International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers v. Thermogenics Inc., 1992 CanLII 6743

[1992] OLRB Rep. February 224

0928-90-R; 1004-90-U International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Applicant v. Thermogenics Inc., Respondent v. Group of Employees, Objectors; International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Complainant v. Thermogenics Inc., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Michael A. Church, Pierre Sadik, Edward Power and Alex Cassels for the applicant/complainant; Ross Dunsmore and Vince Johnston for the respondent; Wayne MacDonald, Dan Doyle and Don Chapman for the objectors.

DECISION OF VICE-CHAIR K. G. O'NEIL; February 24, 1992

1. This is an application for certification and a related section 91 [formerly section 89] complaint, which were consolidated and heard together. The section 91 complaint begins with an allegation that July 5,1990 layoffs were in retaliation for union activity and contains allegations reaching over the summer and fall of 1990. There were eighteen days of hearing before this panel over the course of which we heard the evidence of fifteen people and detailed argument. We have summarized the relevant facts below, noting relevant conflicts in the evidence and any necessary resolution of them.

Background Facts

2. The respondent Thermogenics Inc. (sometimes referred to in this decision as Thermogenics, the company or the employer) manufactures and refurbishes boilers. It is not a large operation, employing forty-six people shortly before the disputed July layoff. It has two major departments, Thermocoil, which builds boilers, and Railroad, which specializes in the rebuilding of boilers and parts for railroads. It also has departments which support the work of Thermocoil and Railroad, e.g., electrical and test bay. The company did very well in 1987 and 1988 but began to experience a decline in 1989 which continued into 1990. In 1989 the Thermocoil division built 39 boilers, and the railroad division rebuilt between 20 and 24. The comparable figures for 1990 were 16 and 6. As reasons for this decline, company witnesses mentioned a change in the Quebec boiler code which resulted in a 75% drop in Quebec sales between 1988 and 1989, free trade, and a change in the Ontario boiler code to accommodate Japanese manufacturers, as well as the general recession.

3. Various measures were taken by management to respond to the worsening business conditions. In late 1989 a policy was established of eliminating overtime. In the Spring of 1990, it began to be more seriously enforced. Emergency overtime had to be approved by senior management whereas previously this had been within the foreman's authority. In March 1990, two employees were laid off in the Railroad Division and one from the Thermocoil Division. On March 22, 1990, the company asked all employees to use up their remaining vacation entitlements by taking time off, rather than being able to bank it and be paid for it, as had been the case until then. In 1990, as people left, they were not replaced, with the exception of an employee hired on June 18 to do part-time janitorial and driver work and certain recalls mentioned below.

4. In April the Human Resources Manager, Bill Jeanes, heard of the Work Sharing Program run by the Canada Employment & Immigration Commission (CEIC) and later attended an information seminar provided by them as he was interested in the program's potential implementation at the company. In late May, the company met with all its employees, explained the company's declining fortunes and asked them to participate in the Work Sharing Program, which would mean that each week, for the duration of the program, there would be four days of work paid by the company and one day paid at 60 percent by way of Unemployment Insurance benefits. David Cross, the General Manager, told the employees he hoped it would eliminate the need for future layoffs. The employees agreed to the plan.

5. Employees left the meeting with varying impressions. Shawn O'Connor thought no one was to be laid off; they would go to 3 days of work sharing instead of two if things got worse. Wayne MacDonald says that layoffs in the future were mentioned as a possibility in the discussion. Jeanes testified that at the time of the application, it was not the company's intention to lay off. In early June, the company applied for participation in the plan and was accepted shortly thereafter.

6. As part of the process for establishing the work sharing plan, participating employees were required to sign a form agreeing to enter into the Work Sharing Program and appointing representatives to be used as a liaison for questions about the program. Wayne MacDonald and Shawn O'Connor were the original representatives. Work sharing representatives were authorized by management to deal with questions from employees and to hold meetings with the employees about the program and their concerns about it. The Human Resources Manager testified that he had MacDonald "fully knowledgeable" so he could field questions from employees. The program was officially in place as of Sunday, June 17, with Friday, June 22 being the first "work sharing day", a day on which the participating employees did not work and received benefits from the Unemployment Insurance Commission.

The Union Campaign

7. Roy Watson and Alex Cassels, two employees in the Thermocoil division, met with union officials in mid-June to make the initial contact to start an organizing campaign. Watson then approached employees to sign cards. Membership cards in the applicant union were signed between June 26, 1990 and July 4, 1990; eleven of the twenty-two filed were signed on June 27. On July 4, 1990, the application for certification was filed with the Board. The evidence indicated that others besides Watson and Cassels who supported the union in discussions with employees included the other grievors, Kevin Wilson, Farzan Caliph and Shawn O'Connor. Cassels said that he, Watson, Wilson and Caliph 'were the main people involved. Cassels testified that the advice from the union had been to keep the organizing activity private from the company, which he tried to do. He thought the others had as well, although O'Connor testified that no one told him that they had spoken to professionals in the union or that they were to keep the union secret.

8. Wayne MacDonald, a Work Sharing Program representative, apprentice electrician, and later petitioner, said he had an idea who the key people were because Watson had asked him to sign a card in June. He also testified union organizers were discussing the matter with employees in the plant. He thought Cassels was respected but he did not think he was "union". John Flana gan, an employee in Thermocoil, said that the campaign was very well known in late June and that he knew Watson was an organizer and suspected Cassels was as well.

9. O'Connor testified that by Wednesday, June 27, the whole shop knew about the union campaign. He knew that Watson, Cassels and Wilson were promoting the union. Between June 25 and 27, O'Connor had also spoken to employees at work about the union, both at break and other times. He estimated that by June 27, approximately 8 people knew he was in support of the union. People were wondering if there would be repercussions if management found out.

10. Wilson testified that he spoke freely to people at lunch about the union and somewhat in the shop. It was his view that Watson played the greatest role in bringing the union in. Caliph sat with Wilson at lunch and conducted an "open forum", in Wilson's words.

The Week Before the July 5 Layoffs

11. During the week following the start of the Work Sharing Program, which was also the week the majority of the union cards were signed, David Cross, the General Manager, was advised by the President of the company, Dave Kluey, that a major contract that it had expected to get had been awarded to a competitor. Some background about the contract is necessary to understand the role it played in this dispute.

12. A subsidiary of Canada Packers, Cangel, had formally invited bids for this contract in early June of 1990 from two companies, the respondent and a Japanese competitor. Cross had been informed by his Sales Manager that Thermogenics had the inside track on the contract, due to what it perceived as a technical edge because of the regulations then in effect. Noshir Mirza, the company's chief engineer, thought a "verbal okay" had been received from the Canada Packers engineer in late May or early June. Given the advice of his Sales Manager, Cross had authorized production of parts for the contract before it had been confirmed, in order to give the sales department an edge on delivery time, since the parts could be used for servicing other boilers if the contract did not come through.

13. The formal Thermogenics bid was received by Cangel on June 12. On June 15 a deal was struck with a Japanese competitor, before the Cangel negotiators had even reviewed Thermogenics' proposal, due to their view that the technology offered by the Japanese company was better for them. Cangel told Thermogenics sales personnel that they had not gotten the contract on June 18. The sales manager wrote a letter dated June 20 protesting the loss of the contract and promoting the Thermogenics' product in an apparent effort to get Cangel to reconsider. Cross heard orally they might be in trouble on the contract early in the week of June 25. On June 28 he found a note on his desk, dated June 27, from the company President, Kluey, which read in part:

Now that we are formally aware of our loss of the Canada Packers job of 4X300 BHP to MIURA, I would immediately suggest we consider the lay-off of additional shop people as we do not have sufficient work for them.

14. Cross testified that prior to receiving this note, he had been reasonably optimistic, expecting the Cangel contract and Quebec sales within the next five to six weeks would provide enough work to mean no layoffs for two more months. Cross said the loss of the anticipated contract was viewed as the straw that broke the camel's back in terms of "how much longer we could keep going the way we were." The receipt of the note from Kluey meant to Cross that Kluey expected him to act quickly in response.

15. Cross said he had been informed by the plant foreman, Brian Somers, that Watson was "talking union" on June 25 or 26, a few days before he received the note from Kluey. At this point Cross was not aware there was an actual membership campaign or that the applicant was involved. Cross was of the view that if Watson was talking union, it was because he was unhappy about the resolution of an overtime problem that he had had a short time before this. Cross said he did not react greatly to the union news, as it was not the first time that he had heard such rumors, whereas Somers described his reaction as shocked. Cross told Somers not to mention the rumours to anyone else. Cross swears he had no knowledge of any names but Watson's in connection with union activity at the time of the layoff decision. He says he did not learn of Cassels' involvement until the start of these hearings before the Board and that he knew nothing about union activity on the part of the other grievors, Caliph, Dicks, O'Connor, Sanders or Wilson. Somers testified that at the beginning of the following week, on July 9 or 10, he mentioned to Cross 8 to 10 employees who were strong union supporters and said the grievors could have been among them.

16. Cross testified he spent June 28 discussing what to do about the loss of the Cangel contract with Kluey, the President, and confirming with the sales manager that there were no other immediate prospects for more work. Mirza, the Chief Engineer, was unavailable until July 3. Cross said he had made no final conclusion as to what to do until he talked to him the following week. Jeanes, the Human Resources Manager and James Casey, the foreman in the railroad department, left for vacation on June 28, without being informed that anything was afoot. At a social engagement that Friday, June 29, Cross discussed the situation with a guest with experience in personnel matters, who advised him to seek legal advice. On Tuesday, July 3, he spoke to senior counsel at the firm which he later retained and took advice as to what to do about the rumours of potential union organization in the plant, and the prospect of layoffs. As a result of the advice he decided to make what he considered to be the necessary business decision.

The July 5 layoffs

17. On July 3, Cross met with Mirza, the company engineer for about an hour and discussed inventory and prospects. In the last week of June, the company had $250,000 in inventory, due to the fact that they had 3 complete boilers in stock as well as the coils stockpiled in anticipation of the Cangel contract, which Cross considered excessive. They decided to lay off Farzan Caliph, Alex Cassels, Glen Dicks, Paul Sanders, Roy Watson and Kevin Wilson. Neither Jeanes, the Human Resources Manager, nor the foremen in the affected areas, Somers and Casey, were involved in discussions leading up to the layoffs or the selection of the employees involved. This was due to Cross' intention, as a result of his legal advice, to insulate the layoff decision from the information about the union.

18. Cross ordered temporary layoffs because he thought more orders would be in-house in six or seven weeks. He did not want to spread the work out further so that there would be two days of work sharing time (an option that Jeanes had raised with him) for fear of losing the more skilled people. He was also of the view that fewer, more productive people are more efficient than a larger number of less productive people.

19. On July 4, Cross arranged for Jeanes to be brought back from vacation to implement the layoffs on July 5. Jeanes was told by Cross that the company needed him to come in because they wanted to make sure there was no problem with the Work Sharing Program and the layoffs. Jeanes says he called Sandy Earl, a UIC employee, to get permission to do the layoffs and was told there was no problem. Earl testified that she does not remember any such conversation and would have no authority to give the advice that Jeanes says she gave. She said that if an employer properly identified itself as on work sharing and looking for approval for layoffs, she would have

referred the call to Carl Gulliver, the consultant in charge of the application, in a different location.

20. Cross gave the names of those to be laid off to Jeanes. Each of them was given a letter by the foremen with the following content, which Jeanes had prepared, along with their final pay:

Due to a continued down turn in sales orders and in particular the recent loss of an anticipated order to our foreign competitor, it is necessary for additional lay-offs.

Effective 3:30 p.m. to-day, Thursday, July 5, 1990, you are being placed on temporary lay-off. In order to ease your financial situation, we have paid you in full up to this time.

21. The foremen were advised of the layoffs 1/2 hour before they were to happen, and were asked to hand out the envelopes to the affected employees and inform the employees they could speak to Jeanes in his office if they wished. All those laid-off who were at work at the end of the day went to Jeanes' office. Cassels' testimony about the discussion with Jeanes at the time of layoff was that they discussed why there were layoffs when they had just started work sharing, and then they talked about seniority. Jeanes mentioned the loss of a contract. Cassels said he asked if the layoff had anything to do with the talk of the union and that Jeanes responded, "You know where I sit on these things." Jeanes says the discussion was limited to his telling the employees the reason for the layoff was lack of work and an offer he made of continuing benefits during the layoff period. He said that no one asked him further questions and he did not remember the word union being mentioned. He later said it could not have been discussed because he was surprised to hear about the union on July 17 when he returned from vacation.

