United Food & Commercial Workers' International Union Local 175 v. Royce Dupont Poultry Packers, 1989 CanLII 3481

[1989] OLRB Rep. May 492

3536-87-R; 0010-88-U; 0609-88-U; 0696-88-U United Food & Commercial Work­ers' International Union Local 175, AFL-CIO-CLC, Applicant v. Royce Dupont Poultry Packers, Respondent v. Group of Employees, Objectors; United Food and Commercial Workers International Union, Local 175, AFL-CIO-CLC, Com­plainant v. Royce Dupont Poultry Packers, Respondent

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

APPEARANCES: Douglas J. Wray, Roberto Moretton and William Richardson for the applicant; Cheryl A. Edwards, Howard Ungerman and Irving Ungerman for the respondent; Lou Brzezinski, Marcie Weinman and Wayne Maracle for Wayne Maracle.

DECISION OF THE BOARD; May 19, 1989, as amended May 26, 1989

1. This is an application for certification, in which the applicant relies upon the provisions of section 8 of the Labour Relations Act, and numerous complaints filed pursuant to section 89 of the Labour Relations Act, in which the applicant/complainant alleges that the employer has breached, amongst other sections, sections 64, 66, 70, 79, and 80 of the Act.

2. The Board heard the evidence of seventeen witnesses, over approximately twenty days of hearing, and in an oral decision delivered at the conclusion of the last hearing day, the Board found that numerous unfair labour practices had been committed by the respondent employer, and the Board directed that a certificate pursuant to section 8 of the Act issue forthwith. The Board reserved on all other aspects of remedial relief, and indicated that its complete findings and rea­sons would follow. We now provide those findings and reasons.

3. The proceeding also dealt with whether Wayne Maracle, an employee of the respondent Royce Dupont, exercised managerial functions within the meaning of section 1(3)(b) of the Act, and in any event, whether Maracle was acting on behalf of the employer when various alleged unfair labour practices were committed. There was also an issue as to the sufficiency of several membership cards submitted on behalf of the applicant, in that some cards were undated and one card did not indicate the local of the applicant. These concerns in turn raised an issue with respect to the sufficiency or propriety of the Form 9 Declaration in that the particular Form 9 noted no exceptions and failed to identify the cards in question.

I - The Evidence

4. Before setting out the facts, we would make several comments about the evidence received by the Board. Irving Ungerman, the President of the respondent company, was called as a witness by the respondent. His examination-in-chief was completed by respondent counsel, and counsel for Maracle completed his cross-examination. Union counsel's cross-examination had reached the point at which Ungerman denied making a number of statements to a "captive" audi­ence of employees. At that point, counsel for the union indicated that a tape-recording had been made of that captive audience meeting. Counsel for both the respondent and Maracle objected to the admissibility of the tape-recording. Submissions on the admissibility of the tape-recording were made the next hearing day and, as the hearing day was at an end, the Board reserved its decision and adjourned. After the Board issued a written decision that the tape recording could be played to Ungerman in cross-examination (which ruling we will return to later), and before the next hear­ing day, the respondent asked that Ungerman be excused from further cross-examination, at that stage in the hearing, due to ill health. After hearing evidence and submissions of the parties with respect to this request, the Board directed that Ungerman's cross-examination cease for the moment and the hearing proceed in the interim. When the evidence was completed but for Unger­man's continued cross-examination and redirect, the parties agreed that Ungerman was still not physically well enough to continue with his cross-examination. Accordingly, his testimony was never completed.

5. Although the parties were unable to agree on the weight the Board ought to afford to the testimony already given by Ungerman, they submitted that his testimony was admissible. Whether testimony of a witness not subject to full cross-examination is admissible or not is a dis­cretionary matter for the Board. In this respect, see Richmond Insulation Company [1980] OLRB Rep. Oct. 1519; Taunton Fabricating Ltd., Board File No. 1875-85-U, unreported, May 5,1986; Sopinka and Lederman, The Law of Evidence in Civil Cases, 1974, pages 134 to 139; Meyer v. Hall (1972), 1972 CanLII 1239 (AB SCAD), 26 D.L.R. (3d) 309 (Alta.S.C.); Randall v. Atkinson (1899), 30 O.R. 342 (Ont.S.C.) and 30 O.R. 620 (Ont.Div.Ct.). Having regard to the parties' submissions and the jurisprudence, the Board ruled that Ungerman's testimony was admissible.

6. However, given his testimony, the other evidence led in the proceeding, and having regard to the usual indicia or factors in assessing credibility and weighing the evidence, we did not find Ungerman to be at all credible. Whether or not he intentionally attempted to mislead the Board, we are satisfied that his evidence ought to be afforded no weight, except in respect of those admissions or concessions not in his or the respondent's interest or matters otherwise not in dis­pute.

7. We did not find Wayne Maracle to be a credible witness, and where the evidence of other witnesses conflicted with Maracle's evidence, we have preferred and accepted the evidence of those other witnesses.

II - The Facts

8. Irving Ungerman has been the President and Chief Executive Officer, since 1945, of Royce Dupont, a poultry processing operation. Ungerman is also the owner or president of two companies involved in the same business, St. Clair Poultry Packers, which has existed for approxi­mately twenty-five years, and Prime Poultry, which is a new plant set up by Ungerman and which commenced operations as of February 1, 1988. As Chief Executive Officer of the respondent Royce Dupont, Ungerman made all the essential decisions and effectively ran the entire business. It is fair to say that Ungerman was the business. Up until the applicant attempted to organize the employees at Royce Dupont, Ungerman treated his employees as if they were family. If needed, he arranged for low rental accommodation for them in houses he owned, he had not laid off or dis­charged an employee since Royce Dupont began, and he kept several employees on the payroll in part to take care of them, though they might not have been entirely satisfactory employees.

9. St. Clair and Royce Dupont had existed for many years, but in late 1987 Ungerman was starting a new business, Prime Poultry, and during the critical months of February and March of 1988, he was spending most of his time at the site of the Prime Poultry plant, getting it started and in running order. During this same time a sister local of the applicant was seeking to become certi­fied at Prime. Although he was not physically present at the plant at Royce Dupont for much of this period, he continued to make all the essential decisions with respect to Royce Dupont and he played a pivotal role in the respondent's involvement with the union organizing campaign there.

10. The applicant had arranged for a union steward from a bargaining unit in an unrelated business to take a leave of absence from his job there, and go to work for Royce Dupont, and assist the organizing campaign at Royce Dupont. This organizer, Roberto Moretton, was hired as an employee by Royce Dupont sometime in January, 1988. His method of organizing consisted predominantly of discovering the names of fellow employees, and passing those names along to Don Dayman, a long time business representative of the applicant, and the individual with overall organizing responsibility for the Royce Dupont campaign. In turn Dayman would try and contact the employees, either together with Moretton or alone, and either at the employees' houses or other locations, usually a restaurant near the Royce Dupont plant.

11. Although Irving Ungerman testified that he was unaware of the union organizing cam­paign until he received the official Notice of Application for Certification from the Board (which notice was not mailed to Ungerman until March 31, 1988), there can be no doubt that Ungerman was fully aware of the campaign by some time in early March. His brother Karl, the vice-president of Royce Dupont and the most senior management individual on site at Royce Dupont when Irv­ing was at the Prime Poultry location, testified that he knew of the union campaign around the 1st of March, 1988. Karl denied advising his brother Irving of the campaign, and testified that he had never even mentioned the union organizing campaign to Irving until Irving received the official Notice of Application for Certification from this Board. This testimony is simply not credible, given the evidence and in light of the events that occurred.

