Great Lakes Fishermen and Allied Workers' Union v. Saco Fisheries Limited, 1988 CanLII 3751

[1988] OLRB Rep. October 1087

0181-87-U Great Lakes Fishermen and Allied Workers' Union, Complainant v. Saco Fisheries Limited, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and A. Hershkovitz.

APPEARANCES: M. Darnell for the complainant; R. G. McLister and Adriano Codinha for the respondent.

DECISION OF PATRICIA HUGHES, VICE-CHAIR AND BOARD MEMBER A. HERSHKO­VITZ; October25, 1988

I Background

1. During the late 1960's and early 1970's, Portuguese fishermen began to settle around the ports of Leamington, Kingsville, Wheatley and other centres on the Great Lakes, replacing the deckhands who had been driven by the low prices then characteristic in the fishing industry into the automobile manufacturing industry in the Windsor area. Many of these fishermen, who now domi­nate the industry, enjoy a shared history, perhaps having fought together in Angola, fished with the Portuguese fishing fleet on the Grand Banks off Newfoundland, or simply having come from the same village, in particular for our purposes, from the fishing village of Nazare. Some of the fishermen originally arrived in Canada by way of a "labour contract" under which they would work for the fishery owner who sponsored the contract for a year, after which time they would ask the owner if he had work for them the next year and if so, to sponsor them under other one year labour contracts; eventually, they might come to Canada as landed immigrants, a route taken by other fishermen in the first place. The social, cultural and economic lives of many of these trans­planted Nazareans are bound by the parameters of the local community (in our case, Leamington); they speak little English, congregate in the Portuguese coffee shops and hotel, and rarely venture into the society beyond. The family network is strong: sons follow their fathers onto the boats; the wives of the fishermen work as net repairers or in the processing plants; the wives of the owners may work in the office; a boat crew may be at least partially composed of the owner's sons, cous­ins, nephews or brothers-in-law, by blood or by marriage, or by the sons of the owner's good friends from Portugal.

2. Until recently, crews caught as much fish as they were capable of doing and operated until the weather prohibited it or until prices went down. In February 1984, the Ontario Ministry of Natural Resources instituted "quotas" which limited the amount and type of fish caught to that permitted by a licence issued by the MNR. The dynamics of the industry shifted, with the skill required being directed to the management of the quotas allocated to a fishery in order to realize their maximum value, instead of towards catching the most fish. Owners and crew have both been affected by the quota system. Some companies have gone out of business and smaller ones have sold out to larger ones. There are fewer boats fishing the Lakes, in part because it is more efficient for a single boat to carry more than one licence than to assign one licence to one boat, and consoli­dation, the grouping of licences on fewer boats, is increasingly prevalent. A fishery's value lies in its licences, not in its boats, and it is extremely difficult to sell a boat without a licence. While there are fewer crew working on the Lakes, income has increased and turnover decreased for the deck-hands who remain.

3. Saco Fisheries Limited ("Saco" or "the company"), the respondent in this matter, through the foresight and business acumen of its owner, Adriano Codinha, has taken advantage of the new system. Saco has been consolidating its operations since shortly before the advent of quo­tas, reducing the number of boats it operates, while increasing the number of licences it fishes (the licences are owned by individual members of Mr. Codinha's family, not by the company). At the beginning of 1983, Saco owned seven boats fishing seven licences; by 1986, it operated three boats with three licences each, a total of nine licences (one of the boats, the "Jorge B.", tragically sank with the loss of three crew in September 1983; the other boats were sold). The licences may be fished by Saco boats or "leased" out to other fisheries for a percentage of the value; Saco also leases licences from other fisheries (for example, to fish smelt after its own quotas have been exhausted before lake freezes).

4. In April 1986, some of the fishermen on Lake Erie decided they wanted to organize into a union, specifically the Great Lakes Fishermen and Allied Workers' Union ("the union"), the applicant in this case. Among them were the grievors: Joao Bulhoes, Armindo Ferreira, Paulo Guerra, Antonio Inacio, Cipriano Pilo, Antonio Poupada, and Julio Verrissimo. The approxi­mately 25 applications for certification filed with the Board in the summer of 1986 indicate the community-wide basis of the organizing campaign. The union filed two applications for certifica­tion as the bargaining agent of the boat crews at Saco, one in July 1986 and the second in Septem­ber 1986. Both were unsuccessful: the July application was dismissed by the Board by decision dated September 4, 1986 (see Board File No. 1277-86-R) and the September application was dis­missed October 20, 1986 (see Board File No. 1844-86-R).

5. Much of the evidence adduced in the approximately thirty days of hearing in this case concerned the state of affairs in the Leamington-Wheatley area during the period of union organiz­ing and subsequently. For example, we heard about threats made by the original union organizer, Domingos Belo, now disowned by the union and many of its members, who eventually left the area, but not, it seems, before his conduct had led to hostility and animosity and, in some cases, violence, between union supporters and those opposing the union. From that period, there were also threats against Mr. Codinha and marches on his house. We see no need to detail this evidence, except as specifically relevant to the issues we must determine. But we conclude that the atmo­sphere created during this early period changed the relationships of family member to family mem­ber, friend to friend, and most significantly, from our point of view, the relationship between Mr. Codinha and at least certain of his employees. Indeed, it was clear from events which occurred during the hearing or about which we were informed by the representative for the union and coun­sel for Saco that the hostility continues today. It is against this tense background that the events in this case unfold.

6. As indicated, in 1986 Saco operated three fishing boats: the "A. Poupada", the "Isabel Maria" and the "Miss Nicole" (at one time called the "A.B. Hoover"). When the "regular" sea­son began in March 1987, only two Saco boats went out fishing; the "Miss Nicole" had been put in dry dock at the end of the previous season and was for sale (by the end of the hearing into this mat­ter, it had been sold). As a result, fewer crew members were required. The seven grievors in this complaint fished for Saco in 1986 and for varying periods prior to that, but did not fish in 1987. They claim that the reason they are not fishing for Saco is that they are supporters of the union and they alleged originally that Saco has, by not "recalling" them for the 1987 season, contravened sec­tions 66 and 70 of the Labour Relations Act ("the Act"). Saco responds that there was a good busi­ness reason for fishing only two boats in 1987, instead of three, and that therefore the reduction in crew requirements is motivated by a legitimate purpose and that, furthermore, the fact that these seven men were not working for Saco again in 1987 is simply the result of their not asking for a job, or (in two or three cases), asking for a job until after the company already had a full crew comple­ment.

7. Prior to dealing with the merits of the case, we briefly record our oral disposition of cer­tain preliminary matters considered at the beginning of the hearing.

II Preliminary Matters

8. Counsel for the company objected to the union's filing certain letters with its Complaint (he did not dispute that the letters were sent and received), as well as to reference in the Com­plaint to another Board file involving Saco, which had been settled. We ruled that a party wishing us to take notice of any of the contents of the letters would have to adduce the letters in evidence in the normal course. The earlier file referred to in the Complaint or any evidence adduced in that matter is not before us, and we ruled that we would not take it into consideration. We rejected Saco's contention that the union does not have standing to file complaints under section 66 (or sec­tion 70) of the Act. The union brings the Complaint as agent for the grievors, not on its own behalf. We observe in this regard that Form 58, "Complaint under Section 89 of the Act" begins "The complainant complains that the grievor(s) named in paragraph 2 has (have) been dealt with by the respondent contrary to the provisions of section(s) ..." and that paragraph 2 following reads "(a) Names of grievor(s)". These portions of the Form clearly contemplate that the union may act as the complainant on behalf of individual grievors. They were appropriately completed by the union which attached a Schedule of the grievors' names to the Complaint.

