some of those conflicts undoubtedly resulted from the difficulties which they encountered in communicating with each other, due to the fact that Mr. Santos speaks Portuguese and knows very little English, while Mr. Peralta speaks English and Italian but knows very little Portuguese. On some occasions they were assisted in their communications by Tony Fialho (a deckhand on the "Ilda C", and one of the grievors in this complaint), Paula Santos (Antonio San­tos' daughter), or Anna Caradonna (Vito Peralta's sister, and a bookkeeper employed by various Peralta companies), each of whom served as an interpreter for them from time to time. We do not propose to detail the voluminous evidence which was adduced regarding those communications. It suffices to observe that we found neither the testimony of Antonio Santos nor the testimony of Vito Peralta to be completely reliable with respect to those communications, and various other matters pertinent to this complaint. Both of them appeared to us to be significantly influenced, in their recollection and recounting of events, by self-interest and by a strong desire to defeat the other's case. Ms. Caradonna also did not impress us as being entirely candid with respect to some matters, such as Vito Peralta's instructions to Mr. Santos concerning the fishing of the licences described below. We found Paula Santos to be a truthful witness, but her evidence is of limited value because her ability to recall a number of the pertinent details was rather limited. Tony Fial­ho, although also influenced to some extent by his personal stake in these proceedings, impressed us as a relatively candid and credible witness. Accordingly, we have generally relied upon his testi­mony in resolving conflicts between it and the testimony given by one or more of the afore­mentioned individuals. We also found Dolores Elias, another Peralta bookkeeper, to be a rela­tively reliable witness.

8. Having regard to the totality of the evidence, we find that through various discussions during the winter of 1985-86, Vito Peralta and Antonio Santos agreed to the following arrange­ments for the 1986 fishing season. Mr. Santos would captain the "Ilda C" with a crew of six other persons. Mr. Peralta would make available to Mr. Santos and his crew three licences: 342, a Kent County licence which (as described above) was the licence historically fished by the "Ilda C"; CHO211 ("211"), a Kent County licence owned by Salvatore Peralta, Vito Peralta, and his broth­er, Jerry Peralta, that had historically been fished by the "Leanic" (which was being taken out of the water in 1986 for a major retrofit); and AY265, an Elgin County licence. Under the terms of that arrangement, Mr. Santos and his crew were to receive forty-two per cent of the proceeds derived from the sale (to Etna) of the fish caught by them under those licences. That forty-two per cent was to be divided equally among the captain and his crew members. Etna was also to pay a packing charge of three cents per pound, with half of the packing charge being divided equally among the captain and the crew, and the other half going directly to the captain. In addition, the captain was to receive a five per cent "captain's bonus" at the end of the fishing season.

9. Licence 342 was placed aboard the "Ilda C" in March of 1986. After Mr. Santos and his crew had been fishing under that licence for about a month, Mr. Santos approached Vito Peralta (with Mr. Fialho along as an interpreter) to ask about 211. Mr. Peralta, who was surprised to hear that it was not already aboard the "Ilda C", instructed the office staff to locate 211 and give it to Mr. Santos. Since they were unable to find the licence at that time, Mr. Santos came back for it on the following day. Although Mr. Peralta and Ms. Caradonna testified that they were the ones who gave 211 to Mr. Santos, and that he was given instructions at that time by Mr. Peralta concerning how he was to fish it, we prefer the evidence of Ms. Elias and Mr. Santos that it was Ms. Elias who gave Mr. Santos 211.

10. Mr. Santos told the Board that AY265 was also placed aboard the "Ilda C" at or about that time. However, we do not find that evidence to be reliable. We are also unable to give cre­dence to his testimony that Mr. Peralta subsequently told him to bring AY265 ashore. His testi­mony in chief concerning that matter was that Mr. Peralta gave him that direction in the Etna office during the first week of August, in the course of a conversation in which Mr. Peralta asked him if the crew had signed for the Union, told him that Messrs. Fialho, Guardado, and Palhaca were the ones who were speaking most for the Union, and also told him that if he (Mr. Santos) wanted to fire them, he could do so. However, in cross-examination, Mr. Santos testified that the conversation occurred in July, while he was weighing fish in the factory. Moreover, in describing the conversation during cross-examination, he made no mention of Mr. Peralta having said during the course of that conversation that Messrs. Fialho, Guardado, and Palhaca were the ones speak­ing most for the Union, and that if he wanted to fire them he could do so. Those inconsistencies, combined with our general assessment of his lack of credibility and his tendency to modify or embellish his evidence with a view to advancing the Union's case, have led us to conclude that no weight can be given to that part of his evidence.

