Retail, Wholesale and Department Store Union v. Call-a-Cab Limited, 1991 CanLII 6043

Retail, Wholesale and Department Store Union v. Call-a-Cab Limited

Ontario Labour Relations Board

[1991] OLRB Rep. April 448

1825-90-R; 1827-90-U Retail, Wholesale and Department Store Union, AFL:CIO:­CLC:, Applicant v. Call-a-Cab Limited, Respondent v. Group of Employees, Objectors; Retail, Wholesale and Department Store Union, Complainant v. Call-a-Cab Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members K. Davies and R. Sloan.

APPEARANCES: Robert McKay and Jim Pound for the applicant/complainant; John H. McNair, Mike Donnelly and Jim Donnelly Jr. for the respondent; no one appeared at the hearing for the objectors.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER K. DAVIES; April 10, 1991

1. The name of the respondent in both of the matters herein is amended to "Call-a-Cab Limited".

2. Board File No. 1825-90-R is an application for certification. Board File No. 1827-90-R is a complaint, under section 89 of the Labour Relations Act, alleging that the respondent employer has breached sections 64, 66 and 70 of the Act.

3. The applicant/complainant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. Having regard to the agreement of the parties, and to the Board's decisions in Hamilton Yellow Cab Company Limited, [1987] OLRB Rep. Nov., 1373 and U-Need-A Cab Limited, [1989] OLRB Rep. Dec. 1275, the Board finds that all dependent contractors of the respondent in its taxi service working in the City of Peterborough save and except supervisors, those above the rank of supervisor, dispatchers, call takers, maintenance staff, office and clerical staff and multi-car/multi-plate owners/lessees, constitute a unit of employees of the respondent appropriate for collective bargaining. For the purpose of clarity, the Board declares that dependent contractors are those persons who are single car/plate owner/lessees of the respondent.

5. The material filed by the respondent and the membership evidence filed by the applicant/complainant, standing alone, indicates that fewer than forty-five per cent of the employ­ees in the bargaining unit at the material times support the application for certification herein. However, the applicant/complainant has challenged the list of employees. Originally, it asserted that Brad Cowie, Joseph Sullivan and Peter Donnelly should not be included on the list. At the hearing, however, the applicant/complainant agreed that these three individuals should be counted as employees in the bargaining unit for purposes of the Board's considerations herein. However, the applicant/complainant also asserted that eleven individuals whose employment had been termi­nated by the respondent on either October 9 or 10, 1990, should be included on the list of employees because the terminations were contrary to the Act. In the section 89 complaint herein, the same eleven terminations are alleged to have been contrary to the Act.

6. The respondent agreed that any employee who the Board found had been improperly terminated should be treated as an employee in the bargaining unit for purposes of the applicant of certification herein.

7. We note also that there were three statements of desire or "petitions" filed with the Board in opposition to the application for certification. These bear the names and signatures of seven different individuals. However, no one attended at the hearing on behalf of the Group of Employees, Objectors and the Board has no evidence before it regarding the origination or circula­tion of these statements of desire. Accordingly, they can be given no weight. (We observe that the statements of desire would not likely have been relevant to the Board's considerations anyway, since none of the names on them overlap with the names of employees in the bargaining unit who had previously signed one of the applications for membership which the applicant has submitted in support of its application - see, for example, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138.)

8. The respondent is a company which is in the transportation business in Peterborough. A significant part of its business is a taxi service it operates under the Call-a-Cab name. Immediately prior to October 9, 1990, it operated a fleet of thirty-seven active taxi-cab vehicles. Of these, four­teen were company-owned vehicles driven by non-dependent contractor employees of the respon­dent. These employees are not in the bargaining unit with respect to which the application for cer­tification herein has been made. The remaining twenty-three vehicles were owned and operated under the respondent's name by dependent contractors engaged by the company. It is this latter group for whom the applicant seeks to be certified herein.

9. In addition to the vehicles themselves, the respondent's taxi-cab operation includes a general office, a dispatch office, a service garage, and fueling facilities, all of which are located in the same general area in Peterborough. It is said to be a "family business". Jim Donnelly Sr. and his father founded the business in 1948. Jim Donnelly Jr., who lives in London where he is the President of About Town Transportation Limited, is part of the respondent's management team. He acts as a kind of Chief Executive Officer and, as such, is responsible for the respondent's over­all strategic financial and business planning, including any technological change. His brother, Mike Donnelly, is the respondent's general manager. He was described as the respondent's Chief Oper­ating Officer in charge of the company's day-to-day operations. Two other Donnelly brothers and two brothers-in-law are also involved with the company.

10. The respondent has taxi-cab vehicles on the road twenty-four hours a day, seven days a week. The company-owned vehicles are on the road constantly, except when they require mainte­nance. The respondent pays all of the expenses associated with operating the taxi-cabs it owns. These include the drivers' wages (forty per cent of the gross fares they collect), licensing fees, insurance, fuel, and maintenance and repairs. The expense of dispatching these company-owned taxi-cabs is also borne by the respondent. The dependent contractors, on the other hand, pay all of the costs associated with operating their vehicles. They also pay twenty per cent of their gross fares to the respondent and a dispatch fee, in return for the use of the respondent's dispatch services and top lights.

11. Prior to September, 1990, the respondent had several sources of revenue:

(a) its taxi-cabs;

(b) a school bus service it operates;

(c) what was referred to as a "combined urban service" which it oper­ated under contract with Canada Post.

12. The respondent's taxi-cab revenue consisted of general passenger revenue (including the payments it received from the dependent contractor owner operators who are the subject of this application), and contracts with School Boards (separate from the school bussing service) and Canada Post (separate from the combined urban service contract).

13. The combined urban service contract involved the movement of mail and mail products from street box to post office and of mail from post office to carrier box. It also included the "Pri­ority Post" parcel delivery service and other miscellaneous items. The respondent operated this service under contract from Canada Post from 1983 to August 31, 1990. The respondent's contract was terminated effective August 31,1990 when its tender for the following contract year was not accepted.

14. The respondent had set up what was, in effect, a separate division, called Donnelly Delivery, to perform the Canada Post combined urban service contract. This division used com­pany owned vans driven by employee drivers. When the respondent "lost" this contract, it termi­nated the employment of these drivers and sold off the vans.

15. The respondent presented evidence that the loss of the combined urban service contract represented a loss of gross revenue amounting to approximately $200,000.00 per year. The respon­dent asserted that the loss of this reliable cash flow would have a serious impact on its business. The respondent also presented evidence that its general taxi-cab gross revenue and its taxi-cab gross revenue under the School Board contracts for taxi cab services were significantly down in September 1990 as well. Jim Donnelly Jr. testified that all of this became apparent in the last week of September 1990. He testified that this was consistent with the trend across North America (ex­cept Ottawa) and that, as a result, he determined that it would be necessary to decrease the size of the respondent's taxi cab fleet by ten vehicles in order to maintain the strength of the respondent's business. Jim Donnelly Jr. testified that the respondent chose to accomplish this by terminating the services of the dependent contractor owner operators rather than of its non-dependent contractor employee drivers or some combination of the two. He explained that the respondent has greater control over its company cars and their drivers, that the company keeps one hundred per cent of the revenue generated by its own cars but receives only twenty per cent of the dependent contrac­tors fares, and that technological changes it was making to its dispatch system had met with some resistance from the dependent contractor owner operators.

