National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Can-Eng Metal Treating Ltd., 1988 CanLII 3694

[1988] OLRB Rep. May 444

3042-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Can-Eng Metal Treating Ltd., Respondent v. Group of Employees, Objectors

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and D. Patterson.

APPEARANCES: Clare Meneghini, Wayne McKay and Bob Savard for the applicant; Brian P. Smeenk, Richard Ott and Reinhard Jabs for the respondent; Ron Prattis and Gary Prattis for the objectors.

DECISION OF THE BOARD; May 12, 1988

1. By decision dated March 20, 1987, a differently constituted panel of the Board made a number of findings and determinations with respect to this application for certification and directed that further hearings be held for the purpose of receiving "the parties' evidence and representa­tions with respect to the voluntariness of the petition, the allegations of misconduct filed with the Board and all issues arising out of and incidental to the those matters".

4

2. When the matter came on for hearing before this panel, Board File No. 3220-86-U, a complaint under section 89 of the Labour Relations Act came on for hearing with it. Upon motion by the respondent, the Board ruled that the latter would proceed separately as follows:

There are two matters before the Board for hearing today. Board File No. 3042-86-R is an application for certification. Board File No. 3220-86-U is a complaint under section 89 of the Act in which the union alleges the respon­dent has breached section 79(2) (the freeze provisions) of the Act.

The respondent submits that it is not appropriate for the two matters to pro­ceed together. Counsel argues that there is an insufficient nexus or overlap between the certification matter and the section 89 complaint to justify such a procedure. The applicant argues that the union intends to rely upon the alleged breach of section 79(2) to refute the respondent's allegations of impropriety on its part and to support its allegations that the petitions filed are not voluntary.

The certification matter first came on for hearing on February 27, 1987. In a decision dated March 20, 1987 arising out of that hearing, a differently con­stituted panel of the Board refers to the possibility of a section 89 complaint being filed by the respondent relating to the application for certification and directs that any such complaint be consolidated with the application now before the Board.

The respondent has chosen to make its allegations in the context of the cer­tification proceeding rather than filing a separate complaint. Apparently there was some discussion of a possible section 89 complaint by the applicant at the previous hearing, but there is no mention of it in the March 20, 1987 decision.

In our view, the section 89 complaint which has been filed by the union has been filed as though it is an entirely separate matter. Notwithstanding the reference in it to coercion, there are insufficient particulars to establish any relevant nexus between it and the certification matter. Further, the applicant has twice been asked for, and has twice given, particulars of its allegations in support of its assertion that it be certified either outright on the basis of the membership evidence filed, or, in the alternative, under section 8 of the Act. None of its particulars make any mention of a breach of the freeze provisions or the coercive effect thereof insofar as its application for certification is con­cerned. The applicant has had ample opportunity to make such allegations in both the certification proceeding and a section 89 complaint and has failed to do so.

Both section 72 of the Board's Rules of Procedure and section 8 of the Statutory Powers Procedure Act require that a party alleging improprieties by another fully particularize those. This require­ment exists for both labour relations and legal reasons. The labour relations purpose is to try to ensure, as much as possible, that matters coming before the Board would be dealt with expedi­tiously. The legal basis is natural justice; that is, that the party against which allegations of miscon­duct are made be aware of the case it has to meet.

Consequently, we are satisfied that the respondent's position is correct and that it is not necessary, and would serve no useful purpose, to have these two matters heard together. Accordingly, the section 89 complaint will proceed separately and the Registrar is directed to so schedule it for hearing.

The Board also ruled that it would not entertain any evidence from the applicant with respect to matters that it had not properly particularized.

3. The parties agreed that the Board could accept as evidence in this hearing, the evidence given to the Labour Relations Officer in the course of her inquiry, and subsequently transcribed and included in her report to the Board, with respect to the duties and responsibilities of William Fulton and Erwin Vogel as authorized by the Board in its March 20, 1987 decision. Subsequently, in the course of the hearing, the applicant withdrew its challenges to the inclusion of Fulton and Vogel on the list of employees in the bargaining unit. The applicant also withdrew its challenge to the inclusion of Clarke Eady on the list of employees in the course of the Officer's inquiry.

