Carpenters and Allied Workers Local 27 v. Royal Homes Limited, 1992 CanLII 6746

[1992] OLRB Rep. February 199

0755-90-U; 0851-90-R; 0978-90-U Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Complainant v. Royal Homes Limited, Respondent; Carpenters and Allied Workers Local 27 United Brother­hood of Carpenters and Joiners of America, Applicant v. Royal Homes Limited, Respondent v. Group of Employees, Objectors; United Brotherhood of Carpen­ters and Joiners of America Local 3054 and Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Complainants v. Royal Homes Limited, Respondent

BEFORE: Judith McCormack, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: N. L. Jesin, A. Wall, J. Kouba and K. Fenwick for the applicant/complainants; H. P. Rolph, P. Venema and R. Barron for the respondent.

DECISION OF THE BOARD; February 28, 1992

1. This is an application for certification in which the applicant has requested relief pursu­ant to section 8 of the Labour Relations Act, together with two complaints under section 91 [formerly section 89] of that Act. On January 7, 1992, we issued a decision setting out certain find­ings and directing a number of remedies. This decision records our reasons, as well as our findings on other matters.

2. The respondent is a manufacturer and installer of prefabricated houses which operates two plants, one in Wingham, Ontario and the other in the Peterborough area. Those operations are controlled by a board of directors consisting of Hans Kuyvenhoven, the founder of the com­pany, his son Doug Kuyvenhoven, (whom we will refer to as Doug Kuyvenhoven to distinguish him from Mr. Kuyvenhoven, senior), and Pieter Venema. The Wingham plant was organized by Local 3054, a sister local of the applicant in 1989. That year, the Peterborough plant was opened to accommodate a growing market for the respondent's products. The applicant, Local 27, now seeks certification as the bargaining agent for employees at the Peterborough plant.

3. Shortly after the Peterborough premises were opened, the respondent set up a worker committee. Members of the committee were elected by their fellow employees, and their functions included both administering a quasi-grievance procedure and a consultative and advocacy role. One of the members of that committee was Laurie Snow. In February of 1990, Ms. Snow became disenchanted with the worker committee and submitted her resignation. After discussions with a number of other employees, she contacted the applicant in April of 1990. Two or three initial meetings were held with a small group of employees, who then began recruiting other employees to join the applicant on April 30, 1990.

4. The respondent became aware of the campaign almost simultaneously. At a meeting on April 28th, the directors discussed a proposal by Mr. Kuyvenhoven to address a number of prob­lems at the Peterborough plant. Those problems are described in a memo which includes refer­ences to both productivity issues and to the union campaign. At that time, Mr. Kuyvenhoven pro­posed a number of courses of action, including management changes, closing the plant and having a meeting with employees to "put everything on the table". Mr. Venema testified that Mr. Kuy­venhoven wished to inform workers that the Peterborough plant could be closed, but that the directors decided otherwise. It was agreed, however, that there would be a meeting to talk to employees.

5. On the morning of May 2, 1990, Ken Baynton, vice-president of manufacturing for the Peterborough plant, approached Ms. Snow on the plant floor and chastized her for bringing a union in. He then called a meeting of all employees and addressed them in the lunchroom. Mr. Baynton told them that contrary to rumours going around the plant, he himself was there to stay. Jan Van Kooten, one of the respondent's witnesses and a member of the worker committee, told the Board that Mr. Baynton wished to find out from employees why there were so many problems on the line, and indicated to employees that they would have to work together so that they could keep working. According to Mr. Van Kooten, Mr. Baynton also said that if things did not improve, they could all be out of jobs. He denied that Mr. Baynton mentioned anything about the union. However, Barclay Walst, one of the respondent's supervisors and a respondent witness, tes­tified that Mr. Baynton opened the meeting by saying that the company knew that there was a union campaign, and that it had called the meeting so that employees could discuss the matter with the worker committee. In any event, the meeting was then turned over to the worker committee and Mr. Baynton, Roy Crum, the plant manager, and the supervisors left.

6. Kevin Crawford, one of the lead hands, asked Mr. Crum if the lead hands should remain at the meeting. Mr. Crum replied that they should. As a result, approximately seven lead hands stayed in the room. Frank Berenger, another member of the worker committee, then pro­vided employees with his views about unions, to the effect that they were not worth the trouble and that they just "gouged your pocket". Mr. Van Kooten made similar remarks and then asked everyone who wanted the union to put up their hands. No one did. He then asked whoever was getting cards signed to stand up and give their views, as they were here to discuss why they needed a union. When no one did, he and another member of the worker committee, Kathy Townsend, commented that employees supporting the union were "gutless". A somewhat heated discussion then ensued.

7. At some point during the meeting, the worker committee passed out a letter which had originally been circulated to employees in July of 1989. The letter recites certain information and is critical of unionization. It was signed by the members of the worker committee in July of 1989, which included Ms. Snow. Mr. Van Kooten testified that the letter was handed out because Ms. Snow was now supporting the union, and the worker committee wanted employees to know "ex­actly what she was up to" because she had changed her mind. When the letter was distributed, Mr. Van Kooten told the meeting that a person who had signed it then had since changed her mind. This was clearly directed at Ms. Snow since she was the only woman on the committee, and Mr. Van Kooten had used feminine pronouns. Ms. Snow then stood up and said that a person had a right to change their opinion. The letter is virtually identical to one circulated in August of 1988 by the respondent to Wingham employees during the Wingham organizing drive. Mr. Van Kooten denied that the letters were related, even when the company's letter was brought to his attention in cross-examination.

8. Ms. Snow also testified that Mr. Van Kooten said at the meeting that if the union got in, there would be a freeze on employees' wages. In addition, she told the Board that as employees left the meeting, he said that anybody who was signing cards would get what was coming to them. Mr. Van Kooten denied making both these statements.

9. In the meantime, Mr. Crum, Mr. Baynton and two of the supervisors, Mr. Walst and Gary Beyers, had repaired to Mr. Crum's office when they left the meeting. This office is situated across a large hall some ten or fifteen steps from the lunchroom. If the door is open in the lunch­room, Mr. Walst told the Board that employees would be able to see right into Mr. Crum's office as a result of a large window in the office which faced the lunchroom. According to Mr. Crawford, the lunchroom doors were being repaired and as a result, the centre post was missing. This left a gap through which employees could see. Ms. Snow, and two other employees who attended the meeting, Rob Scriver and Joe Crosgrey, testified that they could see Mr. Beyers and Mr. Walst outside the door of the lunchroom. It was clear that none of these witnesses was in a position to say that they remained there throughout the entire meeting, but they did say that the two supervisors were there on a number of occasions when they glanced in that direction. Ms. Snow told the Board that when Mr. Van Kooten received no response to his questions with respect to support for the union, he walked over to Mr. Beyers and spoke to him for a minute. Ms. Snow was of the view that Mr. Van Kooten was getting instructions from Mr. Beyers. Mr. Crosgrey and Mr. Scriver clearly thought that Mr. Beyers and Mr. Walst were at least eavesdropping on the meeting.

10. Mr. Van Kooten acknowledged that he might have had a discussion with Mr. Beyers during the meeting, although he indicated that it was because management was concerned that the meeting was taking such a long time. This is consistent with Mr. Walst's testimony in which he told the Board that Mr. Beyers was sent three or four times by Mr. Crum to inquire as to how much longer the meeting would be. In any event, Mr. Van Kooten testified that the people in Mr. Crum's office would have heard the discussion in the meeting, because it was so loud that they would have heard it on the other side of the plant. In his view as well, employees would have assumed that management knew what was going on at the meeting as a result.

11. The worker committee meeting ended at lunch time and employees commenced their lunch break. Ms. Snow told the Board that while they were eating lunch, Mr. Kuyvenhoven entered the room and told employees he wanted to talk to them, and that he was "damn mad". He told one employee who was warming up his lunch in the microwave to stop, and pay attention to what he was saying. He then continued that he had heard that employees were getting a third party involved, and that he did not think they needed it. Mr. Kuyvenhoven proceeded to list current employee benefits, such as work boots, life insurance, and so forth. He went on to say that there would be layoffs at the Wingham plant, but that if Peterborough employees co-operated, they would not get "the same". Mr. Scriver understood Mr. Kuyvenhoven's comments to mean that if Peterborough employees did not have a third party present, they would likely be working while Wingham employees were laid off. Mr. Crawford's evidence is similar to that of Mr. Scriver and Ms. Snow. Generally speaking, the applicant's witnesses did not recall any other members of man­agement present at this meeting, and did not recall Mr. Kuyvenhoven reading from notes.