11. Vito Peralta testified that it was his intention that the "Ilda C" should exhaust the bass and pickerel quotas on 342, then utilize the bass and pickerel quotas on 211, then use the perch quota on 342, and then proceed to fish all of the quotas that remained uncaught under licence 211. He also told the Board that his desire to have 342 fished first was based upon the fact that he had a fifty per cent interest in that licence (and only a one-third interest in 211), and the fact that fish prices are generally higher earlier in the fishing season. However, some doubt is cast upon the validity of that second reason by the testimony of Adriano Codinha, who was called as a reply wit­ness by the respondents. When he was asked (by respondents' counsel) what the best parts of the (fishing) season were for fishing perch, he replied, "Spring and fall." He was then asked, "Is one generally better than the other?", to which he responded, "The fall, because the price is generally better." (He was not asked about the price of other species.)

12. It was Mr. Peralta's evidence that Mr. Santos was aware of the order in which he wanted to have the quotas under the two licences fished. However, we are satisfied on the totality of the evidence that Mr. Santos was unaware of Mr. Peralta's wishes in that regard. In reaching this conclusion, we have considered all of the circumstances, including the improbability that Mr. Santos would intentionally disregard such instructions when he was aware that the Company received written reports on a daily basis indicating (among other things) the poundage of each spe­cies caught and the licence under which it was caught, and was also aware that the bookkeepers kept careful track of that information. (In the circumstances of this case, we find it unnecessary to determine whether Mr. Santos' lack of awareness of Mr. Peralta's intentions regarding the licences resulted from a failure by Mr. Peralta to provide Mr. Santos with adequate instructions, or a fail­ure by Mr. Santos to comprehend what he was told by Mr. Peralta.)

13. On August 14, 1986, Mr. Santos sent Mr. Fialho into the Etna office to enquire about how much perch remained uncaught under the quotas on 342 and 211. Mr. Santos joined Mr. Fialho in the office a moment later. When she received such requests, Ms. Elias would provide the information on the day of the request if she was not too busy, or would provide it on the following day if she did not have time to do so on the day of the request. When Mr. Santos made that request through Mr. Fialho on August 14, Vito Peralta, who overheard the request, asked Ms. Elias to assemble the requested information right away. Five or ten minutes later she handed Mr. Peralta a sheet (Exhibit 9 in these proceedings) which contained the following information con­cerning pounds of perch caught and pounds of perch left to be caught on the two licences:

Quota

to left to catch caught catch

CH342

Perch 80978 20479 60499

CH211 74157 62670 11487 71986

After looking at the sheet, Mr. Peralta placed it on the counter in front of Messrs. Fialho and San­tos, and explained what had been caught and what was left to catch on the licences. When Exhibit 9 was placed before Mr. Peralta during his cross-examination by Union counsel, he told the Board that he did not think that he had ever seen it before. However, we do not find his evidence in that regard to be credible, and we are satisfied on the totality of the evidence that by August 14, if not before, Mr. Peralta was aware that Mr. Santos and the "Ilda C" crew had been catching perch pri­marily under 211 rather than 342. His failure at that time to make any suggestion to Mr. Santos that Mr. Santos had not been following his instructions indicates that Mr. Peralta did not consider it to be a matter of much significance.

14. The Union applied for certification as bargaining agent for the captain and crew of the "Ilda C" on July 23, 1987 (Board File No. 1292-86-R). In that application, the Union requested that a pre-hearing vote be conducted. The respondent received notice of that application from the Board in early August, and subsequently filed a reply to it. On August 15, 1985, at the pre-hearing vote meeting which was conducted by a Board Officer in respect of that application and the Union's application for certification pertaining to the two other Peralta boats which were on the water in 1986, Vito Peralta learned that everyone on the "Ilda C" (i.e., Mr. Santos and the other six grievors) had signed Union cards. He was also apprised at that meeting that four employees on the "Mummery Brothers" and four of the employees on the "F.B. Clay" had signed Union cards. (In his cross-examination by Union counsel, Mr. Peralta conceded that he "got the numbers that day" in respect of the "F.B. Clay" and the "Mummery Brothers", but also stated, "I don't recall what the numbers were." We do not find that statement to be credible; it is but one of several instances in which Mr. Peralta displayed a "convenient memory", by feigning forgetfulness in respect of matters which he perceived to be potentially harmful to the respondents' case.)

