National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) v. Ontario Bus Industries Inc., 1989 CanLII 3021

[1989] OLRB Rep. November 1115

0532-88-R; 0533-88-U; 1197-88-U National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant v. Ontario Bus Industries Inc., Respondent v. Group of Employees, Objectors; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Complainant v. Ontario Bus Industries Inc., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members R. W. Pirrie and H. Peacock.

APPEARANCES: Daniel A. Harris and Clare Menegheni for the complainant; R. C. Filion, Joanne Saltos, Don Sheardown and Diane Sander for the respondent; Dale Sharp, Jeff King and Dave Heppolette for the objectors.

DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER R. W. PIRRIE; November 30, 1989

1. File No. 0532-88-R is an application by the National Automobile, Aerospace and Agricultural Implement Workers of Canada (referred to in this decision as the "C.A.W." and the "Union") for certification under section 8 of the Labour Relations Act as bargaining agent of employees of the respondent, Ontario Bus Industries Inc. (the "Company"). File Nos. 0533-88-U and 1197-88-U are complaints under section 89 of the Act in which the Union alleges that the Company has contravened sections 3, 64, 66, and 70. The Union also relies upon those allegations in support of its application for certification under section 8.

2. The section 89 complaints name a total of seven grievors: Peter Galeota, Momcilo (Mike) Trajkovic, George Chioconi, Oscar Valencia, Stanislaw (Stanley) Pietras, Raimundo Sousa, and Charles Janczyk. However, during the course of his testimony, Mr. Sousa advised the Board that he had obtained alternate employment and did not want to proceed with his complaint. Thus, although the Union relies upon his testimony in support of its application for certification under section 8 of the Act and in support of its request for relief for the other grievors, it no longer seeks any relief for Mr. Sousa.

3. On August 9, 1988, counsel advised the Board that they had agreed to argue a number of preliminary issues and request the Board to issue a decision regarding those issues before proceeding further. We acceded to that request and issued a unanimous decision concerning those issues on September 15, 1988: see Ontario Bus Industries, [1988] OLRB Rep. Sept. 914. As indicated in paragraph 3 of that decision, representatives of the parties met with a Board Officer on June 24, 1988 and reached agreement on all aspects of the bargaining unit description, with the exception of the issue of whether persons regularly employed for not more than twenty-four hours per week should be excluded from the unit. It is the Board's practice to exclude such persons if their exclusion is requested by the applicant or respondent to a certification application, and the employer either employs such persons at the time of the application or has a history of employing such persons. However, in the instant case, although the Company (and the objectors) requested that exclusion, there were no such persons in the employ of the respondent at the time of the application, and the evidence adduced before us does not establish a history of employing such persons. Accordingly, having regard to the aforementioned agreement of the parties and to the Board's determination that an exclusion of part-time employees is not warranted, the Board finds that all employees of the respondent in Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. It is common ground among the parties that there were 331 employees in the bargaining unit at the time the application was made. The Union has filed membership evidence in respect of 67 (20.2%) of those employees. (There are also four "lost" cards, i.e. cards filed in respect of persons whose names are not on the list of employees filed with the Board by the respondent.) The dates on which cards were signed, and the number of cards signed on those dates, are as follows:

April 15 5 cards (plus 1 lost card) 16 7 17 6 18 25 (plus 1 lost card) 19 7 (plus 1 lost card) 20 5 21 1 22 4 (plus 1 lost card) 28 1 May 6 1 14 or 19 1 28 2 June 1 1

7 or 9 1

5. The hearing of the merits of these three files commenced on December 13, 1988 and continued on December 14, 15, 20, 21, and 22, 1988, and May 9, 10, 11, and 30, June 1, 6, 13, and 14, and July 5, 1989. During those fifteen days of hearing, the Board heard oral evidence from twenty witnesses and received thirty-nine exhibits. In making our findings of fact, we have carefully considered all of the oral and documentary evidence, the submissions of the parties, and such factors as the firmness and reliability of the various witnesses' memories, their demeanour while testifying, their ability to resist the influence of self-interest when giving their version of events, and the consistency of their evidence. We have also considered what is most probable in the circumstances of the case, and considered the inferences that may reasonably be drawn from the totality of the evidence.

6. On December 14, 1988, the Board made the following unanimous oral ruling, after hearing and recessing to consider the submissions of counsel:

Counsel for the Union proposes to call as his second witness Mike Trajkovic, who is one of the grievors in File No. 0533-88-U. Counsel has also advised the Board that Mr. Trajkovic's ability to speak and understand English is limited, and that he wishes to testify through an interpreter so that he can give his testimony in Serbian. The respondent and the objectors oppose the use of

an interpreter. It is their position that Mr. Trajkovic is sufficiently fluent in the English language to testify without the assistance of an interpreter. A trial judge or tribunal has traditionally had a discretion to permit a witness to testify through an interpreter where a witness does not possess sufficient knowledge of English to understand and answer the questions put to him. Indeed, it has been recognized that providing an interpreter in such circumstances is one of the requirements of a fair trial or hearing. Section 14 of the Canadian Charter of Rights and Freedoms now enshrines that principle as a right. It provides as follows:

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. However, as indicated by the Ontario Court of Appeal in Roy v. Hackett (1987), 1987 CanLII 4212 (ON CA), 45 D.L.R. (4th) 415. although section 14 must be given a broad and generous interpretation, the right to an interpreter is not an absolute right. Where a witness requests the assistance of an interpreter, an opposing party has the right to challenge the basis for the request by means of cross-examination of the witness (see page 426 of the judgment). Moreover, at that time, in the context of a voir dire, the party or parties who raised the objection can call witnesses to testify as to the linguistic competence of the witness in question. Accordingly, we will now proceed to swear in Mr. Trajkovic, permit counsel for the Union to examine him concerning the basis for his request for an interpreter, and then permit the other parties to cross-examine him concerning that matter, followed by re-examination by Union counsel. Each of the parties will then be permitted to call any other pertinent evidence which they wish to call concerning this matter, followed by reply evidence. Argument on this point will then follow the same order. In adopting this procedure which we view to be the most appropriate and expeditious manner in which to hear evidence concerning this matter, we make no finding at this point as to whether, as argued by the respondent, the onus is on the Union or Mr. Trajkovic to satisfy the Board that he does not understand or speak English, or, as argued by the Union, that the onus is on the respondent and the objectors to show that the request for an interpreter is not made in good faith. That matter may be further addressed in argument following the evidentiary portion of the voir dire.

When it became apparent from Union counsel's examination-in-chief of Mr. Trajkovic during the voir dire that Mr. Trajkovic had a reasonably good grasp of the English language, Union counsel agreed to proceed without an interpreter.

7. The respondent is a private company which manufactures buses at its facilities on Maingate Drive in Mississauga. On May 27, 1988 when the Union filed its application for certification, the respondent employed a total of approximately 460 people there, of whom, as indicated above, 337 are included in the bargaining unit for purposes of the count. Most of the employees work in the Company's main plant on Maingate Drive, but a few work across the street in another building which houses the Company's service department. There is also a plant in the State of New York, which operates under the name "Bus Industries of America". Don Sheardown is the President of the respondent and is also its major shareholder. He is a commanding and direct individual who generally tours the main plant and the service department at least once a day, and knows most of the employees on a first name basis.

8. The first witness called by the Union in these proceedings was Peter Galeota. As a result of his dissatisfaction with air quality in the plant, employees' lack of rights in dealing with the Company, and the respondent's failure to pay him the extra fifty cents per hour to which he felt entitled for performing the duties of a lead hand, Mr. Galeota contacted Clare Meneghini, who is a C.A.W. Staff Representative. Mr. Galeota and George Chioconi (another of the grievors who testified in these proceedings) met with Mr. Meneghini on Thursday April 7, 1988, to discuss unionization of the respondent. During that brief meeting, Mr. Meneghini described the organizing process and indicated that, in order to maximize the speed and efficiency of the drive, it would be advisable to recruit as many other people as possible to form an in-plant organizing group. During their discussions with Mr. Meneghini, Messrs. Galeota and Chioconi agreed to bring some other interested employees to meet with Union officials after work on Friday April 15 at the Ramada Inn located a few blocks away from the plant. The C.A.W. Staff Representatives present at that meeting were Hassan Yussuff, Hemi Mitic, and Craig Grant. In addition to Messrs. Galeota and Chioconi, the grievors Mike Trajkovic, Oscar Valencia, Stanley Pietras, and Raimundo Sousa attended that meeting. Following a discussion about the rights of employees to unionize and the manner in which such rights may be exercised, C.A.W. membership cards (referred to in this decision as "cards" or "Union cards", for ease of exposition) were distributed at that meeting and the employees in attendance were given instructions about how to fill them out, and how to proceed with an organizing campaign.

9. Mr. Sousa spoke with a number of Company employees over the weekend and signed up seven of them on Saturday April 16, and six more on Sunday April 17. By talking to employees before work, during breaks, and after work, he also signed up five people on April 18, two people on April 19, and two more people on April 20.

10. Bryan Cox was at all material times the respondent's Production Manager, to whom its ten supervisors reported. There were also six foremen who each reported to one of those supervisors. When Mr. Cox arrived at work on Monday morning April 18, one of those foremen (Greg Mclsaac) told him an employee had indicated that a number of the respondent's employees had met with Union representatives on the preceding Friday at the Ramada Inn. Mr. Cox relayed that information to Mr. Sheardown, who asked for the names of those employees. Mr. Cox's response was that he had heard that Brett Eland, Dale Sharp, and two other unnamed persons were in attendance at the meeting. Mr. Sheardown immediately went to Messrs. Sharp and Eland to ask them if they had attended that meeting and if they were involved in an organizing drive. Messrs. Sharp and Eland were (in the words of Mr. Sheardown) "upset that [he] would even think such a thing". They denied any knowledge of the meeting but told Mr. Sheardown they would find out who was involved and let him know.

11. About twenty minutes later Mr. Cox came to Mr. Sheardown's office and told him that he had learned that Mr. Galeota was one of the persons attempting to organize the Company. Mr. Sheardown then went into the plant and asked Mr. Galeota to come to his office. When Mr. Galeota did so around 8:15 that morning, Mr. Sheardown told him what Mr. Cox had said and asked him if he was one of the people attempting to organize the Company. After Mr. Galeota acknowledged that he was, Mr. Sheardown, who was very upset, asked Mr. Galeota why he would "stab [him] in the back" instead of going through the committee of elected employee representatives, or speaking directly to him as Mr. Galeota had done in the past. Mr. Sheardown also asked him why he wanted a union. Mr. Galeota replied that the Company had a "human rights" problem. In saying this, Mr. Galeota meant that, in his view, employees did not have any rights in dealing with the Company. However, Mr. Sheardown interpreted Mr. Galeota's comments as suggesting racial discrimination. Accordingly, he responded by stating that the Company had employees of every race, colour, and creed; that each employee was treated the same by management; and that the Company did not tolerate any type of racial discrimination. Mr. Galeota also told Mr. Sheardown that the Company had an environmental problem. He stated that the air was too polluted in the area in which he worked and that no one was doing anything about it. Mr. Sheardown responded by telling Mr. Galeota that the Ministry of Labour had tested the air in all parts of the plant, had posted the results, and had approved of what was being done by the Company to improve air quality. Mr. Sheardown acknowledged that there were areas in the plant where some improvement would be desirable, and stated that although funds had not been available during the previous two years to make those improvements, plans were in place to provide the necessary equipment over the ensuing twelve months. Mr. Galeota also mentioned his dissatisfaction with his wages. When Mr. Sheardown asked Mr. Galeota who else was involved in organizational activities, Mr. Galeota said, "I'm sorry but I can't tell you." He also told Mr. Sheardown, "You can let me go but I'm not going to answer any more questions." However, Mr. Sheardown told Mr. Galeota that he was not going to discharge him. Mr. Sheardown also told him that he still had time to change his mind about unionization, and asked him to indicate before lunch time whether or not he was going to proceed with it. Mr. Sheardown further indicated that if the organizing campaign was going to proceed, he would have to take some action. Mr. Galeota said that he would speak with the other people involved to see if they wanted to meet with Mr. Sheardown in an attempt to resolve the employees' problems.

12. After meeting with Mr. Sheardown, Mr. Galeota returned to the Orion II line where he approached various employees to ask them if they wished to join the Union. Although he testified that those organizing activities took place during employee breaks, we accept the evidence of Marvin McMahon, another employee on the Orion II line, that Mr. Galeota and Mr. Chioconi approached him during working hours that morning before the first break and, after telling him that they were trying to unionize the plant, asked him if he wanted to join. We also accept his evidence that he saw Mr. Galeota approach other employees during working hours as well as during breaks. Although Mr. Sheardown denied doing so, we accept the evidence of Mr. Galeota that when Mr. Sheardown had not heard from him by noon, Mr. Sheardown called him back to his office and asked him if he had made up his mind. When Mr. Galeota told him that he had not yet talked to the other people involved, Mr. Sheardown said, "Okay, that's it" (or words to that effect). Mr. Sheardown then issued instructions for a general meeting of the employees to be called in the stockroom. In this regard, we feel that it is more likely that Mr. Sheardown forgot about this brief encounter than that Mr. Galeota invented it.

13. The calling of a general meeting of employees is not an unusual occurrence at the Company; it is clear from the evidence that general meetings of employees are called four or five times a year to update them concerning such matters as wage increases, customer orders, and press releases. Although no one has ever been disciplined for failing to attend, employees are expected to be in attendance at those meetings as they are held during working hours and are intended to convey significant information to employees. Mr. Sheardown generally meets first with employees in the plant and then holds a separate meeting in the service department. However, in this instance the service department employees were called over to the plant to attend the meeting there.