The Rationale for the Layoffs

22. The union alleges that the timing of these layoffs, or the selection of the individuals involved, was in response to its organizing drive - that those chosen were union supporters and perceived to be ring leaders by the company. Their union activity is said to be the reason they were laid off in preference to more junior, less skilled employees who were retained. The company maintains that the layoffs were precipitated by the recent loss of the Cangel contract and that the selection of individuals was for valid business reasons.

23. Mirza explained how the layoffs were done. He and Cross started with a review of inventory and the areas in which they were overstocked. They then went over the people involved in those sub-assemblies and decided what employees to let go. Specifically those who had been fabricating coils in anticipation of the Cangel contract were to be laid off. Cross said that Mirza chose the people to be laid off in Thermocoil and that he had not been told anything about union activity at that point. Further, Cross said the decision to stop coil manufacturing explained the layoff of the three pressure welders, Caliph, Watson and Wilson. Cassels was picked when they decided they also had too many other fabricated components in stock, i.e. combustion counters, coil retainers and doors. Then they went over all the names in all the departments. Cross, who was more familiar with railroad than Mirza, indicated that there was not enough work to keep railroad going on a regular basis either, and therefore, two people were laid off on the basis of seniority from that department. They felt there was enough work in other departments that other immediate lay-offs were not warranted.

24. Both Mirza and Cross swore that the matter of union activity was no part of these discussions. Mirza did not hear about the union until later. Cross testified that the union rumours were no part of the motivation for the layoffs or for the selection of the individuals involved although he discussed the possibility that that charge might be levelled at the company with Kluey.

The Allegations of Irregularities Related to the Layoffs.

25. Part of the union's case was that the employer must have known that it was not supposed to lay people off during the Work Sharing Program without permission and that its failure to get permission from CEIC prior to effecting them is an indication of the abnormality of the process, an abnormality best explained by the presence of the union campaign. Jeanes maintains that he did get permission from Earl at the Newmarket office. The union's evidence did not establish that this did not happen as Earl simply does not remember if it happened and one can infer from her testimony that depending on how Jeanes framed his question, she does not deny some interaction might have occurred.

26. When Mr. Gulliver, the CEIC consultant, learned on July 17 that the company had effected several layoffs on July 5 without proper permission, i.e., from himself, he questioned whether Thermogenics should be allowed to continue in the program. The extent of the layoffs, together with recent quits, represented 20% of the work force, the same number of employees that participation in the program was to have saved from layoff. After speaking to Cross, he concluded that the company had not been intentionally trying to circumvent the program. He therefore recommended continuance to his superiors, who accepted that recommendation but, in doing so, formally drew the permission requirements to the company's attention on July 30.

27. The union also asserts that the recent implementation of the Work Sharing Program for the express purpose of avoiding layoffs makes the company's justification incredible. Further the company had the option to extend the days funded under the Work Sharing Program to two days. It is clear that the government sees work sharing as a program to avoid layoffs, that the company was trying to avoid layoffs by implementing it, and that the employees gave their consent to it in the hope that there would be no further layoffs. We accept that the company did not guarantee that there would be no more layoffs in exchange for the employees' agreement to enter into the program. However, Cross testified that he was optimistic himself until June 27 that there would be no summer layoffs and we conclude some employees' perception that implementation of the work sharing plan meant no more layoffs was a reasonable one.

28. One of the usual requirements of the Work Sharing Programs as administered by the Federal Government is that an employer identify the employees who would be laid off if the Work Sharing Program was not approved. Part of the reason for this requirement is that the Commission has criteria for admission to the program which relate to the percentage of the work force affected. For Thermogenics, 10 employees facing layoff without the program was the threshold for acceptance into the program. When the company submitted its application, the identification of individuals to be laid off was not done. However, there are now ten asterisks on the original documents which were apparently put there later on, possibly by an employee of the Unemployment Insurance Commission in conversation with the employer, according to evidence from CEIC employees. The asterisked names are different than those who were laid off and are not the people identified in evidence as most involved in the union organizing campaign, with the exception of Caliph.

29. Given the onus of proof, we are asked to draw a negative inference from the company's failure to explain the fact that the asterisks do not coincide with those who were laid off. The company's evidence was that it does not know how they got there and who provided that information and therefore it submitted no weight should be put on it. There is no obvious consistent pattern to the asterisks. They appear to be the most junior welders, pipefitters, stores men and labourer. However, in railroad, electrical and test bay, they are not the most junior people. We find the evidence on this point inconclusive, and not of the nature to warrant a negative inference, even given the reverse onus. The evidence does not warrant any particular inference more than another. It raised various possibilities, only one of which, i.e. that the company had intended to layoff different people before the news of the union campaign than after, is necessarily negative to the company and relevant to the issues before us. Equally plausible on the evidence are other inferences: that a CEIC employee did them from other information on the file, or on some unknown basis, that a person with no authority at the company gave the information, or that the loss of the Cangel contract targeted different people for layoff than would have been the case absent that fact.

30. Other irregularities argued by the union to be significant are certain alterations to the names of the work sharing representatives on the application documents. Because O'Connor was out of the plant when the work sharing Agreement was to be signed, he was replaced by Cassels, who signed the work sharing application as an employee representative on June 4, 1990. After his layoff on July 5, 1990, he was in turn replaced by Mr. Tuck Chang. We are satisfied that these changes were not motivated by anti-union animus but were responses to availability of the personnel and the CEIC's need for new names on the forms. Some changes on the documents seem to have been out of inadvertence.

31. The union argues that in early June when the company applied for work sharing it could not have known about the Cangel contract and thus its loss should merely have returned the company to the position it was in when it entered the program, when further layoffs were not contemplated. The company's application for worksharing, as it now stands, indicates that 10 people would be laid off if it was accepted into the program. The evidence from Gulliver was that the number 10 was important to the Commission, that it was the minimum number that would have made the company eligible. There is no evidence that the company had done an exact calculation based on the amount of work it had. On the face of the document, it appears that the number put in this blank had once been different and had been later whited out, and replaced by the number 10, by whom it is not known. The evidence, as a whole, is more consistent with the conclusion that the company's entry into the work sharing program was just one more effort to halt a decline. It is not as consistent with a finding that it planned via work sharing to absorb the exact amount of people it had lost by the time of the layoffs and July quits, and that thus no reductions in staff were necessary. There had been verbal discussions, before both the formal bidding process and the implementation of worksharing, that had left the company very optimistic about getting the contract. This led to the stockpiling which was partly responsible for the excess inventory.

32. The union also points to other aspects of the layoff which it alleges were not in accord with normal business practices. It submitted a memo dated May 2, 1990 that refers to the employer's practice of giving notice in writing to each employee whose employment is to be terminated. The union says that the different method of doing the March layoffs, i.e. with one to two days notice and the option of pay or work periods of 1 week for 1 year or 2 weeks for 1-3 years service shows that the abrupt July layoff was meant to send a message to the employees about unionization. The employer responds to this by saying that the layoffs were done with no notice because they were to be temporary and were not intended as termination of the employees' employment, in contrast to the March lay-offs at which point recall was not contemplated.

33. Another unusual aspect of the July layoffs alleged to be indicative of anti-union motivation was that none of the foremen were consulted, nor was the Personnel Manager, as they had been in March and were in September, when further layoffs took place. Cross' reason for not involving either foreman in the layoffs was, as explained above, that he wanted to distance the layoffs from those managerial people who had knowledge of the union campaign. Somers said he was shocked and angry that Cross had not consulted him. He had never been given any prior indication that if layoffs occurred, it would be Cassels, Wilson, Watson and Caliph from his department. Somers said he asked Cross on July 5 why the grievors had been laid off, and whether it had anything to do with the union. Cross' response was, "No, what makes you think that?" Cross said that he had been keeping Somers optimistic about the prospects for more work and that would explain any surprise shown by him.

34. The union sought to further attack the credibility of the need for the layoff on the basis that the company could have manufactured certain tanks which it had been buying from outside. Alex Cassels had suggested this to Cross, who had agreed to an experiment. A later costing showed to Cross' satisfaction that they were more expensive to do in-house than to buy. He also thought that fabricating the tanks in-house would not have created more than two weeks work for one person. In any event, Mirza, the Chief Engineer had opposed this idea from the beginning because the company would have needed x-ray and stress testing facilities, and thought that they could buy the tanks more cheaply than they could make them. Cassels did not think that the costing done was completely accurate and felt they could have been done on downtime, thus minimizing labour cost. His foreman, Somers, had said that they had done the tanks well within the time allowed. However, Cassels agreed that the source of the problem in getting acceptance of the idea was the engineering department's negative view of the viability of the project. Whether the company's view was right or wrong, there was nothing in this which appeared to be related to the union, and it was quite peripheral to the question of what work remained.

The Classification Issue

35. The company's rationale is based on a layoff by classification, using the criteria of skills needed and seniority. One of the union's attacks on this was their argument that the classifications were manipulated to justify the layoff of Cassels. The union produced a document called "Seniority Report", on which all employees are listed in order of seniority without mention of classification. Employees junior to the grievors on this list were retained after the July 5 layoff. The company explains this on the basis that the junior employees retained were not in the classifications in which the redundancies due to lack of work had occurred. In dealing with this question, we are faced with the fact that there had been no published classifications prior to this dispute. The company entered a document into evidence called "Job Classification by Seniority" which was prepared by the company some time after these hearings started. On it, two employees, Cassels and Persaud are listed under the classification "Layout/Cutting". Cassels was the more junior of the two. Appended to the application for the Work Sharing Program is a list of all the employees with their classifications indicated. This list was prepared before the organizing campaign or layoffs, as it was submitted with the application for work sharing program in early June. Thus it is not subject to the same argument of manipulation. Its classifications are also generally consistent with the classifications set out on the list of employees filed in the certification application. On the work sharing and certification lists, Cassels is listed as a layout fitter, while the other grievors from Thermocoil, as well as Persaud and Freeman, are listed as welders. As well, John Flanagan who was said by a number of witnesses to have been doing the same work as Cassels, is classified as welder on the work sharing and certification lists and fabrication welder on the later company list.

36. Cross rejected the union's suggestions to him in cross-examination that the classifications did not exist prior to the dispute, but maintained simply that he did not feel it necessary to publish classifications to the employees. There was also a considerable amount of transfer back and forth between departments and classifications as needed, so that an individual employee would not always be doing work in a single classification.

37. Somers, the relevant foreman, said that the classifications were generally welders and pipefitters. The welder classification could be broken into sub-categories of pressure welders, fabricator welders, and fabricator/layout without ticket. In his estimation Cassels and Flanagan would be fabricator welders. Wilson and Watson were pressure welders, because they had "tickets", being formal qualifications to do pressure welding. However, Somers said that when Cassels first transferred into his department, he was doing layout practically full-time as he was good at it, and they were busy. As time went on, there was not as much layout to be done, and by the spring of 1990 or so he was spending a major part of his time on fabrication.

38. Cassels said that in the last six months of his employment there was some reference to fabrication as a classification, although previously welder was the only classification he knew of. He had never heard of Layout/cutter as a classification before the hearings. Somers and Wilson testified that all fabricators did layout, although Somers clarified that prior to July 5, it was done by Cassels in particular.

39. If one makes a composite list of all the welders by seniority, thus removing the possibility of manipulation of classifications, the list would look like this:

Somers June 8, 1983 Dykie May 21, 1985 Persaud Oct. 14, 1986 Cassels Feb. 8, 1988 Milligan June 8, 1988 Wilson Jan. 11, 1989 Flanagan Jan. 23, 1989 Watson Feb. 13, 1989 Caliph March 6, 1989

If one puts Cassels with the fabrication welders, a sub-list could be made:

Dykie May 21, 1985 Cassels Feb. 8, 1988 Flanagan Jan. 23, 1989

40. Thus, Flanagan and Milligan are the welders junior to Cassels kept in preference to Cassels. Flanagan is also junior to Wilson. The evidence about Milligan was that he was one of the most senior pressure welders, and thus necessary to retain to leave enough pressure welders in the shop. The company's preference to have welders qualified to do the pressure welding necessary in the manufacture of boilers is quite plausible on its face. There was no evidence to suggest it was unjustified. Flanagan is then the only person with similar qualifications doing similar work and junior to Cassels who was not laid off.

41. The union also challenges the disproportionate layoff in the welding group, which coincides with those most active in the union, and spares those who opposed the union. Somers said the reason no pipefitters were laid off while those fabricators were was that they had two boilers in the shop which still needed fitting for which the fabricating had been done. These boilers left the shop in a finished condition in August or September. Moreover, more welders could afford to be laid off than fitters because there were more welders to begin with. As well, welders traditionally stockpile, and in this case had been specifically stockpiling towards the anticipated Cangel contract. There were no layoffs of electricians, but there were resignations.