15. It was (and is) the Company's position in the certification proceedings that Mr. Santos should be excluded from the bargaining unit on the ground that he (allegedly) exercises managerial functions. After becoming aware at the pre-hearing vote meeting that Mr. Santos and all of his crew had joined the Union, Mr. Peralta telephoned Mr. Santos at home and told him that he was a member of management and was not supposed to join the Union. It was Mr. Santos' evidence that during that conversation, Mr. Peralta instructed him to discharge the crew. When he was recalled as a reply witness in respect of that conversation (which was not mentioned in the complaint), Mr. Peralta adamantly denied having given Mr. Santos any such instruction. Although the matter is not entirely free of doubt, we find it to be more likely than not that Mr. Santos misunderstood what Mr. Peralta said to him during that conversation. In reaching this conclusion, we have taken into account the aforementioned language difficulties which interfered with their ability to effectively communicate with one another. In this regard, we note that immediately following that conversa­tion, Mr. Santos telephoned Mr. Fialho, told him that he had had a conversation with Mr. Peralta, and then said to Mr. Fialho (in Portuguese), "Can you ask him what he said because I didn't understand." (In his testimony before the Board, Mr. Santos stated that he actually had under­stood what Mr. Peralta had said, and merely wanted Mr. Fialho to telephone him to confirm it. However, we do not find that evidence to be credible.) When Mr. Fialho telephoned Mr. Peralta pursuant to that request, Mr. Peralta said, "He [Mr. Santos] did understand, and I'm not going to tell you because you're a union member." We do, however, accept Mr. Santos' evidence, which was corroborated by Messrs. Fialho, Borda D'Agua, Guardado, and Palhaca, that Mr. Peralta referred to the "Ilda C" as the "union boat" in the weighing room of the Etna plant. This occurred on August 15 or 16, 1986. In this regard, we do not find to be credible Mr. Peralta's testimony that he does not recall ever saying that. Although the use of those words does not, by itself, demon­strate anti-union animus, Mr. Peralta's lack of credibility regarding that and various other matters is a factor to be taken into account in assessing the reliability of his evidence concerning his motiva­tion for the actions (described below) which gave rise to this complaint.

16. One of Ms. Elias' responsibilities is to inform the owners of a licence when a quota on their licence is nearing exhaustion. She generally does this at the point at which there are about 10,000 pounds left on it. The 1,007 pounds of perch caught by the "Ilda C" on 211 on August 18 brought the total poundage of perch caught on that licence in 1986 to 64,853. As noted above, the 1986 perch quota on that licence was 74,157 pounds. On the morning of August 19, Ms. Elias advised Vito Peralta that there was less than 10,000 pounds remaining on that quota. Mr. Peralta appeared to be troubled by that information, and told Ms. Elias that 211 was not supposed to be fished before 342. After Ms. Elias verified that it was 211, Vito Peralta informed Jerry Peralta of the situation and told him that the catch that had been recorded on 211 would have to be transfer­red to 342. This made Jerry Peralta angry because it meant that the money which had been cred­ited to him (through his fishery) in respect of the sale of the fish caught under the 211 perch quota would have to be repaid to the respondent corporation. He was also concerned that the price of perch might fall, resulting in a reduction of the income yielded by 211. However, he decided "not to make a big deal about it" because if he had been an owner of the "Ilda C", he would also have wanted the captain and the crew to fish 342 (i.e., the licence historically fished by that vessel) before fishing another licence. Thus, he acquiesced in the transfer of 56,486 pounds of perch from 211 to 342. (That transfer could not be made without the approval of the MNR. Vito Peralta con­tacted the local MNR office on August 19 and, following further discussions, obtained MNR approval for the transfer on or about September 3, 1986.)

