International Brotherhood of Electrical Workers, Local 105 v. Wm. J. Davidson Electric Inc., 1992 CanLII 6801

[1992] OLRB Rep. January 101

3065-89-R; 3135-89-U International Brotherhood of Electrical Workers, Local 105, Applicant/Complainant v. Wm. J. Davidson Electric Inc., Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: L. Steinberg and G. Aitken for the applicant/complainant; William J. Davidson and Brent Foreman for the respondent; William P. Dermody, M. Spicer and Duane Elliott for the Group of Employees.

DECISION OF THE BOARD; January 24, 1992

I. File No. 3065-89-R is an application for certification made under subsection 146(1) [formerly 144(1)] of the Labour Relations Act in which the applicant is seeking to be certified pur­suant to subsection 146(2) for electricians and electricians' apprentices employed by the respon­dent in the industrial, commercial and institutional sector of the construction industry in the Prov­ince of Ontario, and in all other sectors in Board area 26. Board area 26 includes the Regional Municipality of Hamilton-Wentworth, the City of Burlington and portions of adjacent towns and geographic townships. At the making of the application, the respondent operated an electrical con­tracting business out of the City of Burlington on job sites in Burlington, Oakville and the City of Scarborough. The applicant also seeks to be certified pursuant to section 8 of the Act without need of a representation vote.

2. File No. 3135-89-U is a complaint made under section 91 [formerly section 89] of the Act alleging that the respondent has engaged in conduct which violated sections 65, 67 and 71 [formerly sections 64, 66 and 701 of the Act and caused the employment of Kevin Beattie and Claas Nyman to be terminated prior to the making of the application and in contravention of the Act. The applicant/complainant relies on the section 91 complaint for support of its application for certi­fication under section 8.

3. For ease of reference, the Board will refer to the applicant and complainant as "the applicant" or "the union".

4. The application was made March 12, 1990 and the complaint was made March 14, 1990. The events which are alleged to constitute violations of sections 65, 67 and 71 of the Act took place for the most part within the two-week period leading up to the application. The Board heard evi­dence relative to those events from William Davidson and Al Fairfax for the respondent, Kevin Beattie, Claas Nyman and Mike Van Goch for the applicant and Duane Elliott for the objectors. Davidson and Fairfax testified on June 28 and 29, 1990. Beattie gave his evidence in-chief and cross-examination on September 28, and re-examination on October 12th. Nyman testified on October 12th. Van Goch and Elliott testified on January 15, 1991. The Board also heard evidence about other matters relating to the application and complaint from Charles Beaney, Michael Kirby and Tom Keagan, for the applicant. Beaney testified on October 12, 1990, the others testified on January 15, 1991. The Board's conclusions of fact have been made having regard to its assessment of the witnesses' credibility based on the usual criteria, the submissions of the parties and what is reasonably probable in all of the circumstances. There is substantial conflict between Davidson's evidence and that of Beattie, Nyman and Van Goch, and that is dealt with in the specific instances. The parties made full submissions on the issues raised by the application and complaint and the Board has reviewed and considered them carefully in arriving at its conclusions of fact and law. The Board has not attempted to summarize in this decision their complete arguments, but it has made references to them on particular issues where it was useful to do so.

5. The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargain­ing agency. Pursuant to the designation issued by the Minister under subsection 141(1) [formerly subsection 139(1)] of the Act on December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.

6. The Board further finds that this is an application for certification within the meaning of subsection 121 [formerly subsection 119] of the Labour Relations Act and is an application made pursuant to subsection 146(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 119(e) [formerly clause 117(e)] shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recogni­tion.

7. The Board further finds, pursuant to section 146(1) of the Act, that all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario and all electricians and electri­cians' apprentices in the employ of the respondent in all other sectors of the construction industry in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geographic Townships of Nassagaweya and Nelson, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

8. The parties disagree whether Beattie and Nyman were at work in that unit on the date of making of the application, March 12, 1990. The list of employees which the respondent filed in accordance with the Board's Rules of Practice included the names of two persons: Duane Elliott and Ted Pitura. They were apprentice electricians at the time and acted as leadhands for the respondent. There is no dispute about them. There were other persons employed by the respon­dent on its job sites on or about the application date, but the parties agreed that they were not at work in the unit on that date. The applicant contends, of course, that the names of Beattie and Nyman should be on the list as well. A petition opposing the application and bearing the names of persons purporting to be employees of the respondent was filed also.

9. The resolution of the list dispute depends upon the resolution of the principal issue in these matters; that is, whether, as the applicant alleges, the respondent has engaged in unfair labour practices prohibited by the Act which caused the employment of Beattie and Nyman, or either of them, to be terminated prior to the date of making of the application.

10. The respondent takes the position that they quit their employment prior to that date. If their employment was terminated because of the respondent's alleged unlawful conduct, they would be employees within the meaning of the Act for purposes of the application. There is no dis­pute that Beattie would have been employed in the bargaining unit on that date as an apprentice electrician. The applicant makes the same claim for Nyman on the grounds that, prior to termina­tion of his employment, he was registered with the Ministry of Skills Development as an apprentice electrician, had been performing the work of an apprentice electrician and, but for the respon­dent's alleged unlawful conduct, would have been doing so on the application date. The respon­dent takes the position that Nyman was not employed as an apprentice electrician and that, at all times prior to the termination of his employment, he spent the vast majority of his working time picking up and delivering materials for the respondent's various jobs and performing the work of a construction labourer. The resolution of that issue goes to whether Nyman's name would be on the list of employees used to determine the adequacy of the applicant's membership support for its application for certification, including its application to be certified under section 8 of the Act. Finally, should the Board find that the respondent has engaged in unfair labour practices contrary to the Act, the Board would have to decide whether the unfair labour practices were so grave that the Board should exercise its section 8 discretion to certify the applicant without taking a represen­tation vote.

