United Brotherhood of Carpenters and Joiners of America v. Repla Limited, 1990 CanLII 5637

Ontario Labour Relations Board

United Brotherhood of Carpenters and Joiners of America v. Repla Limited

[1990] OLRB Rep. December 1319

2148-89-U; 2182-89-R United Brotherhood of Carpenters and Joiners of America, Complainant v. Repla Limited, Respondent; United Brotherhood of Carpenters and Joiners of America, Applicant v. Repla Limited, Respondent

BEFORE: Judith McCorinack, Vice-Chair, and Board Members D. G. Wozniak and D. A. Patterson.

APPEARANCES: David Watson, J. Kouba and R. Balkissoon for United Brotherhood of Carpenters and Joiners of America, Local 27 and United Brotherhood of Carpenters and Joiners of America; C. E. Humphrey and C. Shimmell for the respondent.

DECISION OF THE BOARD; December 12, 1990

1. This is a complaint under section 89 of the Labour Relations Act, together with an application for certification in which the applicant has invoked section 8 of that Act. In addition, the employee status of two individuals is in dispute.

2. By a decision in this matter dated May 1, 1990, the Board found that the applicant was a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the Regional Municipality of Durham, save and except forepersons, persons above the rank of forepersons, students employed during the school vacation period, persons employed for not more than 24 hours per week, office and sales staff and security guards, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on December 18, 1990, the terminal date fixed for this application and the date which the l3oard determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. This would entitle the applicant to a representation vote, but not to certification without a vote. It is apparent that this situation would not be affected by the dispute with respect to the status of the two individuals. As a result, it was necessary to hear and determine the request for certification under section 8, and the incidents described in the section 89 complaint which formed the basis of that request.

5. At the outset of the hearing, the applicant indicated that an error had been made in setting out its own name in the section 89 complaint and requested leave to amend it accordingly. While initially the respondent opposed this request, the Board decided that the complaint and the application would be heard together in any event and that the parties could pursue this matter in final argument if it was still in dispute. The parties elected not to address the matter in final argument, and as a result, we are prepa:red to grant the applicant's request. The style of cause on the section 89 complaint is amended so that the name of the complainant reads as follows: "United Brotherhood of Carpenters and Joiners of America".

6. The respondent is a window manufacturer who currently employs approximately 22 people in the bargaining unit described above. On September 13th of 1989, one of the locals of the present applicant ("Local 27") applied to be certified as the bargaining agent for this unit. A terminal date of September 28th was set and a hearing was scheduled for October 13th. At that hearing, a differently constituted panel of the Board extended the terminal date which had the effect of making a petition opposed to the union timely. In addition, a non-pay allegation was made with respect to the membership evidence filed. On October 20th, the matter came back on for hearing and the parties agreed that the Board should direct a representation vote. That vote was held on November 3rd and Local 27 lost, 9 votes to 11, with 2 spoiled ballots. Philip Adams, one of the gnievors listed in the complaint, attended the two hearings on behalf of the union and was Local 27's scrutineer and agent for the colunt at the vote. Harry Nokes, the other gnievor, was a vocal supporter of Local 27's application. As is its usual practice when a vote has been held, the Board imposed a six month bar on an application for certification by Local 27.

7. Immediately thereafter, the applicant commenced its own organizing campaign. Ron Balkissoon, an organizer for the applicant, met with four employees including Mr. Adams and Mr. Nokes within several days of the vote. Mr. Nokes and Mr. Adams were given cards for signing up employees and they commenced to do so. They themselves signed cards on November 7th, and on the morning of November 8th Mr. Nokes obtained the signature of another employee on a card.

8. Later on November 8th, Mr. Nokes was given a letter of warning by the respondent indicating that he had until November 10th to show he was capable of handling his job. On November 9th, Mr. Nokes was terminated. Before he left the plant that day, he gave his blank cards and the one he had collected to Mr. Adams. On November 20th, Mr. Adams was terminated. The applicant alleges that Mr. Nokes and Mr. Adams were fired either in retaliation for their activities with respect to the Local 27 campaign, or to "nip the applicant's campaign in the bud". The respondent asserts that Mr. Nokes was fired because he was not a good employee, and that Mr. Adams was laid off for lack of work.