17. While Vito Peralta and Jerry Peralta were arguing about the situation, Mr. Santos was called to the office. Mr. Fialho accompanied him to serve as an interpreter. As they entered the office they heard Vito Peralta and Jerry Peralta "screaming" at each other. When they asked Ms. Elias what was going on, she said, "Something with the licences. Vito will explain it to you." A few minutes later Vito Peralta came over to them and told Mr. Santos (through Mr. Fialho) that they had a "big problem" and were going to have to call the MNR because of the way in which Mr. San­tos had fished the two licences. When he asked Mr. Santos why he had not fished 342 and then 211, Mr. Santos said that he was unaware that Mr. Peralta had wanted him to fish 342 first, as no one had ever told him that.

18. During the course of his heated discussions with Vito Peralta on August 19, Jerry Per­alta indicated that he wanted 211 removed from the "Ilda C" and placed on another boat. His evi­dence concerning his motivation for making that request is not entirely credible. He initially testi­fied as follows: "I wanted my licence taken off the 'Ilda C'. The reason for that was his [Mr. Santos'] catches when we found out about the problem were very poor compared to other boats. I wanted my quotas caught." However, Jerry Peralta's assertion concerning the relative size of the "Ilda C's" catches is not borne out by the documentary evidence. Moreover, Jerry Peralta subse­quently contradicted that evidence by telling the Board that he was "not that much" concerned about how quickly his quota would be caught, and that "[ut was more the price of the fish" which was of concern to him, as fish prices sometimes decline later in the season. However, we do not believe that to have been Jerry Peralta's major concern, as it is clear that if the "Ilda C" had fished 342 first and then 211 as Vito Peralta intended it to, and as Jerry Peralta recognized to be appro­priate, the fish would not have been caught under 211 until relatively late in the season in any event. When he was asked if there were "any other reasons" why he wanted 211 removed from the "Ilda C", Jerry Peralta was unable to recall any. However, in response to leading questions by res­pondents' counsel he said that part of the reason was that he was upset by the actions of Mr. San­tos.

19. Vito Peralta testified that when Ms. Elias advised him that the perch quota on 211 was almost exhausted, he was "very, very angry" at Mr. Santos. However, he also testified that he did not really want to have 211 taken off the "Ilda C" and would like to have seen it continue to be fished by that boat, but decided to remove it because Jerry Peralta insisted that he do so. He also told the Board that if his brother had accepted 211 remaining on the "Ilda C", not much discipli­nary action would likely have been taken against Mr. Santos, and no disciplinary action would have been taken against the crew.

20. The grievors continued to fish on the "Ilda C" on August 20, 21, and 22. However, after they arrived at the plant on August 22, Messrs. Santos and Fialho were called to the office, where they were given a written direction from Vito Peralta (who was not present at the time) instructing them to "pull all nets and equipment out of the water and arrange to have everything returned to the twine shanty". (Considerable evidence was adduced concerning whether the docu­ment which was given to them at that time was Exhibit 21 or Exhibit 30. The wording of those two documents is substantially similar, but Exhibit 30 is typed in a more professional manner and does not contain the spelling and typographical errors which appear in Exhibit 21. In the circumstances of this complaint, we find it unnecessary to comment further upon that evidence as, in our view, nothing turns on it.)

21. August 23 was the last day on which the grievors fished on the "Ilda C". After the day's catch had been delivered to the plant, Mr. Santos asked Mr. Fialho to go into the office with him to speak with Vito Peralta. When they went into the office Mr. Fialho asked Mr. Peralta on behalf of Mr. Santos what was going to happen to them and the rest of the crew. Mr. Peralta responded that he was laying them all off and that they would have to wait until September 13, the day on which he anticipated that the pre-hearing vote would be conducted in respect of the Union's appli­cation for certification. He also said, "After that, we'll see.'

