Ontario Labour Relations Board

[1992] OLRB Rep. May 553

1350-91-R; 1354-91-U Retail, Wholesale and Department store Union, AFL:CIO:­CLC:,, Applicant v. Wentworth Beaver Limited c.o.b. Beaver Lumber, Respondent; Retail, Wholesale and Department store Union, AFL:CIO:CLC:, Complainant v. Wentworth Beaver Limited c.o.b. Beaver Lumber, Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

APPEARANCES: Mary Hart and Robert McKay for the applicant; Fred Heerema and R. G. Richter for the respondent.

DECISION OF VICE-CHAIR M. A. NAIRN AND BOARD MEMBER D. A. PATTERSON; May 13, 1992

1. Board File No. 1350-91-R is an application for certification. Board File No. 1354-91-U is a section 91 [formerly section 89] complaint, alleging that the respondent has violated sections 3, 65, 67, and 71 [formerly sections 3, 64, 66, and 70] of the Labour Relations Act (the "Act"). The complainant ("trade union" or "applicant"), in addition to other remedies, seeks relief in its appli­cation for certification pursuant to section 8 of the Act.

2. By decision dated August 26, 1991 the Board (differently constituted) set out its finding with respect to the description of the appropriate bargaining unit, and outlined the parties' then disputes concerning the list of employees. Before this panel, the parties were agreed that Cheryl Woodward, classified as cash area bookkeeper was properly excluded from the bargaining unit and that challenge was thereby resolved. By decision dated December 13, 1991, this panel concluded that William Daiglesh did not exercise managerial functions in accordance with section 1(3)(b) of the Act and was therefore properly included in the bargaining unit. At the outset of its submissions the applicant withdrew its challenge to Cory Smith. The parties were therefore agreed that Cory Smith should not appear on the list of employees of the respondent on the application date. With respect to the list of employees, that left for determination the status of five challenged persons, all of whom were grievors in the section 91 complaint. This panel convened to hear the evidence and submissions of the parties on the outstanding issues involving the application for certification and the section 91 complaint, including the applicant's request for relief pursuant to section 8 of the Act. Those matters were heard over seven days of hearing. We do not intend to refer in this deci­sion to all of the evidence but will summarize those matters relevant to our conclusions.

3. The respondent cwned and operated five retail lumber (including hardware and house­wares) stores. Three are situate in Hamilton (the "Parkdale", "Fennell", and "Main St. W." stores); one in Burlington (the "Fairview" store); and one in St. Catharines (the "St. Catharines" store). It also operated a distribution centre adjacent to the Parkdale store which provided a ware­housing and distribution service to all the stores. This application for certification is for those employees of the respondent employed at the Parkdale store in Hamilton. The employees in the bargaining unit applied for are engaged in various functions including sales, cash, warehousing (in­cluding the "drive-thin"), cart collecting, stocking, etc. While the respondent employs persons in these job categories on both a full-time and a part-time basis, the bargaining unit consists of only full-time employees. Including the remaining challenges, there were thirty-three employees in the bargaining unit on the application date.

4. The allegations raised in the section 91 complaint concern primarily the termination from employment in early July, 1991 of five individuals who were employed on the night crew per­forming stocking functions at the Parkdale store. The applicant makes further allegations with respect to certain conduct of the night crew supervisor, the assistant store manager, and the respondent's Vice-President and General Manager. The respondent denies the allegations of improper conduct and asserts that the termination of the five individuals from employment was motivated solely for legitimate business reasons.

5. Prior to 1991 the Fennel store had employees stock the store on a night shift. This store enjoyed the largest sales volume of the five but suffered from the smallest amount of available space. Employing a night crew to perform stocking functions did not disrupt customer service dur­ing the day while the store was open for business. That measure was implemented, proved success­ful and was, in the latter part of 1990, considered for implementation in the other stores. The key objective in implementing the night crew was to remove stocking functions from individuals nor­mally involved in customer service, and of course, to ensure that product was readily available to customers. The respondent was of the view that a by-product of better customer service would be increased sales.

6. The respondent's busiest season is between April and August of each year. In anticipa­tion of that, a night crew was instituted at the Parkdale store in early January 1991. Similar night crews were also initiated in the other stores following the example of Fennell. Although discussed at regular management meetings involving store managers and senior management personnel, the decision to implement the night crews was made by Mr. Ken Reid, the Vice-President and General Manager of the respondent.

