International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Kuhlman Plastics of Canada Ltd., 1988 CanLII 3606

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Kuhlman Plastics of Canada Ltd.

[1988] OLRB Rep. December 1284

3339-87-R; 3530-87-U International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Applicant v. Kuhlman Plastics of Canada Ltd., Respondent v. Group of Employees, Objectors; International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Complainant v. Kuhlman Plastics of Canada Ltd., Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members I. W. Murray and P. V. Grasso.

APPEARANCES: Elizabeth Mitchell, Dennis Cooper and Don Caryn for the applicant/complainant; Chuck R. Robertson, F. Heerema and Edward L. Klopfenstein for the respondent; J. H. McNair and Brad Horan for the objectors.

DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; December 19, 1988

1The Board (differently constituted in part) consolidated the matters in Board File Nos. 3339-87-R and 3530-87-U on agreement of the parties on April 8, 1988, the first day of hearing. Board File No. 3339-87-R is an application for certification made by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (hereinafter referred to as the "UAW") against Kuhlman Plastics of Canada Ltd. (hereinafter referred to as "Kuhlman"). Board File No. 3530-87-U is a complaint under section 89 of the Labour Relations Act in which the UAW alleges that Kuhlman contravened sections 64, 66, 70 and 79 of the Act. By letter dated March 24, 1988, the UAW advised that it was seeking certification pursuant to section 8 of the Act in the event it was not entitled to outright certification.

2During the first day of hearing, the previous panel found that the UAW is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. That panel also found the appropriate bargaining unit for this application to be as follows:

all employees of the respondent at Blenheim, save and except supervisors, persons above the rank of supervisor, office, clerical and technical staff.

Clarity Note: For purposes of clarity, the parties agree that students who work in the plant on a co-operative grant scheme, administered by government, who are not paid salary or wages by the respondent, are not employees of the respondent for purposes of this application.

3On March 9, 1988, the date of the application for certification, there were 30 employees in the bargaining unit. As of March 25, 1988, 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, 16 employees in the bargaining unit (53%) were members of the UAW. Therefore, the UAW is in the position where it is entitled under section 7(2) of the Act to a representation vote. In addition to the UAW's membership evidence, there was also filed with the Board a petition signed by 21 persons indicating that they wish to oppose the certification of the UAW. Of those 21 persons, 6 had previously signed membership card for the UAW.

4The present panel was scheduled to entertain the evidence and submissions of the parties concerning the UAW's request that it be certified without a vote pursuant to section 8 of the Act. 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 wishes of the employees are not likely to be ascertained.

During final argument, counsel for the objecting employees and counsel for Kuhlman agreed that the UAW had membership support adequate for the purposes of collective bargaining. In view of the parties' positions on this issue and given the evidence before us, the Board finds that the UAW does have membership support adequate for the purposes of collective bargaining. The Board is left then with deciding whether conditions (1) and (3) set out above have been met and, if so, whether it is appropriate to exercise its discretion under section 8 to certify the UAW.

5Kuhlman called M. Laporte, the general manager at the Blenheim plant, E. Kluka, a supervisor, and S. Singh, a former supervisor, to give evidence. B. Horan, P. Knight and J. Thorpe, employees in the bargaining unit, testified on behalf of the objecting employees. The UAW called K. Riha, J. Barnes, P. Pardo and D. Cooper, also employees in the bargaining unit, to testify. In making its findings of fact, the Board assessed the credibility of the witnesses according to the usual criteria, weighed and assessed the testimony in the context of the relative credibility of the witnesses, the documentary evidence and what is reasonably probable in the circumstances.

6At the Blenheim plant, Kuhlman manufactures plastic products, primarily fuel tanks for the automobile industry. The parent company of Kuhlman is Kuhlman Corporation Plastics Group, located in Troy, Michigan. The primary reason for establishing a plant in Canada was to supply the AMC plant in Bramalea with plasticized fuel tanks. Kuhlman purchased its Blenheim plant in July 1986 and Laporte started as general manager on July 15, 1986. Laporte worked out of his house until the plant was ready on August 16, 1986. In September 1986, Laporte began the task of hiring employees with the expectation that Kuhlman would begin shipping products to AMC in Bramalea by February 1987. Although Kuhlman was ready to send products to AMC for that target date, for reasons not here relevant, AMC was not ready to take the product. AMC delayed the target date to August 1987 and again to October 1987. These delays caused Kuhlman to lay off most of its employees at the Blenheim plant. When deliveries began to AMC, Kuhlman started with one shift, before the end of October 1987 it established two shifts and before the year was over, Kuhlman was producing on a three shift basis.

7The UAW began its organizing campaign in December 1987 and, as noted earlier, it applied for certification in March 1988. Although he heard some rumours previously, Laporte testified that the first concrete evidence he had of the UAW's organizing effort was when an employee advised him on January 26, 1988 of a contact from a UAW organizer. The UAW alleges that Kuhlman committed a number of unfair labour practices subsequent to the time Kuhlman became aware of its organizing campaign. On February 4, Kuhlman announced to employees a wage increase as well as the provision of certain other benefits. Beginning in February 1988, Laporte contacted the three senior employees regarding their views on an in-plant committee which was eventually established. Subsequent to the posting of the Notice to Employees concerning the UAW's application for certification, Kuhlman held two meetings with employees, one on March 21 and one on March 23. It is alleged by the UAW that the holding of these meetings with employees and certain statements made at the meetings by Laporte constitute contraventions of the Act. The UAW alleges that Kuhlman supported the petition and that certain foremen made threats to certain employees concerning their job security. Finally, two employees were laid off on April 4, 1988. Shortly after the lay-off commenced, the junior of these two employees was recalled for a brief time. Although the UAW does not challenge the legality of the initial lay-off, it alleges that the recall of the most junior person rather than K. Riha contravene the Act.