12. On March 15th, 1988, Irving Ungerman met with his bookkeeper, Margaret Pietro, and advised her that he wished to change the wages and benefits for all his employees, at all three of his plants, St. Clair, Prime, and Royce Dupont. As Pietro testified, this type of wholesale changing of benefits and conditions of employment was entirely within Irving's discretion. All employees were generally given raises in January and July of each year, and as well a specific employee might receive an additional raise whenever Ungerman felt like giving it. Wholesale changes and benefits of the type Ungerman discussed with Pietro had never before been directed by Ungerman for other than January or July. Ungerman asked Pietro to prepare whatever was necessary for the pro­posed changes. Pietro testified that some of the costs involved in these changes (for example, the implementation of a drug plan) could not be known until mid-April at the earliest.

13 At Ungerman's request, Pietro typed up a notice on March 15th indicating the changes. These changes involved an increase in the minimum wage for all new employees, an increase in wages for all existing employees, the implementation of a drug plan, additional vacation benefits, payment for eight hours of holiday pay rather than the previously paid six hours, and reimburse­ment for OHIP costs after one month of service instead of the previously required three months. Ungerman also instructed Pietro that these changes were to be made across the board for all employees in all three plants. Pietro further testified that Ungerman did not tell her when any of these changes in benefits were to be implemented, although she testified that Ungerman told her to prepare the wage increases for the first week of April. It was not until approximately April 4th that Irving instructed her to actually implement the raises as of that week. Pietro did begin how­ever to cost out some of the increased benefits. No notice of any of these changes was given to any employee.

14. Though denying he exercised any managerial functions, Wayne Maracle described him­self as Karl Ungerman's "right hand man". He testified that his duties and responsibilities con­sisted of doing whatever Karl Ungerman requested of him, and this included pitching in on various jobs and repair and maintenance of the various vehicles or plant equipment. The other evidence supported this testimony. Although numerous employees perceived Maracle as exercising manage­rial functions, we were not satisfied on the evidence that Maracle was in fact exercising such duties and responsibilities and we do not accordingly find him to fall within the parameters of section 1(3)(b) of the Act.

15. Wayne Maracle and Irving Ungerman both took an active role in terms of questioning employees about their support of the union, or about their knowledge of the views of other employees in this respect. On or about March 16, 1988, Wayne Maracle asked George Maracle (no relation) whether George knew that the union was trying to get into Royce Dupont. George told Wayne that Irving was afraid of the union trying to get in at Prime Poultry. Later that day Wayne Maracle asked another employee, Mark Phillips, whether Phillips had joined the union, and Wayne told Phillips that he thought a union was no good for the company. Wayne Maracle also asked Phillips if he knew who else had joined the union, and specifically asked him whether George Maracle's son Phillip Maracle had joined the union. Phillips advised Wayne Maracle that he didn't know anyone else who had joined. That same day, Wayne Maracle directly questioned Phillip Maracle, in the basement at Royce Dupont, asking Phillip who was starting the union in the cooler (the part of the operation where Moretton worked) and to come and see Wayne if Phillip found out who was involved.

16. Throughout this period the union continued to organize and to obtain membership cards from employees. Moretton continued as an employee of Royce Dupont and continued to put employees in touch with Dayman for organizing purposes. On March 25th, 1988, the union filed an application for certification. It was clear that by this time most, if not all, of the employees knew of the union organizing campaign. As noted, Karl Ungerman had testified that he knew of the cam­paign by around the 1st of March. Many employees had been approached by Moretton and/or Dayman as part of the organizing campaign and Wayne Maracle had questioned a number of them about their views.

17. On March 28th, 1988, Irving Ungerman convened a meeting of all available employees of Royce Dupont at the Royce Dupont premises. It is common ground that approximately fifteen to twenty employees attended this meeting convened by Ungerman, including Moretton. It was quite unusual for Ungerman to address employees in such a forum.

18. The union alleged that many of the statements Ungerman made at this meeting consti­tuted unfair labour practices, and were part of the basis for its request that a certificate issue pursu­ant to section 8. In his testimony, Ungerman in both examination-in-chief and cross-examination denied making any of the statements attributed to him by the union. Unbeknownst to Ungerman, Moretton had a concealed tape recorder and made a tape-recording of the entire meeting. Over the objection of counsel for the respondent and counsel for Maracle, the Board ruled that the tape-recording could be played to Ungerman during his cross-examination by the union. As Ungerman was unable to continue his cross-examination after this direction was made, the tape-recording was never played for Ungerman. When the issue arose, during Moretton's evidence, the Board ruled that the tape-recording could be played to Moretton.

19. There are relatively few decisions of the Board dealing with the admissibility of a tape­recording made in circumstances as arose in this case, a surreptitiously made tape-recording of a "captive" audience meeting of employees convened by an employer, and sought to be played to a witness in the context of an unfair labour practice complaint. In Wilco-Canada Inc. [1983] OLRB Rep. June 989, the Board admitted a tape-recording, but there does not appear to have been any objection to the playing of the tape in that proceeding. However, in J. Sousa Contractor Limited [1988] OLRB Rep. Oct. 1027, the Board wrote in part as follows:

20. Finally, we note that our assessment of the reliability of Maria Silva's evidence was based in part upon a comparison between her oral evidence and the contents of a tape-recording made by George Oliveira of a conversation between them in the respondent's office on August 21, 1988. The Board unanimously dismissed (orally) the respondent's objection to the admission into evi­dence of that tape-recording.

21. In that regard, the Board considered that, except in limited circumstances which were not applicable, the Board does not have a discovery process in its proceedings. In the circumstances of this case, there was no obligation on the applicant to disclose any evidence, including the tape-recording, relevant to the proceedings, whether or not it intended to rely on it, prior to the hearing as the respondent complained it should have. In addition, applicant's counsel had put the statements he asserted were contained on the tape-recording to Maria Silva in an express and particularized way, although he did not first advise her of the existence of the tape-record­ing. In our view, the rule of fairness articulated in Brown v. Dunn (1893) 1893 CanLII 65 (FOREP), 6 R. 67 (H of L) (adopted in Peters v. Perras (1909) 42 5CR. 244 (5CC.) and United Cigars Stores Ltd., v. Butler (1931) 1931 CanLII 436 (ON SCAD), 66 O.L.R. 593 (Ont. CA.) had been substantially complied with. Even though, on a strict construction, the applicant had breached the rule in Brown v. Dunn by not disclosing the existence of the tape-recording earlier, the tape-recording was still admissible. In determin­ing the admissibility of evidence where the rule in Brown v. Dunn has been breached, one must consider all the circumstances, including the extent to which the rule has been breached, the reasons for the violation of the rule, the significance of the fact(s) in issue sought to be contra­dicted, and whether the rule has been violated by the party carrying the burden of proof (see Machado v. Bertet et at (1986) [57 OR.] (2d) 207 (OnE. H.C.); Murray v. Woodstock General Hospital Trust et al. (1988) 1988 CanLII 4561 (ON HCJ), 64 O.R. (2d) 458]).