4. In addition, the parties were able to agree to a description of a bargaining unit of employees of the respondent. Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Kitchener, save and except managers, persons above the rank of manager, office, sales ,and technical staff, persons regularly employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. Having regard to the material filed and the agreement of the parties, the Board finds that there were 37 employees in the bargaining unit at the time the application was made.

6. In support of its application for certification, the applicant filed documentary evidence of membership in the form of 25 combination application for membership and attached receipt cards. Of these, 24 bear the names and original signatures of an employee in the bargaining unit and the receipts, which are countersigned by a witness (the collector), indicate that a payment of $1.00 has been made to the union in respect of membership within the six month period immedi­ately preceding the terminal date set for the application. The cards and money were collected by more than one person and the membership evidence is supported by a Form 9 Declaration which attests to its regularity and sufficiency. On its face, and standing alone, the membership evidence filed demonstrates that the applicant has a level of support in excess of that required, section 7(2) of the Act, for certification without a representation vote.

7. However, there were also filed with the Board 11 statements of desire (or petitions, as these are commonly called) in opposition to the application. In all, these contain 28 signatures. However, there are 8 duplicate signatures so that only 20 different people actually signed the peti­tions, all of whom are employees in the bargaining unit. Of these, 9 were persons on whose behalf the applicant had submitted membership evidence in support of its application. The Board's treat­ment of petitions is such that it is those 9 signatures, which purport to indicate that those employ­ees have had a change of heart and no longer wish to support the application, which are relevant to the Board's consideration and would, if proved to be a voluntary expression of the wishes of those employees, raise sufficient doubt concerning the amount of continued support enjoyed by the applicant on the terminal date to prompt the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote notwithstanding the amount of membership evidence filed by the applicant. (See Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15, 16 and 17)

8. The applicant also filed 3 reaffirmations of persons who had previously signed both membership cards and a petition. However, even if proved voluntary, these could, in the circum­stances, have no impact on the Board's considerations.

9. In addition, the applicant and respondent each alleged that the other had breached the Act. The applicant claimed that, should the Board not find that it was entitled to be certified on the basis of the membership evidence filed, the respondent had breached the Act in a manner such that the true wishes of the employees are not likely to be ascertained and that the Board should therefore certify it under section 8 of the Act. The respondent asserted that the applicant or its supporters had breached the Act in a manner such that the Board should give no weight to any of the membership evidence and dismiss the application or, in the alternative, direct the taking of a representation vote notwithstanding the applicant's level of membership support.

10. Finally, in the course of the hearing, the respondent alleged that Luis Wong Jr., one of the employees in the bargaining unit on whose behalf the applicant had submitted membership evi­dence, had not paid either $1.00 or any other amount of money to the applicant, in respect of initi­ation fees or monthly dues, on his own behalf. The seriousness of this "non pay" allegation and its potential implications make it appropriate for us to deal with that issue first.

11. The object in certification proceedings is to determine whether a majority of the employees in the bargaining unit found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Relations Act is structured so that, except where a pre-hearing vote is requested, the certification of trade unions in this Province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of the application. The Board does not inquire into opinions of the virtues of trade union representa­tions except as evidenced by the applicant's documentary evidence and any timely petitions filed in opposition to the application. In Ontario, as in most Canadian jurisdictions, the representation vote exists as a residual mechanism for ascertaining the wishes of the bargaining unit employees in cases where either the applicant trade union does not have the support of more than fifty-five per­cent of the bargaining unit employees, which is necessary for outright certification under section 7(2) of the Act (but does have the support of not less than forty-five percent of them), or where the circumstances are such that the Board sees fit to direct that a vote be taken notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legis­lated primacy of membership evidence as the means by which employee wishes are to be ascer­tained.