8Before dealing with each of the alleged contraventions of the Act, we will refer to some of the evidence called by Kuhlman concerning its brief history and its business philosophy. This evidence was called in order to provide a context to the events and conduct of Laporte subsequent to January 26, 1988.

9Laporte gave some detailed evidence concerning Kuhlman's and his own business philosophy and objectives. One of Kuhlman's main objectives is to remain non-union. Laporte explained that he is not anti-union per se but that the philosophy of Kuhlman and how that philosophy is translated into how Kuhlman operates its business, would not likely meet with the approval of a trade union. For instance, Kuhlman operates, for the most part, with a group rate of pay. In other words, there is essentially one rate for all employees and employees are trained to perform all aspects of all the production jobs in the plant. Length of service does not impact on the group rate of pay. Laporte's business philosophy led to his establishing a number of objectives, including the provision of satisfactory pay and benefit levels, immediate response and solutions to legitimate complaints and plant personnel involvement in decision-making and training.

10The evidence demonstrates that Laporte's philosophy and objectives caused him to act in certain specific ways. It was common for him to go on the plant floor in order to deal with employees on a one-on-one basis. In this way, he was able to hear their concerns and attempt to address them immediately. Meetings were frequently held in the pre-production period between management and employees in order to deal with the sorts of matters a newly-opened plant would have to grapple with. When production began, meetings with employees continued but on a reduced basis. Some surveys were conducted in order to ascertain the needs and concerns of the employees. Laporte initiated a newsletter, the first of which was issued to employees in November 1987, in order to keep employees informed of developments. Counsel for Kuhlman argued that in order to understand Laporte's conduct subsequent to January 26, 1988, it was important to keep this evidence in mind. In counsel's submission, given the "exploding" nature of the business after September 1987 and Laporte's hands-on approach, this evidence supports the argument that Laporte acted in a consistent manner both before and after he knew of the union's campaign and was not reacting to the presence of the union subsequent to January 26, 1988 when he acted in the way he did.

11In reviewing the alleged misconduct, the Board, of course, looks to all of the relevant evidence before it. The Board's task is to determine whether the Kuhlman's conduct, either in whole or in part, was motivated by anti-union considerations. In reviewing the evidence relating to the alleged contraventions of the Act, the Board has considered all of the evidence called by Kuhlman for the purpose of providing a context to the events subsequent to January 26, 1988.

WAGES AND BENEHTS

12In October and November 1987, employees were telling Laporte that their hourly rate was not high enough. In mid-October, Laporte conducted a survey of the employees in which they filled out a written form answering the general questions contained therein. Laporte conducted, as well, a wage survey of the union and non-union original equipment manufacturing facilities in the local area and determined that Kuhlman was paying a wage on the low side. In preparing the budget for the Blenheim plant, which was submitted to Troy on December 1, 1987, Laporte factored in a $1.00 an hour increase for the employees as well as an increase in the employee gain-sharing program. Although this budget was approved in December 1987, no announcement or implementation of the increase occurred at that time since Laporte's superiors determined that a professional survey (an Employee Attitude Survey) would be conducted for the Blenheim employees. This survey was conducted on December 7, 1987 and the results of the survey were available to Laporte when he returned from a vacation in mid-January, 1988. In the latter part of 1987, there was discussion between Laporte and his superiors with respect to paying the employees' OHIP premiums. On December 23, 1987, Laporte announced to the employees that Kuhlman would pay their OHIP premiums effective January 1, 1988.

13The day after Laporte had some concrete evidence of the UAW's organizing campaign, he attended a meeting in Troy, Michigan in which a number of matters relating to the Blenheim plant were discussed. Laporte testified that he did not advise any of his superiors at the meeting about the UAW's organizing effort and that he did not do so until approximately mid-February. At a meeting of employees at Blenheim on February 4, 1988, J. Leadford, Vice-President out of Troy, advised employees of Kuhlman's five-year long range plan while Laporte discussed wages, benefits and other matters. Laporte advised employees in effect that their hourly rate would increase $1.00 per hour effective February 1, 1988, once the sixty-day probationary period was completed and that there would be an increase in the split the employees would receive from the gain-sharing program. Laporte also announced that Kuhlman would soon implement a benefit package for the Blenheim employees consisting of life insurance, a dental plan and a sick bank. It is argued by the UAW that the increase in the wage rate and the provision of the benefits referred to at the February 4 meeting constitute contraventions of sections 64 and 70 of the Act.