Bumping

42. The grievors all had skills other than welding and could have been used in other departments, had the company decided to do bumping into other classifications. There is no evidence that the company considered that option before the July 5 layoffs. The union alleges that the failure to transfer the grievors into railroad, service or labouring jobs instead of laying them off shows discrimination. The company offered various reasons why certain grievors would not have been suitable in other classifications, which the union disputes. We do not propose to detail those, as we are not persuaded this option was considered at the time of the July layoff.

43. The union argues that Mr. Chapman, a pipefitter trainee, who was present during parts of the hearings in support of the petition in opposition to the certification, was not an exceptional employee and that he should not have been retained in preference to the union supporters who were laid off. The company says Chapman was retained because he was a good tuber in the Thermocoil division before the layoff and they needed a tuber. Also he was a lower paid worker and thus less costly to retain. Since the layoff Chapman has done tubing on whatever boilers have been done although there was not enough work after the layoff to keep him busy a hundred percent of the time on tubing. We have considered this as part of the bumping issue as there was no evidence that Chapman was identified to the company as an opponent of the union, or would reasonably be inferred to have been, prior to the July layoffs.

44. We are not prepared to find that the fact that the company did not bump people out of other classifications was indicative of anti-union animus. There was no obligation on the company to bump, and they did not consider it at the point of deciding on the July 5 layoffs. The evidence does not warrant any inference from these facts since there was no evidence of any previous practice to bump on layoff.

The Individuals Chosen for Layoff in Thermocoil

(a) Farzan Caliph

45. Farzan Caliph was involved in fabricating components and pressure welding. He had applied himself, had good evaluations and gotten "tickets". However, he was among those involved in making components for the lost contract. Mirza testified that since he was the most junior of the pressure welders, and there was not much pressure welding work to be done, he was laid off.

(b) Alex Cassels

46. Mirza explained that Cassels was good at layout and cutting, but had no pressure welding qualifications. He was also involved in fabricating components for the lost Cangel contract. The company had three people who could lay out who were being used for non-pressure welding: Chris Persaud, John flanagan and Alex Cassels. Mirza testified that Somers had told him Flanagan was leaving shortly anyway and thus the choice was between Persaud and Cassels. Since Persaud had been there much longer and had pressure welding qualifications, he was chosen to stay. It was the company's preference to keep people who had trade qualifications for welding. It was not disputed that Cassels was not interested in pressure welding and had no pressure weldings qualifications.

47. Prior to his employment at Thermogenics, Cassels' had a diverse and meritorious work history, which it is unnecessary to detail here. At Thermogenics, he started in the railroad department and later moved to Thermocoil. In Thermocoil, he had done all the kinds of work available in the department, as needed, with the exception of tubing, pressure welding and electrical work. He received substantial wage increases and was promoted to a charge hand position for six months. The union asked the company witnesses why such a record did not save him from layoff. Although Cassels had heard of no problems with his charge hand responsibilities previously, company witnesses said they were not happy with his performance in his supervisory role. Mirza also testified that although he was a good worker when working by himself, Cassels had a short temper and that the company had received complaints about him from another worker and the railroad supervisor.

48. Flanagan, like Cassels, had worked as a welder and a fabricator but not a pressure welder since he never held a welding ticket. He worked full-time (except for work sharing) up to July 17 when he quit. Flanagan testified that he had not told anybody before July 12 that he was leaving, not having secured a job to go to until then. Flanagan said he had had no discussions with Somers, Casey, Mirza or Jeanes on this subject at all, and that he did not give notice. However, he said in cross-examination that at least for the month of July, and probably when work sharing started, he had put his mind to alternatives to Thermogenics, and that it was possible he had told others he was looking around for other work. The company maintains that if Flanagan had not said he was leaving, he would also have been laid off on July 5.

49. It was asserted by the union that Larry Freeman, a ticketed welder who was said to have left on July 17 like flanagan, was retained improperly in preference to the more senior Cassels. The oral evidence about his departure was vague, but was to the effect that he had left before the layoffs. The documentary evidence shows a record of a weld done by him as late as May 30. There is also a notation that he is on vacation until July 3 on the work sharing list gathered in early June. The work sharing amendment sheet done on July 17 indicates him as a quit on June 17 on one sheet and July 17 on another. Other evidence indicated that some other references to June on that sheet were intended to be July. However, the list of employees agreed to by the union as of July 4 does not contain Freeman's name. Nor does it appear on the seniority list the union introduced into evidence. There is no evidence of his being at work at the time of the layoff decision. The evidence of the discussion preceding the layoff did not mention Freeman's name. We have concluded that Freeman was probably not an active employee at the time of the July 5 layoff, and therefore is not to be considered a junior employee kept on after the layoff in preference to Cassels.

50. A reasonable inference from the evidence about Freeman is that he had resigned prior to vacation and then finished his employment on vacation. If this is the case, it also bears a striking resemblance to Mirza's evidence about why Flanagan was not laid off. Firstly, he said he was not too sure of his last name. Secondly, he said that he had been informed that he had quit before he went on vacation, and that he would have been laid off as well if he had not thought he was leaving anyway.

51. It was part of the union's case in relation to Cassels that he had been an activist from the beginning of his employment and that this was part of the reason why he was selected for layoff. For instance, in September of 1989 he sponsored a successful petition addressed to management to get a joint health and safety committee under section 8(5) of the Occupational Health and Safety Act. As well, part of Cassels' personnel file is a letter dated October 11, 1989 to Cross from Jeanes. It was written for the purpose of informing Cross of the extent of Cassels' dissatisfaction over his removal from chargehand duties and the dollar an hour that had gone with it. The union says that because this letter contains the statement that Cassels had mentioned that a collective agreement would force the company to continue such a dollar premium, that the company knew from that point onward that Cassels was a union supporter and that it is not just his participation in the organizing campaign that gave the company reason to fire him out of anti-union motivation. As well the letter concludes with the statement that Cassels could become more trouble than his skills are worth and the suggestion that if he became really obnoxious Cross could fire him for cause. Cross swore he had no memory of this letter in July, 1990 when the layoff decision was made.

52. Some consideration was given to returning Cassels to railroad in September, around the time of the second wave of layoffs, but Casey thought those he retained, and some he had laid off already, were better for the work he had left to do. Casey thought Cassels had only built pumps during his time in railroad, for which he had little need, and that his back disability limited his capacity to lift. He was not aware Cassels had built barcos (steam connectors), a skill he did need. Since Cassels' layoff, fabricators and one pipefitter do cutting as necessary.

(c) Roy Watson

53. Mirza said Watson was laid off because he was involved in the manufacture of the coils that had been stockpiled for the Cangel contract and were no longer necessary. He also thought Watson was primarily involved in coil winding as Wilson's partner around the time of the layoff, and that this skill was not needed to the extent he should be kept on. Mirza said he did his work fairly well, and that it was a temporary layoff. In 1989 he had moved between welding and coil-winding and also went out on service. Wilson testified that at the time of the layoff Watson was welding, not coil winding.

54. After Watson's layoff he returned to the plant in July to pick up his tools. He met Somers, his foreman, and asked if his layoff was because of his union activity. Somers replied "I don't know, what do you think?" Watson smiled and said he would see Somers in a couple of weeks. The union offers this as evidence of anti-union animus. We find it equivocal and insufficient to warrant the inference suggested.

(d) Kevin Wilson

55. Mirza explained Wilson's layoff in much the same terms as Watson's, saying that he too did fairly good work, and was only temporarily laid off because he had been involved in the manufacture of parts that were no longer needed because of the loss of the Cangel contract. Wilson was recalled on September 15, 1990 when the company began building coils again because Mirza and Somers thought he was the best one for the work for which he was recalled. Since then, he has been coilwinding, fitting and fabricating.

56. Wilson thought he had a virtual monopoly on coilwinding because he was doing it "more than efficiently". Therefore his layoff was somewhat of a surprise since he thought the company always needed someone to do coilwinding. Also, shortly before the layoff, the company had asked him to get another pressure welding ticket and he had passed the test successfully. At the time of the layoff he was working on coilwinding with Milligan, not Watson as Mirza thought, and had two kinds of pressure welding tickets. He had also performed all the other jobs in Thermocoil except stick pressure welding.

Decision on the July 5 layoffs

57. The Board's jurisprudence is clear that the onus is on the employer to demonstrate two things, on the balance of probabilities: that the reasons given for the impugned activity are the only reasons, and that these reasons are not tainted by any anti-union motive: The Barrie Examiner, [1975] OLRB Rep. Oct. 745. The process of deciding whether the Board is satisfied of these two things involves assessing all the evidence, including the credibility of the witnesses, and the extent to which the events accord with what is reasonably probable in all the circumstances.

58. The employer maintains that the July 5 layoffs and the choice of the individuals involved was entirely free of anti-union animus. There are several factors in the evidence which support that proposition. One is that the economic decline which the company had faced for months, and which the loss of the Cangel contract aggravated, was serious and unchallenged. That some contraction of the business was necessary after that loss was not seriously challenged, and to the extent that it was, we find the company's defense of the general proposition that the loss of the Cangel contract required some downsizing response quite persuasive. Secondly, the demeanour of the decision makers, Cross and Mirza, in giving evidence was generally credible. The inconsistencies in their evidence will be dealt with below.

59. Thirdly, if one chose to do four layoffs in Thermocoil, as a response to the loss of the Cangel contract, the outcome based on the company's rationale is not substantially different from that which pertains if one does them by seniority (the union's preferred method) among those working on the stockpiled coils (if one accepts as we have that the decision not to bump does not necessarily imply anti-union animus). It leaves the question of the retention of Milligan and Flanagan in preference to Cassels, and/or Wilson. Milligan's retention was justified on the basis of his seniority as a ticketed welder, and this justification was not challenged. We will deal with the choice of Flanagan below. Caliph, Watson and Wilson are among the four most junior welders, however one looks at welder seniority. The rationale to choose those who were working on the parts rendered surplus by the loss of the Cangel contract was plausible. Seniority played a part, in that Cassels was chosen for layoff rather than Persaud, for example, because they did similar work and Persaud was more senior.

60. Further, the layoffs in railroad were on the basis of seniority and there is little evidence to link either Sanders or Dicks, the two individuals chosen, with the union. (Indeed, the union's case included the proposition that Dicks was recalled sooner than the others because he was less involved in the union than the other grievors.)

61. There are also several factors tending in the other direction - that the decision to lay-off these individuals was tainted by anti-union animus. First and foremost is timing. The direction to consider lay-offs was communicated by Kluey to Cross at the height of the card-signing campaign when the company had known about the adverse decision on the Cangel contract for over a week. Even if Kluey and Cross did not know of the loss soon after June 18, when the sales manager heard, Cross' testimony was clear that he and Kluey had discussed it early in the week of June 25 and he learned they were "in trouble" on the contract at that time. Yet he said he was still hopeful on July 27, before receiving Kluey's note, that there would be enough work to get them through the summer without layoffs. We have no information about what motivated Kluey to suggest layoffs rather than some other response to the problem caused by the loss of the Cangel contract. The change in Cross' level of hope is coincident not only with Kluey's note but with the increasing union activity in the shop.

62. It is clear Cross heard of Watson's activity about the same time as Kluey sent him the note, but Cross puts the time that Somers informed him of Watson's talking union at June25 or 26, somewhat earlier than Somers does. Somers puts his conversation with Cross as on the Friday, which would have been June 29, or the beginning of the following week - between the time of Kluey's note and the choice of the individuals to be laid off and the period in which Cross' hopes for a summer without layoffs evaporated. Another inconsistency in the evidence is that Somers said that Cross' reaction was shocked and that he was instructed to tell no one while Cross said that his reaction was neutral - that he had heard this kind of rumour before. Whether or not anything can be inferred from Somers' perception of Cross' reaction, it is clear that after Somers further informed him there was a full-fledged union campaign on, which was probably about July 9, the company's reaction was not neutral. Senior management called in the worksharing representatives to find out what the problem was, and had them offer the remaining employees alternatives for future layoffs, including two (extension of worksharing and extended vacation) which were not considered viable 5 days earlier for the impugned layoffs. They then attended meetings with the employees, after the letters which are discussed below were put out. The letters make it clear that the company hoped the employees would not unionize. A further inconsistency is that on direct examination, Cross swore he knew nothing of the union activity of the grievors other than Watson until the hearings; on cross-examination he acknowledged Somers had given him eight or ten names of active individuals the week following the layoffs and that the other grievors could well have been among them.