12. Accordingly, the Board relies heavily upon the membership evidence filed by an appli­cant trade union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which, pursuant to section 111(1) of the Act, is not usually disclosed to the employer or employees opposing the application and is not usually subject to cross-examina­tion, the Board requires a high standard of integrity and precision in the nature and quality of membership evidence. In order to protect the integrity of a certification process which places heavy reliance upon what is essentially hearsay evidence of support for an application for certification, the Board requires trade unions to be scrupulous in the manner in which they conduct their orga­nizing campaigns and obtain membership evidence. Accordingly, the Board must consider any sub­stantial allegations which, if proved, might, cast doubt on the reliability of membership evidence. Evidence of improper conduct by a trade union or its supporters may raise sufficient doubt as to whether that documentary membership evidence filed in support of an application for certification is a reliable indicator of employee support for the applicant to cause the Board to resort to the con­firmatory evidence of a representation vote notwithstanding that the membership evidence shows, on its face, the union to have the support of more than fifty-five percent of the employees (see Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331; St. Michael Shops of Canada Limited, [1979] OLRB Rep. April 346; The Kendall Company (Canada) Limited, [1975J OLRB Rep. Aug. 611). In cases where improper conduct is established, the Board must assess the proba­ble impact of that conduct on a reasonable employee having regard to the circumstances~ including the nature of the particular workplace. The Board does not act as a censor of the social pressures which are commonly exerted for and against certification. As the Board noted in Alderbrook Industries Limited, supra:

13. Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representa­tion. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, are clearly contrary to sec­tion 70 of the Labour Relations Act and are grounds for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympa­thize with their employer, are to be held against the principal parties to an applica­tion for certification. The Board can no more hold against a union a verbal threat made to an employee's job security by an indiscreet employee who is neither a union officer nor a collector of union membership cards than it can hold against an employer similar threats made by a fervently anti-union employee acting on his own. Evidence of widespread threats which are made by neither the employer nor the union might, of course, cause the Board to resort to the further evidence of a representation vote.

13. Section 1(1)(l) of the Act provides that:

"member", when used with reference to a trade union, includes a person who,

(i) has applied for membership in the trade union, and

(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union, and "membership" has a corresponding meaning;

In an application for certification, the Board must be satisfied that every membership card upon which an applicant trade union relies was signed by the employee on whose behalf it has been ten­dered and that each employee has paid the initiation fee or dues that must accompany it on his own behalf. This is accomplished by ensuring that documentary evidence of membership shows, on its face, that the employees to whom it relates have applied for membership in the applicant, and have paid to it, on their own behalf, at least $1.00 in respect of initiation fees for monthly dues in it, and that the appropriate declaration attesting to the regularity and sufficiency of that member­ship evidence is filed. It is also desirable that the documents show the date on which any person to whom the application and payment was made, although this can be established using viva voce evi­dence. Accordingly, when it is alleged that some person(s) on whose behalf membership evidence has been submitted in support of an application for certification either did not sign the card, or did not make the requisite payment the Board conducts an investigation and, if necessary, a formal inquiry to determine whether there is any substance to the allegations and what effect, if any, should be given to the membership evidence.

14. Mr. Wong testified that he signed the application for membership card submitted to the Board by the applicant on his behalf. However, he stated that another employee, Rick Knight, had paid the dollar that accompanied the card to Richard Schwartz. He denied having paid any money to the applicant and stated that there had been no agreement or even discussion about him repay­ing Knight. Robert W. Savard, who signed Wong's card as the "collector", testified that he gave Wong a blank application for membership card which Wong subsequently returned to him, signed, together with $1.00. Schwartz did not recall ever receiving any money from Knight, or anyone else, with respect to Wong's application for membership and he doubted that any such exchange took place. The Board did not have the benefit of Knight's testimony.

15. Savard, Wayne McKay (the Form 9 declarant), Neville White, and Schwartz all testified with respect to the card collection procedure adopted by the applicant in this case. Their testimony reveals that McKay, White, and Savard met at Savard's home during the evening of Friday, Janu­ary 30, 1987 to discuss how they would go about attempting to organizing the respondent's employ­ees. They decided that Savard, White, and Schwartz (even though the latter was not at the meet­ing) would approach the other employees. McKay, who is employed by the applicant as a "national representative", also explained that whoever signed as the collector of an employee's application for membership card should have observed the act of signing and received the $1.00 payment with respect thereto from the employee concerned. He emphasized that employees must pay the money themselves. Subsequently, Savard explained this procedure to Schwartz.