9. Saco argued that since the grievors were terminated, they cannot bring a complaint against the company with respect to not being rehired because there was not an employment rela­tionship. Furthermore, the company contends, although they might have brought a complaint alleging improper dismissal at the end of the 1986 season, it is now too late to do so, especially since some fishermen were hired in January 1987 and the grievors did not come forward then, either to ask for work or to complain. Nor, counsel for Saco added, does the Complaint allege that any of the grievors were actually refused work; if that is the allegation, counsel argued that he was entitled to particulars about when and where the refusal took place and by whom. The representa­tive for the union submitted that it would have been premature for the union to file a complaint in November 1986, when the season ended, since the union's position is that it is the failure to call the grievors to work in the spring of 1987 which contravenes the Act, not the "termination" or "lay­off" in the fall or winter of 1986. He submitted that the issue of whether the grievors applied for jobs should not be determined as a preliminary matter since whether they were required to do so is a major issue in the case. We ruled that under the circumstances, we are satisfied that the earliest point at which the grievors could have filed a complaint about not working for Saco in the 1987 sea­son was early January 1987 when some fishermen, but not the grievors, went out fishing; the com­plaint was filed April 21, 1987, and therefore there is not undue delay even if that date (rather than the first week of March when the "regular" season began) is the appropriate one. As for whether the grievors were employees at the time the complaint was filed or at the same time the events giv­ing rise to the complaint occurred, we ruled that we were not prepared to dismiss the Complaint on a preliminary objection on that basis since the employment status of the grievors vis-a-vis Saco is clearly a central issue in the case.

10. Counsel also stated that he was entitled to particulars about the intimidation and coer­cion which the union alleged occurred contrary to section 70 of the Act. We directed that the union provide particulars with respect to the allegations under section 70. Counsel for the company objected with respect to the latter that they referred to events which had occurred prior to the res­olution of the certification applications and they should be dismissed on the basis of delay. After hearing from the union's representative, we struck those allegations from the Complaint on that basis.

III Scope of the Board's Jurisdiction

A. Where Specific Section of the Act Not Pleaded

11. Section 66 of the Act reads as follows:

12. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

12. At the hearing, counsel for Saco directed his legal submissions only to the elements of "refuse to employ or continue to employ" on the basis that the Complaint did not set out "discrim­ination" as a separate violation. Subsequently, by decision dated June 7, 1988, we requested the parties to make written submissions on the application of the term "discrimination" to the evi­dence adduced and/or the issues raised in this matter. (We emphasize that our request should not be taken to mean that we believe we were required to seek submissions when counsel has chosen of his or her own volition not to pursue a matter; however, in this case, we believed that it would be of assistance to have such submissions before us in reaching our conclusions on the evidence which had been led by both parties.) The major thrust of the submissions filed by counsel for Saco is that we cannot now "amend" or permit an "amendment" of the complaint to allege that there was dis­crimination, as well as a refusal to employ or continue to employ. Such a submission confuses the pleading of a legal theory of the case with specific allegations or statements of material facts which a party believes supports the legal theory. With respect to particulars or the setting out of material facts, the Board is strict, requiring a party to set out all the particulars necessary for the opposing parties to meet the case against them. But it is more lenient with respect to the pleadings them­selves and does not require that a party plead a specific section or specific portion of a section. It is prepared to find that a section or portion of a section that has not been pleaded by a party has been contravened if the evidence supports such a finding.

13. In New Ontario Dynamics Limited, [1975] OLRB Rep. Nov. 845, a certification case in which the applicant alleged a contravention of the Act without specifying which sections of the Act had been contravened, the Board held that it is not necessary to state the specific sections and that the crucial issue is whether there are sufficient particulars of the allegations provided the respon­dent. It concluded: "As for the applicant's failure to 'plead' a specific section of the Act, we took the position that the Board is obligated to apply any section of the legislation that the evidence reveals has been contravened" and cited Genaire Ltd. v. International Association of Machinists and Ontario Labour Relations Board (1958), 1958 CanLII 130 (ON HCJ), 14 D.L.R. (2d) 201 (Ont. H.C.) in support. In that case, McRuer C.J.H.C. said the following:

It is argued by Mr. Dubin, counsel for the Board, that the applicant is strictly confined to seek­ing within the provisions of [then] sections 41-44 of the Labour Relations Act a right to make the application in its present form. With this argument I cannot agree. I do not think the procedure before the Labour Relations Board should be so formal that if an applicant makes an application for relief that he ought not to be granted the relief to which he is entitled because of some technical formality in the framing of the application. In this case I think in substance the application can be considered an application to the Board to revoke its formal order and, that being true, the Board should exercise any jurisdiction given to it under the Act notwithstanding that a particular section of the Act is referred to in the formal application.

[emphasis added]

That conclusion and the reasons for it were explicitly approved by the Ontario Court of Appeal at

(1958), 1958 CanLII 352 (ON CA), 18 D.L.R. (2d) 588.

14. Section 66(a) of the Act refers both to "refuse to employ or continue to employ", and to "discriminate against a person in regard to employment". Not only does the Board have the jurisdiction to find a violation under a portion of the Act not pleaded by the complainant when the evidence supports such a finding, it has an obligation to do so in the manner directed by McRuer C.J.H.C., as approved by the Court of Appeal. Again, it must be emphasized, in light of counsel's submissions, that any finding of discrimination can be based only on the evidence adduced at the hearing with respect to the material facts as alleged by the union in its Complaint. Clearly, to base a finding of a contravention of the Act on anything else would be contrary to the requirements of natural justice; but where the respondent has had every opportunity to respond to the allegations in the Complaint by bringing whatever evidence it considered appropriate (subject to rulings by the Board), it does not deny the respondent natural justice to find that the same evidence supports a legal conclusion not specifically pleaded, as long as the respondent was not denied an opportunity to argue the case on that basis. Accordingly, we have considered whether the evidence supports a finding that Saco discriminated against the grievors separate and apart from whether it contra­vened the Act by refusing to employ or to continue to employ them. That does not, of course, extend our inquiry beyond the very subsection cited by the union in its Complaint.

B. Where there is no Employment Relationship between the Grievors and the Respondent or no Request for Employment by the Grievors

15. Having refused to treat as a preliminary matter the submissions of counsel for Saco that we have no jurisdiction to deal with this complaint because there was not an employment relation­ship between the grievors and Saco in the spring of 1987 and that there cannot be a refusal by Saco to hire the grievors without there first being a request by the grievors for a job, we deal with them now. Counsel relies on New Holiday Tavern, [1987] OLRB Rep. May 753, which concerned an allegation under section 66 of the Act that the respondent refused to employ members of the union in a sale of a business context; the Board stated at para. 19 that "[i]t cannot be said that a respon­dent has 'refused to employ or to continue to employ' a grievor unless the grievor had applied for employment by, or was an employee of, the respondent at the time the alleged unfair labour prac­tice is committed". We do not find New Holiday Tavern, supra, of assistance for two reasons: the nature of the relationship between Saco and the crew members, which we consider immediately following; and the prohibition under section 66 of certain forms of conduct which may constitute "discrimination ... in regard to employment" against persons who are not, from a legal point of view, employees of the respondent.

16. Fishing is a seasonal industry: usually the boats go out sometime in March or April and finish anywhere from the end of October to the middle of December, usually determined by when the quota has been caught. Exceptionally, a boat may continue to work, on a leased licence or for fish not requiring a quota. The employees receive a "Record of Employment" and collect unem­ployment insurance or go to Portugal during the winter. Although there is no legal obligation on an owner to employ a specific individual the next year, it appears that generally in the industry, and certainly at Saco, fishermen from the previous year will return to the same employer, quite often on the same boat. This pattern, to which there are, of course, exceptions, is not seriously dis­puted by either the union or the company in this case. Witnesses called by Saco and by the union understand that deckhands are hired for the season and that the employer can hire whomever it wishes. But those same witnesses also showed, through their own experience, as fishermen, cap­tains or owners (and in some instances, one witness may have been all there, as in the case of Ed Penner, a Saco witness), that, especially in recent years, a crew would likely stay together from one season to the next, although individual crew members might quit the company or transfer from one boat to another at their own request or in response to the needs of the company.

