The United Food & Commercial Workers Union, Local 206 v. Knob Hill Farms Limited, 1987 CanLII 3148

Ontario Labour Relations Board

[1987] OLRB Rep. December 1531

0542-86-R; 0035-86-U The United Food & Commercial Workers Union, Local 2p6, Applicant v. Knob Hill Farms Limited, Respondent v. Group of Employees, 9bjectors; United Food & Commercial Workers, Local 206, Complainant v. Knob Hill Farms Limited, Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. O. Shamanski and R. Wilson.

APPEARANCES: A. J. Ahee, D. MacMillan and D. White for the applicant; Michael Gordon and Howard Wood for the respondent; Donna Baydak and Maureen P. Kelly for the objectors.

DECISION OF KEN PETRYSHEN AND R. WILSON; December 22, 1987

I

1, Board File No. 0542-86-R is an application for certification. Board File No. 0035-86-U is a complaint under section 89 of the Labour Relations Act in which the United Food and Commercial Workers Union, Local 206 (referred to in this decision as "UFCW" and as the "Union") alleges that the respondent, Knob Hill Farms Limited (referred to in this decision as "Knob Hill" and as the "Employer") has contravened sections 64, 66, 70 and 71 of the Act. These alleged con­traventions of the Act also form the basis of a request by UFCW that it be certified under section 8 of the Act. The proceedings in the two Board files referred to above were consolidated by the 1~oard (differently constituted) in a decision dated June 19, 1986.

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

3 Having regard to the agreement of the parties, the Board finds that all employees of the r9spondent at Oshawa, Ontario, save and except Assistant Stone Manager, persons above the rank of Assistant Store Manager and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

4 On May 23, 1986, the date of the application for certification, there were 219 employees in the bargaining unit. As of June 7,1986, the terminal date fixed for this application and the date Which the Board determines under section 103(2)(j) of the Act to be the time for the purpose of ascertaining membership under section 7(1) of the Act, 81 employees in the bargaining unit (37%) were members of the Union. In mid-March 1986, Knob Hill laid off 14 employees. In its section 89 c9mplaint, the Union alleges, among other things, that the lay-off of these 14 employees consti­tutes a contravention of the Act and that accordingly, the 14 employees should be treated as hav­ing been employed on the application date. If the Union succeeds in this aspect of its complaint, and if we were to assume that all 14 laid-off employees were members of the Union, the Union would have membership support on behalf of no more than 41% of the employees in the bargain­ing unit as of the terminal date. Therefore, the Union's best position would not entitle it to a repre­sentation vote under section 7(2) of the Act. In addition to the Union's membership evidence, there was also filed with the Board a petition signed by 156 persons indicating that they wish to oppose the certification of UFCW. This petition included the names of 44 individuals who had pre­viously become members of UFCW.

5. The hearing of this matter by the present panel required fourteen days, the last two being devoted to entertaining the parties' submissions. During the course of the proceedings, the Board issued two interim written decisions and was required to make a considerable number of oral evidentiary rulings. The Board heard evidence from 18 witnesses. In making our findings of fact, we have carefully considered all of the oral and documentary evidence, the credibility of the witnesses and the submissions of the parties.

II

6. When the parties appeared on the first scheduled hearing day, they agreed before another panel of the Board to argue a constitutional issue and to exchange written submissions on that issue prior to the next scheduled hearing day. It was also agreed at that time that the Union would proceed to call its evidence first. During the first day of hearing before the present panel, the Board entertained submissions from the parties as to whether section 89(5) of the Labour Rela­tions Act is of no force on effect, as argued by counsel for the Employer, because it is contrary to section 15(1) of The Constitution Act, 1982, of which the Canadian Charter of Rights and Freedoms is a part. At the conclusion of the submissions, the Board advised the parties that it would reserve its decision.

7. In presenting his argument on the Charter issue, counsel for the Employer took the position that the matter was a "necessary preliminary and threshold issue" which required a deter­mination by the Board prior to hearing any evidence. In counsel's submission, the rules governing the case must be determined at the outset since they would have an effect on the questioning of witnesses and the calling of evidence. Counsel for the Union opposed an adjournment of the pro­ceedings and argued that the Board should proceed to hear evidence on the next scheduled hearing day, August 7, 1986. When it advised the parties that it would reserve its decision on the Charter issue, the Board also ruled orally that it was not prepared to adjourn the proceedings as requested by counsel for the Employer. The Board indicated that reasons for its ruling would follow. Counsel for the Employer then advised the Board that he was obligated to formally request reconsideration of the Board's ruling. Counsel noted that he anticipated his request would be denied since he had no new evidence or argument to put before us. The Board, after recessing to consider the request for reconsideration, orally ruled at the hearing that the Employer's request for reconsideration was denied.

8. In denying the Employer's request to adjourn the proceedings pending the Board's decision on the Charter issue, the Board had regard to a number of considerations. The matters before it concerned a representation issue and the lay-off of 14 persons which was continuing. For obvious labour relations reasons, it is important that matters such as these be heard and disposed of as expeditiously as possible. Given the nature of the argument and the number of cases referred to, it was unlikely that the Board would have been in a position to provide the parties with a deci­sion on the Charter issue for some time. The Board considered the basis upon which the Employer sought the adjournment. In balancing all of the interests in the circumstances of this case, the Board was satisfied that proceeding with the hearing on the basis of the existing law until it decided the Charter issue was the appropriate course to follow.

9. During the course of the hearing on November 18, 1986, and prior to the Employer call­ing evidence, the Board provided the parties with its decision on the Charter issue without reasons. On that date, the Board orally advised the parties that section 89(5) of the Labour Relations Act does not conflict with section 15 of the Charter. Counsel for the Employer then requested reasons for the Board's decision and he argued that the proceedings should be adjourned until the reasons were provided. Counsel submitted that the reasons were necessary in order for him to advise his client and seek instructions. After considering the matter, the Board orally ruled at the hearing that it would not adjourn the proceedings until it was in a position to provide the reasons for its decision. In the Board's view, it was not necessary for the Employer to have our reasons on the Charter issue before it called its evidence. We were satisfied that the Employer would not be pre­judiced if the Board were to proceed without giving reasons at that time. The Board directed that the proceedings would continue on the next scheduled hearing date.

10. When the Charter issue was argued, counsel for the Employer advised us that he had made the same argument in another Board case and that the decision in the matter had not yet been issued. Counsel provided us with the names of those authorities which were relied upon in this proceeding and had not been relied on when the argument had been made previously. Subse­quent to our decision on the Charter issue, the Board (differently constituted) on December 22, 1986, released the decision in Shaw-Almex Industries Limited, [1986] OLRB Rep. Dec. 1800 wherein the Board found there was no conflict between section 89(5) of the Labour Relations Act and section 15 of the Charter. Taking into account the argument before us, including a consider­ation of those cases which had not been referred to the Shaw-Almex panel, we adopt the reasons given by the Board in Shaw-Almex industries Limited, supra, as our own.