14. The general meeting held on April 18 was attended by approximately 350 employees. Although Mr. Sheardown used a microphone to address the employees, they were not all able to hear everything he said because some of the employees were also talking to one other at some points during the meeting. Mr. Sheardown's opening remarks were that this was an unscheduled but important meeting. He stated that a number of employees had met with the C.A.W. on the previous Friday night, and that an attempt was being made to organize the Company. Mr. Sheardown said that he did not understand why that was happening, and noted that they had worked hard over the years to form an employee representatives committee, a safety committee, and a social club, in order to give everyone an opportunity to make management aware of any problems they might have. He acknowledged that there were certain areas where the Company could improve upon working conditions, but stated that the Company was working on them and that any problems the employees had could be solved without a union. He also expressed the view that working together to resolve problems was going to be more beneficial to everyone than bringing in a third party to do their negotiating. Without naming Mr. Galeota, Mr. Sheardown told the employees that he had spoken with one individual who had asserted that the Company had a human rights problem and an environmental problem. He then repeated what he had earlier said about those matters.

15. Mr. Galeota testified that Mr. Sheardown stated at that meeting that the Company would not survive with a union. Mr. Trajkovic, who was the Union's second witness, made no mention of that statement in his evidence, but asserted that Mr. Sheardown said that he never wanted to own a company which had a union. Mr. Chioconi, the third witness called by the Union, also made no mention of the statement attributed to Mr. Sheardown by Mr. Galeota. With respect to the statement attributed to Mr. Sheardown by Mr. Trajkovic, Mr. Chioconi told the Board that Mr. Sheardown did not say that at the April 18 general meeting, although it was his recollection that Mr. Sheardown had made such a statement at a meeting held on the Orion II line during the summer of 1987. The Union's next two witnesses, Mr. Pietras and Mr. Valencia, testified that at the April 18 meeting Mr. Sheardown said that "the Union will destroy the Company". However, its next two witnesses, Mr. Janczyk and Mr. Sousa, had no recollection of any such statement being made, nor did they recall Mr. Sheardown making the statement attributed to him by Mr. Galeota, or the statement attributed to him by Mr. Trajkovic. In his testimony before the Board, Mr. Sheardown categorically denied making any of those statements at that meeting. Moreover, none of those statements is included in the Union's detailed allegations that form the basis of these proceedings, which allegations were based upon information given to the Union by the grievors shortly after the events to which they pertain. Had any such statements in fact been made by Mr. Sheardown, they would in all probability have been reported to the Union and included in those allegations. There was also conflicting evidence adduced regarding whether Mr. Sheardown suggested that if employees were offered Union cards they should throw them in the garbage. Having carefully considered all of the evidence, we have concluded on the balance of probabilities that Mr. Sheardown did not make any of the aforementioned statements at the meeting on April 18 or at any other time during the period to which the Union's allegations pertain.

16. Near the end of that meeting, Mr. Sheardown stated that his door was always open and that if anyone had any problems they could speak to him at any time. This prompted Mr. Trajkovic, who was standing near the back of the room, to holler that a supervisor had told him that he would be fired if he went to Mr. Sheardown's office again. When Mr. Sheardown asked Mr. Trajkovic for the name of that supervisor, Mr. Trajkovic refused to give it. Mr. Trajkovic also stated that a member of management had used offensive language in addressing him. Mr. Sheardown responded by saying that he would speak with Mr. Trajkovic after the meeting and take appropriate steps if Mr. Trajkovic gave him the names of the persons involved. When Mr. Galeota began to speak about the need for human rights in the plant, Mr. Sheardown brought the meeting to an end as he felt that people were about to begin "taking different sides of issues", and he was concerned that tempers might flare.

17. After the general meeting, Paul Mitchell, who was Mr. Trajkovic's supervisor at that time, brought him to Mr. Cox's office and left him there with Mr. Cox and Chris Walkey, the respondent's Production Superintendent. In the course of discussing the allegations which Mr. Trajkovic had made at the general meeting, Mr. Walkey acknowledged that he had lost his composure and called Mr. Trajkovic a "fool" and a "fucking farmer" several weeks earlier (when Mr. Trajkovic had disregarded his instructions and made a very poor job of certain radiator modification work that was assigned to him). However, he denied using the additional obscenity which Mr. Trajkovic had attributed to him. Mr. Cox asked Mr. Trajkovic to name the supervisor who had threatened to fire him if he went to see Mr. Sheardown, but Mr. Trajkovic refused to do so without Mr. Sheardown there. During that discussion Mr. Walkey asked Mr. Trajkovic why the employees needed a union. He also told Mr. Trajkovic about his own negative experience of working in a union shop. Mr. Trajkovic responded by stating that he was not a leader and had merely gone to the Union meeting to get information.

18. After Mr. Sheardown entered the office and asked Mr. Trajkovic who had threatened

to fire him, Mr. Trajkovic said that it was Paul Mitchell. When Mr. Mitchell was summoned, he denied Mr. Trajkovic's accusation. He repeated that denial in his testimony before the Board. After listening to both of them, Mr. Sheardown advised Mr. Trajkovic that he knew Mr. Mitchell to be a low-keyed supervisor and was of the opinion that Mr. Mitchell had not threatened to fire him. Mr. Sheardown also told Mr. Trajkovic that if he ever had a problem he should come directly to him about it.

19. During the lunch period after the general meeting on April 18, three employees told Mr. Trajkovic that they wanted to sign Union cards. Upon hearing this, Mr. Trajkovic proceeded to sign them up in his car in the Company parking lot. During that same lunch period, Mr. Valencia signed up three other employees as Union members. Mr. Trajkovic also served as the collector on five other cards that were signed that afternoon or evening.

20. As a result of his meeting with Mr. Sheardown, Mr. Galeota found himself "under a lot of pressure" and felt that he should not be required to handle the situation all by himself. Accordingly, he spoke with Mr. Chioconi, who had already signed a total of eight employees into the Union that day. Mr. Chioconi agreed to permit Mr. Galeota to tell Mr. Sheardown that he was one of the Union organizers. He also expressed a willingness to meet with Mr. Sheardown in order to take some of the pressure off Mr. Galeota. Mr. Galeota then returned to Mr. Sheardown's office to tell Mr. Sheardown that Mr. Chioconi was prepared to meet with him. Upon receiving that information, Mr. Sheardown arranged for Mr. Chioconi to be brought to his office. When he arrived there, Mr. Sheardown asked him why he wanted the Union, and why he had not come to see him about his problems. Mr. Chioconi replied that he could not bother Mr. Sheardown about every problem on the plant floor as Mr. Sheardown was paying people to look after those problems. Mr. Sheardown then accused Mr. Chioconi of stabbing him in the back. When Mr. Sheardown asked him what he saw the problems to be, Mr. Chioconi mentioned the need for better ventilation, more shower facilities, and supervisors with more knowledge and a better understanding of how to deal with employees. He also complained that some employees had been promoted to lead hand on the Orion II line without receiving the fifty cent per hour premium which they had been promised. Near the end of that meeting Mr. Sheardown said that he wanted to know what they were going to do regarding the Union. He told them that if the Union organizing drive continued they were going to see things that they wouldn't like to see. He also said that there would be fist fights because unionization was a very emotional issue. He added that it was a "very political thing", and that he knew about politics. Mr. Sheardown then asked them to think it over again, and said that he wanted their reply by the next day.

21. Mr. Sheardown also spoke that afternoon with Mr. Valencia. He angrily asked him why he had done this to him and why he wanted the Union. He also said that the damage was already done but that Mr. Valencia still had time to think about it.

22. The seven grievors and a few other employees met with C.A.W. Staff Representative Hassan Yussuff in a restaurant at the Ramada Inn after work that day and apprised him of the day's events. Some of those employees also stated that they wanted to know more about the Union before signing cards. Mr. Janczyk attended that meeting at the invitation of Mr. Sousa.

23. Mr. Cox was also at the Ramada Inn after work that evening for about an hour. He went there to have a drink with the plant manager from the American plant who was visiting the Canadian plant that day. That plant manager and Mr. Cox generally go to the Ramada Inn to relax and talk each time he visits, as it is the most comfortable place near the plant. Their presence there that evening had nothing to do with the Union. Indeed, Mr. Cox was unaware that anyone from the Union was going to be there that night. He remained unaware of the Union's presence until he

was on his way out of the hotel. As he was leaving, he encountered Mr. McMahon, who told him that a Union representative had been standing beside him in the lobby. When Mr. McMahon asked Mr. Cox if he had recognized the Union representative, Mr. Cox indicated that he had not. He then left the premises without attempting to find out anything more about what was going on there that evening.

24. On Tuesday April 19, Mr. Eland and three employee representatives approached Mr. Sheardown and requested permission to have meetings in the plant to see if the employees' problems could be resolved, and to determine if the employees wished to have a union. It was evident to Mr. Sheardown that Mr. Eland and the other persons who approached him were opposed to the Union and wanted to be sure that their fellow employees felt the same way. Mr. Sheardown testified that he agreed to permit the employee representatives to hold those meetings in the plant during working hours because he felt that employee problems and wishes had to be talked about. He also stated: "From my point of view, being the owner of the Company, I had to know whether or not we had done our job in the past as managers and owners. And if we hadn't, the employees had a right to bring in a third party. I had to be aware of that and I felt that this was the platform that would make that information available to me." With Mr. Sheardown's permission, the plant was shut down for most of that afternoon (at a cost of about $8,000 per hour) for the purpose of holding those meetings. Thus, the employees in each department or work group met in the plant during working hours to discuss unionization.

25. The meeting involving the fifty or sixty employees from the Orion II line was held in the lunchroom. By the time of that meeting, most if not all of the employees on that line were aware that Mr. Valencia was one of the employees who had contacted the Union. Several of them asked him why he felt that a union was needed at the Company. Mr. Valencia responded by expressing the view that some of the employees were not being treated fairly by the Company. In speaking in favour of the Union at that meeting, he described what he felt the Union had to offer. Many of the employees expressed anger and frustration by yelling, cursing, and swearing at Mr. Valencia, and demanding to know what gave him the right to "take on something like that" without asking them first. However, their verbal abuse did not silence him, and he continued to speak in favour of the Union despite the fact that no one expressed agreement with him. He also suggested that employees attend a Union meeting to find out more about it.

26. After meeting with the employees in their respective departments or groups, the employee representatives told Mr. Sheardown that the general consensus was that the employees did not want a union. They also requested a list of the benefits provided by the Company to its employees. In response to that request, a list containing the following information was prepared and given to them by the Company:

WHAT OBI PROVIDES TO THEIR EMPLOYEES

(1) Pays all medical premiums (includes dental & drug plan)

(2) Pays all life insurance premiums

(3) Pays above average hourly pay rate

(4) Sponsors company baseball, hockey, soccer teams, etc.

(5) Issues monthly employee newsletter

(6) Contributes 1% to company pension plan

(7) Provides funds totaling $2,000.00 per hourly employee as a bonus incentive.

(8) Constantly strives to improve working conditions

(9) Formed an Employee Rep. Committee who meets with all employees and all levels of management.

(10) $1.00 Night Shift premium

(11) Three weeks holidays after five years

(12) Four weeks holidays after eight years.

(13) The company contributes $4.00 per month per employee to Social Club.

(14) Safety Committee to address all safety related problems.

(15) Fundsd [sic] are provided to further employee's education under approved programs.

(16) Everyone, from an hourly paid employee to Management is given an opportnity [sic] to be heard through personal meetings with the President.

(17) The company provides an annual dinner to recognize Social Club, Safety Committee, Employee Reps Committee and long term service employees to thank them for their contribution to the success of the company.

(18) Gold Service Award pins are given to employees with ten years or more of service and a diamond pin after 15 years.

(19) Company paid Christmas party for children of all employees, with gifts for everyone.

(20) Rehabilitation programs for employees suffering from drug and alcohol abuse.

(21) Company contributes $35.00 twice a year towards the cost of safety shoes.

(22) Company pays for and/or contributes to all protective clothing, such as coveralls, safety glasses, masks, etc.

(23) Company pays for insurance on employee's personal tool boxes.

(24) Affiliation with Credit Power Credit Union, allowing for payroll deductions.. .savings, loans, etc.

27. A substantial number of the Company's employees speak only Portuguese. To facilitate communications between those employees and members of management, an employee named Rui Pereira often serves as an interpreter, as he is fluent in English and Portuguese. Mr. Pereira was firmly opposed to unionization of the plant. During the week of April 18, he met with various Portuguese speaking employees on Company property during working hours to express his views to them. He also approached Mr. Sheardown and obtained permission to use the office of his supervisor (Eric Spokes) "to make sure that the Portuguese people at Ontario Bus understood totally their rights and benefits". He then called the Portuguese speaking employees into that office one at a time, translated the list of benefits provided by the respondent, and expressed the view that the employees did not need a union. Those discussions occurred not only during breaks but also during working hours. On the totality of the evidence, it may reasonably be inferred that in permitting him to use Mr. Spokes' office, Mr. Sheardown was aware that Mr. Pereira was opposed to the Union and wished to use the office to campaign against it.

28. On April 19, 20, and 21, employees signed petitions against the Union and brought them to Mr. Sheardown. Those petitions were circulated and signed in the plant. Although he did not direct the circulation of those petitions, Mr. Sheardown was of the view that they were an appropriate way for employees to express their views. Thus, he directed the Company's supervisors to permit the petitions to be circulated in the plant. No disciplinary action was taken against employees for moving about the plant during that three-day period to circulate petitions and express opposition to the Union.