22. On August 27, the grievors went to the dock where the "Ilda C" was berthed. Mr. San­tos usually drives Messrs. Palhaca and Fialho and the other members of the crew to the dock in the Company's truck (which is also used to transport fish from the boat to the plant). On the morning of August 27, when Mr. Santos drove up to the residence of Messrs. Palhaca and Fialho, he told them that he was not going to give them a ride that day. Thus, they had to provide their own trans­portation. Mr. Santos took that action in order to teach them a lesson about the need for co-opera­tion, as they had failed to follow his instructions regarding some containers on the boat. After driv­ing to the dock in Mr. Palhaca's car and assisting the rest of the crew in transporting nets and other equipment from the "Ilda C" to the shanty, Messrs. Palhaca and Fialho went to talk to Vito Per­alta (at his greenhouse operation) to express concern about having not been given a ride to work, and to find out if Mr. Santos had been acting pursuant to Mr. Peralta's instructions. Mr. Peralta advised them that he knew nothing about it, and suggested that they raise the matter with Mr. San­tos in his presence at the shanty later that day. There is conflicting evidence concerning what tran­spired later that day when, in accordance with Mr. Peralta's suggestion, they raised the matter with Mr. Santos at the shanty in Mr. Peralta's presence. We do not find it necessary to detail all of the discrepancies in the evidence concerning what occurred at the shanty. It is sufficient to note that we believe neither Mr. Peralta's evidence that Mr. Santos told him at that time that he (Mr. San­tos) wanted to discharge Messrs. Palhaca and Fialho for this incident, nor Mr. Santos' testimony that Mr. Peralta told him at that time that if he wanted to discharge Messrs. Palhaca and Fialho, he could do so. Both witnesses appeared to us to be attempting to reconstruct those events in a man­ner which they perceived to be most likely to advance their strong desire to win this case. What­ever may actually have been said at that time, it is clear from the totality of the evidence that nei­ther Messrs. Palhaca nor Fialho were discharged, although they, Mr. Santos, and the rest of the grievors were laid off that day. In confirming their lay-off, Mr. Peralta reiterated that he would contact them after September 13.

23. The pre-hearing representation vote occurred on September 20 rather than on Septem­ber 13, as originally contemplated. The ballots were not counted at that time as the ballot box was sealed by direction of the Board (differently constituted). That panel of the Board subsequently ordered that the ballot box be opened and the vote counted (in an unreported decision dated Feb­ruary 24, 1987, in File No. 1292-86-R). In an unreported decision dated April 21, 1987 regarding those proceedings, that panel of the Board wrote, in part, as follows:

24. On the taking of the pre-hearing representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant, a result which would not have changed even if the single segregated ballot had been cast against the applicant....

By that decision, the Board certified the Union on an interim basis~ pending a final determination of the appropriate bargaining unit.

24. The grievors were not recalled in September after the pre-hearing representation vote, and had not been recalled as of July 30, 1987, the final day of the hearing of this complaint. The remainder of the (1986) quota on 211 was given to the "F.B. Clay". As indicated above, the "F.B. Clay" is another of the Peralta boats. Its captain is Vito Peralta's brother-in-law, Sam Barocco, who is also one of its part owners. The other persons who have a financial interest in that boat are Vito Peralta, Salvatore Peralta, and Joe Caradonna (the husband of Vito Peralta's sister, Anna). As further indicated above, Vito Peralta was aware at the time of the transfer that the Union was also attempting to organize that boat, but had only succeeded in signing up four of its crew mem­bers.

25. During his testimony on March 4, 1987, Vito Peralta told the Board that the "Ilda C" was for sale, and that 342 would likely be sold along with the boat, or "rented" to another boat. He suggested that it was unlikely that the Company would fish the "Ilda C" in 1987, as it had con­sistently lost money for four years and had no money for "start up". He also testified that "Etna Foods is at the point of not wanting to continue to support it." It was also his evidence that if the "Ilda C" did "start up", it would probably go out with a smaller crew. He further testified that he would replace the captain because he would not trust Mr. Santos with his boat again. As of July 30, 1987, the "Ilda C" had not fished at all during the 1987 fishing season.

26. As indicated earlier in this decision, one of the provisions of the Act which the com­plainant alleges to have been contravened is section 79. When it received notice from the Board of the Union's application for certification in early August of 1986, the Company, by virtue of section 79(2) of the Act, became legally obligated to refrain from altering terms and conditions of employ­ment, and any rights or privileges of the employees, without the consent of the Union. The obliga­tion imposed by that provision has frequently been described in the Board's jurisprudence as a requirement to carry on "business as before": see, for example, K-Mart Canada Limited, [1982] OLRB Rep. Jan. 64, and A E S Data Limited, [1979] OLRB Rep. May 368. In its frequently cited decision in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859, at paragraph 23, the Board wrote, in part, as follows:

The "business as before" approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit.