63. Central to the company's case is that the decision on who to layoff was distanced from the information about union activity by the device of giving the decision making to someone who did not know about the union activity, namely Mirza. Thus the union was very much on Cross' mind at the time the layoff decisions were made. Cross' evidence was very clear that Mirza had chosen the individuals to layoff in Thermocoil. Mirza's evidence, although generally corroborative of Cross, differed in a significant way on this crucial point. He said that the decisions were joint, and that it was a process of discussion between him and Cross. When he was asked by union counsel whether Cross had suggested names to be laid off, he did not answer yes or no. Rather, he reiterated that they had looked at the names of employees and decided who to let go. This leaves the possibility that Cross structured the discussion in such a way as to ensure that at least some of the grievors were laid off.

64. Linked with the problem of whether the lay-off decision making was related to the news of union activity is the other major factor which tends to the conclusion that the decision making was at least tainted, i.e. the congruence between those picked in Thermocoil and the major actors in the union campaign. Even if the only name known to Cross was Watson's, it is at least a major coincidence that the people chosen included the major contact with the union, Watson, the man incorrectly thought to be his working partner, Wilson, and Cassels, someone known to be vocal and (we infer) a likely union supporter, as well as Caliph who was also active in promoting the union. There was uncontradicted evidence that the campaign was well-known in the shop prior to the layoffs, and that each of the four laid off in Thermocoil had been visible in one way or another in the campaign.

65. There was no attempt to link the layoffs in railroad to the loss of the Cangel contract. Why were layoffs beyond those implemented to deal with the parts made redundant by the loss of the Cangel contract necessary two weeks after the commencement of worksharing? The company says that things were not getting better there either. There was no attempt made to insulate this decision from Cross' knowledge of union activity.

66. The contrast in the method of the July layoffs to those done in March also tends to weaken the company's case. The March ones had been implemented with notice, and the full involvement of Jeanes and the foremen concerned. However, the company's explanation, that these were temporary, is plausible, and thus this is not a particularly weighty factor.

67. We have carefully weighed these competing considerations and have come to the conclusions explained below. The evidence that the company considered it necessary to reduce inventory after the loss of the Cangel contract was credible, and uncontradicted. The union's evidence corroborated the employer's expectations about the contract to some extent, as it was clear that Reisenfeld, one of Cangel's negotiators, had expected the Thermogenics bid to get more serious consideration than it did. We are persuaded, on the balance of probabilities, that some business downsizing or contraction as a result of the loss of the Cangel contract was justified for valid business reasons, and not contrived to chill the union campaign.

68. The manner of effecting the contraction is more difficult to deal with. Laying off people in the area doing the work is not unsound, absent some other contractual or other obligation or practice, of which there was no evidence. It is a method that had been used earlier, in March, albeit on a permanent rather than temporary basis. However, other methods had also been used before; work sharing had recently been implemented and could have been extended. There is nothing illogical in Cross' view that fewer workers would be more efficient in the long run and that there was a risk of losing people who did not want to take the further cut in pay that a 3-day work week would have entailed. However, there is other evidence that renders this choice at this particular juncture not as straightforward as it otherwise might be. Jeanes' testimony was (shortly after saying he never pursued the possibility of extending worksharing with Cross) that Cross was well aware of the possibility of increasing hours on worksharing as a strategy to avoid layoffs, but that Cross had said that "it was necessary to lay certain individuals off." Although this statement is equivocal, and could mean simply that layoffs were the company's choice, or that Kluey had ordered layoffs, it could also mean that it was important to the company that specific people had to be laid off. Some were already on a three-day work week in railroad. More importantly, five days after the layoffs, the company offered all the remaining employees the opportunity to express their preference for the manner of future layoffs: Layoff by seniority, extension of worksharing, or extended (presumably unpaid) vacation. Although the company made it clear to MacDonald that they did not necessarily intend to be bound by the results of this poll, it certainly leaves the impression that these were all viable options for those remaining, in contrast to those who had just been laid off. The note communicating Kluey's decision that layoffs should be considered (and not mentioning any other options) was delivered at the height of the card-signing activity in the plant, although the loss of the contract had been known by sales for over a week, and Cross and Kluey had discussed it before the card signing had started.

69. The logic of concentrating on people who had been building the parts rendered surplus by the loss of the Cangel contract in the light of the lack of any obligation to bump is not at first blush problematic. The fact that all of the grievors had worked on those parts was not contradicted, although Mirza was apparently confused about who was doing what part of the coil process directly before the layoff. However, it is a singular fact that Mirza's mistake was about the one person whose name was known to be active for the union.

70. We have concluded that Mirza and Cross were also mistaken about Flanagan's departure having been announced. Flanagan's testimony remains basically uncontradicted that he had not told anyone he was leaving at the time the layoff decision was made. Given the possible confusion with Freeman, this is not necessarily anything but a simple mistake. Nonetheless, it is another mistake which assists the result of a layoff of an active union supporter. The company says that Flanagan would have been laid off as well if they hadn't thought he was leaving soon. However, the fact that he remained at work almost two more weeks is not consistent with the company's assertion that all these decisions were an urgently necessary scramble to cut costs and reduce inventory.

71. Turning to the layoffs in railroad, it is difficult to see how anti-union animus could be part of the motivation for the selection of the individuals laid off in that department, given the paucity of evidence of union activity on their part. However, the timing of the layoffs in railroad is very troublesome. There was no attempt made to explain the railroad layoffs by any particular event since the beginning of worksharing. Reference was initially made to cuts in VIA service announced in and around that time". On cross-examination, Cross did not dispute that they were actually announced in October, 1989, and agreed they were for implementation in January, 1990, a date well before the March layoffs and the start of worksharing. The decision was justified generally on the basis that the railroad business was seasonal and that things were not getting better in railroad either. However, no attempt was made to explain what had changed between the implementation of worksharing and the layoffs which would explain why worksharing was not adequate to deal with the problem. As well, some were already on a three-day work week in railroad, and there was no explanation of why further extension of that phenomenon was not viable in a department where skills were apparently more interchangeable than in Thermocoil.

72. Thus we are left with a plausible case by the company that there were valid business reasons for the decisions taken, juxtaposed with a large number of factors, set out above, which detract from the proposition that they did not co-exist with anti-union animus. When we consider all of the evidence in light of the onus of proof, we find ourselves unpersuaded that the valid business reasons offered were untainted by anti-union animus as important inconsistencies in the company's case remain. It appears more probable than not that the manner of effecting the layoffs and the choice of the people to be laid off in Thermocoil as well as the timing of the layoffs in railroad were tainted by an attempt to discourage the ongoing unionization campaign. The union did not dispute that the additional layoffs in September were necessary. Given the worsening situation, we have concluded that the railroad layoffs would have taken place by September in any event, even without the unionization campaign, and that is reflected in the remedy set out below as well.

July 10-12. Meetings and Company Communications

73. The week following the layoffs was full of activity and conversation about the union organizing campaign and whether or not the layoffs were related to it, giving Somers reason to tell Cross that the layoffs were adding fuel to the union fire. Some employees thought Cassels would have been one of the last laid-off as he had earlier been a charge hand. Many employees were surprised at the layoffs and concerned about their meaning for the fortunes of the company, since work sharing had just begun.

74. On July 10, Cross, Kluey and the company's Controller, Harrison met with the employee work sharing representatives Chang and McDonald. By this time Somers knew of the extent of the union drive and had informed Cross. Management asked the two representatives if they thought that relations with employees had deteriorated and they answered that they thought more communication about the details of the business downturn would be appreciated. Cross said the management people said nothing about the company's position about the union, because they were being cautious. They told the employee representatives that the loss of the Canada Packers (Cangel) contract was a contributing factor to the layoffs.

75. Cross and Kluey also asked MacDonald and Chang, in their capacity as work sharing representatives, to present options to the employees concerning further layoffs: layoff by seniority, a three-day work week, or a two-month vacation. Later the same day the two employee representatives met with the employees to put the options to them. During the course of the meeting, MacDonald told the employees that he had spoken to Cross and Kluey. A discussion about the pros and cons of the options took place. Dan Doyle, a lead hand, testified that, in response to a question about what might happen after the union came in, MacDonald said "We're on work share now, what do you think will have to happen?" Doyle himself told the meeting that maybe the company would have to close its doors, and then added that he did not know what they would have to do. flanagan recalls that either MacDonald or Doyle said that Kluey would probably close the plant if the union came in. A show of hands at the end of the meeting established that most people wanted layoffs by seniority. This result was conveyed back to Cross and Kluey through Somers.

76. Dan Doyle testified that the possibility of a petition's being circulated to oppose certification had been raised at this meeting in that he had said that there must be some way to rescind the cards. Later that day, an employee other than MacDonald approached Doyle and said that if Doyle would give "it" to him, (we infer referring to a petition to oppose the union) he would collect signatures.

77. On July 11, 1990 President Kluey arranged to have a memo posted which the union alleges amounted to improper interference with the rights of the union and a violation of the Act. The text of that memo is as follows:

In February 1988, the Ontario Liberal Government and specifically, the MINISTRY OF COMMERCIAL AND CONSUMERS RELATIONS, headed by Mr. Bill Wrye - Minister of M.C.C.R., after being heavily lobbied by the MIURA BOILER CO. OF JAPAN, arbitrarily changed the "boiler regulations" in Ontario to accommodate the MIURA boiler as a "coiled boiler design".

Miura Boiler Co. implied to many of the Provincial and local Brantford politicians that if the regulation was changed, Miura would then build a manufacturing plant in Brantford (assisted by government grants) which could employ up to 200 Canadian workers within three (3) years.

Thirty months have now passed, MIURA has constructed a plant using many robotics and automatic equipment.

MIURA does not manufacture a coiled boiler nor have they employed many Canadian workers.

A recent source of information indicated MIURA currently employees approximately a total of 35 persons of which less than 12 are Canadian.

The MIURA boiler is a vertical straight tube boiler, simple in concept and cheap to build versus a coiled boiler such as the THERMOCOIL.

MIURA have taken a number of boiler projects from our company over the past 30 months on lower price.

The cost of borrowing money in Japan is approximately 3.5% versus 15% in Canada.

The management THERMOGENICS have continued, over the past 30 months, to attempt to have this regulation rescinded or changed. We have kept our local M.P.P., Mr. Charles Beer, constantly aware of our situation, but to little avail.

There is currently, in the fourth draft stage, a "potential change in the regulations", which if passed by the government, will reclassify the MIURA boiler from a "coiled tube type" to a new category, "low volume boiler" and in addition, limit this type of boiler installation to 200 H.P. with a maximum installation of 3 X 200 H.P.

Should this regulation change occur in its present wording (hopefully by the end of 1990), we will at least attempt to maintain our larger sized boilers above 200 H.P. in the Ontario market.

Thermogenics is certainly prepared to consider the design and engineering of a similar straight tube boiler, however, until the regulation change is in force, we are not prepared to expend the research and development costs involved.

As you can see, with

• high interest costs,

• free trade,

• Boiler Regulation change,

• off shore, unfair competition,

• MEECH LAKE issue,

and currently the pending G.S.T. implementation, we have incurred a down trend in companies purchasing coiled boilers.

For over 30 months we have pleaded, begged, written and had news releases and threatened this government to change this 1988 regulations as being unfair.

Should the employees of this company wish to direct individual personal letters to any of the politicians involved, we will be happy to supply the correct mailing address of those involved.

Should you wish the company to prepare a letter on your behalf and signed by your representatives, please prepare this letter and give to my attention for typing and proof reading.

We are concerned as you over future loss of jobs and will endeavour to bring this situation to a conclusion at the earliest possible point in time.

I will await any directions from your shop representatives.

78. The same allegation is made in reference to a letter issued on the same date by Kluey, and distributed with employees' paycheques the following day, July 12. It reads as follows:

It has come to my attention that a union is being considered by some employees. A few of you have asked management questions about unionization. There are a number of things each of you may wish to consider. You should know that the decision to unionize or not to do so is yours to make, not ours. The law prohibits anyone from coercing or pressuring you in any way with respect to this very serious question. Therefore, although we are very interested in this matter, we do not intend to interfere in your free decision-making. Similarly, we presume that no union supporter will pressure you either.

Unionizing is a serious step. It changes the basis upon which employee relations are conducted at companies, because you give up your rights to deal with us as individuals. Instead, the union takes over as your agent. They decide what is best for you and they talk to management. The individual relationship is substantially reduced.

Of course, being a union member involves significant responsibilities. They all have thick constitutions which govern members working lives. For example, you can be charged, tried and convicted for conduct unbecoming a member. You can be fined by the union or removed from employment if you work in a union shop company. Therefore, every person should review the union constitution and know its rules and regulations and bylaws.