9. Subsequently on November 24th, Mr. Balkissoon met with the other two employees who informed him that they could not get any more cards signed. Mr. Balkissoon testified that he himself went to the homes of two employees who declined to sign cards. One of these employees had signed a card previously in the Local 27 campaign. No cards were collected after this point and on November 30th, the applicant filed this application.

10. The respondent initially objected to the applicant's application on the basis that the applicant and Local 27 were essentially one and the same for all practical purposes, and that this application was barred by the Board's previous order with respect to Local 27. A differently constituted panel of the Board found that they were separate and distinct entities both legally and in other respects, and determined that this application would proceed.

11. Section 8 provides as follows:

12. 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 are three elements to this provision:

(a) The employer must have contravened the Labour Relations Act.

(b) The effect of that contravention must be that the true wishes of employees are not likely to be ascertained through the Board's usual methods of assessment such as membership evidence or a representation vote.

(c) The applicant must have membership support adequate for collective bargaining.

12. The applicant alleges that the terminations of Mr. Nokes and Mr. Adams violated sections 64, 66 and 70 of the Labour Relations Act. As a result, we must turn first to an examination of those terminations.

13. Mr. Nokes was hired on August 1st, 1989 to be the lead hand for a new line of three windows that the respondent was developing. Mr. Nokes had never made windows before. At that time, Peter Hanzel, the respondent's material manager, told him that there was a probationary period of three months. It appears that Mr. Nokes had completed his probationary period shortly before he was terminated.

14. Mr. Nokes' duties included learning how to make the new windows himself so that he could train others, setting up the department, and organizing the work of other employees when the department became fully staffed. From the time he was hired until the week ending October 21st, his work consisted of familiarizing himself with the three new windows, organizing the physical layout of his department, making production prototypes and producing initial samples of the new windows. He was also assigned to other departments in that period to obtain more experience with other types of windows. Employees were gradually brought in to the new department, and it was fully staffed by the week ending October 28th.

15. Mr. Hanzel described three reasons for Mr. Nokes' termination. Firstly, from the time the department was in full operation in the week of October 28th until the week of November 4th, productivity in the department was very low. He and Adolph Schneulle, the plant manager, discussed this problem, and on November 8th went over production reports. They were concerned about an upcoming major project, the Palazzo Towers order, which would require a large number of the new windows. They did not think that they would be able to handle this at the department's then current productivity rate. Secondly, Mr. Hanzel had received complaints about Mr. Nokes' work from Mr. Schneulle between two and three times a week commencing shortly after the time Mr. Nokes started work with the respondent. Thirdly, Mr. Nokes misdrilled a window which resulted in the November 8th warning letter referred to earlier which reads as follows:

As Lead Hand it is imperative that you have a complete knowledge of the product your department is producing. Your performance in the past and again with the window today indicates that you do not.

You have had 3 months to familiarize yourself with the product. It is now your last chance, you have until Friday to show you are capable of handling this job.

16. However, as noted earlier, Mr. Nokes was in fact fired on Thursday, November 9th. According to Mr. Hanzel, this was because he had made another error in placing the locks incorrectly on two large windows. His termination letter reads as follows:

This is to advise you that your employment with Repla Limited is terminated effective Friday, November 10, 1989.

Our intention was to develop you in the position of lead hand for our new vinyl window line but, after your trial period, we found your knowledge of the new vinyl window was still minimal leading us to believe the position is beyond your capabilities.

Enclosed is:

1. regular pay up to and including November 10, 1989

2. one week's pay in lieu of notice to November 17, 1989

3. vacation pay up to and including November 17, 1989

4. record of employment

5. OHIP record

We are sorry this position did not develop to our mutual benefit.

Mr. Hanzel testified that he was u:naware that Mr. Nokes was involved in union activity, and indeed that he was unaware of the applicant's campaign until he received the section 89 complaint.