16. Schwartz gave the cards and money he collected to Savard, who in turn passed them on, as he did the cards and money he said he collected, to White who then passed all of these, together with the ones he had collected, to McKay. For purposes of completing the Form 9, McKay made inquiries with respect to the collection of the cards and money of White only.

17. Savard was not a credible or reliable witness. His demeanour and aggressive attitude while on the witness stand showed him to be an excitable individual who is quick to anger. His con­duct on the witness stand contradicted his words. For example, he testified that he never swears, either when angry or at all. Yet his testimony was liberally sprinkled with profanities. It was also clear Savard was prepared to go to any lengths to ensure that the applicant was certified. In addi­tion, his testimony is riddled with internal inconsistencies and conflicts in many material respects with the evidence of witnesses, like McKay and White, both of whom we found to be credible and generally reliable. In one breath, Savard admitted that he had discussed with White and Schwartz the progress of their meetings with the respondent with respect to the 1987 wage increase for the plant employees. In the next breath Savard denied having any such discussion or knowledge of what transpired at those meetings. Later still, he admitted that he used information about these meetings (although he altered it to suit his purpose) which he obtained from White or Schwartz to help him persuade other employees to sign cards. Savard also testified that he followed all of McKay's instructions regarding the collection of cards and money. However, he admitted that he approached employees during working hours and that Wong did not sign his card in his (Savard's) presence, both of which are directly contrary to those instructions. These examples are not exhaus­tive but do serve to illustrate the quality of Savard's testimony. In the result, we give no weight to any of it on any issue.

18. Schwartz testified in an honest and forthright manner. However, it was quite apparent that his recollection of many material events, including his participation in the applicant's organiz­ing campaign, was often uncertain and incomplete. As a result, we are unable to accept as accurate any of his testimony which is not corroborated, in some way, but other reliable evidence.

19. Wong was not impressive in his demeanour as a witness. He also coloured some of his testimony in an effort to cast a more favourable light on his involvement in a lunch room coffee-throwing incident involving White and Schwartz (which incident we find to the irrelevant to any of our considerations herein). However, his testimony that he did not pay any money with respect to membership in the applicant was clear, unshaken on cross-examination, and uncontradicted by any reliable evidence. We accept that evidence.

20. In the result, we are not satisfied that Wong did in fact pay any money on his own behalf with respect to initiation fees in or monthly dues of the applicant.

21. What effect does this conclusion have on the applicant's membership evidence? Counsel for the respondent, supported by Ron Prattis on behalf of the objecting employees, argued that the non-pay, and what he submitted were serious defects in the inquiries upon which the Form 9 decla­ration was based, should cause the Board to give no weight to any of the membership evidence and that the application should be dismissed. In the alternative, he submitted that the Board should direct that a representation vote be held.

22. We have already explained that the Form 9 declaration is a formal attestation to the regularity and sufficiency of membership evidence. A Form 9 declarant warrants that the persons shown on the membership documents as being the collectors, were the persons who actually col­lected the money paid with respect thereto and that each person on whose behalf membership evi­dence is being submitted paid the money on his/her own behalf. As such, the Form 9 declaration is a check on the reliability of the membership evidence submitted in support of an application for certification. It is so important that the Board will give no weight to any membership evidence unsupported by one (see for example Pietrangelo Masonry, [1981] OLRB Rep. Feb. 218). Further, if it is revealed that a sufficient inquiry was not made by the declarant, or that the declarant failed to set out in it discrepancies of which s/he was or ought to have been aware, the Board will dismiss the application on the basis that the Form 9 is unreliable and that no weight can therefore be given to the membership evidence (see for example Bond Place Hotel, [1983] OLRB Rep. Feb. 202). It is not necessary that the Form 9 declarant have personal knowledge of the material facts to which s/he attests. It is sufficient for the declarant to inform her/himself by making the necessary inquiries of the collectors, or of persons who made the requisite inquiries of the collectors (see Kitchener News Company Limited, [1980] OLRB Rep. Nov. 1656).