12. Ms. Snow then described a third meeting that day at which Mr. Kuyvenhoven announced that Mr. Baynton and Mr. Crum had been fired. It is clear from Mr. Venema's testi­mony that the directors had decided on April 28th to give Mr. Baynton until May 31st to raise pro­ductivity levels. However, four days later, the company decided to change that plan. This was apparently a popular move with employees, some of whom had previously complained to Mr. Kuy­venhoven about Mr. Baynton. Mr. Kuyvenhoven also introduced Bill Dobie at that time, the plant manager at the Wingham plant, who was going to replace Mr. Baynton and Mr. Crum on a tempo­rary basis. According to Mr. Crosgrey, Mr. Kuyvenhoven then referred to a third party again, but this time said that it was up to workers to decide for or against a union, although with he, manage­ment and the workers working together, they did not really need a third party. Mr. Kuyvenhoven then asked questions of employees with respect to what they thought, and what they wanted to see done. Mr. Crosgrey and Ms. Snow recalled that Mr. Kuyvenhoven was referring to notes at this meeting.

13. Mr. Kuyvenhoven and Mr. Venema both testified that Mr. Kuyvenhoven spoke only once to employees on May 2nd. Mr. Kuyvenhoven was not sure whether it was at lunch time or break time, although Mr. Venema said that it was at lunch time. Both told the Board that Mr. Kuyvenhoven read from prepared notes, and that his only reference to a third party was to the effect that he understood a third party had been invited in, and if they could help with increased sales and improve production, they were welcome to come in. Mr. Kuyvenhoven also told the Board that he referred to times being tough and other plant closings as well. There is no dispute that the reference to a third party was a reference to the applicant union. Mr. Venema agreed that Mr. Kuyvenhoven mentioned that lay-offs were upcoming at Wingham, but was not sure whether he said this on May 2nd, or at subsequent meetings on May 14th and June 6th. He acknowledged that Mr. Kuyvenhoven had said something to the effect that if employees co-operated they would not be laid off, but indicated Mr. Kuyvenhoven was referring to productivity at the time.

14. On May 7th, John Little, who supervised the respondent's site installations, was given the position of plant manager at Peterborough, and Mr. Dobie returned to Wingham. Approxi­mately one week later, a union meeting was held. Ms. Snow told the Board that those who attended stopped asking questions after Mr. Van Kooten showed up some twenty minutes after the meeting started. Of twelve to fourteen employees who attended that meeting, seven were subse­quently laid off on May 14th, two were demoted at the beginning of June and two are no longer there for other reasons.

15. The seven employees who were laid off were part of a larger group of twenty-two employees who were laid off two days after the union meeting. It appears that the respondent's supervisors were not informed of the lay-offs until approximately ten to fifteen minutes before they occurred. At that point Don McMillan, one of the supervisors, was handed a list of twenty-two names by Mr. Little and was told that those that worked for him should go to the lunchroom. When Mr. McMillan asked why, he was told it was none of his business. Mr. Kuyvenhoven then addressed those employees, and told them that they were to be laid off. He explained that they had the least seniority, but said that if the company had made a mistake in this regard, they should notify the worker committee or management. There was no mention of the lay-offs being tempo­rary. The written notices given to employees referred to terminations, rather than lay-offs, and did not refer to the possibility of recall. The text reads as follows:

May 14/90

NOTICE OF TERMINATION

Dear __________

Please be advised that resulting from declining home sales and a poor outlook for the general economy your employment with the company is terminated effective May 14, 1990.

We wish you success in your search for alternative employment.

Sincerely

Pieter Venema

Vice-President

Finance and Administration

16. The meeting with employees lasted approximately ten minutes. Mr. Little then instructed Mr. Beyers and Mr. McMillan to escort employees out of the plant, telling them that he did not want the laid off employees stirring things up. After the meeting with the employees who were laid off, Mr. Kuyvenhoven met with the other employees in the plant. He told the Board that he said that 1990 was a tough year, that a small amount of new housing was required, that there was fierce competition, and that there was no money to be made. Mr. Kuyvenhoven went on to list a number of things that he said had to be done in order to keep the respondent's doors open. He also mentioned that the respondent was committed to a wage schedule that tied in with production, and stated that he was sure that these terms would be met before the scheduled date. The effect of this would be to move up a wage increase scheduled for a later date. Mr. Kuyvenhoven told the Board that he made this reference because there had been a request for wage increases, and that he was willing to advance the increase because he saw some improvement. He denied that it had anything to do with employees seeking wage increases through unionization.

17. Mr. Kuyvenhoven also indicated to employees that he wished to have good communica­tion with everyone. He told them that the plant manager, the worker committee and the foreman were tools that were available, and urged employees to use them. According to Mr. Kuyvenhoven, by this he meant that employees had to trust management and the worker committee. Finally, he told them that if they worked like a team, they would have a job all year, and the meeting con­cluded.

18. There were several reasons for the layoffs, according to Mr. Venema. Although there had been a good influx of sales in the third week of April, he told the Board that sales had dropped dramatically in the final week of the month. In addition, the respondent's first fiscal quarter had been very poor with significant losses. As a result, the company was looking for ways to reduce its costs. Mr. Venema instructed Mr. Little as one of his first tasks upon assuming the position of plant manager in Peterborough to review the staffing requirements.

19. Mr. Venema testified that he, Mr. Kuyvenhoven and Mr. Little made the decision to lay off employees on May 14th because of overstaffing, based on Mr. Little's recommendations. Those recommendations were based on an hours per unit analysis compared with the Wingham plant, which was a more efficient operation. Mr. Little, Mr. Venema, Mr. Kuyvenhoven and a per­sonnel employee then decided which employees were to be laid off on the basis of reverse senior­ity. There is no dispute that employees were in fact laid off in that order.

20. Within the next six weeks, eleven of the employees who had been permanently laid off were recalled, six of them during the following week. Mr. Venema testified that this was due to attrition. However, it appears that only six employees left the respondent during this period. When Mr. Kuyvenhoven was asked why almost twice as many employees were recalled as those who had left, he replied that he did not know, and that the respondent's estimates must have been too opti­mistic. Mr. Van Kooten testified that the respondent was having problems after the layoff because it could not get houses built by delivery dates.

21. Mr. Kuyvenhoven held meetings with employees again on May 15th and June 6th. At the latter meeting, there was no dispute that Mr. Kuyvenhoven announced a lay-off at the Wing-ham plant. He also told employees that the new wage rate at Peterborough could be implemented in July if all of them worked together. In addition, and again provided that everyone worked together, things would get done as before and unless sales were "totally" dropping, there would not be a lay-off until the end of October or November, and perhaps not at all. Mr. Kuyvenhoven reiterated the importance of co-operation, said that it was a matter of survival, and referred to var­ious businesses going into receivership and closing their doors. In his testimony, he explained that he had told Peterborough employees about the Wingham lay-offs because he did not want them to hear about it from Wingham employees. However, he told the Board that he did not know when Wingham employees had been told about the lay-offs, and did not ask about it. The layoff notices for Wingham employees are dated July 5th, approximately one month later. Subsequently he cor­rected his testimony and said that Mr. Venema had told Wingham employees about the Wingham layoff that morning.

22. A little over a week later, the worker committee distributed a document which com­pared wages and working conditions at the Peterborough plant and at the Wingham plant. The overall message of this document was that the wages and working conditions at Peterborough were substantially the same as those in Wingham, without employees having to pay union dues. The document also makes references to job security in several different ways.

23. The following day, the respondent gave Ms. Snow a letter directing her to cease asking other employees to sign union membership cards on company premises during working hours. Ms. Snow denied having collected cards during working hours. There is no doubt that she was the pri­mary contact inside the plant for the applicant, and that she collected the most cards. On that same day, the respondent issued a letter to employees referring to rumours that the applicant had applied for certification, and setting out certain employee rights under the Act. Also on that day, the applicant filed the first unfair labour practice complaint.

24. During this period and subsequently, Ms. Snow testified that she was the subject of intensive monitoring by management while she worked. She told the Board that on June 18th for example, supervisors passed by her work station twenty-seven times, a highly unusual state of affairs. Normally she might see her supervisor once a day. Mr. Little told the Board that he firmly believed that no extra supervision was directed to Ms. Snow, and denied that he had instructed supervisors to keep a special eye on her or her activities. In contrast, Mr. McMillan told the Board that Mr. Little asked him if he was aware that Ms. Snow was a troublemaker. When Mr. McMillan replied that he was not, Mr. Little said that he had information that she was an organizer. He told Mr. McMillan to watch out for Ms. Snow, to see if he caught her selling cards or anything to do with organizing, and to take action if he did to dismiss her. Ms. Snow was not in Mr. McMillan's work area.