29. Mr. Sheardown testified that after the general meeting at which he made employees aware of the organizing drive, the plant was in a chaotic state with employees arguing and threatening to harm the organizers. Whenever Mr. Sheardown heard such threats, he warned the persons making them that disciplinary action would be taken against any aggressors regardless of which side of the unionization issue they were on. In this regard he told the Board that under a policy drafted by employee representatives in 1986, any pushing or shoving would result in a suspension of the aggressor, and any striking of another employee would result in termination of the aggressor's employment. It was also Mr. Sheardown's evidence that the Orion II line was the most volatile area in the plant, because a number of the employees who worked on that line were aggressive young people who (in the words of Mr. Sheardown) "love to fight". Mr. Sheardown further testified that Mr. Galeota worked in an area where there would be serious injury to employees if there were any pushing or shoving. Thus, Mr. Sheardown told the Board that he decided that it would be in the best interests of Mr. Galeota, the other employees, and the Company, to transfer Mr. Galeota from the Orion II line to the service department. He made that decision on Monday evening, and decided at the same time to transfer Mr. Chioconi from the Orion II line to the electrical department, but did not implement the transfers until after speaking with Mr. Cox the next morning and obtaining his concurrence.

30. Prior to April 19, Mr. Galeota worked on the Orion II line as an air line troubleshooter who moved all over the line to perform his job. After Mr. Galeota arrived at work that morning, Mr. Cox took him to Mr. Sheardown's office where, in the presence of Mr. Cox and John Leether, the supervisor of the service department, Mr. Sheardown told Mr. Galeota that he was going to be transferred to the service department for his own protection. Although Mr. Galeota had not personally experienced any difficulties with other employees, he acknowledged in cross-examination that there was a possibility of a fight breaking out in the plant over the Union because emotions were running high, with some employees being strongly in favour of the Union and others strongly against it. Mr. McMahon, who also worked on the Orion II line, told the Board that people on that line were saying that Mr. Galeota was "going to get his head kicked in if he didn't stop" his organizing activities. Similar sentiments were expressed concerning Mr. Valencia, since many of the employees were very angry that the organizers had taken it upon themselves to contact the Union without first consulting with the other employees. The evidence also indicates that some of the employees called the organizers "immigrant dogs", and made racial slurs against them.

31. Mr. McMahon told Mr. Sheardown early that week that there was trouble on the Orion II line, and that if something was not done about it, somebody was going to get hurt. During that conversation he also repeated what some of his co-workers had said about the employee organizers getting their heads kicked in. Mr. McMahon did not mention any names as he did not want any of his co-workers to lose their jobs. Mr. Sheardown stated that anyone who resorted to violence would be in trouble, and requested Mr. McMahon to try to make sure that nothing happened.

32. In advising Mr. Galeota of his transfer, Mr. Sheardown also told him that he was not permitted to enter the plant, and that he was not to talk about the Union on Company property at any time, including lunch time and breaks. In his testimony before the Board, Mr. Sheardown stated that the reason he gave those instructions to Mr. Galeota (and to each of the other grievors who were transferred) was that threats were being made, and continued attempts by employee

organizers to discuss the Union with other employees could have led to violence. Mr. Galeota was also given the following letter (on Company letterhead) signed by Mr. Cox:

WRITTEN WARNING

April 19, 1988

Mr. Peter Galeota:

Effective this date you have been transferred to new areas. This is for your protection, and a temporary basis [sic].

I remind you that, soliciting or actively organizing union activities on company time or property is strictly forbidden.

If you are found doing this, a more serious form of discipline may arise.

Although in their testimony before the Board Messrs. Sheardown and Cox attempted to characterise that letter as non-disciplinary, it is readily apparent from the heading and the final sentence that the letter was intended to be disciplinary, and to convey to Mr. Galeota and anyone else who became aware of it that union solicitation on Company time or property could result in more serious disciplinary action. No such warning was given to any of the employees who engaged in activities in opposition to the Union on Company time or premises.

33. After Mr. Galeota left Mr. Sheardown's office, Mr. Leether accompanied him as he returned to the Orion II line to get his tool box, and then escorted him to the service department. When other employees asked him where he was going, Mr. Galeota was prevented from answering by Mr. Leether, who reminded him that they were on working time and were not out to socialise. After they arrived in the service department, Mr. Leether called together the employees in that department and told them that Mr. Galeota was going to be working with them as he had been transferred there for his own protection. Mr. Leether also told them not to gather in groups.

34. Although Mr. Galeota was disturbed about the manner in which he was transferred to the service department and the restrictions placed upon him, he was not troubled by the transfer itself. Indeed, he had earlier requested to be transferred there. In describing that department, Mr. Galeota told the Board, "The work environment in the service department is beautiful. The working conditions are a lot better [than in the main plant]. The work is more interesting; there's more variety." He also acknowledged that a lot of the respondent's employees would like to work in the service department. Mr. Galeota did not suffer any reduction in pay or benefits as a result of the transfer.

35. Mr. Chioconi reported for work on April 19 at his usual starting time of 7:30 a.m. After working about half an hour in his regular position as an electrical assembler at the end of the Orion II line, he was approached by Mr. Cox, who told him that Mr. Sheardown wanted to see him. Mr. Chioconi proceeded to Mr. Sheardown's office where, in the presence of Mr. Cox and Lou Perdomo, the supervisor of the main plant's electrical room, Mr. Sheardown told him that for safety reasons he was going to be transferred to the electrical department under Mr. Perdomo's supervision. Mr. Sheardown also told Mr. Chioconi that he was not to involve himself in any Union activities on Company premises at any time, and stated that he was going to be closely watched. Mr. Chioconi testified that he had not received any threats from any other employees, and that nothing had occurred to cause him to have any concern for his safety. Mr. Perdomo escorted Mr. Chioconi to the electrical room where he was assigned a work table and given some work to perform. About ten employees work in the electrical room.

36. Later that morning, Mr. Chioconi was called to the personnel office where he was given a "written warning" letter similar to the one which was given to Mr. Galeota (as quoted above). For the first two or three weeks after his transfer, Mr. Chioconi was escorted by a foreman whenever he left the electrical room to pick up blueprints or diagrams from the assembly line or for any other purpose. None of the other persons in the electrical room was treated in that manner.

37. Mr. Chioconi was still working in the electrical room as of December 20, 1988, when he testified in these proceedings. During the course of argument on July 5, 1989, Union counsel advised the Board that Mr. Chioconi had recently left the respondent's employ and that he wanted damages for mental distress. However, even if it is assumed that the Board could award such damages in appropriate circumstances, there is no evidence before us which would warrant such an award in the instant case.

38. Mr. Trajkovic was also transferred to a different job on April 19. Prior to the transfer he worked in the engine assembly area, which is a very busy area with numerous employees walking by on their way to and from the lunch room and the washroom. Mr. Sheardown testified that he decided to transfer Mr. Trajkovic because he was travelling around the plant disrupting the workplace and agitating other employees. He also took into account the fact that Mr. Trajkovic had previously been suspended for his part in an altercation with another employee. On April 19, after arriving at the plant and proceeding to the engine assembly area, Mr. Trajkovic was approached by a member of management a few minutes before the start of the shift and taken to Mr. Sheardown's office where Mr. Sheardown, in the presence of Messrs. Mitchell and Cox, told him that they knew he was a Union leader and that they had decided to remove him from his job for his own protection. Mr. Trajkovic initially took this to mean that he was being discharged. Thus, he was very relieved to hear that he was merely being transferred to a different area. It was Mr. Trajkovic's evidence that while Mr. Sheardown was at the door of his office speaking with someone else, Mr. Cox said (to Mr. Trajkovic), "I'm going to break your nose." However, we are unable to accept that evidence, which was contradicted by the testimony of Mr. Cox whom we found to be a more reliable witness than Mr. Trajkovic. Mr. Cox categorically denied making any threat to Mr. Trajkovic, and it is clear from the totality of the evidence that Mr. Cox is a calm, soft-spoken person who neither engages in nor threatens violence. For purposes of this decision, it is unnecessary to determine whether Mr. Trajkovic intentionally fabricated that allegation, or merely misunderstood something which Mr. Cox told him in attempting to explain management's decision to transfer him "for his own protection

39. Mr. Trajkovic told the Board that while taking him to his new job in the air system assembly area, Mr. Walkey repeated the obscenities which Mr. Trajkovic had earlier attributed to him. He further testified that Mr. Walkey told him that he would not be given any training on his new job, and that if he did not "give production" on the first day he would be fired. It was also his evidence that Mr. Walkey denied his request to be provided with blueprints concerning his new job, and told him that management was going to fire him because he had gone against them. However, we accept the evidence of Mr. Walkey, whom we found to be a more reliable witness than Mr. Trajkovic, that what Mr. Walkey actually said was that h~ would not be calling Mr. Trajkovic a "fucking farmer" anymore because if he gave Mr. Trajkovic a warning it would have to be in writing. (Mr. Walkey told him that because in making his allegations on the previous day, Mr. Trajkovic had added words that Mr. Walkey had not said, thereby alerting Mr. Walkey to the need to use documentation to "keep the facts straight".) Mr. Walkey acknowledged that Mr. Trajkovic asked for blueprints. He responded to that request by saying, "Mike, you know that we don't have blueprints." We accept Mr. Walkey's evidence that he did not threaten to fire Mr. Trajkovic. We also accept his evidence that when Mr. Trajkovic indicated that he would need time to learn the new job and someone to train him on it, Mr. Walkey said that Stanley Pietras would train him and

that he would have a month to learn the new job, to which Mr. Trajkovic responded that he would only need two weeks. Mr. Pietras was one of the four employees who worked in the air system assembly area located at the south end of the main plant.

40. When they arrived in the air system assembly area, Mr. Walkey advised Mr. Pietras that Mr. Trajkovic was going to take over as the "build up person", and that Mr. Pietras would have to teach him the job and then take over Mr. Trajkovic's old job. When Mr. Pietras asked why Mr. Trajkovic was being transferred, Mr. Walkey told him that Mr. Trajkovic was involved in the Union and that the transfer was for his own protection. However, Mr. Pietras did not understand what Mr. Walkey meant. In an attempt to explain it, Mr. Walkey said that someone had threatened to punch Mr. Trajkovic in the nose. Mr. Trajkovic then said, "Brian Cox told me this." Mr. Walkey did not understand Mr. Trajkovic to be accusing Mr. Cox of threatening to punch his nose, but rather interpreted this to mean that Mr. Cox had explained to Mr. Trajkovic that it was necessary to transfer him because he might get punched in the nose if he remained where he had been working. Thus, Mr. Walkey did not comment on that statement.

41. Mr. Pietras went to Mr. Walkey's office later that day to protest the decision to put Mr. Trajkovic on his job and to have him do Mr. Trajkovic's old job. He noted that this made no sense as neither knew how to do the other's job. Mr. Walkey stated that Mr. Pietras was being moved because of his allergic reaction to one of the materials he had been working with, and because once he had finished training Mr. Trajkovic to do the job there would not be enough work for both of them. (The problem of Mr. Pietras's allergic reaction had been temporarily solved by shifting that work to an employee in another department. However, Mr. Pietras's foreman had indicated that it might be necessary to transfer Mr. Pietras as he wanted that work done in the air system assembly area.) Mr. Pietras then returned to his work area and proceeded with his training of Mr. Trajkovic.

42. Mr. Trajkovic left the air system assembly area and went to the stockroom to get some parts around 9:15 a.m. on April 19. When he attempted to return to the air system assembly area, the passageway was blocked by Dale Sharp (one of the employees who appeared on behalf of the objectors at the hearing of these matters) and another employee. It was Mr. Trajkovic's evidence that Mr. Sharp called him "doggie", imitated a dog by making growling sounds, and said that he was going to break his nose. (Mr. Sharp was present throughout the proceedings as a representative of the objectors, but elected not to testify or to call any evidence.) Mr. Trajkovic also told the Board that Mr. Sharp told him that he was going to kill him. Although the former threat is mentioned in Mr. Trajkovic's statement that was taken by a Union official later that day, the latter threat is not. Under the circumstances, it appears to us to be but one of many embellishments which Mr. Trajkovic added during the course of his testimony in an attempt to make his evidence more compelling.

43. When Mr. Trajkovic's foreman found out what had happened, he said that he would speak to Mr. Sharp and his companion. He also told Mr. Trajkovic not to worry as no one could touch him. There is no evidence before the Board as to whether the respondent took any disciplinary or other action against Mr. Sharp or his companion in respect of that incident.

44. Several employees who wanted to sign Union cards approached Mr. Trajkovic in the air system assembly area on April 19 to obtain information about where to sign. They also wanted to know why Mr. Trajkovic was working in that area. Mr. Trajkovic told them that he could not talk until after work because he did not want to lose his job. Just before he left the plant at the end of the shift on April 19, Mr. Trajkovic was given a "written warning" letter similar to the ones received by Messrs. Galeota and Chioconi. When he gave him that letter, Mr. Cox accused Mr. Trajkovic of stealing Company time by signing Union cards. In making this accusation, Mr. Cox

was not proceeding on the basis of any knowledge or information, but merely on the basis of his assumption that Union organizers were signing up employees on Company time. When Mr. Trajkovic stated that he had only signed cards on his own time during the lunch period, Mr. Cox told him that if he signed any more cards on Company property he would be fired immediately.

45. After leaving the plant, Mr. Trajkovic went to a nearby donut shop where he, Mr. Pietras, and some of the other Union organizers had told employees they could come after work to sign cards. Mr. Trajkovic sat at one table and signed up two employees, while Mr. Pietras signed up three other employees at another table. Mr. Valencia was also there that afternoon and served as the collector on one card. Approximately twenty employees came to the donut shop that afternoon. Mr. Galeota also came there about twenty minutes after Messrs. Pietras and Valencia arrived, but he did not sign anyone into the Union at that time (or at any other time, with the exception of one occasion in early June when he served as the collector on a card).