16. Jim Donnelly Jr. testified that the decision to reduce the fleet by ten cars and the selec­tion of dependent contractors whose services were terminated were made on October 7 and 8, 1990 (which was Thanksgiving weekend) and implemented on October 9 and 10, 1990. He testified that the respondent wanted to act quickly in order to minimize the disruption to its business and to pre­empt any possible loss of business to terminated dependent contractors who might wish to join a competitor or even set up their own company. The selection of the dependent contractors to be terminated was made by Jim Donnelly Jr. on the basis of information supplied to him by his brother, Mike Donnelly.

17. Jim Donnelly Jr. testified that he selected Lloyd Pedwell because his driving hours were erratic, his dress and deportment were below standard, the respondent had received several cus­tomer complaints about him, and he was believed to have approached a competitor company about working for it. Brenda Wilson was selected because she was behind in her payments to the respon­dent, she was below standard in her presentation and deportment, and she was involved in a domestic triangle involving two other dependent contractor owner-operators, Walter Hanna and Marie Hough. Bob. Pearson was terminated because it was felt his first priority was a full time job he held with Sir Sanford Fleming College, he was a "weak link" who might leave anyway, and the respondent wanted to reduce the number of calls being taken by dependent contractor owner oper­ators. Marie Hough was chosen because Jim Donnelly Jr. felt her first priority was a country postal route she had, she might be inclined to leave to a competitor, and "she was taking more from the company than she was giving to it". Peter (also known as "Alex") Larochelle was selected because he was erratic in his availability, he was rude to the respondent's dispatcher and to customers, the inside of his car was messy, he was behind on his payments to the respondent, and it was suspected that he was linked to illicit drugs. Mike Del Grande was picked because he was a leader of the opposition to the changes to the dispatch system, he was "inflexible" with customers, and he was considered a likely candidate to leave anyway. Gary Cummings was said to be a complainer who was erratic in his work habits, had expressed interest in leaving the respondent to join a competi­tor, and he was behind in his payments to the respondent. Walter Hanna was selected because he was behind in his payments, his dress and deportment were poor, and the respondent had received complaints (three in three years) that he had made "suggestive" comments to female passengers. Mike Paetzold and Randy McCaugherty, who shared a single car, were taking too much business. John Cummings, a recent addition who was then on lay-off on a full time job and had another part time job, was selected because he wanted to work only during the busy Friday and Saturday night periods.

18. The nature of the applicant/complainant's allegations is such that, pursuant to section

89(5) of the Labour Relations Act, the burden of proof is on the respondent to establish that it did not act in a manner contrary to the Labour Relations Act. It is not necessary for the respondent to establish that it had just cause for terminating the services of the grievors or any of them. It must, however, satisfy the Board, on a balance of probabilities, that its treatment of the grievors was free of any improper motive. The nature of allegations such as those made in this proceeding is such that the Board must usually adopt a process of inferential reasoning to assess the propriety of a respondent's conduct in the context of all the relevant circumstances, including the objective rea­sonableness of the respondent's explanation, the existence of trade union activity and the respon­dent's knowledge thereof, the existence of any pattern of activity indicative of a refusal to recog­nize the rights under the Labour Relations Act, unusual conduct by the respondent after it became aware of trade union activity, and any other "peculiarities" (see, for example, John T. Hepburn Limited, [1985] OLRB Rep. Jan. 75, Manor Cleaners Ltd., [1982] OLRB Rep. Dec. 1848, Hallowell House Ltd.,[1980] OLRB Rep. Jan. 35, The Barrie Examiner, [1975] OLRB Rep. Oct. 745, De Vilbiss (Canada) Ltd., [1975] OLRB Rep. Sept. 678).

19. The respondent denied that it had any knowledge of any trade union activity by or with respect to its dependent contractor owner operators until after it had decided to terminate the ser­vices of the grievors. Jim Donnelly Jr. testified he was unaware of it until he was advised of the Board's notice of the application for certification herein. Mike Donnelly said he first heard of it on October 10, 1990 when Al Moncur (an employee in the bargaining unit who was not discharged) volunteered to him that "he had nothing to do with the union". The only direct evidence to the contrary before the Board in that respect is with respect to an alleged telephone call from Darlene Belair to Mike Donnelly.

20. Peggy Immel is the daughter of Jessie Morton, an employee in the bargaining unit for which the applicant/complainant seeks to be certified herein. During the summer Immel works in a lawn care and maintenance business. During the five years prior to October 1990 she had worked as a driver for one of the dependent contractor owner operators from approximately the second last week of October to April of the following year. On October 11, 1990, Immel learned that she would be unable to drive a Call-a-Cab taxi as she had for five years previously because of the respondent's decision to not allow more than one driver for each taxi-cab owned and operated by a dependent contractor. It was then that she approached the applicant/complainant and told the trade union about a visit that she had received from Darlene Belair on October 5, 1990.

21. Darlene Belair is an employee in the bargaining unit for which the applicant seeks bar­gaining rights. To the extent that the Group of Employees, Objectors participated in these pro­ceedings, Belair was their representative.

22. In their testimony, Immel and Belair agreed that Belair went to Immel's home early one evening (Immel said that this occurred on Friday, October 5, 1990, and Belair said that this was on Saturday, October 6, 1990). They agreed that Belair was there for some time and had a dis­cussion with Immel after which Belair telephoned Mike Donnelly. However, they disagreed on what they discussed and on what Belair said to Mike Donnelly. Immel testified that Belair came to her home looking for the former's mother (Jessie Morton) and that Belair spoke of there being "talk of a union" and of her hope that she and Morton could persuade other "drivers" to "not go union". Immel testified that Belair used her telephone to call Mike Donnelly and that during this telephone conversation Belair told Mike Donnelly that there was "union talk going around", that she had been approached by a "couple of drivers" in that regard, that there had been meeting to organize a union, and that "Mike, car number 55, Alex and Tom and a few others" were involved. Immel testified that Belair then left but that as she was leaving she said she felt better now that Mike Donnelly knew and said "I was never here, we never had this conversation".