25. Ms. Snow had been the only tile-setter in the Peterborough plant for approximately one year. Around this she was informed by other employees that Kathy Townsend would now be trained as a tile-setter. This was subsequently confirmed by Ms. Snow's supervisor, Mr. Beyers. Mr. Little told the Board that since Ms. Snow was the only tile-setter, the respondent wanted to train Ms. Townsend to help her, and to perform her job if Ms. Snow was not there. Ms. Snow pointed out that the fact there was only one tile-setter had never been a problem before the union organizing drive. Ms. Townsend was in a lower rated position as the plant janitor, and as previ­ously noted, was a member of the worker committee. It appears that the effect of training Ms. Townsend to perform Ms. Snow's job would be a promotion. Ms. Snow complained both to Mr. Beyers and to Mr. Little, and ultimately another employee was trained.

26. On June 25th the applicant applied for certification, requesting that a pre-hearing vote be taken, that the ballot box be sealed and that relief be granted under section 8 of the Labour Relations Act. Approximately a week later, the respondent issued another letter to employees, referring to the fact that the applicant had applied for certification and again setting out certain information about their rights in a somewhat more partisan manner. Around this time, Rob Scriver and Kevin Crawford were demoted from their positions as lead hands. The respondent explained their demotions as part of an overall restructuring in which lead hands became leaders with reduced supervisory responsibilities. Only three lead hands were not given the position of leaders: Mr. Scriver, Mr. Crawford and another employee named Don Porter. These three were all given positions as regular employees rather than leaders, with the result that they experienced significant wage cuts. Mr. Crawford is Ms. Snow's common-law husband. Mr. Scriver attended the union meeting where Mr. Van Kooten was present. Mr. Porter is on Workers' Compensation benefits.

27. In June of 1990 as well the respondent issued a new wage schedule in which two addi­tional wage levels were established at the top end of the pay scale. The previous wage schedule had been issued on February 28th, 1990 and covered a period until February of 1991. Both the previous wage schedule and the new schedule referred to the fact that if certain productivity goals were met, the wage increase scheduled for August 13th, 1990 could be moved up. In a memo dated June 4th from Mr. Venema to Mr. Kuyvenhoven and Mr. Little, Mr. Venema suggested that the changes with respect to the lead hands and leaders should ideally be announced at the same time the respondent moved up the wage increase previously scheduled for August, but that he was not sure that the respondent could wait that long.

28. On July 5th, notices of lay-off effective July 27th were given to forty-two employees at the Wingham plant. On July 10th, the applicant and Local 3054 jointly filed another unfair labour practice complaint. The following day the respondent issued another letter to employees with respect to unionization.

29. Four days later, the respondent wrote both to employees and to the applicant indicating that it was its position that the best way to resolve the application for certification was a vote. The respondent stated that it would be allowing a representative of the applicant access to its premises at specified times to speak to employees in this regard. A meeting was ultimately arranged for July 19th from 4:30 to 5:30 p.m. Notice was not given to employees of this meeting until that day, and the notice indicated both that attendance was voluntary and that employees would not be paid for time spent at the meeting. The meeting was sparsely attended.

30. In the meantime, on July 18th the respondent issued another letter to employees con­sisting mainly of a comparison of the wages and working conditions at the Wingham and Peterbor­ough plants. Like the worker committee, it is clear that the respondent wished to convey to employees at Peterborough that they had substantially the same or better wages and working con­ditions than the unionized Wingham plant employees. There are also references to the difficulties of decertification, the cost of union dues, super seniority for union officials during lay-offs and so forth. As a result of the new levels added to the Peterborough wage schedule, it compared favour­ably to the Wingham wage schedule, which would not have been the case without the June revision of the Peterborough wage schedule.

31. On July 24th, a representation vote was taken by the Board and the ballot box was sealed. At the end of July, Laurie Snow resigned and took up employment elsewhere.

32. On November 9th, 1990 notice of lay-off was given to all remaining employees at the Wingham plant, to take place in December. At the end of that month, the respondent introduced an absenteeism bonus program in the Peterborough plant. This program was similar to a program introduced the year before. The essence of the program was that employees who were not late or absent for a specified period of time would be entitled to a bonus.

33. On December 5th, the respondent notified ninety employees at the Peterborough plant that they would be laid off, effective December 21st. Forty-five of those lay-offs were temporary, and forty-five were referred to as indefinite. Those indefinitely laid off were not expected to be recalled, in contrast to those who received temporary lay-off notices. Subsequently, employee Reg Nelson complained to other employees that those up to and including Kathy Townsend on the seniority list had been laid off temporarily, but those after her on the seniority list had received indefinite layoffs. This was despite the fact that several employees in the latter category appeared to have the same seniority date as Ms. Townsend, which in his view indicated she had been favoured as a result of her position on the worker committee. It appears that no member of the worker committee was given an indefinite layoff notice. He was also critical that a number of employees who were late as a result of a freezing rain storm would be receiving the attendance bonus, including Ms. Townsend, as a result of her intervention.

34. Mr. Nelson had previously voiced complaints about employees working overtime with­out supervision and other matters. At that time, Mr. Dobie had called him into his office and indi­cated that if he had complaints to make, he should be making them to management, rather than to other employees. Mr. Dobie felt that he had a "gentleman's agreement" with Mr. Nelson in this regard. Mr. Nelson acknowledged that he had been spoken to in this manner, but felt that the characterization of it as an agreement was inaccurate. In any event, on December 11th Mr. Nelson was suspended for two days for disrupting employees. Mr. Dobie told the Board that it was his decision to suspend Mr. Nelson, and that he had been suspended for insubordination, harassment and rebellious comments against the respondent. By this, he testified, he meant that Mr. Nelson was trying to create trouble by his comments to other employees that Ms. Townsend had received preferential treatment. It was also clear that part of Mr. Dobie's concern was that Mr. Nelson was undermining the credibility of the worker committee. He told the Board that he felt that manage­ment should assist in sorting that out because there had to be a good relationship between the worker committee and management. Mr. Dobie also said that Mr. Nelson seemed to have a prob­lem with whatever the worker committee and the social committee did, and that since most employees were on the social committee and agreed with the worker committee, Mr. Nelson was out on a limb with a small minority of employees who did not agree with anything. Mr. Nelson filed a grievance with respect to the suspension. Not surprisingly, the worker committee decided that the suspension was justified. At the plant Christmas party several weeks later, Mr. Kuyvenho­yen expressed surprise that Mr. Nelson was still there.

35. Sometime after May 2nd, Mr. Beyers took Mr. Crosgrey into his office and began talk­ing about workers' compensation claims. Mr. Crosgrey is an employee member of the plant's health and safety committee. He then asked Mr. Crosgrey where he stood on the union issue. Mr. Crosgrey told Mr. Beyers that he was undecided. Mr. Beyers then asked him what had been hap­pening on the floor in regard to the union. Mr. Crosgrey told him that rumours were rumours, that he did not get involved, but that every time he turned around someone was asking him to sign a union card. Mr. Beyers responded by asking Mr. Crosgrey to sign an affidavit as to who was asking him to sign a union card. Mr. Crosgrey refused. Mr. Beyers then called him an epithet to the effect that he was a coward, and Mr. Crosgrey left his office. It was not suggested that Mr. Crosgrey experienced any repercussions as a result of this incident.

36. The union alleges that the respondent violated sections 3, 65, 67, 71, 72, 81 and 82 [formerly sections 64, 66, 70, 71, 79 and 80] of the Act by laying off Peterborough employees on May 14th, by harassing Ms. Snow, by demoting Mr. Crawford and Mr. Scriver, by suspending Mr. Nelson, by laying off Wingham employees on July 27th and in December, by virtue of a number of the meetings described above and comments made at those meetings, as a result of the incident involving Mr. Beyers and Mr. Crosgrey, and by introducing the attendance bonus program. In addition to claiming various remedies under section 91, the applicant has requested certification pursuant to section 8 of the Labour Relations Act.

37. Section 8 provides as follows:

8. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support ade­quate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

38. For a union to be certified under section 8, three conditions must be met. It must be established that there has been:

(1) an employer contravention of the Act, so that,

(2) the true wishes of employees are not likely to be ascertained; and

(3) that the union has membership support adequate for collective bar­gaining.

39. As a result, we turn first to the question of whether the respondent has violated the Act. Section 91(5) [formerly 89(5)] applies to a number of the allegations made by the applicant in this regard. That section reads as follows:

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

40. In the Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board set out its approach to allegations where section 91(5) applies:

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

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

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

42. In the case at hand, we have examined the reasons advanced by the respondent in some detail for the various activities alleged, not because we are adjudicating their reasonableness or their justness, but because it is "a step in the more complex process of ascertaining the employer' motivation" (Hallowell House Ltd., [1980] OLRB Rep. Jan. 35).