46. On the morning of Wednesday April 20, Messrs. Trajkovic and Pietras went to the stockroom to get some fittings. It was Mr. Trajkovic's evidence that while he was in the stockroom, something hit him on his right shoulder and something else hit him on the right side of his head, making his legs become weak and causing him to fall to the floor with tears in his eyes and a feeling of dizziness and nausea. Mr. Pietras testified that he accompanied Mr. Trajkovic to the stockroom that morning because Mr. Trajkovic was afraid to go by himself. It was also his evidence that while he was looking into a shelf in the stockroom, he heard an object fly past his ear, saw Mr. Trajkovic duck down with his left hand on his right shoulder, observed a piece of beeswax (of the type used in the plant for lubrication purposes when cutting aluminium) rolling on the floor, and concluded that someone had thrown it at Mr. Trajkovic. He then looked to see who had thrown it but did not see anyone. Mr. Pietras retrieved that piece of beeswax, which was two or three inches long and about three inches in diameter. He later gave it to Paul Mitchell, who passed it on to Rene Lafontame, the supervisor from the Orion I area. Mr. Mitchell called Mr. Lafontaine to the scene because he concluded that if Mr. Pietras's description of the incident was correct, the beeswax would have to have been thrown into the stockroom from that area, which is separated from the stockroom by a twelve-foot fence.

47. The evidence of Messrs. Trajkovic and Pietras stands in stark contradiction with that of Nelson Palomo, who at the time of the incident had been employed by the Company for approximately six months. Mr. Palomo (who testified through a Spanish interpreter) told the Board that on April 20 between 8:00 and 9:00 a.m. he went to the stockroom to pick up some rivets. As he was going there, Mr. Trajkovic was walking four or five metres in front of him with a piece of beeswax cupped in his right hand in a manner which suggested that he was attempting to hide it. After Mr. Trajkovic arrived in the stockroom, Mr. Palomo witnessed him throw the beeswax on the floor and then begin yelling that someone had thrown it at him and struck him with it. Mr. Palomo, who did not see Mr. Pietras in the stockroom at that time, left the area shortly after another employee (Angel Amitrano) heard Mr. Trajkovic yelling and brought Mr. Mitchell to the stockroom. When Mr. Mitchell arrived in the stockroom, he found Mr. Trajkovic breathing very heavily and holding the back of his neck. Although he did not remember seeing Mr. Palomo, Mr. Mitchell told the Board that there were some people around but he did not pay any attention to them because he was concentrating on Mr. Trajkovic. Mr. Palomo did not say anything to Mr. Mitchell or to anyone else at that time about what he had observed, because he thought it was a trivial incident that had been staged by Mr. Trajkovic in order to go home early, and did not want to become involved in something that was none of his business. It was not until later that week when Mr. Palomo learned that Mr. Trajkovic was a Union organizer who was claiming to have been injured by objects thrown at him in the stockroom that Mr. Palomo realized the significance of what he had witnessed. He then told his supervisor (Jorge Velez) about it and was subsequently taken to Mr. Sheardown's office to tell him what he had witnessed. We found Mr. Palomo to be a more credible witness than Mr. Trajkovic and Mr. Pietras. Accordingly, we accept his evidence as a more reliable description of what actually occurred in the stockroom that morning.

48. Andrija Vodopija also testified concerning that incident. He worked as a sub-assembler in the air system assembly area at a bench in front of Mr. Trajkovic's bench. Mr. Vodopija saw Messrs. Trajkovic and Pietras leave the area together that morning with the bucket used to carry parts from the stockroom. When Mr. Trajkovic returned to the area about half an hour later, he was holding the left side of his neck, and was crying. He was very red in the face and had a scratch about an inch long on the left side of his neck. The scratch was red but was not bleeding. Mr. Vodopija asked him what had happened and he said, "Nothing, nothing, nothing." Mr. Trajkovic then knealt between his bench and his four-foot high tool box, and knocked the right side of his head on the corner of his tool box five or six times. When Mr. Vodopija saw Mr. Trajkovic doing this, he went over to him, pulled his head back, and asked him "Are you crazy? What is going on?" Mr. Trajkovic replied, "They hit me. They tried to kill me!" Mr. Trajkovic also told Mr. Vodopija that someone had thrown some beeswax at him. The plant nurse then arrived and asked Mr. Trajkovic two or three times to go to her office, but he refused. Then Mr. Sheardown came and requested Mr. Trajkovic to go with him to the nurse's office, but Mr. Trajkovic continued to refuse. After Mr. Sheardown had repeated that request once or twice more to no avail, Mr. Trajkovic reluctantly complied after Mr. Sheardown ordered him to do so.

49. While the nurse was examining him in the presence of Mr. Sheardown, Mr. Trajkovic said that he had been struck on the side of his head and that he was sore all over. Mr. Sheardown then directed a foreman to take him to a nearby medical clinic where a physician diagnosed Mr. Trajkovic to have a head injury evidenced by two red areas. The patient information and treatment record prepared by the physician indicates that Mr. Trajkovic attributed his injuries to attempted unionizing at the Company. It also indicates that Mr. Trajkovic told the physician he had been threatened with physical violence by management. Mr. Trajkovic and the foreman then returned to the plant with a copy of that document. When Mr. Sheardown read the latter statement, he asked Mr. Trajkovic what member of management had threatened him with physical violence. Mr. Trajkovic initially refused to answer, but ultimately stated that Mr. Cox had threatened to break his nose. Although Mr. Sheardown found that difficult to believe in view of the fact that Mr. Cox is a "low-keyed" individual who is "not a physical person", he decided to allow Mr. Trajkovic to remain away from work for three days with pay while the Company investigated his allegations. After Mr. Trajkovic went home, Mr. Sheardown immediately asked Mr. Cox if he had ever threatened Mr. Trajkovic with physical violence. Mr. Cox replied that he had not, and Mr. Sheardown accepted his denial as being truthful, as do we.

50. Mr. Sheardown directed Mr. Lafontaine to conduct a full investigation of Mr. Trajkovic s allegation that he had been struck by two thrown objects in the stockroom. That investigation revealed that Mr. Trajkovic had faked the incident and had intentionally struck his head on his tool box after returning to his work area from the stockroom.

51. After the Company's investigation was completed, Mr. Sheardown decided to discharge Mr. Trajkovic. His termination letter, which is dated April 29, 1988 and signed by Mr. Sheardown, reads as follows:

The following is a chronological order of a sequence of events wherein you made false statements and actions while in the employ of Ontario Bus Industries Inc.:

APRIL 12, 1988

Told Paul Mitchell that if he would give you a $.50 per hour increase, that you would inform him about something that was going to occur in the near future that would be very damaging to the company.

APRIL 19, 1988

Informed Don Sheardown that Paul Mitchell threatened to terminate you if you talked to Mr. Sheardown. After discussions with Paul Mitchell and yourself, this statement was proven to be false.

APRIL 20. 1988

Reported that while in the stockroom, you got hit by a flying object. You then walked back to your work station and intentionally banged your head five times on your own tool box. This was witnessed by an employee and he has sworn to same on an affidavit.

APRIL 20, 1988

Reported to Company doctor that a Senior Manager had threatened to "break your nose" if you did not refrain from union activity. This statement by you has proven to be false.

Due to the above false statements and the fact that you intentionally tried to cause injury to yourself in an attempt to embarrass the company and after a police investigation which was irresponsibly initiated by yourself, your employment at OBI is hereby terminated and all benefits cease as of April 29, 1988.

52. The police investigation initiated by Mr. Trajkovic resulted in Mr. Trajkovic himself being charged with committing public mischief (contrary to section 128 of the Criminal Code). The transcript of the oral judgment in which Provincial Court Judge Weseloh dismissed that charge includes the following reasons:

In this case, axes have been ground for nearly three days. Looming large behind the instant charge is an acrimonious labour dispute.

In evidence are discrepancies which cannot be reconciled. On the issue of credibility, it appeared that the principal witnesses applied a gloss to their evidence, which reflected their respective biases arising from the background labour issue. This Court is frankly not certain whose evidence should be preferred.

On the whole of the evidence~ this Court is frankly no more certain that the accused person feigned being struck by objects in the stock room than the Court is certain that the accused was struck by objects in the stock room April the 20th, 1988. Maybe to some degree the accused person was playing the "Munchausen". On the other hand, maybe he was struck. This Court cannot say to the degree of a moral certainty what happened. In consequence, there's a considerable doubt as to what happened in the stock room April the 20th, 1988. On that doubt which must be weighed in favour of the accused, the charge is dismissed.

[The Judge's comments on particular parts of the evidence adduced before him have been omitted.]

The dismissal of that charge is not determinative of any of the issues before us. Proof in Board proceedings is based upon the balance of probabilities, rather than proof beyond a reasonable doubt. Moreover, the parties and the issues before us differ from those in the Provincial Court proceedings.

53. As indicated above, we did not find Mr. Trajkovic's evidence concerning the beeswax incident to be credible. His testimony contained a number of inconsistencies and was lacking in candour. For example, he initially stated in cross-examination that he returned to his work area instead of going to the nurse's office after he was struck because he had to finish his work. However, it is clear from the evidence that he did not resume his work when he returned to his work station. Moreover, after further cross-examination in which he conceded that he had been to the nurse's office about ten times in the preceding two or three years, he asserted that the reason he had not gone directly to the nurse's office that day was because "she's not very good". After further cross-examination, he contradicted his earlier evidence yet again by stating that he did not even think about the nurse's office as he just wanted to go somewhere and sit down. Having regard to all of the evidence, we find that the true reason that Mr. Trajkovic did not proceed directly to the nurse's office was that an examination by the nurse at that time would have indicated that he had not suffered any injury. On the totality of the evidence, we are satisfied on the balance of probabilities that the only injuries which Mr. Trajkovic suffered that day were self-inflicted, and that he returned to the air system assembly area and banged his head on his tool box five or six times in an attempt to bolster the believability of his false assertion that he had been struck by two thrown objects in the stockroom.

54. Although the discharge of an organizer during the course of an organizing campaign must of course be subjected to very careful scrutiny by the Board, we are satisfied on the totality of the evidence that the reasons given for Mr. Trajkovic's discharge in the above-quoted letter were the true and sole reasons for his discharge, and that his discharge was not motivated by anti-union animus. Accordingly, we have concluded that the Company did not contravene the Act in terminating Mr. Trajkovic's employment.

55. During the afternoon of April 20, Mr. Sheardown told Mr. Pietras that he was not to talk about the Union, sign any Union cards, or engage in any other organizing activities on Company property. Mr. Cox also came to Mr. Pietras's working area and stated that he was not allowed to use the telephone and that he was not to go anywhere in the plant without his foreman or supervisor. He also told Mr. Pietras that he could not sign Union cards on Company property. Mr. Walkey brought Mr. Pietras to his office about half an hour later to discuss the job to which Mr. Pietras was to be transferred after he finished training Mr. Trajkovic. Mr. Pietras reiterated that he did not want to move to another job. He also brought out a book concerning employer-employee rights and said that everyone, including members of management, had to respect those rights. However, Mr. Walkey expressed the view that he had the right to place Mr. Pietras in a different work location. When Mr. Pietras suggested that he was being moved because he was a Union organizer, Mr. Walkey said that was not the reason, and reminded him that he had told him about the transfer on the previous day when he did not even know that Mr. Pietras was involved in any Union activities. During that discussion, Mr. Walkey asked Mr. Pietras why he had become a Union organizer. Mr. Pietras replied that he had a "constitutional right" to organize for the Union, and also asserted that the Union was going to get him more money. When Mr. Pietras stated that the employees at the American (Bus Industries of America) plant were being paid more than those at the Canadian plant, Mr. Walkey, who knew this to be untrue, told Mr. Pietras that he was "full of shit".

56. Some of the organizers also went to the aforementioned donut shop after work on April 20. Mr. Valencia signed up two more employees there that day, as did Mr. Pietras. They then proceeded to the Ramada Inn where the Union staff representatives had rented a meeting room for the purpose of speaking with employees of the respondent. Approximately seventy of the respondent's employees, including many people from the Orion II line, attended that Union meeting. The employees were informed of the meeting by word of mouth in the plant. Mr. Eland spoke with many of the employees on the Orion II line and encouraged them to attend the meeting "to show the organizers the support the Company had, and to try to discourage them from organizing". In his testimony, Mr. Eland also stated, "I spent most of the day Wednesday walking around the plant asking people what their stand was, and if they said they were against association with the Union I asked them if they'd be interested in coming." Mr. Eland estimated that he recruited at least twenty employees in this fashion.

57. Around the time of that meeting, three or four of the Company's foremen positioned themselves in the hallway near the meeting room. When Mr. Yussuff was made aware of their presence, he approached them and told them that the meeting was for workers only and that they were not welcome there. The foremen then left the area of the meeting room.

58. The meeting was led by Messrs. Grant, Yussuff, and Meneghini. Mr. Grant opened the meeting by telling the employees a few things about the Union. Some of the employees then asked questions about matters such as what the Union had to offer and what it would be taking in return. The organizers were also presented with a list of the Company's existing benefits, and were asked how many on the list they could guarantee. They were also asked what sort of income the employees would receive in the event of a strike. The Union representatives attempted to respond to those questions, but were met with vocal opposition from many of the employees. After asking a question, one of the employees said, "I know there's some that want a union here but I don't think we need the fucking C.A.W." Mr. Grant then held out some Union cards and said, "I don't know how many of you feel that same way, but if any of you don't I have some cards here and you can sign them" (or words to that effect). The meeting then came to an abrupt end when most of the employees got up and walked out, leaving only the Union representatives and a few employees.

59. Mr. Eland and some other employees informed Mr. Sheardown of what had occurred at that meeting. His reaction to that information was that it was "sufficient evidence that [the employees] didn't want to be organized and [that it was] time to get back to building buses." On April 21 or 22, Mr. Sheardown called another general meeting of employees. At that meeting he reported that he had a sworn affidavit from an employee who had witnessed Mr. Trajkovic strike his head on his tool box. He also stated that sixty-five employees had walked out of the Union meeting on Wednesday night, that a majority of employees supported the Company and did not want the Union, and that it was now time after a troubled week to go back to work.