22. In this case, the rule in Brown v. Dunn had been substantially adhered to, the facts in issue to which the tape-recording relates are central and nor merely collateral, the respondent had, pursuant to section 89(5) of the Act, the burden of proof with respect to those facts, and, though it was no doubt intentional, the non-disclosure by the applicant was not inconsistent with current practice before the Board. Further, no other rule of fairness, natural justice, or evidence made this tape-recording inadmissible. A tape-recording, if proved, can be evidence (probably the best evidence) like any photograph, video tape, or other "document" within the meaning of the word in law (see for example Rule 30 of the Ontario Rules of Procedure). The Board also has the discretion, under section 103 of the Act, to determine its own procedure and to accept such evidence as it considers proper. Further, the respondent had the right to re-examine Maria Silva or to call evidence to explain the contents of the tape-recording, and the respondent's counsel could (and did) make adverse comment on the failure of the applicant to disclose the existence of the tape-recording earlier.

23. Mrs. Silva unequivocally denied making most of the statements attributed to her when they were put to her by the applicant's counsel. However, she identified the tape-recording and agreed that it was an accurate representation of the conversation she had with George Oliveira on August 21, 1988. There is no evidence to suggest that the tape-recording is anything less than accurate. This included the statements which she had previously denied.

24. Many of the comments in paragraph 24 of the passage just quoted apply to the instant case. The tape-recording represents evidence of what is claimed by a party to have occurred at a critical "captive" meeting. The statements alleged to have been made by Ungerman at this meeting are themselves alleged to have constituted unfair labour practices. The tape-recording is simply one type and form of evidence of what is alleged to have occurred at that meeting. When Unger­man was being cross-examined, he was first given the opportunity to admit or deny that he made the alleged statements. Only then did counsel disclose the existence of the tape and seek to play it to Ungerman. Had Ungerman admitted the contents of the tape-recording after listening to it, then the Board could have relied upon it, but failing such admission, the Board would have had to be satisfied, through other evidence, that the tape-recording accurately reflected the events it por­trayed. Playing the tape-recording to Ungerman became impossible because of his inability to con­tinue with his cross-examination. But Moretton had made the tape-recording and testified about the circumstances of making that tape and its contents. Just as in appropriate circumstances a wit­ness can place in evidence notes made contemporaneously with the relevant events, similarly a tape-recording made by a witness is in these circumstances admissible. There was no legal impedi­ment to admitting the tape nor any labour relations purposes that ought to lead us to hold inadmis­sible such a tape-recording. The tape-recording simply enabled the Board to have the best evi­dence of what occurred at that meeting, and enabled the Board to more accurately determine the exact wording of the statements made at that meeting. In this respect, we note that subsequent to the playing of the tape- recording in the hearing, no witness was called by the respondent or by Wayne Maracle to deny that Ungerman made any of the statements on the tape or to suggest that the tape- recording was inaccurate in any respect.

25. Even if the tape-recording had not existed and been played in the hearing, we reject Ungerman's version of what occurred at that meeting. Both in examination-in-chief and in cross-examination he contradicted himself and obviously was giving answers that he felt were in his or the respondent's best interests. He was also contradicted in a number of respects by witnesses called by the applicant and by other witnesses called by the respondent. For example, Ungerman vigorously denied having mentioned the union in his March 28th comments as in his view he had been around long enough to know better. In contrast, Jerry LeBlanc, a twenty-three year employee called as a witness by the respondent, testified in examination-in-chief that Ungerman had discussed the union, and in cross-examination he admitted that Ungerman had indicated that if the union came in, people would be sent home if there was no work, whereas at present Ungerman would assure that everyone got forty to forty-two hours of work a week. Similarly, other witnesses gave viva voce evidence of various statements alleged to have been made by Ungerman at the meeting. Quite apart from the existence of the tape-recording therefore, the Board was satisfied that Ungerman had made many of the statements which we have subsequently concluded consti­tuted unfair labour practices, including his threats to the jobs of his employees.

26. That meeting of March 28th lasted approximately thirty minutes, by the end of which Irving Ungerman had clearly indicated that employee jobs were at risk if the union came into Royce Dupont. He had also indicated that wage increases might not occur because of the union, and he had blamed the union for any future lack of work. He had commented on why a vote or legal proceedings to try to get the union in would not be successful. We quote, without correction, his words:

Today I just finished with Prime. You know that I've been away for a long time now eight weeks trying to get that new place going. Once I got that new place, people have come in and we didn't know who ... I want to tell you now if you want union, you better speak up. Everybody has been voting, I want to know what the score is because we'll take today with Prime. We had our vote there today. It went twenty-three No, three Yes. Okay. That's what happened up there. If we are going to do the same thing here again, I got to know because we got to stop killing here ["killing" refers to the killing of the chickens]. So we don't need so many people. If you trust me, everybody trust me like it has, we got ten more years here, twenty years... If anybody is coming in here and talking and starting something, bad apple creates for everybody.... It started up at Prime, it started down here. I am not going to stand for it... Everybody is getting raises but if they do anything before and they want to negotiate, that's fine. We'll sit and wait, if that's what you want. If you don't want it, now is the time to say you don't want it. Don't wait to make legal and fight for six months and, and never get it because just like today, we finished at Prime today eleven o'clock finished. I could send everybody home. I don't send anybody home. I make them work forty hours a week, forty-two hours a week. I don't say go home because noth­ing to do. Union say okay pay $2.00 an hour more an hour but get the hell home at twelve o'clock... I want to have the census opinion here what you people want Now, if you all want to go through, I got to know it, I am not going to wait because I have other methods to do.... If there is a union, this place will not operate. Fifty per cent of it. It will just become a dis­tributor and that's it.... There has been everybody, other people have been approached here. I know it, it's come to me and I know where it is. Those of you, now what we did up there, we took vote today. We had to get a vote to find out yes or no what route we are going to go. Do we expand that one and try to do something with it, do we close this one or let half the people go back down to twenty people here or do I keep forty people here. I mean I got to know it now.... If the guys want to get together and they want to find out what they want to do, you got to tell me yes you want to try to unionize. That's fine. Go ahead and try it and we'll play around with it for six months and we'll see who wins. . . .You see once they start that, they stopped Prime. You know how they stopped Prime, we didn't hire no more people, we didn't fire no people, we didn't kill any more, we just stopped. Same happens with St. Clair. I expect that no fryers should be killed here.... You want to fool around, we fool around for six months, the lawyers come, they fight back and forth. By the time it's finished, we are down to twenty peo­ple. .. So any of you people that are not happy and you think you can organize there is still a vote to be taken I am telling you now that I am the boss ... Now, the minimum wage here is $6.50 maybe it should be $7.50 maybe that's what I am going to do; maybe I am going to pay $8.50 but I don't want nobody starting this bullshit because we had a good relationship... .Fine, join the bloody union. Nothing wrong with it. Go some place else. Don't come in here. . . . In­stead of waiting which we normally would do June, because we give raises twice a year, I am now going to be doing something up at Prime and St. Clair and I intend on doing it here. And that's why I am bringing it to you right now because if the census here are that they want it, then I'll let this sit till the time comes. If the vote here is no, then I do something right away now. If the vote is yes, the census that they want it, then I can't do nothing.... Fighting takes six months or a year. During that six months or year half the people will be out...