11. Section 8 of the Labour Relations Act states:

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

The applicant also relies on the following unfair labour practice provisions of the Act in sections 65, 67 and 71 of the Act:

65. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

72. William Davidson is the president and owner of the respondent and, at the times mate­rial to the application, was its only journeyman electrician. He is excluded from the bargaining unit. The respondent began business as an unincorporated proprietorship in late 1988 and was incorporated June 4, 1989. Nyman was hired during the last week of September 1989 after he responded to a classified advertisement in the Hamilton Spectator for apprentice electricians. Beattie also replied to an advertisement in the Hamilton Spectator. He telephoned the respondent after seeing the advertisement, but was told by Davidson that the respondent did not have any work at the time. A couple of weeks later Davidson called back and made an interview appoint­ment with Beattie for Monday of the last week in September. He began employment the following month.

73. Beattie had been considering the possibility of organizing the respondent's employees when he answered the advertisement. When he was hired, the union decided that he should try to organize them. He was not a member of the union at the time. He had made application for mem­bership in the union when he began his apprenticeship, but had not been inducted into member­ship by the time he was hired by the respondent. He had no opportunity to talk to any of the respondent's employees about the union before January, 1990 because he was always working with Davidson's brother Mike. After that he and Mike Davidson began work on a contract which the respondent had at a Red Lobster Restaurant in Scarborough. The two of them were the only employees on the job at first. More employees were added for one or two days per week as the job progressed. During the last two weeks of Beattie's employment, there were three to five employ­ees on it one or two days per week. Between January and the end of February, Beattie confined his comments to employees about the union to remarks about unionized employers paying higher rates than the respondent, or about employees on unionized jobs being finished work on Friday afternoons while the respondent's employees were still working. Then, after Beattie was inducted into the union on February 27th, he tried to talk singly with employees when neither Pitura nor Elliott were in the vicinity. Beattie explained the union to employees and tried to gain their inter­est in it. He testified that "a lot" of the employees were interested in knowing more about the union and what it could do. He spoke to Nyman around March 1st. At the time he thought Nyman also might be organizing for the union because of an event on February 27th which is discussed later in the decision. Beattie simply asked Nyman if he knew Graeme Aitken. When Nyman responded positively, Beattie was satisfied that Nyman was also working in the union's interest because Aitken is a full-time organizer for the union.

74. Nyman had spoken to Aitken around the first week of February to see where else he might further his wish to begin his apprenticeship as an electrician. He had learned by then that many of the respondent's employees were not journeymen electricians and the respondent would not likely be able to carry him as an apprentice electrician. Nyman began talking about the union to other employees of the respondent during the second and third weeks of February. He testified that they showed a sincere interest in the union. There is no evidence that Nyman had contacted the union prior to being hired by the respondent, or at any intervening time until the first week of February.

75. Beattie worked with Mike Davidson from the start of Beattie's employment with the respondent. Davidson arranged this because his brother was prohibited by law from driving and Beattie could drive for the two of them. Beattie picked up Mike Davidson each morning, drove to the shop to pick up their truck and then went together to whichever job they were working on. Sometimes they picked up materials or equipment at the shop to take to their job. At the end of the day, they left the job together and returned the truck to the shop. Sometimes the shop was locked when they returned. Other times Davidson would be there and they would get instructions for the next day. Davidson would talk to them and other employees about the day's work. On most days the respondent's employees returned to the shop after work. Beattie was in the shop after work about three days per week during the last three weeks of his employment.

76. When Beattie and Mike Davidson returned to the shop on February 27th around 5:30 p.m., Davidson, Fairfax, Elliott and Pitura were in the shop talking in a group. Beattie and Mike Davidson joined them. Nyman was not there. He had returned to the shop around 5:00 p.m., unloaded some material at the rear of the shop and then asked Davidson where he was to work the next day. It appeared to Nyman that there had been a meeting and, in his words, "most everyone was there". He was not asked to stay and left after confirming with Davidson that he was to return the next day to the Scarborough Red Lobster job. Beattie and Davidson gave substantially differ­ent accounts of what happened at the meeting after Beattie and Mike Davidson joined the others. Their accounts are the only evidence before the Board about what took place in the meeting because neither Fairfax nor Elliott testified on that subject.

77. According to Beattie, Davidson asked him if he was going to the union meeting that evening. Beattie was not surprised that Davidson knew of the meeting because he believed him to be a member. His belief is consistent with Davidson's evidence. Beattie replied in the affirmative. He had been notified by letter that he was to be inducted as a member at the meeting. He told Davidson he had to go because his two uncles had been trying for a long time to have him admitted to membership. Davidson told Beattie that, if he became a member, he could not work for the respondent; the respondent was a non-union shop and if Beattie became a member, it would give the union the right to petition to represent the respondent's employees. Davidson told Beattie that he wanted him to stay with the respondent and not join the union; that he would be getting a raise if he stayed; that the respondent would be bringing in benefits for the employees soon; that the respondent would be one of the biggest non-union shops around and never be without work. Davidson told Beattie that, on the other hand, if he joined the union and continued to work for the respondent, the respondent would have to close the doors and everyone would be out of a job. Davidson commented several times during the meeting that the respondent would close and every­one would lose their jobs if the union came in. When the union was the topic of discussion, accord­ing to Beattie, Davidson did most of the talking and he was against the union. Beattie also stated that Davidson, Pitura and Elliott raised Nyman's name several times and wondered whether he might be going to the union meeting, but Beattie did not know why they were concerned about Nyman. Beattie said that the meeting lasted for an hour and a half to two hours, during which they discussed the respondent and the pros and cons of the union. After the meeting ended, Mike Davidson told Beattie that his brother wanted to see Beattie in his office. Beattie went to the office and was there for approximately fifteen minutes with Davidson. No one else was there and David­son repeated what he had said in the shop about not wanting Beattie to join the union; about a raise and benefits and about having to close the shop if the respondent was unionized.