7. Filling the new positions was left to each store manager. At the Parkdale store, Mr. Enzo Bonitatibus, the store manager, offered these full-time positions to four employees who were then working part-time performing stocking functions. In addition, Mr. Sean Stewart, employed as a full-time cart boy, was offered a position on the full-time night crew, which he accepted. Although there were some adjustments to the staffing over the spring of 1991, both with respect to the supervisory personnel and the crew itself (for example the temporary supervisory presence of Jeremy Parasiuk, the arrival of Brad Daiglesh as supervisor of the night crew and the transfer of Shawn Perry to the distribution centre), as of early July 1991 there were six individuals employed on a full-time basis on the night crew at Parkdale. This included Mr. Daiglesh.

8. The night crew appeared to function as anticipated. However on a review of the results of the first quarter sales, Mr. Reid became increasingly concerned about the financial position of the stores. Sales volumes were down, reflecting the generally troubled economic climate. Mr. Reid felt that the respondent should reduce expenditures. He testified that in April there was specific discussion in management meetings of the possibility of eliminating night crews in that this was an expenditure that had not been incurred previously. It was his evidence that the store managers were opposed to this idea and felt there had not been enough time to properly assess the benefit of having night crews. He testified that following these discussions, although he felt that enough time had been given to assess the benefit of the night crews and he felt that they represented an addi­tional cost, he was persuaded to continue the night crews at that point and look for other ways to control costs. Mr. Bonitatibus subsequently testified that he had attended management meetings throughout this period and that no discussion had occurred in April with respect to the possible elimination of night crews. It was his evidence that these views were not expressed until at least mid-June, 1991.

9. Effective April 1, 1991 the respondent did announce an increase to the employees' work week from forty hours to forty-four hours per week with no increase in pay. In the alternative, employees could opt for the current work week and take a ten percent reduction in pay. In addi­tion, the respondent enacted a wage freeze for employees who had reached their twelve month rate. That freeze was to remain in effect until December 31, 1991 at which time it was to be reviewed. This approach to the respondent's economic concerns was summarized in a memo to all staff in April. 1991 which closed by saying:

Our overall philosophy includes the security and well being of all employees, but this cannot be accomplished without ensuring the security and well being of the Company. These current pol­icy issues address, in the best manner for all, our attempts to minimize cost and maximize ser­vice for our customers and to continue our policy of job security for all employees.

That memo was posted over the signature of Mr. Reid. He then attended at each of the five stores during the week of April 15 - 19, 1991 to answer any questions that employees had regarding the extended work week. According to Mr. Reid, by increasing full-time employee hours the respon­dent could avoid hiring part-time employees for the busy spring and summer season, thereby sav­ing the respondent money and avoiding the lay-off of full-time employees. This decision received some attention in the local press. In his evidence Mr. Reid agreed that it was his view, as noted in the newspaper reports, that this approach was preferable to the "hard-line approach of slashing jobs" when business slowed down. This increase to the work week was designed as a temporary measure. It was Mr. Reid's intention to review it every three months and to revert to the regular schedule if and when business picked up. That sentiment was confirmed in a memo to all employ­ees dated April 26, 1991.

10. The applicant's organizing campaign commenced in April 1991. Mr. Reid became aware of it in April. He was advised by the store manager at Fennell that an employee had been approached by the trade union. On April 29, 1991, Mr. Reid met with Mr. Richter, the respon­dent's Vice-President of Human Resources. They discussed the fact of the organizing campaign. Mr. Richter provided Mr. Reid with a copy of a letter for distribution to employees. However Mr. Reid decided not to distribute the letter at that time because he felt that the organizing activity did not warrant it.

11. The union held its first meeting on June 4, 1991. Mr. Reid was also aware of this meet­ing and that employees had been invited to it. One employee spoke to him in the store and another requested an appointment with him in his office. Although the evidence is not entirely clear with respect to the timing, it is apparent that a third employee approached the assistant store manager, Lorenzo Sciarra, in early June. The employee advised him that the union was organizing, and that this employee had been approached to join by Sean Stewart, a member of the night crew. Mr. Sci­arra testified that he reported this to Mr. Bonitatibus who advised him to report to Mr. Reid, which he did. Mr. Bonitatibus testified that upon receiving this report from Mr. Sciarra he immedi­ately informed Mr. Reid. Mr. Reid acknowledged having received information that the trade union was organizing and that it involved a member of the night crew. While Mr. Sciarra testified that he informed both Mr. Bonitatibus and Mr. Reid of the nature of the conversation that he had with the employee, Mr. Reid denied being informed that any particular individual on the night crew was involved.

12. On June 10, 1991, Mr. Reid issued a memo to all staff advising that as a result of improved sales activity and an anticipation that the company would soon be returning to normal sales levels, the respondent was discontinuing the extended work week effective June 16, 1991, and thanking the staff for their cooperation. The wage freeze continued in effect. His decision to return to the normal work week was made on the basis of significantly increased sales activity for the period between May21 to June 4, 1991.