23. In this case, McKay, the Form 9 declarant, had no personal knowledge of any of the facts material to his declaration. He obtained all of his information in that regard from White. White had personal knowledge of the membership evidence he had himself collected and passed that on to McKay, together with information he received from Savard about the cards and money collected by Savard and Schwartz. This may not be an ideal way for a Form 9 declarant to inform her/himself. But it is acceptable. There is no suggestion in the evidence that any of McKay, White, or Schwartz conducted themselves improperly or that anyone in the chain passed on incorrect information. On the contrary, we are satisfied that, on the evidence before the Board, McKay made reasonable and sufficient inquiries for the purpose of making the Form 9 declaration and we therefore decline to reject it.

24. With respect to the membership evidence itself, we observe that the object of an inquiry into irregularities in such evidence is to determine what weight can be given to the impugned docu­ments and to the membership documents filed with them (see Dough Delight Ltd., [1986] OLRB Rep. May 603; Olympia Floor and Wall Tile Company, [1987] OLRB Rep. May 762). The effect of wrongful conduct will depend, in part, on the position, and degree of participation in the organiz­ing campaign, of the individual(s) involved. The Board distinguishes between situations involving trade union officers or officials, employee organizers, and employee supporters of the trade union. Where union officers or officials have misconducted themselves, the Board will usually find itself unable to rely upon any of the membership evidence filed. In the case of employee organizers or supporters, the Board will generally give no weight to the card(s) in respect of which the irregular­ity is established and determine what weight is to be given to the remaining membership evidence on the basis of the nature and extent of the irregularity, and its probable effect on a reasonable employee (see for example Websters Air Equipment Company Ltd., 58 CLLC ¶18,110; Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424; N.A. Constructions, [1982] OLRB Rep. Jan. 77; Frankel Steel Ltd., [1984] OLRB Rep. Jan. 28).

25. In this case, it is clear that Wong's card must be disregarded. Savard is also shown as the collector on 4 other cards filed by the applicant 3 of which show the name of an employee in the bargaining unit. Having regard to the prominent role he played in the organizing campaign, his misconduct with respect to Wong's card, his apparent willingness to do anything to ensure that the applicant was certified, and his general lack of credibility, we find ourselves unable to rely upon membership cards collected by Savard and, accordingly, the Board will give no weight to any of them. However, Savard's misconduct does not give us cause to doubt the reliability of the balance of the applicant's membership evidence.

26. Accordingly, the applicant is left with 20 cards upon which the Board is prepared to rely, notwithstanding the misconduct of Savard. This represents a level of membership support below that required for certification without a representation vote and leaves the application in a vote position. We must, however, deal the respondent's allegations that there is reason to doubt the reliability of the membership evidence as a whole because of what it alleges was the improper conduct of Savard, Schwartz, and White in collecting it. More specifically, the respondent alleges that Savard, Schwartz and White all misrepresented the amount of the wage increase the respon­dent intended to give its employees for 1987 to assist them in persuading employees to sign applica­tions for membership in the applicant, that Savard threatened and intimidated employees, and spe­cifically Paul Ott, for the same purpose, and that Savard and another of the applicant's supporters, John Kasprick, intimidated and coerced employees who opposed this application.

27. Paul Ott testified that he was first approached to sign an application for membership in the applicant by White who, he alleged, told him that "everyone else" had signed. He testified that White "badgered him" to sign a card over a 2 day period. Paul Ott also testified that Savard asked him to sign a membership card and that, when he refused to do so, Savard became angry and started shouting that he wanted 100% support for the applicant, that he might as well sign because everyone else had, and that the applicant was already "in". Paul Ott made notes contemporane­ously with the events he described. These notes are inconsistent with his viva voce assertion that White told him that all other employees had signed a membership card and we are not satisfied that White did so. Nor, in our view, was the salesmanship used by White, as described by Paul Ott, improper. Further, we observe that Paul Ott neither signed a card, nor felt threatened by either White or Savard and we find that Savard's actions were taken by Paul Ott to be the exaggerated claims of an excitable union supporter that they objectively were. Accordingly, the applicant's membership evidence cannot be impugned on that basis.