14Although the announcement on February 4 of the wage increase and the change to the gain-sharing program came virtually on the heels of Laporte's being advised of the UAW's organizing campaign, the Board is satisfied that Kuhlman did not contravene the Act when it announced and implemented these changes. Employees expressed concern over the wage level by October 1987 and attempts were made by Laporte to ascertain what various employers were paying around Blenheim. The 1988 budget provided for a wage increase which was not implemented in December since the professional survey was being done and would not be discussed until January 1988. In reviewing all of the circumstances, the Board finds that the increase in wages and the change to the gain-sharing program were not made in response to Laporte's recent knowledge of the UAW's organizing efforts, but were the culmination of a process which began in October 1987. However, we have a different view regarding the announcement of the benefits which would be implemented at some point subsequent to the February 4 meeting. In attempting to meet the demands of employees, the focus of Kuhlman's concern appears to have been the wage level. This is not to suggest that benefits were not of some concern to employees and that Kuhlman did not give some thought to the benefit situation. Laporte did announce on December 23, 1987 that Kuhlman would pay for the OHIP premiums beginning January 1, 1988. But the evidence before us does not reveal that other benefits were being considered along with the payment of the OHIP premiums. Although the professional survey did address benefits and this was a matter discussed at Troy on January 27, 1988, when we review all the evidence relevant to this issue, the Board concludes that part of the reason for the announcement of benefits and their subsequent implementation was related to the UAW's organizing campaign. Our sense of the evidence, particularly Laporte's testimony, is that but for the presence of the UAW, the employees would have only received effective February 1 an increase in wages and an improved split in the gain-sharing program. We are satisfied that the February 4 announcement relating to life insurance, a dental plan and a sick bank was, at least in part, made by Kuhlman in order to influence its employees concerning the matter of union representation. Accordingly, the Board finds, given the timing of the announcement as well as all the circumstances, that Kuhlman's announcement on February 4 and the subsequent implementation of life insurance, a dental plan and a sick bank contravenes section 64 of the Act.

THE IN-PLANT COMMITTEE

15In his evidence, Horan, the representative of the objecting employees, indicated that in December 1987, shortly after the UAW's organizing campaign began, a few employees discussed the possibility of forming a committee of employees to deal with management. Horan testified that the discussion did not lead to anything concrete or to any discussions with management since he was concerned about what Kuhlman's response might be. Certain discussions among some employees along the same lines occurred in January 1988 but again went nowhere since these employees were unable to think of a way to approach Kuhlman. After he became aware of the UAW's presence and after the January 27, 1988 meeting at Troy, Laporte decided he would determine if the employees were interested in the formation of an in-plant committee of employees. During the second week of February 1988, Laporte approached the three most senior production employees on an individual basis and asked them if they would be in favour of such a committee. Given the positive response of the three employees, the following notice to employees was prepared by certain employees and signed and distributed to plant employees by M. Vangassen:

February 16, 1988

MEMO TO: ALL PLANT EMPLOYEES

Kuhlman Plastics of Canada Ltd.

SUBJECT: KUHLMAN PLASTICS EMPLOYEES ASSOCIATION

Management requests that we form a committee to address the concerns occurring in the work environment.

We would like you to participate by selecting five (5) names from the attached list to head up the Kuhlman Plastics Employees Association.

The duties of this committee will be determined with the co-operation of management.

Would you please deposit completed sheet in box found in T. GIBBS office.

M. VANGASSEN

Although the reference in the notice was to the "Kuhlman Plastics Employees Association", everyone commonly referred to the newly-created entity as a committee. Laporte's secretary typed the notice which had been reviewed by Laporte. The attached list referred to in the notice contained the names of the plant employees who had completed their probationary period. The employees completed "ballots" which were then deposited in a box in the office of T. Gibbs, a supervisor. A number of decisions, such as the number of employees on the committee and how they would be selected, were made by employees. Horan and P. Knight were two of the five persons elected to the in-plant committee. Laporte prepared a notice to employees dated February 25 advising them which employees were elected to the committee and this notice was distributed to the employees with their pay cheques.

16The in-plant committee was to act as a communication link between employees and management. Employees were to bring concerns or problems to committee members for resolution by the committee. The first meeting of the committee took place on March 1, 1988. After Laporte suggested that the employees on the committee should select a spokesperson, Horan was selected as a spokesperson. At this meeting, there was a discussion about a "grievance form" which was eventually developed and used by employees. The Minutes of the meeting were signed by Laporte and posted for employees. A second meeting occurred on March 8, 1988. When asked by Kuhlman's counsel why meetings of the in-plant committee were held so quickly, Laporte said that he wanted it "up and rolling quickly" and that the increasing rumours of union organizing may have speeded it up a little bit. While the hearing in these matters was ongoing, Laporte issued the following notice to employees concerning the operation of the committee:

May 6, 1988

NOTICE TO EMPLOYEES

Due to the recent application for certification, please take notice that management representatives will discontinue meeting with the Employee Plant Committee until the Labour Board matters are concluded.

I am aware that the need to communicate is still required and anyone who requires attention regarding concerns should follow the following procedures:

FIRST STEP: Discuss with your Supervisor.

STEP TWO: If discussion is not desirable with your Supervisor for whatever reason or you do not consider the response from Step One adequate - contact any Supervisor to arrange a meeting with your Supervisor and myself.

I feel by following these easy steps good communication can be maintained.

Thank you.