13. On June 11, 1991 a notice was posted to all employees in the Parkdale store. This memo advised that employees had indicated to management that they had been approached concerning organizing a union during working hours, which activity was distracting them from performing their regular work. The memo, which is two paragraphs long, advises:

"Under no circumstances should company premises or time being paid for by the company, be used for canvassing or obtaining support from other employees both for or against organizing a union to provide third party representation".

14. The applicant has alleged that a memo similar to this was posted which included a threat to terminate those employees involved in organizing on behalf of the trade union on company time. We heard evidence from two of the grievors concerning a third paragraph. Having regard to all of the evidence we are satisfied that the memo filed as Exhibit 7 was posted in that form. Mr. Stewart testified he took the "basic idea" from it. We are satisfied that although the grievors may have interpreted the memo as a threat of termination they read it in the context of a union organiz­ing campaign where employees may be concerned about their job security and it is perhaps not sur­prising that they did not read the memo as carefully as they might otherwise.

15. During the same time period the respondent distributed a copy of a letter to each employee at the Parkdale store. That letter was filed as Exhibit 8. It was handed to each employee by the store manager or assistant store manager. The letter sets out a number of factors for employees to consider in relation to union representation. It also states the employer's belief that employees do not need to pay a third party to represent their concerns. The memo concludes by acknowledging that the employees will carefully consider their decision and reminds employees that the decision about union representations is theirs to make. This letter with minor amendments was the same as that provided earlier to Mr. Reid by Mr. Richter. Mr. Reid chose to distribute it at this time because in his view employees were confused and he wanted them to know their rights. It was distributed directly to each employee to ensure that it was received.

16. The night crew at Parkdale had been working predominately a shift running from 9:00 p.m. to 5:30 a.m. In early June, Mr. Reid decided to alter the shift of the Parkdale night crew and move them to afternoons, ending at 11:00 p.m. Mr. Reid testified his intention was to prove that the stores could be stocked while still open for business. He testified that he decided to use the Parkdale night crew as a test because that store is adjacent to his office and therefore he could attend on a daily basis to assess how the store was functioning. In other circumstances Mr. Reid would not have a daily presence in any of the stores. As a result of monitoring the Parkdale store to see if standards were being maintained in June 1991, Mr. Reid concluded that the stores could be stocked during the day and therefore it was not necessary to have night crews. He concluded that the day staff were not contributing to additional sales notwithstanding that their stocking func­tions had been removed. He therefore instructed the store managers at the end of June to reduce staff.

17. Mr. Reid testified that it was his intention to eliminate twenty-five to thirty full-time positions and to accomplish this by eliminating stock-taking positions at all the stores (with the exception of Fennell but including the distribution centre). This decision was taken by Mr. Reid at the end of June and communicated to his store managers at a regular management meeting. This decision was taken he testified, on the basis of a significantly reduced volume of sales for the three-week period following June 4, 1991. Mr. Reid testified that the decision as to which employees should actually be let go was left to each store manager and that his intention was to generate a reduction in full-time positions across the chain. It is apparent however that Mr. Reid made it clear to the store managers that it was his view that the night crews should be eliminated. Mr. Bonitati­bus testified that in the discussions in the management meeting overall figures were not discussed but that he understood that five full-time positions were to be terminated at the Parkdale store and, for example, four night crew positions at the Main St. W. store. Although Mr. Reid attempted to disassociate himself from any decision with respect to the reduction in jobs at each store, it is apparent that Mr. Bonitatibus understood from Mr. Reid that he preferred that the night crew be eliminated. It was Mr. Reid's advice to the store managers in the "strongest terms" that the reduction in staff was to have the least impact on staff and customer service, therefore, the stocking positions were to be eliminated. Having heard and considered the evidence of each, we have no doubt that Mr. Bonitatibus would have accepted and adopted Mr. Reid's view and imple­mented it.

18. In early July, 1991, Mr. Simms, Vice-President of Merchandising, informed five mem­bers of the night crew at Parkdale that their employment was terminated. The meeting was brief. There was no offer of alternative employment nor any suggestion of future consideration. Four of the grievors were informed shortly after punching in for work on July 5, 1991. They were advised that the decision was taken because of economic considerations and had nothing to do with their performance. A fifth member of the night crew was informed on Monday, July 8, 1991 when he reported for work. By that time, he had already been informed by other members of the crew. He met with Mr. Bonitatibus who repeated Mr. Simms advice. Mr. Daiglesh's employment was not terminated.