In fact, if a union really is interested in you, they would certainly show you their documents before you even signed up. Someone acting in your best interests would want you to see the fine print first before you committed yourself.

With respect to signing up, employees are often told that it is for the purpose of getting a free vote. Not so. In Ontario, if more than 55% of those in the proper bargaining group sign, then certification is automatic. No choice. And with certification, a union can insist that all employees be required in the collective agreement to pay the equivalent of union dues. No one will avoid paying.

So you may ask why they want your money? Is it to keep them in business - or you? No union can stop a downturn in the economy. I explained some of that to you in yesterday's memo. No union can stop aggressive competition. No union can stop layoffs.

Unions can promise a lot, but what will they bring you in return for your dues payments. Our company is already a very good place to work. Our rates are competitive, our benefits are fine. We don't face the labour relations problems some of our competitors do.

If there are problems with labour laws, the employment standard branch, the human rights commission, the occupational health and safety people and the worker's compensation representatives already represent employee interests. And I like to think we do too.

So when you are considering whether or not you really need a union to deal with us, ask yourself whether they are doing this for you or just for them.

I already think this is a pretty nice place to work, but the final decision is yours.

Cross said the memo was in response to the request of the work sharing representatives on July 10 and that the letter was drafted by counsel.

79. On July 12, apparently after the letters from Kluey were distributed, there were two meetings of employees. The first was described by Somers as a meeting about the union, which he allowed to go on for 15 to 20 minutes "to get it all out of their system". Somers set it up, then walked away and afterwards asked the men to forget about it and go back to work. MacDonald spoke, saying they would have to pay money out of their own pockets to the union. He also mentioned that licensed union trades people might take the jobs of people without such qualifications.

80. The second meeting was later the same day with Cross and Kluey. People wanted to discuss the union with them, so Somers approached Cross to request it. All the employees were told it was not mandatory to go, they were paid until quitting time whether they came or not, and they could go home early if they did not want to go. Cross consulted counsel before the meeting. The tough economic times were discussed, but neither the company's financial position itself nor the company's position on the union formed part of the discussion.

81. Doyle and MacDonald went to the second meeting wanting to ask Cross and Kluey how to stop the union, but the meeting took another turn, dealing with the economic downturn instead. Doyle asked the question, "How will we know if we're certified?", to which Cross replied that the form would be posted. This was the last work day before the green sheets were posted on July 16, since Friday, July 13 was a work sharing day.

82. The union also alleged that the company's posting of certain newspaper clippings relating to the recession and bankruptcies were further in violation of the Act and not a bona fide exercise of free speech on behalf of the employer. Articles about bankruptcies were posted by the company for approximately two to three weeks in response to the request of the employees' representative on July 10 for better communication from the company. Much of the same information had been out to the plant in clippings from time to time over the past two years.

Decision on Company Communications

83. Under section 65 [formerly section 64] of the Act the employer's right to free speech is protected as long as its communications do not amount to coercion, intimidation, threats, promises or undue influence as the employer is prohibited from interfering in the formation or selection of a trade union. Do these communications cross the line?

84. As the Board has noted in many cases, a mere expression of preference to remain nonunion will not violate section 65 of the Act, but any suggestion that unionization will be accompanied by loss of jobs will. See, among others, Cambridge Canadian Foods Inc., [1987] OLRB Rep. March 319; Rainscreen Metal Systems Incorporated, [1989] OLRB Rep. May 482; and Vogue Brassiere, [1983] OLRB Rep. Oct. 1737, and the cases cited therein. In Cambridge Canadian, it was found that a letter implying that a previous commitment to employees in the area of job security might not hold if the employees chose to be unionized and that the result of unionization might be diminished job security as a result of loss of business violated the Act. In dealing with the employer's argument that the message was simply factual and not a threat, the Board referred to the following passage from Seven Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87.

…..In assessing employer conduct the Board is obliged to take into account the responsive nature of the relationship of employees with their employer. Predictions of what the future holds may constitute threats or promises, if it is in the power of the employer to make the predictions come true and the employees perceive in their employer a willingness to exercise that power in response to the success of failure of their attempt at unionization.

The above cases make it clear that the Board will evaluate letters, including skillfully drafted ones, in light of the entire context. In Seven Up/Pure Spring Ottawa, the Board observed at paragraph 28 that the document must be assessed as a whole from the point of view of the typical employee receiving it and that the Board is obliged to determine the interpretation most likely to be placed on it in all the circumstances by the employees in question.

85. The first memo set out above, dealing with the competition faced by the employer, has certain features which deserve careful scrutiny in the context of section 65. It expresses direct concern over future loss of jobs in the middle of the certification campaign and makes reference to the apparently new use of the employees' representatives to sign letters lobbying for the company as a strategy to stop future job loss at a time when the employees were considering another kind of representation. See The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. Feb. 189. The memo came the day after the meeting in which the employees were asked to say what kind of layoff procedure they wanted for future layoffs and 6 days after the unexpected layoffs in the Thermocoil and railroad divisions. However, the role of the work sharing representatives and any change in the company's dealings with them was not addressed by the parties. We have concluded that this memo, by itself, would not violate the Act. It does not address the issue of the union and does not cross the line of employer free speech into undue influence.

86. However, the memo must be analyzed together with the second communication, the letter, since the latter explicitly refers the reader to the earlier memo by the line, "I explained some of that to you in yesterday's memo" in the sixth paragraph. We have concluded that the average employee would not have missed the suggestion being made by the two letters together that unionization would lead to adverse effects on their job security. The most crucial factor is that whether or not the employees are kept "in business" is linked directly to the union and its probable collection of dues. This is followed in the next paragraph with the statement that, "We don't face the labour relations problems some of our competitors do". In context, we have no doubt this was intended to be a reference to unionized competition. There is no doubt that the letter is anti-union, which in itself is not improper. It is also anti-union in a manner that could only be designed to scare employees off unionization, rather than persuade them it was not a good idea. For example, it stresses the possibility of trial, conviction, and fine for conduct unbecoming a member. A possibility, yes, but a very remote one in the Board's experience. This is the non-neutral context in which all the other statements in the letter and the memo it incorporates by reference must be read.

87. As well, the issue of layoffs was particularly sensitive both because of the layoffs the week before and the meeting scheduled the day before where the employees "voted" on their preference for the method of future layoffs. Some of the predicted adverse consequences linked with unionization in these letters are ones over which the employer would have no control, such as a downturn in the economy and aggressive competition. But its response to those factors, including layoffs and whether or not the employees "remain in business" are things over which the employer has and would be perceived to have substantial control. Although the point that collective bargaining is no guarantee of invulnerability from the vagaries of the economy is an unobjectionable point, this letter goes further. There is no direct threat in the letters, and they are subtly worded; nonetheless, the two letters in rapid succession, together with recent events, clearly delivered the message that the union and its potential consequent labour relations problems were linked to future job insecurity. This, we find, crosses the impermissible line into undue influence. We are well aware that the company's fortunes had declined, and might continue to do so, with or without the union. That very fact made the whole area of job security even more sensitive than it normally is. It is always highly sensitive. An employer mixes it with its anti-union communications at its peril, as the reported cases have shown.

88. In assessing the impact of these letters, we have considered Cross' testimony that they were written in response to the request for more information made by the work sharing representatives. This does not change the message delivered, even if the request had come independently from the employees. When it comes as a result of a meeting organized by management and in response to questions raised by them, this factor assists the respondent even less. We find the letters, in the circumstances of this case, to be in violation of section 65. It is unnecessary to decide if they are also violations of section 67 [formerly section 66] and 71 [formerly section 70] as alleged, as we are of the view that in the circumstances of this case, no remedy beyond that set out below would flow, even if the communications were also in breach of the other sections pleaded.

89. Turning to the meeting of July 12, we have concluded that it was not a "captive audience" meeting in the usual sense of the term and that the statements made at that meeting did not link the union to future job insecurity as the letters did. Reiterating the company's concerns about the economy likely underlined the linkage made in the letter hours before and may therefore be seen as part of the same sequence. However, we are not of the view that it warrants a finding of a further violation of the Act. We are of the same view regarding the clippings, particularly as the evidence that similar clippings had appeared from time to time for at least the last year was not contradicted.

90. In argument, company counsel made reference to the singular absence of any evidence from employees of any impact of the layoffs, meetings, letters, or conduct of the petitioners may have had on them. The Board has commented on a number of occasions that such evidence, when called, is of little assistance. See among others, Cambridge Canadian Foods Inc., supra, and Zest Furniture Industries, [1987] OLRB Rep. Feb. 299, and the cases cited therein. In any event we found the probable impact of the above facts sufficiently apparent from the evidence before us. We find no basis for the adverse inference we were invited to draw from the union's failure to call such evidence.

The Petition

91. On Monday, July 16, the green sheets were posted giving notice of the application for certification. On Tuesday, July 17, Wayne MacDonald, an apprentice electrician, circulated a petition in opposition to the certification. Both MacDonald and Dan Doyle, who assisted MacDonald in the petition process, had asked members of management before July 17 what could be done to stop the union. These members of management had given both employees the response that they could not talk about it.

92. On July 17th MacDonald wrote the heading on the petition in the electrical room; it took about two hours of company time to get the wording on the petition the way he wanted it to be. It reads as follows:

We the undersigned, employees of Thermogenics Inc. oppose the application of Certification of the trade union of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers.

At approximately 10:00 a.m., MacDonald took the document onto the shop floor to get signatures. He was not concerned about circulating the petition on company time. He said this was because he assumed he had the same rights as the union to solicit support on company time. Although he had not seen anyone sign for the union on company time, he had seen people approached by the union on company time.

93. MacDonald said he understood from reading the green sheets that the only signatures that counted were from people who had signed union cards. Doyle testified that one of the petitioners knew who had signed union cards and who had not, and that MacDonald had told him this

before he started getting the signatures. MacDonald testified he did not know who had signed union cards and who had not, and therefore asked each employee at his work station whether or not he had signed. If the answer was no, he did not ask for a signature on the petition. To those who said they had signed a card he said words to the effect that if they wanted to change their mind that was the time to do it. There was little discussion except questions on how much help a petition might be. He told them that if he got more than fifty per cent of the names he could possibly stop the union. He said some told him they would sign because they had seen others signing. He had a hard time understanding one employee the first time around and sought him out about 5 minutes later at which point the individual agreed to sign. He asked people to put their punch clock numbers, their signatures and their printed names on the petition. All the signatures were obtained in the space of one half hour. His estimates of how many people he had spoken to in that time varied from 18 on direct examination to 30 on cross-examination. He had not told people in advance of circulating the petition that he intended to do so.

94. Flanagan testified that MacDonald approached him the day before he left the company and said if the petition did not go through probably everyone would be looking for another job and that Flanagan might as well sign since it did not matter anymore because he was leaving. MacDonald denies saying that he told Flanagan to sign because he could be out of a job or anything about layoffs. He also denied the union's suggestion that he told people the company would close.

95. MacDonald's circulation of the petition came to a halt when the plant foreman Somers stopped him. MacDonald had no idea that Somers knew what he was doing until this point. Somers was responsible for supervising everyone on the floor that day, since the other foremen were absent. Somers testified that he saw MacDonald walking along with a paper and asked him what he was doing. MacDonald said it was personal; he was gathering information, and asked if he could leave the shop. Somers told him he could not collect names, but he could leave the shop. About 30 seconds later, Somers received a request from Doyle to leave for personal reasons. Doyle and MacDonald were at the back of the shop together at the same time. Although it is a breach of company rules to leave without permission, we are satisfied that the two men had permission to leave, and thus do not find that the union's allegation that they were allowed to leave the premises without permission has merit.

96. A list of addresses accompanied the petition filed with the Board. MacDonald took one-half of the addresses from a list obtained from Bill Jeanes, the Human Resources Manager, and obtained the other half by the method of going back to the employees after the list was retrieved by Jeanes, who had realized it was inadvisable to have given out the list. MacDonald gave no information to Jeanes about who had signed. Doyle said that it was his idea to get the list since he had had similar lists as a lead hand and for social occasions such as bowling. The evidence from MacDonald, Jeanes and Doyle about exactly how MacDonald got the list and who asked for it was conflicting. Doyle and MacDonald both said that the list was obtained before all the signatures were signed. However, in cross-examination, MacDonald said he had told some people that he had addresses from Jeanes before they signed. If the sequence he otherwise testified to is correct, this would be impossible. However, we are, in retrospect, not sure MacDonald understood the question put to him, and thus put no weight on this point. Given our findings below, it is unnecessary to resolve the other conflicts in this portion of the evidence, or to decide whether the giving of the list amounted to assistance or involvement by the company in the petition.