23. Karl Ungerman denied in his testimony that he participated in this meeting, but the evi­dence disclosed that he did. Karl stopped by the meeting at one point and told employees "if the guys want it that's fine. Half the guys will do half the work. Lay off half the guys."

24. After this meeting was over, Irving Ungerman proceeded to the second floor of Royce Dupont where he addressed other employees. We have no evidence of what occurred at this sec­ond meeting.

25. These meetings took place at a time that Irving Ungerman testified he was completely unaware of the union organizing campaign. Three days later, on March 31st, at a time when Ungerman would still have been unaware of the union campaign if his evidence is to be believed, Ungerman again convened a meeting of employees, this time accompanied by legal counsel. At that meeting Ungerman read verbatim to employees a text drafted for him by counsel. In this speech Ungerman stated that he was aware that some people were working for the union and that some employees had already signed up into the union. He indicated that under the laws of Ontario, employees had the right to join a union or not as they wished. Ungerman hoped employ­ees would feel that they didn't need a union at Royce Dupont. Ungerman continued reading the statement and said that "at most unionized companies when there is not enough work to keep the people busy, they get sent home and sometimes work only thirty or thirty-two hours a week. As you know, we have always tried to provide a full forty-two hours of work per week... Some employees have come to me and told me that the union is coming to their house to try to get them to sign a union card, and they don't like it... You have every right to refuse to sign a card, if that is your wish. No one can lose their job for refusing to sign." This speech did not acknowledge that the captive audience statements of March 28th had been made, nor did it indicate in any fashion that Irving Ungerman was withdrawing any of the remarks he had then made. No discussion occurred at this March 31st meeting. It consisted only of Ungerman reading out this statement in the presence of his lawyer. The union did not allege that these comments breached the Act.

26. In the week after these meetings, Phillip Maracle was asked, as he was occasionally, to go and tell Ungerman to move his car because as it was blocking some of the delivery trucks. Phil-lip went to the office and passed on the message asking him to move his car, and then he and Ungerman and Wayne Maracle went downstairs. With only the three of them present, Irving Ungerman asked Phillip if he would speak to him later in his office, and Phillip responded no. Ungerman then asked if Phillip would tell him the truth if he asked him to talk to him later and Phillip again indicated no. Ungerman then asked Phillip some questions about the union. Phillip's working conditions were discussed. During the work week Phillip and his father George Maracle stay in accommodation owned by Irving Ungerman, and at quite reasonable rent, and because of their need to commute to their out of town home every weekend, Phillip had always been allowed to go home Fridays at twelve noon, before the end of the normal shift that day (although he put in extra hours during the week to compensate). Ungerman told Phillip during this conversation that he would raise his rent substantially, and Wayne Maracle told Phillip that he "would make it so Phillip was unable to go home Fridays at noon". Ungerman then told Phillip that all this could be stopped and Phillip ought to think about it. He also told Phillip that he'd have to lay off twenty to thirty people and he'd bring the product in from Prime and all the Royce Dupont employees would do would be to write up the boxes of product.

27. By this time, the first week of April, Royce Dupont would have likely received from the Board official notification of the Application for Certification. The Return of Posting card, returned to the Board by the respondent indicating when the respondent had posted the appropri­ate notices, is dated April 6, 1988. At least by this date the official notification must have been received by Royce Dupont.

28. Around the beginning of April, no later than April 4th, Irving Ungerman instructed Pietro, his bookkeeper, to implement the changes in wages and benefits that he had first discussed with her on or about March 15th. The uniform wage increases were in fact implemented in the first week of April. There had at that point still been no notice to employees of these changes in bene­fits, and the first notice they would receive was when their pay cheques of April 12th reflected a higher amount. The Notice of the changes that Pietro had drawn up on March 15 was not posted until approximately April 14th, after some of the changes had already been implemented.

29. After the March 28th meeting at which Ungerman had made various threats, the union continued to try to sign up employees. Between four and seven employees were approached after March 28th, but not one of them would sign a membership card. Dayman testified that prior to the March 28th meeting, no employee who had been approached to sign had given an outright refusal, but that no one approached for the first time subsequent to March 28th agreed to sign. Only three additional cards were obtained after the application date, and these employees had previously been approached by the union and discussed signing. One employee who had been approached prior to March 28th who had indicated he would sign, declined to do so after March 28th. Moret­ton testified that after the March 28th captive meeting employees would not even open their door when he and Dayman visited. The weekend before the terminal date, April 13th, the union essen­tially gave up trying to obtain further memberships.

30. Shawn Persaud started working at St. Clair in September, 1987. After three or four weeks there, he was fired because he couldn't get along with the plant manager, Al Maracle, the son of Wayne Maracle. While at St. Clair, Persaud had two accidents driving the company vehicle, and he had also experienced a cash shortage in his collections from customers. After he was fired, Persaud was hired as a driver by Royce Dupont.

31. Persaud was not a very satisfactory employee for Royce Dupont either. He continued to have driving accidents with alarming regularity, his attendance was intermittent and somewhat random, and he had further cash shortages. As a driver, Persaud's duties and responsibilities included delivering the produce to various customers and receiving from them payments for the delivery. It was the moneys from these payments which were on occasion short and which, at least once, Per-saud had to make good from his own funds. Although Persaud testified that during April some time Irving Ungerman questioned him in his office about whether Persaud had joined the union, we did not find Persaud to be a particularly credible witness and we conclude this questioning did not occur.

32. On May 30th, 1988, Karl Ungerman discovered that Persaud's licence had been sus­pended because of his driving accidents and otherwise poor driving record. Karl immediately con­fronted Persaud and indicated that he could no longer drive for the company. As there was no non-driving job available at Royce Dupont at the time, Karl suggested that Persaud approach his brother Irving and ask him about a job at Prime Poultry. Karl testified that the sole reason for Per-saud's discharge from Royce Dupont was the fact that he could no longer drive because of his licence suspension and Margaret Pietro confirmed this in her testimony. As recommended by Karl, later that day Persaud spoke to Irving Ungerman about the possibility of working at Prime. Wayne Maracle was present during this conversation. Ungerman asked Persaud whether he had joined the union, and asked Wayne whether Wayne knew if Persaud had joined. Wayne told Ungerman that he knew who had joined and who had not. Irving then told Persaud he could begin to work in the cooler up at Prime.

33. The next day, May 31, 1988, Persaud began working up at Prime in the cooler, a job which involved no driving nor any handling of cash. He continued to be listed on the payroll of Royce Dupont and to be paid by the respondent. In his second week at Prime, on the morning of June 6th, Persaud phoned the office there and spoke to Irving Ungerman's nephew. Persaud told him he would not be able to come in that day as he had to take his daughter to the hospital, for her regular speech therapy classes. Persaud was advised by Ungerman's nephew to speak to Ungerman about it the following day. Later that same day, the union filed with the Board one of the instant unfair labour practice complaints (Board File 0609-88-U). The union alleged in the complaint that Royce Dupont had breached the Act when Irving Ungerman had questioned Persaud about whether or not he had joined the union and had indicated that if Persaud kept his mouth shut about the union he could continue to drive. When Persaud returned to work June 7th, he spoke to Ungerman about his absence the previous day and Ungerman told him not to let it happen again.