19. Mr. Bonitatibus testified that he did not consider any of the five grievors for alternate employment because, in his view, they were not qualified. He subsequently added that at the time of the terminations no other positions were available. It was Mr. Reid's evidence that the five grievors were not offered other work because no work was available for them at Parkdale. The evi­dence with respect to the employer's staffing practices can be summarized as follows. The work-force is made up of both a full-time and part-time compliment of employees. The respondent does transfer employees between full-time and part-time employment and vice versa. The respondent also transfers employees between job functions. Although Mr. Bonitatibus attempted to establish skills in the area of customer service as a prerequisite for any consideration of jobs other than stocking it is apparent that the respondent hires employees who have no prior experience into vir­tually any classification 'of employment. While there are no formal job posting provisions, the employer has accommodated employee requests to transfer locations. The respondent does not generally recognize seniority. This was the first occasion of a major reduction of staff in the chain of stores.

20. Mr. Reid was unable to testify to the results of his direction. He did not know whether individuals had been offered part-time or alternate employment or if employees had left the employ of the respondent at other stores. He was aware that an individual on the night crew at the Fairview store was offered another position which she did not want and she consequently resigned. It was Mr. Reid's position that, to the extent a store manager may have preferred a night crew employee to someone else, the option of retaining that employee over another was available to the store manager. Exhibits 9-18 and Exhibit 22 were filed to show that positions had been reduced in accordance with his direction.

21. The grievors' service with the respondent varied from 0.9 to 2.8 years. In Mr. Reid's view the grievors would have been capable of performing other functions including cart boy, stock clerk, and warehouse and drive-thru functions. According to Mr. Reid the only reason that these individuals were not continued in employment was that no positions were available. He agreed that the respondent hires individuals with no experience for cash and the respondent trains them. He agreed that there was no reason the grievors could not be trained as cashiers.

22. Following the termination of the Parkdale night crew, stocking functions were per­formed by Mr. Daiglesh on a full-time basis. Mr. Brad Daiglesh was hired according to Exhibit 22 on May 13, 1991 to the night crew. He is listed on Exhibit 23 as 'full-time warehouse'. He was referred to in evidence alternately as manager or supervisor of the night crew. As a result of the certification proceeding, Mr. Daiglesh's status was put in issue. The applicant challenged the inclu­sion of Mr. Daiglesh on the list of employees asserting he performed managerial functions. The respondent disputed this assertion. A Labour Relations Officer was appointed to inquire into and report to the Board concerning Mr. Daiglesh's duties and responsibilities. Submissions were then received by this panel from the parties and during these proceedings we ruled that Mr. Daiglesh did not exercise managerial functions in accordance with section 1(3)(b) of the Act and he was therefore, properly included on the list of employees. We are satisfied however, that during the relevant time in 1991, Mr. Daiglesh would have been perceived by both the respondent and the employees as a member of management or aligned with management. That conclusion is evident from the testimony given by Mr. Daiglesh both before the Labour Relations Officer and the panel and from the evidence of the assistant store manager.

23. In addition to Mr. Daiglesh, the respondent utilized two part-time employees to per­form stocking functions. They had previously worked in the warehouse and drive-thru area and were moved to perform the stocking functions in the week following the termination of the night crew. Although the subsequent movement of employees is not entirely clear, it was Mr. Sciarra's evidence that those part-time positions in the warehouse/drive-thru were filled after moving the two part-timers to stocking functions. Stocking functions were also performed by other employees on the day shift.

24. Mr. Bonitatibus gave no consideration to retaining any of the five grievors. In his view they were not qualified. It was his evidence that every other position at the store involved some element of customer service for which these grievors were not trained. He acknowledged that Mr. Stewart had been working as a full-time cart boy prior to moving to the night crew and as such would have had customer contact. He was of the view that the other grievors had only performed stocking functions. We heard evidence from Mr. Stewart and Mr. Burch concerning the various functions that they had performed over the course of their employment. Mr. Burch's experience included cutting custom orders for lengths of lumber as a result of which he would deal with cus­tomers. Although his duties included stocking from his date of hire, he also worked on the lumber crew, had brought goods from the distribution centre to the store, had coded and priced product, and had customer contact in the warehouse and drive-thru area. He outlined the procedure involved for dealing with a customer in that area. He had completed a product knowledge test for the lumber area. He had performed cart person responsibilities as needed, and had worked the lumber sales desk on occasion when it had been busy. Mr. Buinch was also licensed to operate the fork lift. Mr. Stewart had been hired as a full-time cart boy and as such would come into contact with customers. He had also performed cleaning and pricing functions. He had filled in in the warehouse and drive-thru area and on occasion had completed straightforward sales at the lumber sales desk. As Mr. Stewart put it, as he "knew more" he was given more responsibility. Mr. Boni­tatibus was also aware, following a conversation in the spring of 1991, that Mr. Stewart was inter­ested in transferring off the night crew and had suggested moving back to his job on carts.