17. For example, the crew of the "A. Poupada" at the end of 1986, was composed of Fran­cisco Petinga (the captain), Antonio Inacio, Antonio Poupada, Armindo Ferreira, Fernando San­tos, Victor Peixe, Porfirio Peixe and Renaldo Bras (Mr. Bras had joined the crew during the sea­son). Five members of that crew, and the captain, had been on the boat in 1985 and as many as four of them had been on the "A. Poupada" with Captain Petinga in 1984, as well, according to Captain Petinga. Messrs. Petinga, Bras and Santos and Victor and Porfirio Peixe all returned in 1987; the only ones who did not return were the grievors Ferreira, Inacio and Poupada. Carlos Agueda and Joao Murracus, both of whom had been on the "Miss Nicole" in 1986, the boat which was not fishing in 1987, were added to the "A. Poupada's" crew in 1987. The captain of the "Miss Nicole" returned to Portugal at the end of 1986 and the remaining four crew members were the grievors Pilo, Guerra, Bulhoes and Verrissimo. The crew of the "Isabel Maria" remained the same in 1987 as it had been in 1986, with Jorge Barbosa as captain. There had been no grievors in the 1986 crew on the "Isabel Maria".

18. Looked at from a different perspective, each of the grievors. with one exception, had been on the same boat for at least three years by the end of the 1986 season. Antonio Inacio had fished on the "A. Poupada" since 1983, as had Antonio Poupada since he had transferred there from the "Isabel Maria" during 1983. Armindo Ferreira had fished on the "A. Poupada" from 1984 until the end of the 1986 season; at the end of 1984, after he asked Mr. Codinha if he could go to another company for a short period to earn extra money, Mr. Codinha put him on the "Miss Nicole" after the "A. Poupada" had completed its quota, but Mr. Ferreira returned to the "A. Poupada" in 1985. Joao Bulhoes had been on the "Miss Nicole" since at least 1983, exclusive of a short period at the beginning of the 1984 season when he was not working for Saco, having quit, along with his captain, Antonio Santos, in order to work on a boat to be purchased by another fishery; when the expected purchase did not materialize, he asked Mr. Codinha if he could come back to work for Saco and in fact returned to the "Miss Nicole". Paulo Gruerra had worked on the "Miss Nicole" since 1984, having previously fished on the "Jorge B." which sank (after the sinking, he went to Portugal and upon his return the next spring his father asked Mr. Codinha if his son could fill a vacancy on the "Isabel Maria"; Mr. Codinha explained that that job was for Joao da Silva Jr., but that Paulo Guerra could have a job on the "Miss Nicole", if it went out, and he was called by Jorge Barbosa, the captain of the "Miss Nicole", to set nets in March 1984). Julio Verris­simo had worked on the "Miss Nicole" since he started with Saco in 1984.

19. The most peripatetic grievor is Cipriano Pilo, but his history is instructive in indicating the circumstances under which crew members stay with Saco. He began working for Saco on the "Isabel Maria" in 1981; fired from that boat in the fall of 1982, after a short period of unemploy­ment he obtained a position on the "A.B. Hoover" to replace his brother who had left in order to attend to his terminally ill wife. Cipriano Pilo did not return to the "A.B. Hoover" in 1983, how­ever, because Captain Santos did not want him back; consequently Cipriano's brother returned to the boat. In 1983, he joined the "Jorge B.", but quit when the captain, Joao Bulhoes, was replaced by a man with whom Mr. Pilo was not on speaking terms. When a vacancy opened up on the "Avco" later in 1983, he was hired to fill it, returning to the "Avco" in 1984 and 1985; during 1985, the whole crew, including Mr. Pio, were transferred to the "Isabel Maria" and then, on his request (again because of disagreements with the captain), he was transferred to the "Miss Nicole" where he finished the 1985 season, returning in 1986.

20. Recognizing that there are deviations from it, the general pattern which has developed, therefore, is that the crew return to the boats on which they finished the previous season. The con­tentious issue is how that occurs: what is the nature of the relationship between events at the end of the season and the return of the crews in the spring? The company contends that there is a uni­versal and invariable "practice" in the industry that at the end of each season each member of the crew approaches the captain of the boat on which he fished and asks if he can "count on" work for the next year, or words to that effect: this practice is referred to by the company as "confirming". The union, the other hand, argues that there is no such practice, that crew members do not specifi­cally and explicitly ask for their jobs, but expect to be fishing the next season unless told otherwise; when the next season starts, the union says, the captain calls the men to tell them when they will be going to set nets. The company says the captain calls only those persons who confirmed their jobs for the coming season.

21. We have considered all the evidence, much of it contradictory, on this matter and con­clude that neither position accurately reflects what happens every year. Rather, there is an infor­mal "practice" by which crew members find out about the next year, which differs from person to person. One crew member might ask the captain what will happen next year, the captain might comment "see you next year" or "we'll be fishing for perch next year" or a crew member and cap­tain might mention it when they meet on the street during the winter hiatus. Some (even many) crew members likely do ask whether there will be work for them the next year, perhaps because they need explicit reassurance or from habit developed when they came to Canada under annual "labour contracts". But we cannot give credence to the claim that even sons or sons-in-law would be out of work simply for failing to ask one question: "Can I count on my job next year", in what is essentially an unstructured industry from a labour relations point of view. That is not to say that both owner and deckhands do not want to know what is going to happen the next year so that they can plan and conduct themselves accordingly. Nor does it mean an owner cannot refuse an individ­ual work the next year: nothing obligates an employer to rehire the same crew, even if he has said he would, if conditions change, or to hire a crew man who did not seek employment until after the owner had hired all the men he needed - as long as such a decision remains untainted by anti-union considerations. In sum, we do not believe there is the rigid system which Saco claims there is. Even Laverne Kelly, one of Saco's witnesses, who was a deckhand for five years and a captain for twenty-seven years, seventeen of which he was an owner-operator of a boat, who testified that even a man who had worked for him for sixteen years had to ask him every year for a job, also said that "if I wanted to get rid of a person, I'd tell him when he asked for a job; [but] if he didn't ask, I wouldn't call him back in the spring", not because he had not asked but because Captain Kelly did not want him back, and that he had offered a man work for the following year. Similarly, one of the union's witnesses, John Batista, the owner of a fishery which was the subject of a Complaint by the union, who testified that the practice of confirmation existed, did call one of the men who had worked in 1986 for work in 1987 after the latter had made the "mistake", for the first time, of not confirming. Thus the failure to ask for a job, even with respect to those who claim there is an invariable practice of confirmation, is not necessarily determinative of whether the deckhand would return the following year.

22. We conclude that in one way or another crew member, captain and owner know, prior to the beginning of the next season, who will compose the crews in the spring. One reason for that knowledge is that in a practical, albeit not legal, sense, there is a presumption of employment from year to year. As we have indicated, the same crew could be with a boat or an employer for several years. We are satisfied that only when it was clearly indicated, would a crew member not reason­ably expect to be coming back the following year. Accordingly, a failure to rehire in the context of this case (and both union and employer attempted to show that the practice they were champion­ing was one used throughout the industry), cannot be said to be conditioned on a formal request for employment: in our view, that would not properly reflect the reality of what actually occurs. For that reason, a denial of the reasonable expectation of the crew members with respect to employment in a subsequent year because they support the union, alone or in combination with other factors, may constitute discrimination in regard to employment, even if there has not been a continued employment relationship or an explicit request for employment.

IV The Application of Subsection 89(5) of the Act

23. The company bears the onus under subsection 89(5) of the Act of satisfying us that the choice of individuals for the 1987 crews was not affected by the grievors' union support or by anti-union considerations. The Board explained its concern about anti-union motive and the nature of the employer's onus in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, at para. 4:

4.... Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti-union motive and which the evidence establishes to be the only rea­son for its conduct.