11. The Board notes that in deciding the Union's section 89 complaint, it was unnecessary for us to apply section 89(5) of the Act. The Board has previously addressed the question of when it would be appropriate to apply the reversal of the burden of proof. In The Barrie Examiner, 1975) OLRB Rep. Oct. 745, the Board made the following comments at page 748:

"... The onus of proof only comes into play after the trier-of-fact has found the evidence to be so evenly balanced that no clear conclusion can be drawn. See Robin v. National Trust Co. Ltd., 1927 CanLII 469 (UK JCPC), [1927] 2 D.L.R. 97 (J.C.P.C.). In this situation, the trier-of-fact must then fall back upon the rule relating to the location of the onus of proof, and make an evidential finding against the party upon whom the burden rests. Rules as to the onus, therefore, are rules of evidence, estab­lishing a procedure to be followed where the evidence of two opposing parties is evenly bal­anced. Support for this conclusion can be found in R. v. Krumps, 1931 CanLII 400 (MB CA), [1931] 3 D.L.R. 767 (Man. C.A.); dicta to the same effect can be found in Attorney General v. Halliday, [1866-87] U.C.Q.B. 397 and Sanders v. Malsbury, (1882), 1 OR. 178

More recently, the Board noted in Knob Hill Farms Ltd., [1983] OLRB Rep. July 1087 in para­graph 8 that section 89(5) "is only triggered where there is no evidence before the Board or where he evidence before the Board is equally balanced".

12. In reviewing the evidence in order to reach a conclusion on the factual issues before us, we were not confronted with a situation where the evidence was evenly balanced. We were able to resolve the factual issues on the balance of probabilities without recourse to section 89(5). In saying this, of course, the Board does not mean to suggest that the evidentiary onus of proof at times did not shift to the Employer. As the evidence is adduced, it is not uncommon for the evidentiary onus to shift from one party to another. It is often the case in section 89 complaints of this type, as it was in reviewing the evidence in the instant complaint, that the onus shifts to the Employer to convince the Board that its actions were not motivated in part by an anti-union animus. This is so even in the absence of the application of section 89(5).

III

13. Prior to setting out the facts and our findings, it is useful to examine section 8, its purpose and the approach the Board has taken in dealing with section 8 cases. Section 8 of the Act provides as follows:

14. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support ade­quate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

15. Section 8 essentially has a twofold purpose. The section is designed to deter employers from illegally interfering in union organizing campaigns. In addition, it provides a remedy in those cases where the employee selection process has been destroyed by illegal employer activity. As the Board has frequently noted; it is not every violation of the Act by an employer which would cause the Board to direct section 8 relief. Certification can be granted under that section only if the fol­lowing conditions are met:

(1) the respondent employer must have contravened the Labour Rela­tions Act.

(2) the applicant trade union must have membership support that, in the opinion of the Board, is adequate for the purposes of collective bar­gaining.

(3) the respondent employer's contravention of the Act must have resulted in a situation in which the true wishes of the employees are not likely to be ascertained.

15. In assessing whether an applicant has membership support adequate for collective bar­gaining, the Board considers a number of factors. Those factors are reviewed in Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, at paragraph 21:

The issue of whether membership strength is adequate under section 8 has been found by the Board in prior cases not to be simply a question of numbers or percentages. In Viceroy Con­struction Company Limited, [1977] OLRB Rep. Sept. 562, the Board stated in paragraph 22:

No arbitrary percentage can be arrived at that will apply in all cases. The Act requires the Board to determine what is adequate membership support by the light of its opin­ion depending on the facts of each case. In forming its opinion in any case the Board must have regard for all the circumstances.

Some of the circumstances or factors which have been considered by the Board in assessing "ad­equacy" are:

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, [1980] OLRB Rep. Dec. 1811; District of Algoma Home for the Aged (Algoma Manor), [1979] OLRB Rep. Apr. 269);

(2) the circumstances surrounding the cards signed prior to the employer inter­ference and the number of cards signed (Lorain Products, [1977] OLRB Rep. Nov. 734);

(3) the existence of a full-time unit which showed membership sufficient to sup­port collective bargaining by its part-time counterpart (Robin Hood Multifoods, [1981] OLRB Rep. July 972 and; Windsor Airline Limousine Limited, [1981] OLRB Rep. Mar. 398);

(4) the severity of the employer conduct insofar as it related to the number of cards signed - "the chilling effect" (K-Mart, [1981] OLRB Rep. Jan. 60);

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) (Somerville Belkin, [1980] OLRB Rep. May 796).

In assessing adequacy the Board must engage in some measure of speculation regarding the union's prospects of successfully engaging in the sequel to certification, collective bargaining. If the union can and has mustered the totality of its support in the bargaining unit certification under section 8 should not be used to foist union representation on those employees who would not have chosen this freely for themselves. The assessment must be taken with care (see Skyline, supra, at paragraph 62).

16. Often the most difficult task for the Board in adjudicating a section 8 case is in deter­mining whether employer violation(s) have created a climate in which the true wishes of employees cannot be ascertained. Although each case must be decided on its own particular facts, the Board commented on some of the factors which it considers when confronted with this issue in The Globe a id Mail Division of Canadian Newspapers Company Limited, [19821 OLRB Rep. Feb. 189:

The Board has found in a number of cases that the employer, in violating the Act, made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascer­tained. An employee is unable to express his true wishes where he has been told by his employer, either expressly or impliedly, and has reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, Lorain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734, Riverdale Frozen Foods Limited, [1979] OLRB Rep. Apr. 338, Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Sommerville Belkin Industries Limited, [1980] OLRB Rep. May79 and A. Stork and Sons Ltd., [1981] OLRB Rep. Apr. 419).

17. The Board recognizes that it is appropriate to take a cautious approach in granting section 8 relief since granting a certificate has considerable legal ramifications. This sentiment is reflected in the following passages from Trulite Industries Limited, [1983] OLRB Rep. May 821 at page 827:

18. The competing policy considerations which underlie section 8, are aptly set out by the Brit­ish Columbia Labour Relations Board in commenting on a similar provision in its own statute. In International Brotherhood of Boilermakers, Lodge 359 and Forano Limited (1974) Can. L.R.B.R. 13, the Board observed at page 20:

Certification without a vote ... creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct ... However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the inno­cent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means

I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used...

25. As the above comments indicate, the wishes of the employees are always the Board's pri­mary concern, and the remedy is not meant to be punitive; moreover, where support is not really there, the Board would not be placing the union in an enviable position by granting a cer­tificate. Without the support of the employees the union would have a difficult time negotiating a collective agreement, and it would ultimately face the prospect of a termination application. On the other hand, the Board must not hesitate to consider the provisions of section 8 when it is the employer's own misconduct that impairs the Board's ability to ascertain with more certainty what the wishes of the employees really are. As the British Columbia Board went on to say:

The Board must not be afraid to use it [the certification remedy] when it appears appropriate. The Legislature conferred it for the very good reason that there is another equally serious risk to employee freedom. The majority in a unit may really want collective bargaining but have been intimidated from choosing it openly. The only way they will get it, is for the Board to certify the union....

IV

18. Knob Hill operates a retail food sales business. It has a number of retail outlets in Toronto and vicinity and has approximately 1,400 employees. The Oshawa store, the object of the Union's organizing campaign, has approximately 220 full-time and part-time employees. Until mid- May 1986 the distribution function was located in the Oshawa store. This function was transferred at approximately that time to the newly-opened Weston Road store.

19. Various unions have attempted unsuccessfully in the past to certify some of Knob Hill's retail outlets. UFCW initiated its organizing campaign during the first week of March 1986 after the Local Union was approached by some of Knob Hill's Oshawa employees. M. Flannigan, an international representative, was the co-ordinator of the campaign. Two of the Union's representa­tives, a number of international representatives, and some Knob Hill employees were involved in attempting to obtain membership cards during the campaign. Some employees signed cards at their homes while others signed at the work place. As indicated previously, it was on March 21 and March 24, 1986 that Knob Hill laid off 14 employees at its Oshawa store. It was late in the evening on March 21,1986 when most of the 14 employees were advised of their lay-off. From March 6, 1986, when the first card was signed, to March 21, 1986, the Union obtained 85 membership cards. On March 17, 18 & 19, just prior to the lay-offs, the Union signed 35 cards. From March 21, 1986 to March 24, 1986, the Union collected 7 cards. From March 25, 1986 until the terminal date, a period of over two and a half months, the Union obtained 17 cards.