97. Although MacDonald said in direct examination that he had no help from anyone regarding the preparation of the petition, he did show it to Doyle before he circulated it, and it is clear that he at some point arranged with Doyle to get a ride to the Board to file it. Doyle is the pipefitters' lead hand, and acknowledged he would be seen as Somers' right hand man, but does not see himself as a foreman. He takes over when Somers is away, and is a friend of Somers both inside and outside of the plant.

98. The only copy made of the petition was made at the Board. MacDonald did not show the petition to anyone but those who signed it. After delivering the petition to the Board, MacDonald punched back in about 3:05 p.m. and did not speak to anyone about his absence. Doyle went back to the plant and offered the foreman Somers a ride home. Somers asked him where he had been and Doyle told him. Somers said he could not talk about it.

99. The Board has considered the issue of the voluntariness of petitions in a very large number of cases. The Board's approach was succinctly stated in Trim Trends Canada Limited, [1986] OLRB Rep. Mar. 364 at 365 as follows:

Before it will exercise its discretion to direct the taking of a representation vote on the basis of a statement of desire, however, the Board must be satisfied that when union members signed a statement indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer and result in reprisals.

The reason for this approach was set out in Chatham Concrete Forming, [1986] OLRB Rep. Apr. 426 (and the cases cited therein) as follows:

13. The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinions about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent, and to protect employees from possible employer reprisals the anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, ... Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.

14. The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. And I si it be thought that the identification of union supporters and opponents is neutral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities.

15. Having reviewed the evidence in its totality we are not left with the requisite assurance that employees signed the petition without fear for their job security or fear that whether or not they signed would come to the attention of management. A number of factors, taken together, lead us to the finding that it is more probable than not that a reasonable employee might well have signed precisely because of those fears.

16. There is no direct evidence of management involvement in the preparation and circulation of the petition. And, although much was made of it at the hearing, we do not find that the provision of the list of employees is particularly important in the circumstances of this case, given what preceded it. We cannot rely on the petition as a voluntary expression of the employees wishes because of the perception created, not by the list, but by the events which preceded the circulation of the petition and the manner in which it was circulated.

17. It must be remembered that the petition was circulated some twelve days after the layoffs which were widely discussed as connected with the union activity of some of those laid off. Within those twelve days, most employees had been at three significant meetings.

18. The first of these was to consult them about the possibility of future layoffs. The person who put the options to them, MacDonald, told them he had just met with Cross and Kluey. It was clear things were not good, and future layoffs were enough of a possibility to have the meeting to discuss how they might be implemented. MacDonald does not deny linking the union and worsening prospects; what he denies is specifically saying that the plant would close and saying anything about layoffs to Flanagan. For his part, Doyle, who we find to be closely associated with management, although not a foreman, made it clear that he told the meeting that the union would probably cause the plant to be closed. Even though he did not physically circulate the petition, it is clear that he was identified with the petition in the mind of at least the one employee who volunteered to help him circulate one. This is not surprising, since he raised the issue of a petition to rescind union cards in the meeting about options for future layoffs.

19. The second meeting was an impromptu meeting about the union on the shop floor at which no one spoke in favour of the union. Since the major vocal supporters of the union had been laid off the week earlier, this is also not surprising. This meeting was broken up by the foreman Somers, but led to the third meeting, later the same day.

20. In the third meeting, although Cross and Kluey refused to discuss the union, it is clear that the union campaign, and its juxtaposition to the worsening economic position of the company, were prominent in the minds of many employees. At least Doyle and MacDonald went to the meeting intending to discuss the union, only to have it take the route of discussion of the company's plight in hard economic times. Contributing to the atmosphere in which these meetings were held, of course, were the letters dealt with above, which clearly linked the company's financial position as set out in Kluey's posted memo with the choice facing employees on the union. It would be an understatement to say that the average employee, given the layoffs, together with the open question of whether they were related to union activity, the meetings, and the letters, would be wondering about job security. This is the context in which the circumstances of the circulation of the petition must be seen.

21. By the time the petition was circulated, then, concern for job security was extremely heightened, and many were unsure whether or not people had already lost jobs because of union activity. MacDonald had recently been the spokesperson in a meeting where he had informed the employees that he had had a private meeting with Cross and Kluey, and was concerned about the union's having a worsening effect on the company's economic position. He then approached the employees in turn and asked them if they had signed a union card. Some of them told him they were signing because they saw specific others signing, demonstrating the lack of confidentiality about who was signing among the employees. The sequence in which only those who said they had signed union cards were asked to sign was capable of identifying fully who had and who had not signed a card to neighbouring employees, as each employee was approached in turn at his work station.

22. Nor was confidentiality from management even remotely assured by the circumstances. Indeed, it is quite possible that others than MacDonald were aware of the presence of foreman Somers before he stopped MacDonald and would conclude that he was aware of what MacDonald was doing, and would be receiving the information gathered. It is clear from Somers' testimony that he knew what was going on. It is highly likely that other employees did not miss this fact. But whether or not they did, a reasonable employee, approached by the work sharing representative on company time, to be asked if he had signed a union card would likely fear that this information was not confidential from management. This is particularly true because of MacDonald's role in the meeting the previous week about the prospect of future layoffs. On answering yes, the employee was then asked to sign, with his clock number. There was no evidence that anyone refused. Clock numbers are normally used by employers to keep records on employees. No other reason for their presence on the petition was provided to the employees or to the Board. We find that it is highly probable that some employees signed out of fear that whether or not they signed would come to the attention of management and have potentially negative consequences for their jobs. Thus, we will not rely on the petition to cast doubt on the membership evidence filed by the respondent.

23. The union withdrew its challenges to the list filed by the employer, without prejudice to its original position. But for the petition, the union had enough membership support in the agreed-on bargaining unit to be automatically certified. Having decided that the petition is not a reliable indication of a voluntary change of heart, we will certify the union.

24. The applicant also pleaded section 8 and the particulars of the section 91 complaint in support of that. In view of our decision that the union has the requisite membership support for certification, it is unnecessary to consider the application under section 8.

The Promissory Notes Allegations

110. The union further alleges that the company has breached sections 3, 65, 67, 71, 81 [formerly section 79] and 82 [formerly section 80] of the Act, by offering and circulating promissory notes to employees who remained at work after the layoffs. The union did not give its consent to this proposal and the union alleges that this was not only in breach of the freeze provisions but was designed to encourage favouritism towards the employer by the remaining employees and to undermine support for the union amongst those employees, and was thus in breach of various other sections of the Act.

111. The company answers that it was in the habit of providing advances for various things. For instance, a tool allowance advance of up to $400.00 repayable at the rate of $20.00 per pay period, was available to full-time employees. Vacation pay advances were also given in cases of need.

112. Jeanes testified that during the period when the UIC money was slow coming in, he was receiving questions hourly about where the money was. He asked Cross if there was something that could be done about it. He suggested advances of $400 which was a bit less than 60% of what was owing from UIC. He saw it as parallel to tools and vacation pay advances. It included all people still on work share.

113. We accept the company's explanation and find they have discharged their onus on this

point under section 91, in regards to the allegations of breaches of sections other than section 81. It had been expected that the UIC money would have been in at the point that the advances were offered. The advances did not put the remaining employees in a favoured position relative to the unemployed individuals any further than the layoffs had done. The advances were aimed, we are persuaded, at making the situation with the Work Sharing Program closer to what had been the understanding of how it would work well before the union drive had started. Under section 81, we are not convinced that the company's action was inconsistent with "business as usual", in that from time to time advances were offered for various purposes. This portion of the complaint is dismissed.

O'Connor's discipline

114. The union further alleges that Shawn O'Connor was disciplined for discussing the trade union on company time while supporters of the petition were allowed to talk and move freely amongst other employees in the plant for the purposes of opposing the union.

115. On July 24 or 25, shortly after he had returned from vacation, O'Connor was warned by his foreman, Jim Casey about discussing the union on company time after the third or fourth complaint from other employees. Casey had gone to Jeanes complaining that O'Connor was holding up production in the plant. Jeanes and he then went to give O'Connor the warning together. Casey had spoken to O'Connor informally before this point; O'Connor acknowledged in evidence that when he was reprimanded he knew he should not be organizing on company time. O'Connor said that MacDonald should be warned too. MacDonald was subsequently warned twice for his activities in opposition to the union on company time. We are satisfied that these warnings were even- handledly applied and are not unlawful, as they were directed at production and not union activity.

Allegations of Intimidation of a Witness

116. The union alleged that officials of the respondent had been attempting to persuade a bargaining unit employee to testify against the union in these proceedings and that Jeanes and Casey discussed this on August 16, 1990 in the plant washroom.

117. O'Connor testified that he heard Jeanes and Casey mention the employee's name in the washroom and whether or not he would be able to come down to the Board. He supposed they meant on behalf of the company. The company witnesses Jeanes and Casey deny that any threat was made and gave a credible explanation of why they were discussing that particular employee. He had come to them asking if he had to appear on behalf of the union as he had heard the union might be subpoenaing him. He wanted a leave of absence. Jeanes had a discussion with the employee and Casey about this in the washroom, telling him the conditions under which he could have the time off, which related to his status with the Workers' Compensation Board, and not anything to do with his support or lack thereof for the union. We are satisfied that the evidence before us does not establish, directly or by inference, that this was an attempt to persuade him not to testify as alleged. They were responding to a request originating from the employee, and the evidence satisfies us that there was nothing improper in their response. The complaint is dismissed on this point.

Benefits Allegations

118. When Jeanes met with the laid-off employees on July 5, he made an offer to them of continuing their benefits, at the employee's expense, since it was to be a temporary layoff. When Jeanes did not receive a response by the end of July as asked, he terminated coverage when premiums ended. We are not persuaded that the company's explanation of this action lacked credibility or that it was motivated by anti-union animus. The complaint is dismissed in regards to the benefits issue.

Subpoena Allegations

119. The union alleges that foreman James Casey questioned Shawn O'Connor as to whether he needed to comply with a summons to appear before the Board, an implicit suggestion that O'Connor did not have to attend a Board hearing. O'Connor's account of this is that Casey asked him to look into whether it was a legal document as there was supposed to be a certain amount of notice. Casey's evidence is consistent with this. We are satisfied that O'Connor was in no way pressured not to give testimony. When it was clear O'Connor had to comply, Casey did nothing to prevent him. In the sensitive climate of the plant after the hearings started, it is understandable that the union and O'Connor were concerned about any questioning about a Board subpoena, but we are not persuaded that Casey's conduct amounted to a breach of the Act.

The Union Pin Incident

120. On Monday, August 27, Somers, the foreman, approached David Preston who was wearing a union pin on his lapel, and told him to remove the pin immediately as there was no union yet in the facility. He further told Preston that he could make things pretty miserable for him in the plant in view of his support for the trade union. The foreman later returned to Preston's work area and spoke to him further, apologized and said that he should never have made those statements and he would never act toward Preston in that regard. In testimony, Somers said he had "lost it" on that occasion, but felt that if one side could not promote its cause on company time, neither could the other. Preston, in turn, apologized for wearing it. Despite Somers' retraction and apology, this remains virtually an admitted violation of the Act, although its effect is lessened by the retraction and apology. Saying he could make it miserable in view of his support for the union was a threat, even if retracted later, for the exercise of rights under the Act. We find the company violated the Act in this respect.

The September Layoffs

121. On September 14 Messrs. O'Connor, McFarlane, Maurice and Ramkissoon were laid off from the Railroad department. The union alleges that these layoffs targeted employees who supported the union and had attended at the Board to give evidence in preference to junior employees with fewer skills who were retained. Specifically, it was alleged that O'Connor was not transferred to other positions in other classifications for which he was able, willing and qualified while such positions continued to be filled by junior employees. Some of those employees were known to be anti-union. It is specifically alleged that O'Connor and Ramkissoon were laid off because of their support for the union or at least principally because of that.

122. The company justifies these layoffs on the basis of a downturn in the railroad business. The layoffs were attributed directly to a bid for a contract for VIA rail for the conversion of 25 boilers, which they did not get. In this instance, both foremen were consulted as to who should be involved. Casey says that he picked employees to stay who needed virtually no supervision and who came into work all the time. He was able to avoid layoffs in electrical because there was a backlog of VIA control panels which needed work. At the meeting in which the employees involved were advised of their layoff, they were told that the layoff was based on seniority and job performance.

The Selection of Individuals for the September Layoffs

(a) Shawn O'Connor

123. Casey maintains that the layoff of O'Connor had nothing to do with his union activity or his having been subpoenaed to give evidence for the union at the first days of the certification hearings. Instead it was based on keeping the individuals best suited to do the work.