78. Davidson denies that he met Beattie alone after the meeting in the shop and his account of the shop discussion ran as follows. Davidson, his brother, Fairfax, Pitura, Elliott and Beattie were present and it was Beattie who introduced the subject of the union. Beattie mentioned a let­ter which he had received from the union telling him that he would be inducted as a member at a union meeting that evening. He told the group that he intended to go to the meeting and report to Davidson on who was there because whoever was involved with the union at the respondent's shop was trying to make it look like Beattie. Beattie named Nyman as the employee involved with the union and the person who was trying to make it look like Beattie was promoting the union. According to Davidson, Beattie asked him if he wanted Beattie to go to the meeting to see who was there. Beattie volunteered to take care of Nyman if he found him there. Davidson told Beattie not to go to the meeting on his behalf. Davidson denies that he made any of the statements during the shop meeting which Beattie attributed to him. In particular he denies saying that he was going to keep the respondent non-union; that Beattie would have to work elsewhere if he joined the union; that there would be raises and benefits for the employees and lots of work if there was no union. He denies that he expressed any opinion of the union at the meeting or that he and others had concluded that it was Nyman who was the union contact in the respondent, after having specu­lated openly about it.

79. Davidson acknowledges that the union had been mentioned in conversations between him and Beattie prior to the evening of February 27th. Again their accounts differ substantially, including whether one of the events occurred at all. According to Davidson, Beattie was at the shop on the morning of February 27th and gave Davidson the letter inviting Beattie to attend the union meeting scheduled for that evening. Davidson testified that he neither discussed it with Beat-tie nor read it at the time. When he was challenged in cross-examination that Beattie had not given him the letter, but had left it on the seat of his truck which remained parked all day in the shop yard, Davidson replied that he was unaware that Beattie parked his truck in the yard. He also said that Mike Davidson was present when Beattie gave him the letter. He testified also in cross-exami­nation that he was far too busy to be either concerned about or interested in the letter. Davidson could recall only one other conversation with Beattie in which the union was a topic. Davidson recalled it as having taken place early in November on the Red Lobster Restaurant renovation job in Oakville shortly after the respondent hired Beattie. According to Davidson, he and Beattie were in a room of the restaurant where the respondent stored materials and Beattie showed him a letter from the union and told Davidson the union wanted him to become a member. In cross-examina­tion, Davidson testified that he was too busy to be interested in the letter, to discuss the letter with Beattie or to care whether one of the respondent's employees was in contact with the union. He also stated that he could not recall discussing the union with Beattie or any other employee between the November incident and the one on the morning of February 27th.

80. Beattie's account of his conversations with Davidson in which the union was a topic is as follows. Beattie testified in-chief that he did not show or discuss with Davidson or any employee of the respondent the union letter inviting him to be inducted into the union at the February 27th meeting. When he was cross-examined by counsel for the objectors on that testimony, he denied that he had either discussed or shown the letter to Davidson or any other employee and denied that he had told Mike Davidson, in particular, that he would be inducted into membership in the union on February 27th. During cross-examination by respondent counsel, Beattie denied also that he discussed with Davidson prior to February 27th any letter from the union. He testified in-chief that Davidson had asked him a couple of times how he felt about the union, but seemed to be satis­fied when Beattie responded that he did not want anything to do with the union. He admitted in cross-examination that his response was a lie, but stated that he had lied in order to protect his job. Beattie testified further in cross-examination that the subject of the union was brought up by Davidson while he was telling Beattie about some past event. Beattie recalls the first conversation as being approximately one week after he was hired and that, on this and the other occasions, Davidson expressed a dislike for the union and the opinion that it was useless and the people run­ning it did not know what they were doing. Beattie acknowledged that Davidson did not make any reference in those conversations to what might happen to the respondent if its employees were unionized".

81. Beattie was late for the union meeting on February 27th and missed the swearing in. He had gone directly from the shop in his work clothes and one of his uncles told him to go home, change his clothes and return to the meeting. When Beattie left the union hall, he noticed Mike Davidson and his sister Angela in a car. He waved to them, but the car continued past him and out of the parking lot to the street. Beattie had met Angela Davidson at Mike's home. Beattie was on friendly terms with him and they saw each other socially about once a week. The parking lot is shared by the union and a funeral home. Therefore, the next day after Beattie picked up Mike Davidson for work, he asked Mike if he and his sister had been to the funeral home. Mike David­son replied that he had been there to check who was at the union meeting and he acknowledged to Beattie that he had seen him there. He did not tell Beattie how he came to be watching the union hall. Davidson denied sending his brother and sister to watch the union hall. He disclaimed having any knowledge of it before he received the Board's notice of the application for certification. The incident was referred to in the particulars filed respecting the respondent's alleged, unfair labour practices. He testified that he spoke to his brother about the incident because he was upset by the claim, but his brother did not offer any explanation and Davidson did not ask him for one because he thought that it had been a stupid thing to do. He also stated in cross-examination that he did not discuss with Mike anything about the respondent unless it related directly to a job Mike was work­ing on.

82. Beattie did not tell either Davidson that he had become a member of the union. He continued to work the remainder of that week and Monday of the next week, March 5th. The next morning, he picked up Mike Davidson as usual. They stopped at the shop and while Beattie loaded some materials on the truck, Mike Davidson went into the office. When he returned to the truck, he told Beattie that he could not work any more for the respondent because he had become a member of the union. When Beattie asked Mike Davidson why he could not work any more for the respondent, Mike replied that his brother could get into a lot of trouble if Beattie continued to work for the respondent. Beattie took Mike Davidson's remarks to mean that he was fired. He stated that he drew that conclusion because he had considered Mike to be his foreman from the start of his employment and because William Davidson had told him a few days before that he would not be able to work for the respondent if he joined the union. Beattie left the shop, went directly to the union, reported that he had been fired, and was sent to work for another employer. He testified that he did not tell either Davidson on or after March 6th that he had quit. Davidson denies that he instructed his brother to tell Beattie that he could not work any longer for the respondent because he had joined the union.