28. The Board heard a great deal of evidence about an incident in a lunch room which occurred either just before or shortly after the terminal date, February 17, 1987. Although there is a conflict in the evidence with respect to when the incident occurred, it is clear that Savard and Kasprick attempted to intimidate Ron Prattis, who led the opposition to this application, and his supporters, by threatening that "scabs" like him could suffer damage to their vehicles. The respon­dent operates a metal heat-treating plant for car and farm implement parts. It is hard work done by employees who are not easily intimidated. In our view, it is unnecessary for us to determine pre­cisely when the lunch room incident occurred because the ill-advised and inappropriate comments of the applicant's supporters did not, in any case, exceed, the normal give and take of this particu­lar workplace and, in all of the circumstances, including the atmosphere in which they were made, would not have deterred a reasonable employee of ordinary convictions (see Kendall Co. (Canada) Ltd., [1975] OLRB Rep. Aug. 611). Indeed, there is no cogent evidence to suggest that it either was or was perceived to be any more than another outburst by the excitable Savard and one of his friends.

29. The respondent's other allegation is more serious. Manual Capa testified that the only reason that he signed an application for membership in the applicant was that Savard told him, in the presence of another employee Joe Weber, that the company was offering a 1987 increase of only 3% inclusive of wages and a uniform allowance. We have already indicated that we reject Savard's evidence in its entirety. Accordingly, Capa's evidence in this regard stands uncontradicted by any cogent evidence. Further, another employee, John McNeil, testified that he was under the impression, from talk in the plant, that the 1987 increase would total 3%. Finally, White, after first stating that he did not do so, admitted under cross-examination by counsel for the respondent that he did tell some employees that it appeared that the wage increase from the respondent "would be no better than the year before when we got 3%". The employees were generally aware that discus­sions were going on between the company and employee representatives, one of whom was White, with respect to a wage increase and there was no reason for them to doubt, at that time, what either White or Savard said in that respect. Insofar as Savard and White between them collected a large majority of the applicant's membership evidence, it seems likely that this misrepresentation pervaded the applicant's organizing campaign.

30. In circumstances where the Board has doubts as to the reliability of the membership evidence as an expression of the true wishes of the employees with respect to whom it is submitted because of the conduct of the applicant trade union, it may direct that a representation vote be taken on the basis that membership evidence must be free of any cloud or taint. In that regard, the Board has distinguished between salesmanship and improper conduct. The misrepresentation in this case does not amount to a threat to any person's employment (see Waldorf Astoria Hotel, [1981] OLRB Rep. Sept. 1308). Nor do we find it to amount to intimidation or coercion within the meaning of the Act. However, conduct need not amount to a breach of the Act to be improper for the purposes of impugning the reliability of membership evidence. It is sufficient if it amounts to a fundamental misrepresentation (see Alex Henry & Son Ltd., [19771 OLRB Rep. May 288). In this case, the misrepresentation does not relate to union security, initiation fees, or dues obligations (see Alex Henry & Son Ltd., supra; Leon's Furniture Ltd., 119821 OLRB Rep. Mar. 404). It raises no concern as to whether employees knew the membership evidence would be used in this applica­tion (see Di-AI Construction, [1982] OLRB Rep. Dec. 1822). Indeed, although we do not condone this sort of conduct, it really amounts to no more than a suggestion that the employees could do better if they had a trade union to bargain on their behalf and we find it to be within the bounds of salesmanship that both supporters of and opponents to an application for certification can be expected to engage in. Even if it did amount to improper conduct, it would not cause us to reject the membership evidence in its entirety. At most, a representation vote could be in order.

31. We must now consider the applicant's request for relief under section 8 of the Act. Cer­tification pursuant to section 8 is an extraordinary remedy to be used only where a trade union is able to establish that there has been interference, intimidation, or coercion by an employer such that is not possible to ascertain the true wishes of the employees with respect to an application for certification (see Ex-Cell-O Wildex Canada, [1977] OLRB Rep. June 370; Winson Construction Ltd., [1976] OLRB Rep. Nov. 714; and [1977] OLRB Rep. April 250; Skyline Hotels Ltd., [1980] OLRB Rep. Dec. 1811). The nature of section 8 is such that no general rules or catalogue of cir­cumstances that will lead to its application can be set down. In each case, the Board must examine the cumulative impact of an employer's conduct in the context of all the circumstances, including the nature of the workplace, as a whole.