60. On April 21 Mr. Pietras's foreman confirmed the limitations which Mr. Sheardown had imposed on Mr. Pietras the previous day. Mr. Pietras was also given the following letter from Mr. Cox that day:

WRITTEN WARNING

April 21, 1988

Mr. Stanislaw Pietras:

This written warning is, and a copy of the notice regarding theft of property or time, to remind you that soliciting or organizing union activities on company property and company time is not permitted. [sic]

If you are found doing this, a more severe form of discipline, resulting in suspension or termination may arise.

61. Similar letters were also given to Messrs. Valencia and Sousa that day. When Mr. Valencia was given his copy of that letter, Mr. Cox told him that he would have problems such as suspension or termination if he was found engaging in Union activities on Company time or property. The reference in those letters to a "notice regarding theft of property or time" is a reference to the following notice which was posted throughout the plant on or about April 6, 1988:

TO ALL EMPLOYEES:

Over the past several months, our company has experienced the theft of equipment, materials and employee's personal tools.

This problem has cost our company a great deal of money and because of this loss, we will now require a new policy to be effective as of today.

NO COMPANY MATERIALS (NEW, SCRAP OR OTHER), WILL BE REMOVED FROM THE COMPANY PROPERTY.

Employees who wish to take their personal tools off company property will require one of the following signatures:

Bob Hutchinson

Don Hutchinson

Chris Walkey

Effective immediately, we will have security personnel on duty 24 hours per day, 7 days per week, to protect our work place and equipment.

Any employee found breaching the above policy will be subject to immediate termination and criminal charges being laid.

Theft of materials, equipment and time affect us all and the loss will eventually affect our profits which in turn means less money in our pay cheques.

I ask for everyone's complete cooperation in adhering to this policy.

(signed)

Donald K. Sheardown

President

62. Mr. Pietras signed up three more employees at the aforementioned donut shop after work on Friday April 22. On the following Monday, the Company transferred him to the service department from the air system assembly area where he had worked for two and a half years. Mr. Sheardown told Mr. Pietras that the transfer was for his own protection, and also told him that he could not use the telephone, come to the plant, or sign any Union cards on Company property. Following the transfers of Mr. Pietras and Mr. Sousa to the service department, Mr. Sheardown met again with the employees in that department to inform them that those two grievors had been moved there for their own protection because of things that were going on in the plant. According to Mr. Pietras, Mr. Sheardown separated the Union organizers from the other employees at that meeting, and stated that he would not be the owner of a company with a union. However, we reject that testimony, which was contradicted by other evidence that we found to be more reliable.

63. On April 21 Mr. Sousa received a written warning from Mr. Walkey for failing to properly adjust the doors on certain buses. Although he acknowledged that he "might have mistakenly left a screw on a bus door untightened", he said it was not unusual as "everyone makes a mistake sometimes". He also told the Board that he was of the view that he had received that warning because he was involved with the Union. Mr. Walkey testified that although at the time he gave Mr. Sousa that written warning he knew that Mr. Sousa was active in the Union, this did not have anything to do with him receiving the warning. He told the Board that he was initially not going to give Mr. Sousa a written warning because he was concerned that it might look like he was picking on a Union member. However, when he asked Mr. Sheardown about it, Mr. Sheardown told him not to treat Union members any differently from other employees, and instructed him to treat the situation in the same manner that he would any other time. Mr. Walkey then proceeded to give Mr. Sousa the written warning. We found Mr. Walkey to be a forthright and candid witness whose evidence satisfies us that the respondent did not deal with Mr. Sousa contrary to the Act in giving him that written warning.

64. On April 21, Mr. Sheardown called Mr. Sousa into his office and accused him of starting rumours in the plant that Mr. Sheardown had given him an extra dollar per hour to back off his Union activities. Although Mr. Sousa denied starting or spreading any such rumours, Mr. Sheardown gave him the following written warning later that day:

This written warning is with regard to a meeting held in my office at 8:15 a.m. today.

I have been advised by a fellow employee that you stated to him that Don Sheardown had given you a $1.00 hourly increase to back off your union activity.

This statement is in fact a complete fabrication which was verified by a member of the management staff who attended this meeting.

This statement made by you has caused a severe disruption in our plant among other employees. Any further false statements which are made by you in a manner to cause turmoil in our workplace will be reason to suspend or subject you to termination of employment.

I ask for your co-operation in bringing our plant back to a more orderly work environment.

65. Mr. Sousa told the Board that what had occurred, and what he told Mr. Sheardown prior to receiving that written warning, was as follows. While three or four employees, including Manuel Machedo, were conversing in a group, Mr. Sousa asked, "Why doesn't the Company offer $1.00 more to each employee so they'll stop their Union activity?" It was also his evidence that he told them that if he personally was offered a $1.00 raise, he would not stop as he was organizing for the people who wanted the Union, and not for his own problems. However, Mr. Sousa's evidence was contradicted by the testimony of Mr. Machedo, whom we found to be a more reliable witness than Mr. Sousa. Mr. Machedo testified that Mr. Sousa told him and three or four other Portuguese speaking employees that Mr. Sheardown "talked to him to stop the Union" and gave him a dollar increase. As a result, the rumour referred to in the letter was spread around the plant, causing disruption, confusion, and concern.

66. During his discussions with Mr. Sheardown that day, Mr. Sousa repeatedly asked Mr. Sheardown to fire him or lay him off, but Mr. Sheardown declined to do so because he was a good worker. When he was asked (during cross-examination) why he made those requests, Mr. Sousa said, "Because I didn't like war. Because I'd just prefer to go away instead of involving myself in all of that." In explaining what he meant, Mr. Sousa told the Board that "when arguments start, tempers start to flare, and management was getting into arguments and even workers amongst themselves were getting into arguments." During those discussions, Mr. Sheardown instructed Mr. Sousa to come to his office on the following day so that they could further discuss his wish to be fired or laid off. However, Mr. Sousa did not report for work on April 22, but instead went to see his physician about the stress which he was experiencing.

67. Mr. Sheardown transferred Mr. Sousa to the service department on April 25 and placed limitations upon him similar to those imposed on the other transferees. In his testimony before the Board, Mr. Sheardown indicated that he transferred Mr. Sousa because he had started the aforementioned rumour (about Mr. Sheardown giving him a dollar an hour to back off the Union), and because he was travelling throughout the plant disrupting the workforce. In his testimony before

the Board, Mr. Cox, who was also involved in the transfer decision, confirmed that Mr. Sousa was transferred because employees were very agitated by his statement about receiving a raise for backing off the Union. He further testified: "Work was to be done. Fighting is not part of it. If there was going to be confrontation, we did not want him to be part of it." Following his transfer, Mr. Sousa did not sign any more employees into the Union because the prohibition against returning to the plant deprived him of the opportunity of readily speaking with his former co-workers, and because all of the problems which he was having with management made him lose interest in the Union.

68. On Friday April 22, Mr. Janczyk was transferred to the service department from his job as a floater on the Orion II line, after management heard rumours that he was involved in Union activities. Mr. Sheardown testified that Mr. Janczyk was transferred because "the problem did not settle down on the line he worked on, and not only was there a problem as far as employee safety goes, but there was no work being done".

69. After Mr. Janczyk arrived in the service department, Mr. Leether told him not to talk about the Union or stand around in a group talking to other employees. He also told him repeatedly during his first month in the service department that he was not allowed to go over to the plant at any time, nor to make or receive any personal telephone calls. Neither Mr. Janczyk nor any of the other grievors suffered any reduction in wages or loss of benefits as a result of their transfers.

70. Later that day, Mr. Sheardown came to the service department and addressed all of the employees in that department. He told them that Mr. Janczyk had been transferred there for his own protection. He asked them not to sign Union cards on Company property, and also asked them to cooperate and get along in working together. After this, Mr. Janczyk saw Mr. Sheardown in the service department from time to time. There was nothing out of the ordinary about this as he was accustomed to seeing Mr. Sheardown in the plant. He acknowledged (in cross-examination) that Mr. Sheardown had always been a visible and conspicuous individual who appeared to take a personal interest in everything that was going on. He also told the Board that Mr. Sheardown did not treat him any differently after his transfer than he had prior to the organizing drive.

71. Mr. Janczyk also testified that the working environment in the service department was much better than that in the plant. He noted that it was cleaner, and that there were not a lot of air lines and other things lying around on the floor as there were in the plant. He further indicated that the service department does not have the pressure and tension created by the plant's production schedules. Thus, Mr. Janczyk told the Board that, although he still has some differences to work out with Mr. Leether (who from time to time yells loudly at employees whom he feels have done something wrong), he prefers working in the service department rather than the plant.

72. On or about April 28, Messrs. Yussuff and Grant were handing out leaflets to employees as they entered the Company parking lot prior to work. Mr. Sheardown walked up to them and told them not to disrupt the traffic flow because it might cause an accident. After they assured him that they were not blocking traffic, Mr. Sheardown stood right beside them and stared intently at the employees in an intimidating manner. During the five or ten minutes that Mr. Sheardown was there, approximately fifty employees entered the parking lot in cars, but only about five or six of them stopped and accepted leaflets. When a leaflet was offered to two employees who came by on foot, Mr. Sheardown called one of them by name and indicated that he should not take it. The employees then walked in without taking a leaflet. Mr. Sheardown left about five minutes later, after instructing two foremen to stay at the gate to ensure that the employees had access to the parking lot without obstruction.

73. Later that day, Mr. Leether asked Mr. Galeota if he was going to attend the Union meeting which was to be held after work that afternoon. When Mr. Galeota indicated that he was not sure, Mr. Leether told him that he should "think about it" because he was an excellent worker who "still had a chance" with the Company.

74. On Friday April 29, Mr. Sheardown gave Mr. Pietras a sixty-day suspension for lying about what had happened to Mr. Trajkovic. The letter which Mr. Pietras received from Mr. Sheardown concerning that suspension reads:

WITNESS TO ALLEGED THROWING OF PARTIAL TUBE OF BEES WAX ON APRIL 20, 1988:

After investigating the alleged incident whereby you stated to myself, Employee Rep Jeff King, Bryan Cox, John Leether and Detective Ivan Strong that you witnessed an object (you stated it to be bees wax) strike Michael Trajkovic on the head at a time when you and he were in the stock room obtaining parts. [sic]

The investigation by the Management of Ontario Bus and the Peel Regional Police have shown that the statement made by you is a complete fabrication.

This act by you, in an attempt to embarrass the company in concert with Mike Trajkovic has created a severe disruption in our plant, causing hugh [sic] labour hour losses and turmoils amongst our employees.

Effective May 2, 1988, you are hereby suspended for a 60 day period, with a further six month probationary period on your return to work.

Your medical benefits are also suspended for the 60 day suspension period.

You will report to my office on July 5, 1988 to be informed of your duties.

I ask for your full cooperation.

75. When Mr. Pietras returned from that suspension, he was assigned a difficult job on July 5, but was given a better job the next day. However, when he asked if he could return to his former job in the air system assembly area, Mr. Sheardown said no. Mr. Pietras then told Mr. Sheardown that if he could not return to that job he would no longer work for the Company. When Mr. Sheardown remained unyielding, Mr. Pietras quit his employment with the Company.

76. On April 22, Mr. Valencia was transferred to the service department from the Orion II line where he had worked for the previous six months as a line mechanic. Mr. Sheardown told the Board that the reason for the transfer was that "problems were still developing on the Orion II line, and in the section where Oscar Valencia worked little or no work was being done". He also testified that Mr. Valencia and the other grievors who were transferred "were all transferred because of the disruption and the threats of physical violence", and because he felt that he had responsibility to do what was necessary to protect all of the employees. Mr. Valencia was also told by management that he could not use the telephone or speak with other employees in a group. He was assigned various tasks in the service department but spent most of his time outside the building, cleaning the interiors and exteriors of buses which had been serviced, to prepare them for return to their owners. Mr. Valencia was of the opinion that Mr. Leether was acting discriminatorily in assigning him that work. However, we accept Mr. Leether's evidence that he assigned that work to Mr. Valencia because the employee who normally performed that work had just left the Company, and because Mr. Valencia had proved to be incapable of performing other types of service work due to his limited skills.

77. As indicated above, Mr. Sheardown came over to the service department several times each week to observe the department's operations. On these visits he often watched Mr. Valencia from a short distance away without saying anything to him. Mr. Valencia was of the opinion that Mr. Sheardown did this in an attempt to make him nervous and thereby cause him to do something wrong so that Mr. Sheardown would have an excuse to take disciplinary action against him. However, we accept Mr. Sheardown's evidence that he was merely observing Mr. Valencia's work activities in the same manner that he observed other employees, and that he did not speak to him because the section 89 complaint (in File No. 0533-88-U) which the Union filed with the Board on May 27, 1988 led him to conclude that anything which he said might be misconstrued and used against him.

78. In early May, Mr. Valencia was given an oral warning by Mr. Leether for leaving Company property during working hours without advising Mr. Leether of his whereabouts. During July, Mr. Leether gave Mr. Valencia written warnings for "ongoing ineffective use of Company time", and for driving a bus in a careless manner. It is unnecessary to detail the evidence adduced concerning those incidents. It is sufficient for purposes of this decision to indicate that we are satisfied on the totality of the evidence that those written warnings were given to Mr. Valencia for misconduct on his part, and not because of his role as a Union organizer. The same is true of the aforementioned oral warning.

79. On a warm day in August, Mr. Sheardown rebuked Mr. Valencia for wearing only "short shorts" while working, and instructed him to put on the coveralls provided by the Company for reasons of safety and appearance. About two days later, Mr. Sheardown gave Mr. Valencia another oral warning when he found him working on a bus with no shirt on, and with the top of his coveralls pulled down and wrapped around his waist. Although in giving his evidence Mr. Valencia expressed the opinion that the Company was discriminating against him in this regard, the evidence does not support that conclusion. In this regard, we note that Mr. Janczyk's evidence confirms that Mr. Leether told all of the employees in the service department that because of safety concerns it was not permissible for them to work in shorts with no coveralls or with their coveralls wrapped around their waist.