20. In addition to the lay-offs referred to above, the Union alleges that Knob Hill contra­vened the Act in other respects. On March 27, 1986, 5. Stavro, the President of Knob Hill, distrib­uted a letter to the Oshawa employees. On March 29, 1986, Knob Hill gave all of its employees a wage increase. Full-time employees received a $1.00 an hour increase, while part-time employees received an additional 50~z per hour. During the relevant period of time, officials of the company, either through discussions with employees or in other ways, allegedly dealt with employees con­trary to the Labour Relations Act. Before dealing with the lay-offs, we will address these other aspects of the Union's complaint.

21. The letter from Stavno dated March 27, 1986 to the Oshawa employees reads as follows:

March 27, 1986

Dear Fellow Employees:

There are two matters that have been causing you and your fellow employees some concern.

Firstly, there have been rumours that Knob Hill Farms has been sold - this is absolutely false.

Secondly, a Union is again trying to organize members of the store. The law provides that you have the absolute right to join a trade union if you want to. You should also understand that you don't have to join a trade union. The law protects you from pressure and no one can force you to join a Union if you don't want to do so.

Several employees have been upset that Union organizers have been calling them at home or showing up at their place of residence. Remember, you don't have to talk to them on the tele­phone; you are entitled to hang up. If you don't want to let people come into your home, you don't have to open the door.

What we, at Knob Hill Farms, have achieved, has been done without the presence or interfer­ence of a third party or outsider.

I have seen the kind of co-operation which exists between our employees and management. I see the benefits and wage levels that have been achieved voluntarily, and the kind of co-opera­tion there is between employees of the Company.

I am in the store on a regular basis and enjoy the one-to-one contact with the employees. If there are problems, then let's talk about them.

Shortly, the North York Food Terminal will be opening. The distribution department is to be moved to the new Terminal. This change will result in staff transfers and promotions.

With your continued support and assistance, Knob Hill Farms will continue to grow and pros­per.

Best wishes for a Happy and Safe Easter. Yours very truly, Steve Stavro

22. It was argued by the Union that the letter from Stavro had an impact on employees dur­ing the campaign. It was suggested that by underlining the word "don't" in paragraphs 3 and 4, Stavro communicated to employees the Employer's desire to remain union-free. We have exam­ined carefully the substance of Stavno's letter, as well as the circumstances surrounding its distribu­tion to employees. We are satisfied that Stavro's letter does not constitute a contravention of the Act. In our view, the letter does not come within the prohibitions in section 64 of the Act but rather comes within the caveat to the section guaranteeing employer free speech. In Dylex Limited, [1977] OLRB Rep. June 357 in paragraph 19, the Board noted that "employees recognize that employers generally are not in favour of having to deal with employees through a trade union, and that therefore it ought not to surprise them when their employer indicates that he would prefer it if they voted against a trade union". Stavro's letter does no more than convey to the Oshawa employees that Knob Hill prefers to remain non-union.

23. Knob Hill gave all of its 1400 employees a wage increase on March 29, 1986, including of course, the Oshawa employees. The Employer does give annual wage increases to its employees and it also gives increases when a new store opens. The Employer takes the position that the grant­ing of the wage increase on this occasion was consistent with its general practice. Counsel pointed out that this position was supported by the fact that the increase was company-wide and not limited to the Oshawa employees. The Union argued that the wage increase represents an attempt by the Employer to interfere with its campaign. In reviewing the evidence relating to the wage increase, the Board has considered evidence relating to certain conversations between management officials and bargaining unit employees.

24. During the evening of March 25, 1986, W. Harrison, assistant store manager, had a conversation with Paul Craig, a student working in the bread section. P. Craig's version of the con­versation is as follows. P. Craig asked Harrison whether the employees would be getting raises. Harrison responded by saying "it depends on whether you give me your thing", and explained that the "thing" costs one dollar and is blue (the Union membership cards are blue). Harrison asked P.

Craig if he signed and P. Craig explained he did not. After indicating more than once that he did not sign, P. Craig asked if the failure to hand him a card would result in his not receiving a raise. Harrison said maybe. P. Craig made notes of his conversation with Harrison on the day of the dis­cussion and these notes were made an exhibit. Harrison's version of the conversation with P. Craig was quite different. He testified that P. Craig approached him and asked him what would happen to people who signed a union card. Harrison asked P. Craig if he signed a card. When P. Craig said he did not, Harrison advised him that he did not have anything to worry about. When Harrison was shown for the first time the notes taken by P. Craig of their conversation, he indicated that there was no truth to what was contained therein.

25. Rondha Hasted has been employed by Knob Hill as a cashier since February 1986. She testified that shortly after the lay-offs, Mike Nickolau, the stone manager, approached her while she was working and asked her if she supported Knob Hill. Nickolau advised hen that Knob Hill was one big happy family and that if she had any problems she should see him. Nickolau then advised her that employees would be getting a dollar an hour raise and asked her not to discuss this with other employees. Sean Craig is a full-time employee in the grocery department. He testified that he had a discussion with Nickolau in mid-March prior to the lay-offs in which he asked Nicko­lau for a raise. Nickolau asked him if he was a company man. After S. Craig responded affirma­tively, Nickolau said he would look after him. In his evidence, Nickolau denied making any of the statements attributed to him by Hasted on S. Craig.

26. We prefer the evidence of P. Craig, Hasted and S. Craig to that of Harrison and Nicko­lau. We are satisfied that Harrison, in effect, asked P. Craig to give him his membership card and indicated that a failure to do so might affect whether or not he received a raise. After considering the submissions of counsel for the Employer concerning the notes of P. Craig's conversation with Harrison, we are satisfied that the notes were made by P. Craig and that they reflect the substance of his conversation with Harrison. We are also satisfied that Nickolau, at a time when he was aware of the Union's organizing efforts, made the statements attributed to him by Hasted and S. Craig. In essence, Nickolau was inquiring of Hasted and S. Craig whether they supported the Employer or the Union. Knob Hill contravened sections 64 and 70 of the Act when Nickolau and Harrison had the conversations referred to above with the three bargaining unit employees.

27. The Board finds that Knob Hill contravened sections 64 and 70 of the Act when it gave the wage increase at the time it did. Although we are satisfied that Knob Hill does have a practice of granting its employees a regular wage increase, the evidence does not support a conclusion that the granting of a wage increase on March 29, 1986 was consistent with its policy. Representatives of the Employer became aware of the Union's organizing campaign approximately in mid-March 1986. Within two weeks of that time, a significant wage increase was granted to all of Knob Hill's employees, including the Oshawa employees. Although it was suggested by the Employer that a stone opening, in this case the opening of the Weston Road stone, caused the Employer to grant a wage increase, the wage increase was granted 1 1/2 months before the opening of the Weston Road store. When the granting of the wage increase is viewed in light of the statements we found man­agement to have made to P. Craig, Hasted and S. Craig, we are satisfied that the wage increase was connected with the Union's organizing campaign at the Oshawa store. After reviewing all the evidence concerning the wage increase, including the timing of the increase and the employer's justification for the increase, the Board finds that the granting of the wage increase on March 29, 1986, at least in part, was motivated by anti-union considerations.