32. The applicant did not seriously press its request for relief under section 8 of the Act. To the extent that it did so, it asserted that Richard Ott, the plant manager, acted in a manner which was contrary to the Act, and that his contraventions of the Act were such that the true wishes of the employees are not likely to be ascertained. In that regard, White recounted 2 discussions with Richard Ott. He testified that shortly after the end on the scheduled lunch break on February 5 or 6, 1987, Richard Ott approached him, threw up his arms up and angrily asked "where the flick is everybody" and "you and the fucking union, I know you and Bob Savard are behind it. I'll fucking fix you." White allowed that a number of employees, including Bob Savard, had failed to return from lunch on time. He also testified that on February 12 or 13, 1987, Ott approached him again and asserted that he had just received a telephone call from a customer wanting to know if the respondent's employees were going on strike. White testified that when he denied saying anything like that, Ott said "one of your group did" and "if we lose I.S.M., 4 guys go too". White stated that when he asked if that was a threat, Richard Ott said "no but you had better watch your step". Robin Robertson testified that on February 6, 1987, Richard Ott told him that White and Savard would be "out the door 2 weeks after the union got in". He agreed that Ott appeared to be upset because a number of employees were late returning from lunch (as a result of which Ott had to some of their work) and that Ott indicated that such conduct would not be tolerated whether the employees were represented by a union or not. Richard Ott testified that he did have a discussion with White on February 6, 1987 in which he asked White, who works as a shipper's helper, to not tell either truck drivers or customers that the employees were going on strike because it could affect the company's business and accordingly everyone's job. He also testified that on another occasion he approached White and asked him where "the fuck" everybody was and that "this is flicking ridiculous" referring to the failure of some employees to return from lunch on time. He also testified that he told White, in a raised voice, to "tell Savard and his friends that whether there is a union here or not, I don't tolerate people coming back from lunch late and under the influence of alcohol". He admitted that he was very angry but denied making any direct comment about White or White's job security. Ott further admitted that when Savard, one of the delinquent employees, returned, he yelled at him and warned that "if there was a union, there or not, if he kept this up, I would fire him". Robertson was also late in returning and Ott testified that he warned him that "if it happens again I would fire you, whether there is a union or not" and that he told Robertson that "whether Savard is a union organizer or not, he would be the first to go" and further suggested that Savard's conduct was such that he wouldn't last long whether or not the employees were represented by a union.

33. We find, White, Robertson and Richard Ott all to be credible witnesses. Having regard to the charged atmosphere in which the confrontations with respect to which they testified occurred and their different perspectives, it is hardly surprising that there are inconsistencies in the testi­mony of the three men. The common thread in the evidence, however, is that Richard Ott was concerned with the company's business and productivity, that he was provoked by the delinquent conduct of some employees (not White), and that the target of his anger and comments was the conduct of loose-lipped or delinquent employees, and that he was concerned, not with whether or not White, Savard, Robertson, or any other employee, was a union supporter, but with their con­duct as employees irrespective of the presence of a union. Further, Ott's comments, though intem­perate, did not exceed the limits of tolerance in this particular workplace. Further, we find that White was mistaken in asserting that Ott threatened "to fix" him and Savard because of their union activity, which comment is not consistent with the evidence as a whole. Even if Richard Ott did make such a statement, or his conduct could otherwise be construed to amount to a breach of the Act, we are satisfied that, in the circumstances of this case, they were not of the kind which creates a situation where the true wishes of the employees are not likely to be ascertained. Accord­ingly, the applicant's for relief under section 8 of the Act is dismissed.

34. In the result, the Board is satisfied that not less than 45% and not more than 55% of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on February 17, 1987, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.

35. Accordingly, the Board directs that a representation vote be taken of the employees of the respondent in the bargaining unit found by the Board in paragraph 4 herein.

36. All employees of the respondent in the bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.

37. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

38. Because we have determined that a representation vote should be taken, it is unneces­sary for us to determine whether the petitions filed in opposition to the application are voluntary.

39. The matter is referred to the Registrar.