80. On August 15 Mr. Sheardown stepped onto a bus on which Mr. Valencia was working and stood watching him for a few minutes without speaking. When Mr. Valencia finished his cleaning work, he gathered up his equipment and left the bus with Mr. Sheardown walking ahead of him. It was Mr. Valencia's evidence that as he stepped out of the bus, a cleaning rag fell out of his pocket. He further testified that when he bent down to pick it up with his right hand, the handle of the broom which he had been carrying in his other hand fell forward and came down close to Mr. Sheardown but did not touch him. Mr. Sheardown, on the other hand, testified that after he stepped off the bus and walked ten or fifteen feet toward the service department building, he was struck on the head by a broom handle in a manner which involved the same feeling and pain as getting hit on the head with a hockey stick. Mr. Sheardown immediately turned around and found Mr. Valencia about three feet behind him. When Mr. Sheardown asked, "Do you know what you have just done?", Mr. Valencia replied, "It was an accident". After Mr. Sheardown retorted, "It is no accident when I get hit in the head with a broom handle", Mr. Valencia denied that the broom handle had struck him. The two of them then entered the building and approached Mr. Leether. While Mr. Sheardown went to get an employee representative, Mr. Leether asked Mr. Valencia what had happened. Mr. Valencia said that the broom had accidentally hit Mr. Sheardown. However, when Mr. Sheardown returned a few minutes later with an employee representative and the four of them went into Mr. Leether's office to discuss the matter, Mr. Valencia denied that the broom handle had struck Mr. Sheardown, and stated that it had merely fallen close to him. Mr. Valencia was then suspended for three days pending investigation, in accordance with the Company's standard policy respecting discipline. Under that policy which is designed to ensure that disciplinary action is not taken precipitately, an employee is sent home for three days while management investigates the situation and determines whether disciplinary action is warranted. If management decides not to discipline the employee, or merely to issue a written warning, the employee is paid for that period.

81. After Mr. Valencia left the premises, Mr. Leether told Mr. Sheardown about what Mr. Valencia had said concerning the incident in Mr. Sheardown's absence. The inconsistency between what he had told Mr. Leether and what he had told Mr. Sheardown further confirmed Mr. Sheardown's opinion that Mr. Valencia was not being truthful about the incident. After further considering the matter, Mr. Sheardown decided to discharge Mr. Valencia. In explaining that decision, Mr. Sheardown told the Board, "During the three-day period I reviewed the matter and felt that, even though there was a Union organizing person involved, it is clearly stated in our policy that if anyone is struck with an instrument or physically abused it's an automatic termination. It was my opinion that if someone struck the President we have no alternative but to terminate that employee." He also told the Board that he did not believe that the incident was accidental.

82. Having carefully considered all of the evidence adduced before us concerning that incident, we have concluded that Mr. Valencia intentionally struck Mr. Sheardown on the head with his broom handle. His motivation for doing so is unclear, although he may have acted as he did as a result of his annoyance with Mr. Sheardown's practice of observing his work without speaking to him. As noted above, after denying Mr. Sheardown's assertion that the broom handle had struck him, Mr. Valencia admitted to Mr. Leether that it had struck Mr. Sheardown, but then resurrected his earlier story when Mr. Sheardown returned with an employee representative. We find Mr. Valencia's evidence regarding this incident to be neither candid nor credible. If Mr. Valencia had in fact bent down in the manner which he described in his evidence before the Board, the broom handle would neither have struck Mr. Sheardown nor fallen close to him, as he would have been well out of its range by the time it fell. Although Mr. Sheardown's hockey stick analogy may involve an element of exaggeration, we found his evidence concerning the incident to be more reliable than that of Mr. Valencia. Furthermore, we are satisfied on the totality of the evidence that Mr. Sheardown honestly (and not unreasonably) believed that Mr. Valencia intentionally struck him on the head with his broom handle, and that Mr. Sheardown acted on the basis of that belief in deciding to discharge Mr. Valencia. We are also satisfied that anti-union animus played no part in Mr. Sheardown's decision to discharge Mr. Valencia for that incident.

83. As indicated above, we have determined that some of the Union's allegations against the respondent are unfounded. However, having carefully considered all of the evidence and the submissions of counsel, we have concluded that the respondent did contravene the Act in a number of ways.

84. Management's interrogation of employees including Messrs. Galeota and Valencia concerning their support for the Union and their organizing activities constituted a clear violation by the respondent of section 64 of the Act, which prohibits an employer, or a person acting on behalf of an employer, from interfering with the formation, selection, or administration of a trade union. (See J. Pascal Inc., [1985J OLRB Rep. July 1075; Charterways Transportation Limited, [1982] OLRB Rep. April 552; and Ex-Cell-O Wildex, [1977] OLRB Rep. June 370.) The same is true of Mr. Leether's suggestion (made in the context of a discussion about Mr. Galeota's uncertainty about whether or not to attend the Union meeting that afternoon) that Mr. Galeota should "think about it" because he was an excellent worker who "still had a chance with the Company".

85. The respondent contravened section 64 by prohibiting the grievors from engaging in

union solicitation on Company property, and also contravened section 66 by giving them written warnings concerning such activities. In Wilco Canada Inc., [1983] OLRB Rep. June 989, the Board wrote, in part, as follows:

18. A useful review of the Board's approach to such "no-solicitation" and "no distribution" rules is contained in the Board's recent decision in The Adams Mine, Cliffs of Canada Ltd., Manager, [1982] OLRB Rep. Dec. 1767, at paragraphs 15 to 22. In that decision the Board analysed the pertinent Canadian and American jurisprudence, as well as the applicable provisions of the Labour Relations Act, including section 71 which provides:

"Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union."

On the basis of that analysis, the Board arrived at the following general principles:

"(a) No-solicitation or no-distribution rules which prohibit union solicitation on company property by employees during their non-working time are presumptively an unreasonable impediment to self-organization and are therefore invalid; however, such rules may be validated by evidence that special circumstances make the rule necessary in order to maintain production or discipline;

(b) No-solicitation or no-distribution rules which prohibit union solicitation by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose or applied unfairly; and no-solicitation or no-distribution rules which prohibit union solicitation by non-employee union organizers at any time on the employer's property are valid in the absence of an application for a direction pursuant to section 11."

See also International Chinese Restaurant, [1977] OLRB Rep. Oct. 681; Renfrew County Roman Catholic Separate School Board, [1970] OLRB Rep. Feb. 1381; Audio Transformer Limited, [1969] OLRB Rep. Nov. 994; Indatprime Limited, [1969] OLRB Rep. Aug. 652; The Talisman Motor Inn, [1968] OLRB Rep. Apr. 80; Data Business Forms Limited, [1966] OLRB Rep. Dec. 714; McNair Products Company Limited, [1966] OLRB Rep. Oct. 518; Norfish Limited, [1965] OLRB June 226; Barbara Jarvis and Associated Medical Services Limited, [1961] OLRB Rep. June 973; and Cominco Ltd., [1981] Can. LRBR 499 (B.C.L.R.B.)

In the instant case, if a prohibition against solicitation had been applied uniformly to employees opposed to the Union as well as to those in favour of it, the danger of violence over the issue of unionization might have overcome the presumptive unreasonableness of such a prohibition of solicitation on Company property by employees during their non-working time. However, it is evident that in the instant case the prohibition was only applied and enforced in respect of pro-union solicitation. The evidence indicates that the respondent not only permitted petitions against the Union to be circulated on Company premises during working hours, but also shut down the plant for most of the afternoon on April 19 to permit employee representatives known to be opposed to the Union to hold meetings with employees. The respondent also permitted Mr. Pereira, who was known to be firmly opposed to unionization of the plant, to call Portuguese speaking employees into his foreman's office during working hours to apprise them of all the benefits the Company provided to them, and to express the view that they did not need a union. Thus, it is clear that the solicitation prohibition was imposed on the grievors for a discriminatory purpose, and that it was applied unfairly. Consequently, in this case not only has the presumption referred to in the first principle quoted above been rebutted, but also the presumption regarding the validity of a prohibition of solicitation by employees during working time (referred to in principal "(b)" quoted above).

86. Although the impugned transfers fall closer to the line, we have decided on balance that the respondent also contravened sections 64 and 66 of the Act when it isolated the grievors by transferring them out of their regular jobs after becoming aware of their Union activities. The possibility of violence in the plant, the existence of more favourable working conditions in the service department, and the maintenance of the transferred employees' wages and benefits made the transfers a less egregious violation than that which occurs in instances where an employer transfers a known union supporter to an undesirable or less remunerative position, or to a position more susceptible to lay-offs. Nevertheless, we are satisfied on the totality of the evidence that at least one of the purposes and effects of the transfers was to isolate the grievors and thereby weaken the organizing drive by making it more difficult for them to promote the Union among their fellow employees. Moreover, we are not persuaded that any countervailing considerations warranted this interference with the organizing drive in the circumstances of this case.

87. The discriminatory restrictions in respect of telephone calls, discussions with other employees, and access to the plant, which the respondent placed on the grievors who were transferred to the service department were also violative of sections 64 and 66, as were the analogous restrictions placed on Mr. Sousa and the very close supervision under which Mr. Chioconi was placed for two or three weeks after his transfer to the electrical room.

88. In considering the legality of Mr. Sheardown's comments at the April 18 general meeting of employees, we note that section 64 of the Act expressly preserves the employer's "freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence". In commenting on the effect of that statutory language, the Board wrote as follows in J. Pascal Inc.,[1985] OLRB July 1075, in paragraph 21:

The Act does not require that an employer stay neutral during a union organizing campaign. To the contrary, section 64 expressly states that nothing in the section "shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, threats, promises or undue influence". Where the difficulty arises is in trying to draw the line at which an expression of views by an employer becomes "coercion, threats, promises or undue influence", which are prohibited by the section. As noted in the Dylex Limited case, [1977] OLRB Rep. June 357, in seeking to establish where the line lies, the Board starts with the presumption that employees recognize that employers are generally not in favour of having to deal with employees through a trade union, and that, therefore, it ought not to surprise them if their employer indicates that he would prefer it if they did not support the union. On the other hand, however, the Board is also aware that an employee may be particularly vulnerable to employer influences. An employer cannot, when expressing his views, make statements that may be reasonably construed by employees to be an attempt by means of coercion, intimidation, threats, promises or undue influence to interfere with their freedom to join and support a trade union of their choice.

As indicated in paragraph 15 of this decision, we have concluded on the balance of probabilities that Mr. Sheardown did not say that the Company would not survive with a union, that he never wanted to own a company which had a union, that the Union would destroy the Company, or that if employees were offered Union cards they should throw them in the garbage. Having carefully considered what the evidence establishes that Mr. Sheardown did say at the meeting (as described in paragraphs 14 and 16), we have concluded that all of his comments fall within the purview of the employer's freedom of speech under section 64.

89. As indicated above, the evidence does not support the Union's contention that the respondent contravened the Act by discharging Messrs. Trajkovic and Valencia. The same is true of Mr. Pietras's suspension (and the other disciplinary action imposed upon him, with the exception of the written warning which he received in respect of engaging in union solicitation). The Company's investigation of Mr. Trajkovic's allegations led management to conclude, not unreasonably, that in an attempt to embarrass the Company during the organizing drive, Mr. Pietras falsely stated that he witnessed an object strike Mr. Trajkovic on the head in the stockroom. We are also satisfied that the imposition of a sixty-day suspension was consistent with the Company's policy of suspending employees for extended periods of time for misconduct which it judged to be serious, as exemplified by the ninety-day suspension that was imposed on Mr. Pereira for his part in an altercation with Mr. Trajkovic in 1987. We also find no merit in the Union's contention that Mr. Pietras was effectively forced by the respondent to quit his employment. Had he been left on the difficult job to which he was assigned on the day he returned from his suspension, that contention might be somewhat more tenable. However, on the following day he was given a better job, but nevertheless elected to quit when the Company declined to return him to his former job in the air system assembly area. The evidence adduced before us falls far short of establishing that the respondent constructively discharged Mr. Pietras. Accordingly, there is no legitimate basis for directing the respondent to rehire him.

90. The respondent did, however, contravene section 64 through the actions of its foremen who positioned themselves in the hallway near the Union meeting room at the Ramada Inn on April 20 around the time the meeting was scheduled to commence. In the absence of any testimony from those foremen to explain their presence, it is reasonable to infer that they gathered there either to discourage employees from attending the meeting or to ascertain which employees were in attendance. However, the gravity of that contravention is somewhat diminished by the fact that their presence does not appear to have deterred employees from attending the meeting, and by the fact that they left the area as soon as Mr. Yussuff told them that the meeting was for employees only and that they were not welcome there.

91. The respondent contravened sections 64 and 70 of the Act on or about April 28 by interfering with the Union's leafletting activities. While there was nothing wrong with Mr. Sheardown attending at the plant gate to ensure that the C.A.W. representatives were not disrupting the traffic flow into the Company parking lot, he exceeded the bounds of propriety by staring intently at the incoming employees in an intimidating manner, and by indicating to one of the employees that he should not take the leaflet which was being offered to him by a C.A.W. representative.

92. The Union seeks to be certified under section 8 of the Act, which provides:

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

94. In support of his client's application for certification under section 8 of the Act, Union counsel contends that the respondent's interference was so quick and massive in this case that it essentially stopped the Union's organizing drive. He notes that when Mr. Sheardown was advised on the morning of April 18 that some employees were attempting to unionize the plant, he immediately interrogated the alleged organizers. Counsel further contends that within a few hours of receiving that information, Mr. Sheardown called a general meeting of employees to foment discord in order to defeat the Union. Union counsel also argues that the respondent abandoned production and permitted employees to go on a rampage against the Union, after muzzling the Union organizers by disciplining and transferring them to isolated areas. He urges the Board to consider the cumulative effect of the respondent's acts and omissions, and to find that the 67 employees who signed Union cards represent a core of support for the Union adequate for purposes of collective bargaining.