23. Belair denies that there was any mention of a union or of union activity in either her conversation with Immel or her telephone conversation with Mike Donnelly. She testified that she went to Immel's house to speak with the latter's husband, Darrel, regarding the possibility that he might drive a taxi-cab owned and operated by her friend Linda Bradley, (also an employee in the bargaining unit herein) while Bradley was off sick for a month. The latter testified that she had already discussed that matter with Darrel Immel, who apparently worked as a non-dependent con­tractor employee driver for the respondent during the winter, and with Mike Donnelly and that she wanted to get the matter straightened out. Belair testified that Peggy Immel was home and that Darrel Immel wasn't when when she arrived. She said that while waiting for Darrel she chatted with Peggy about the respondent company, the taxi-cab business, and the new computer dispatch system being proposed by the respondent. She testified that she told Peggy how upset she was about this and got sufficiently worked up that she wanted to call Mike Donnelly to tell him so. She admitted she called Donnelly but denied saying anything about a union. She said she identified herself to Mike Donnelly, told him she was "cheesed off" about the computer and the friction it was caustng among drivers, that she wanted no part of the expense associated with it, and that she had signed a petition against the computer dispatch system. She also said that, in response to his question, she told Mike Donnelly that she, Bradley, Mike Del Grande, Alex and Tom were involved with the petition against the computer dispatch system. Belair denied knowing anything about a union organizing campaign until sometime later when she read the Board posting in that respect.

24. Because Darrel Immel did not testify, the Board does not have the benefit of his testi­mony with respect to the content of the disputed telephone conversation between Belair and Mike Donnelly.

25. In assessing the conflicting testimony of Peggy Immel and Darlene Belair, we have taken into consideration that neither are completely disinterested with respect to the outcome of these proceedings. Peggy Immel was clearly annoyed that she would be unable to drive a Call-a-Cab taxi this winter as she had in previous winters and only approached the union with respect to Belair's visit to her home after she learned of this. In addition, she has demonstrated her allegiance to the applicant by participating in an "information picket" of the Ministry of Labour's office in Peterborough with respect to the terminations complained of herein, and she indicated her belief that the applicant might yet assist her with obtaining work with the respondent. On the other hand, Belair has clearly demonstrated her opposition to the applicant and its application for certification herein. Upon assessing the testimony and their demeanour, we find that Belair was more candid and forthcoming than Immel. Belair was also more clear and more certain in her testimony. Fur­ther, we find that Belair's version of the events in question is more plausible than Immel's, not­withstanding that she never did (on the evidence before the Board) speak to Darrel Immel about driving Bradley's taxi-cab.

26. There is nothing in the evidence before the Board which suggests that Belair was aware of the applicant's organizing campaign before she saw the Board's notices with respect to the appli­cation. It is also clear from the evidence that the proposed introduction of a computer and associ­ated duplex communication dispatch system had encountered significant opposition . from the dependent contractor owner operators and that Belair herself felt very strongly about it. It makes more sense that Belair went to the Immel residence for the reasons she described than for the rea­sons Immel described. Belair did not really know Jessie Morton and had no real reason to be look­ing for her that weekend, and, as Peggy Immel herself admitted, Belair did not know or socialize with Peggy Immel. In these circumstances, it would make little sense for Belair to say the things Immel says she said to her, a virtual stranger, or to Mike Donnelly in front of Immel and her hus­band when, if one accepts Peggy Immel's version, Belair knew it was something she ought not to be doing. Finally, it was clear before the applicant closed its case that the respondent intended to call Belair in reply and indeed the applicant/complainant specifically agreed it could do so. Accord­ingly, to the extent that an inference can be drawn from the failure of Darrel Immel to testify, it must be drawn against the applicant since as a person who, according to Peggy Immel's version, was present at all material times, he could reasonably have been expected to call to corroborate her testimony. The applicant offered no explanation for not calling Darrel Immel.

27. In the result, we prefer the evidence of Belair to that of Peggy Immel and we find, on a balance of probabilities, that the conversation between Belair and Immel, and the telephone con­versation between Belair and Mike Donnelly took place as described by Belair.

28. There is therefor no direct evidence before the Board that the respondent was aware of the applicant/complainant's organizing activity before receiving notice from the Board of the appli­cation for certification herein. Of course, that does not necessarily mean that the respondent had no knowledge or suspicion of trade union activity among its dependent contractor employees.

29. In that respect, we find it worth noting that all of the grievors had signed an application for membership in the applicant/complainant just days before they were discharged while only three of the eleven bargaining unit employees who were retained had done so. This and the timing of the terminations may be a coincidence, but the respondent's explanation in that respect merits careful scrutiny. If any part of the respondent's motivation for its actions was related to the attempt by the grievors to exercise their rights under the Labour Relations Act, those actions were improper. As the respondent conceded, the onus was on it to explain and justify the terminations, not in any "just cause" sense, but in the sense that they were unrelated to any activity protected by the Act.

30. As indicated above, there is evidence before the Board regarding the respondent's economic situation at the material times, the reasons why it perceived that a fleet reduction was neces­sary, and why the grievors were the ones terminated. Upon reviewing this evidence, however, we are not satisfied, on a balance of probabilities, that the terminations were completely objectively justified. There is no doubt that the respondent was entitled to make decisions it felt were appro­priate, including cutting back its operations. That, however, is not the issue. The issue is whether any part of the motivation for its actions was contrary to the Act.

31. The respondent insisted on comparing the gross income it received from the taxi-cabs it owned and operated to the net income it received from the dependent contractor owned and oper­ated vehicles. Indeed, all of the income figures provided by the respondent are in gross rather than net amounts. There was no attempt to quantify the expenses associated with the respondent's oper­ations. While gross income figures suggest something of the respondent's economic situation, surely net figures would be the best indicator in that respect. The respondent offered no reason for not providing net figures.

32. Further, we are not convinced that the loss of the Canada Post combined urban service contract merits the emphasis given it by the respondent. We appreciate that that contract was a bit of a "cash cow" which made a real contribution to the respondent's cash flow. However, there was no indication of the contract's contribution to the respondent's bottom line and we are not satisfied that the loss of that contract and its contribution justified a response in other areas of the respon­dent's operations. The combined urban service contract was performed by what was, in effect, a separate division of the respondent. When it was lost, the respondent wound up that division and relieved itself of the expenses associated with operating it. Similarly, although the taxi-cab fares from the respondent's School Board contracts were down some twenty percent from September 1989, this amounted to only thirty dollars per day (gross) in real terms.

33. Even if some reduction of the respondent's taxi fleet was justified, the respondent failed to provide a satisfactory explanation for its determination that it was appropriate to reduce its fleet by ten vehicles. The only explanation offered by the respondent are its figures. These reveal that its gross revenue in September 1990 was down some sixteen percent compared to September 1989 but that it reduced it reduced its fleet by some twenty-seven percent. The respondent did not explain why a reduction by more than sixteen percent of its fleet (which would have been some six vehicles) was merited.

34. Even if a reduction of the fleet by ten vehicles was justified, the evidence falls short of justifying the decision to do so by terminating only dependent contractor owner operators, or the selection of the grievors in that respect.