83. Davidson was on vacation at the time and returned on March 9th. Before he left on vacation, he told Beattie that he had left pay cheques with Fairfax made out for forty hours for the week ending March 3rd. He told the Board that he informed all of the employees that he had left cheques for them. The employees were paid weekly on Thursdays, although they often received their cheques on Wednesday. Fairfax decided to hold back Beattie's cheque and he did not get a cheque until March 9th when Davidson returned. Fairfax testified that he acted on his own to with­hold Beattie's cheque because it was made out for 40 hours and Beattie had worked only until 11:00 a.m. on March 2nd. Fairfax said that he was concerned that he might not be able to recover the overpayment because Beattie no longer was employed with the respondent. Beattie's version of the event was that he called Fairfax on Wednesday morning to arrange to get his cheque. Fairfax told him there was no cheque for him and told him to call back the next day. When Beattie called on Thursday Fairfax told him he would have to wait until Davidson returned from vacation on Fri­day. Fairfax denies telling Beattie that there was no cheque for him. Beattie eventually received a cheque from Davidson who delivered the cheque to Beanie at his home along with a U.I.C. Record of Employment form recording the reason for termination as "quit".

84. As already stated above, Nyman was not involved with the shop meeting on February 27th. His testimony about what happened to him on and after that date differs substantially from that of Davidson and Fairfax. According to Nyman, Davidson telephoned him late in the evening of February 27th and told him that he was not needed for February 28th. Davidson did not offer him any reason. At the time Nyman had been working at the Red Lobster Restaurant job in Scar­borough. A few days earlier, Mike Davidson had told him that the respondent was over 300 hours behind on the project. Nyman did work on the project on the next two days, Thursday and Friday, March 1st and 2nd. Davidson left for vacation on March 1st. He made Elliott responsible for the field staff while he was away and left Fairfax in charge of the office. Elliott telephoned Nyman around 11:00 p.m. on Sunday, March 4th and told him that he did not need to show up for work on March 5th. Elliott called Nyman again on March 5th and told him that he was not needed for March 6th. Elliott gave no reason on either occasion why Nyman was not needed. Fairfax called Nyman between 7:00 and 8:00 a.m. on March 6th and asked him if he could get out to the Scarbor­ough Red Lobster job site. Nyman had car trouble and was unable to get to the job. Late that day, Nyman called Elliott about the rest of the week and was told to report for work. He worked March 7th and 8th, but not Friday, March 9th, although he had been scheduled to work. The reason he gave to the Board for not working was that he was angry about not getting his pay cheque the day before. He believed that he was the only employee who did not get a cheque and, in his words, "I thought they were trying to tell me something". Nyman testified that Fairfax told him that there was no cheque for him and he would have to await Davidson's return for his cheque. Nyman spoke to Davidson on the telephone late Friday afternoon. According to Nyman, Davidson told him that he had forgotten to make it up and would bring it to his home that evening.

85. Fairfax and Davidson each gave different versions of those events. Fairfax stated that he told Nyman on Thursday when he asked for his cheque that he would have to wait until the next day. Nyman neither asked for nor got any reason. Fairfax denied telling Nyman that there was no cheque for him. Fairfax told the Board that he withheld Nyman's cheque because he was certain Nyman had not worked the forty hours for which the cheque had been made out. Fairfax testified also that he had told Nyman on March 6th that he was needed for the remainder of the week. Davidson stated in-chief that Fairfax had withheld Nyman's cheque because he had worked only a half day on Friday, March 2nd and because sometimes he charged personal tool purchases directly to the respondent's account. Davidson did not mention the fact that Nyman had not worked on February 28th. In cross-examination by union counsel, Davidson denied that he had called Nyman on February 27th and instructed him not to report on the 28th. Davidson was challenged that Nyman would testify that Davidson had called him late in the evening of February 27th and told him not to come in on the 28th. Davidson's response was that Nyman's evidence would be wrong; that he, Davidson, would not cancel anyone late on the 27th who had been scheduled to work on the 28th, instead he would have had them come into the shop and work for four hours. Davidson acknowledged that, if Nyman had been "cancelled" in fact on February 27th, it would not have been for lack of work. Davidson disclaimed any knowledge of Nyman being told by anyone not to report for work on March 5th and 6th, except for being aware that Nyman had car trouble at the start of the week and had not come into work.

86. Davidson testified in-chief that he telephoned Nyman on March 9th to make arrange­ments for him to get his pay cheque, and criticized Nyman for his poor attitude in not coming to work that day and for not showing up for work on March 5th and 6th while Davidson was on vaca­tion. He stated that Nyman accused him of having a double standard about union membership because he, Davidson, belonged to the union but would not allow his employees to belong to it. Davidson claims that he told Nyman that he was entitled to his opinion but, he, Davidson, had not called him to discuss Nyman's opinions. Davidson telephoned Nyman again late on the afternoon of Sunday, March 11th to tell him where he would be working on Monday. Davidson testified that he made the call from his office in the presence of Elliott and Pitura. They had returned to the office from the Scarborough Red Lobster job where they had been working with two other employees. According to Davidson, Nyman told him he would not report on Monday because he felt that Davidson's criticism on Friday had been a slap in the face. It was also Davidson's testi­mony that, when he asked Nyman about working on Tuesday, Nyman told him he was quitting. Elliott testified that he and Pitura had asked Davidson for men for jobs and were present when he called Nyman. Elliott stated that he heard Davidson say "What do you mean you're not coming in and, then, "So you're quitting". He also testified that he had worked with Davidson and Pitura that day and had returned to the shop between 3:30 and 4:00 p.m.