43. In this regard we turn first to the allegation that the lay-off of Peterborough employees on May 14th was tainted by anti-union animus. The three reasons given by the respondent for the lay-offs were the poor first quarter report, declining sales and overstaffing. We note that the fiscal quarter results were available at the end of February, but the lay-offs did not take place until the middle of May. There is no mention of these lay-offs in the minutes of the two directors' meetings in April, even at the meeting where the fiscal quarter figures were discussed. In fact, the respondent drew up a cost reduction plan in light of the quarterly figures which referred to the elimina­tion of certain specified positions, without any mention of the kind of lay-off which took place on May 14th. Mr. Venema also told the Board that the respondent's business was seasonal, and it was clear that winter was a slow time of year. Both these facts tend to suggest that the winter first quar­ter results were somewhat less compelling than might have otherwise been the case. As it turned out, the respondent ultimately made a profit in that fiscal year.

44. There is also some inconsistency in the evidence with respect to declining sales. As noted earlier, Mr. Venema mentioned that sales dropped off dramatically the last week of April. Mr. Kuyvenhoven, on the other hand, told the Board that the respondent had its best month in April in terms of sales, and had a tremendous backlog, although he did refer to a drop in sales as well. Mr. Venema also agreed that there was a three and one-half month backlog at the end of March. Whether the backlog was tremendous or only three and one-half months, its existence tends to weaken the connection between the declining sales and the layoff several weeks later.

45. With respect to the overstaffing issue, Mr. McMillan testified that Mr. Crum had told him within the thirty days previous to the layoff that he was eleven people short, and that as a result, Mr. McMillan had hired a number of new employees. This is consistent with the seniority list entered into evidence by the respondent which indicates a number of new hires in April. In fact, eleven of the employees laid off on May 14th had been hired in April, five of them in the last week of April. Another nine had been hired in March. It was evident that one of Mr. Little's goals when he took over the Peterborough plant was to reduce inefficiency, and some of this discrepancy may be explained by the changeover in management. However, Mr. McMillan also testified that Mr. Little met with him within several days of the latter's arrival at the Peterborough plant on May 7th to review the respondent's figures with respect to staffing requirements. Mr. Little told Mr. McMillan that his department was "dead on" what it was supposed to be in terms of staffing, nei­ther overstaffed nor understaffed, and that the same was true of the exteriors department, while the interiors department required more employees. The layoff less than a week later included seventeen employees who worked in Mr. McMillan's department.

46. The manner of the layoff adds to our concerns in this regard. There were three other layoffs described in the evidence, and in all of these, the respondent gave employees considerable advance notice in writing. In this instance, there was no notice whatsoever. In addition, the lan­guage used in the May 14th notices refers to terminations. Mr. Venema indicated that the layoffs were described in this manner because the respondent had no intention of recalling employees at the time. However, Mr. Dobie told the Board that notices of termination were given in disciplinary cases, and that where employees were laid off and the respondent did not expect them to be recalled, this event was referred to as an indefinite lay-off. This evidence is consistent with the other lay-off notices entered as exhibits. Moreover, the use of the word "termination" was not sat­isfactorily explained by the other evidence in this regard. In addition, we find it curious that so many employees were recalled within such a short period of time. As noted earlier, this is only par­tially explained by attrition. Rather, both this fact and Mr. Van Kooten's evidence with respect to the difficulty the respondent encountered in meeting delivery dates subsequent to the lay-off tend to undermine the respondent's assertions with respect to overstaffing.

47. Looking at the evidence as a whole, we are not satisfied that the reasons for the May 14th lay-off were entirely free of anti-union motives. As a result, we find that the respondent vio­lated sections 65 and 67 of the Labour Relations Act.

48. We turn next to the allegation with respect to Ms. Snow. There was no doubt that Ms. Snow was the primary organizer for the union in this workplace, and that this fact was well known throughout the Peterborough plant. However, there is a critical difference between the testimony of Mr. Little and Mr. McMillan with respect to the former's instructions in regard to monitoring Ms. Snow. Where their evidence conflicts, we prefer the evidence of Mr. McMillan. This is because Mr. McMillan was a supervisor at the time in question, and had no interest or connection with the union. Neither do we think that he had a particular interest in or grudge against the respondent. Although he resigned from the respondent shortly thereafter, and it was clear that he disagreed with the respondent's management style including that of Mr. Little, we do not find that this influenced his testimony on this point. In fact, it appears that one of the reasons he resigned was that he felt he was being asked to do things such as monitoring Ms. Snow where he was being set up as a "hatchet man". In addition, Mr. Little gave a number of rather indirect answers to cru­cial questions in this area. As a result, we accept Mr. McMillan's evidence with respect to Mr. Lit­tle's identification of Ms. Snow as a union organizer, and his instructions with respect to monitor­ing Ms. Snow. We also find that Ms. Snow was in fact subjected to a significant increase in supervisory monitoring.

49. The fact that Ms. Snow had been identified as a union organizer is also consistent with the warning letter given to her by the respondent directing her to cease collecting cards on com­pany property. The letter itself refers to section 72 [formerly section 71] of the Labour Relations Act. However, section 72 does not prohibit the solicitation of cards during working hours. It simply states that nothing in the Act authorizes a person to do so. The issue before us is not whether Mr. Snow had a right to attempt to recruit employees during company time, but whether the respon­dent's letter to her constituted interference with the selection of a union or the representation of employees by a union contrary to section 65.

50. The Board has previously noted that the workplace is the most effective location for union activity to be carried out, and the most appropriate theatre for membership solicitation (The Adams Mine, Cliffs of Canada Ltd., [1982] OLRB Rep. Dec. 1767). As a result, it adopted the fol­lowing general principles in that case:

(a) No-solicitation or no-distribution rules which prohibit union solicitation on company property by employees during their non-working time are presumptively an unreason­able impediment to self-organization and are therefore invalid; however, such rules may be validated by evidence that special circumstances make the rule necessary in order to maintain production or discipline;

(b) No-solicitation or no-distribution rules which prohibit union solicitation by employees during working time are presumptively valid as to their promulgation, in the absence of evidence that the rule was adopted for discriminatory purpose or applied unfairly; and no-solicitation or no-distribution rules which prohibit union solicitation by non-employee union organizers at any time on the employer's property are valid in the absence of an application for a direction pursuant to section 11.

[emphasis added]

While this case involves union solicitation during working hours, it falls within the exceptions set out above in paragraph (b). Here there is ample evidence that the respondent's directive to Ms. Snow was unfair or discriminatory. The members of the worker committee, who opposed the union, had been provided with an extensive opportunity to persuade employees of their views dur­ing working hours. In contrast, Ms. Snow was prohibited from exercising similar rights on company time. In these circumstances, the respondent cannot take shelter under section 72 as justification for its conduct.

51. The respondent's explanation with respect to training another tile-setter would be quite plausible but for two critical facts: firstly, there was no explanation as to why after approximately a year the respondent suddenly decided that it needed a back up tile-setter in the middle of an orga­nizing campaign in which Ms. Snow had been identified as an organizer; secondly, there was no meaningful explanation for why Ms. Townsend was selected for the position, an explanation that was necessary because of Ms. Townsend's high profile in opposition to the union and the fact that the job would mean a promotion for her. In these circumstances, we are not satisfied that the respondent's decision to train Ms. Townsend as a tile-setter was not another attempt to put pres­sure on Ms. Snow, and to make her feel that there was some question with respect to her job secu­rity. The fact that the respondent eventually backed down on its plan helps to mitigate its conduct and affects our decision on the appropriate remedy. It does not, however, serve to purge the origi­nal decision of its improper motivation, nor to erase its effect.

52. Looking at the respondent's activities with respect to Ms. Snow as a whole, we find that the respondent violated sections 65 and 67 as a result of its conduct.

53. We note that the applicant indicated at a relatively early point in the proceedings that it was not claiming that Ms. Snow had been forced to resign as a result of the respondent's conduct, or that her resignation amounted to a constructive discharge. Rather, counsel indicated, the appli­cant accepted that Ms. Snow left of her own accord. However, on the last day of hearing, the applicant in its final argument advised that it was claiming damages for Ms. Snow of the kind awarded in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Jan. 60. Counsel for the respondent objected, indicating that had he known such a claim was being made at an earlier point, he would have cross-examined and led evidence with respect to it. Having regard to the manner in which the pleadings were framed, the way the litigation progressed, counsel's previous assurances and the point at which this issue was raised, we are of the view that this claim was suffi­ciently novel that it should have been specifically and clearly identified at a much earlier stage of the proceedings. At the very least, it should not have been raised for the first time in final argu­ment. As a result, the relief we directed for Ms. Snow on January 7th, 1992 was limited to any actual monetary losses she may have suffered as a result of the respondent's conduct prior to her resignation.