The specific task of the Board in cases of this kind was articulated in The Barrie Examiner, [1975] OLRB Rep. Oct. 745, at para. 9:

9. The location of the onus of proof is an important consideration in cases such as this one. The reasons, or reason, behind the discharge of an employee occurring in the context of union activ­ity are best determined by an examination of the objective circumstances surrounding the dis­charge. In other words, the circumstantial evidence surrounding the discharge must be exam­ined and inferences drawn from that evidence. There are two competing inferences that can be drawn -- either that the discharge was motivated by an anti-union animus or that the discharge was for some reason totally unrelated to the presence of union activity at or around the time of discharge. The Board must determine which of the two inferences is the more probable.

In this case, the issue is not a "discharge" but rather a deviation from a usual pattern of seasonal hiring, resulting in a failure to rehire persons who would normally have a reasonable expectation of being rehired; that still requires an analysis of the events surrounding or comprising the deviation with resulting inferences and a determination of which of the two inferences referred to by the Board in The Barrie Examiner, supra, is more probable. (Also see, more recently, Holiday Juice Ltd., [1984] OLRB Rep. Oct. 1449.) It is important to observe that our responsibility is not to decide whether it was more or less appropriate to reduce the crews by not recalling the seven griev­ors than other men who had previously fished for Saco (or indeed, than hiring persons new to the company in 1987); it is sufficient in this case to assume that Saco could compose the crews as it wished -- limited only by the requirement that it abide by the Labour Relations Act: Honest Ed's Limited, [1985] OLRB Rep. Nov. 1609. A change in a pattern of hiring, given the nature of this industry, which has a negative effect on union supporters, and not on other persons, will lead to an inference that the change -- under other circumstances quite legitimate -- has been motivated by anti-union considerations, but is an inference that can be rebutted by the employer's satisfying the Board that the reason for the change was totally devoid of anti-union considerations, that is, solely for reasons in relation to which this Board has no jurisdiction.

V The Merits of the Complaint

24. Mr. Codinha said that he did not know that the grievors were union members, except Armindo Ferreira who stood up at a meeting called by Mr. Codinha and attended by all his employees in April 1986, shortly after the union started organizing the boat crews ("the shanty meeting"), and announced that he had joined the union. We find that the evidence supports an inference that Mr. Codinha believed that the grievors did support the union and, indeed, that the crew members Saco did hire in 1987, did not. Joao Bulhoes was involved in a march on Mr. Codin­ha's home, from which Mr. Codinha said he could "assume", although he did not know, that Mr. Bulhoes was a member. He specifically stated that he had "an idea" that Antonio Inacio was mem­ber. But he also said that over time the others stopped talking to him and insulted him and that he had "an idea" that they were members of the union. In cross-examination, Mr. Codinha said that he "learned over time" that the seven grievors were members of the union and that he thinks and presumes that the sixteen persons hired for the 1987 season are not members of the union. Taking into account these comments of Mr. Codinha, the tight-knit nature of the Portuguese fishing com­munity and the dominating impact of the union organizational drive~ we conclude that Mr. Codi­nha would be able to learn -- intentionally or otherwise -- and did believe that the seven grievors were union members or supporters.

25. Mr. Codinha explained that he decided it would be more efficient to run only two boats and he decided to sell the "Miss Nicole". We are content to assume that that decision was made for legitimate business reasons; even if that is the case, and the crew complement had to be reduced, there remains the question of why the grievors were the ones without employment in the spring of 1987. The sequence of events from April 1986 to the spring of 1987 lead us to infer that the grievors' support for the union, about which Mr. Codinha was aware, was a factor in their not being employed by Saco in 1987.

26. Towards the end of April 1986, Mr. Codinha called the shanty meeting. Jorge Barbosa told us that he had advised his father-in-law that he had heard his crew talking about threats of fines by union supporters against persons who did not support the union, as well as statements that the owners would lose their boats, and that Mr. Codinha should tell the men that such things could not happen. Mr. Codinha testified that his nephew Joao (or John) da Silva Jr. came to him and told him about being threatened with a fine or suspension for not joining the union and about threats that Saco would be eliminated from the fishing industry (these threats were apparently made by Domingos Belo) and that was why he called the meeting. Mr. da Silva Jr. denied he had told his uncle about the threats but his wife, Alda da Silva, said that her husband had mentioned them at a family dinner at Mr. Codinha's home. We are satisfied that Mr. Codinha called the meet­ing to inform his employees that the union could not threaten them and that they could choose to join the union or not. From the evidence of the witnesses who testified about the meeting, who remembered selected aspects, but rarely all, of it, we can "piece together" what Mr. Codinha said to the employees.

27. It was commonly stated by union and Saco witnesses that Mr. Codinha asked each per­son in attendance questions about the way in which the company was treating him or her and whether he or she was being paid properly (the crew are paid a percentage of the catch), as well as about safety on the boat. Generally, he asked whether his employees had any complaints: none of those present indicated they had (with the exception of one or two raised by one crew member against another). Witnesses from both the union and the company also said that he told them that no one had a right to intimidate them, including himself, and that they had the right in a free coun­try to join or not join the union. He made some reference to the fishermen's union in British Columbia which seemed to be to the effect that there were successful and non-successful union and non-union boats. He also spoke about the possibility of having to lay off some men if faced with economic problems; he referred to men with the least years of service. including Mr. Ferreira, but not to other grievors (we find that these comments followed Mr. Ferreira's announcement that he had joined the union). On the other hand, he also discussed buying another boat and offering the captaincy to Joao Bulhoes. We do not consider whether this meeting in itself constitutes an unfair labour practice (it was one of the particulars alleged in relation to section 70 of the Act which we struck out), but refer to it to indicate that the presence of the union created in Mr. Codinha's mind sufficient concern that he felt he needed to address his employees on the matter, even if only to try to ensure peace and good will among his crews. The meeting was interrupted by a pro-union dem­onstration held outside the shanty during which demonstrators shouted insults apparently directed as Mr. Codinha and/or at some of his employees and later that day there was a demonstration at Mr. Codinha's home which made his family concerned and fearful.

28. Although following the meeting and over the summer period there were certain events alluded to by various witnesses which indicated that the union's campaign was a relevant presence, the next major event of concern to us occurred at the end of the season when the crew members were handed a Record of Employment which gave "end of contract" as the reason for its issue. Previously, the reason given had been "shortage of work". The purpose of this change, according to Mr. Codinha, was to reflect the reality that fishing is a seasonal occupation and that the fisher­men are hired for a season at a time and are unemployed from the end of one season to the begin­ning of the next. They are not laid off because of a shortage of work in the sense that the boats could not catch more fish or the lake was frozen, but because the quota has been exhausted. The change in wording came about as a result of the advice of Mr. Codinha's lawyer, Gary McLister. The Records of Employment were issued in November and December 1986, shortly after each of the boats finished fishing for the season. Ironically, the phrase "shortage of work" which was not applicable before 1984, when fishing generally stopped only because of the weather, appears to be applicable with the introduction of quotas, since when the quotas are exhausted, there is no more work (this conclusion is supported in fact by the wording on the application forms referred to below which were composed by the employer or Mr. McLister or with Mr. McLister's approval).

29. Mr. Codinha is entitled to change the conditions of work or to introduce new aspects to the operation of his business. He is entitled to change the words on the Record of Employment. In this case, though, that change, in our view, was largely a response to the union's attempts to orga­nize the industry, including Saco, and was intended to make clear that Saco did not consider its fishermen to be continuously employed with it. It set the stage for Saco's position that the grievors could not reasonably have had an expectation of employment from year to year and that they had to ask specifically for work each year. Some of the grievors were worried that the change in work­ing would mean that they would not be able to collect unemployment insurance over the winter and took the Record of Employment to Michael Darnell, the union's representative, to find out if that were so; one of the grievors, Antonio Poupada, also commented that when he saw the word­ing, he thought he might not have a job next year because he had joined the union. Otherwise, nei­ther the grievors nor the men who did obtain employment in 1987 questioned the change in word­ing.