95. Counsel for the respondent argues that the Board should dismiss the application for certification under section 8. It is his contention that Mr. Sheardown did not say or do anything which contravened the Act. He further argues, in the alternative, that if there have been any contraventions of the Act, they are minor in nature and not of the type which warrant certification under section 8. It is also the respondent's position that the Union does not have support adequate for the purposes of collective bargaining, and that it would be an injustice for the Board to foist the Union on the respondent's employees because, it is submitted, a vast majority of them do not want to be represented by it.

96. In DI-AL Construction Limited, [1983] OLRB Rep. March 356, the Board made the following comments (in paragraph 5) regarding the purposes and requirements of section 8:

certification pursuant to the provisions of section 8 of the Act was designed as both a deterrent to illegal employer interference in union organizational campaigns, as well as a device to provide a meaningful and effective remedy in those areas where an employer's interference has operated to destroy the free selection process guaranteed by section 3 of the Act. The wording of the section makes clear that certification under section 8 can only be granted if three conditions are satisfied, namely:

(i) The Act has been violated.

(ii) The true wishes of employees are not likely to be ascertained in a representation vote, or otherwise.

(iii) In the opinion of the Board, the applicant has membership support adequate for the purposes of collective bargaining.

See also J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027; Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443; Cambridge Canadian Foods Inc., [1987] OLRB Rep. March 319; General Metal Products of Windsor Limited, [1985] OLRB Rep. Nov. 1596; Toronto Fabricating Co., [1985] OLRB Rep. Oct. 1528; Primo Importing and Distributing Co. Ltd., [1983] OLRB June 959; Trulite Industries Limited, [1983] OLRB Rep. May 821; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972; K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60; Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811; and Radio Shack, [1979] OLRB Rep. March 248.

96. As indicated above, the respondent has contravened sections 64, 66, and 70 of the Act. Thus, the first condition necessary for certification under section 8 has been satisfied. It remains for us to consider whether the true wishes of the employees are not likely to be ascertained, and whether the applicant has membership support adequate for the purposes of collective bargaining. In making the latter determination, the Board generally takes into account a number of factors. See, for example, Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, at paragraph 21:

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

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

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

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, supra; District of Algoma Home for the Aged (Algoma Manor) supra);

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

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

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

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) (Sommervilte Belkin, supra).

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

97. In the instant case, the respondent engaged in a number of unfair labour practices early in the Union's organizing campaign. Mr. Galeota first contacted the Union on or about April 7, 1988. The first meeting of Union officials and a small group of employees interested in organizing the respondent took place on the evening of Friday April 15. Twelve cards (plus one lost card) were signed over the next two days as a result of contacts which Mr. Sousa made with Company employees during that weekend. A few more were signed before work on Monday morning (April 18). The respondent's first contravention of the Act occurred when Mr. Sheardown interrogated Mr. Galeota (and two other employees) about the Union that morning. However, the organizers continued to sign up employees during the balance of the shift and after work. A total of twenty-six cards, (including one lost card) were signed that day, with most of them being signed after that contravention of the Act had occurred. Although the transfer of Messrs. Galeota and Chioconi to the service department, and the transfer of Mr. Trajkovic to the air system assembly area, gave them less opportunity to contact employees concerning the Union, twelve more cards (plus one more lost card) were signed over the next two days. It was not until after an overwhelming majority of the employees who attended the April 20 Union meeting rejected the Union by leaving the meeting en masse that the organizing drive really lost momentum. Although some of the respondent's unfair labour practices made it easier for opponents of unionization to vocalize their opposition, we are satisfied on the totality of the evidence that many of the respondent's employees were firmly opposed to unionization from the outset of the organizing campaign and that it was primarily their intransigence, rather than the respondent's contraventions of the Act, which caused the organizing campaign's lack of success. This was not a case in which the employer discharged organizers in contravention of the Act, or engaged in other unfair labour practices which cannot be remedied under section 89 in such a manner as will assure the employees that they are protected by the rule of law and that they are free to join a trade union and participate in its lawful activities, or to refrain from doing so. Nor is it a case in which the employer created or suggested the formation of an employee representatives committee to thwart the organizing drive. A committee of representatives elected by employees had been in place long before the organizing campaign, and had met regularly with members of management to discuss and resolve employee concerns. In the instant case, most of the initiative for employee opposition to the Union came not from management but from those representatives who, along with many other employees, were angered by the fact that a handful of employees had taken it upon themselves to contact the Union without first discussing the matter with their elected employee representatives or their fellow employees. Having regard to all of the circumstances, we are of the opinion that the respondent's contraventions of the Act have not created a situation in which the true wishes of the employees are not likely to be ascertained. Since that prerequisite for certification under section 8 has not been satisfied, it is unnecessary to determine whether or not the Union has membership support adequate for the purposes of collective bargaining in the circumstances of this case.

98. For the foregoing reasons, the Union's application for certification under section 8 is hereby dismissed. However, this is an appropriate case in which to grant a variety of relief under section 89 in order to remedy the respondent's unfair labour practices, and assure the Union and all of the respondent's employees that their rights and freedoms under the Labour Relations Act will be duly respected by the respondent. In addition to a declaration and a cease and desist order, a posting in English and Portuguese is appropriate to remedy any adverse psychological impact the respondent's contraventions of the Act may have had on employees, and to assure them that they are free to exercise, or to refrain from exercising, their rights under the Act (see, generally, Holiday Juice Ltd., [1984] OLRB Rep. Oct. 1449, and Valdi Inc., [1980] OLRB Rep. Aug. 1254).

99. The written warnings which were unlawfully given to the grievors in respect of union solicitation on Company property are to be rescinded and removed from their employment records. No relief other than a declaration is sought by the Union in respect of the transfers, as those grievors who remain in the employ of the respondent are content to remain in the positions to which they were transferred.

100. To provide the Union with the information necessary to enable it to contact the respondent's employees, thereby offsetting any advantage which employees opposed to the Union may have gained as a result of the opportunities which the Company's unfair labour practices gave them to express their point of view to other employees, the respondent will be required to provide the Union with a list of names and addresses of all of its employees (other than those excluded from the bargaining unit), and to keep the list updated on a monthly basis for a period of six months.

101. The Union's request for costs is denied. As noted by the Board in Gerald Lecuyer, [1987] OLRB Rep. Apr. 529, at paragraph 32, "[t]his Board has repeatedly said that if it does have the power to award costs to a successful complainant, it would be inappropriate to exercise that power where there is no corresponding power to award costs against an unsuccessful complainant." See also Luciano D'Alessandro, [1987] OLRB Rep. July 986, and the decisions cited therein. None of the other relief requested by the Union is warranted in the circumstances of this case.

102. For the foregoing reasons, the Board hereby declares that the respondent has contravened sections 64, 66, and 70 of the Labour Relations Act, and orders that the respondent:

(1) cease and desist from interrogating employees concerning their support for the Union and their organizing activities; prohibiting employees from engaging in union solicitation on Company property, or on Company time while concurrently permitting employees to engage in activities in opposition to the Union on Company time; isolating Union organizers by transferring them out of their regular jobs and treating them in a discriminatory manner following their transfers; and otherwise interfering with the employees' selection of a trade union;

(2) post copies of the appended notices in English and Portuguese, after being duly signed by Mr. Sheardown, in conspicuous places on its premises where they are likely to come to the attention of employees; keep the notices posted for sixty consecutive working days; take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other materials; and give to a representative of the Union reasonable physical access to the premises so that the Union can satisfy itself that this posting requirement is being complied with;

(3) rescind the grievors' written warnings in respect of union solicitation on Company property, and remove them from their employment records; and

(4) provide the Union with a list of names and addresses of all Company employees, other than those excluded from the bargaining unit, and keep the list updated on a monthly basis for a period of six months.

103. The Board will remain seized of these matters for the purpose of dealing with any disputes that arise concerning the implementation of the Board's order.

104. Accordingly, the Union's application for certification in File No. 0532-88-R is hereby dismissed, and its complaints in File Nos. 0533-88-U and 1197-88-U are allowed to the extent indicated herein.

DECISION OF BOARD MEMBER H. PEACOCK; November 30, 1989

1. I dissent.

2. There are three issues of concern:

a) the extent to which the various violations found against the employer interfere with the free selection process guaranteed by section 3 of the Act;

b) the majority's opinion that remedies other than a section 8 certificate are adequate to redress the employer's breaches of the Act; and

c) whether membership support at or above 30 per cent, or some other criteria, should constitute "membership support adequate for collective bargaining." (The third of the Section 8 conditions.) This becomes a consideration only if the second condition --the true wishes test -- is found to be unlikely to be ascertained.

3. In my opinion, the employer violations of the rights of OBI employees, as found by the

whole panel, constitute substantial misconduct and are of sufficient weight to require the Board to

certify the applicant under the provisions of section 8.

4. It is useful to set out in a list the whole range of misconduct as described in paragraphs

84 through 87 and 90 and 91:

• Management's interrogation of employees concerning their support for the union;

• Foreman Leether's suggestion to Peter Galeota about whether or not to attend the union meeting of April 20;

• prohibiting employees from engaging in union solicitation on company property, while shutting down the entire plant to enable employee representatives to meet and organize the circulation of petitions against the union;

• permitting Mr. Pereira. a known opponent of unionization, to call Portuguese speaking employees to his foreman's office to review company benefits with them and to express the view that they did not need a union;

• isolating the union's employee organizers and supporters by transferring them out of their regular jobs to the service department across the street from the main plant and to the air system assembly area in Mr. Trajkovic's case;

• prohibiting telephone calls, conversations with other employees and visits to the main plant by the identified union supporters;

• close supervision of George Chioconi after his transfer to the electrical room which included escort by his foreman whenever he left the room to pick up blueprints, etc.;

• the positioning of foremen in the hallway of the hotel where the union was meeting on April 20, either to discourage employees from attending or to ascertain which employees were in attendance;

• interfering with the union's leafletting activities outside the plant.

5. The majority concludes that these violations in themselves do not add up to the loss of an environment free of undue influence wherein the true wishes of employees can be ascertained in a representation vote. I disagree. With respect, I find that the number, nature and sequence of unlawful events of the week of April 18, 1988 (plus the last of the above list) and the combination of those events, for those employees in a position to observe or to learn of them, more than fulfil the conditions attached to the second of the three tests set out in the DI-AL Construction Limited case (paragraph 95).

6. The violations are numerous. Some involve the president of the company himself in front of other employees; (personally taking Mr. Galeota from his work Monday morning to interrogate him, the parking lot leafletting incident), his production manager Brian Cox and various members of supervision. And they occurred in many different parts of the plant (the parking lot, the Orion II line, the service department, a foreman's office, the president's office, the electrical room).

7. It must have appeared to employees that the management team was obsessed with the news of a union drive in the plant that week, beginning April 18th. Monday morning, Mr. Sheardown starts by calling employees (Galeota) to his office or going to them (Eland and Sharp) to enquire as to their involvement with the union.

8. Galeota leaves Mr. Sheardown's office to canvass various Orion II line workers if they wish to join the union and is called back to Mr. Sheardown's office to declare whether he will change his mind about supporting the union.

9. Mr. Sheardown convenes at midday a general meeting of employees, including the service department workers, to advise that a number of employees had met with the CAW the week before. After the meeting, Mr. Trajkovic is escorted to Mr. Cox's office to discuss the allegations he had made at the meeting. On Mr. Galeota's information, Mr. Sheardown calls Mr. Chioconi to his office to identify himself as to why he had become a union supporter. Also that afternoon, Mr. Sheardown speaks angrily to Mr. Valencia about his "betrayal".

10. Tuesday morning Mr. Galeota is told of his transfer and escorted by Mr. Leether to get his toolbox and then to the Service Department. Mr. Chioconi is dealt with similarly. Later that morning he is called to the Personnel Office to be given his warning letter. Mr. Trajkovic is transferred and escorted to the air system assembly area after starting work Tuesday morning.

11. For most of the afternoon, the plant is shut down, at the apparent request of union opponents and with Mr. Sheardown's agreement.

12. Wednesday afternoon Mr. Pietras is spoken to by Mr. Sheardown, Mr. Cox and Mr. Wakeley at different times. Mr. Eland speaks with many of the employees on the Orion II line for

most of the day Wednesday to urge them to attend the CAW meeting of that evening to show support for the Company. Foremen position themselves outside the CAW meeting room.

13. On Thursday, Mr. Sheardown calls Mr. Sousa into his office and accuses him of starting rumours in the plant, for which Mr. Sousa was given a written warning.

14. On Thursday or Friday, it is not clear which, Mr. Sheardown convenes a second general meeting to declare that the CAW's Wednesday evening meeting showed a majority of employees supported the Company and he deals with the Trejkovic incident. On Thursday, Mr. Valencia and Mr. Pietras are given the warning letter by Mr. Cox.

15. On Friday, Mr. Janczyk is transferred to the service department and later that day Mr. Sheardown addresses the employees to explain that Mr. Janczyk had been transferred for his own protection and asks people not to sign union cards on company property. Mr. Valencia is transferred to the service department that day from the Orion II line.

16. On Tuesday, Wednesday and Thursday petitions are circulated during working hours with the permission of Mr. Sheardown.

17. Sometime that week, Mr. Pereira is permitted to call Portuguese-speaking employees into his foreman's office during working hours to tell his mates that they did not need a union.