25. The respondent asserts that its decision to terminate the employment of these five individuals was solely motivated by its legitimate business need to reduce staff, and was not motivated in any way by the respondent's knowledge that the employees on the night crew at Parkdale were involved in the union's organizing campaign. The respondent's position is that some twenty-five to thirty positions were eliminated across the chain and that the grievors were caught up by this larger reduction in staff.

26. There is evidence that in July 1991 employees in the night crew position were termi­nated at some of the other stores and that a number of employees in shipping or driver assistant positions at the distribution centre were let go. At Fairview three full-time employees on the night crew left voluntarily on July 8, 1991 (see Exhibits 9-18). A part-time employee on the night crew at Fairview with 0.2 years of service was let go on July 8, 1991. At the Fairview store, however, employees on the night crew were offered the alternative of performing stocking functions on a day shift. One of these employees, Ms. Lundie, testified that she declined this offer of alternate employment and in the result resigned. It is not apparent what action would have been taken absent the voluntary departure of these employees. Exhibit 25 however discloses that on July 17, 1991 a part-time cart person was transferred to a part-time stock clerk position at the Fairview store.

27. Exhibit 11 identifies four full-time employees terminated from the night crew at the St. Catharines store on July 4 and 5, 1991. Exhibit 22 identifies only two of those employees as having their employment terminated and classifies one of them in sales. Exhibit 25 discloses that on June 30, 1991 two part-time members of the night crew at St. Catharines were transferred to the ware­house. The reason for the transfer is not indicated. Three or four employees worked the night crew at the Main St. W. store. Exhibit 16 refers to one employee leaving for personal reasons on July 12, 1991. Mr. Reid testified that two others had prior sales experience and transferred to days in that capacity.

28. In challenging the assertion by the respondent that it had eliminated jobs through the chain, the applicant sought to lead evidence that the night crew had been subsequently re-insti­tuted at the Fairview store. It's evidence on the point was hearsay and although the panel allowed the evidence to be called (with Mr. Ronson dissenting), while advising the respondent that it would be entitled to some greater latitude in reply if required, the evidence was not challenged by the respondent. There is evidence in Exhibit 22, filed by the respondent, that on September 9, 1991 Kevin Hietikko was hired on a part-time basis in the classification of night crew and on October 22, 1991 Mark MacDougall and Mike Wilkins were hired on a full-time basis into the classification of night crew. We note that on August 14, 1991 the respondent sold its business. While we may not have the exact legal names, the respondent was structured as a joint venture between Wentworth Lumber Ltd. and Beaver Lumber Co., whereas it now is 100% owned by Beaver Lumber Co. Ltd. We note that Mr. Reid, while not employed as Vice-President and General Manager of the succes­sor, was retained in an active consulting role.

29. Mr. Reid testified that the reason the grievors were let go was that there were no other jobs available for them, although he acknowledged that they would have been qualified to perform other work. Mr. Bonitatibus however testified that these individuals were not offered alternate employment because none of them were qualified, in that in his view all other positions required customer contact. Having heard the evidence of both Mr. Reid and Mr. Bonitatibus and two of the five grievors and in light of the nature of the jobs themselves, we have little doubt that the grievors could have performed other functions within the store. We are also satisfied that the grievors, hav­ing performed functions throughout the store, would be more valuable to the employer than a new hire with no experience given their knowledge of the store and its products.

30. Inherent in both these rationales however, is an acknowledgement that the grievors were considered, or could have been considered for other positions (but there were none, or if there were, they weren't qualified). This is so, even if as a more general proposition, the respon­dent did not recognize any principle of seniority or a bumping process in the event of a lay-off. Yet no consideration is evident, nor were the grievors so advised. They were told that their employ­ment was terminated. We have concluded they were qualified to perform other work. The respon­dent says there were no positions available. The evidence on this point is limited, but following the terminations, two part-time employees were moved from the warehouse/drive-thru area to perform stocking functions and those part-time employees were replaced. It appears the two transferred employees were performing stocking functions each in excess of twenty-four hours per week. The respondent had no difficulty with the grievors performing stocking functions. On that basis alone, work was available. Four of the five grievors, prior to moving to the night crew, had been employed on a part-time basis. Mr. Daiglesh, the member of the night crew with the least experi­ence and someone who was more closely aligned to management, was retained. Exhibits 22 and 23 confirm that new employees were hired (primarily on a part-time basis) throughout the summer and into the fall of 1991 at all the stores. In May, 1991 six part-time (five warehouse and one clean­ing) and two full-time employees (including Mr. Daiglesh) had been hired at Parkdale. Excluding sales positions, there were eight new part-time employees hired between July 1 - September 5, 1991 at Parkdale (two at cash, two for carts, and four in the warehouse). In addition, the respon­dent was advertising in the local paper for individuals interested in part-time positions in cash, sales, warehouse and stocking departments with day, evening or weekend shifts at all stores.