30. Mr. Codinha and many of the men who had worked on Saco's boats spent the winter of

1986-1987 in Portugal. This was not at all unusual, as many of the fishermen visit their native towns and villages every year; some of them have homes there and a few even their families. Nazare is a small place and those people visiting from Canada see each other on the street or at some event, such as a soccer game. This is what happened with Mr. Codinha and half the men who became his crew for 1987; according to Mr. Codinha, and the fishermen, they met, in all but one case, by chance, and each man asked him about a job for the coming season. The application forms which he later had them fill out in Canada show that he met most of them within a period of a few days. Since he was now in a position to tell them he could hire them, he in fact did so. (The other half of the current crew were hired in Canada in late December for early fishing in January.)

31. The grievors Cipriano Pilo and Antonio Inacio both went to Portugal during the winter of 1986-87, the former for about three weeks, returning in January 1987, the latter from December 1986 until March 11, 1987. Although both saw Mr. Codinha there, neither talked with him. Mr. Inacio had spoken with Mr. Codinha in November, prior to leaving for Portugal, to find out what was happening next year. Mr. Codinha told him he could not tell him, as he could not tell anyone. He said he could tell Mr. Inacio after he (Mr. Codinha) returned from Portugal. Julio Verrissimo also spent the winter there, but there is no evidence that he spoke with Mr. Codinha. Joao Bulhoes definitely did not go to Portugal and it does not appear that the other three grievors did, either.

32. As indicated, we were told that the remainder of the current crew applied in Canada at the end of December 1986, only two weeks or so after some of them had been told, according to their testimony, that no jobs could be confirmed. Those persons who were hired at the end of December 1986, went fishing in January 1987 because the lake was unusually clear of ice; in fact, nets were set at the end of December and lifted in January. There was no further fishing until March 1987. The jobs of these men were confirmed at the end of December for the spring of 1987. In examination-in-chief, Captain Barbosa initially said that when he telephoned Mr. Codinha to see about going out and hiring the men who had called him, he had not told his father-in-law the names of the men; later in chief, however, he said he had told him the names and he said the same thing in redirect examination. We find that Mr. Codinha was aware of the identity of the persons who were to fish after Christmas.

33. Upon his return to Canada in March 1987, Mr. Codinha called a meeting for March

12th at his daughter and son-in-law's home of the men whom he or Jorge Barbosa had told could work for the 1987 season. At the meeting, Mr. Codinha explained that the persons present would be his crew for the coming year and to which boat they would be assigned. Each fisherman present filled out a form entitled "Application for Employment Season" (the year "1987" was handwrit­ten in the blank space). (At least one man, Joaquim Vagos, was still in Portugal, but he filled out the form on his return, at Jorge and Isabel Barbosa's house.) The form asked for the applicant's name, birth date, social insurance number, telephone number, address, the position applied for, whether the applicant had had experience in that position and the number of years' experience. The form contained the following paragraph:

I acknowledge that if I am hired by Saco Fisheries Limited, it will be for the ["1987" handwrit­ten in] fishing season only, and this contract of employment shall be automatically terminated when fishing is stopped due to inclement weather or shortage of work due to completion of quo­tas and that thereafter there should be no obligation on the part of the employer to re-hire me at any latter date for any purpose.

It also indicated the date the person made the application, the person's signature, the signature of the person who hired the applicant and the date hired. At the bottom of the application, in hand­writing, was the date and place the applicant had asked for a job, based on notes Mr. Codinha said he had made in Portugal. The forms appear to have been completed by the same person, except for the applicant's signature and the signature of Mr. Codinha and the date the person was hired; the latter appears to be in Mr. Codinha's hand. This was the first time Saco had a requirement that its employees complete an application form. As with the records of employment, we were told that the application forms were implemented as a result of legal advice in order to have in writing what was always done orally. Mr. Codinha testified that he thought something might happen because counsel for the union had written a letter to Saco expressing concern about the implications of the change in wording on the Record of Employment.

34. According to the application he signed, Francisco Petinga applied for a job as boat cap­tain on February 26, 1987 and was hired on that date by Mr. Codinha; he "[asked for job on Feb. 26/87 in Sitio (home)", according to the handwritten notation on his application. We had evidence that Mr. Codinha, who had been attending a church located close to Mr. Petinga's home, took the opportunity to visit him and it was at that time that Mr. Petinga asked for the job. Carlos Agueda applied for a job as "deckhand". The date he applied is indicated as "Feb. 27, 1987"; he was hired by Mr. Codinha on February 27, 1987 and at the bottom of the page is the notation "Asked for job on Feb. 27/87 in Nazare". Reinaldo Bras applied as a "deckhand" on February 22, 1987 and was hired by Mr. Codinha on that date; he "[a]sked for job on Feb. 22187 in Peniche (Bar)" (Peniche is a town close to Nazare in Portugal.) Exactly the same is the case with Porflrio Chicharro and Fran­cisco Inacic. Luis Mauricio also asked for a position and was hired as a deckhand on February 22, 1987, but "in Nazare (soccer field)", as did Rogerio Mauricio. Joaquim Vagos made his application on February 23, 1987, "in Nazare (Capitania)" and was hired by Mr. Codinha that day. Mr. Codi­nha's son-in-law applied for a job as "boat captain" on December 28, 1986 and was hired by Mr. Codinha on that date; there is no handwritten notation on his application. Joao P. da Parteira, John da Silva Jr., Joao da Silva Sr., Joao Murracas, Porfirio Peixe, Victor Peixe and Fernanda Santos applied as deckhands on December 29, 1986, and were hired by Mr. Codinha on that date; there is no handwritten notation on their applications. In all cases, the men had been told they had jobs and in some cases had actually fished before ever seeing, never mind signing, the forms. Again, while in the normal course Saco was entitled to implement application forms, in the circum­stances of this case, such an application is at best a formality: the decisions to hire had been made as far as two and a half months before for some of the employees and all the forms do is emphasize the artificiality of the process engaged in by Saco in hiring for the 1987 season and provide docu­mentary, self-interested evidence, of the grievors' not having participated in the new arrangement.

35. Subsequently, three of the grievors called either Captain Petinga or Mr. Codinha to find out when the boats were starting or generally about work. Armindo Ferreira met Captain Petinga at the Wheatley harbour after the latter returned from Portugal in March, and asked him when they were going to work (Captain Petinga said Mr. Ferreira asked him whether he had authoriza­tion to set nets); the captain could give him no information. After trying unsuccessfully to contact Mr. Codinha, Mr. Ferreira talked to other of the grievors and they decided to take their problem to the union. Mr. Inacio also talked to Captain Petinga who told him first that he had no orders to set nets and then, a few days later, that he could hire only those men the owner told him to take on the boat. When Mr. Verrissimo called Mr. Codinha in March, he was told, in response to his request, that yes, it would be better if he looked for other work (it appears by then Mr. Codinha was acting under legal advice not to talk to the grievors).

36. We are struck by two apparent "coincidences" of timing. The first is that all the men fishing on the Isabel Maria from December 30, 1986, asked Captain Barbosa on the same day if the boat was going out, at least according to their application forms, filled out March 12, 1987. The second coincidence is that all the men who were hired in Portugal were hired within a short period in February 1987, two weeks or so before people started returning to Canada. Mr. Codinha knew who his crews would be before coming back from Portugal, but nevertheless gave Captain Petinga no information about that before leaving Portugal, despite having made the social visit to him ear­lier in the month at which time he had already "confirmed" the jobs of the men who fished in Janu­ary and already had known for over a month of the resolution of all the problems he claimed had prevented the usual confirmations, to the same extent as he knew in February when he confirmed the rest of the 1987 crews. Quite simply, we do not believe that these two groups of hirings were coincidences, but, rather, were orchestrated to ensure that the crew complement would be satisfied without need of the grievors.