28. Derek Lacelle started with Knob Hill in September 1985 and is a full-time employee in the meat department. Lacelle is in the Army Reserve on a part-time basis. Subsequent to mid-March 1986, an employee advised Lacelle that Gus Nicov, meat buyer and store supervisor, wished to speak with him. Lacelle testified concerning the substance of their conversation. After being introduced, Nicov asked him if he knew about the Union. Lacelle replied that he did. Nicov advised Lacelle that he knew he was signing people up on company time and that he could get fined for this activity. Lacelle maintained that he signed people up on his own time. Nicov asked whether he liked to work for the company and whether he might be going into the army full-time. Lacelle replied yes to the first question and maybe to the second. Nicov then asked Lacelle if he knew what the army did with deserters. Lacelle replied that deserters are shot in a combat situation. Nicov said that the company works the same way and that by helping the Union Lacelle was pot doing Knob Hill any good. Nicov asked Lacelle how he would like it if he spent 40 years in a business and then had someone come in and tell him how to run the business. Nicov advised nacelle that unions were no good and took one's money in dues.

29. In his evidence, Nicov described his conversation with Lacelle in a way which was sig­nificantly different from Lacelle's evidence. Nicov explained that although Lacelle had been with Knob Hill for some months, he had not met him. Since another employee advised him of some problems concerning Lacelle, he decided to have a talk with him. He began their conversation by asking how long he had been with the company and whether he was happy. After discussing why Lacelle did not work on some weekends, Nicov advised Lacelle that in every family there were rules and regulations that must be obeyed. Nicov said he asked Lacelle whether he was a full-time pr part-time soldier only for the purpose of determining whether he would stay with Knob Hill for any length of time. Nicov indicated that it was important to get the job done right, and that as long as he did not create any problems he had a guaranteed job at Knob Hill. Shortly after the discus­sion ended, Lacelle returned and advised Nicov that he was involved with the Union. Lacelle offered to provide Nicov with the names of the people who signed. Nicov told Lacelle that he was riot interested in the names and that what he did outside of the store was his own business.

30. After reviewing the evidence of Nicov and Lacelle, and the manner in which they gave their evidence, the Board prefers the evidence of Lacelle. The Board finds that Knob Hill contra­vened sections 64, 66 and 70 of the Act when Nicov had the discussion referred to above with Lacelle. We are satisfied that Nicov was aware of Lacelle's union activity and that the purpose of his conversation with Lacelle was to convince Lacelle that his conduct was contrary to the Employ­er's interests and could affect his continued employment with Knob Hill. Nicov's conversation with Lacelle was a blatant attempt to interfere with Lacelle's rights under the Labour Relations Act.

31. Shortly after the lay-off, three employees from other stones operated by Knob Hill were transferred to the Oshawa store. It was alleged by the Union that the transfer of these three per­sons into the grocery department was an attempt to replace employees who were laid off. The evi­dence discloses that it is common for Knob Hill to transfer employees between stones in order that they may benefit from a broaden experience. The three employees in this case were transferred to Oshawa in order that they could obtain experience in a larger store. When these persons were transferred to Oshawa, employees in Oshawa were transferred to other stones. The decision to transfer the three employees to Oshawa was made by Knob Hill in February 1986, which was prior to the Union's organizing campaign. The Board finds that in transferring the three employees to the Oshawa store shortly after the lay-offs of March 21 and 24, 1986, Knob Hill did not contravene the Act.

32. Rhonda Hasted and Giovanna Del Gobbo testified about an incident which occurred shortly after the lay-off. Del Gobbo, who left the employ of Knob Hill in May 1986, and another three cashiers were asked by Risto Popovski, an assistant store manager, to wait at the conclusion of their shift in an area adjoining the front office. The office is in an open area so they were able to see Popovski and L. Cervini, store supervisor, whispering back and forth to each other. Cervini was on the phone and both he and Popovski frequently looked at the employees near the front office and laughed. After anywhere from five to ten minutes, Popovski advised the employees that they could go and that there would be no meeting. Since all of the cashiers were employed less than three months and because the lay-off had just occurred, the employees were scared and embarrassed. They felt they were going to be told they were laid off as well. Cervini recalled an occasion when he saw a number of cashiers on benches in front of the office area at approximately 10:00 p.m. Cervini could not remember asking them to stay and denied staring at them although he may have looked at them. Popovski did not testify.

33. The Board is satisfied that the incident concerning the cashiers constituted an attempt on the part of the Employer to intimidate the cashiers and to interfere with their right to join a trade union, contrary to sections 64, 65 and 70 of the Labour Relations Act. The timing of this inci­dent and its unusual nature suggest that Popovski and Cervini were attempting to communicate to employees who were in their probationary period that the Employer can affect their future employment and that support for the Union is not in their best interests. Popovski, the person who initiated the incident, was not called to explain why he asked the cashiers to wait after work.

34. Sean Craig began working for Knob Hill in October 1983 and, as indicated previously, he was employed at the relevant time as a full-time grocery clerk. S. Craig assisted the Union in obtaining membership cards. On May 22, 1986, he was suspended for a week by Nickolau for being late. The disciplinary notice he received reads as follows:

Sean Craig (03) 7:18AM To Oshawa Date May 21/86

Sean hasn't shown for work as of yet. He has been warned on numerous occasion [sic]. On April 22/86 he signed a document stating that he would be reprimanded should it occur again. Since then there have been numerous occasions that he was late for work. I have been lenient with him because of fear of grievances because of his role with the union campaign at this store. I put a lot of thought in the situation and come [sic] to a conclusion that regardless of the situation I have to do my job as required and decided to reprimand by giving Sean a week off work without pay commencing May 22/86 until May 28/86. He will return to work May 29/86 at 7:00 A.M. Should there be one other occurrence lateness [sic] after the date of May 29/86 Sean will be dis­missed from his job.

"Mike Nickolau" "Nick Altas"

"Sean Craig"

35. The Union argues that S. Craig was disciplined at least in part because of his union activity. The Employer, on the other hand, argued that the only reasons. Craig was disciplined was because of a lateness problem which had persisted for a considerable period of time. Having reviewed all of the evidence relating to the suspension, the Board is satisfied that Knob Hill did not contravene the Act when it suspended S. Craig for a week on May 22, 1986. The evidence discloses that S. Craig did have a problem getting to work on time. He was warned about his lateness and on April 22, 1986 he was advised that if he continued to be late he would face a week's suspension or dismissal. We accept Nickolau's evidence that S. Craig's union role played no part in his decision to suspend him and that, but for his union activity, Nickolau would have imposed a more severe penalty, perhaps discharge. Other employees may very well have been late, but no one had a late­ness record as bad as S. Craig's.

36. In his opening statement and in final argument, counsel for the Employer submitted that Knob Hill did not contravene the Act when it laid off fourteen employees in the third week of March 1986. In taking this position, counsel emphasized a number of points. The Employer has experienced a number of organizing attempts, including a previous attempt to organize the Osh­awa store employees. The Employer made it clean to its employees in this campaign and in previ­ous ones that they are free to join a trade union of their choice and participate in its lawful activi­ties. The managerial persons who testified indicated that they were aware of the Employer's policy of non-interference regarding unionization and most of them expressed the view that they would be fired if they failed to adhere to the policy. Counsel submitted that the lay-offs arose in the nor­mal course of business, occurred as a result of appropriate business concerns and had nothing to do with the Union's organizing attempt.