54. We turn next to the demotions of Mr. Crawford and Mr. Scriver. We are satisfied on the evidence that the restructuring which converted lead hands into leaders was not in itself tainted by illegal motives. However, we are more concerned about the fact that Mr. Crawford and Mr. Scriver were not offered jobs as leaders, but were given positions on the shop floor. The other lead hands who had their positions converted to leaders had their wage rates red-circled. Since Mr. Por­ter was off work on workers' compensation benefits, Mr. Crawford and Mr. Scriver were the only employees who actually experienced wage cuts as a result of this restructuring, and in each case those wage cuts were considerable.

55. The reasons given by the respondent as to why Mr. Crawford was not offered a leader position were somewhat vague. He had previously been not only a lead hand, but a line supervisor, and thus in charge of other lead hands. Mr. Little told the Board that Mr. Crawford did not have much respect from employees on the plant floor. However, under further examination, this turned out to mean that there were complaints about him by Mr. Van Kooten and Ms. Townsend. As noted earlier, both were opponents of the union and there is no dispute that it was well-known in the plant that Mr. Crawford was Ms. Snow's common-law husband. In the circumstances, Mr. Lit­tle must have known that there might be other factors involved in these complaints. Indeed, Mr. McMillan, who was Mr. Crawford's supervisor until shortly before the latter's demotion to the shop floor, indicated that he was skeptical of complaints from Mr. Van Kooten and another employee because they had "a bone to pick" with Mr. Crawford. Mr. Little also agreed that he knew of no instance where an employee had refused to co-operate with Mr. Crawford or obey his orders.

56. Mr. Little appeared to blame Mr. Crawford for the lack of productivity in the plant dur­ing the time that Mr. Crawford was a line supervisor. Mr. Crawford had ceased to be a line super­visor before Mr. Little took over. However, even assuming, without finding, that Mr. Crawford played some role with respect to that problem independent of his instructions from his own supe­nor, he had already been demoted from that position in February, and as a lead hand was only responsible for his own area. Mr. Little agreed that productivity in Mr. Crawford's area was no worse than any other area.

57. Another problem, according to Mr. Little, was that Mr. Crawford's salary had been maintained at the line supervisor level, and that he was earning too much money for the job he was performing. However, he agreed that the respondent had never considered simply reducing his sal­ary, and this does not explain why he was not offered a leader position.

58. Mr. Little also indicated that Mr. Crawford did not do enough physical work. In con­trast, Mr. McMillan testified to the effect that Mr. Crawford did the physical work necessary for the job, and had never refused or avoided it. Indeed, Mr. McMillan testified that Mr. Crawford had at one point volunteered for such work where another employee had been sick for several weeks. Mr. McMillan told the Board that he was only asked by Mr. Little whether Mr. Crawford was pulling his weight, and that Mr. McMillan replied that he was. Mr. Crawford was never spo­ken to before his demotion to the shop floor about any of these matters.

59. It is clear that Mr. Crawford was not happy about his demotion from the position of line supervisor to lead hand. In addition, Mr. McMillan had been simultaneously promoted, so that where once he had been supervised by Mr. Crawford, he was now Mr. Crawford's superior. In the circumstances, Mr. McMillan indicated that there was some resistance on Mr. Crawford's part. However, it was evident that Mr. McMillan also considered this to be a relatively minor problem.

60. With respect to Mr. Scriver, Mr. Little told the Board that he was not offered a leader position when lead hands were eliminated because he did not seem to be able to cope with organiz­ing people to get the job done, he appeared confused, he had no respect from people under him and because productivity in his area was "awful". However, Mr. Walst, Mr. Scriver's supervisor, testified only that Mr. Scriver was quite green and that he himself had to go into his area more than once to direct employees to do tasks. He also indicated that Mr. Scriver had learned from this. As in Mr. Crawford's case, none of these criticisms had been brought to Mr. Scriver's atten­tion previously. Indeed, Mr. Scriver testified that Mr. Walst had praised his work, and that when he received the memo demoting him which contained these comments, Mr. Walst told Mr. Scriver that that was not the way that it was and that he could not believe Mr. Scriver had received such a letter. Mr. Scriver testified that he had asked Mr. Walst for an evaluation, and that the latter told him that there was no need for one because he was doing a satisfactory job.

61. We also note that Mr. Little was not particularly candid about the circumstances of Mr. Scriver's demotion. Originally he testified that Mr. Scriver had resigned voluntarily from the lead hand position. Upon being confronted with a memo with Mr. Little's name on it dated July 4th which described Mr. Scriver as having been demoted, he suggested that perhaps he had not written the memo, and that it might have been doctored. Subsequently, he conceded that he had told Mr. Scriver that he was being demoted and that Mr. Scniver had chosen to resign instead. The other evidence indicates that after being informed that he was being demoted, Mr. Scriver had the worker committee take up his case, and an agreement was reached in which Mr. Scriver would describe himself as resigning in exchange for a lesser pay cut.

62. Mr. Scriver attended the union meeting on May 12th which Mr. Van Kooten attended as well. A day or two after the union meeting, Mr. Scriver told the Board that Mr. Walst con­fronted him and asked him whether he had been at the meeting, to which Mr. Scriver replied in the affirmative.

63. We do not doubt that neither Mr. Scriver nor Mr. Crawford were perfect employees. However, the evidence advanced by the company does not satisfactorily explain why they were not given leader jobs, which were, after all, positions of lesser responsibility than the jobs they had been performing. The timing and the singling out of these two employees also militates against the respondent's assertions. Looking at the evidence as a whole, we are not persuaded that the reasons for these demotions were entirely free of anti-union motivation. As a result, we find that the respondent has breached section 65 and section 67 of the Labour Relations Act in this regard as well.

64. We turn next to the allegation with respect to Reg Nelson. Having had the opportunity to observe Mr. Nelson's demeanour, we are prepared to believe that he is an opinionated employee who is free with his views and criticisms. In addition, we are not convinced that every discussion he had in this regard was initiated by other employees, as he appeared to suggest. On the other hand, the statements produced from other employees which were said to have in part prompted Mr. Nelson's discipline largely do not bear out the respondent's allegations against him. In addition, having regard to the evidence before us including two seniority lists showing Ms. Townsend's name in different positions without any explanation and Mr. Dobie's acknowledge­ment that there appeared to have been changes to Ms. Townsend's seniority date in her personnel file, it cannot be said that Mr. Nelson's criticisms were simply gratuitous trouble-making as Mr. Dobie appeared to suggest.

65. It was also clear that the complaints against Mr. Nelson were initiated by Ms. Town­send, and that she was primarily concerned with the fact that the credibility of the worker commit­tee was being undermined by Mr. Nelson's criticisms with respect to the December layoffs, a con­cern Mr. Dobie apparently shared. We note that Mr. Nelson's comments did not take place in isolation, but in a context where the respondent was promoting the worker committee in a rela­tively unsubtle manner as an important vehicle for employees in the shadow of a union organizing campaign. In addition, members of the worker committee were publicly and vociferously opposing the union. As a result, discipline imposed because Mr. Nelson was undermining the credibility of the worker committee cannot be said to be a neutral event, unrelated to the applicant's organizing campaign. Mr. Nelson testified that he had become a union supporter prior to December, and that this fact was widely known. We have no difficulty in believing that almost any of Mr. Nelson's opinions would be widely known.

66. Moreover, the written statements of employees produced by the respondent indicate that Mr. Nelson was not the only employee discussing these matters. Mr. Dobie conceded that the respondent assumed that employees would talk about non-work matters during working hours, and that it was not necessarily an offence punishable by discipline. We do not find that the two day sus­pension meted out to Mr. Nelson in these circumstances can be adequately explained by Mr. Nel­son's earlier discussion with Mr. Dobie. Looking at the evidence as whole, we are not satisfied that the reasons for Mr. Nelson's suspension were entirely free of anti-union animus. Consequently, the respondent breached section 67 and 65 of the Labour Relations Act to this extent as well.

67. We now turn to the worker committee meeting of May 2nd, 1990. There were a number of unusual features about this meeting. It was common both for management to introduce worker committee meetings, and for the meetings to be held on company time and premises. However, meetings were usually scheduled at 4:00 p.m. to minimize the production time spent, as the work day ended at 4:30. In this manner, if the meeting became protracted it would extend on to non-company time. It was highly unusual for a meeting to start in the morning and run for approxi­mately two hours. It was also the first time that the lead hands had attended a worker committee meeting.