34. On Friday, June 10, Persaud was called into Ungerman's office at Prime and discharged by Ungerman. Ungerman told Persaud that he was being discharged because of his poor driving record and inability to drive. Though he said nothing to Persaud at the time about his attendance record, in his testimony Ungerman expanded upon the reasons for discharge and stated that Per-saud's absenteeism record was an additional justification for the discharge. Ungerman denied any knowledge, at the time of discharge, of the unfair labour practice complaint filed on behalf of Per-saud, and he similarly denied that Persaud's union involvement formed any reason for the dis­charge.

35. The Board is satisfied that Persaud's discharge was the result of Ungerman discovering that an unfair labour practice complaint had been filed on Persaud's behalf by the union. We say this for several reasons. Notwithstanding Ungerman's denial under oath, we are satisfied that he had received notice of the unfair labour practice complaint at the time of the discharge. Ron Terry, a long time employee, testified that he and Wayne Maracle were driving up to Prime Poultry on June 10th, and that Wayne Maracle told Terry during the drive that Ungerman had received some­thing from the union about Persaud that morning and Ungerman was pretty upset as a result. We found Terry to be a credible witness and we accept his evidence. Secondly, there is no other rational explanation for the discharge occurring when it did. There is no question that Persaud contin­ued throughout his employment history with Ungerman's companies to be far less than a good employee. And there is no question that many other employers would have discharged Persaud long before. Nevertheless, the reasons given by Ungerman for the discharge are not credible. Per-saud's driving record was not an issue at Prime, where he was not required to drive, and the driv­ing record had in any event been fully known to Ungerman at the time Persaud had been dis­charged from Royce Dupont (we use "discharged" here in a colloquial sense, as Persaud continued to be paid by Royce Dupont while working at Prime.) Similarly, any cash shortages that Persaud might have been responsible for in the past had occurred prior to his beginning work at Prime, were known to and accepted by Ungerman, and he was not required to handle cash at Prime. Inso­far as his absenteeism is concerned, Persaud had always had a poor attendance record, yet Unger­man had transferred him to Prime. In the two weeks Persaud had worked at Prime, he had only missed one day (Monday of the second week), he had phoned in to explain he would be absent and no resulting action had been taken by Ungerman. Ungerman reacted, by firing Persaud, only when he was aware that the union was assisting Persaud. Thirdly, Ungerman's own testimony supports the conclusion that Persaud's union support and the filing of a complaint effected how Ungerman viewed and treated him. For example, when Ungerman was being questioned about the events sur­rounding the Persaud discharge, he was asked whether he had questioned Persaud about joining the union before offering him a job at Prime. In response, Ungerman testified "no ... I never thought that after all our assistance to him that I would suspect any problem with an individual like that." And to take another example, Persaud testified that after being discharged he told Unger­man that he would be hearing from the union, and that Ungerman then replied he knew and that was why Persaud was being discharged. When Ungerman was asked in examination-in-chief, whether he had said this to Persaud, Ungerman responded "no way, I didn't know he was a part of it or I would not have given him three chances." Though we do not conclude that Ungerman made anti-union comments when he fired Persaud, we do conclude that the discharge was motivated in large part by Persaud's support for the union and by the fact that an unfair labour practice com­plaint had been filed on his behalf.

36. Ron Terry dropped Wayne Maracle off at the Prime plant, after being told by Wayne that Ungerman had learned that the union had filed something for Persaud. On his return drive to Royce Dupont, he encountered Persaud on the street. Persaud had just been discharged and was walking away from the plant. Persaud told Terry that he had been discharged, and told Terry it was because the union had notified Ungerman. Terry told Persaud that he had already heard this from Wayne Maracle. When Terry got back to the Royce Dupont plant he spoke to several other employees about these events and told them about Persaud being fired because the union had noti­fied Ungerman.

37. The evidence did not deal with matters occurring subsequent to these events.

III - The Decision

38. We turn first to a consideration of the sufficiency and reliability of the membership evi­dence filed on behalf of the applicant and the sufficiency and propriety of the Form 9 Declaration. Don Dayman was the Form 9 declarant and the collector for all but two of the membership cards or applications. Moretton collected those two cards. Two of the membership cards submitted by the union were completely undated and a third card gave only the month and day of the month, without also noting the year. A fourth membership application or card contained no name or num­ber of the local in the appropriate space. None of these omissions or circumstances were set out and noted in the Form 9 Declaration.

39. Paragraph 3 of Form 9 reads as follows:

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

40. With respect to the card on which the local's name or number was missing, the applicant did not seek to rely on this card in final submissions, and acknowledged that according to Board jurisprudence such card must be rejected. The Board finds that this card must be rejected: see, for example, P. & M. Electric (1982) Ltd. [1988] OLRB Rep. Aug. 843; PRC Chemical Corporation of Canada Limited [1980] OLRB Rep. May 749; Maple Leaf Mills Limited [1984] OLRB Rep. Oct. 1474.

41. The date on which a card is collected is not a substantive aspect of membership and viva voce evidence can be entertained by the Board with respect to when the cards were actually signed. With respect to the cards missing dates, the viva voce evidence of Dayman and Moretton on this point satisfied the Board that all the cards submitted on behalf of the applicant were collected dur­ing the months of February, March, or April of 1988. These three cards will accordingly be accepted by the Board as reliable membership applications.

42. Insofar as the Form 9 Declaration is concerned, Dayman testified about the circum­stances of the collection of the cards, the inquiries he made of Moretton and the circumstances of his signing and filing the Form 9 Declaration, and the Board found his evidence credible and reli­able in this respect. Having regard to that evidence, and having regard to the purpose for which a Form 9 is required (see for example, P. & M. Electric (1982) Ltd. (supra), and having regard to the text of paragraph 3 of Form 9, we were satisfied that the Form 9 Declaration was not improper in any respect. In light of these conclusions the union had filed valid memberships on behalf of employees representing, at a minimum, slightly more than thirty-six per cent of the bargaining unit at the relevant time. In addition, given the unresolved challenges with respect to the employees in the bargaining unit, the level of support could well be higher.

43. Turning next to the request pursuant to section 8, that section of the Act reads as fol­lows:

44. 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.

45. Sections 64, 66, 70, 79, and 80, relied upon by the union, read as follows:

46. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

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

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

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

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

70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

79.-(1) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been ter­minated,

whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privi­lege or duty of the employer or the employees until,

(a) the trade union has given notice under section 14, in which case subsection (1) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

(3) Where notice has been given under section 53 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was com­plied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 44 applies with necessary modifications thereto.

80.-(l) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condi­tion of employment; or

(d) intimidate or coerce or impose pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has partic­ipated or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or coun­cil of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condi­tion of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has partic­ipated or is about to participate in a proceeding under this Act.

45. In order for a certificate to be issued pursuant to section 8, the Board must be satisfied

that three conditions have been met:

(1) The respondent must have contravened the Act.

(2) The contravention must have resulted in a situation such that the true wishes of the employees of the employer are not likely to be ascertained.

(3) The applicant must have membership support adequate for purposes of collective bargaining.