37. The events of the spring of 1987, especially seen in the context of events from April

1986 on, and in light of the fact that the union's second application for certification was not resolved until September 1986 (reflected in the October decision) were a dramatic departure from the usual situation. We find no explanation for that departure which satisfactorily rebuts the infer­ence, drawn from the "coincidence" that the seven men not working on the boats in 1987 were union supporters, while those who were working on them in 1987 were believed not to be union supporters by Mr. Codinha, that the grievors' support for the union was a factor in their not being employed by Saco in 1987. The changes in procedure, the refusal to deal with employment at the end of the season, the fact that only Mr. Codinha and his son-in-law hired men for 1987, instead of the usual practice, through the captains (with Mr. Codinha having the final decision-making power, generally delegated to the captains), including Captain Petinga, the hiring in Portugal and after Christmas in two groups, all effectively eliminated the grievors from contention for employ­ment with Saco in 1987. This was true even of the three grievors who had approached either Cap­tain Petinga or Mr. Codinha in March 1987 to ask about the 1987 season. (In addition, one of those three, Mr. Inacio, had spoken to Mr. Codinha in November 1986 about the next season.) The change in Mr. Codinha's treatment of the grievors cannot be ignored. For example, he had rehired Joao Bulhoes even though he was not pleased that he had quit in 1984 without telling him. Even when he had difficulty with Cipriano Pio, he had transferred him to another boat rather than dis­miss him. He had offered Mr. Ferreira a place on one of his boats after he met Mr. Ferreira in Toronto where the latter had gone to work and Mr. Ferreira told him that he was not really happy there; when Mr. Ferreira asked him if he could fish on the "Isabel Maria", Mr. Codinha explained that that boat would then have too many crew members, but he could put Mr. Ferreira on the "A. Poupada". Again, Mr. Codinha gave him a place on his boat even though he was annoyed that Mr. Guerra had failed to remain in Canada to attend at the inquest into the sinking of the "Jorge B.". After giving nearly all of the grievors assistance of one kind or another and after having given them the benefit of the doubt on different occasions, he suddenly refused to give them any information about hiring for 1987 and was apparently totally oblivious to the fact that they were unemployed, in large part as a result of his own actions.

38. The grievors' job performance was not an issue in this case and was not put forward as a reason for their not being hired again in 1987. There was no claim by Saco that any of the grievors were not competent employees; on the contrary, Mr. Codinha testified they were good employees. Although Mr. Codinha testified he had been insulted by some of the grievors and was upset for his family that was not given as a reason. Nor does Saco argue that these seven men were the employ­ees with the least service with the company; "seniority", used in a formal sense, does not apply and there were employees called in 1987 who had fewer years experience with Saco than any of the grievors and some who had more years experience than some of the grievors. The only reason pro­vided by Saco is that the grievors did not confirm their employment or ask for jobs at the end of the 1986 season or between the end of the 1986 season and the beginning of the 1987 season and that Saco had sufficient crew without them.

39. That explanation does not satisfy the onus on Saco to rebut the inference drawn from all the events considered above. We have found that the practice at Saco did not require the fisher­men to ask for their jobs for the next year in an explicit and formal way, but that in the normal course both employee and employer would expect a continuation or resumption of the previous year's relationship. Mr. Codinha decided to institute new practices; that would not have created a problem if those practices and other conduct had not negatively affected only those employees who supported the union and were believed by Mr. Codinha to support the union. We note that even if we were to accept the employer's version of the "practice", on the evidence of Saco's witnesses there was a change, at the employer's behest, in the way the end of season "confirmations" were handled. These witnesses testified that every year, at the end of the season, each crew member asks about a job next year and is almost unfailingly assured that there will be a job, but that at the end of 1986, they were told by the captains that they, the captains, could not confirm jobs because of some business decisions that the owner had to make. The men were not told what they were; however, Mr. Codinha testified that he was trying to sell a boat, the W.H. Wheeler; there was some question about whether the quota would be cut; Saco was attempting to buy another fishery; and he was also engaged in writing to the Ministry of Natural Resources about what he believed to be unfair treatment of him with respect to the quotas: except for the latter, all these matters were resolved in December, 1986. Minutes of a captains' meeting held on October 17, 1986, indicate the captains were told that they could not confirm jobs because of impending business and to advise the crew to contact them later, "around the end of the year", but it does not appear that the crew were all told that. Whichever the practice, we conclude that matters were left open and ambiguous and their resolution resulted in discrimination against the grievors.

40. We do not doubt that Mr. Codinha felt that the union and its supporters had insulted him and frightened his family. It is also clear that he had had a good relationship with his employ­ees -- the grievors themselves say that he did -- and perhaps could not understand why some of them would want to join the union and, furthermore, would be willing to put a breach between him and themselves because of that. And it may be that he thought that his business would run more effectively or smoothly if he did not have to deal with disputes between the union's support­ers and its opponents. There may, in other words, have been all kinds of reasons why Mr. Codinha did not want the seven grievors in his employ in 1987. But that does not warrant not calling them for the 1987 season or for discriminating against them because they supported the union. In this case, the discrimination takes the form of effectively closing out the grievors from the possibility of employment in 1987 through the cumulative effect of the ambiguity at the end of the 1986 season, which ambiguity was a direct result of the employer's own actions, the hiring of employees in Por­tugal and the other factors discussed above.

VI Declaration and Remedy

41. We therefore declare that Saco has contravened section 66(a) of the Act.

42. The union seeks reinstatement and compensation for the period of lost employment, that is the difference between monies the grievors would have earned in 1987 and 1988 and their earnings from other employment, as well as a meeting between the union and the other employees without any interference by Mr. Codinha.

43. The employer does not object to a meeting. We therefore direct that Mr. Codinha allow the union to meet with his employees (that is, the men currently fishing on his boats). The grievors may attend the meeting. The union and Saco shall determine the appropriate place and time. Should they not be able to make mutually satisfactory arrangements, we remain seized of the mat­ter.

44. Counsel for Saco urged us to adopt the approach taken in Peralta Foods, [1987] OLRB Rep. Sept. 1162, with respect to the issues of reinstatement and compensation. In that case, the Board found that the corporate and/or individual respondents, also engaged in the fishing industry on Lake Erie, had breached sections 79(2), 66 and 70 of the Act. The applicant had requested that the grievors in that case be reinstated with compensation for their losses or for full compensation for the 1986 and 1987 seasons (the Board found that the grievors had been improperly laid off prior to the end of the 1986 season). The Board declined to grant reinstatement, but ordered compensa­tion, because the boat on which the grievors had fished was no longer in operation and had been unprofitable; furthermore, the corporate respondent did not own any fishing licences and may not have been able to "rent" any at that time. There might also have been practical difficulties of enforcement with respect to a reinstatement order. But the Board also said that "[a] compensation order, on the other hand, is clearly warranted"; it limited compensation to the losses incurred by the grievors in the 1986 season since "it is far from certain that [their boat] would have fished dur­ing the 1987 fishing season even if the grievors had not joined the Union. Moreover, it is clear from the evidence adduced before us that captains and crew members often leave one boat at the end of a fishing season and go to work on another boat during the next fishing season. Thus it is question­able whether the grievors would have worked for the Company during 1987 in any event".