35. The respondent offered no real cost/benefit comparison, in terms of either gross or net figures, or any other objective basis, between its non-dependent contractor drivers who operate company-owned vehicles and its dependent contractor owner operators. What evidence there is in that respect raises as many questions as it answers. For example, the evidence reveals that the respondent receives twenty percent of the dependent contractors' gross fares and charges them a fee for its dispatch services. It appears therefor that the twenty percent which the respondent receives from its dependent contractor employees is net profit in its hands. There is nothing in the evidence to suggest it is not. Although it is true that the non-dependent contractor drivers remit one hundred percent of their gross fare to the respondent, all of the expenses associated with oper­ating the company-owned vehicles are borne by the respondent. These include the wages paid to those drivers (which by itself amounts to forty percent of their gross fares), and all of the operating expenses. On the evidence before the Board, it is not possible to compare the relative contribu­tions of the two groups of drivers to the respondent's bottom line.

36. It also appears that, prior to October 1990, the respondent had historically engaged approximately one and two thirds dependent contractor owner operator taxi-cabs for each com­pany-owned vehicle it operated. After the fleet reduction that ratio became less than one-to-one. Why this fundamental change in emphasis was necessary or appropriate was not satisfactorily explained. The respondent did indicate that it felt it has more control over the drivers of its own vehicles. It may be that the respondent has in fact exercised more control over them but it is evi­dent that it had equal control over the dependent contractor owner operators if it cared to exercise it. The evidence suggests no reason why the respondent could not exercise such control.

37. Fifth, what are the reasons for selecting the grievors to be terminated? It is clear that but for the economic difficulties the respondent asserts it was experiencing in September and early October 1990, none of the grievors would have been terminated. It is also clear that opposition to the new dispatch system was not determinative of the selection. Otherwise, Darlene Belair, who was as vehement in opposing the change as anyone, and Lynda Bradley would have been termi­nated as well. Further, the evidence does not establish that all of the grievors were opposed to the introduction of a computer-assisted duplex channel dispatch system, either strongly or at all.

38. The respondent failed to explain why the eleven grievors were selected rather than the eleven bargaining unit employees who were retained. It is true that three of the eleven retained are family members which may well explain their retention. But what of the other eight? The respon­dent did offer reasons for the selection of the eleven grievors but offered no reasons or explanation for how it distinguished between them, or any of them, and the eight non-family member bargain­ing unit employees who were retained. Not only is the lack of evidence in that respect disturbing, but, what evidence there is suggests that the criticisms of the grievors could also be made of at least some of those who weren't terminated. For example, it appears that the failure of dependent con­tractor owner operators to remit their twenty percent payment to the respondent in a timely man­ner has been a widespread and chronic problem, and that the opposition to the introduction of the new dispatch system was also widespread. Other reasons or criticisms, such as those with respect to dress or deportment, erratic availability, and customer complaints were so vague and generalized that they are inadequate to explain the respondent's decisions. Nor is it apparent that the nature or number of customer complaints with respect to some of the grievors were outside of what was nor­mal in the industry in Peterborough or how the grievors' complaint records compared to those of bargaining unit employees who were retained.

39. The respondent's explanation for its decisions to terminate Pearson, John Cummings, Hough, Paetzold and McCaugherty were particularly weak. Pearson was selected because the respondent determined, without speaking with him, that his first priority might be elsewhere and he drove only part time. Similarly, John Cummings wanted to work only during the busy Friday and Saturday night periods. In the absence of some explanation to the contrary it would seem that Pearson and John Cummings would have fit nicely into a more streamiined operation; that is, available to help out during peak weekend periods but not seeking a piece of the available business during the slower periods. Hough was chosen because the respondent felt, without discussing it with her, that she had other priorities and that in some unexplained way she was taking more than she was giving to the respondent. Paetzold and McCaugherty were chosen because they were too efficient in their operation of the single car they share. This appeared to be in direct contrast to the erratic behaviour the respondent criticised some of the other grievors for. Similarly, several of the grievors were selected because they had expressed interest in going to a competitor. First, this was nothing new. Second, if the taxi industry in Peterborough, and elsewhere, is in recession, where would they go? Third, would terminating them not precipitate the very thing which the respondent feared; that is, that they would take with them some of the respondent's customer base?

40. In the result, we are not satisfied with the respondent's explanation for terminating the eleven grievors, all of whom signed membership documents indicating their support for the applicant/complainant herein shortly before they were terminated. On the basis of the evidence before the Board, we were not satisfied that the respondent's actions were objectively reasonable in the circumstances and we find it appropriate to infer that the grievors were terminated because the respondent knew or suspected that they were exercising their rights under the Labour Relations Act to join a trade union. While we do not suggest that there were no objective reasons to reduce the number of taxi-cabs or select the grievors for termination, we are satisfied that the respon­dent's decisions in that respect were tainted by improper considerations.

41. Sections 64, 66 and 70 of the Act provide that:

42. 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.

43. 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.

71. We are satisfied that the respondent has improperly interfered with the selection of a trade union by its dependent contractor owner operator taxi-cab drivers, contrary to section 64 of the Act. We are further satisfied that part of the respondent's motivation for refusing to continue to employ the eleven grievors herein was that they had become members of the applicant/complainant or because they were exercising their rights under the Act, contrary to sub­section 66(a). We are further satisfied that the conduct of the respondent would have had an intimidatory or coercive effect of the dependent contractor owner operators employed by the respon­dent who were not terminated, contrary to section 70 of the Act.

72. In his dissent, our colleague Board Member Sloan is critical of the use by the Board of notices which employers are sometimes directed to sign and post, both generally and specifically in this case. We note that the respondent did not challenge the Board's authority to require such a posting. Indeed, it addressed no argument whatsoever in that respect. Nevertheless, our col­league's dissent is such that we find ourselves constrained to deal with it as an issue.

73. Section 89(4) of the Labour Relations Act provides that:

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any col­lective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee con­cerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employ­ers' organization, trade union, council of trade unions, employee or other person jointly or severally.

The Board has exercised its broad remedial authority under section 89 to fashion remedies to many diverse situations.

45. In that respect, the Board has long recognized that the reinstatement of employees dis­charged contrary to the Act with compensation for lost wages will not, by itself, always constitute a sufficient remedial response. In an effort to more adequately remedy wrongs it has found, the Board has developed various ancillary forms of relief, including the posting of notices by an employer employees are advised that their employer has been found by the Board to have breached the Act and, in some cases, contains assurances by the employer that it will comply with the Act in the future. The use of such notices as a remedy was examined by the Board in Radio Shack, [1979] OLRB Rep. Dec. 1220; application for judicial review (c.f. Re Tandy Electronics Ltd. and United Steelworkers of America et al) dismissed 80 CLLC ¶14,017 (Ont. Div. Ct.); appli­cation for leave to appeal to Court of Appeal dismissed March 10, 1980, unreported) as follows:

46. These findings bring us to the issue of remedy. What remedies are available to the Board and appropriate in this case? The Complainant has asked for a declaration, a posting of notices, access to employees and their addresses, damages, the imposition of a collective agreement and, as an alternative to the imposition of an agreement, a bargaining order. In requesting these rem­edies, the Complainant raised some fundamental concerns over the effectiveness of the Board's bargaining order as an almost exclusive remedy in respect of breaches of section (15]. On the other hand, the Respondent took the position that the Board lacked the jurisdiction to impose an agreement and argued that much of the earlier conduct complained of was irrelevant to any matter now before the Board.