M.J. LAPORTE,

General Manager

17Counsel for the UAW argued that Kuhlman's creation of and support for the in-plant committee as detailed above constitutes a contravention of section 64 of the Act. Counsel for Kuhlman and counsel for the objecting employees dispute this allegation and argue that Laporte was not reacting to the UAW's presence by establishing the in-plant committee. Rather, they submit that the committee was simply an extension of Laporte's and Kuhlman's philosophy of establishing sound communication links between the employees and management. The Board was referred to a number of decisions which deal with the Board's response to employee associations or committees, including Homeware Industries Limited, [1981] OLRB Rep. Feb. 164, Primo Importing and Distributing Co. Ltd., [1983] OLRB Rep. June 959, Seven- Up/Pure Springs Ottawa, [1984] OLRB Rep. Jan. 87 and Elgin Handles Limited, [1987] OLRB Rep. Apr. 496.

18In order to avoid problems with employees and to meet his objective of remaining nonunion, Laporte initiated a number of methods to establish communication links with employees. By means of newsletters, surveys, meetings with employees and one-on-one contact with employees on the plant floor, Laporte and management generally attempted to inform and discover the concerns of the workforce. The professional survey did reveal that there was a communication problem to some degree. However, the Board is satisfied that Laporte established and supported the in-plant committee primarily for the purpose of drawing employee support away from the UAW and directing it towards the in-plant committee. Laporte's desire to hold the meetings of the committee as soon as possible given the UAW's presence clearly indicates that the union's presence was an important factor as well when he decided to initiate the committee. It is not simply coincidence, in our view, that Laporte made attempts to establish the in-plant committee a very short time after January 26, 1988 when he acquired knowledge of the UAW's organizing drive. The Board finds that Laporte's conduct related to the in-plant committee as set out above constitutes an intentional interference with the employees' selection of a trade union as their bargaining agent, contrary to section 64 of the Act. Further references will be made to the in-plant committee when we address the meetings of employees that occurred on March 17 and 21, 1988.

MEETINGS OF MARCH 17 & 21

19Laporte received notice of the UAW's application from the Registrar of the Board on March 17, 1988. He considered the matter for an hour and decided to hold a meeting with the employees. On March 17, 1988, Laporte actually had three meetings with employees at different times in order to catch the employees working on all three shifts. During these meetings, each of which lasted approximately an hour, production was virtually shut down. Laporte also decided to have another meeting with the plant employees on March 21. The employees on the afternoon and night shift were called and directed to report to work on the day shift and no production took place

on March 21. The meeting on the 21st was held in the cafeteria on the second floor where Laporte's office is located, commenced at 9:00 a.m. and finished at 11:45 a.m. When his portion of the meeting concluded, Laporte advised the employees that Horan wished to speak to them and Horan then held a meeting with the employees. During that portion of the time Horan met with the employees, Laporte was called in to address a couple of matters.

20There is a conflict in the evidence regarding what Laporte said to the employees at the meetings of March 17 and 21. Almost all of the witnesses were asked what Laporte said at the meetings and their recollections varied considerably. Even the employee witnesses called by the UAW were not entirely consistent in the evidence they gave with respect to what Laporte said at the meetings. We have examined this evidence carefully. As a general comment, we found the evidence of Laporte not to be entirely reliable. In response to a number of questions dealing with some significant allegations, he often responded by saying he could not recall. For instance, it was the position of the UAW, which is supported by the evidence, that Laporte said a number of times at the March 17 meeting that he had been "stabbed in the back" and made motions as if he were removing a knife from his back. When asked about this conduct, Laporte testified that he could not recall saying such a thing or making such motions. In our view, given the dramatic nature of the conduct, it is unlikely one would have no recollection as to whether one acted in such a way or not. Of the employee witnesses, the Board was particularly impressed by Barnes and Pardo since they gave their evidence in a straightforward manner. Although we may not accept some of their recollections given all of the evidence, we found them generally to be credible witnesses.

21Laporte testified that he called the meetings because he wanted to discover what concerns the employees had. He indicated that it was obvious to him that they must have had some concerns since a number of them supported a trade union. He testified that he wanted to get as much feedback as he could from the employees and he wanted to answer questions regarding their concerns. We do not propose to detail the evidence relating to all of the discussion during the meetings. The Board has reviewed the UAW's allegations relating to the meetings in the context of all the evidence and particularly that evidence concerning what occurred at the meetings.

22At both the day shift and afternoon shift meetings on March 17, Laporte frequently asked the employees why they wanted a union. Laporte testified that he perceived the UAW's application as a personal attack. On a number of occasions, Laporte said he had been "stabbed in the back" and he motioned as if he were pulling a knife out of his back. Although he told employees that he was not against unions and the choice was theirs to make, Laporte expressed the view that the employees did not need a union and that there were other options available to them including the in-plant committee. When employees seemed reluctant to participate in the day shift meeting, Laporte advised them that he knew which employees had attended union meetings and who had signed cards. He testified that he said this to employees to convince them that speaking up would not disclose anything to him that he did not already know. The UAW alleged that Laporte made some veiled threats relating to job security during the meetings. In particular, it was alleged that Laporte advised employees that the presence of a union would affect the policy of no lay-offs unless absolutely necessary and might affect Kuhlman's plans to manufacture the EEl tank at Blenheim. After reviewing all of the evidence related to this issue, the Board has concluded that the UAW's allegations concerning threats to job security made by Laporte are not supported by the evidence.

23During the meeting on March 21, 1988, Laporte again asked employees what problems they had. Again there was discussion on a number of issues, most of which were raised by employees. As noted earlier, Horan began to address the employees at approximately 11:45 a.m. in the absence of Laporte. The meeting was interrupted by lunch but resumed once lunch was completed.