87. Nyman's recollection of his conversations with Davidson on March 9th and 11th differs from Davidson's. He recalled having several conversations with Davidson during the weekend of March 9th to 11th. During these conversations, according to Nyman, he confronted Davidson on three matters: when would Davidson "sign him on" as an apprentice; when was he going to get the raise which he thought had been promised at hire; and, why did Davidson not have the "balls" to ask him if he was involved with the union. Nyman said that Davidson's response to that last state­ment was that it was unlawful for him to ask Nyman about union membership and, anyway, he ran a non-union shop. With respect to the apprenticeship, Nyman voiced his opinion to Davidson that he could not take Nyman on as an apprentice because the respondent did not have enough jour­neymen to do so. Nyman said that Davidson responded by telling him that, in his opinion, Nyman was not a good worker. Therefore, Nyman was surprised when Davidson called him on Sunday, March 11th about working on March 12th, and told Nyman that the respondent needed good workers. As a result, Nyman told Davidson that he was unsure whether he would work. He did not work on March 12th. He testified that he quit because he needed to look for a better job.

88. During his cross-examination by respondent counsel and counsel for the objectors, Nyman acknowledged that, when he was hired, Davidson was trying him out and he expected a decision would be made after six months. He agreed that would be approximately March 26th, and he had told Davidson on March 11th that he was quitting before he knew what Davidson's decision would be. He stated that his principal reason for quitting was, having learned by then that the respondent had few journeymen, he believed that he would have to wait too long to become an apprentice. He testified also that another reason for quitting was that he wanted more money and Davidson had told him that his work was not worth it, but had given no reason why he was not sat­isfied with Nyman's work. Also, respecting Davidson's telephone call on March 11th, Nyman stated that Davidson told him the respondent had lots of work. On re-examination he gave another reason for quitting. His hours of work had been cut in the week ending March 9th. He was given no reason for the cut, and believed that the respondent had lots of work.

89. Mike Van Goch was not employed by the respondent. He got the respondent's name, along with the names of a few other companies from Graeme Aitken. He told Van Goch that they were companies which the union wanted to organize. Van Goch had just finished a 10-week, in-class apprenticeship training course which had started on January 2nd. His recollection was that he telephoned the respondent after the end of the course and during the first or second week of March and met Davidson for an interview the following Sunday at noon. No one else was present. He is positive it was a Sunday because he visits his grandmother on Sundays and had dropped off his wife at his grandmother's home on his way to the interview. He describes the interview as hav­ing lasted fifteen to twenty minutes and that, at one stage, Davidson had told him that he would not be hired if he was from the union because he, Davidson, did not want his shop unionized. At the end of the interview, it was left that Davidson would telephone Van Goch and did so that eve­ning, telling him that the respondent did not need anyone just then. In cross-examination, when Van Goch was asked to be more specific about when he had called the respondent and when the interview took place, he related the events to the end of the apprenticeship course and stated that he had called on a Friday within one week of the end of the course, and that the interview had taken place on the following Sunday. He stated that he reported the interview to Aitken the next day when Aitken called him. He stated also that Davidson introduced the subject of the union early in the interview, but did not pursue the subject after Van Goch told him he was not from the union. He claims that Davidson had said that he did not want the respondent to be unionized and did not want to hire anyone from the union. Davidson was challenged during his cross-examination that Van Goch would testify that Davidson had interviewed him on or about March 11th and had told Van Goch that the respondent was non-union and going to stay that way and, if he wanted to work for the respondent, he should have nothing to do with the union. Davidson's response was that, if Van Goch said that he was interviewed by Davidson on Sunday, March 11th, he has never given an interview on a Sunday, does not discuss the respondent's business with anyone, does not know the name Van Goch and, the alleged conversation never took place.

90. With respect to the matter of the work which Nyman was performing for the respondent prior to the termination of his employment, and whether he would have been employed as an apprentice electrician had he been employed by the respondent and performing that work on March 12th, the relevant evidence is as follows. Nyman entered into a contract of apprenticeship with the Local Apprenticeship Committee of Central Ontario for the Electrical Trade. It is an employer within the meaning of section 1 of the Trades Qualification Act, R.S.O. 1990, c.T.17 [formerly the Apprenticeship and Tradesmen's Qualification Act]. For ease of reference, the Board will refer to that Act as the "Trades Act". The contract was registered under that Act with the Director of Apprenticeship on February 23, 1990. That is also the effective date of the contract. Nyman did not inform Davidson of the contract and he had no knowledge of it. According to Davidson, during Nyman's employment, eighty-five percent of his working time involved picking up and delivering materials and performing work which Davidson described as labouring work and fifteen percent involved helping electricians. He described the labouring content as cleaning the shop and the respondent's van, trenching, painting plywood backboards, some carpentry, installing ceiling T-bars which support light fixtures, installing the fixtures and installing the light tubes in the fixtures. Davidson described the clean-up work as straightening up materials in the shop and in the respondent's vans, putting tools in order and disposing of scrap materials. Davidson did not place any estimate on the amount of time Nyman spent on clean-up. With respect to trenching work, Davidson testified that Nyman did trenching on and off during three days on a job in Lowville and for a total of sixty-two hours on the Harvester Road job. He also did trenching on the Scarborough Red Lobster job during four days in each of the weeks ending February 23rd and March 3rd. The trenching on that job was for an outside duct bank. It involved the use of a jackhammer to break the ground and, after a contractor removed the earth, using shovels to trim the sides and bottom of the trench. After the ductwork was installed in the trench, Nyman helped with the concrete pour over the ductwork.