68. In addition, the meeting was not held at the initiative of the worker committee. In fact, Mr. Van Kooten testified that the worker committee had not requested the meeting, but had only been informed of it approximately five minutes in advance. He agreed that the meeting had occurred because Mr. Baynton had called it. Looking at the evidence with respect to how the meeting came to take place, its length, the contact between members of the worker committee and supervisors during the meeting, the positioning of the supervisors and Mr. Crum and Mr. Baynton, and the other attempts by the respondent to promote the role of the worker committee both during meetings and in its written material, we find that it is a reasonable inference both that the respon­dent was actively involved in sponsoring and monitoring the meeting, and that at least to some extent, the worker committee was acting at the respondent's direction. In addition, it was clear that the function of the meeting, at least in part, was to identify union supporters. That this func­tion was the respondent's initiative, and not just an independent excursion by the worker commit­tee is supported by Ms. Snow's testimony with respect to Mr. Van Kooten's conversation with Mr. Beyers when his questions with respect to union supporters went unanswered, and by Mr. Beyers' conversation with Mr. Crosgrey in which he attempted to have the latter identify those collecting membership cards. Because Mr. Beyers did not testify, Mr. Crosgrey's evidence was uncontrad­icted in this regard.

69. We conclude as well that another purpose of the meeting was to embarrass and discredit Ms. Snow by handing out copies of the worker committee's earlier letter. Again, we find it difficult to believe that this was the action of the committee alone, given that it called for some advance preparation in terms of making copies of the letter available. Such preparation that would have been difficult for the worker committee which had only five minutes notice of the meeting. The effect of the meeting was clearly to discourage employees from associating themselves with the union, to identify and discredit Ms. Snow in this regard and to make it more difficult for her to approach employees and vice-versa. And indeed, Ms. Snow testified that this is in fact what hap­pened, and that after May 2nd, employees no longer wish to be seen talking to her. To the extent that the actions of the worker committee at the meeting were sponsored by the respondent and were intended to discourage employees from associating themselves with the applicant, the respon­dent breached section 65 of the Labour Relations Act.

70. As noted earlier, there is a conflict in the evidence with respect to whether Mr. Van Kooten told employees there would be a wage freeze if the union came in, and that anybody who was signing cards would get what was coming to them. We do not find it necessary to resolve that conflict because even assuming, without finding, that those remarks were made, we are not con­vinced that they represented the respondent's views or were made at the instance of the respon­dent. Rather, having regard to Mr. Van Kooten's personality and demeanour before us and the specific nature of the respondent's reaction to the organizing campaign, we find it more consistent with the evidence that such statements, if they were made, were Mr. Van Kooten's own initiative. As a result, these allegations are dismissed.

71. With respect to the testimony in regard to subsequent meetings that day, we find that there were two meetings addressed by Mr. Kuyvenhoven. Although Mr. Kuyvenhoven suggested in his testimony that he was indifferent to the presence of the union, this sentiment is belied by his own memos, and the respondent's extensive activities in May, June and July including an unusual

number of meetings with employees within a short period of time, the various letters to employees, and so forth. It was quite apparent that Mr. Kuyvenhoven was in fact very disturbed about the organizing campaign, and we accept that on May 2nd, he told employees so at lunch time in a rela­tively spontaneous manner. Subsequently, there was a meeting in the afternoon in which Mr. Kuy­venhoven made much more temperate remarks which were prepared in advance. In our view, this meeting was both to announce the terminations of Mr. Baynton and Mr. Crum and also to attempt to repair the effect of his remarks at lunch time.

72. We do not find that Mr. Kuyvenhoven made references to the Wingham layoffs on May 2nd. It was evident that it was difficult for all witnesses to remember events which had taken place in some instances almost a year and a half before they testified. In addition, the series of meetings held by Mr. Kuyvenhoven within a short period of time meant that it was easy to confuse remarks made at one meeting with comments made at another. Having reviewed all the evidence, we are satisfied that Mr. Kuyvenhoven did refer to lay-offs in Wingham, but that he did so on June 6th, a point to which we will return later.

73. We accept that at the second meeting addressed by Mr. Kuyvenhoven on May 2nd, he indicated that he understood a third party had been invited in, and that if a third party could help with increased sales and improved production, it was welcomed to come in. However, this was clearly a rhetorical statement in the sense that Mr. Kuyvenhoven did not really believe that a third party could help with increased sales and improved production, and this was precisely the point that he was attempting to communicate. As a result, we do not think that this statement indicated to employees that the respondent was receptive to the applicant in a way that might mitigate the effect of Mr. Kuyvenhoven's other comments. We are also concerned that by his own admission, Mr. Kuyvenhoven referred to plant closings on May 2nd. When he was asked why he had done so, he testified that it was because he wanted to put a bit of realism on the table, and that he was hop­ing to give employees encouragement and security. Since references to plant closings are highly unlikely to make employees feel more secure, we find this evidence to be rather disingenuous.

74. There is no dispute that during the second meeting on May 14th, Mr. Kuyvenhoven made references to keeping the respondent's doors open and to the fact that if employees worked like a team, they would have a job all year. Similarly, on June 6th, we are satisfied that Mr. Kuy­venhoven did indicate to employees that there would be lay-offs in Wingham, and that he did make remarks which were interpreted by employees (and which he intended would be so interpret­ed) to suggest that they would be better off without the union from the point of view of layoffs. Again, Mr. Kuyvenhoven reiterated the importance of co-operation, that this was a matter of sur­vival, and made references to various businesses going into the receivership or closing their doors.

75. In summary then, the meetings of May 2nd, May 14th and June 6th show a pattern in which the respondent associated "co-operation", "working like a team", and other code words in this context for non-unionization with job security. The effect of this was to suggest to employees that a lack of "co-operation" or "team work" might result in a lack of job security. While some of these references are oblique enough in isolation that they might not be as powerful, in combination and together with the May 14th lay-offs, we have no doubt that the message sent to employees was that unionization might well adversely affect their job security.

76. On June 6th, Mr. Kuyvenhoven's references to the possibility of the wage increase being moved up added a carrot to the stick that the possibility of layoffs represented. Although the wage scales contemplate advancing the August increase if productivity levels were in fact being met, Mr. Kuyvenhoven did not suggest in his evidence with respect to these comments that pro­ductivity levels were in fact being met, but only that things had improved. Ultimately, the wage increase was not advanced. However, the suggestion that the wage increase could be moved up has a life of its own.

77. Reviewing the evidence in this area as a whole, we find that the respondent violated sections 65 and 71 of the Labour Relations Act by Mr. Kuyvenhoven's comments at the meetings of May 2nd, May 14th and June 6th.

78. The applicant also asserted that the introduction of the attendance bonus program at the Peterborough plant was a violation of the freeze provisions in the Labour Relations Act. While there are some differences between the program announced in 1989 and the program announced in 1990, the programs are roughly equivalent. For example, while the 1989 program required a longer qualifying period, it appears that its terms were less strict. The 1990 program had stiffer require­ments in terms of absenteeism, but the qualifying period was shorter. In other words, the differ­ences between the programs were relatively minor, and overall the 1990 scheme was neither richer nor poorer. In these circumstances, even if we assumed, without finding, that the changes in the program were a technical breach of section 81, we were not prepared to award a remedy, and as a result, the applicant's claim in this regard was dismissed.

79. As a result of our findings set out above, the first condition of section 8 has been estab­lished. We must now consider whether the respondent's violations have led to a situation where the true wishes of employees with respect to union representation are not likely to be ascertained. In this regard, we observe that the layoffs of Peterborough employees on May 14th, coupled with Mr. Kuyvenhoven's remarks at the meetings of May 2nd, May 14th and June 6th were likely to have convinced employees that union representation was a perilous venture. The respondent's actions go directly to the core of economic dependency which is the basis for an employee's vulner­ability in the workplace. As the Board noted in DI-AL Construction Limited, [1983] OLRB Rep. Mar. 356:

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

Indeed, the Board has found that discharges or layoffs have given rise to findings that employees wishes are not likely to be ascertained in a number of cases: See, for example, Dylex Limited, [1977] OLRB Rep. June 357; Riverdale Frozen Foods Limited, [1979] OLRB Rep. Apr. 338; The Globe and Mail, [1982] OLRB Rep. Feb. 181; Elbertsen Industries Limited, [1984] OLRB Rep. Nov. 1564; Cambridge Canadian Foods Inc., [1987] OLRB Rep. Mar. 319; Zest Furniture Indus­tries Limited, [1987] OLRB Rep. Feb. 299; Zenith Wood Turners Inc. and 148620 Canada Inc., [1987] OLRB Rep. Nov. 1443.

80. With respect to the harassment of Ms. Snow, the Board commented in K-Mart Canada Limited (Peterborough), supra, on the chilling effect management surveillance of union organizers has on employees' expression of their wishes:

Alternatively, even if an individual who is aware that another is under surveillance does not develop a personal antipathy to that person's activity, he may nevertheless disassociate himself from the victim of surveillance of only to avoid the stigmatization that tends to attach to anyone who is knowingly being investigated.