46. There is no question that numerous activities engaged in by the respondent contravened the Act. First, examining the activities of Wayne Maracle, although we did not conclude that he exercised managerial functions himself, he must be taken to have been acting on behalf of the Ungermans and therefore the respondent. Wayne Maracle was the "right hand man" for Karl Ungerman. Wayne's son was the senior manager at St. Clair Poultry, and employees of the respon­dent knew this. On March 16, 1988, while the union organizing campaign was in full swing, Wayne Maracle questioned Phillip Maracle about whether Phillip knew who was starting the union and asked that Phillip come and see Wayne if Phillip did find out. That same day Wayne Maracle also questioned Mark Phillips, asking him whether he had joined the union and asking him as well whether he knew if Phillip Maracle had joined. Although this conversation took place without any member of management present, Wayne's subsequent actions in concert with Irving Ungerman would have made manifest the purpose of the questioning, and on whose behalf Wayne was acting.

Wayne and Irving Ungerman together questioned Phillip Maracle about the union around the first week of April, and both were again present when Ungerman threatened to raise Phillip Maracle's rent, and to lay off 20 to 30 people. During the same conversation, Wayne himself threatened Phil-lip because of his supposed union support. Shortly after Ungerman had received something from the union with respect to Persaud, (the June 6th complaint), Wayne knew Ungerman had received it. Employees were aware of most, if not all, of these events and of the nexus between Wayne Mar­acle and the Ungerman brothers. In all these circumstances, it is clear that Wayne was acting on behalf of and with the support of the employer. The threats and the questioning of employees about their personal views of the union or their knowledge of the views of other employees breached sections 64, 66 and 70 of the Act.

47. Secondly, there are Irving Ungerman's other activities. Shortly after the individual questioning of employees about their union support and their knowledge of other employees' sup­port for the union, Ungerman convened the March 28th captive meeting of employees. The threats he made during this meeting are set out more fully above. It is sufficient for our purposes here to note that Ungerman repeatedly made clear to employees that their individual job security and per­haps the entire operation at Royce Dupont could well depend upon the success or failure of the union organizing campaign. In graphic and certain terms Ungerman told employees that because of the union campaign work could be or would be transferred out of Royce Dupont, or that Royce Dupont might close down entirely. He told employees that increases in wages and other beneficial changes in benefits and conditions of work were linked to the union's organizing campaign. If employees were thinking of a vote, Ungerman pointed out that the vote had been held at Prime that same day and the union had lost badly there and if a vote resulted at Royce Dupont, then the plant would stop doing much of its work. If the problem with the union was not resolved quickly, Ungerman told them that work opportunities might disappear. He also told employees that legal procedures and legal hearings would not help, that this matter could be dragged out until employ­ees suffered on that basis. The message was clear: Irving Ungerman was the boss, he controlled their economic lives, he would use this power to ensure they lost their jobs if the union came in and to ensure they benefited if it did not, and he had all the angles covered. The message was sim­ple and effective. It was also illegal. The statements he made constitute breaches of sections 64, 66, and 70 of the Act.

48. Within a week, Ungerman implemented the raises and other changes in benefits and conditions that he had discussed in his March 28th speech. It is unnecessary for the Board to decide whether this extraordinary, uniform improvement in wages and benefits constituted a violation of section 79 of the Act, as it clearly constituted a breach of sections 64, 66, and 70 of the Act. Unger­man, in effect, told employees at the captive meeting that the implementation of all these benefits was associated with opposition to the union. He then followed up these statements with a concrete example of how he was "the boss", and could and would affect the employment lives of his employees.

49. Finally, Persaud's discharge from work at the Prime plant was motivated in large part by Ungerman's newfound awareness that Persaud was, despite Ungerman's prior belief, a union supporter. Discharging Persaud for that reason constituted a breach of sections 64, 66, and 70 of the Act. It is therefore unnecessary to consider whether section 80 was breached.

50. The pattern that emerged is one of Irving Ungerman engaging in a calculated and con­tinuing campaign to deprive employees of their right to freely choose whether they wished to be represented by the union, and to deprive the union of its right to attempt to organize his employ­ees. This campaign was characterized by individual questioning of employees and threats to employees that clearly put their job security at risk, together with concrete examples of Ungerman's ability to effect their employment lives, demonstrated by the uniform improvement in wages and benefits and the discharge of Persaud, the first person Ungerman had discharged in approxi­mately fifty years.

51. We turn next to consider whether these contraventions of the Act were such that the true wishes of the employees would not be ascertainable. When our oral decision was delivered at the hearing, Board Member Pirrie dissented solely with respect to whether this pre-condition of section 8 had been met; however the decision is now unanimous in this respect as well.

52. The respondent argued that no conduct occurring after the terminal date ought to be considered in determining whether the true wishes of employees are ascertainable.

53. In the instant case, the only contravention of the Act occurring after the terminal date was Persaud's discharge. Regardless of this contravention, we have no doubt that the remaining contraventions of the Act were sufficient to ensure that the true wishes of employees would even now not likely be ascertainable. The employees' job security was fundamentally and repeatedly threatened during the March 28th captive audience. Employees were told that any wage increases would be tied to opposition to the union campaign, and this was shortly followed with a previously unannounced uniform wage increase and improvement in benefits. There was also a clear implica­tion in Ungerman's statements that a vote would be ineffective, as would employees or the union seeking to protect their rights through recourse to legal proceedings.

54. The respondent argued that whatever the improprieties or contraventions of the Act arising out of Ungerman's March 28th statements, they were effectively cured by Ungerman's fol­low-up captive audience of March 31. We do not agree. A meeting such as occurred on March 31 would not likely reassure employees their rights would be protected. Ungerman read from a pre­pared text with his counsel beside him. The text did not acknowledge that Ungerman had said any­thing improper on March 28th, it did not acknowledge that anything he had said no longer applied, nor would the context or format have indicated to employees that Ungerman and Royce Dupont were going to respect their rights and the rights of the union. We might usefully compare this cura­tive attempt with that set out in Elbertsen Industries Limited [1984] OLRB Rep. Nov. 1564. In that section 8 proceeding, after discharging the union organizer and threatening plant closure, amongst other improprieties, the employer caused a letter to be distributed to employees which specifically rescinded the conduct which ultimately was found to have constituted unfair labour practices. The majority of the Board nevertheless concluded that in the context of all that had occurred, the letter was not sufficient such as to negate the impact of the contraventions of the Act. In the instant case, the speech of March 31st would not have had any meaningful palliative effect on employees. Not only did Ungerman acknowledge no wrongdoing on March 28th, the statements of March 31 were followed shortly by the more concrete action of an improvement in benefits that contravened the Act, further individual questioning and threats against employees for union support, and a dis­charge of an employee for his union activity.

55. In Rock Haven Motels (Peterborough) Limited, [1979] OLRB Rep. June 559, the Board wrote:

56. An applicant seeking certification pursuant to section 7a [now 8] must do more than show one or more contraventions of the Act. It must be shown that the contravention is of such a nature, or so pervasive in effect, that the true wishes of the employees cannot now be ascer­tained. An isolated illegal act may not unduly impede the ability of employees to express their wishes in a Board supervised representation vote - particularly where the bargaining unit is large so that employees can be assured that their anonymity will be preserved and the employer will not, as a practical matter, be able to penalize the union supporters. In Winson Construction Ltd., [1976] OLRB Rep. (Nov.) 714, the Board offered this example of the kind of intimidatory, or coercive, activity which would, by its very nature, be likely to obscure the true wishes of employees:

"No general rules can be set down as to what circumstances might justify a conclusion that employee desires are not likely to be ascertained in a representation vote. Rather, each case must be decided on its own particular facts. In some instances the actions of an employer may be such that a determination that a vote would not be reflective of employee desires may be very easily arrived at. For example, a warning to employees that the certification of a trade union would result in lay-offs and shorter working hours would, lacking any other considerations, tend to have such an intimidating effect that employees might reasonably be expected to refrain from vot­ing for the union no matter what their true feelings about being represented by it In such a situation to vote in favour of being represented by the trade union might well appear to employees to be tantamount to voting themselves either out of a job or at best, a drop in pay."