More recently, the Board has found it appropriate to consider the reasonable expectations of employees in determining rights and privileges which are frozen by section 79: see, for example, W.H. Smith Canada Limited [1986] OLRB Rep. June 920; Forintek Canada Corp., [1986] OLRB Rep. Apr. 453; Simpsons Limited, [1985] OLRB Apr. 594; and Simpsons Limited, [1985] OLRB Rep. Mar. 469. A finding of anti-union motivation is not essential in the context of section 79, as it is a strict liability provision.

27. The arrangements to which Mr. Peralta and Mr. Santos agreed for the 1986 fishing sea­son are described above in paragraph 8 of this decision. Those arrangements were not expressly or implicitly conditional upon the grievors fishing 342 first and then 211. Indeed, Mr. Santos and the other grievors were unaware of any such requirement at all material times. Vito Peralta caused the respondent corporation to substantially alter those terms and conditions of employment by remov­ing 342 and 211 from the "Ilda C", denying the grievors access to AY265, laying off the grievors at the onset of the height of the fishing season, and failing to pay Mr. Santos his captain's bonus. Those actions were a dramatic departure from "business as before"~ and were utterly inconsistent with the reasonable expectations of the grievors. The Union did not consent to any of those chang­es. Thus~ we find that the Company contravened section 79(2) of the Act by altering the grievors' terms and conditions of employment in the manner described above.

28. The complainant has also alleged that the respondents contravened section 66 of the Act. As noted by the Board in K & U Manufacturing Limited, [1986] OLRB Rep. Jan. 115, at paragraph 43:

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

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

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

The nature of the determination to be made in cases such as the instant case, and some of the fac­tors to be considered by the Board, were described as follows in the Pop Shoppe case, supra, at paragraph 5:

In cases such as these the Board is very often required to render a determination based on infer­ential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activi­ty, previous anti union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC ¶16,278)....

See also Honest Ed's Limited, [1985] OLRB Rep. Nov. 1609; Holiday Juice Ltd., [1984] OLRB Rep. Oct. 1449; and the numerous decisions cited therein.

29. Having carefully considered all of the evidence and the submissions of the parties, we have concluded that the respondents contravened section 66 of the Act by removing 211 and 342 from the "Ilda C", denying the grievors an opportunity to fish AY265, laying off the grievors on August 27, 1987, and failing to pay Mr. Santos his captain's bonus. Vito Peralta told the Board that the lay-offs were necessitated by Jerry Peralta's "insistence" that 211 be taken off the "Ilda C". However, as indicated above, Jerry Peralta had only a one-third interest in 211. Thus, he was not in a position to force Vito Peralta to remove 211 from the "Ilda C". As further indicated above, the reasons which Jerry Peralta gave for wanting to have 211 removed from the "Ilda C" do not bear up under scrutiny. Moreover, it is clear that Vito Peralta had been entrusted by Jerry Peralta and Salvatore Peralta with the ultimate decision-making power concerning the use of 211. We have concluded from the totality of the evidence that if the grievors had not joined the Union, Vito Per­alta would not have honoured his brother's request that 211 be removed from the "Ilda C". It is apparent that the decision was not economically sound. The grievors were laid off near the begin­ning of the most productive part of the fishing season. "Start-up", insurance, and other costs asso­ciated with operating the "Ilda C" during the 1986 fishing season had already been incurred. Moreover, the documentation prepared by Ms. Elias indicates that the "Ilda C" was one of the most productive boats of those which supplied Etna by fishing (in whole or in part) in Kent County waters. Under the circumstances, we find that honouring Jerry Peralta's request was merely a guise which Vito Peralta has attempted to use to mask the anti-union considerations which actually moti­vated the grievors' lay-off. We are confirmed in that view by the timing of the layoffs. As indicated earlier in this decision, we are satisfied on the totality of the evidence that by August 14, if not before, Vito Peralta was aware that the "Ilda C" had been catching perch primarily under licence 211 rather than 342. However, he did not consider that to be a matter of importance until later that month, after he became aware that all seven of the grievors had joined the Union. Mr. Peralta also offered no credible explanation for failing to permit the grievors to complete the various unfinished quotas that were available under 342, or to give the grievors an opportunity to fish the largely untouched quotas available under licence AY265. Therefore, having regard to the totality of the evidence, we find that in removing 211 and 342 from the "Ilda C", denying the grievors an oppor­tunity to fish AY265, laying off the grievors on August 27, 1987, and failing to pay Mr. Santos his captain's bonus, the respondents were motivated at least in part by a desire to punish the grievors for having joined the Union. Accordingly, we find that the respondent corporation, and the res­pondent Vito Peralta, as a person acting on behalf of the respondent corporation, contravened sec­tion 66 of the Act, as alleged by the complainant.