47. Section 89 is the section of the Act under which remedies of the kind relevant to this case are made. Its very open-minded wording presents this Board with both the greatest oppor­tunity to fashion carefully tailored effective remedies and the greatest temptation to exceed proper statutory bounds. The Solomonic difficulty in applying the broad powers granted to the Board under this section are apparent from the words used.

"89... where the Board is satisfied that an employer,.., has acted contrary to this Act it shall determine what, if anything, the employer,.., shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, any one or more of,

(a) an order directing the employer,.., to cease doing the act or acts com­plained of;

(b) an order directing the employer,.., to rectify the act or acts complained of; or

(c) an order ... to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer,...

92. Guidance, however, can be gained from a number of first principles that are apparent from the structure of the legislation and that have evolved through experience with the section. More­over, because of the breadth of the requested relief in the instant case and because one such principle has been severely challenged by the Complainant, the Board has decided to review its approach to unfair labour practice remedies and to explain more fully its role in these matters.

93. It is trite to say that all rights acquire substance only insofar as they are backed by effective remedies. Labour law presents no exception to this proposition. An administrative tribunal with a substantial volume of litigation before it faces a great temptation to develop "boiler plate" remedies which are easy to apply and administer in all cases. This temptation must be resisted if effective remedies are to buttress important statutory rights. An important strength of adminis­trative tribunals is their sensitivity to the real forces at play beneath the legal issues brought before them and there is no greater challenge to the application of this expertise than in the area of developing remedies. To be effective, remedies should be equitable, they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies should so be sensitive to the inter­ests of innocent bystanders. This means then that the Board should try and tailor remedies to each particular case. It is equally true, however, that the Ontario Labour Relations Board can­not police the entire labour relations arena. As important as it is for this Board to safeguard the substantive rights it administers, ultimately, compliance with the Act depends on the vast major­ity of unions and employers according at least minimal respect to the legislation, the Board and the Board's directives. With its limited resources and the time that must be taken to adjudicate fairly issues of controversy, the Board must rely on the co-operation of employers and trade unions in the day to day administration of the Act. For this reason, the Board cannot get too far ahead of the expectations of the parties it regulates. It must be concerned that its decisions are perceived, in the main, as reasonable and fair to attract as much self-compliance as possible. It has therefore been said that the ideal Board order must be both an instrument of education and regulation. See generally St. Antoine, A Touchstone for Labor Board Remedies (1968), 14 Wayne L. Rev 1039 Ross, Analysis of Administrative Process Under Taft-Hartley, [1966] Lab. Rel. Yearbook 299. Giving effect to these general considerations, three basic principles that underpin section [89] have emerged.

(1) A Remedy is Not A Penalty

94. If deterrence was all that the Board had to keep in mind, it would be a simple matter to set up a system of penalties which would achieve this end. There is little doubt that penalties could be devised which would provide second thoughts to anyone intent on violating The Labour Relations Act. But the Legislature did not provide the Board with this role and probably with good reason. See Little Bos. (Weston) Limited [1975] OLRB Rep. Jan. 83, at 91. Section [96] of the Act is a section that sets out penalties for contraventions of the legislation and allocates the role of applying these penalties to the Provincial Court. Additional penalties may exist else­where in appropriate situations. See Criminal Code, R.S.C. 1970, c. C-34, 5. 5, 423(2)(a); Re Regina v Gralewicz et al (1979), 1979 CanLII 2963 (ON CA), 45 CCC. (2d) 188 (Ont. CA.) By implication, and by the absence of punitive language elsewhere in the statute, it is reasonable to conclude that the Board should not fashion its remedies under section [89] with the primary view of penalizing parties. This is not to deny that effective remedies will likely have a deterrent effect, but the primary pur­pose of a remedy should not be punishment. If it were otherwise, the Board's accommodative and settlement role under section [89] and more generally would be a most difficult one to main­tain. Offenders would be wary of compromise lest their condor be subsequently met by stiff pen­alties issued by the very agency that encouraged an informal and early resolution of a complaint. Indeed, settlement and compromise might have to give way to a public clamor for a more tangi­ble enforcement of the legislation not unlike the current concern over plea bargaining in the criminal law context. Labour law has historically been more interested in accommodation than "two-fisted" enforcement. But of course, the failure to comply with a Board order can result in the application of penalties by the Court in the exercise of the Court's contempt jurisdiction.

95. In the immediate case this principle has importance. For example, affirmative orders that an employer post notices indicating that he has violated the Act and directives that he publicly commit himself to future compliance with the legislations cannot have as their purpose public humiliation, embarrassment and, thereby, punishment. These remedies may be appropriate as might direct trade union access both to employees on an employer's time and to employee addresses, but only as directives aimed at the removal or rectification (to use the language of the statute) of the consequences of a violation. These types of remedies, and their nature is almost infinite, should have as their purpose the amelioration of the lingering psychic effects of unfair labour practices and the consequent injury to a union's organizational or bargaining strength. The jurisprudence developed by the National Labour Relations Board is repleat with other examples and demon­strates the great potential for developing affirmative labour relations remedies under Section [89]. See McDowell and Huhn, NLRB Remedies for Unfair Labour Practices, Wharton School of Finance, Univ. of Pa. (1976). However, the Board must consider the appropriateness of each remedy in a Canadian context and in the light of our own statutory framework. For example, quare the application of certification extension in Ontario; Mar-Jac Poultry (1962) 136 NLRB 785.

[emphasis added]

The Board went on in that case to order the respondent, not only to sign and post a Board notice, but also to sign and mail it at its own expense a copy of the notice to the residence of each bargain­ing unit employee and also to publish at its own expense a signed copy of the notice in a specified publication.

46. The employer applied for judicial review of, inter alia, the Board's directions with respect to the notice (supra). The Divisional Court held that the Board's directions in that respect were within the Board's jurisdiction under what is now section 89(4) of the Act as follows:

It was vigorously argued on behalf of Radio Shack that the notice was unreasonable in that it required the company to make an admission of wrongdoing. It was contended that in those instances where the Board required the company to confirm that it would cease and desist by inference indicated that the company had been guilty of prior misconduct, that is to say of breaches of the Act. It was submitted that such a compulsory admission of wrongdoing was most unreasonable.