31. Did the respondent carry out Mr. Reid's stated instruction to eliminate some twenty-five full-time positions? Why did the respondent terminate the employment of the grievors and choose not to offer alternate employment or offer any opportunity for recall? The respondent's decision to eliminate full-time positions at the end of June, 1991 is inconsistent with its stated posi­tion in April, 1991 to cut costs by increasing hours of work. The respondent's policy in the spring of 1991 recognized an employee's interest in job security. The basis for Mr. Reid's decision to eliminate twenty-five to thirty jobs was a review of sales figures over a three week period June 4 -July 2, 1991. He made the decision in late June apparently before these figures became available. No such drastic measure had ever been taken before by this employer. While the respondent did not meet its sales projections during this period the short-fall was not as great as that experienced in April, 1991 at which time hours were increased in order to avoid job loss. Mr. Reid had the stores revert to a normal work week effective June 16, 1991 based on three weeks of increased sales activity from May 21 - June 4, 1991. Even if it was overly optimistic to revert to the normal work week based on only three weeks of sales activity, the stated response to the decline in sales activity over the next three weeks appears extreme in the context of the respondent's earlier approach.

32. The parties were not in dispute concerning the applicable legal principles to be applied in determining whether or not the respondent had committed an unfair labour practice. That test was summarized in Barrie Examiner, [1975] O.L.R.B. Rep. Oct. 745 in a passage often referred to:

“…..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".

33. It is difficult to conclude on the evidence that twenty-five to thirty full-time positions were eliminated. It is also difficult to conclude on the evidence that at least some of those full-time positions did not become part-time positions and were filled accordingly. There was some reduc­tion in the workforce. At the same time, however the coincidence of timing between the union's organizing campaign and these efforts taken by the employer cannot be ignored.

34. The timing of these decisions cannot, in our view, be divorced from the events occur­ring in the organizing campaign. The respondent increased the work week effective April 1, 1991. It then learned of the union's organizing campaign but Mr. Reid, at least, felt the activity did not warrant the distribution of Exhibit 8. On June 4, 1991 the union held its first meeting and Mr. Reid was aware from increased complaints from employees that the organizing activity seemed to be increasing. The memo advising against solicitation for or against the campaign was posted on June 11, 1991 and Exhibit 8 was distributed to each employee. That letter sets out certain employee rights but also makes clear to employees that the respondent is not a disinterested party in the mat­ter. It states it does not believe employees need to pay a third party to represent their concerns and suggests employees bear in mind some of the benefits they enjoy which are sometimes taken for granted. As of June 16, 1991 the work week reverted to normal, resulting, it can be assumed, in a benefit to the full-time employees at all the stores. Mr. Reid was aware that members of the night crew at Parkdale were involved in the organizing campaign. It is apparent that employees would have been aware of this as well, as this was the source of Mr. Reid's knowledge. Mr. Reid then decided in mid-June to conduct a "test" and move the Parkdale night crew to afternoons when he could better observe their work. His presence in the store increased significantly. The stated pur­pose of the test was to prove that stocking functions could be performed while the store was open without disruption to customer service. Yet he was (as were the store managers) already familiar with this work method. It was in place prior to the introduction of the night crew and had appar­ently been of sufficient concern so as to motivate the change to night crews. In late June Mr. Reid concluded that that concern was unwarranted. The decision to reduce staff and more particularly, the night crew, was taken. This approach to controlling costs was inconsistent with the approach taken prior to learning of the union's organizing campaign. While the respondent does not gener­ally recognize a principle of seniority, there was at least some other work available for which the grievors would have been qualified and which, if offered, would have been consistent with the respondent's stated policy of seeking to avoid the lay-off of full-time employees. Alternate work was offered to some employees in other stores. We note that even if the store managers retained some autonomy in implementing Mr. Reid's directive, that does not explain the treatment of the grievors compared with employees in other stores. The reason for termination given by Mr. Boni­tatibus is inconsistent with that expressed by Mr. Reid, and, on a review of the evidence, does not itself withstand scrutiny. Mr. Bonitatibus was equally aware of the organizing efforts at Parkdale. The respondent increased the hours of work in April also as a means of avoiding having to hire more part-time employees for the spring and summer seasons. Hiring of part-time employees occurred after the termination of the grievors' employment.