91. Beattie testified about work he saw Nyman do on the Scarborough Red Lobster job. His evidence-in-chief was that he worked with Nyman three to four days per week near the end of his own employment. He described work performed by Nyman as including hooking up pot lights, running wire for electrical outlets, pulling wire through conduits, strapping conduits to walls and ceilings. He elaborated on that evidence during his cross-examinations by counsel for the respon­dent and for the objectors. He testified that Nyman came to the Red Lobster job while Beattie and Mike Davidson were installing pot lights. Beattie's evidence did not pin point when that was, but Beattie testified that he was on vacation during the two weeks ending February 17th and 24th. It is clear from documentary evidence, supported by viva voce evidence that Beattie was on that job during all of the week ending March 3rd and on March 5th. Beattie estimated that there were sev­enty-five to one hundred pot lights to be installed. Mike Davidson told Nyman what work he could/could not do. Nyman worked from blue prints and placed wire for the pot lights. Beattie showed him how to hook up the lights and Nyman did the work. Nyman also helped Beattie and Mike Davidson pull wire when needed.

92. Nyman testified in-chief that his pick-up and delivery work involved no more than two or three hours at a time and less than two days per week; that he did no painting and did a total of approximately four hours of carpentry work. He agreed that he did trenching on the Harvester Road and Scarborough Red Lobster jobs, but denied doing any on the Lowville job. The trench was already dug on the latter job and he worked on pulling in the wiring and installing an outside fixture. He was on the Scarborough Red Lobster job doing trenching for two to two and one-half days, working at first with Mike Davidson and Tom Postulnik. Later, they were joined by David­son, Elliott and Pitura. On the Harvester Road job, Nyman stated that the trenching work which he did involved approximately two hours of trenching and laying ductwork. Nyman also described in-chief other work which he did for the respondent. It included pulling wire, hooking up fixtures, installing receptacles, switches, baseboard heaters and cooling fans. He performed that work on the Ennisclaire Centre, Harvester Road and Kelley's Restaurant jobs and on a job in Dunnville. He worked with Elliott who showed him what to do. Nyman did the work and Elliott checked it. He testified also that he worked with Beattie on the Scarborough Red Lobster job installing pot lights and pulling wire, work which he said Beattie was doing as well. He did whatever work Beat-tie gave him to do, as he had done with Elliott on the other jobs. Nyman also owned his own hand tools and used them on the work described above. He saw Elliott, Pitura and Beattie using the same kind of tools when he worked with them. The Board notes that the tools he described are commonly used in the electrical trade. Nyman was not shaken on cross-examination of his evidence about the work which he did for the respondent. He stated that he spent approximately one hour per month cleaning the shop and he agreed that he spent a lot of time on jobs pulling wire. Elliott did not testify about any of the work which Nyman said he did with him.

93. Where, as here, it has been alleged that an employee has been discharged or otherwise dealt with contrary to the Act "...as to his employment, opportunity for employment or conditions of employment...", subsection 91(5) of the Act places on the employer the burden of proving that it did not act contrary to the Act. The subsection states:

(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. R.S.O. 1980, C.228, S.89 (1-5).

The Board in The Barrie Examiner, [1975] OLRB Rep. Oct.745, at paragraph 17 defined as fol­lows the standard of proof required of an employer in order to satisfy the Board that the employer did not act contrary to the Act:

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] O.L.R.B. 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.

While in that case the Board was dealing with an alleged discharge of an employee, the principle applies to any allegation that an employee has been dealt with contrary to the Act with respect to his employment, opportunity for employment or conditions of employment. Thus an employer must establish on the balance of probabilities that its conduct which is alleged to constitute the vio­lation of the Act was not tainted by anti-union motive in order for the employer to satisfy the Board that it has not contravened the Act. That burden requires the employer to be forthcoming with credible evidence that its impugned conduct was free of any anti-union motive.

34. Were the Board to accept Davidson's evidence and, where it conflicts with the evidence of Beattie, Nyman and Van Goch, prefer his evidence to theirs, the employer would be found to have satisfied the burden of proof that it had not acted contrary to the Act. In that result, the com­plaint and application would be dismissed. Unfortunately, there are credibility problems with the testimony of all four of them which make it difficult to resolve the conflicts in their evidence, although the problems are not of the magnitude which would discredit all of the testimony of any of them. Clearly, there is significant conflict in the evidence of Davidson and Beattie about the events preceding the termination of his employment. Certain of Beattie's evidence stands uncon­tradicted, however: his evidence that Mike and Angela Davidson were outside the union hall where Beattie attended the union meeting on February 27th, that on the next day Mike Davidson told Beattie that he had been there to observe who was attending the meeting, and that Mike Davidson had told Beattie on March 6th that he could not work for the respondent any longer because he was a member of the union.

35. The last of those events is a critical element in the issue of whether Beattie's employ­ment was terminated because of his union membership or his exercise of other rights under the Act. If Mike Davidson exercised managerial functions for the respondent or acted at Davidson's request or with his condonation, his conduct would constitute a breach by the respondent of sec­tion 67 of the Act. While the applicant had contended in its pleadings that he was a foreman for the respondent, in final argument, applicant counsel acknowledged that the evidence fell short of establishing that fact.

36. Counsel argued, however, that Mike Davidson was the conduit through which Beattie received Davidson's orders respecting what jobs he was to be on and what work he was to do on them, and that on the job, Mike Davidson assigned work to Beattie and determined when they were to start and finish work. Those factors, coupled with Beattie's respect for Mike Davidson on

the job and the fact that he was the brother of the owner of the respondent, made it reasonable for Beattie to assume that Mike Davidson had more authority than Beattie did. Thus, as the Board understands counsel's argument, it was reasonable for Beattie to assume that Mike Davidson was acting on behalf of the respondent when he kept watch on the union hall to see who attended the meeting and when he told Beattie that he could no longer work for the respondent because he was a member of the union. All of which, according to counsel, made it essential that the Board hear Mike Davidson's explanation of his actions. The respondent's failure to call him and have him explain his conduct should cause the Board to draw the inference that his evidence would have been adverse to Davidson's claim that he neither condoned his brother's conduct nor had asked his brother to watch the union meeting or tell Beattie he could no longer work for the respondent.