17. Mr. Schneulle told the Board that three weeks after Mr. Nokes was hired, he began to hear complaints about his work. After one month, he began directly observing his work, and testified that Mr. Nokes had cut window profiles inappropriately, drilled holes in the wrong places and assembled profiles badly. He asserted that he had spoken to Mr. Nokes about this on a number of occasions, and said that although Mr. Nokes seemed very keen to learn, he felt that he wasn't really listening to him, and his performance did not improve. Mr. Schneulle commented that Mr. Nokes' work was untidy, that he hadn't set up his department properly, that he himself was disorganized, and that he did not organize the work of other employees well. However, he agreed in cross-examination that all machinery and work tables were in place in the department before Mr. Nokes started work, that he was told not to move them, and that the department was small and crowded.

18. Mr. Schneulle told the Board that Mr. Nokes had made a large number of minor mistakes during the time he worked for the respondent. The only specific ones that he could remember were the drilling and lock placement mistakes that lead to his letter of warning and his letter of discharge respectively, and several incidents in which he had mounted glazing bridges incorrectly. It is not disputed that Mr. Nokes received no written warnings or notations until the letter of November 9th.

19. Initially, Mr. Schneulle testified that the warning letter was prompted by the locks being placed incorrectly, and that nothing had happened in terms of Mr. Nokes' conduct between the time of the warning letter and the time of the termination letter that caused him to terminate Mr. Nokes. Rather, he said, the termination letter came about because he discussed the situation with H. W. Peterson, the respondent's president, and that Mr. Peterson had made the final decision to let Mr. Nokes go immediately.

20. Mr. Schneulle completed his examination-in-chief before the lunch break. After the break, counsel for the respondent advised the Board that Mr. Schneulle had indicated to him that he had made a mistake in his testimony. The Board allowed Mr. Schneulle to continue his examination-in-chief as the applicant's counsel had not yet begun to cross-examine him. Mr. Schneulle then testified that the letter of warning had been prompted by drilling mistakes and that the dismissal decision was made after Mr. Nokes attached the locks incorrectly. Mr. Schneulle also said that he never knew Mr. Nokes was involved in the union. However, he admitted in cross-examination that he had commented to Mr. Nokes upon his wearing a union T-shirt, and he told the Board that no one else was wearing a union T-shirt. This incident occurred approximately a week before Mr. Nokes was terminated.

21. Mr. Nokes told the Board that at 11:30 a.m. on November 9th, he approached Mr. Schneulle because he wanted to know what Mr. Schneulle's intentions were as a result of the warning letter. He testified that he thought that Mr. Schneulle had already made up his mind to terminate him. Mr. Schneulle told him that it would be better if Friday was his last day, and that he could find another job. Mr. Nokes worked until just before lunch. Then Mr. Schneulle told him that he had talked to Mr. Peterson and they had decided it would be better if he left right then and there. As a result, Mr. Nokes went to talk to Mr. Hanzel to arrange for his separation papers. He then went to talk to Philip Adams in the roof window department, and gave Mr. Adams the card that he had collected on November 8th and the extra cards that were blank. While he was talking to Mr. Adams, Mr. Hanzel and Mr. Schneulle approached him and escorted him off the premises.

22. Sections 64, 66, 70, and 89(5) of the Labour Relations Act provide as follows:

23. 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.

24. 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.

89.-(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

23. In the Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board set out its approach to cases such as this where section 89(5) applies:

24. What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer.. .did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jursspnidence, see Delhi Metal Products Ltd., [1974] O.L.R.B. 450. In other words, the appearance cit a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

25. Subsequently, the Board reiterated in The Corporation of the City of London, [1976] OLRB Rep. Jan. 990 that the anti-union motivation does not have to be the sole reason, or even the predominant reason for the activity complained of to violate the Act, so long as it is one of the reasons. Then in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, the Board described the difficulties inherent in this kind of proceeding:

26. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employeir's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti-union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti-union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.

27. With this in mind, there are a number of things that concern us about the sequence of events before us. Firstly, it is difficult to accept both that Mr. Nokes was such a poor worker and that his deficiencies were evident so soon after he commenced employment for the respondent when he was not terminated until after the completion of his probationary period. Since there was no collective agreement, there was nothing which necessarily required the respondent to terminate Mr. Nokes during his probationary period or that prevented his termination subsequently. However, we find the fact that he was only terminated after he started recruiting employees for membership in the applicant tends to cast doubt on the assertion that he was discharged because of his work performance.