18. It is accepted that not all of the events described above were violative of the Act. It is clear, however, that the respondent employer, by making available its premises to employees interested in mobilising opposition to the union, and in undertaking to halt production without loss of wages to employees, was providing those interested in opposing the union with a substantial advantage over those who were endeavouring to marshal support for the union, contrary to Section 64. (Somerville Belkin Industries Ltd. [1980j, OLRB Rep. May 791 at 800-802)

The granting of company time and use of premises had four purposes:

a) to convey information to Mr. Sheardown about the extent of support for unionization;

b) to denounce union supporters, in the case of Mr. Valencia, before other employees of the Orion II line (paragraph 25);

c) to organize a demonstration of support for the company at the CAW's Wednesday Ramada Inn organizing meeting (paragraph 56); and

d) in Mr. Pereira's case, to turn Portuguese-speaking employees against the union.

19. Had we to enquire into the voluntariness of a petition prepared and circulated during the week of April 18th, the pages of which were returned to and collected by Mr. Sheardown himself, the Board would have found it tainted beyond any shred of doubt. Some employees, at least, must have realised that, whatever their feelings, they might be at risk if their names did not appear on the petitions being returned to Mr. Sheardown. The granting of large amounts of production time to anti-union, pro-company supporters with pay, contrasted as nothing else could with the warning to all employees posted only two weeks earlier of the consequences of theft of company materials, equipment and time. Specifically, the non-disciplinary treatment of union opponents contrasted with the written warnings addressed to union supporters. Those warnings threatened termination for union solicitation, and emphasized the earlier April 6th theft-of company-time general warning. Overt discrimination by the employer was the rule that week. How then can the

Board find that the true wishes of employees in these circumstances are still likely to be ascertained?

20. I turn now to the analysis the Board must undertake in the second of the three tests under 5. 8 to determine whether the true wishes of employees can be determined in the circumstances of each case. The phrase in Section 8 governing the second test reads:

"...so that the true wishes of the employees of the employer.. .are not likely to be ascertained~.."

21. This is construed in DI-AL (as quoted in paragraph 95) to mean that neither a representation vote nor some other means -- in our system, the signing of union membership application cards -- would disclose the true wishes of employees.

22. My emphasis, in this case, must be on the importance of the word "likely" in Section 8. Its enactment by the legislature clearly gives the Board the discretion to weigh the impact of the employer's misconduct on employees' freedom to chose. The Board is not required to find with absolute certainty that the breach suppresses a free expression of desire for collective bargaining representation.

23. In Maplehurst Hospital Limited [1986] OLRB Rep. July 996, the Board set out the following analysis:

The majority agrees that the assessment of the representational wishes of the employees is to some extent speculative. Obviously, the Board cannot "read the minds" of those employees to conclusively determine whether those persons could exercise their franchise without being intimidated or improperly influenced by their employer. However, the statute does not prescribe so rigorous a standard; rather, the test is whether the true wishes "are not likely to be ascertained". It is for this reason that the Board requires substantial employer misconduct to justify the extraordinary remedy of certification pursuant to section 8: Radio Shack, [1979] OLRB Rep. Mar. 248, upheld 79 CLLC 14,216 (Ont. Div. Ct.); Ex-Cello Wildex, Canada, [1977] OLRB Rep. June 370; Manor Cleaners Limited, [19821 OLRB Rep. Dec. 1848; Benwind Industries, (1985] OLRB Rep. Feb. 149. However, the Board does look to the cumulative impact of the employer's illegal activities: K Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972; Benwind Industries, supra

[emphasis in original]

24. The line of cases cited above does indeed contain applications of section 8 to remedy substantial violations of employee rights, violations that go well beyond the meaning of that word to the point that I would use the words 'extreme' or 'gross' to characterize the employer actions. Do Maplehurst and the cases cited in the above quotation, then, require that only violations of such magnitude are likely to deny a free expression of opinion? Surely that is not what was intended. I note and adopt the last sentence:

However the Board does look to the cumulative impact of the employer's illegal activities: K Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan 60; Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972; Benwind Industries, supra.

25. The Ontario Bus Industries case is a case of cumulative impact falling somewhere below the Radio Shack or Manor Cleaners degree of misbehaviour but without a doubt, well within the "not-likely-to-be-ascertained" ballpark. (See also The Globe and Mail Division case [1982] OLRB Rep. Feb. 189. It is the finding of the Board that Mr. Sheardown did not make threatening comments at the two general meetings. Notwithstanding the absence of this type of violation in this case, how were employees to sort out what was permissible conduct and what was non-permissible on the part of the employer in the turbulent anti-union atmosphere of that week? The Board must look, I submit, not at each contravention in isolation from the others, or from other events, but from the perspective of employees who could not possibly be expected to construe that the dismissal of Mr. Trajkovic and the suspension of Mr. Pietras were untainted by the anti-union animus that underlay Mr. Sheardown's other actions against the union supporters. That is always a risk for a employer, once it crosses the line and blurs the objective perception of employees. There is no ideal state of freedom of choice even in a democracy but the last place to look for it is in a workplace such as Mr. Sheardown's plant during the week of April 18th. Nor is it open in law to an employer - especially one of Mr. Sheardown's "commanding personality and management style" -to find out if he and his team have failed to do their job as managers, and to concede to employees "a right to bring in a third party", only if they have failed. Whether or not he and his managers failed is not what brings about certification. Their failure is not a pre-condition to the employees' exercise of their rights. Mr. Sheardown interfered to such an extent that we cannot know by the usual means -- cards or a vote -- whether his employees want a "third party" to represent them. How would a so-called undecided or neutral employee have viewed any one of Mr. Sheardown's actions, or some combination of them that came to his or her attention? Could there be any doubt in the mind of such a person that the management team was not only expressing a desire to remain union-free, but was prepared to take a number of visibly retaliatory measures to prevent unionization?

26. No doubt, there were employees other than the employees reps, perhaps a large number, who opposed the union voluntarily, to the extent such uninhibited consideration is possible in a workplace, and would have done so without benefit of the two addresses by Mr. Sheardown. The totality of the employer's behaviour, nevertheless, leads to a conclusion that OBI deprived its employees in general of the ability to chose freely, in an atmosphere comparatively free of undue influence by the employer. I say "comparatively" because of the evidence of the fostering of a union-free environment coupled with the gratuitous use of company time and premises by the reps to organize opinion against unionization and report the results to the president.

27. It is utterly improbable that the employer's actions cumulatively did not have a chilling effect on actual or potential support for the union. We cannot gauge how many uncommitted employees may have become alienated from the decision-making process. Suffice that the free will of only a handful of neutral people was effectively squelched for the Board to conclude that a meaningful expression of views for or against collective bargaining has been lost.

28. Those who were intimidated out of the exercise of a free choice will not be reassured by the remedies ordered by the majority.

29. I cannot imagine how provision of a list of employees and communication with them, even on a one-on-one basis, is compensatory for the overwhelmingly adverse impact the employer must have achieved in the minds of uncommitted employees or those inclined to support a union.

30. Apart from the direction to cease and desist against the employer, the remedy of the majority, practically, is to give the applicant trade union another chance to appeal to the employees. Given the fostering over a number of years of an animosity toward unionization as solidified during the week of April 18th, the fears raised by the employer's actions cannot be dispelled sufficiently to allow the true wishes of the employees to be ascertained, certainly not by a vote. Nor is it likely that their true wishes can be expressed over the short term, even in the privacy of their homes were the applicant to renew its organizing efforts by mail solicitation or house visits, as the remedy suggests (item 4). Memories of seeing union supporters being removed from their jobs and escorted to an isolated work area and the association of the two captive audience meetings of the week of April 18th with the appearance of a union in the minds of employees will be powerful reminders of the risks of supporting a union.

31. Having found that the true wishes of employees are not likely to be ascertained because of substantial violations by the employer, and that the remedies of the majority decision are inadequate, I wish to look at the last of the 3 questions which decide Section 8. The majority did not reach that conclusion and therefore did not deal with the issue.

32. The third condition for the application of Section 8 is for the Board to find that the trade union has membership support adequate for the purposes of collective bargaining. In decision after decision, the Board has first repeated the disclaimer that the issue is not simply a question of numbers or percentages. (e.g. Manor Cleaners citing Viceroy Construction Company)

33. Indeed, nevertheless, the level of 30 percent membership support has become a threshold below which no reported Section 8 certifications have issued. Counsel for the respondent employer drew our attention to that pattern when he put in a table of cases from 1977 to the present, only one of which, Windsor Airline Limousine Service Ltd. was marginally below 30 per cent, but was achieved in one of two associated bargaining units.

34. The circumstances, other than numbers, to which the Board has had regard in earlier cases are not present here, except as to the severity of the employer violations (Manor Cleaners paragraph 21). What is dominant is the stage of organizing at which the employer learned of the drive and moved against it. The first cards signed by OBI employees were collected just 3 days before Mr. Sheardown's first contravention of the Act on Monday, April 18th. Where an employer moves quickly and effectively to interfere with a drive, as Mr. Sheardown did, the third requirement can easily be frustrated by unlawful activity. It is then no longer a matter of foisting a trade union on an unwilling majority but a "catch-22" situation where the Board cannot find adequate membership support for the very reason that the employer has signalled employees not to sign cards affirming that support.

35. To my mind Trulite Industries Limited [1983] OLRB Rep. May 821 (a 30 per cent case) at page 827 best describes how the Board should approach the dilemma posed by Section 8:

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

Certification without a vote.., creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct... However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means... I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used...

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

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

36. The likelihood of failure of a union organizing campaign for whatever reason, (e.g. language barriers or a well-entrenched opposition) is not determinative of a section 8 application where the employer has clouded by its misconduct the glass through which we must look. Where the employer actions prevent a clear reading of the employees' wishes, those employees must be given the opportunity, subject to the meeting of the third condition, to try out a collective bargaining regime to regulate their relationship with the employer.

37. The policy behind section 8 cannot be evaded because only a small number of employees had the chance to express themselves before the employer intervened.

38. How then should the Board assess the adequacy or membership support especially where, as in this case the proportion of cards to eligible bargaining unit employees is a comparatively low 17 per cent? I say, in the broadest possible labour relations terms. There has been some recognition of this approach in Zenith Wood Turners Inc. [1987] Nov. 1443 citing K-Mart Canada Limited (Peterborough) [1981] OLRB Rep. Jan 60 as follows:

In determining whether a union has support adequate for collective bargaining purposes within the meaning of [section 8] of the Act, the Board's concern is whether there is a number of employees, sufficiently representative of the employees in the bargaining unit, with the ability to negotiate with their employer on the content of a collective agreement. In this regard, bargaining ability is to be distinguished from bargaining power. The question is not whether they can amount a successful strike, or whether they will eventually realize substantial gains at the bargaining table. Rather, it is whether they have the core of support sufficient to negotiate with the employer. A [section 8] certificate, like any certificate, is only a beginning and need not be seen as anything more. (my emphasis)

39. The above quotation takes on added significance with the availability of access to first contract arbitration where a respondent employer is found to have rendered the process of collective bargaining unsuccessful. Section 40a was enacted because the Legislature recognized that section 8 was not a complete remedy in itself, even though it is an extraordinary one. Many section 8 certifications did not necessarily lead to a first collective agreement, because of the on-going chilling effect both of the employer violations during the organizing stage and intransigent positions at the bargaining table.

40. The section 40a first contract provision also gives effect to the principles found in the Preamble of the Act.

Whereas it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

41. On our part, as adjudicators, we are regularly reminded that the Labour Relations Act is not punitive. Neither is it neutral, I submit. I would direct that a certificate issue.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING ARISING OUT OF THE EFFORTS OF THE NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW—CANASA) TO BECOME THE COLI.ECTIVE BARGAINING AGENT FOR OUR EMPLOYEES. THE ONTARIO LABOUR IIELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY INTERROGATING EMPLOYEES CONCERNING THEIR SUFFORT FOR THE UNION AND THEIR ORGANIZING ACTIVITIES, PROHIBITING EMPLOYEES FROM ENGAGING IN UNION SOLICITATION ON COMPANY TIME AND PROPERTY WHILE CONCURRENTLY PERMITTING EMPLOYEES TO ENGAGE IN ACTIVITIES IN OPPOSITION TO THE UNION ON COMPANY TIME AND PROPERTY, ISOLATING UNION ORGANIZERS BY TRANSFERRING THEM OUT OF THEIR RESULAR JOBS AND TREATING THEM IN A DISCRIMINATORY MANNER FOLLOWING THEIR TRANSFERS, AND OTHERWISE INTERFERING WITH OUR EMPLOYEES SELECTION OF A TRADE UNION.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN, AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF

A TRADE UNION;

To ACT TOGETHER FOR COLLECTIVE BARGAININO;

To REFUSE TO DO ANT OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS.

WE WILL CEASE AND DESIST FROM INTERROGATING EMPLOYEES CONCERNING THEIR SUPPORT FOR THE UNION AND THEIR ORGANIZING ACTIVITIES; PROHIBITING EMPLOYEES FROM ENGAGING IN UNION SOLICITATION ON COMPANY PROPERTY, OR ON COMPANY TIME WHILE CONCURRENTLY PERMITTING EMPLOYEES TO ENGAGE IN ACTIVITIES IN OPPOSITION TO THE UNION ON COMPANY TIME; ISOLATING UNION ORGANIZERS BY TRANSFERRING THEM OUT OF THEIR REGULAR JOBS; AND OTHERWISE INTERFERING WITH THE EMPLOYEES' SELECTION OF A TRADE UNION.

WE WILL RESCIND WRITTEN WARNINGS THAT WERE ISSUES IN RESPECT OF UNION SOLICITATION ON COMPANY PROPERTY, AND REMOVE THEM FROM OUR RECORDS.

WE WILL PROVIDE THE UNION WITH N LIST OF NAMES AND ADDRESSES OF ALL OF OUR EMPLOYEES. OTHER THAN THOSE EXCLUDED FROM THE BARGAINING UNIT. AND WILL KEEP THE LIST UPDATED ON A MONTHLY BASIS FOR A PERIOD OF SIX MONTHS.

ONTARIO BUS INDUSTRIES INC.

PER:

PRESIDENT

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

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

DATED THIS 30^TH dav of NOVEMBER 1989.