24. In assessing an employer's conduct the Board must bear in mind that, while employer and employee are equals before the law, they are not usually equals in the market place. The employer will typically have a considerable degree of influence over his employees' economic destiny, especially if the number of employees is relatively small. He must for this reason be cir­cumspect in his dealings with employees, and refrain from making statements which could rea­sonably be construed as a threat to their job security. As the Board observed in Bell & Howell Ltd., [1968] OLRB Rep. (Oct.) 695 at p.706:

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

25. There can be no doubt that in the present case there has been a contravention of The Labour Relations Act; indeed, counsel did not contend that there had not been. We are satis­fied that there has been a serious and substantial interference with the right of the applicant to organize, and the right of employees to select or reject a bargaining agent free from improper employer pressure. The pattern of threats, interrogation and direct approaches to employees in an effort to persuade them to repudiate their union membership constitute a breach of sections 56, 58(c) and 61 of the Act, [now sections 64, 66 and 701 all of which prohibit the intentional use of intimidation or coercion in order to compel an employee to refrain from becoming or cease to be a union member. Moreover, we are also satisfied that the illegal interference engaged in by the respondent is inherently likely to influence an employee's ability to vote in accordance with his own free wishes. The employer's actions have caused employees to believe that by support­ing, or continuing to support, the union they could be placing their jobs in jeopardy. Employer antipathy to a trade union is neither unusual nor, in itself, illegal; but the present case goes well beyond simple opposition to the union and includes threats directed at union supporters and a threat to close the business rather than deal with a union. The employees have been warned that a vote for the trade union may well be a vote for unemployment. In the circumstances, we are satisfied that the true wishes of the employees are not now likely to be ascertained.

And see also Straton Knitting Mills Limited [1979] OLRB Rep. Aug. 801; Banvil Limited, [1979] OLRB Rep. Oct. 919; G. T. Couriers (4166656 Ontario Ltd.), [1979] OLRB Rep. Dec. 1167; Sunnylea Foods Limited, [1980] OLRB Rep. Apr. 530; Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811; Windsor Airline Limousine Services Limited, [1981] OLRB Rep. Mar. 398; Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848; Trulite Industries Limited, [1983] OLRB Rep. May 821; Wilco-Canada Inc., [1983] OLRB Rep. June 989; Elbertsen Industries Limited [1984] OLRB Rep. Nov. 1564; Benwind Industries, [1985] OLRB Rep. Feb. 149; Cambridge Canadian Foods Inc., [1987] OLRB Rep. Mar. 319; J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027. For similar reasons, the Board is satisfied that the true wishes of employees are not likely even now to be ascertainable.

56. The third and final condition precedent for the exercise of our discretion pursuant to section 8 is whether the union has membership support adequate for the purposes of collective bar­gaining. As the Board stated in Skyline Hotels Limited (supra):

57. The applicant has requested, as the only remedy now capable of remedying the wrong done to it by the respondent, a certification under section 7a [now 81 of the Act. That section reads:

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.

There is no doubt that the respondent has contravened the Act, and if ever there was a case where the true wishes of the employees are not likely to be ascertained by the conventional means now available, this appears to be it. But does the applicant have "membership support adequate for the purposes of collective bargaining"? This condition was added in the 1975 amendments of The Labour Relations Act (SO. 1975, c.76). To gain some insight into its mean­ing, reference must be made to its predecessor section, which read:

7.-(4) If the Board is satisfied that more than 50 per cent of the employees in the bar­gaining unit are members of the trade union and that the true wishes of the employees are not likely to be disclosed by a representation vote, the Board may certify the trade union as bargaining agent without taking a representation vote.

In making this comparison, it becomes clear that the phrase "membership support adequate for collective bargaining" is not simply a reference to majority support. Were this is the case, it would have made no sense to eliminate the explicit requirement for majority support already contained in section 7(4). Even more striking, however, is the removal of the words "by a repre­sentation vote" from section 7(4). By doing so, the Legislature appears to have clearly contem­plated the application of the new section 7a, in appropriate cases, to situations where the appli­cant's membership support fell even below the minimum level required in the statute for entitlement to a representation vote. (See also Lorain Products, [1977] OLRB Rep. Nov. 734). The section could now apply, in other words, to situations where the employer's response is so massive and so early as to prevent a trade union from ever attaining the level of support needed for a vote. This, as the Board has found, is precisely the case here. Had it not been for the unlawful interference of the respondent, the applicant might well have garnered the 35 per cent support it initially sought for the taking of a pre-hearing vote. As it is, the applicant can demon­strate the membership support of only 30% of the unit. Is 30% sufficient in this case?

62. The competing policy considerations which underlie a section such as section 7a are aptly set out by the British Columbia Labour Board in commenting on similar changes made to their own statute, in International Brotherhood of Boilermakers, Lodge 359 and Forano Limited [1974] 1 Can LRBR 13, 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. -

As the above passage underscores, the true wishes of the employees are always the Board's pri­mary concern, and the remedy is not meant to be punitive. As well, where the support is not there, the Board is scarcely placing the trade union in an enviable position by sending it off with a certificate. On the other hand, the Board must not hesitate to consider the provisions of sec­tion 7a when an employer's own conduct seriously impairs the Board's ability to ascertain with more certainty what the wishes of the employees are. As the B.C. Board went on to say in Forano Limited:

….the Board must not be afraid to use it 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...

63. These policy considerations are clearly reflected in our own section 7a. The "brightline" test fixing a minimum level of support needed for certification is gone, and an employer who inter­venes unlawfully takes his chances. On the other hand the Legislature has added the eminently practical caveat that the Board not certify unless the applicant trade union, in the opinion of the Board, has membership support adequate for the purposes of collective bargaining. What this will mean in terms of percentages must vary with the facts of each case, and no single catalogue of criteria can be laid down (see Viceroy Construction Ltd. [1977] OLRB Rep. Sept. 562). It clearly will involve the Board in some measure of speculation. The duty of the Board to make this assessment only arises where the employer has intentionally destroyed the more reliable and conventional means of ascertaining employee wishes - and such speculation must be undertaken with care.

64. When the application for certification was filed on March 25th, the organizing campaign was still ongoing, though not at its earlier pace. Section 8 is not to be relied on to grant a certificate where the organizing drive has stalled of its own accord. That is not the situation here, given the numerous and egregious unfair labour practices we have found and the stage of the organizing campaign at which they occurred. The issue is whether the union has membership support ade­quate for collective bargaining. We are satisfied that a core of employees favouring representation by the union is sufficiently large such that collective bargaining is viable. Accordingly, we are satis­fied that the third condition of section 8 has been met, and it is appropriate to issue a certificate pursuant thereto.

IV - Relief

58. The Board has found that the respondent violated sections 64, 66, and 70 of the Act in the March 16th questioning of Phillip Maracle and Mark Phillips, in the statements made by Irving Ungerman at the March 28th captive audience, in the changes in terms and conditions imple­mented by the respondent on or about April 4th, 1988, in the questioning of Phillip Maracle by Irv­ing Ungerman and Wayne Maracle in the first week of April, and the threats directed at Phillip Maracle during that conversation, and in the discharge of Shawn Persaud from Prime on or about June 10th, 1988.