28. In addition, there is some conflict in the evidence as to why Mr. Nokes was terminated. Mr. Hanzel emphasized the productivity problem in his evidence and submitted computer printouts in evidence showing that productivity was low for the two and a half weeks before Mr. Nokes' discharge. The reports also indicated that productivity rose significantly after Mr. Nokes' termination. There was no dispute that this subsequent rise was unknown to the respondent at the time of Mr. Nokes' termination, and therefore was not a factor in its decision. However, we also found this material of little assistance for other reasons, including the fact that the productivity figures used were calculated by dividing the number of hours worked by the windows produced to obtain a figure of hours worked per window. After Mr. Nokes was terminated, Mr. Schneulle took over the supervision of the department. However, the hours he spent organizing and supervising the department were not included in the productivity figures, unlike those of Mr. Nokes. This in itself would result in a significant reduction in the tabulation of hours worked per window and an apparent rise in productivity. Moreover, this was a new department which had only been fully staffed with employees who were themselves unfamiliar with the new window line for approximately two and a half weeks before Mr. Nokes was terminated. Mr. Nokes testified that it took almost a week to train employees on the new window line, and that there were a number of problems initially relating to machinery and the lack of work space. In these circumstances, it would not surprise us if productivity was low at the beginning, and rose as employees became more familiar with the work and the problems in the system were ironed out. As a result, the respondent's conclusions with respect to Mr. Nokes seem somewhat premature. Of course~ we are not dealing with the fairness of Mr. Nokes' discharge since that is not the issue before us. However, the weakness of the productivity justification advanced by the respondent tends to undermine its credibility.

29. Mr. Schneulle, on the other hand, emphasized Mr. Nokes' mistakes as the reason for his termination. However, as noted earlier, his initial testimony was that a misdrilling mistake prompted the letter of warning, and that it was a discussion with Mr. Peterson which resulted in the termination letter. This is consistent to some extent with Mr. Nokes' account. Mr. Schneulle's subsequent testimony is more consistent with Mr. Hanzel's evidence. We note that neither the letter of warning nor the termination letter provide us with much assistance on this point, as both are very general.

30. Mr. Schneulle testified that Mr. Peterson made the final decision to terminate Mr. Nokes' employment, that he did not know whether the termination letter was written by Mr. Peterson or by the respondent's Personnel Department in Oakville, and that he could not say why it did not refer to the lock placement mistake which was said to have prompted it. Mr. Peterson himself did not testify in this matter. In our view this is a serious problem. As noted earlier, the Board must be satisfied both that the reasons advanced for the discharge were the only reasons, and that those reasons were free of anti-union animus. It is very difficult, if not impossible, to be satisfied in this respect if the individual who made the final decision does not testify with respect to what his reasons actually were.

31. In addition, as the Board pointed out in Burlington Air Express (Canada) Ltd., [1987] OLRB Rep. Aug. 1056, the failure of a critical witness to testify may result in an inference that such testimony would not have been helpful to the respondent. In this regard, the Board has adopted the following passage from the headnote of Holmes v. Alexon, 1974 CanLII 677 (ON HCJ), 7 O.R. (2d) 11, in McGregor Hosiery, [1976] OLRB Rep. Oct. 583; B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645 and Burlington Air Express, supra:

Where a party or witness fails to give evidence which was within his power to give and by which relevant facts might have been elucidated, the court is justified in drawing the inference that the evidence which might have been given would have been unfavourable to the party to whom the failure is attributed.

The failure of Mr. Peterson to testify is all the more troubling in light of our concerns about the other evidence with respect to Mr. Nokes.