30. We are also satisfied on the totality of the evidence that by removing 342 and 211 from the "Ilda C", denying the grievors access to AY265, laying off all of the grievors at the onset of the height of the fishing season, and failing to pay the captain's bonus, the respondents contravened section 70 of the Act. By means of those intimidatory and coercive actions, the respondents sought to compel the grievors to cease to be members of the Union, and to refrain from voting in favour of certification of the Union.

31. In addressing the matter of remedy, complainant's counsel asked the Board to reinstate the grievors with compensation for their losses. As an alternative, he requested that the Board award the grievors full compensation for the 1986 and 1987 fishing seasons. Counsel for the res­pondents submitted that, in the event the complaint succeeded, the only appropriate remedy would be a compensation order. In support of that position he referred the Board to Academy of Medicine, [1977] OLRB Rep. Dec. 783. He also noted in that regard that the fishing licences are not the property of the Company, as they belong to various individuals, including persons who are not parties to these proceedings. Thus, he submitted that the Board cannot direct that any of those licences be placed aboard the "Ilda C", as to do so would be to directly affect the rights of individ­uals who are not respondents in these proceedings.

32. As submitted by respondents' counsel, the Board has recognized that there are some practical limits on its remedial jurisdiction. In the Academy of Medicine case, supra, the Board found that an employer had contravened what are now sections 64, 66, and 70 of the Act by closing its Call Answering Division to eliminate a union, retaliate against employees in that division for their selection and support of the union, and discourage unionization in other divisions. In reject­ing the union's request for an order requiring the employer to re-open its Call Answering Division, the Board wrote, in part, as follows:

33. While section 79 [now 89] contemplates that the Board will develop and apply new reme­dies, where appropriate, the Board's creative function must be carried out within the practical, as well as the statutory, limits of its remedial jurisdiction. An overreaching of these limits in a particular case may result in a general weakening in the efficacy of the Board's remedial orders, which depend to a very large extent upon voluntary compliance. The language of section 79 may be wide enough to pennit an order requiring the respondent to re-open. The Board has conclud­ed, however, that an order for re-opening would not be an appropriate exercise of its remedial authority. A mandatory order compelling an employer to operate a service which it does not wish to operate, albeit for a prohibited reason, would give rise to obvious difficulties of enforce­ment - difficulties which, in the long run, could only serve to weaken the efficacy of the Board's remedial orders.

34. The impracticality of an order for reopening no doubt explains the absence of any precedent for such relief either in the United States or Canada. While there have been cases involving unfair labour practice closures in other jurisdictions, in none of those cases has the employer been ordered to reinstitute an operation which has been wholly and permanently discontinued. Serv-U Stores, Inc., (1976)93 LRRM, 1033, Plastic Transport Inc., (1971)78 LRRM, 1185, and George Lithograph Co., (1973) 83 LRRM, 1402, the authorities referred to by counsel, all involved situations where the work performed by the discontinued operation was continued in some other part of the employer's enterprise. That was essentially the situation in Humpty Dumpty Foods Limited, [1977] OLRB Rep. 401, a recent decision of this Board involving a run­away shop.

35. To conclude that the Board will not require an employer that has shut down in violation of The Labour Relations Act to re-open is not, however, to conclude that an unlawful closure should be without a remedy. While there are, as this case illustrates, limits to the capacity of the Board to deal effectively with those who would so fundamentally contravene the Act, it can at least ensure that those injured by such unlawful conduct are compensated in damages. An award of damages in this case would serve the additional function of providing some disincen­tive for similar conduct in the future and, in this way, help to support the public interest in encouraging the practice and procedure of collective bargaining.