35. Overall, these actions are inconsistent with a conclusion that the decision to terminate the employment of the five grievors was motivated solely for legitimate business reasons, and free of any consideration of the grievors' involvement in trade union activity. In the result, we find that the respondent violated sections 65, 67 and 71 of the Act in terminating the employment of Steven Burch, Joe Mascaroni, Neil McLean, Sean Stewart and Kevin Young, and order the respondent to reinstate the grievors to employment with full compensation for wages and benefits lost, including interest. We reject the submission of the respondent that reinstatement is not an appropriate rem­edy in these circumstances where there is a successor employer and where jobs were eliminated. The complaint was filed prior to the sale of the business so any successor, it can be assumed, would or should be aware of potential consequences in the result. The evidence suggests that the new company retained the employees. But for the illegal conduct of the respondent the grievors would have been so employed. We have also considered the option of ordering the respondent to offer a recall opportunity to the grievors for work for which they might be qualified. The remedy is insuffi­cient however for it does not address the real possibility that, absent the employer's illegal conduct the grievors might not have been subject to any reduction in work. The possibility that counsel advanced, that employees may now have to be displaced as a result of a remedial order reinstating the grievors, arises, if at all, because of the employer's illegal conduct. The panel will remain seized with respect to the issue of compensation should the parties be unable to resolve it them­selves. All other allegations contained in the section 91 complaint are hereby dismissed.

36. The remaining issue to be determined is the applicant's request for relief pursuant to section 8 of the Act. The conditions and purpose of section 8 were set out in Di-AI Construction Limited, [1983] OLRB Rep. March 356:

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

(I) The Act has been violated.

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

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

We have already concluded that the respondent violated sections 65, 67 and 71 of the Act. There­fore the first condition is satisfied.

37. With respect to the application of the second and third elements of section 8 we refer to the comments in Nepean Bus Lines Inc. [1990] OLRB Rep. Mar. 295:

38. The Board next deals with the second element, namely, that the contraventions must have resulted in a situation wherein the true wishes of the employees are not likely to be ascertained through a representation vote. Substantial employer misconduct is required to justify this extraordinary remedy of certification pursuant to section 8: Radio Shack, supra, upheld 79 CLLC ¶14,216 (Ont. Div. Ct.); Ex-Cello Wildex, Canada, [1977] OLRB Rep. June 370; Manor Cleaners, [1982] OLRB Rep. Dec. 1848. The Board does, however, look to the cumulative impact of the employer's illegal activities: K Mart Canada Ltd., supra; Robin Hood Multi-Foods Inc., supra. In this case, there were illegal terminations of the all union organizers (Pilon, Bigras, Zakutney, Chretien) and the unlawful refusal to retain Jean Jahn for a reasonable period to train her replacement. As well, the Board notes the attempt by Iva 5tewart to attend the union meeting and the tension amongst the employees who actually showed up at the union meeting. There is no doubt the employer misconduct was substantial. The cumulative impact was even greater. The Board must assess whether the remedies which could be directed with respect to the violations of the Act would effectively "restore the atmosphere" to the point where the union could continue to conduct its campaign. The Board does not consider that pos­sible in the instant case. Viewed objectively, it is reasonable to conclude that the employees would have been so intimidated [sic] by the respondent's unlawful conduct that remedial direc­tions for the section 89 violations would not dispel the chilling effect. The Board concludes that their true wishes are not likely to be ascertained in a representation vote.

39. Finally, the Board considers the third element, whether the membership support is adequate for purposes of collective bargaining.

40. It is useful to refer to a relevant passage in Manor Cleaners Limited, supra, at this point:

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

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

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

38. The applicant filed valid evidence of membership on behalf of eighteen persons, eleven of whom were employees in the bargaining unit on the application date (out of a total of thirty-three employees). Three cards were signed on April 29, 1991, one on May 6, 1991, four on June 4, 1991, two on June 6, 1991 and one on June 18, 1991. The application for certification was filed on July 15, 1991 and July 30, 1991 was set as the terminal date. Apart from the evidence of the union s organizing campaign outlined earlier (that is, that it began slowly in April 1991 with the first meet­ing held on June 4, 1991) we have no other evidence with respect to the conduct of the campaign following June 4,1991. Employees would have been aware in early April 1991 that the respondent was concerned about its financial position. It would also be reasonable for them to assume that some of this concern had been alleviated by June 10, 1991 when the work week returned to nor­mal, although the wage freeze continued in effect. Throughout this period, the respondent was seeking to reassure employees about any concern of job loss. Employees would, no doubt, have responded favourably to the respondent's action on June 10, 1991. Exhibit 8 was received by employees at about the same time, advising them to consider the benefits that they did enjoy. It is reasonable to conclude from the evidence that employees knew or believed that members of the night crew were involved in the applicant's organizing campaign. The fact of the campaign itself appears to have been well-known. It would also be apparent to employees following the termina­tion of the grievors that at least some of the stocking work remained by virtue of the fact that two previously part-time employees from the warehouse were performing stocking functions commenc­ing the week immediately following the terminations. This work force is made up largely of young people working part-time, including both high school and university students. The two grievors who testified are both in their early twenties. They have, in relative terms, a fair length of service with the respondent.