30. There is also some discrepancy in the evidence about the warning letter. Mr. Schneulle agreed in cross-examination that he normally dealt with employees orally, and not in writing. As the Board observed in Pop Shoppe, supra, a departure from the norm may be subject to greater scrutiny in these circumstances. In addition, Mr. Hanzel testified that if Mr. Nokes had simply continued performing as he had been until then, but had avoided making mistakes, he would have been "okay", and that it was because of the second mistake that he was terminated. In contrast, Mr. Schneulle said in his evidence that Mr. Nokes had made so many mistakes by the time he made the drilling error that he had diecided it was time for a final warning. He told the Board that on Wednesday he hoped that there would be a "miraculous" change in Mr. Nokes by Friday. This seems to be unrealistic, at the very least. In these circumstances, and having regard to the timing of the warning letter, the short deadline in it and the discharge of Mr. Nokes before that deadline, it is difficult to avoid the conclusion that a decision had already been made to terminate Mr. Nokes at the time the warning letter was issued. If this is so, it tends to cast doubt on the reasons advanced by Mr. Hanzel and subsequently by Mr. Schneulle as to what prompted the discharge letter, that is, the lock placement error. This doubt, coupled with Mr. Peterson's failure to testify, reinforces our other concerns about the motivation for Mr. Nokes' discharge. Finally, we find that Mr. Schneulle's assertion that he was unaware of Mr. Nokes' support for the union to be somewhat implausible in light of the fact that he admits commenting on the union T-shirt Mr. Nokes was wearing.

31. Looking at the evidence as a whole, we are not satisfied that the respondent's reasons for terminating Mr. Nokes were entirely free of anti-union motivation. As a result, we conclude that the respondent violated section 66 of the Labour Relations Act. In addition, by discharging one of the applicant's in-plant organizers, the respondent interfered with the selection of a union or the representation of employees by a union, contrary to section 64.

32. Turning next to Mr. Adams' termination, Mr. Hanzel testified that Mr. Adams was hired on April 10th, 1989 and that he worked in the roof window department until his termination. The reason for that termination was lack of work. According to Mr. Hanzel, during the winter the respondent usually experienced a lull in orders which had been previously compensated for by the "Nicholson order" of 200 to 250 windows. During the week prior to November 20th, Mr. Hanzel testified that Mr. Peterson had called him and told him that the respondent would not be receiving the Nicholson order this year. At that point, there were approximately 215 roof windows in inventory, and the respondent expected to sell a minimal number of them over the winter. As a result, the roof window department was closed that week, and the other people were transferred out.

33. Mr. Adams was the only one in the department whose employment was terminated. Indeed, Mr. Hanzel testified that he was the only employee who had ever been terminated or laid off as a result of a shortage of work in the four years that he had been the material manager. In re-examination he explained this by saying the respondent had never lost the Nicholson order before, and that in previous years, many employees from the east coast had taken long winter vacations which had obviated the necessity for layoffs.

34. Mr. Adams was not the most junior employee in either the plant or the department. Rodney Dalton, an employee in the roof window department who was hired after Mr. Adams but who had worked previously for the respondent, had been transferred out several weeks previously. According to Mr. Hanzel, he was transferred partly in anticipation of the seasonal slowdown and partly because the respondent needed someone in shipping and receiving with forklift experience. Both Mr. Dalton and Mr. Adams had had some experience in shipping and receiving, although Mr. Dalton appears to have had more, and Mr. Adams' experience involved using a sideloader. Both a forklift and a sideloader are used in the respondent's shipping and receiving department. Mr. Hanzel agreed that it was well-known that Mr. Adams was a union supporter. In contrast, Mr. Dalton appeared at the hearing on Local 27's application with two other objecting employees in opposition to Local 27's certification bid.

35. The other two people in the department at the time of Mr. Adams' termination were John Young and Audrey Wry. Mr. Young was the lead hand, and he remained in the department making roof windows as required. Ms. Wry was transferred to another department during the week of November 20th, where she was described on Mr. Hanzel's print-outs as being in training.

36. Mr. Hanzel indicated that he was initially planning to see if Mr. Schneulle could absorb Ms. Wry, Mr. Young and Mr. Adams on the Palazzo Towers project, but that he did not discuss it with Mr. Schneulle because Mr. Peterson told Mr. Hanzel that they had decided to terminate Mr. Adams' employment. Mr. Schneulle testified that Mr. Adams was not transferred into another department because in his view he could not perform the work of other departments. He told the Board that roof windows were the simplest windows to assemble and that Mr. Adams' work was unsatisfactory on a previous occasion when he had worked in another department. Mr. Adams testified that this involved one period of two weeks when he was transferred to the wooden glider department to replace two employees on vacation, that not only was he expected to do the work of two employees but that he received no training or familiarization period with respect to the glider windows. In addition, he told the Board that no-one had mentioned to him at the time that there were problems with his work.