124. Casey testified that O'Connor was laid off because he needed a lot of supervision, a problem which was mentioned to Jeanes and O'Connor but not documented in writing. Casey told Cross at the time that O'Connor was only good for dismantling and assembling boilers and that was the work they had lost. Casey swore that the question of union support never came up during the discussion of layoffs. O'Connor denies that he needed a lot of supervision, and says he had received no complaints about his work. O'Connor said he thought he had a good relationship with Mr. Casey until the warning for discussing the union, after which he felt he was treated very coldly at work.

125. O'Connor had written warnings for his tardiness and also for accidents operating company vehicles, although driving was not part of his regular job.

126. O'Connor testified that after the March layoffs he had been worried and had approached Casey who had told him that he did not have to worry because he was in an apprenticeship program and there was no problem with his work. He says he had asked Casey about this a number of times before this as well. Casey denies this, saying he did not know if his own job was secure, so that it was impossible to guarantee O'Connor's.

127. At the time of O'Connor and Ramkissoon's layoff in September, those remaining in railroad were, from O'Connor down, in order of seniority:

O'Connor

Chang

McFarlane

Maurice

Ramkissoon

Dicks

128. O'Connor, McFarlane, Maurice and Ramkissoon were laid off. Casey said that Chang was retained in preference to O'Connor because he was very good at repairing safety valves, work the company still needed, which O'Connor had never done and that Dicks, who had been laid off on July 5 and recalled on July 30, was retained as he was the only one who knew how to do specific needed work on regulators. This evidence was not contradicted.

129. Another employee, Drury, was transferred to the service arm of the operation, a separate company, around the same time. Casey said that O'Connor had not "taken the option" to do service in the past and thus was not considered for transfer to the service department. O'Connor says he had been out on service calls to help with lifting, probably more than Drury. However, after his accidents he was not driving for the company, and so at the time of the layoff there had been a ten month period during which Drury had gone on service when O'Connor had not. A similar option was given to Steve Dick in July, who was recorded as a "quit" for the purpose of the work share program. The company's evidence was that this would have been on the request of the service department.

130. The choice of O'Connor after the fact of his union activity had become a concern to the company deserves careful scrutiny. However, the need for the layoffs after the loss of the VIA work was not disputed. Nor was the number of people needed to be laid off. The explanations for the retention of the people retained out of seniority given by the company were credible and explain O'Connor's layoff even without the performance concerns the company had about him. Even if Casey was reassuring in March, things were worse in September, and thus nothing in particular is to be inferred from any such statements. On balance we find that the company has discharged its onus of establishing that valid business reasons, rather than anti-union animus, caused the layoff of O'Connor.

(b) Ramkissoon

131. Ramkissoon was laid off because the company did not need him even though he was doing overhaul of parts. He had "big attitude problems" in Casey's view. He did not get along with people and "had a lot to learn". There was no evidence that the company perceived or had any reason to perceive Ramkissoon as a union supporter, other than the bare fact of his being subpoenaed. Casey's evidence was uncontradicted and not inherently problematic. Ramkissoon would have been laid off even if the layoff had been done by seniority. We find the company has discharged its onus in regards to Ramkissoon. The complaint is dismissed in regards to Ramkissoon.

Failure to Recall

132. In Thermocoil, Freeman and Flanagan were not replaced, although Freeman was a ticketed welder. Jeanes said none of the grievors were recalled to replace them because there was a hiring freeze and there was no work in the shop. Wilson was recalled in September because of his superior coilwinding skills. It was not argued that any of the other grievors should have been recalled to do that work.

133. In railroad, Dicks was recalled on July 30 rather than others because he was the only one capable of doing a special order of repairing safety valves. This was not contradicted. Although the union argues Dicks, and Miles, the employee he was recalled to replace, were doing two different jobs, their classification on the list filed by the employer in the certification application is the same, and other evidence indicated that the jobs in railroad are more interchangeable than in the Thermocoil division. Dicks was also the more senior of the two laid off out of railroad in July.

134. In October, Casey decided to recall Brian Maurice to build barcos (steam connectors), something that a number of the grievors were able to do. Casey was instructed that the company would be questioned if O'Connor was not called back, but that he was to pick the best person for the job. Casey said that Maurice was twice as good as O'Connor and that is why he was recalled in preference to him. Based on that he authorized Jeanes to recall Maurice. This evidence was not contradicted.

135. The union sought to lead evidence to the effect that in January, 1991 the company advertised for and hired a new storeskeeper. The company objected to the introduction of evidence about this as it was sought to be introduced on February 7, during the cross-examination of the General Manager, Cross, his direct examination having been closed the day before. Mirza, the other decision maker, had given his evidence on February 4. This allegation could have been particularized before they gave their evidence as the union had known about it for a number of weeks before their evidence was given. The Board ruled that it was too late in the case to introduce new allegations.

136. We are satisfied that the choices of recall made by the company during the period before us were not motivated by anti-union animus, but by valid business reasons.

Layoffs made permanent

137. On October 3, 1990, the temporary layoffs were converted to indefinite ones, effective October 19, 1990. It is the company's position that this was done in accordance with the Employment Standards Act, as thirteen weeks had elapsed since the temporary layoffs. The union thought it should have been consulted. We are persuaded that the act of making the layoffs permanent is not a breach of the Act, given the Employment Standards Act and our finding on recall above.

Summary and Remedy

138. In summary then, the section 91 complaint is allowed in respect of the July layoffs, the

July 11 letters from the company to the employees and the incident regarding Preston's wearing of

a union pin. It is dismissed in all other respects.

139. To remedy the adverse impact of the above violations, the Board directs the respondent:

(a) to reinstate the grievors from Thermocoil and compensate them for all losses due to their unlawful layoffs. The matter of the amount of compensation is remitted to the parties to deal with;

(b) to compensate Sanders for all losses suffered during his unlawful layoff from July 5 to September 15 (when the second set of layoffs occurred, given our finding that those layoffs would have occurred by then in any event);

(c) to compensate Dicks for all losses suffered during his unlawful layoff from July 5 to July 30,(when he was recalled);

(d) post copies of the notice appended to this decision in conspicuous places on its premises, including commonly used bulletin boards, where they are likely to come to the attention of the employees, and keep the notices posted for sixty days, taking reasonable steps to ensure that the said notices are not altered, defaced or covered by any other material.

(e) mail a copy of the notice to each employee in the bargaining unit within 30 days of this decision.

140. We will remained seized to deal with any difficulties implementing this decision, or any dispute over quantum of compensation owing.

141. Having regard to the agreement of the parties on the description of the bargaining unit, the membership evidence filed by the union, and our decision on the petition set out above, a certificate will issue to the applicant for the following bargaining unit:

all employees of the respondent employed in the Town of Aurora, save and except foremen, persons above the rank of foreman, office, clerical, and sales staff, and students employed during the school vacation period, which we find to be a unit of employees appropriate for collective bargaining.

DECISION OF BOARD MEMBER R. M. SLOAN; February 24, 1992

1. With respect, I dissent from the decision of my colleagues on a number of matters as detailed below.

2. My first concern with respect to the application is that it raised so many allegations of misconduct - the majority of which were found to be without merit- that it appears, tome at least, that the strategy of the applicant was to present to the Board a considerable number of allegations of wrongful behaviour on the part of the respondent, that the Board would be negatively influenced towards the respondent.

3. Examples of the applicant's approach with respect to allegations include: the promissory notes allegations (paragraphs 110 through 113); O'Connor's discipline (paragraphs 114 & 115); Allegations of intimidation of a witness (paragraph 116); Subpoena allegations (paragraph

119); and I would also include the "union pin" incident.

4. My first disagreement with respect to the majority decision is with the finding by the majority that the letter written by Mr. David Kluey and distributed with employee's pay cheques on July 12, 1990, is in violation of section 65 of the Act.

5. While the contents of the letter may not encourage unionization, they clearly are within the bounds of employer free speech previously accepted by the Board. Mr. Kluey's comments present to the employees factual material that they can take into consideration when making their own personal decision with respect to union representation.

6. To find that the somewhat innocuous material contained in the July 12 letter violates section 65, in the light of the right to free speech - in itself - and also with reference to previous Board jurisprudence, in my view, prevents the respondent from exercising its rights in this area and in effect negates the "free speech" right given to employers by virtue of the provisions of section 65 of the Act.

7. The second area of disagreement which I have is in relation to the petition document.

8. It is clear to me that Mr. Wayne MacDonald was the sole originator of the petition and that he did, quite properly, obtain the help of Mr. Dan Doyle in the petition process - but without any assistance or involvement from management personnel.

9. In my view, the petition meets the rigid standards required by the Board with respect to the petition's origination, circulation, custody and disposition.

10. The fact that the total petition process was not perfectly executed - whatever flaws the majority notes are, in my view, minor ones - is to be expected in view of the time constraints and the absence of experience in these matters by Mr. MacDonald. He was advised by his supervisors at the outset of the process that he was on his own and he proceeded accordingly.

11. I find the petition document to be voluntary and would order a representation vote.

12. In dealing with the layoffs I believe that it is important to acknowledge as the panel does, unanimously, that the layoffs in March, July and September, 1990 took place for legitimate business reasons.

13. Having established that, the concern that the majority has, resulting in an adverse finding against the respondent, with regard to the July 5, 1990 layoffs, is that:

(a) the people who were selected for the layoff; and

(b) the method used in selecting those employees subject to the layoff; were tainted with anti-union animus.

14. It is accepted that Mr. David Cross, immediately prior to deciding upon the need for a manpower cut-back, was aware that Mr. Watson's name was associated with potential union organizing activity. Mr. Cross gave credit to this report, as he was aware of some dissatisfaction on the part of Mr. Watson due to an overtime payment issue.

15. Based upon legal advice received before consideration was given as to who would be laid-off in the July 5,1990, cut-back, Mr. Cross took extraordinary measures to avoid any possible suggestion that supervisors, like Mr. Brian Somers for example, who might be perceived to have some knowledge of those employees who were union supporters, were excluded from the downsizing considerations.

16. Mr. Noshir Mirza, the Chief Engineer was selected to assist Mr. Cross in the layoff process because of: his knowledge of the operation; his knowledge, even if not complete in all instances, of employee skills, qualifications and performance; and his lack of any knowledge of union organizing activity and consequently no knowledge whatsoever as to any such involvement by any of those employees under consideration.

17. There is no doubt in my mind that the layoff process was conducted in a fair and objective manner without anti-union animus.

18. A significant point regarding the selection process which, with all due respect to my colleagues, they appear to have discounted has to do with the attitude, productivity, and performance of various of those employees who were laid off on July 5, 1990.

19. Certainly such matters are of legitimate concern to a company facing financial difficulties and forced to retain those employees best suited to do the work including their attitude towards their supervisors and fellow employees.

Summary

20. 1 concur in those parts of the decision which dismiss a number of the allegations against the employer.

21. I find that the petition was voluntary and would order a representation vote.

22. I find that all of the July 5, 1990 layoffs were made entirely free of anti-union animus.

23. I find that the punitive compensation measures ordered by the majority are without justification and can only unnecessarily harm the financial viability of the respondent.

24. With respect to the order requiring the respondent to post a notice proclaiming a breach of the Act I am compelled to object to this Board practice on a number of grounds.

25. The first, and most important, is that the posting of such a "mea culpa" notice contributes absolutely nothing to good labour relations in the work setting, on the contrary, the requirement is counter-productive and presents a real impediment to the establishment of good relations by holding one of the parties up to public scorn and ridicule.

26. If, as I understand it, the posting of the notice is to impart information to employees then the written Board decision is a much better and more complete vehicle to accomplish that purpose, and is available as a public document to any employee or individual who wishes to acquire it.

27. In the present case the employer is found by the majority to be in breach of the Act not through direct and obvious acts or behaviour but by inference only. Surely under such circumstances the penalty - for a penalty it is - of having to post such a notice is profoundly unfair and unjust.

28. The notice posting requirement, and its record of application and enforcement, in my view, reflects poorly on the Board's attempts to convince all parties who appear before the Board that justice is equally dispensed, and such a requirement is most certainly not in keeping with the letter or the spirit of the furtherance of "harmonious relations" as espoused in the preamble to the Labour Relations Act.

DECISION OF BOARD MEMBER D. A. PATTERSON; February 24, 1992

1. I dissent from the majority decision in a number of areas regarding this case.

2. I do not disagree with all the findings of the ViceChair. In fact I join with the Vice-Chair in a number of areas where I believe her interpretation of the evidence is the same conclusion I would have arrived at. However, there are other areas where I believe the Vice-Chair has put a different interpretation on the evidence than I would have. I am directing my dissent to those areas where I feel it necessary to explain why I would have come to a different conclusion on the same facts.