45. In this case, one of the boats, the "Miss Nicole", which operated in 1986, is no longer operating. Although Saco is not in the same position as the employer in Peralta Foods, supra, which the Board found not to be profitable, and indeed, appears to be one of the most successful employers on the Lake, we do not believe we should require Saco to put another boat to work. Therefore, to reinstate the grievors would require that seven of the current crew be laid off in the course of the fishing season. For reasons which include the practical concerns referred to in Peralta Foods, supra, we are not prepared to require Saco to do that. We emphasize, however, that where the Board is satisfied it would be appropriate, reinstatement is an available remedy in the fishing industry, as elsewhere. Compensation is an appropriate remedy in this case, however; our determi­nation is based on our finding that all the grievors were denied an opportunity to be considered as crew members because of the actions taken by the respondent, even though it is quite possible not all of them would have been rehired in 1987 or again this year. On the other hand, it is likely that some of the grievors would have worked on the remaining boats during 1987 and 1988, and per­haps in 1989, given the pattern of employment we have found. We have considered whether to direct Saco to give the grievors an opportunity to serve as crews in the coming fishing season. We have decided not to do so, however, primarily because the union failed to direct itself to the basis upon which we could make such an order which would require an assessment of the likelihood of each of the grievors being selected as crew in 1989. We are not in a position in this case to make that assessment adequately and therefore decline to do so. For those reasons, the compensation we have awarded is in our view the most appropriate remedy.

46. We hereby direct Saco to pay the grievors compensation for the 1987 season beginning in March 1987 and for the portion of the 1988 season until the date of this decision. The amount of compensation is to be based on the assumption that the grievors would have been members of the crew on the "A. Poupada" or the "Isabel Maria" and on an average of the amounts earned by the crews on those boats for the 1987 season and relevant portion of the 1988 season, taking into account the application of the principle of mitigation.

47. We remain seized in the event a dispute arises in relation to implementing this remedial order.

DECISION OF BOARD MEMBER R. M. SLOAN; October 25, 1988

1. I must respectfully dissent from the majority decision.

2. The evidence shows that prior to the organizing drive by the Great Lakes Fishermen and Allied Workers' Union (the Union) the relationships between Saco Fisheries Limited (Saco) and the crew members of its various vessels were exemplary. According to uncontradicted testi­mony the owner and President of Saco, Mr. Adriano Codinha practiced a management style that promoted a "family" relationship between himself and his employees, and among the employees themselves.

3. In 1986, the Union appeared on the scene in Leamington and Wheatley and evidence adduced shows that Mr. Adriano Codinha, members of his family, and a number of his employees who were not union members, were subjected to acts of insult, intimidation, and terror.

4. The conduct referred to in paragraph 3 includes: A noisy and threatening demonstration at Saco's shanty in Wheatley; two similar demonstrations at Mr. Codinha's home; personal insults directed at Mr. Codinha by a number of grievors; threatening telephone calls to Mr. Codinha and Mrs. Isobel Barbosa, who is Mr. Codinha's daughter; and an assault upon Mr. Joao DaSilva Sr., who is Mr. Codinha's brother-in-law, for which three union supporters were charged and con­victed.

5. Why Mr. Codinha was singled out for such hostile attention by the Union is open to conjecture. The most cogent explanation would appear to be that the Union was not having suc­cess in signing up Saco's employees (the Union did in fact withdraw two certification applications due to lack of membership support) and chose to make an example of this high-profile employer and his employees to attempt to influence by intimidation or other coercive means the decision of other reluctant potential union members in the industry and community who chose to exercise their rights to oppose unionization.

6. I have dealt with the matter of the Union's behaviour in some detail as I wish to con­trast it with the behaviour of Mr. Codinha in dealing with the question of the potential unioniza­tion of his employees. Despite the extreme provocation, which could well have justified different behaviour, we find that there is not a scintilla of evidence that any anti-union discussions, behav­iour or actions took place, in fact:

a) the seven (7) grievors gave testimony to the fact that neither Mr. Codinha nor any member of his family, nor his ships captains ever engaged in anti-union talk or activities.

b) the Union did not adduce any evidence of anti-union activities or dis­criminatory conduct on the part of Saco.

c) it is the evidence of those employees who attended the end of April, 1986 "shanty" meeting (all grievors were in attendance) that Mr. Codinha stressed the right of all employees to the free personal choice to join or not join a union and pleaded for the restoration of the peaceful relations that previously existed.

PERSONNEL ADMINISTRATION

7. The Applicant would have the Board believe that two changes in personnel administra­tion were part of an improper plan to "...refuse to employ..." the grievors. With the advent of the union upon the Great Lakes scene it is understandable that employers would, in the ordinary course of business, review and clarify the status of employees both at the end and at the beginning of each fishing season.

8. The first of the two changes placed in evidence was the "Reason for issuing this record" under section 14 of the Unemployment Insurance Record of Employment Form. Recording the reason for the termination of employment as "End of Contract" rather than "Lack of Work" more closely identifies the reality of the employment relationship and more accurately reflects the nature of the transaction, and was undertaken by Mr. Codinha on the advice of Counsel.

9. As was testified to by Union witnesses the change referred to in the fore-going para­graph did not affect the employees ability to apply for and qualify for unemployment insurance benefits. Of significance here is the fact that all of the Record of Employment forms issued to cover the termination of work at the end of the 1986 fishing season read "End of Contract", all employ­ees were treated in the same manner.

10. In regard to the application for employment forms evidence suggests that the institution of a formal written document, which again was undertaken by Saco on the advice of Counsel, was a routine change to confirm, in writing certain conditions of employment that had been previously understood to exist.

STATUS OF EMPLOYMENT

11. It is clear that at the end of each fishing season, including that of 1986, Saco's crew members were laid off for legitimate reasons and they qualified for and subsequently received unemployment insurance benefits-they were in fact unemployed.

It is also clear from the Minutes of the 17 October, 1986 management meeting that at the end of the 1986 season "... the captains were asked that when the crew ask for next season's job to tell them that we cannot confirm employment at this time ..."

To assert, as the Union does, that each and every crew member had a right to expect to be hired for the 1987 season flies in the face of past practice and the respondent's evidence that jobs could not be confirmed because of pending business matters.

The history of employment at Saco shows that crew members did not return automatically for the following season. The number of boats operated by Saco was reduced from seven (7) at the begin­ning of 1983 to two in 1987 (including one vessel which tragically sunk in 1983). In order to adjust to the smaller number of craft operating, Saco reduced its work force for the 1984 season and con­tinued this practice for the 1987 fishing season.

12. The evidence supports the respondent's assertion that crewmen were hired for each fishing season only and that at the end of each season the employment relationship terminated and there was no obligation on Saco to re-employ any crew member, just as there was no obligation upon crew members to return to Saco. The Record of Employment forms issued at the end of the 1986 fishing season significantly record the "First Day Worked" under section 9, for each fisher­man employed in that year to be a date in 1986 in spite of the fact that all of those employed had worked for Saco in previous fishing seasons - giving credence to the respondents assertion that crewmen were re-hired at the beginning of each season.

CONFIRMATION OF JOBS

13. The evidence makes it abundantly clear that there existed in the Great Lakes Fishing Industry a well-known, well-understood and well-established practice requiring fishermen, at the end of each season, to confirm their job status for the following season with their captains, and/or employers.

14. The evidence of a number of witnesses including that of Mr. John Batista one of the Union's own witnesses, and the compelling testimony of Messrs Edward John Penner and Laverne Kelly, shows that such a practice clearly existed, however informal may have been its execution, throughout the great lakes fishing industry.

15. It would be expected given the nature of Mr. Codinha's management philosophy that a formal written practice would not be in effect at Saco, but except for the grievors whose testimony in this respect I did not find to be convincing, all other Saco crew members and company witnesses who testified in this regard clearly confirmed the existence of the practice.

16. At the end of the 1986 season, no jobs were confirmed and the onus then was placed upon those fishermen who were interested in being re-employed to ascertain their status for the 1987 season.