37. Mr. Hanzel agreed that he told Mr. Adams the week before he was terminated that he would give him a merit increase now that the union had been defeated. He also agreed that Mr. Adams had a perfect attendance record and that he was never late. Mr. Schneulle on the other hand testified that he was often late.

38. In the weeks subsequent to Mr. Adams' termination, the documentary evidence tendered by the respondent indicates that the hours worked by employees actually increased, although not in the roof window department. Mr. Hanzel explained this by saying there was an increased volume of work because the respondent was trying to get orders finished before Christmas.

39. There was no discussion of a possible recall on November 20th and Mr. Adams' record of employment indicated that he had been terminated. However in April of 1990, some three months after these proceedings were initiated, the respondent sent Mr. Adams a letter purporting to recall him. Mr. Adams contacted Mr. Schneulle at that time and told him that because his papers had said he was terminated, he had found another job. Mr. Schneulle indicated that the company had made a mistake. However, Mr. Adams declined to return to work for the respondent. (At the hearing, his counsel indicated that he was no longer seeking to be reinstated to employment with the respondent.) Although the recall letter indicates that order levels were up in the roof window department, the respondent did not hire anyone else when Mr. Adams did not return to work. Mr. Schneulle explained this by saying that although roof window orders were up at the time of the recall letter, they subsequently dropped again.

40. Mr. Schneulle testified that he had no knowledge Mr. Adams was involved in the union. He agreed, however, that he had heard from other employees that Mr. Adams was distributing union T-shirts after the Local 27 vote. Mr. Adams told the Board that he had been active in the campaigns of both Local 27 and the applicant. As noted earlier, he attended the Local 27 hearings and was the scrutineer and agent for the count on the representation vote. After the vote he distributed union T-shirts for the applicant, spoke to employees about signing membership cards and collected several cards. He also told the Board that he could perform work in any of the plant's departments, although it appears from his testimony that the roof window department is more isolated from the rest of the plant and that there is less interchange between it and other departments. However, Mr. Hanzel testified that the respondent tried to cross-train employees so that they could move between jobs, and it is apparent that Mr. Dalton and Ms. Wry were absorbed into other departments.

41. We have several concerns about the circumstances of Mr. Adams' termination as well. In the first place, the evidence about who made the actual decision to terminate Mr. Adams is unclear. Mr. Schneulle said initially that he made the decision to lay off in consultation with the Personnel Department, and that the suggestion to let Mr. Adams go in particular came from the Personnel Department, on the grounds that he was the last person hired for the roof window department. Then Mr. Schneulle said that he had called Mr. Peterson, and that Mr. Peterson had consulted with Mrs. Shimmel of the Personnel Department. Later he testified that he himself had been the one to raise Mr. Adams' name. Mr. Hanzel said that Mr. Peterson had told him about the decision. In examination-in-chief Mr. Schneulle emphasized that Mr. Adams was terminated because he could not perform work in other departments, while in cross-examination he stressed that it was because Mr. Adams was the last person hired for the roof window department. As noted earlier, Mr. Dalton was hired after Mr. Adams.

42. This confusion is compounded by the fact that Mr. Peterson did not testify. Our concerns set out earlier in this regard apply to some extent here as well. Without his testimony both the reasons for Mr. Adams' termination and the decision-making process as a whole remain, at the very least, unclear.

43. In addition, those reasons which have been advanced for Mr. Adams' discharge are not particularly credible. If the only reason for Mr. Adams' termination was lack of work, and it was anticipated that he would subsequently be recalled, we are hard-pressed to understand why both his record of employment and his discharge letter describe this event as a termination rather than a layoff. We note as well that the termination letter refers to the fact that the respondent "is closing down the roof window line due to lack of orders". This is inconsistent with both his recall letter which refers to roof window order levels increasing, and the undisputed evidence that Mr. Young continued to make roof windows up until at least the point at which Mr. Schneulle testified in these proceedings.