37. Nickolau and Cervini testified that they were the ones who decided that a lay-off was necessary and when and how the lay-off would be executed. In approximately the first week of March 1986, they determined there would be a lay-off with the final decision being made during the week ending March 23, 1986. They decided that the lay-offs would occur in the grocery and buggy areas. Any employee in these areas who was hired subsequent to January 1, 1986 would be laid off. Of the fourteen employees laid off, ten worked in groceries and four worked in buggies. The group of fourteen was made up of both full-time and part-time employees. The majority of these employees were advised of their lay-off at the completion of their shift by Cervini on March 21, 1986. When the employees were told of the lay-off, reference was made to a shortage of work and the transfer of the distribution centre. Nickolau had other commitments on March 21, 1986 and could not stay at the stone past 7 p.m. All of the laid-off employees had not yet completed their probationary period and had no advance warning from the Employer that they would be laid off. At least four of the laid-off employees were hired in February 1986 and one was hired in March 1986, subsequent to the time the Employer made the decision to lay off.

38. All of the employees who were laid off had signed a membership card for the Union. Four of these employees signed cards dated March 21, 1986, while all of the others were signed prior to that time. A review of the membership cards signed by the fourteen laid-off employees dis­closes that a number of the employees signed at the commencement of the organizing campaign. A review of the membership evidence generally reveals that two of the fourteen laid-off employees were actively involved in obtaining membership cards for the UFCW.

39. Cervini held the position of stone manager in Oshawa for the month of November 1986. During that time, he concluded that the hours worked by employees were too high. In addressing this concern, he was confronted with two alternatives. He could either lay off employees or cut the number of hours worked by employees. He elected to cut hours. He began with the cashiers and just prior to leaving the store manager's position, he began to cut the hours of employees working in the buggy area. At the end of November 1985, he assumed the newly-created position of store supervisor which gave him responsibilities for all the Employer's stores. One of the primary func­tions of the store supervisor's position was to cut costs. When Nickolau became the store manager in November 1985, Cervini explained to him what he had been attempting to accomplish.

40. Cervini and Nickolau testified that when they decided at the beginning of March to lay off employees, their decision was based on a shortage of work. In particular, they were conscious of the fact that the distribution centre would be moved from Oshawa to Weston Road. In addition, they referred to a number of changes in the stone which caused the Oshawa store to be over­staffed. We have carefully reviewed the evidence relating to the employer's justification for the lay­offs and its timing. After reviewing the evidence and the parties' submissions, we are satisfied that the decision to lay off fourteen employees in the third week of March 1986 was motivated in part by anti-union considerations and therefore constitutes a contravention of sections 66 and 70 of the Labour Relations Act.

41. The evidence discloses that the Oshawa store ceased operating as the distribution centre at the beginning of April 1986. For a period of time before the beginning of April, less product was being sent to Oshawa for distribution, and very little product was distributed from Oshawa to other stores after the beginning of April. The distribution centre was transferred to the Weston Road stone which opened on May 14, 1986. The Weston Road store is centrally located and has a larger area to accommodate a distribution centre. The Employer took the position that the persons who performed functions connected with the distribution centre would have to be transferred to other areas of the store. But only two persons connected with the distribution function at Oshawa were moved to the grocery and buggy areas. Bruce King went to the buggy area at the beginning of April and George Coulouras went into the grocery area. The actual impact on the grocery and buggy areas insofar as a transfer of personnel is concerned was minimal.

42. Cervini and Nickolau testified concerning changes which created the need to lay off employees. The buggy system was changed in the summer of 1986. The preparations for the change occurred in April-May 1986. The Employer, prior to the summer of 1986, utilized a system where the customer would take a buggy and simply leave it in the lot when finished with it. Employees in the buggy area would be involved in retrieving the buggies as well as other duties. With the new system, the buggies are located in various carrels on the lot. The customer takes a buggy and is encouraged to return the buggy to the carrel. A new system for dealing with buggies was considered in the winter of 1985-1986 and, as indicated previously, was implemented in the summer of 1986.

43. Rather than bagging groceries, Knob Hill supplies its customers with boxes. Prior to the summer of 1985, Knob Hill utilized cardboard boxes. These boxes would be delivered by tractor trailer and made up by an employee of Knob Hill. Beginning in the summer of 1985, Knob Hill began a process of eliminating the cardboard boxes and using plastic boxes in Oshawa. Oven a period of time, plastic boxes were used predominantly, although the cardboard boxes have not been completely eliminated.

44. In approximately January 1986, Knob Hill initiated a new method of stocking its shelves. In addition, shortly after the lay-off, it began to handle its product differently. We do not propose to set out the details of these changes. We are satisfied in examining these changes, both with respect to their timing and substance, that they can provide little justification for the lay-offs in the third week of March 1986. We have come to the same conclusion regarding the change in the buggy system and the change from cardboard to plastic boxes. The new buggy system was not operative until the summer of 1986, some time after the lay-offs. The change from cardboard to plastic boxes would have a minor impact and one that would have been felt in 1985 rather than during March 1986. The transfer of the distribution centre did have some impact on the grocery and buggy areas, but in our view, that impact was minor. We note that the lay-off occurred oven a week before the distribution centre was transferred to Weston Road. More importantly, we are not satisfied that the impact of this change warranted the significant lay-off which occurred during the third week of March 1986.

45. After Cervini left the stone manager position, he testified that Nickolau would continue on with the task of cutting hours. There is no evidence before us to indicate that Knob Hill cut hours in its Oshawa store after that process was initiated by Cervini in November 1985 in the cash­ier and buggy area. Even if one accepts the employer's evidence that some action was necessary in March 1986 as a result of excessive hours, Knob Hill was faced again with a decision of whether to lay off or cut hours. Cervini testified that at that time the process of cutting hours had run its course and lay-offs were required. But there is no evidence to support this assertion. The Employer made no effort to cut hours of employees working in the grocery area at Oshawa. Duning the time that Cervini was a store supervisor, other Knob Hill stores were involved in cutting hours and did not lay off any of their employees.

46. The laid-off employees were working a considerable number of hours preceding the lay­off. Most worked their regular hours in addition to working overtime. One of the laid-off employ­ees, C. Lockhart, was scheduled to work on March 22 and 23, Saturday and Sunday. Employees testified that after the lay-off, Popovski, Harrison and a security person were involved more fre­quently in stocking shelves. There was also evidence that the store was not kept as clean subse­quent to the lay-off as before since the Oshawa stone was now short-staffed. D. Hobin, an employee in the grocery department, testified that just prior to the lay-off, Knob Hill hired an employee to assist him in his area. Apparently he had made a number of requests for such assis­tance. This particular employee was one of the fourteen that were laid off. Hobin testified that with the lay-off of this employee he was now in the same position he was in previously. When he needed assistance, he would attempt to get help from other employees, but often discovered that they were too busy to assist him when he wanted them.

47. After reviewing all of the circumstances, including the timing of the lay-off and the rea­sons put forth by Knob Hill to justify the need for a lay-off in the third week of March 1986, we are satisfied that part of the reason Knob Hill laid off the fourteen employees when it did was because of a desire on its part to interfere with the union's organizing attempt. Although some business justification for taking some action existed (we are referring here to the transfer of the distribution centre), we are led to conclude that part of the reason for Knob Hill deciding to lay off employees when it did was to communicate to its employees that an attempt to organize can adversely affect their employment.