37. The Board agrees with respondent counsel that Beattie's own evidence does not support a conclusion that Mike Davidson was the conduit through which Beattie got Davidson's orders. It agrees also with counsel that Beattie's starting and quitting times were simply a factor of him and Mike Davidson travelling to and from work together and that any recognition of "higher author­ity" which Beattie may have had for Mike Davidson was simply recognition of his greater experi­ence in electrical work. That does not mean, however, that the Board is unconcerned about the respondent's failure to call Mike Davidson as a witness. The Board has no ground for not believing Beattie's uncontradicted evidence about him watching the union hall on February 27th to see who went to the meeting and that he told Beattie on March 6th that he could no longer work for the respondent because he was a member of the union. There is absolutely nothing which suggests that those events are a total fabrication. Without Mike Davidson's testimony, the Board is left with no explanation for his conduct and with Davidson's bald denial that he had nothing to do with his brother's conduct. If Davidson had neither authorized nor instructed his brother to take either action on February 27th or on March 6th, it is difficult for the Board to understand Mike David­son's conduct on those two days. If he was not acting on his brother's behalf, why would he act on his own to watch the union hall to see who attended the union meeting and to later tell Beattie that he could not work for the respondent anymore because he was a member of the union? He and Beattie were not just co-workers, they were friends who socialized outside of work on a weekly basis and continued to do so even after Beattie ceased working for the respondent. By not calling Mike Davidson to testify, the respondent has deprived the Board of his explanation for his conduct and left it with a significant gap in the evidence about a material allegation of unfair labour prac­tices of which Mike Davidson would have knowledge. Coincidentally, the Board also was deprived of his testimony concerning whether, after the shop meeting on February 27th, he had told Beattie to report to Davidson's office. While that evidence would neither prove nor disprove Beattie's claim of a private meeting with Davidson, it might have helped resolve the conflict in that evi­dence.

38. The Board has no explanation why the respondent did not call Mike Davidson and, in the circumstances just discussed, the Board is satisfied that he should have been called. Therefore the Board is justified in drawing the inference that Mike Davidson's evidence would have been unfavourable to the respondent. That justification is reinforced by the respondent's obligation under subsection 91(5) of the Act to establish on the balance of probabilities that it has not acted contrary to the Act, and the associated evidentiary obligation to be forthcoming with credible evi­dence that its impugned conduct was free of anti-union motive. In the Board's view, there are rea­sonable grounds in the circumstances of this case to infer that Mike Davidson's evidence would have revealed that he was acting on Davidson's behalf and on behalf of the respondent when he watched the union hall on February 27th to see who attended the meeting and when he told Beat-tie on March 6th that he could not work for the respondent because he was a member of the union, and the Board so infers. The Board finds, therefore, that through Mike Davidson, the respondent made it clear to Beattie that, at the very least, his membership in the union was incompatible with his continued employment by the respondent.

39. That finding of an anti-union motive for the respondent's action has ramifications far beyond those two incidents. Davidson repeatedly denied statements and actions attributed to him which, if found to have been made or taken, would demonstrate clearly an anti-union animus. There can be no doubt that, when Davidson speaks or acts, it is the respondent speaking and act­ing. That was evident from his demeanour as a witness. It was also made clear by specific evidence like that which caused the Board to agree with respondent counsel that Mike Davidson was not the conduit through which Beattie got his orders from Davidson. They passed from Davidson to Beat-tie directly, as they did to the other employees. Therefore, in light of the inference drawn by the Board and its conclusion that the respondent made it clear to Beattie that his membership in the union and employment with the respondent were incompatible, the Board is of the further view that Beattie's evidence is to be preferred over that of Davidson where their evidence conflicts respecting what was said by either of them about the union generally and Beattie's membership or non-membership in it in particular. Their evidence about what took place at the shop meeting on February 27th is the only evidence because, of the employees attending the meeting, only Fairfax and Elliott testified in these proceedings, and they did not testify about the content of the meeting. As a result, the Board makes the following findings of fact and notes that, because of these find­ings, it is unnecessary that the Board resolve the conflict in the testimony of Davidson and Van Goch.

40. Davidson raised the subject of the union several times in conversations with Beattie prior to February 27th, beginning approximately one week after he was hired. Davidson inquired of Beattie whether he was interested in the union. He also expressed to Beattie his dislike of the union and his low regard for the persons running it, but made no references to what might be the consequences if the respondent was unionized. At the meeting in the shop on February 27th, attended by all of the respondent's employees at the time, except Nyman, Davidson:

(1) asked Beattie whether he would be attending the union meeting that eve­ning and, when Beattie responded that he would be attending because he had been invited to be inducted into membership, Davidson told Beattie that the respondent was non-union and he could not work for the respondent if he became a member;

(2) told Beattie that he wanted Beattie to continue working for the respon­dent and not to join the union;

(3) told Beattie that he would be getting a raise if he stayed, that the respon­dent would soon be introducing benefits for its employees, and that the respondent would soon be one of the largest non-union shops with lots of work;

(4) stated several times during the meeting that if the union came in, the respondent would close and everyone would lose their jobs;

(5) was critical of the union when it was the subject of discussion; and,

(6) speculated openly as to whether Nyman might also be going to the union meeting that night, in which he was joined by Pitura and Elliott.

After the shop meeting, Mike Davidson told Beattie that Davidson wished to see him in his office.

Beattie met Davidson alone in the office for approximately fifteen minutes. During the meeting, Davidson told Beattie again that he wanted Beattie to continue to work for the respondent and did not want him to join the union, that he would be getting a raise if he stayed, that the respondent would be bringing in benefits for its employees and that the respondent would close if the respon­dent was unionized.