Two matters were raised by the employees which Horan and the employees felt should be addressed by Laporte. When Laporte returned to the cafeteria, he was asked if the employees could elect another in-plant committee since some felt the first election was not taken seriously. Laporte responded by saying "yes". Laporte was then asked whether Kuhlman would pay the legal costs of the committee if it incurred any, particularly in an arbitration context. Laporte testified that he responded to this question by saying he did not know why the company would not look at it. The employee witnesses again had different recollections of what Laporte said when he answered this question. In reviewing the evidence on this issue, the Board is satisfied that Laporte told the employees that Kuhlman would pay those legal costs since it would have to pay for its own lawyer anyway.

24Counsel for Kuhlman argued that the holding of the meetings and anything Laporte said at them did not contravene the Act. It was submitted that the holding of the meetings was consistent with Laporte's management style and philosophy in that if the employees had problems he wanted to discover what they were and deal with them. Counsel argued again that the meetings and Laporte's comments were not reactions to the UAW but rather an attempt by Laporte to deal with employee concerns. Counsel noted that Kuhlman had a practice of holding meetings with employees and had developed other communication techniques and that one must view the meetings of March 17 and 21 in the context of this history.

25In the Board's view, the meetings which occurred on March 17 and 21 were different from the kind of meetings the employees had previously experienced. The previous meetings which we heard specific evidence about were held at a time so as to avoid the necessity of stopping production. The meetings on March 17 and 21 were held at times and for a duration which required production to stop. For the meeting on March 21, production ceased for an entire work day. It is difficult to conclude from a review of the evidence that the holding of the meetings and what Laporte said at them was anything but a reaction to the UAW's application. The meetings on March 17 were held very shortly after Laporte received notice of the UAW application. The motion of removing a knife from his back and the comments Laporte made during the meetings make it quite clear that the meetings were held, and the employees believed they were held, because of the prospect of unionization at Kuhlman's Blenheim plant.

26The Board finds that Kuhlman contravened section 64 of the Act when Laporte expressed the view at the March 17 meetings that the employees could deal with the in-plant committee and at the March 21 meeting when he said that Kuhlman would pay certain legal costs which the in-plant committee would incur. As noted earlier, the role Laporte played in establishing the in-plant committee and his support for it contravened section 64 of the Act. The references to the committee at the meetings of March 17 and 21 is further evidence of Kuhlman's support of the committee in the face of the UAW's organizing drive and application. The Board has held on a number of occasions that an employer does not contravene the Act by simply expressing a preference that its employees remain non-union. Laporte's comments at the meetings went beyond the mere expression of such a view, and constitute interference with the UAW within the meaning of section 64 of the Act.

27It is often the case that when faced with an allegation that section 64 has been breached, the Board must balance the rights of employees to organize without being subject to the prohibitions specifically set out in section 64 and the right of an employer to express its views. In performing this balancing function, the Board recognizes that employees can be particularly vulnerable to employer influence. This point is made in the following comments in Taggart Services Limited (1964), CLLR Transfer Binder '64-'66, ¶16,015 at page 13,055:

An employer may express his views and give facts in appropriate manner and circumstances on the issues involved in representation proceedings insofar as these directly affect him and has the right to make appropriate reply to propaganda directed against him in relation thereto. However, he should bear in mind in so doing the force and weight which such expressions of views may have upon the minds of his employees and which derive from the nature and extent of his authority as employer over his employees with respect to their wages, working conditions and continuity of employment. He should take care that such expressions of views do not constitute and may not be reasonably construed by his employees to be an attempt by means of intimidation, threats, or other means of coercion to interfere with their freedom to join a trade union of their choice or to otherwise select a bargaining agent of their own choice.

28In balancing the interests referred to above in the circumstances of this case, the Board finds that Kuhlman contravened section 64 of the Act when Laporte solicited the concerns of employees at the meetings of March 17 and 21, when on March 17 Laporte told employees he had been "stabbed in the back" and made motions as if he were removing a knife from his back and when he advised employees that he knew who signed membership cards for the UAW. One of the primary reasons for having the meetings was to solicit and discuss the concerns of the employees. Implicit in such conduct during the course of a union organizing campaign is that the employer is prepared to satisfy the concerns of employees thereby making union representation unnecessary. (See, The Globe and Mail Division of Canadian Newspaper Company Limited, [1982] OLRB Rep. Feb. 189.) The message Laporte intended to send to the employees is that Kuhlman is prepared to meet their concerns and that the presence of the union is not required. The Board's assessment of why the meetings were held is similar to the assessment of J. Thorpe, one of the objecting employees, who testified that Laporte was interested in what was going on and what could be done to please the employees. Telling employees he had been "stabbed in the back" and the motion of removing a knife from his back, as well as telling employees that he knew who signed cards constitute undue influence within the meaning of section 64. Given the sensitive nature of the employer-employee relationship, Laporte crossed the line of free expression by sending a message to employees that by exercising their rights under the Act, the employees who joined the UAW were stabbing him in the back. This was particularly the case when Laporte told employees that he knew who the union supporters were. This latter statement, even given its context, has the potential to affect an employee's decision to support or to continue to support the UAW, and we are satisfied that the statement was intended in part to have this effect. Employees are likely to be reluctant to support a trade union or to continue to support one if they know that their employer, the entity which determines their working conditions and whether they will continue working, is aware of who signed and who did not sign a membership card.