44. The fact that Mr. Adams was a well-known union supporter, that he was the only person laid off, that a layoff was such an unusual event and that Mr. Dalton who had publicly opposed Local 27's application was transferred rather than laid off despite the fact that he was hired after Mr. Adams are all troubling as well. We do not find the evidence with respect to Mr. Adams' skills in the wooden glider department or the loss of the Nicholson order satisfactorily explains this questionable set of circumstances. Indeed, if Mr. Adams' work was so poor in that department, we find it interesting that he had been promised a merit increase the week before his termination. The fact that he was working in a different department at that point does not entirely allay our concerns in this regard. Even the manner of his termination, on a Monday morning part way through his shift, seems a little unlikely if the decision had been made the week before, and if it was based on a seasonal lull coupled with the loss of the Nicholson order. Finally, we find it difficult to believe Mr. Schneulle's assertion that he did not know Mr. Adams was involved with the union, despite Mr. Adams' high profile on the Local 27 application, the fact that Mr. Schneulle had heard he was distributing T-shirts after the vote and in light of Mr. Hanzel's evidence that Mr. Adams was well-known as a union supporter.

45. For all these reasons, we are not satisfied that the termination of Mr. Adams was entirely free from anti-union motivation, and we conclude that the respondent breached sections 64 and 66 in this respect as well. We do not find it necessary to consider the applicant's claim that both terminations violate section 70, as it does not add to our analysis of the case nor does it affect possible remedies.

46. We now turn to the applicant's request under section 8. As a result of our finding with respect to the respondent's contraventions of sections 64 and 66, the first element of section 8 has been met. We must now consider whether those contraventions mean that the true wishes of employees are not likely to be ascertained by the Board's usual methods of assessment.

47. The Board has found on quite a number of occasions that the discharge of union supporters has meant that employee wishes are not likely to be subsequently ascertained. (See, for example, Dylex Limited, [1977] OLRB Rep. June 357; Riverdale Frozen Foods Limited, [1979] OLRB Rep. April 338; The Globe & Mail, [1982] OLRB Rep. Feb. 181; Elbersten Industries Limited, [1984] OLRB Rep. Nov. 1564; Zest Furniture Industries Limited, [1987] OLRB Rep. Feb. 299, and Zenith Wood Turners Inc.,[1987] OLRB Rep. Nov. 1443.) As the Board noted in DI-AL Construction Limited, [1983] OLRB Rep. March 356:

A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made it clear to employees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employees are not likely to be ascertained in a representation vote. Accordingly I am of the view that the applicant should be certified pursuant to the provisions of section 8 of the Act.

48. In this case, the message that would be conveyed to employees by the respondent's conduct is that supporting the applicant was not conducive to continued employment. This goes directly to the economic dependency which is the core of an employee's vulnerability in the workplace. Although the applicant has sufficient membership support to entitle it to a representation vote, at this point such a vote is more likely to test employees' views on retaining their jobs, rather than their views on unionization.

49. Similarly, we are concerned that the level of membership evidence before us does not represent the true wishes of employees. Because of the identification of Mr. Nokes and Mr. Adams with the applicant's campaign and the timing and circumstances of their terminations, we have little difficulty in concluding that those terminations would have had a chilling effect on the applicant's organizing drive. It is true that several cards were signed after Mr. Nokes' discharge. However, the numbers indicate that the momentum of the campaign had dropped off, and only one card was signed after Mr. Adams' termination. Of course, there is always the possibility of other reasons for this drop in employee interest. On the other hand, we find it difficult to accept that it was simply a coincidence that the campaign ran out of steam after Mr. Adams' termination. Any employees who might have given the respondent the benefit of the doubt with respect to Mr. Nokes' termination would likely have concluded otherwise when subsequently Mr. Adams, another union activist, was terminated, and Mr. Dalton, a union objector, was retained.

50. Among other things, counsel for the respondent pointed to the level of membership evidence submitted in Local 27's application and the results of Local 27's vote, and suggested that the level of membership evidence in this application is so similar as to allow us to conclude that it really is representative of employees' views on unionization.