A reading of the notice could give rise to some concern that the Board was perhaps being some­what petty and overbearing in requiring a member of the company to read the notice. There would seem to be no reason why the notice could not be read by a member of the staff of the Board.

Nonetheless, the notice appears to be clearly within the jurisdiction of the Board. Based upon the Board's finding in this case, the notice was essential to restore the union to the position that it occupied before it was weakened by the unfair acts of the company. As well, it is essential that the Board should not be unduly restricted in the steps it takes to ensure compliance with its orders.

[Application dismissed]

There does not appear to be anything in the notice which constitutes an admission of guilt by the company. At most, the notice constitutes confirmation of certain findings by the Board. Those findings were only made after due notice was given to Radio Shack; a hearing was conducted by the Board wherein opportunity must have been given to the company to put forward its position. Under the circumstances, compliance with the notice can hardly be considered an admission of guilt. The last submission of the company must, like the others be dismissed.

[emphasis added]

47. Similarly, in Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board found it appropriate to require the employer to sign and post a Board notice because:

48. In the Radio Shack case itself an array of remedies were utilized, many for the first time, in an attempt to redress the pervasive unlawful conduct present in that case. These remedies included damages for breach of the bargaining duty; posting of notices, mailing of notices; trade union access to company bulleting [sic] boards, to employee addresses, and to employees on company premises; cease and desist directions; and trade union "equal right of reply" rights at all labour relations meetings convened with bargaining unit employees by the company on its premises and time. New and important remedies were also developed and applied in Westinghouse, [1980] OLRB Rep. Apr. 577, in order to redress the complex impact of unlawful acts involving the relocation of a plant. But it is too easy to characterize these cases as excep­tional and to forget about the remedial needs of the "run of the mill" unfair labour practice case, whether it involves an isolated dismissal, a change in working conditions, or some other act which comes nowhere close to the kind and range of conduct dealt with in the Radio Shack and Westinghouse cases. The Board must, however, resist this tendancy [sic]. Recently, in Hallowell House, supra, the Board indicated that it would award interest in all cases involving a money order as an additional remedy. The Board has accepted that it should not develop reme­dies which are primarily aimed at punishment, but the quid pro quo for this restraint must be that all remedies are fully compensatory. Hallowell House dealt with the concept of full com­pensation in an economic sense.

49. However, the impact of unfair labour practices are seldom confined to an economic impact. For example, the isolated dismissal of an employee in the midst of or at the outset of an organiz­ing campaign is likely to have a significant "chilling effect" on other employees who witness the incident and understand its origin. The dismissal of a fellow employee for union activity conveys a strong warning to other employees and can bring as top to an ongoing drive in its tracks. The mere reinstatement of the employee directly affected, with backpay some time later, may do little to assure his or her fellow employees that the employer is prepared to live within the requirements of the statute and that effective remedies exist for those occasions where he will not. (Indeed, if the experience in the United States indicating that only a small percentage of NLRB reinstated employees have the courage or will to return to work is applicable in Ontario, our reinstatement remedy may be ever less effective than this. See Stephens and Chaney, "A Study of the Rein­statement Remedy Under the National Labor Relations Act" (1974), 25 Lab. L.J. 31. However, one principal difference between the NLRB and the Board is the greater speed with which rem­edies may be mobilized and finalized under Ontario's Labour Relations Act. This factor may be an important difference to the effectiveness of our reinstatement orders.) We would add that our concern for remedial effectiveness is not limited to situations where employers are respon­dents. Trade unions have important obligations under the statute as well and individual employ­ees who are mistreated by them must also be assured of future lawfulness. One of the unique remedies developed by labour relations agencies to respond to the psychological impact of unfair labour practices requires the offender, whether employer or union, to communicate to employees affected by an unfair labour practice that it has been found guilty of violating statutory labour laws and that it will henceforth conform to their requirements. This remedy, in the usual form of a posting of a notice for sixty days in a conspicuous location(s) in the workplace, was first devel­oped by the Board in Radio Shack, supra, although its origin in labour law is ancient. See for example: The Falk Corporation (1940), 308 U.S. 453, 5 LRRM 677 at p. 682; Bradford Dyeing Association (1940), 310 U.S. 318, 6 LRRM 703 at p. 715. In more exceptional cases the posting of a notice will be insufficient and mailing, publishing, and reading of notices may be directed in order to redress the impact of unfair labour practices in question. See Radio Shack, supra, at p. 1270. See also Comment, Labor Remedies (1968), 54 Virginia L. Rev. 38 at p. 48. And more generally, Comment, NLRB Remedies - Moving Into The Jet Age (1975), 27 Baylor L. Rev. 292. However, we believe the posting of notices should not be confined to exceptional cases because isolated violations of the Act have an undoubted and significant psychological impact on labour relations and the attainment of the statute's objectives. Making employees aware of the fact that an errant employer or trade union cannot violate the Act and that the employee has meaningful legal rights is vital to the success of The Labour Relations Act. Admittedly, the effect of the posting requirement often will be difficult to evaluate but this is no reason for inaction. Surely, for example, the fear for job security will be lessened with the realization that someone more authoritative than the employer has a voice in determining what he can do to those who support a trade union and that someone more powerful than a trade union will protect those who law­fully oppose it. Even a belated notice is better than none, if it helps to dispel any fears, confu­sion or ill-will created by a situation which has been equitably resolved.

50. In National Bank of Canada v. Retail Clerks' International Union et al, [1984] I SCR

269; 84 CLLC ¶14,037, the Supreme Court of Canada considered the propriety of two remedial

orders made by the Canada Labour Relations Board:

(a) a letter, drafted by the Canada Board, which the employer had been directed to have sigued by its president and chief executive officer and sent to all employees; and

(b) a trust fund which the Canada Board had directed the employer to establish to further the objective of the Canada Labour Code.

The Court was unanimous in its decision that both these orders should be set aside. The Court found that the trust fund remedy was not intended to remedy the breaches of the Code found by the Canada Board. Because the remedy had no direct connection to the breaches, it could not stand. The Court found that the letter remedy should also be set aside and because of the emphasis in it on the trust fund.

49. In additional reasons, Beetz J. concluded (with whom four of the other Justices con­curred) that the letter remedy was also punitive in nature. He was concerned that the letter did not mention that it and the offending trust fund had been imposed by the Canada Board, and that it could therefor be interpreted as an expression of the views of the employer and its president. In the view of Beetz J., the trust fund and letter remedy both forced the employer and its president to do something which may be misleading or untrue, and was, as such ,a totalitarian penalty alien to the free and democratic traditions of Canada and the guarantees in the Canadian Charter of Rights and Freedom.