48. Before concluding this aspect of the case, the Board wishes to comment on three mat­ters. The parties placed before us a considerable amount of evidence which they characterized as "economic" evidence. Primarily, this evidence related to sales figures and hours of work figures for the relevant period of time. We have reviewed this evidence carefully and find it to be of little assistance. Secondly, the Union called witnesses which gave evidence concerning what was said to them by persons who they perceived to be managerial but who the parties agreed were in the bar­gaining unit. Counsel for the Union argued that this evidence was relevant to the issue of whether the Employer contravened the Act. We admitted this evidence on the understanding that counsel would be establishing a link between those persons in the bargaining unit who were perceived to be managerial and management. Since the Union was unable to establish such a link, we did not rely on any of this evidence in arriving at our conclusion that Knob Hill contravened the Act. Finally, during his cross-examination, Nicov said that "the lay-off was not done just because of the Union" and then made reference to the transfer of the distribution centre. He testified previously that he played no role in the lay-offs and clarified his statement in re-examination. The Board is satisfied, when reviewing Nicov's evidence as a whole, that he did not intend to suggest that one of the rea­sons for the lay-off was the presence of the Union when he used the words he did.

V

49. Having established that Knob Hill contravened the Labour Relations Act, there is an onus on the Union to satisfy the Board that it has membership support adequate for the purposes of collective bargaining and that the Employer's contraventions of the Act must have resulted in a situation in which the true wishes of the employees are not likely to be ascertained.

50. In reviewing evidence concerning whether the Union has membership support adequate for collective bargaining, the Board has considered the factors referred to in Manor Cleaners Limited, supra. The Union has filed membership evidence on behalf of approximately 40% of the employees in the bargaining unit as of the terminal date. The Union's organizing campaign had been in effect only for approximately two weeks prior to the lay-offs of March 21, 1986. The cam­paign was gaining momentum just prior to the lay-off. Although the Union was able to obtain some membership cards subsequent to the lay-off, the campaign slowed down considerably and virtually died prior to the application for certification being filed.

51. We have considered the petition filed by the objecting employees. Mrs. Baydak, a cash­ier, gave evidence in support of the petition. She became aware of the Union's application for cer­tification on May 29, 1986 when she saw the Form 6 Notice to Employees. Baydak attempted to obtain information concerning the substance of the Notice from Nickolau and Mr. Wood, the Employer's general counsel. They advised her that they could not assist her. After discussing the matter of unionization with other employees, Baydak initiated the petition. She began to obtain signatures on the petition at the Employer's premises during working hours. Nickolau became aware of this and warned hen not to engage in such activity while she was working. From this point on, Baydak attempted to secure signatures only during non-working periods, although a few employees did approach her while she was working. Nickolau became aware of the fact that Bay­dak had acted contrary to his previous warning. He called her into his office and gave her a written warning. In hen testimony, Baydak gave some general evidence concerning the manner in which the petition was circulated. Of the 156 names on the petition, Baydak signed as a witness for less than half. Baydak did not give direct evidence concerning the circumstances in which each signa­ture on the petition was obtained.

52. Before the Board gives any weight to a petition, it must be satisfied that the persons signing the document did so voluntarily. There is an onus on the party relying on the document to satisfy the Board concerning its origination, preparation and circulation. The petition must be free from the actual or perceived influence of management. See, Lo Food Division of Lumsden Broth­ers Limited, [1983] OLRB Rep. May 676.

53. The Board is not prepared to give the petition filed in this matter any weight in deciding whether the union has membership support adequate for collective bargaining. The Board has no direct evidence before it with respect to the specific circumstances in which each signature was obtained. See, Skelhorns Bus Line Limited, [1986] OLRB Rep. Oct. 1435. In addition, the petition was signed a relatively short time after certain Employer conduct which we have found to have contravened the Act. The lay-offs, the timing of the monetary increase and the other unfair labour practices constitute serious contraventions of the Act. Having regard to all of the circumstances and, in particular, the unfair labour practices and the lack of evidence as to the circulation of the petition, we cannot be satisfied that the petition represents the voluntary wishes of those persons who signed it.

54. In deciding whether the Union has support adequate for collective bargaining, we have considered a submission of counsel for the Employer concerning the Form 9 declaration. In the course of giving his evidence, J. Martin, a key employee organizer, indicated that he turned in his cards along with the dollar payment to someone other than the Form 9 declarant and that the Form 9 declarant did not enquire of him as to whether he did collect a dollar from each person he signed. J. Martin signed as collector on two membership cards filed with the Board. Counsel argued that there was an obligation on the Form 9 declarant to make direct enquiries of each collector, includ­ing J. Martin. Counsel stated that the failure of the Form 9 declarant to make direct enquiries of J. Martin should cause the Board to dismiss the application or, at least, it should cause the Board to conduct an enquiry into the adequacy of the Form 9.

55. In addition to filing evidence of membership, the Union is obligated to have someone

attest to the regularity and sufficiency of the membership evidence by filing with the Board a Statu­tory Declaration. Paragraph 3 of the Statutory Declaration reads as follows:

3. (Where the documentary evidence consists in parts of receipts or other acknowledgments of the payment on account of dues or Initiation fees.) On the basis of my personal knowledge and inqui­ries that I have made, I state that the persons whose names appear on the receipts or other acknowledgments of the payment on account of dues or initiation fees are the persons who actu­ally collected the moneys paid on account of dues or initiation fees and that each member on whose behalf a receipt or an acknowledgment of payment is submitted has personally paid in money the amount shown thereon on his own behalf to the person whose name appears on his receipt or acknowledgment of payment as collector. EXCEPT IN THE FOLLOWING CIRCUMSTANCES:

In National Steel Car Corporation Limited, [1966] OLRB Rep. Jan. 738 at paragraph 13, the Board comments on the kind of knowledge which is required as a precondition to signing the Statutory Declaration (Form 9):

It is readily apparent that a person completing Form 9 must be seized with some type of knowledge in order to satisfy the requirements of item 3 cited above. This knowledge may be personal knowledge (i.e.) knowledge gained by either acting as the actual collector or knowl­edge gained by being personally present and actually witnessing the transaction between the col­lector and the member wherein the membership card was signed and payment of money made by the member to the collector.

The other type of knowledge which is acceptable is that knowledge gained from enquiries made of the persons who actually acted as collectors, or the persons who made the necessary inquiries of the actual collectors.

The requirement that inquiries be made is obviously not an onerous one or one that imposes an undue burden on the applicant; however, the requirement is that inquiries be made.

In order that inquiries be meaningful it is obvious that they must be made after the event. Instruction given to collectors prior to the signing of members may be helpful or necessary in the carrying out of an organizing campaign, however, such instructions do not obviate the necessity of making the inquiries required for the proper completion of Form 9. (See Dominion Stores Limited case, [1964] OLRB Rep. Dec. 447).

[emphasis added]

56. The Form 9 declarant is not required to make enquiries of every collector. Although it may be advisable for a Form 9 declarant to adopt such an approach, it is sufficient if he or she obtains information from persons who made the appropriate inquiries of the actual collectors. The fact that the person signing the Form 9 in this case did not make direct enquiries of J. Martin, in and of itself, is not a reason to dismiss the application nor a reason that would cause the Board to enquire into the Form 9.

57. Counsel for the Employer submitted that the approach the Board has adopted in sec­tion 8 cases should be reconsidered as a result of the amendment to the Act providing for first con­tract arbitration. Counsel suggested that section 8 conflicts with the generally accepted majorito­rian principle. Prior to the recent first contract amendment, the true test of whether a union had sufficient support to engage in bargaining occurred at the bargaining table. If the bargaining unit employees were not in favour of the union or its bargaining stance, a union would likely not be able to conclude a collective agreement. Since the first contract provisions of the Act provide for a situation where the union may get a first collective agreement (even though support for the union is very low) from bargaining unit employees, it was submitted that the Board should lean towards the majoritorian principle in its application of section 8.