Ms. Snow's experience after the meeting of May 2nd and during the period she was subjected to heightened supervision is consistent with those comments.

81. The May 14th layoff, Mr. Kuyvenhoven's remarks, the monitoring and discrediting of Ms. Snow, the demotion of Mr. Scriver and Mr. Crawford, and the suspension aimed at silencing Mr. Nelson's criticisms would all have a seriously distorting effect upon employees' opinions. The evidence before us indicated that the union campaign was met with initial enthusiasm by employ­ees, but that shortly after May 2nd, interest in the union dropped off dramatically. This is con­firmed by the dates of the membership evidence submitted. Almost forty cards were collected between April 30th and May 2nd. Thereafter, only three cards were collected. We find it highly unlikely that the sudden drop in interest is simply coincident with the commencement of the respondent's activities with respect to the campaign. In our view, the evidence is more consistent with a conclusion that the organizing drive was stopped in its tracks as a result of the respondent's violations.

82. Counsel for the respondent argued that the union campaign had lost momentum and had come to a halt as a result of the lack of interest of employees, rather than the respondent's actions. In addressing a similar argument in K-Mart Canada Limited (Peterborough), supra, the Board noted that as a result of the employer's violations, it was not in a position to assess whether the union had already obtained all the support that it would have received in any event before the unfair labour practices began:

However, when the employer's very conduct has made that a virtually unanswerable question the Board is not inclined to give the employer the benefit of the doubt on that issue. Skepticism naturally attaches to the defence that the murder victim died of a heart attack seconds before the bullet struck him.

83. Nor do we think that the meeting addressed by union officials in the plant was capable of restoring to employees the ability to voluntarily express their wishes. In the first place, the respondent's violations were too compelling to be easily ameliorated. Secondly, few employees attended the meeting, not surprising in a context where interest in the union had already produced such adverse consequences. As a result, whatever message the union might have been able to deliver had little or no audience. Nor is this a case where the kinds of remedies provided for under section 91 might repair the damage done to the ability of employees to freely express their views on unionization.

84. We therefore find that the membership evidence submitted representing some forty per cent of employees is not an accurate gauge of their true wishes. In this case, however, the respon­dent also made a novel argument based on a somewhat unusual event. After the representation vote had been taken, the parties jointly requested that the Board unseal the ballot box and count the ballots. In an effort to avoid what turned out to be twenty-one days of hearing over a period of fifteen months, the Board granted the parties' request. The results of the vote are rather inconclu­sive because of a number of ballots that were segregated pending the resolution of disputes as to whether the individuals who cast them were entitled to vote. However, they do provide us with a rough estimate that between 26% and 32% of employees voted to have the applicant represent them.

85. Although the parties had agreed at the time of their request that the counting of the bal­lots would be "without prejudice" to the section 8 issue, it turned out that there was some misun­

derstanding as to what that term meant in this context. As a result, the Board permitted the respondent to make arguments with respect to the vote results.

86. The respondent then argued that the vote results, which were taken with the protection of the secrecy of the ballot box, represented the true wishes of employees, and that in any event the consistency between the percentage of membership evidence and the vote results indicated that the respondent's activities in the interim had had little or no effect. Otherwise, he argued, the slip­page in support would have been greater.

87. We cannot agree that the vote results are representative of employees' true wishes. For the reasons set out above, employees would have been voting not on whether they wish to be unionized, but on whether they wish to retain their jobs. The secrecy of the ballot box can only protect the identity of a particular employee's choice, and will not alleviate a concern that there will be general repercussions if the majority of employees choose union representation. As the Board observed in Zenith Wood Turners Inc., supra:

At its best, the ballot box can only protect the identity of a particular employee's choice. Employees in this case would be justified in thinking that regardless of whether the employer knew how each of them had voted in particular, there might well be general repercussions with respect to job security if a union was certified. The respondents, through the layoffs, have shifted the focus for employees from the issue of collective bargaining to the issue of job secu­rity. A vote at this point means that employees are likely to be voting on whether they wish to keep their jobs, and not whether they wish to be represented by a union.

As a result of the respondent's violations in this case, the vote results are no more indicative of employees' views on unionization than the membership evidence.

88. Nor do we think that much can be made of the degree of differential between the mem­bership evidence and the vote results. It is impossible for us to know at this point how much more membership evidence might have been collected if the organizing campaign had not come to a halt as a result of the respondent's violations. The application for certification was filed on June 25th and the terminal date, the last date by which membership evidence can be submitted was July 10th, 1990. At this point, all of the violations we have described above had already occurred. We do not think that much can be made of the fact that two weeks later when the vote was taken, there had not been a greater drop in union support. Given the numerous elements that might have been operating in this situation, we find that the differential between the membership evidence and the vote results is simply ambiguous, and of little assistance to us in making the determinations with which we are charged.

89. Turning now to the third branch of section 8, we also find that there is support for the union adequate for collective bargaining. The Board set out its general approach in this regard in K-Mart Canada Limited (Peterborough), supra:

In approaching its discretion to grant certification under [section 8] of the Act, the Board must make some prognosis as to the future viability of bargaining. In so doing it does not necessarily view the membership strength which the applicant has on the date of certification as a static and immutable figure. Where the evidence establishes that a workplace has been subjected to the chilling effect of unfair labour practices that tend to suppress any expression of pro-union senti­ment, it is not unreasonable to expect that the granting of a Board's certificate, with or without the assistance of other remedies under the Labour Relations Act, will in some degree restore the legitimacy of the trade union in the eyes of the employees. The Board therefore takes into account the potential for union support to grow among employees who beforehand might have been afraid to associate themselves with the union. With the granting of a certification, assum­ing that all unfair labour practices will end, there is little reason to doubt that the union's base of support will grow and that more and more employees will come forward to participate in the endeavours of their bargaining agent.

In determining whether a union has support adequate for collective bargaining purposes within the meaning of [section 8] of the Act, the Board's concern is whether there is a number of employees, sufficiently representative of the employees in the bargaining unit, with the ability to negotiate with their employer on the content of a collective agreement. In this regard, bargain­ing ability is to be distinguished from bargaining power. The question is not whether they can amount a successful strike, or whether they will eventually realize substantial gains at the bar­gaining table. Rather, it is whether they have the core of support sufficient to negotiate with the employer. A [section 8] certificate, like any certificate, is only a beginning and need not be seen as anything more.

90. The Board has shied away from an approach in which numerical factors would be deter­minative of this issue. As the Board commented in Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848:

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

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

Some of the factors the Board has considered in this regard were also set out in Manor Cleaners, supra:

(1) the stage of the union's campaign at which the employer conduct occurred (Skyline Hotel Limited, [1980] OLRB Rep. Dec. 1811; District of Algoma Home for the Aged (Algoma Manor), [1979] OLRB Rep. Apr. 269);

(2) the circumstances surrounding the cards signed prior to the employer interference and the number of cards signed (Lorain Products, [1977] OLRB Rep. Nov. 734);

(3) the existence of a full-time unit which showed membership sufficient to support col­lective bargaining by its part-time counterpart (Robin Hood Multifoods, [1981] OLRB Rep. July 972; Windsor Airline Limousine Limited, [1981] OLRB Rep. Mar. 398);

(4) the severity of the employer conduct insofar as it related to the number of cards signed - "the chilling effect" (K-Mart, [1981] OLRB Rep. Jan. 60);

(5) the percentage of unit signing the cards where support for the union is at an extremely low level (5%) (Sommerville Belkin, [1980] OLRB Rep. May 796).

91. In light of how strongly the union campaign started, how early on the respondent's vio­lations occurred, the severity and extensive nature of the respondent's conduct, the chilling effect of that and the percentage of support remaining, we found that there was a significant core of membership strength, and we were satisfied that a viable collective bargaining relationship could be established at this point. As a result, we issued a certificate to the applicant pursuant to section

93. There are two further issues which we find analytically useful to address together at this point. The respondent argued that the applicant could not pursue relief on behalf of the Peterbor­ough employees laid off on May 14, 1990 both because their names were not listed as grievors on the Form 58 initiating the section 91 complaint in this regard, and because the applicant did not have written authorizations from them. Counsel cited Cuddy Food Products Limited, [1989] OLRB Rep. Feb. 126 in support of this proposition. In addition, the respondent argued with respect to the July and December layoffs of Wingham employees that not only were they properly motivated, but that in any event no relief could be granted with regard to them. The latter position was based on a memorandum of settlement signed by Local 3054 and dated September 24, 1991 which provides in part as follows:

3. The union agrees to withdraw any existing section 89 complaint on behalf of their members at Wingham, Ontario, Local 3054. Section 89 dated July 10, 1990 Local 3054 complaint is withdrawn. There will be no section 89 filed due to these 1991 nego­tiations.