PETITIONS

29Horan, the chairperson of the in-plant committee, was the employee primarily responsible for the origination and circulation of the petitions. Prior to the UAW filing its application, he had discussed the possibility of opposing the UAW with a limited number of employees. Horan was assisted in his efforts to circulate the petitions by P. Knight, also a member of the in-plant committee and J. Thorpe. Since the voluntariness of the petitions is not a central issue before us, we do not propose to detail the evidence relating to its preparation and circulation. Horan read the notice of the application and the Notice to Employees shortly after they were posted. Near the end of the meeting held for the day shift on March 17, Horan stood up and asked Laporte if it was possible for the employees to circulate a petition. Laporte responded by simply directing Horan to read the Notice to Employees. On the evening of March 17, Horan drafted the first petition at home and the document was circulated at the plant beginning on March 18. On March 21, just prior to the start of the meeting, Horan approached Laporte and asked him if he could have some time with the employees. Both Laporte and Horan testified that Laporte said "yes" without asking Horan why he wanted some time with the employees. In his evidence, Laporte indicated that he gave his permission since Horan was chairperson of the in-plant committee.

30When Laporte concluded his portion of the March 21 meeting, he advised employees that Horan wished to speak to them and left the cafeteria. Horan wanted some discussion to develop, which it did, regarding the pros and cons of unionization. From Horan's comments, it was clear to the employees that he opposed the UAW and wanted the employees to support the in-plant committee. After Laporte returned to answer the two questions referred to earlier and left the cafeteria, further discussion between the employees took place and an employee raised the matter of the petition. After some discussion, a procedure was devised with regard to the signing of the document. Horan, Knight and Thorpe went into a training room located near and visible from the cafeteria. Each employee had the opportunity to enter the training room and when inside could elect to sign or not to sign the petition. While this process was underway, Laporte attempted to enter the training room but was denied access by Horan and left. Once every plant employee had the opportunity to enter the training room, Horan advised the employees that they could go to work. Given the hour, the employees did not return to work and in a short while left for the day.

31On March 22, Horan asked Laporte if he knew any lawyers Horan could contact. Laporte said he did not but that he was meeting with his lawyer that afternoon and he would make some inquiries and get back to him. Later that day, Laporte provided Horan with a list of names of lawyers and said that was the best he could do. After obtaining some legal advice, Horan prepared a second petition since he felt that the first petition might not be valid as a result of the way in which the signatures were obtained. The signatures on the second petition were obtained while employees were outside the Kuhlman plant and it is this second petition that was filed with the Board prior to the terminal date. The Board notes as well that shortly after the meeting of March 22, the employees again elected five employees to be on the in-plant committee.

32The Board agrees with the position advanced by counsel for the UAW that Kuhlman supported the circulation of the petition. We are satisfied that Laporte was aware of Horan's role in sponsoring the petition. Horan specifically asked Laporte about a petition at the end of the March 17 meeting. Given the timing of the meetings, it is difficult to accept that Laporte did not realize that Horan wished to speak to employees concerning his opposition to the UAW when Horan approached him about addressing the employees on March 21. Given what we find to be most probable in the circumstances, the Board finds that Laporte permitted Horan to use Kuhlman's premises during a period of time when employees would usually be working in order to express opposition to the UAW. By permitting this, Kuhlman supported the petition activity and thereby contravened section 64 of the Act. We also find that Kuhlman contravened section 64 of the Act when Laporte assisted Horan by providing him with the names of certain lawyers.

SUPERVISORS' STATEMENTS

335. Singh, who gave notice to leave on March 30, 1988 and worked his last day for Kuhlman on April 15, 1988 was one of Kuhlman's supervisors and E. Kiuka was also a supervisor during the relevant time. Laporte testified that he met with all members of management on March 18, 1988 and told them they were not allowed to discuss matters relating to the union with employees. The UAW has alleged that both Singh and Kiuka made statements to certain employees which constitute contraventions of the Act. In determining whether Kuhlman contravened the Act, having regard to the discussions between Singh and Kluka and certain employees, the Board has reviewed the evidence concerning the discussions and in particular, the context of those discussions. On April 7, 1988, Singh had separate discussions with Barnes and Pardo, the substance of which we find unnecessary to detail. Having regard to the nature of the comments, the fact that the employees were aware that Singh was leaving Kuhlman and the evidence of Barnes and Pardo to the effect that they understood Singh was merely giving them some friendly advice, the Board finds that the brief statements by Singh to Pardo and Barnes do not constitute contraventions of the Act. On March 23, Riha asked Kiuka what he thought about the union situation and Kiuka responded by saying that there would be no expansion of the plant if the union came in. Kiuka testified he could not recall such a conversation with Riha. Although Riha indicated in cross-examination that he did not believe Kiuka was speaking on behalf of Kuhlman when he made the comment, the Board cannot ignore the fact that Kiuka is part of management and the substance of the statement Kiuka made. Kiuka also had a discussion with Barnes. Barnes asked Kluka if he had heard a rumour about Kuhlman building a warehouse. Kiuka responded by saying that if the union came in he did not believe Kuhlman would be building anything. Barnes told some of the employees about this conversation with Kiuka. The Board is satisfied that the statements made by Kluka to Riha and Barnes constitute contraventions of sections 64, 66 and 70 of the Act.