59. In a brief decision orally delivered March 22, 1989, and reduced to writing on March 28, 1989, the Board directed that a certificate pursuant to section 8 would issue forthwith. That certifi­cate has therefore already issued.

60. The Board will remain seized with respect to all aspects of remedial relief with respect

to Persaud, to afford the parties an opportunity to attempt to resolve this matter amongst themselves. There shall be no order at this time with respect to either compensation or reinstatement for Persaud.

61. In Wilco-Canada Inc. (supra), the Board stated:

62. As reflected in a number of decisions, the Board has recognized that the issuance of a certifi­cate under section 8 will often not by itself suffice to place the applicant in the position that it would have been in if the respondent had not contravened the Act. This is particularly true where, as in the present case, the respondent has engaged in flagrant violations of the Act by threatening employees' job security generally and discharging several union organizers. In such circumstances, it is appropriate for the Board to exercise its remedial jurisdiction under section 89 of the Act not only to reinstate those individuals with appropriate compensation, but also to attempt to establish conditions that will promote fuller employee participation and understand­ing with a view to producing a more constructive climate for the exercise of the collective bar­gaining rights which will flow from these proceedings. Failure to do so would risk consigning the section 8 certificate to a climate where a collective agreement could be difficult, if not impossi­ble, to realize. (See, for example, Manor Cleaners Limited, supra; Robin Hood Multi-foods Inc., [1981], OLRB Rep. July 1972; and K-Mart Canada Limited (Peterborough), [1981] OLRB Jan. 60.) Accordingly in addition to directing reinstatement of Messrs. Molyneux, Bishop, and Duquette, and recall of Dan Wood, with compensation (to the extent indicated above), the Board finds it appropriate to direct the respondent to provide the union with employee lists, to permit union representatives to meet with employees on each of its shifts for a maximum of one hour on company premises during working hours, and to provide the union with access to employee bulletin boards. In view of the large number of layoffs which have occurred during the course of these proceedings, we also find it appropriate to supplement our usual "posting" order with a "mailing" to ensure that all bargaining employees will receive notice of the Board's deci­sion in this matter.

63. For similar reasons the Board will issue comprehensive remedial directions here. No direction to cease and desist violating the Act would seem to be necessary in that there is no sug­gestion before us that Royce Dupont has continued to violate the Act subsequent to June 10, 1988. Having regard to the requested relief, we do however order that the respondent:

(1) post copies of the attached notice, marked Appendix, after being duly signed by Irving Ungerman, in conspicuous places in its plant, where they are likely to come to the attention of employees, and keep the notices posted for sixty consecutive working days; reason­able steps shall be taken by the respondent to ensure that the said notices are not altered, defaced or covered by any other material; reasonable physical access to the premises shall be given by the respondent to a representative of the applicant so that the applicant can satisfy itself that this posting requirement is being complied with;

(2) provide the applicant forthwith with a list of employees in the bar­gaining unit, their addresses and phone numbers (if available), and keep the list updated on a monthly basis for one year or until the applicant has entered into a collective agreement with the respon­dent, whichever shall occur first. Insofar as at least some employees of Royce Dupont apparently regularly work at the St. Clair or Prime plants though on the Royce Dupont payroll, this list of employees shall include employees who either work at or out of the Royce Dupont premises or are on the Royce Dupont payroll.

(3) permit the applicant access to its plant during working hours for the purpose of convening a meeting for a half hour on each shift to address employees with respect to unionization, out of the presence of any member of management.

(4) At any meetings with employees convened by the respondent to dis­cuss labour relations matters, provide the union and its representa­tives with reasonable notice, and allow them to be present through­out and allow such representatives equal time to respond during the same meeting to any comments made by the respondent. This direc­tion will last for a period of one year, or until a collective agreement is concluded, whichever first occurs.

(5) Provide the union with access to employee bulletin boards or other customary areas for posting employee notices to post notices relating to union business, for a period of one year.

(6) At its own expense, mail a copy of the attached notice marked Appendix, after being duly signed by Irving Ungerman, to the resi­dence of each bargaining unit employee.

63. The Board will remain seized with respect to any dispute arising out of the implementa­tion of these orders.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPI.IANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD, ISSUED AFTER A SERIES OF HEARINGS ARISING OUT OF THE EFFORTS OF THE UNITED FOOD COMMERCIAL WORKERS’' INTERNATIONAL UNION, LOCAL 175 TO BECOME THE COLLECTIVE BARGAINING AGENT FOR OUR EMPLOYEES. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY QUESTIONING EMPLOYEES ABOUT SUPPORT FOR THE UNION, BY HOLDING A CAPTIVE AUDIENCE MEETING WITH OUR EMPLOYEES AT WHICH WE THREATENED, INTIMIDATED AND UNDULY INFLUENCED EMPLOYEES, BY THREATENING PHILLIP MARACLE BECAUSE OF HIS UNION SUPPORT, AND BY DISCHARGING SHAWN PERSAUD BECAUSE OF HIS UNION SUPPORT. THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS:

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF

A TRADE UNION;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING TO INTERFERE WITH THERE RIGHTS;

WE WILL PROVIDE THE UNION WITH A LIST OF NAMES AND ADDRESSES OF ALL EMPLOYEES IN THE BARGAINING UNIT AND WILL KEEP THE LIST UPDATED ON A MONTHLY BASIS FOR ONE YEAR OR UNTIL WE HAVE ENTERED INTO A COLLECTIVE AGREEMENT WITH THE UNION, WHICHEVER SHALL FIRST OCCUR;

WE WILL PROVIDE THE UNION WITH ACCESS TO OUR PLANT DURING WORKING HOURS FOR THE PURPOSE OF CONVENING A MEETING FOR A MAXIMUM OF ONE HALF HOUR ON EACH SHIFT TO ADDRESS BARGAINING UNIT EMPLOYEES OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT;

WE WILL PROVIDE THE UNION FOR A PERIOD OF ONE YEAR WITH REASONABLE ACCESS TO ALL EMPLOYEE NOTICE BOARDS IN OUR PLANT FOR THE POSTING OF UNION NOTICES. BULLETINS AND OTHER UNION BUSINESS LITERATURE;

WE WILL PROVIDE THE UNION WITH AN OPPORTUNITY TO BE PRESENT AT ANY MEETINGS CONVENED BY US TO DISCUSS LABOUR RELATIONS MATTERS, AND ALLOW THE UNION REPRESENTATIVES EQUAL TIME TO RESPOND DURING THE SAME MEETING, FOR ONE YEAR OR UNTIL WE HAVE ENTERED INTO A COLLECTIVE AGREEMENT WITH THE UNION, WHICHEVER SHALL FIRST OCCUR;

WE WILL MAIL AT OUR OWN EXPENSE A COPY OF THIS NOTICE TO THE RESIDENCE OF EACH BARGAINING UNIT EMPLOYEE.

ROYCE DUPONT POULTRY PACKERS

PER:

PRESIDENT, IRVING UNGERNAN

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

This notice must remain posted for 60 consecutive working days.

DATED this 19^th day of May, 1989.