36. In addition to those considerations, in the instant case there are also other factors which militate against an order that the Company resume its fishery operations and reinstate the grievors. As indicated above~ the Company has been unprofitable since its inception and would have to go even further into debt in order to obtain "start up" funds. The "Ilda C" has been put up for sale and may have been sold by the time this decision issues. Moreover, the Company does not own any fishing licences and may not be able to "rent" any with unused quotas in respect of the 1987 fishing season at this point in time, with most of the 1987 fishing season past. Having regard to all of those circumstances, as well as to the practical considerations described in the Academy of Medicine case, we have concluded that an order directing the Company to reinstate the grievors would be inappropriate. A compensation order, on the other hand, is clearly warranted. However, we have concluded that compensation should be confined to losses incurred by the grievors in respect of the 1986 fishing season. On the basis of the circumstances described above, we have con­cluded that it is far from certain that the "Ilda C" would have fished during the 1987 fishing season even if the grievors had not joined the Union. Moreover, it is clear from the evidence adduced before us that captains and crew members often leave one boat at the end of a fishing season and go to work on another boat during the next fishing season. Thus, it is questionable whether the grievors would have worked for the Company during 1987 in any event.

37. The compensation payable to the grievors in respect of the respondent's unfair labour practices is to be calculated on the basis of the monies which would have been received by the grievors if they had been permitted to continue fishing on the "Ilda C" throughout the 1986 fishing season, including the monies which they would have received if they had been permitted to exhaust all of the quotas on 211, 342, and AY265. It is also to include the packing fees which would have been paid in respect of that fish, and the aforementioned five per cent captain's bonus.

38. Interest is also to be paid by the respondents on the compensation awarded by this deci­sion. That interest is to be calculated in the manner described in Practice Note 13, dated Septem­ber 8, 1980, for the accrual period from August 27, 1986 to the end of the 1986 fishing season. However, in calculating the interest payable in respect of the period from the end of the 1986 fish­ing season to the date on which the compensation is paid to the grievors, the approach set forth in that Practice Note is to be varied by eliminating the second step (i.e., division in half), to reflect the fact that as of the end of the season, the period of accrual would have terminated and the griev­ors would have had the benefit of the entire amount of compensation as of that time. Division in half is also inappropriate in calculating interest payable on the captain's bonus, as that bonus would have been paid in a lump sum at the end of the fishing season, but for the respondents' con­traventions of the Act.

39. As noted above, it was (and is) the Company's position in the aforementioned certifica­tion proceedings that Mr. Santos should be excluded from the bargaining unit on the ground that he (allegedly) exercises managerial functions. That matter is one of the issues remaining to be determined in those proceedings. However, it was not suggested by respondents' counsel in the instant case that the complainant Union was in any way precluded from obtaining a remedy in respect of Mr. Santos by virtue of the functions which he performed as captain of the "Ilda C". Moreover, the limited evidence which was adduced before us concerning his duties and responsi­bilities does not warrant a finding in the instant case that he is not an "employee" within the mean­ing of the Labour Relations Act. Accordingly, we have dealt with this complaint without distin­guishing Mr. Santos from any of the other grievors in respect of their employment status with the Company.

40. As indicated above, the respondent Vito Peralta is the President of the corporate res­pondent, which is owned by himself and his retired father. As further indicated above, Vito Peral­ta, who is the person who directs, manages, and controls the Company's operations, has personally contravened sections 66 and 70 of the Act. Under the circumstances, we find it appropriate to make an order against both the Company and Vito Peralta personally (see, generally, Walter Tool and Die Ltd., [1986] OLRB Rep. Aug. 1167; Heritage Manner Rest Homes, [1983] OLRB Rep. Mar. 385; and Sunnylea Foods Limited, [1981] OLRB Rep. Nov. 1640).

41. For the foregoing reasons, the Board hereby declares that the respondents have contra­vened sections 66 and 70 of the Labour Relations Act, and that the corporate respondent has also contravened section 79(2) of the Act. To remedy those contraventions, the Board, pursuant to sec­tion 89(4) of the Act, hereby directs that the respondents:

(1) compensate the grievors for all losses incurred by them in respect of the 1986 fishing season as a result of the aforementioned unfair labour practices, such losses to be calculated in accordance with paragraph 34 of this decision; and

(2) pay interest on the compensation ordered by the Board, such interest to be calculated in accordance with paragraph 35 of this decision.