17. The evidence clearly shows that prior to the hiring of the complement of crew members required for the 1987 season not one single grievor communicated in any manner with Saco Fisher­ies or any of its officers or captains, signifying their interest in returning to work for Saco for the 1987 season of paramount significance is the testimony of Mr. Adriano Codinha that he did not initiate contact with any of the crew members who were hired. It is Mr. Codinha's uncontradicted testimony that each and every crew member hired for the 1987 season applied for a job of his own volition.

18. Why then did the seven grievors not apply, to be re-hired for the 1987 fishing season? It was clearly established that confirmation of work for any season depended, initially, upon a previ­ous communication by each Saco crew member with a member of Saco management. The attempt to organize Saco took its toll in deteriorating relationships - one manifestation was the grievors behaviour in discontinuing normal social contact with those persons at Saco with whom they would be required to communicate if in fact they wished to be rehired for the 1987 season. Having effec­tively removed themselves from consideration for the 1987 season by not communicating their desire to be considered for such work, the grievors became the authors of their own misfortune.

19. There is no evidence whatsoever that any of the grievors were at any material time refused employment.

20. For the reasons stated above, I would find that since the grievors by their own admis­sion did not apply for re-employment, a conscious act of their own choosing, and that those fisher­men who were hired did in fact apply, there is then no violation of section 66(a), for the reason stated by the union in its pleading that the employer "...refused to employ or continue to employ each of the grievors. ..".

EXPANDED PLEADINGS

21. I have strong reservations about the Board enlarging upon the alleged violations of the Act - particularly after the hearings have ended and all the evidence has been adduced. The respondent answered the allegations as pleaded by the applicant and the Board received evidence and heard submissions and argument on the basis of the original pleading.

22. I disagree with the majority decision that having found that a party's case fails, in that they have not proven a violation of a specific provision of the Act, that the Board has an obligation to apply the evidence to other provisions of the Act that it considers have been violated but which have not been pleaded by the applicant.

23. In paragraph 12 of the majority decision reference is made to a New Ontario Dynamics Limited case. The issue in that case centered on the fact that the complainant failed to cite any sec­tions of the Act allegedly contravened by the respondent. In this, the Saco case, the Union very specifically pleaded a violation of the Act viz., that the respondent failed to "...employ or continue to employ...".

The Board in its efforts to ensure fairness to all parties appearing before it as reluctant to permit complainants to alter pleadings, even during the course of a hearing, yet here we find that it is not at the request of the applicant that the pleadings are amended, but on the initiative of the Board.

24. Also in paragraph 12 of the majority decision reference is made to a Genaire case and comments made by McRuer, C.J.H.C. Again, I do not find this reference to be persuasive in this instant case. Justice McRuer made his ruling on the basis that "...some technical formality in the framing of the application" should not prevent an applicant from being granted relief. There is no such technical formality with which the Board has to deal in this instant case, the Applicant having very clearly chosen the grounds upon which it presented and argued its case.

25. There is no provision in the Labour Relations Act nor in the Board's jurisprudence requiring the Board to search the Act and enlarge upon, in each and every application, or to extend the pleadings of any of the parties. Surely Mr. Justice McRuer's words are not meant to impose such an onerous undertaking upon the Board. Yet I see the effect of the majority decision by including the "discrimination" issue in the pleadings as requiring just that.

26. It is my view that the majority decision to reject the union's application on the grounds that they did not make their case on the basis pleaded, but are found by the Board to be successful on other grounds introduced by the Board after the hearings have been completed - is prejudicial to the respondent.

27. The majority bases its decision supporting the "discrimination" proposition on their belief that Mr. Codinho knew that the seven grievors were Union members. Mr. Codinho did not deny knowing that the grievors were Union members, he testified that he could not be certain. It would not be surprising if Mr. Codinho did indeed assume that certain individuals were Union members given the two certification applications; the public admission by at least one grievor; and the anti-company behaviour of a number of other grievors; and the polarization that took place in the community -- but it cannot be inferred that because Mr. Codinho may have been aware of their union status and that they are not now working for Saco, that their union membership is the rea­son. The inference which I believe can be drawn is that the grievors never expected to be hired because they had behaved in a manner which upon reflection they believed disqualified them from consideration for employment and therefore they chose not to apply for the 1987 fishing season.

28. Having found that the grievors were the shapers of their own destinies and totally responsible for their not being re-employed for the 1987 season, I would find that the Union's case fails on the "discrimination" grounds as well.

REMEDY

29. The remedy contained in the majority decision is excessive in my view. The respondent had need for only fourteen crewmen for the 1987 fishing season - a reduction of seven from the end of the 1986 fishing season due to the placing of the Miss Nicole II in drydock. Had any of the griev­ors applied and had any of them been hired, then a corresponding number of those fishermen who were hired would not have been re-employed by Saco and the respondent's operation would at all the material times have been run with only fourteen crew members.

30. The effect of the majority decision is to burden the respondent with enormous costs for periods (both the full 1987 fishing season and part of the 1988 fishing seasons) when the operation clearly required the services of only fourteen crewmen and when the Board has found that the removal of the one vessel, necessitating a reduction in crew members, was done for legitimate busi­ness reasons.

31. At the most, I believe the remedy should apply the reasoning and the remedy contained in Peralta Foods, (File No. 1573-86-U), where the Board found that given the fact that there were no jobs for the grievors to return to, compensation rather than reinstatement was the appropriate remedy. The Board in the Peralta case, idem, went on to say:

On the basis of the circumstances described above, we have concluded that it is far from cer­tain that the "Ilda C" would have fished during the 1987 fishing season even if the grievors had not joined the Union. Moreover, it is clear from the evidence adduced before us that captains and crew members often leave one boat at the end of a fishing season and go to work on another boat during the next fishing season. Thus, it is questionable whether the grievors would have worked for the Company during 1987 in any event.

[emphasis added]

In this case the grievors also have no job to return to without displacing current crew members. The grievors do not have any right to a job and there are no jobs to which they could in fact be re­instated, and as they have not been deprived of work any "remedy" is therefore not appropriate.

32. What the majority decision fails to take into account in ordering the defined compensa­tion for all of the seven grievors, is the fact that had all of the seven grievors applied for jobs the respondent would have had to select only fourteen crew members from the twenty-one applicants. It is possible that following the application of a variety of selection criteria - which the respondent had every right to do under the circumstances - all, or some, or none of the grievors would not have been hired in any event. Legitimate considerations such as: years of service in the fishing industry; years of service with Saco; relative merits of job performance; ability to function effec­tively as a member of a ship's crew; - could have eliminated some or all of the grievors from con­tention.

SUMMARY

33. In summary then I would dismiss the application on the grounds that:

a) the Union failed to prove a contravention of the Act as alleged and that the employer did not in fact "... refuse to employ or continue to employ each of the grievors" as specifically stated in the Schedule attached to the Union's complaint dated 16 April, 1988.

b) i) I do not support the majority decision conclusion that the Board's jurisprudence or practices or the Labour Relations Act itself gives the Board the right as stated in paragraph 11 "... to find that a section or portion of a section that has not been pleaded by a party has been contravened if the evi­dence supports such a finding." Under section 72(1), Regu­lation 546, Rules of Procedures, it is explicitly clear that --among other matters:

"... and where he alleges that this improper or irregular con­duct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provisions". (emphasis added)

The Union was very specific in meeting its obligations in this regard; the evidence was adduced and testimony rendered on the basis of the allegation contained in the written formal complaint;

ii) Notwithstanding my objection to the expansion of the appli­cant's pleadings by the Board, I would find, for reasons contained in this dissent that the respondent did not "... discriminate against a person in regard to employment or any term or condition of employment ..." as prohibited under section 66(a) of the Act.

c) Having dismissed the application there would of course be no need for a remedy but since this majority has found the respondent liable for damages, I believe that the remedy should be limited to the 1987 fishing season only, and compensation should be ordered to be paid only to those grievors who, under an agreed-to formula of employ­ment criteria, may have been hired for that one season only.