THE RIHA LAY-OFF

34On April 4, 1988, Kuhlman laid off two junior employees, namely K. Riha and S. Brown. Riha started with Kuhlman on March 9 and S. Brown had a start date of March 10, 1988. On April 7, Brown was recalled to work for two midnight shifts beginning on April 7 at 12:00 a.m. and then laid off again. Both Brown and Riha were recalled to work on April 14, 1988. The UAW does not allege that the initial lay-off of the two employees contravened the Act. It does complain, however, that by not recalling Riha, Kuhlman contravened the Act.

35Laporte testified that Kuhlman did follow a practice of first recalling the most senior person on lay-off. Laporte also testified that he had a strong suspicion that Brown was a UAW supporter. Laporte testified that he did attempt to call Riha but was unable to contact him. He then gave instructions to recall Brown. It is clear from the evidence Laporte gave that B. Dye, the personnel administrator, had been involved in decisions relating to the lay-off and recall. Riha testified that he talked to Laporte by phone on April 6, 1988, the same day Brown was being recalled, and asked him how long he would be laid off. Riha testified that Laporte told him the lay-off was indefinite. When Riha asked Laporte on the first day of hearing in Toronto why Brown was recalled and not him, Laporte told him to talk to Dye.

36Section 89(5) is applicable to this allegation. In The Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board addressed the effect of the section 89(5) reversal of the onus of proof as follows:

Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

37On the evidence before us concerning the recall of Brown rather than Riha, the Board cannot be satisfied with Laporte's explanation for not recalling Riha. The Board accepts Riha's evidence that he spoke with Laporte on April 6 and that Laporte said his lay-off was indefinite. It is difficult to understand, given the absence of any explanation, why Riha was not recalled when it was on that very evening that Brown was scheduled to work. In giving his evidence, Laporte was unsure of the date that Brown was called into work and did not know what day he spoke to Riha. In these circumstances, the Board finds that Kuhlman contravened sections 66 and 70 of the Act when it recalled Brown for two shifts instead of Riha. Accordingly, the Board directs Kuhlman to compensate Riha for his losses arising out of this contravention of the Act.

38In summary, the Board has determined that Kuhlman committed a number of unfair labour practices subsequent to Laporte gaining knowledge of the UAW's organizing campaign. Kuhlman contravened the Act when:

(1) Laporte announced on February 4, 1988 that certain benefits would be implemented, and subsequently implemented those benefits;

(2) Laporte encouraged and supported the formation of an in-plant committee, particularly as evidenced by his comments concerning the committee during the meetings of March 17 and 21, 1988;

(3) Laporte held the "captive audience" meetings on March 17 and 21 and conducted himself at those meetings in the manner described above;

(4) Laporte supported the objecting employees in their efforts to oppose the UAW's application;

(5) E. Kiuka, a supervisor, made the aforementioned statements to two employees, and

(6) Brown was recalled to work for two days instead of Riha.

We now turn to the issue of whether the above contraventions have resulted in a situation in which the wishes of the employees are not likely to be ascertained in a vote.

39Since the effect of granting section 8 relief is considerable, the Board has recognized that it is appropriate to take a cautious approach when faced with a request for such relief. This approach is reflected in the comments made in the following paragraphs from Trulite Industries Limited, [1983] OLRB Rep. May 821:

24. 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 offer 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

40As the Board has noted in its decisions, not every violation of the Act by an employer prevents employees from expressing their true wishes. In each case, the Board has regard to all of the circumstances before it when it assesses, as a factual matter, whether the true wishes of employees are not likely to be ascertained. In this exercise, the Board considers whether the contraventions of the Act may be remedied in such a way so as to create a situation in which a vote would likely reveal the true wishes of employees. In The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. Feb. 189, the Board reviews some of the factors which have influenced its determination:

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. April 338, Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Sommerville Belkin Industries Limited, [1980] OLRB Rep. May 79] and A. Stork and Sons Ltd., [1981] OLRB Rep. April 419.)

The Board has also applied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice. In these circumstances the Board is forced to the inevitable conclusion that the true wishes of the employees are not likely to be ascertained. (See Radio Shack, supra, K-Mart, supra, Skyline Hotel Limited, supra and Robin Hood Multi Foods [1981] OLRB Rep. July 972.)

41Counsel for the UAW argued that any one of the contraventions of the Act by itself would not necessarily lead to the granting of the relief requested but that given the number of contraventions and their nature, the Board should certify the UAW pursuant to section 8. Counsel for Kuhlman and counsel for the objecting employees both took the position that even if the Board were to find that Kuhlman contravened the Act, this was not a case in which it should conclude that a vote would not reveal the true wishes of the employees, particularly given the remedies the Board could devise to deal with the unfair labour practices.

42As we noted earlier, the Board reviews all of the facts when making an assessment as to whether the third pre-condition for granting section 8 relief has been satisfied. Although we have found it convenient to deal with each of the UAW's allegations and the relevant evidence relating thereto separately, the events which constitute contraventions of the Act are, for the most part, very much interrelated. We note that Laporte's role in forming and his support for the in-plant committee have a relationship to what Laporte said at the meetings of March 17 and 21 and to Laporte's support of the objecting employees who attempted to convince employees to reject the UAW in favour of the in-plant committee and who were led by two in-plant committee members, including the chairperson of that committee. The relationship of these events which constitute contraventions of the Act would undoubtedly have a significant impact on employees.