58. We reject the suggestion that the recent first contract legislation provides a basis for altering the way in which the Board interprets and applies section 8 of the Act. As noted earlier, the purpose of section 8 is to provide a remedy for trade unions where illegal employer activity has destroyed the ability of employees to choose freely. In part, the first contract provisions represent another remedy to assist trade unions and employees in their initial efforts at collective bargaining in situations where the failure of the union to gain on maintain support from employees is attribut­able to illegal on other undesirable conduct on the part of an employer. The certification stage and the first collective agreement stage represent the first two steps in a continuing process, and the section 8 and first contract remedies are two distinct legislative responses designed to promote col­lective bargaining. An approach by the Board which leaned towards the majoritarian principle would limit the availability of a section 8 remedy, a remedy which attempts to address situations where the Union has not succeeded in receiving majority support because of an employer's illegal conduct. In our view, such a result was not intended by the Legislature when it enacted the first contract provisions. A greaten emphasis on the majoritarian principle would be inconsistent with the purpose of section 8 which addresses circumstances where the true wishes of employees (the majority view) are not likely to be ascertained. In addition, Counsel's argument appears to suggest that access to an arbitrated first collective agreement is automatic. This, of course, is not the case. Since there can be no direction to settle the first collective agreement by arbitration unless it can be demonstrated that bargaining has been unsuccessful because of one on more of the reasons set out in section 40a(2), it is clear that a certificate does not automatically entitle a union to an arbitrated collective agreement under the Labour Relations Act. It is difficult to appreciate why the existence of the first contract remedy should affect the way in which section 8 is interpreted and applied when its availability is anything but certain.

59. After considering the matters referred to above, the Board is satisfied that the Union has membership support adequate for collective bargaining.

60. In determining whether the Employer's contravention of the Act resulted in a situation in which the true wishes of the employees are not likely to be ascertained, we have considered the following submissions from counsel for the Employer. Counsel argued that it was not the Employ­er's conduct which caused the Union's campaign to fail. He submitted that the Union's campaign had peaked prior to any alleged illegal activity and that the Union quit organizing subsequent to the lay-offs. Secondly, counsel argued that other events occurred subsequent to the lay-offs which caused employees to repudiate the Union. Finally, counsel directed us to the evidence of the Union's witnesses who testified that the Employer's conduct would not prevent them from voting for the Union. He argued that this evidence should lead the Board to conclude that the employees were still able to freely choose whether they wanted the Union to represent them.

61. M. Flannigan testified concerning the Union's organizing campaign. The Board is satisfied upon a review of all the relevant evidence that the campaign had not peaked prior to the lay-offs. The dates on the membership evidence disclose that the Union was gaining momentum immediately prior to the March 21, 1986 lay-offs. Subsequent to the lay-offs, the number of cards the organizers were able to obtain declined significantly. The Board is satisfied that after the lay­offs and the pay raise the Union continued to organize, but with limited success.

62. During his cross-examination, Flannigan was asked about some alleged incidents which occurred after the lay-offs. Flannigan denied any knowledge concerning the following four alleged incidents. On March 25, 1986, packages of cereal in the store were slashed. On March 29, 1986, 200 kilograms of rice spilled when the bag was sliced. On April 1, 1986 Frank Blandini's tines were punctured and Cervini received a threat. Flannigan had heard about two incidents although his knowledge concerning them was second-hand and not very extensive. He had heard that the radia­tion and a tine on the stone manager's car had been damaged on March 26, 1986. Flannigan also had heard that there was a fine in the store on April 8, 1986. He was unaware that the Fire Marshall suspected arson. It was put to Flannigan that if the events referred to above occurred, and if the employees were aware of them, and if for one reason or another employees thought union support­ers were responsible for the incidents, then the Union campaign would suffer. Flannigan agreed that it probably would have some effect on the campaign. He indicated that employees were advised by the Union not to engage in such conduct. Counsel for the Employer suggested that if the Union lost support after the lay-off it was because of the events described above.

63. The Board has no direct evidence before it regarding the events put to Flannigan in his cross-examination. The management witnesses who were called to testify did not give evidence with respect to any of the alleged events. There is no evidence before us regarding the extent to which employees in the bargaining unit were aware of these alleged events. In these circumstances, it is very difficult for the Board to conclude that these alleged events caused employees to turn against the Union. The Board declines to give the evidence concerning these alleged events much weight. Even if the Board were to conclude that these alleged events had an impact on the Union’s campaign, this would not mean, of course, that other events, such as the Employer's illegal con­duct, did not have an impact as well.

64. In assessing whether the Employer's violations of the Act have created a situation in which the true wishes of the employees are not likely to be ascertained, the Board utilizes an objective test. The Board's approach and its reasons for it are addressed in the following para­graphs in Zest Furniture Industries Limited, [1987] OLRB Rep. Feb. 299:

65. 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 place, 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. The fact that those persons called by the Union indicated that their support for the Union and their ability to vote was unaffected by the Employer's conduct can be given little weight. The majority of the union's witnesses were obviously strong union supporters. The fact that their views concerning the Union remain unchanged is not particularly surprising, and is of lit­tle assistance in determining the impact of the Employer's unfair labour practices on the typical employee.

46. The Board finds that the Employer's contraventions of the Act, particularly the lay-offs and the wage increase, have resulted in a situation in which the true wishes of employees are not likely to be ascertained. We are satisfied that the Employer's conduct in laying off fourteen employees became common knowledge to the employees working at the Oshawa store. Such a response by the Employer to the Union's organizing campaign would convey the message that support for the Union can bring with it adverse employment consequences. In circumstances such as these, as the Board has commented on in a number of decisions, the issue for employees becomes not whether they wish to be represented by the Union in collective bargaining, but do they wish to keep their jobs. See, Brink's Canada Limited, [1982] OLRB Rep. Aug. 1140; Aurora Resthaven Extended Care & Convalescent Centre, [1986] OLRB Rep. Aug. 1031. The Board is satisfied that any of the remedies it could grant under section 89 would not restore the atmosphere existing prior to the Employer's illegal conduct so that employees would be able to chose freely whether they wish to be represented by the UFCW or not.

47. Having found that the three conditions for a section 8 determination have been met, the Board is satisfied that this is an appropriate case in which to exercise its discretion to certify the UFCW. A certificate will issue to the applicant in respect of the agreed to bargaining unit set out in paragraph 3 of this decision.

48. The Board has found that Knob Hill has breached the Act in a number of respects. Pur­suant to section 89 of the Act, we direct that Knob Hill:

a) forthwith reinstate Chris Lockhart, Jay Martin, Andrew Bernie, John Wray, Jerry Kyle, Dale Clarke, Alan Bolduc, Dan Hennessy, Brad Rumford, Darnin Tessier, Sean Kelly, Peter Boudrey, Glen Chamberlain and Edson Costillio to employment at the Oshawa store;

b) pay to those persons named in paragraph (a) compensation for any loss of wages and benefits as a result of their lay-offs, plus interest thereon calculated in the manner described in Practice Note No. 13;

c) cause copies of the attached notice marked "Appendix" as supplied by the Board to be signed by the Oshawa store manager and posted in conspicuous places on its Oshawa store premises where they are likely to come to the attention of bargaining unit employees and keep such notices posted for sixty working days and take all reason­able steps to ensure that the notices are not altered or defaced or covered by other material; and

d) provide reasonable access to a representative of the Union from time to time during the aforesaid 60-day period to permit the Union to satisfy itself that the Employer is complying with the posting order.