93. As noted earlier, the section 91 complaint dated July 10th, 1990 which cites the July Wingham layoffs as a violation of the Act is brought by both the applicant, Local 27, and Local 3054. A letter which adds the December Wingham layoffs to the particulars also refers to both locals. Both the applicant and Local 3054 assert that the Wingham layoffs were at least in part motivated by a desire to demonstrate to Peterborough employees that unionization was associated with lessened job security.

94. At the outset of these hearings, counsel for the applicant indicated that he also repre­sented Local 3054. When the memorandum of settlement was signed, counsel for the applicant indicated that Local 3054 had withdrawn from the proceedings as a result of the agreement con­tained therein. However, he argued that since the July 10th, 1990 complaint had been brought by both locals, and since the applicant and Local 3054 were separate legal entities, the applicant could not be bound by Local 3054's agreement. If the respondent had wished to preclude the claiming of relief under the complaint with respect to Wingham employees, in his view it was incumbent upon it to have arranged for the applicant to sign the memorandum of agreement as well.

95. Counsel for the respondent agreed that the applicant was not bound by the document, and that it could continue to pursue the issue of the Wingham layoffs as they affected Peterbor­ough employees. However, the applicant could not, in his opinion, claim relief on behalf of Wing-ham employees represented by Local 3054 as a result of the memorandum of settlement.

96. Turning first to the respondent's arguments with respect to the naming of grievors and the lack of written authorizations, in our view they cannot succeed. The fact that the applicant did not name the Peterborough employees as grievors is not fatal to its claim for relief on their behalf. What is important here is that the Form 58 identify the events alleged to be violations of the Act and those remedies claimed with sufficient precision that the respondent has reasonable notice of the claims made in order that it may meet the case against it. As a result, whether or not individu­als on whose behalf relief is requested are set out as grievors or referred to in other parts of the complaint is not determinative.

97. In this case, the applicant specifically cited the May 14th layoffs as violations of the Act and claimed relief on behalf of the affected employees. The date of the layoff and the number of employees were listed, and although the names of the laid off employees were not set out, this is obviously information that was within the knowledge of the respondent. As a result, the respon­dent has had sufficient notice of this claim to allow it to meet the case against it. Cuddy Food Products, supra, is readily distinguishable from these facts.

98. In any event, if we are wrong and it was necessary to list those employees by name as grievors, this is an instance to which section 116 [formerly section 114] of the Act applies. That sec­tion provides as follows:

116. No proceeding under this Act is invalid by reason of any defect of form or any technical irregularity and no proceeding shall be quashed or set aside if no substantial wrong or miscar­riage of justice has occurred.

99. Neither do we think that it is necessary for the applicant to produce authorizations from the Peterborough employees for whom it claimed relief. This argument was based on Cuddy Food Products, supra, in which the Board said as follows:

15. Where a complainant names another as grievor, the Board is concerned that the complain­ant has the grievor's authority to represent his or her interests. Except where the complainant is a trade union with bargaining rights for a unit which includes the grievor, the existence of that authority will not be assumed: Adbo Contracting Company Ltd., [1977] OLRB Rep. Apr. 197.

100. In fact, in Adbo Contracting, supra, the Board was faced with an incorporated associa­tion which had not established status as a trade union. The Board ruled that since it had not estab­lished that it was “an organization of employees formed for purposes that include the regulation of relations between employees and employers", it had not established a sufficient interest in the mat­ter to give it status as a complainant. The Board went on to say that this ruling stemmed from its concern that the mere filing of a complaint by the association did not establish that it was in fact acting on behalf of the individuals set out in the schedule attached to the application. The Board continued as follows:

Although this conclusion can be drawn where a complainant has established its status as a trade union, it cannot flow in the same manner from the filing of a complaint by an entity other than a trade union, where there is absent any evidence as to whether that entity actually represents those on whose behalf it purports to seek a remedy.

101. In other words, the Board did not say in Adbo Contracting, supra, that the existence of a complainant's authority will not be assumed unless it is a trade union with bargaining rights for a unit which includes those on whose behalf a remedy is claimed, but rather that such authority would not be assumed unless the complainant was a trade union.

102. In this case, the applicant has established trade union status before the Board previ­ously, which pursuant to section 107 [formerly section 105] constitutes proof, in the absence of evi­dence to the contrary, of that status in this case as well. Where a trade union files a complaint under section 91 of the Act claiming relief with respect to certain individuals in regard to alleged violations during an organizing campaign, the Board's practice is to presume that the complainant has the authority of those individuals on whose behalf such claims are being made. The Board has never required unions in this situation to file authorizations from those individuals for two reasons. Firstly, there is such an obvious unity of interest between the union and individuals whom it is alleged have been treated in violation of the Act that the Board is content to presume authority in the absence of evidence to the contrary. Secondly, the union may well have an interest of its own in ensuring that individuals are not subjected to violations of the Labour Relations Act during an organizing campaign and obtaining redress for those who are, since this may dramatically affect the course of its organizing campaign. There is no reason to depart from the Board's usual practice in the case before us, and as a result, we are prepared to assume that the applicant has the authority to pursue claims on behalf of those laid off on May 14th from the Peterborough plant.

103. However, we are not prepared to extend this presumption to the claims on behalf of those employees in Wingham represented by Local 3054. In our view, the Board's usual presump­tion is rebutted where the employees in question are in fact currently represented by another union, and there is no issue with respect to that representation or other circumstances militating against such a conclusion. This is no doubt why Local 3054 joined in the second complaint with respect to the Wingham layoffs.

104. What, then, is the effect of Local 3054's withdrawal of the second complaint referring to the Wingham layoffs? We agree that Local 3054 cannot bind the applicant, and in fact it did not purport to do so. However, for the reasons set out, we are also of the view that the applicant does not represent the Wingham employees. This does not mean that the applicant cannot raise the issue of the Wingham layoffs as it affects Peterborough employees. It is clear that if the applicant is correct in its allegation that the Wingham layoffs were designed at least in part to deliver a message to Peterborough employees, the applicant has an interest of its own at least in regard to its claim under section 8, and perhaps with respect to some of its other claims as well.

105. On the other hand, allowing the applicant to claim relief on behalf of Wingham employ­ees would render that portion of the memorandum of settlement set out above completely mean­ingless. While we accept that the respondent should have sought the applicant's signature if it had wished to be fully protected in these circumstances, the applicant's position amounts to allowing it to claim through the back door precisely what Local 3054 gave up through the front. While the two locals are separate legal entities, we would be ignoring labour relations reality not to find some unfairness in this result.

106. In our view, the appropriate balance can be struck in these circumstances by allowing the applicant to raise the issue of the Wingham layoffs with respect to Peterborough employees and any relief requested in that regard, but to preclude it from claiming relief on behalf of Wing-ham employees. This provides recognition to the applicant's own interest in this event but also gives some meaning to the memorandum of settlement.

107. As a result of this conclusion, however, we are not inclined to determine the issue of whether the Wingham layoffs were violations of the Act. We have made our findings with respect to all other matters the applicant has raised, including its claim under section 8, without the neces­sity of such a determination. In addition, in our initial decision we directed a comprehensive array of remedies, including relief for the laid off Peterborough employees and for others whom we found the respondent had discriminated against, together with more general directions with respect to the posting of notices. The only other remedy we would award if we found the Wingham layoffs were violations of the Act would be individual relief for Wingham employees, and that we are not prepared to do for the reasons set out above. As a result, this issue is essentially moot, and we decline to make a finding on it.

108. The parties were also in dispute with respect to the description of the appropriate bar­gaining unit. Having regard to all the circumstances of this particular case and the Board's general approach to bargaining units set out in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, we conclude that the stability of bargaining rights would be best served by the following description, which we find constitutes a unit of employees of the respondent appropriate for collective bargain­ing:

all employees of Royal Homes Limited in the County of Peterborough, save and except supervi­sors, persons above the rank of supervisor, truck drivers, construction site finishers, office and sales staff.

109. Finally, counsel for the applicant made an eloquent argument with respect to the appli­cant's request for its legal costs. He made it clear, however, that he was not suggesting that counsel for the respondent had obstructed or delayed the proceedings, and indeed, in our view, counsel for the respondent conducted his case with considerable professionalism. That being said, there is nothing to distinguish this case from those in which the Board's policy of not granting costs was developed, and we see no reason to depart from the Board's normal practice in this regard. (See Repac Construction & Materials Ltd., [1976] OLRB Rep. Oct. 610). In addition, there was no evidence that the applicant's organizing costs were any greater as a result of the respondent's viola­tions than they would otherwise have been. As a result, we dismissed both those claims.