43In cases such as Homeware Industries Limited, supra, and Primo Importing and Distributing Co. Ltd., supra, the Board found that employer involvement in establishing an employee organization and support for such an organization did not lead it to conclude that the true wishes could not be revealed in a vote. However, the number of contraventions of the Act the Board was dealing with in those cases was very limited, with the main contravention relating to the employer's conduct concerning an internal employee entity. In addition to the role Kuhlman played with respect to the in-plant committee, it also contravened the Act in a number of other significant ways. And even with respect to its conduct relating to the in-plant committee, the Board finds that Laporte's indication to employees that Kuhlman would pay some of the legal expenses incurred by the in-plant committee is an important factor which was not present in other cases. If the Board were to order a vote in this case, we would in effect be asking employees to decide whether they supported the UAW or whether they supported an in-plant committee favoured by their employer (which in itself would come as no surprise to employees) which their employer is prepared to finance to a certain extent. This latter element would likely have a significant impact on the typical employee. But combined with this element, employees would be asked whether they wanted the UAW as their bargaining agent after Laporte contravened the Act by announcing and subsequently providing certain benefits, after Laporte contravened section 64 of the Act by holding the aforementioned meetings of March 17 and 21, after Laporte supported the objecting employees' efforts to turn the employees away from the UAW, after Kiuka made the unlawful statements to two employees and after Kuhlman contravened the Act in not recalling Riha. The impact on the true wishes of employees of each of these contraventions is not identical. But when we consider the cumulative effect of all Kuhlman's contraventions of the Act, the Board is satisfied that in the circumstances of this case Kuhlman has created a situation in which the wishes of the employees are not likely to be ascertained in a vote. In this regard, the Board notes that the number of employees in the bargaining unit is not large and that Laporte, the person responsible for a majority of the contraventions of the Act, has a history of maintaining a one-on-one contact with employees.

44The Board is satisfied that the remedies it could grant under section 89 would not restore the atmosphere existing prior to Kuhlman's illegal conduct so that employees would be able to freely choose whether they wish to be represented by the UAW or not. With the three pre-conditions to section 8 having been met and given the particular circumstances of this case, the Board finds that this is an appropriate case in which to exercise its discretion to grant the UAW section 8 relief. Accordingly, a certificate will issue to the applicant for the bargaining unit described in paragraph 2 of this decision.

45The Board has found the respondent to have contravened sections 64, 66 and 70 of the Act. Consequently, the Board orders:

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

(b) that Kuhlman provide reasonable access to a representative of the applicant to permit the applicant to satisfy itself that Kuhlman has complied with this posting order;

(c) that Kuhlman give two representatives of the applicant an opportunity to hold one meeting per shift, which will occur within the two weeks of the receipt of this decision or a time satisfactory to the applicant, with all employees, without loss of pay, on Kuhlman's premises during working hours but without the presence of any member of management. Each of these meetings may be as much as one hour in length. Kuhlman is further directed to require all employees to attend such meetings;

(d) that Kuhlman compensate K. Riha for his losses arising out of its failure to recall him for two shifts.

46The Board shall remain seized to resolve any dispute as to the implementation of these orders.

DECISION OF BOARD MEMBER J. W. MURRAY;

1. I agree substantially with the statement of facts set forth above but I cannot come to precisely the same conclusions as the majority.

2. The Board's power under section 8 to grant certification without a vote, depends on three conditions being met, one of which is that a vote would be unlikely to ascertain the wishes of the employees. I am not persuaded this would be the case on the basis of the evidence.

3. There is little doubt that the employer would prefer not to have a union and may even prefer an employee association of some style. This is not uncommon. However of great significance would have been some threats, coercion or other actions or statements which might imply loss of employment. There does not appear to me to be significant evidence of any such situation in this case.

4. The only evidence was a remark attributed to E. Kiuka, a supervisor, concerning the future of this new plant. Evidence showed that Riha (to whom the remark was supposedly addressed) did not believe that Kiuka represented management thinking and would be unlikely to be knowledgeable of company policy. Barnes said he passed on to a few others some interpretation of what he felt Kluka implied. In the overall, it did not seem to be an important factor.

5. In the final analysis, it seems to me there was insufficient employer interference to cause a reasonable employee, thinking in a reasonable manner, to be unable to express his real wishes in a representation vote. I would have had appropriate notices posted in the plant, given the union representatives an opportunity to speak to employees on each shift and then ordered a vote, which would let the employees express their true wishes.

Appendix

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, THE UNION AND THE OBJECTING EMPLOYEES 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, OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

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 CONVERSATIONS 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 ACTIVITIES 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.

WE WILL PROVIDE REPRESENTATIVES OF INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA ACCESS TO OUR PREMISES DURING WORKING HOURS FOR THE PURPOSE OF CONDUCTING ONE MEETING PER SHIFT OF THE EMPLOYEES IN THE BARGAINING UNIT OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT.

KUHLMAN PLASTICS OF CANADA LTD.

PER: (AUTHORIZED REPRESENATIVE)

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

This notice must remain posted f or 60 consecutive working days.