39. Given the evidence of the organizing campaign, it is arguable that the applicant was not receiving the wholehearted support of the employees, or that its campaign was somehow spent. Over a period of approximately one and a half months the applicant did obtain membership sup­port on behalf of thirty-three percent of the bargaining unit. It appears there was initial interest and renewed interest in June at the time of the union's first meeting. During the month of June, 1991 there was considerable activity in the workplace both with respect to issues of job security and the knowledge of the trade union's organizing campaign. Whatever doubt we may now have con­cerning the employees' appetite for collective bargaining arises because we are now unable to assess their true wishes free of the effects of the improper interference by the respondent. This is the type of situation that section 8 was designed to remedy.

40. The respondent terminated the employment of fifteen percent of the employees in the bargaining unit in violation of the Act. The severity of that employer conduct would, in and of itself, speak to a chilling effect at the time of, and following, the terminations. With respect to the assessment of whether the true wishes of the employees are likely to be ascertained through the holding of a vote the Board has in earlier cases concluded that violations of the Act arising from threats to the job security of employees are such that the ability of the employees becomes one of choosing between continued job security rather than whether they wish to be represented by a trade union or not (see Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848 at paragraph 19 and the cases cited therein. See also Knob Hill Farms Limited, [1987] OLRB Rep. Dec. 1531 at paragraph 64 and the cases cited therein).

41. In the circumstances outlined we are satisfied that viewed objectively, it is reasonable to conclude that employees would associate the termination from employment of the five grievors with their union activity notwithstanding the respondent's stated business purpose. No notice was provided to employees concerning any overall reduction in staff throughout the chain. The termi­nations would have resulted in a substantial "chilling" of the applicant's campaign. Notwithstand­ing the employer activity, particularly in June, including the reversion to the normal work week, the distribution of Exhibit 8, and the increased observation of the night crew on afternoons, the applicant was able to obtain the support of thirty-three percent of employees in the bargaining unit. In these circumstances we are persuaded that the true wishes of the employees are not likely to be ascertained and that the applicant has membership support adequate for collective bargain­ing.

42. Therefore, we hereby certify the applicant as bargaining agent for the bargaining unit of employees of the respondent described at paragraph 6 of the Board's decision of August 26, 1991. Further we order the respondent to reinstate the grievors to employment in accordance with para­graph 35 of this decision, and finally, to post in the workplace in conspicuous places where it will come to the attention of the employees, the notice attached as Appendix A to this decision. We are cognizant of the fact that a successor legal entity appears to now operate the store and the notice therefore reflects that it is the conduct of the respondent that has been called into question here. The Board will remain seized to ensure that the notice to employees is brought to the employees' attention.

DECISION OF BOARD MEMBER JAMES A. RONSON; May 13, 1992

1. Those employers who are trying to carry on business during the toughest economic cli­mate since the 1930's should read this decision with a careful eye. Those employers who run a retail sales business by means of a head office and various retail stores operated as independent profit centres by local managers, might have some special concerns.

2. They may be concerned with the Board's approach to decision making as it applies to such a retail concern. For they will see that the Board has found that a decision to cut costs made at the head office level, and applied in the same manner to each retail outlet, can nevertheless con­stitute an unfair labour practice with respect to one specific store. If the head office decision is ille­gal, they might wonder why all the employees affected by it are not entitled to a remedy, and not just those who came before us under a union umbrella.

3. They may be concerned when they read how a decision of a local manager, (operating a retail store as a profit centre independent of the other stores), can somehow be found to apply to all the retail stores. Thus the failure of another manager, at another store at another location with a totally different work force, to make the same decision is found to be an unfair labour practice.

4. Lastly, they may wonder how the Employer in this case can comply with the Board order to reinstate various employees on a full time basis when the only evidence before the Board is that no full time work exists for them to perform, and throughout the hearing the employees were complaining that they had not been given a chance to perform part time work at "their" store following their terminations.

5. I do have these concerns, and that is why I disagree with my colleagues in their disposi­tion of this matter.