50. In our view, the notices which the Board has for ten years ordered be posted in what the Board has considered to be appropriate cases are quite different from the letter remedy rejected in National Bank of Canada, supra. In the form posted, this board's notices are clearly identified as being notices of the board which the board has ordered the employer to post. They do not, in our view require an employer (or a person who signs a notice on behalf of an employer when that is part of the order) to express a view, either of the legislation, the Board's decision, or otherwise, which they may not hold. They do not contain things which are untrue or misleading. Even those Board notices which contain an "assurance" that the employer will not breach the Act again do no more than require an employer, through an authorized representative, to put its signa­ture to a pledge that it will abide by the laws of the Province. No right is unlimited and we do not view a direction that such an assurance be given as being inimical to the freedom guaranteed to persons in Ontario.

51. Nor has the Board's use of posted notices become an automatic or "boiler plate" reme­dial response. Such postings are not directed in every successful application or complaint to the Board. In some cases the Board is not satisfied they are necessary. In others, the Board considers the impact such notices might have on a relationship which has improved after a difficult beginning (Sonic Transport Systems Inc., [1981] OLRB Rep. Oct. 1483), or the complainant's own conduct makes such a remedy inappropriate (see, for example, International Paints (Canada) Ltd., [1983] OLRB Rep. Aug. 1316).

52. In this case, the respondent terminated the employment of half of the employees in the bargaining unit at the time the application was made. For the reasons given in Valdi Inc., supra, the circumstances are such that a Board posting direction is both appropriate and necessary for labour relations purposes and as a remedy for the respondent's breaches of the Act.

53. Therefore, with respect to the union's complaint under section 89 of the Act, the

Board:

(a) declares that the respondent has violated section 64, 66, and 70 of the Labour Relations Act;

(b) orders the respondent to forthwith reinstate all eleven grievors to their former positions;

(c) orders the respondent to compensate the grievors for any wages and benefits they lost as a result of the respondent's unlawful conduct together with interest thereon;

(d) orders the respondent to forthwith and at its own expense, cause enlarge copies of the attached notice to employees (marked as an appendix hereto) to be posted in conspicuous places on its premises where they are likely to come to the attention of bargaining unit employees, including all places where all notices to such employees are posted, and to keep such notices posted for sixty consecutive working days;

(e) orders the respondent to take reasonable steps to ensure that the aforesaid notices are not altered, defaced or covered by any other material and to provide reasonable physical access to the premises where the aforesaid notices are posted to representatives to the applicant/complainant (who need not be employees of the respon­dent) from time to time, so that they may satisfy themselves that this posting requirement has been complied with.

54. With respect to the application for certification, and having regard to the respondent's agreement that any grievor who was found to have been improperly terminated should be treated as having been an employee in a bargaining unit for purposes of the application for certification herein (see paragraph 6, above), the Board is satisfied that more than fifty-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 October 24, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.

55. A certificate shall therefore issue to the applicant.

56. The Board will remain seized with respect to any issue concerning the implementation of this decision, and particularly the order in paragraph 41(c), above, for a period of six months.

DECISION OF BOARD MEMBER ROBERT M. SLOAN; April 10, 1991

I. PREAMBLE

1. With respect, I dissent from the majority decision.

2. I am puzzled and perplexed by the majority decision which infers an anti-union motive when there is, in my view, a preponderance of credible evidence before the Board which refutes the allegations made by the applicant and supports the dismissal of the complaint.

3. The consequences of the majority decision are: to reject entirely the credible, compel­ling testimony and submissions of James Donnelly and Michael Donnelly as they relate to anti-union animus; to place an unwarranted and onerous financial burden upon the respondent which will exacerbate an already difficult financial picture; and to impose upon the respondent the puni­tive order of having to post a humiliating and degrading notice.

II. FINANCIAL POSITION

4. There can be no question that the respondent in exercising its powers at law to operate a business had every right to analyze its financial position and, if as a result of such analysis it became obvious that there was a substantial decline in revenues, then the respondent had the right also to consider and take the required steps to restructure their business to attempt to reduce the adverse impact of such revenue decline.

5. It is an absolute fact which is clear from the evidence submitted by the respondent -which evidence went unchallenged by the applicant, other than the irrelevant comment by the applicant's representative that the written material had not been audited - that substantial reverses in their business fortunes had been experienced in the year 1990.

6. The legitimate issues considered by Call-A-Cab management and details of which were placed before the Board in evidence included: the general economic recession; the cancellation of the Canada Post contract; the loss in school bus runs; the reduction in taxi call counts; and the downturn in the taxi business in Peterborough in particular and throughout North America in Gen­eral.

7. The evidence clearly supports the respondents contention in its notice to its employees and owner operators dated October 11, 1990 that ".. .business volume is down 25%".

In paragraph 31 of the majority decision a question is raised with respect to "gross" and "net" amounts. If gross revenues are substantially reduced and fixed costs remain the same - this latter fact was established during the hearing - then it should come as no surprise to anyone that "net" revenues would be adversely affected. Surely it is not for the Board to determine or define what level of economic reverses a company must experience before the Board will accept as legitimate the taking of remedial action.

III. METHOD OF RESTRUCTURING

8. Having established beyond any doubt that their business was experiencing a serious downturn, Call-A-Cab management turned its mind to what form of restructuring, if any, would be needed to offset the financial deficiencies. The method chosen was the cancellation of ten (10) owner operator agreements or contracts.

9. It was the respondent's submission, and this submission was unchallenged, that of the two categories of drivers viz., employees and owner operators, the company acquired more reve­nue from the operation of its employee-driven company-owned taxis than from those cabs owned and operated by independent owners. (The term "independent owners" appears in the form of agreement signed by a number of owner operators and the term "independent operators" was used a number of times during the hearing by the applicant's representative.)

10. It is clear then that at the time the restructuring was being considered the respondent had legitimate economic reasons for differentiating between the two groups of drivers and upon deciding that the downsizing of its fleet was a necessary step to be taken for business economic rea­sons, and further, deciding upon the retention of employees who operated company-owned vehi­cles rather than owner operators, there remained the choosing of which agreements to cancel.

It should be noted that in terms of flexibility, control, revenue generation, and operating effi­ciency, the respondent believed that its best economic interests would be served by retaining employees who drove company-owned cabs.

11. A further consideration in determining the selection of owner operators in the restruc­turing process was the knowledge which the Donnellys' had, (Michael Donnelly having obtained this information from Darlene Belair during their October 6,1990 telephone conversation) that a petition had been circulated among owner operators in which the owner operators expressed oppo­sition to a proposed computerized dispatch system, and according to the testimony of the appli­cant's witness Michael Del Grande the petition language included the owner operators' declared refusal to pay for any of the attendant costs of the proposed computerized dispatch system which the Donnellys' testified was essential to the upgrading and competitiveness of their taxi operations. This information, in addition to the other factors considered by the respondent, would certainly reinforce their decision to concentrate their profit improvement efforts through the reduction of independent owner operated taxis.