3. 1 concur with the Vice-Chair in the following areas using the same format as the Vice-Chair in the decision. I agree in finding a breach of section 91 [formerly section 89] of the Act by the respondent in the way it dealt with its employees for the July layoffs. I also agree with the Vice-Chair's finding that the respondent is in breach of section 65 [formerly section 64] of the Act. The breach in question being the letters of the respondent's president, David Kluey. I also agree in the finding of the petition failing to represent the voluntary wishes of the employees. I concur that the company also breached the Act by the actions of its foreman Brian Somers making a threat to an employee wearing a union pin. Since I have joined with the Vice-Chair in the majority decision regarding the breaches of the Act, I also join in with her remedy for the applicant.

4. It is my interpretation of the evidence that the respondent did display and exercise animus in its dealings with its employees and directly interfered with the employees ability to exercise their rights under the Act. It is the respondent's own inconsistencies in applying its labour relations policy which I believe reveal its animus. Those inconsistencies were designed to defeat the applicant's attempt to organize the employees of the respondent. This is not a fly-by-night employer like most corporations its size; its policies and labour relations practices are not make-shift or spur of the moment decisions. The respondent, as stated in the main body of the decision in paragraphs 2 and 3, had a policy of coping with lack of orders, decreased orders and a worsening economy by addressing these problems as a responsible corporate citizen by taking certain measures. These measures would include things such as pre-authorized overtime, not replacing terminated or former employees, expanding overtime and vacation credits, granting time off, and finally laying off employees. The respondent involved its foremen in this decision, the foreman were consulted about the layoff before it took place. The respondent's argument, which it asked the Board to believe, was the concern over losing experienced skilled workers to their operation. The respondents representative Bill Jeanes also investigated the possibility of instituting a Work Sharing program to alleviate the declined work orders problem, which the employees agreed to. In exhibit #6, David Cross sent a letter to employees regarding the Work Sharing Agreement. I interpret the message in that letter to be saying to each employee that by agreeing to the Work Sharing Plan there would be no layoffs. This policy changed dramatically shortly after the respondent found out the applicant was conducting an organizing drive. Foremen weren't consulted, nor were employees when the decision was made. Foremen knew of the layoff a half an hour before the layoff slips were handed out. The respondent breached the Work Sharing Agreement by laying off but were able to convince the Unemployment Insurance Company (U.I.C.) Work Sharing representative, Mr. Gulliver, they were not aware of the Work Sharing Agreement which stated there would be no layoff during the duration of the program. I believe this area should be dealt with separately from the inconsistency argument in more detail. I will deal with Work Sharing further in my decision.

5. Also inconsistent with the respondent's policy as originally stated was how it dealt with the recall of certain employees. Foremen in this case were consulted and they were asked which employees were best suited to be recalled back to work for the type of work that was available. The question being of those employees laid off who would/should be recalled to the jobs available. I am not suggesting the foremen exercised any animus on the recall since they reacted to the respondent's queries. The animus rest with the executive decision makers above the foremen.

6. When I put all these inconsistencies together and weigh their effects on my determination, and I consider the timing and cumulative effect, and how these employer actions would be interpreted by a reasonable employee, I draw the inference that animus was the motivating factor involved in the dramatic shift in policy in dealing with its own employees. The timing and impact of the actions I conclude was two fold. Firstly, these actions sent a clear message to the employees. Secondly, these actions were fatal blows to not only inside organizers for the applicant but also its supporters, and finally, the impetus for the objecting employees to garner signatures on their statement of desire. The obvious question is whether I would say the employer can't do any of these things under the circumstances it faced when it decided to layoff employees July 5, 1990. I state the employer can do whatever it feels necessary under what circumstances it feels warrants whatever action, within the law. But I retort by stating that the respondent asked this panel of the Board to accept in evidence how it handled similar circumstances in March 1990 which the Board has, but I cannot accept a totally different rationale or such a different policy approach in July 1990. When I consider the events and the respondent's knowledge of those organizing attempts by the applicant, this is where I draw the strong negative inference as to why the respondent did what it did concerning those layoffs. I would not have been able to draw the same inference if the respondent's actions in July mirrored their returns in March when they laid off. I also reiterate the respondent entered into a Work Sharing Agreement with its own employees and the Canada Employment and Immigration Commission (CEIC) to prevent any layoffs.

7. I want to now focus on the Work Sharing Agreement. I feel this is an area for which I have some expressed concern which I feel bears more scrutiny. I disagree with the majority that the company had not guaranteed there would be no more layoffs if employees agreed to participate in the Work Sharing Program. A number of witnesses gave evidence that they understood the company to have said if the employees participated in the Work Sharing Program there would be no layoff. Mr. Jeanes brought the program to the attention of Mr. Cross in early spring as a potential means to combat a slow period in business. The program was attractive because it would take the place of potential layoffs if necessary. The program was not flexible once the respondent had accepted. Employees could utilize the program one or two days per week which would equate into a 20% to 40% cut in hours worked while at the same time employees would collect Unemployment Insurance payments to offset the loss of wages for the time involved, amounting to 60% for each day on Work Sharing. The object being to eliminate any potential layoff. In return for approval from the CEIC, the applicant for Work Sharing agrees not to layoff anyone during the duration of the program. Mr. Cross met the employees and explained the program after which the employees agreed to the plan to avoid layoffs. The contract with Canada Employment and Immigration Commission (CEIC) was signed for the respondent by Susan Jones and David Cross, by the employee representatives and by the CEIC. The respondent with its experience in dealing with contracts and bidding on jobs would lead the Board to believe it did not know it couldn't lay people off while a party to the Work Sharing Agreement with CEIC. This was after its Human Resources Manager, Bill Jeanes, gave evidence that he made sure Wayne MacDonald of the employee representatives and the representative of the petitioners knew the ins and outs of the program so he could answer employee inquiries about the program. Also in exhibit #62, paragraph 2, the program prohibits increase/decrease of Work Sharing and will notify CEIC within three days of any change. The respondent did not do this in either layoff.

8. It is my opinion that the respondent pleads its own ignorance regarding the Work Sharing Plan yet made it well known around the plant that any employee who quit without giving sufficient notice would be fair game for the company as was one of its foremen Mike Caughlin who failed to give proper notice and was sued for insufficient notice. The respondent even went as far as to post the outcome of this case on the bulletin board for all employees to read and see. The inference I draw from this action is that the company certainly read the laws of employment on quits and notices of resignations so I find it implausible they wouldn't read their agreement with CEIC for the Work Sharing Program.

9. It is apparent that the respondent was able to convince Mr. Gulliver from CEIC that they weren't aware of the no layoff provision in the contract because after the layoff Gulliver gave the application his approval. It was his opinion that the respondent wasn't aware of that particular stipulation. Also Mr. Jeanes stated that he talked to Sandy Earl receiving her permission for the layoff. Ms. Earl flatly denied giving any approval and her evidence was she did not have the authority to give such permission. She clearly stated the parameters of her authority which is undisputed, and after the number of years I've personally been exposed to Federal and Provincial civil servants, I am sure a processing clerk would not give permission to amend or change any agreement for which she is not personally responsible.

10. The respondent pleads ignorance of the agreement on the first layoff but tendered no explanation for their excuse on the second layoff during the Work Sharing Program. I find it very interesting that Mr. Kluey was vigilant in his approach to his industry and the government's decision to amend boiler regulators. The claim being a Japanese competitor Miura had a corner on the market by these changes. Kluey initiated letter writing campaigns for the employees to attempt to get the government to reverse its decision. The double standard here being the respondent breaches an agreement with CEIC, not once, but twice, defeating the purpose of the Work Sharing Program. It is beyond belief to me that Mr. Kluey and Mr. Cross, who sign all the CEIC Work Sharing Agreements for the company and especially Mr. Jeanes, because he attended the seminar in Work Sharing and did all the paperwork, failed to read the agreement which strictly prohibits any layoffs during the program. The agreement also states the program participant must notify CEIC of any changes to the program in advance and await approval.

11. Another obvious flaw in the respondent's argument that it did not know it couldn't lay-off is the requirement that CEIC know the total number of employees to be laid-off if CEIC doesn't agree to the application. Those employees totalling ten (10) were listed as employees to be laid off if the Work Sharing Program application was not accepted by CEIC. Ten employees had asteriks beside their names, (exhibit #64). The respondent claims it did not put them there. We were offered no explanation as to how they did get there. CEIC employees did state they may have put them there in conversation with the respondent. It is interesting to note here that the asterisk names were not the same people laid off, nor are they with the exception of Mr. Caliph the most active inside organizers.

12. I believe the onus on this matter rests squarely with the respondent and not the union to prove otherwise, nor the CEIC employees since they claim the asterisks were there based on conversations with the respondent. If the respondent can not explain the origin of circumstances surrounding the names being asterisk then what possible inference would I draw. The only obvious one under the circumstances, a negative inference and in fact the respondent failed in its duty to discharge its onus in this question.

13. I would also like to focus on the role of counsel for the respondent. I would have concluded his actions not only tainted the statement of desire by the objecting employees but also were fatal to the respondent in distancing itself from the interests of the objecting employees. I join with the chair in concurring on the reasons why the petition should fail, I would however go further in exposing what I believe is further evidence of animus by the respondent towards the applicant. Counsel for the respondent took a proactive role in bolstering the objecting employees case and propping it up in areas where the respondent's counsel was aware their arguments and evidence was lacking. It is this Board members reading of the Board's jurisprudence that employer counsel's job is to establish no interest in the objecting employees statement of desire nor interest in its origination, circulation or circumstances surrounding the signing of the statement of desire. The Board has long held that the respondent and objecting employees are viewed as having similar interests in defeating the applicant. Their interests are aligned. I maintain the alignment from a obvious distance as permissible, but what I believe is not within the intent of the Act is for the respondent's counsel to have not only his own evidence to stop the applicant but also using the objecting employees' evidence during his cross-examination of the petitioners to bolster their flawed case or prop it up, or dress it up, in front of the Board. I would have drawn two inferences from counsel for the respondent's actions, one of blatant animus and the other of employer interference in the origination, circulation and "presentation of the statement of desire by the objecting employees".

14. In conclusion, let me summarize by stating that after all the evidence I have come to conclusions which I believe were part and parcel of the respondent's game plan from the outset. The employer had an experienced work force which it held in high regard. Its adopted policies and its dealing with its employees were designed to tackle a weakened economy. Its policies were designed to get employer-employee over some very difficult times so no employees with the experience they had would be lost to layoffs. It instituted a number of policies to stop any potential layoffs. In addition to that the respondent applied for and was approved for a CEIC program to eliminate layoffs called Work Sharing, a program which has been around for a long time. Employees were receptive to the idea based on what they were told by their employer. If they went on the program it would prevent future layoffs; there was even discussions about going on a three day work week with Work Sharing for two days. This all changed when the employer found out a union, namely the applicant, was attempting to organize the respondent's employees. The respondent received advice from legal counsel but I believe that advice did not stop the employer from deciding to simply layoff enough employees to catch as many union organizers or supporters as needed, and to assist the objecting employees, encourage them in their attempt to stop the union's organizing drive and then justify its actions by way of a contract lost and worsening market conditions. In terms of facing the CEIC representatives, I believe they decided to plead no knowledge of the conditions of acceptance into the program that an employer will not layoff employees during the duration of the program.

15. It is unfortunate in such cases that this Board cannot award damages. I believe the only way the Board can ever really make the union whole again in these circumstances is to award damages.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO

LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY AND THE

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS,

FORGERS AND HELPERS HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT. THE

ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT

IN RESPECT OF THE JULY 5, 1991 LAYOFFS, THE JULY 11, 1991 COMMUNICATIONS AND AN

AUGUST 27 1991 INCIDENT CONCERNING A THREAT FOR WEARING A UNION PIN.

ALLEGATIONS THAT WE HAD VIOLATED THE ACT IN SEVERAL OTHER RESPECTS, INCLUDING

THE SEPTEMBER, 1991 LAYOFFS IN RAILROAD, WERE DISMISSED. THE BOARD HAS ORDERED

US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN AND PARTICIPATE IN THE

LAWFUL ACTIVITIES OF A TRADE UNION;

TO BARGAIN AS A GROUP, THROUGH A

REPRESENTATIVE OF THEIR OWN CHOOSING;

TO ACT TOGETHER FOR COLLECTIVE

BARGAINING;

TO REFUSE TO DO ANY OR ALL OF THESE.

THERMOGENICS, INC.

PER: (AUTHORIZED REPRESENTATIVE)

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 24th day of February 1992.