51. The problem with this argument is that it relies on the proposition that Local 27 and the applicant are one and the same, a proposition which the Board rejected in its earlier decision, (now reported as Repla Limited, [1990] OLRB Rep. May 612). In that decision, a majority of the panel noted that the Board had treated parent unions and local unions as separate and distinct entities for a considerable period of time, and that each can establish status as a trade union under section l(l)(p) of the Labour Relations Act. In addition to this legal distinction, the Board observed that "there may well be political and financial differences which would be significant to employees in choosing between a parent union and one of its locals as the organization which they wish to have undertaken obligations under the Labour Relations Act as their bargaining agent." Finally, the Board commented that the evidence before it did not support the proposition that the applicant was an "alter-ego" of Local 27, or Local 27 in disguise.

52. In these circumstances, we are not prepared to conclude that either the membership evidence filed in Local 27's application or the results of the vote reflect employees' views on representation by the applicant. The Board does not assume that the wishes of employees with respect to one union entity are the same as their views on another union entity. The best example of this is the Board's practise to bar only an unsuccessful applicant from bringing another certification application for six months after losing a vote. Since other unions are free to apply, it is evident that the Board recognizes that employees may reject one union and embrace another. As a result, the membership evidence and the vote results relating to Local 27's application are of little value to us in assessing whether employee wishes can be measured by the level of membership evidence filed by the applicant.

53. For all these reasons, we conclude that because of the respondent's violations of sections 64 and 66, neither a representation vote nor an assessment of the level of membership evidence before us are likely to reveal the true wishes of employees. In addition, the effect of the respondent's misconduct is too far-reaching to be corrected or cured by the application of the Board's remedial powers under section 89.

54. Counsel for the respondent advised the Board that if the other criteria under section 8 were met, in light of the Board's jurisprudence he was prepared to concede that the applicant had membership support adequate for the purposes of collective bargaining. In these circumstances and in view of the membership evidence and other evidence before us, we find accordingly.

55. As a result, we conclude that all the elements required by section 8 are present in this case. A certificate will issue to the applicant. If the parties are unable to resolve their differences with respect to the two employees whose employment status is in dispute, they will be entitled to pursue the matter by way of an application under section 106(2) of the Act.

56. With respect to the section 89 complaint, the applicant is entitled to remedial relief for the respondent's violations of sections 64 and 66 independent of the certification application. Pursuant to section 89, we therefore direct the respondent:

(a) to forthwith reinstate Harry Nokes to the position that he held prior to his discharge;

(b) to pay to Harry Nokes and Philip Adams compensation for their losses resulting from the respondent's violations, together with interest to be calculated in accordance with Practice Note #13;

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

(d) to provide reasonable access to the applicant to permit it to satisfy itself that the respondent has complied with this order.

57. The Board remains seized to resolve any dispute with respect to implementing these orders.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

AFTER A HEARING IN THIS MATTER IN WHICH BOTH REPLA LIMITED AND THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA HAD AN OPPORTUNITY TO PRESENT EVIDENCE, THE ONTARIO LABOUR RELATIONS BOARD HAS FOUND THAT THE COMPANY VIOLATED THE LABOUR RELATIONS ACT BY TERMINATING THE EMPLOYMENT OF HARRY NOKES AND PHILIP ADAMS. THE COMPANY HAS SEEN ORDERED TO REINSTATE MR. NOKES (MR. ADAMS DID NOT WISH TO SE REINSTATED) AND TO PAY COMPENSATION TO 50TH MR. IJOKES AND MR. ADAMS. IN ADDITION, THE BOARD WISHES TO INFORM EMPLOYEES THAT THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES;

To FORM. JOIN OR HELP UNIONS TO BARGAIN AS A GROUP, THROUGH A REPRESENTATIVE OF THEIR OWN CHOOSING;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO DO ANY AND ALL OF THESE THINGS.

THE COMPANY IS PROHIBITED BY THE ACT FROM:

DOING ANYTHING THAT INTERFERES WITH THESE RIGHTS;

INTIMIDATING OR EXERTING UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE, TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OP A UNION;

LAYING OFF, DISCHARGING OR THREATENING TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES;

IN ANY OTHER MANNER INTERFERING WITH OR RESTRAINING OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

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

This notice must retain posted for 80 consecutive working days.

DATED this 12TH days of DECEMBER . 1990