12. In summary then, the decision to cancel contracts with owner operators was made, according to the uncontradicted and unchallenged testimony of James and Michael Donnelly for strictly economic and operational reasons and was made at a time when neither of these two wit­nesses had any knowledge whatsoever of any union involvement by owner operators or for that matter by employee drivers.

IV. SELECTION OF OWNER OPERATORS

13. Michael Donnelly testified that having decided upon the release of owner operators the respondent was faced with the unpleasant task of how the selection should be made.

14. Michael Donnelly, following consultation with and at the request of James Donnelly, set about rating the various owner operators in terms of their performance - which included, as we learned from testimony given - reliability, cooperation, dress, cleanliness (of vehicle and person), and attitude (to staff and customers).

15. As argued by counsel for Call-A-Cab the criteria and/or standard employed for the selection process was far removed from that which would be contemplated in a termination for just cause - there was absolutely no question here of any disciplinary considerations - in point of fact -for what it is worth - the evidence shows that no disciplinary measures of any kind had ever been imposed upon owner operators.

16. In Sudbury Youth Service [1990] OLRB Rep. Dec. 1339, at paragraph 25 the Board states:

"Where a union organizer is discharged during or soon following an organizing campaign it is natural to question whether the employee's involvement in the union played a role in the deci­sion to terminate. To that extent, where there is a connection in time between the events there may always be a doubt. However, the respondent is not required to satisfy the Board beyond any reasonable doubt but on a balance of probabilities and that doubt may well be satisfied by other evidence."

In this present case the majority has chosen to resolve the "doubt" issue by inferring anti-union animus which effectively, and in my view, impugns the integrity and veracity of James and Michael Donnelly and Darlene Belair.

17. The selection process was carried out by the respondent - and the evidence here is uncontradicted and unequivocal - without any knowledge of any union activity or involvement on the part of any of the owner operators, and therefore without anti-union motive.

V. EVIDENCE SUPPORTING A DISMISSAL OF THE COMPLAINT

18. First, I would like to deal with the credibility of James Donnelly and Michael Donnelly in the giving of their testimony. In considering their testimony in relation to some of the factors against which such credibility is assessed by the Board - viz: the firmness of their memories; their ability to resist the influence of self-interest to modify their recollections; the consistency of their evidence; and their demeanour - the Donnellys' were eminently credible witnesses.

19. In contrast, we must look to the testimony of the applicant's two main witnesses Michael Del Grande and Peggy Immel. Michael Del Grande testified that he believed that call counts had not fallen off, but he had no evidence to support this view, and he also expressed the opinion that the computerized dispatch system would not work nor be beneficial to the Call-A-Cab operation, while admitting that he had no relevant experience or training in the area of computers, which would qualify him to form such an opinion.

Peggy Immel's testimony is dealt with in the majority decision so there is no need to cover that ground again, other than to stress that with the discrediting of Ms. Immel's testimony - a unant­mous finding of the Board - the applicant was left without support for any of its allegations with regard to knowledge on the part of the respondent of any union activity by the owner operators prior to the taking of the decisions which resulted in the subject terminations.

20. In assessing the evidence in the light of the four factors which the Board found in DeVilbiss (Canada) Limited, File No. 0286-75-U, paragraph 12, to be determinative in finding an anti-union motive, I believe that the facts in this Call-A-Cab case clearly support an unequivocal finding that there was no anti-union motive for the termination of the services of the owner-opera­tors.

It is abundantly clear to me that:

(1) There was no pattern of anti-union activity - indeed there is no evi­dence of any anti-union activity;

(2) The respondent had no knowledge of union activity before it made and announced the decision to terminate the services of the owner operators and consequently had no knowledge of any involvement by any of the owner operators in that activity;

(3) The manner in which the owner operators were selected and informed of the decision was above reproach;

(4) The respondent's witnesses were exceptionally credible.

VI. REMEDY AND ORDER TO POST NOTICE

21. With respect to the remedy imposed upon the respondent it is my considered opinion that what I would characterize as extremely severe penalties are entirely unjustified under the cir­cumstances of this case.

22. Given that there was no direct or indirect evidence of anti-union motive on the part of the respondent the punitive effect of the remedy upon an employer already experiencing substan­tial financial difficulties is, in my view, extreme.

23. Further, the humiliating and demeaning nature of the order requiring the employer to post a notice "confessing" to a breach of the Ontario Labour Relations Act is punitive by any social standard that we may apply.

Such a measure is not required of persons or organizations in any other legal context, of which I am aware. The effect of this order can only be counter-productive to any attempt to establish a workable labour relations climate.

24. The written decision in all Labour Board cases is a public document available to any cit­izen who wishes to obtain it and read it, and from which individuals can acquire full knowledge of the decision and any dissent.

25. The fact that the Board's practice with respect to these notices has been in vogue at the Board since 1976 makes it no less intrusive. I believe that its use should be abolished - or if that is not in the cards, then its use should be restricted to only those instances where unanimous deci­sions of Board panels agree that circumstances warrant such a serious measure. Certainly this case does not fall into that category.

VII. FINALLY

26. As there is, in my view of the evidence, no basis in fact for the decision I would dismiss the complaint, and I would also dismiss the application for certification on the grounds of the lack of the statutorily-required membership evidence.

Appendix A

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

AFTER A HEARING IN WHICH BOTH CALL-A-CAB LIMITED AND THE RETAIL. WHOLESALE AND DEPARTMENT STORE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT THE TERMINATIONS WHICH TOOK PLACE ON OCTOBER 9 AND 10, 1990 WERE IMPROPER. THE COMPANY HAS BEEN ORDERED TO REINSTATE THE 11 PERSONS WHO WERE TERMINATED AND TO COMPENSATE THEM FOR THEIR LOST WAGES AND BENEFITS. ALL OF THIS IS DESCRIBED IN THE BOARD'S DECISION.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES RIGHTS

WHICH INCLUDE:

THE RIGHT TO ORGANIZE THEMSELVES;

THE RIGHT TO FORM, JOIN, PARTICIPATE IN AND BE

REPRESENTED IN COLLECTIVE BARGAINING BY THE TRADE

UNION OF THEIR CHOICES

THE RIGHT TO REFUSE TO DO ANY OF THESE THINGS.

THE COMPANY IS PROHIBITED BY THE ACT FROM:

DOING ANYTHING WHICH INTERFERES WITH THESE RIGHTS OF

EMPLOYEES UNDER THE LABOUR RELATIONS ACT.

DOING ANYTHING TO PENALIZE EMPLOYEES BECAUSE THEY

HAVE SELECTED THE RETAIL, WHOLESALE AND DEPARTMENT

STORE UNION AS THEIR BARGAINING AGENT, OR DO

ANYTHING TO INTERFERE IN THAT TRADE UNION'S RIGHTS

TO REPRESENT THE EMPLOYEES IN THEIR EMPLOYMENT

RELATIONS WITH CALL-A-CAB LIMITED.

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 10TH day of APRIL . 1991