69. The Board remains seized to resolve any dispute regarding compensation and the imple­mentation of the Board's directions.

70. The Board has directed that all fourteen laid-off employees be reinstated and compen­sated for their losses. Only four of the fourteen persons called by the Union as witnesses were laid­off employees. In argument, counsel for the Employer submitted that the complaint should be dis­missed as it relates to those laid-off grievors who did not testify. Counsel submitted that their fail­ure to testify should lead the Board to conclude that they abandoned their claim and are not enti­tled to a remedy. As our remedial order discloses, we did not accept this argument.

71. In Holiday Juice Ltd., [1984] OLRB Rep. Oct. 1449, the Board addressed an argument that only the gnievor who testified should be awarded compensation. Although the basis for the argument was different, the following comments of the Board are applicable to the argument made before us:

72. ... We further note that there is no obligation on a complainant or grievor to testify during the hearing of the merits of a section 89 complaint to which section 89(5) applies. Indeed, the Board is called upon from time to time to deal with cases of mass layoffs in which the calling of each individual grievor would result in unduly protracted proceedings and much unnecessary duplication of evidence. Similarly, in the present case, it was unnecessary for Union counsel to call Messrs. Durham, Nirwan, and Storr since evidence concerning pertinent facts such as their Union activities had already been placed before the Board through the testimony of other wit­nesses and the membership cards filed with the Board by the union....

73. We are satisfied that the evidence necessary to decide the issues before us and the facts relating to all fourteen laid-off employees were before the Board. It was unnecessary for the Union to call every grievor as a witness. We note that the Union, the party who had carriage of the com­plaint, sought a remedy on behalf of all fourteen laid-off employees. The Board is not prepared to conclude that the claims on behalf of ten laid-off employees were abandoned simply because they were not called by the Union to give evidence.

DECISION OF BOARD MEMBER G. O. SHAMANSKI;

1. I dissent.

2. Paul Craig's evidence in respect to his conversation with Wayne Harrison was refuted by Harrison. It is worthwhile to note that this was not the first time Harrison had been exposed to a union organizing campaign during his employment with Knob Hills. His evidence clearly estab­lished that in 1982 at the Knob Hill, Cherry Street stone, there was a union organizing drive and since being transferred to the Oshawa store there has been another two on three organizing attempts. It was made clear to him by Mr. Stavno and Wood that he and all other management per­sonnel were to stay clear of any union attempts to organize Knob Hill employees. He was told by correspondence and verbally that Knob Hill employees had the right to decide whether to have a union or not. He was aware that to contravene this direction would be grounds for discharge.

3. I have no compunction in accepting the totality of Wayne Harrison's evidence in prefer­ence of Paul Craig's evidence.

4. Rhonda Hasted's evidence in my view with respect to hen conversation with Mike Nicol­son, was not of the nature that could possibly be in contravention of sections 64 and 70, consider­ing the fact that Nicolson denied having made the statements attributed to him by Hasted. On the basis of the evidence before this Board I prefer the evidence of Harrison and Nicholson to that of Hasted and Craig.

5. The company, as part of its compensation administrative policy, granted its employees wage increases annually. This is not an unusual practice. The granting of the March 29th increase to all Knob Hill employees was implemented at a time when there was no freeze in effect with respect to section 79. In my view, it is not within the purview of this Board to dictate when a corpo­ration may grant its employees wage increases, other than that provided for with respect to section 79.

6. With the opening of their new facility in Weston, what better way was there to extend their gratitude for the success of the company to their employees than in granting a wage increase to all Knob Hill employees.

7. In my opinion, the company did not contravene sections 64 and 70 of the Act. It should be noted that this wage increase was extended to all employees and not restricted to the Oshawa facility. I am not persuaded that there was any anti-union consideration in respect to the wage increases granted in March 1986.

8. I cannot concur with the majority decision that the evidence of Derek Lacelle oven that pf Nicov is a more credible exposure of what transpired at this discussion. It is certainly within the right of an employer to warn employees of the perils they may encounter if they actively partici­pate in organizing a union on company time, i.e. getting other employees to sign union cards on the premises during working hours. Actions of this nature are not in contravention of the Board's jurisprudence.

9. It would seem to me that Derek Lacelle's interest in this whole scenario is of the nature that would indicate he as well as other union witnesses had a great deal of coaching before giving evidence at this hearing. I am more inclined to give more weight to Nicov's evidence with respect to his discussion with Lacelle. Under the circumstances, I would not have found Knob Hill to have contravened sections 64, 66 and 70.

10. I am not persuaded by the evidence of Rhonda Hasted and Del Gobba with respect to ~tn incident involving six cashiers that took place shortly following the lay-off in an area adjacent to the front office. These people were not asked to stay on after work by Cervini and he denied any attempt to intimidate them. Albeit Popowski, who it is alleged to have initiated this incident, was not called to give evidence with respect to the allegation.

11. Taking this alleged incident at its worst was not of the magnitude to warrant a declara­tion that it constituted an attempt by the employer to intimidate the cashiers and to interfere with the individual rights to form a trade union, contrary to sections 64, 65 and 70 of the Act.

12. With respect to the matter of lay-off of the fourteen employees during the third (3rd) week of March 1986. The company was opening a large facility in Weston. This new facility would ~mbrace the focal point for the corporation distribution centre which was prior to its opening located in the Oshawa stone. One does not have to be an organizational specialist to understand and come to the conclusion that a certain element of work would be reduced at the Oshawa distribution centre when this function was transferred to Weston. A reorganization of this nature is pound to create some upheaval in the work force, be it negative on one end of the scale and posi­tive on the other end of the scale. This does not however translate into contraventions of sections 66 and 70 of the Act, and I would have accordingly ruled that sections 66 and 70 had not been con­travened by the company.

13. It is certainly worth noting at this juncture that the Union had an organizing campaign ~n motion at the facility that stands to have its manning requirements reduced. The Union has also reached a point in time in their organizing drive where support for the Union cause has dried up. They now have reached a point in time where they have to weigh the prospects of success and fail­ure in their organizing drive, and it is obvious from the barometer, i.e. the number of members signed for union membership and the number required, the drive is a failure.

14. The Union's own actions indicate its awareness of how close the final numbers would be. It took steps to have at least one supporter keep notes of incidents involving the Employer. Anyone reasonably familiar with labour relations knows that this is only done with the hopeful intent of bringing unfair labour practice complaints to buttress a shaky certification application. With such a situation, I wonder at how much effort is spent gathering information in support of a section 8 complaint, that could be better spent trying to persuade employees to support the Union, as contemplated by the Preamble to our Act.

15. I am not at all influenced by the Union's evidence that the company violated any part on parts of the Labour Relations Act, with respect to the allegations re: File No. 0542-86-R and 0035-86-U. I would have dismissed the application.

16. I am however persuaded by the evidence given by Donna Baydak that the 156 signatures on the petition were the voluntary expression of the desires of these employees. I would have ordered a representation vote. To deny the employees the right to vote with respect to union rep­resentation in this case is in my opinion in direct conflict with the Ontario Labour Relations Act Preamble.

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 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 OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER

THROUGH MEETINGS, INDIVIDUAL CONVENSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR. RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT LAYOFF, DISCHARGE OR THREATEN TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S 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.

KNOB KILL FARMS 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 22ND day of DECEMBER . 1987.