41. Davidson's remarks in the shop meeting to Beattie and generally, made it abundantly clear to the employees there, that the union would not be welcome at the respondent, and that the security of their employment was at risk if the respondent became unionized. That message would not be lost on Iairfax and Elliott when Davidson left them in charge of the respondent's operations while he was on vacation from the 1st to the 9th of March. They were parties to several incidents involving Nyman while Davidson was on vacation. It is uncontradicted that Nyman received a call from Elliott late on the night of Monday, March 4th advising him that he was not needed for the 5th, another call on the 5th that he was not needed for the 6th, only to be asked by Fairfax on the morning of the 6th if he would work on the Scarborough Red Lobster job that day. Elliott had given Nyman no reason for telling him that he was not needed.

42. That is similar to the treatment which Nyman claims he received from Davidson on February 27th, just before he went on vacation. His evidence is uncontradicted that Davidson had told him at the shop after work that day to report to the Scarborough Red Lobster job the next day. Davidson denies that he called Nyman late on February 27th and told him that he was not required on the 28th. In view of the Board's findings about Davidson's conduct at the shop meet­ing on the 27th, the Board prefers Nyman's evidence. It is not seriously contended that there was insufficient work for Nyman on February 28th and March 5th and 6th and the Board is satisfied that lack of work was not a reason for Nyman not being assigned to work on those days.

43. The last thing which happened to Nyman while Davidson was on vacation was Fairfax' withholding of his pay cheque for the week ending March 2nd. That angered Nyman so much that he decided not to work on Friday, March 9th. Nyman thought that he was the only employee who had not received a pay cheque on March 8th and believed that, to use his words, "...they were try­ing to tell me something".

44. The remaining incidents involving Nyman before he quit occurred between him and Davidson after Davidson returned from vacation. The evidence shows that they had at least two telephone conversations, one on March 9th and the other on March 11th. While their accounts of the conversations differ in detail, there is no doubt that Davidson was critical of Nyman on March 9th. He testified that he criticized Nyman for not working on March 9th and for failing to show up for work on March 5th and 6th while Davidson was on vacation. According to Nyman, Davidson told him that he was not a good worker after Nyman expressed his opinion that the respondent could not employ him as an apprentice electrician because it did not have enough journeymen elec­tricians. There is also no doubt that, when Davidson called Nyman on the 11th, he told Nyman that there was work for him on the March 12th. According to Nyman, this surprised him because, two days earlier, Davidson had told him that he was not a good worker and, because of that, he told Davidson he was unsure if he would work on the 12th. He did not work. Davidson's account of the conversation is that, when he told Nyman that he was needed on the 12th, Nyman told Davidson that he would not work on March 12th because of Davidson's criticism of him in the earlier conversation. Then, when Davidson asked him if he was going to work on March 13th, Nyman told Davidson that he was quitting.

45. The Board turns now to the issue of whether the employment of Beattie and Nyman, or

either of them, was terminated prior to March 12, 1990, the date of making of this application, because the respondent has engaged in unfair labour practices prohibited by the Act.

46. Davidson's remarks directed at Beattie in the shop meeting on February 27th and in the private meeting afterward were a clear message that Beattie could not be a member of the union and continue to be an employee of the respondent. The reasonable inference to be drawn from the message is that Beattie's employment with the respondent would be terminated if he joined the union. Carried no further, that is a threat aimed at compelling Beattie to refrain from becoming a member of the applicant contrary to subsection 67(c) of the Act. The threat became a reality on March 6th when Mike Davidson, on behalf of the respondent, told Beattie that he could not work for the respondent any longer because he was a union member. Whether or not Davidson or his brother knew for a fact that Beattie was a member of the applicant, belief that he was is implicit in Mike Davidson's statement to Beattie. Therefore, the Board finds that the respondent terminated Beattie's employment contrary to subsection 67(a) of the Act because of the belief that he was a member of the union. Bearing in mind that, during January and February, Beattie had been inject­ing references to the union into negative comments made to employees about the respondent's wage rates and Friday hours and had begun trying to organize the respondent's employees immedi­ately after he became a member on February 27th, and that Nyman had started talking to the employees in mid-February, and having regard to the conclusions drawn below respecting David­son's remarks in the two meetings on February 27th, the Board finds also that the termination of Beattie's employment was a violation of sections 65 and 71 of the Act.

47. Had Davidson confined his remarks at the shop meeting to criticism of the applicant, they might be seen as nothing more than the exercise of his freedom to express his views within the meaning of section 65 of the Act. They were not confined, of course. In addition to his remarks directed at Beattie just referred to, he promised Beattie a raise if he stayed with the respondent, a condition which precluded membership in the union, stated that the respondent soon would be bringing in benefits for the employees and stated several times in the course of the meeting that the respondent would close if the union came in. The last statement, standing alone, is a direct threat to the employees' livelihood and to their security of employment should they choose to exercise their right under the Act to join a trade union, and is a serious breach of sections 65 and 71 of the Act. When the respondent's termination of Beattie's employment is seen in the context of that threat, the threat to Beattie's own employment and the promise of benefit made in front of other employees, and privately, and bearing in mind that, by then, Beattie and Nyman had been talking to employees about the applicant, an unmistakable message was left with the other employees of the consequences which might befall them if they were to join the union or support its attempts to organize the respondent. That is why the Board found above that the termination of Beattie's employment was also a violation of sections 65 and 71 of the Act.

48. Nyman's case is different than Beattie's insofar as Nyman quit his employment. None­theless, if he quit because of the respondent's unfair labour practices, the termination of his employment would be de facto a discharge contrary to the Act. For purposes of the Act, it would be as though he had not quit because subsection 1(2) of the Act provides that no person shall be deemed to have ceased to be an employee by reason only of his ceasing to work for his employer as the result of his being dismissed contrary to the Act.

49. If there are grounds for concluding that Nyman's termination of employment was con­trary to the Act, they would have to be found in the way that the respondent dealt with him between February 27th and his quitting. His hours of work were suddenly reduced by three days, February 28, March 5th and 6th. No reason was given to Nyman at the time and none was offered to the Board at hearing. Davidson did offer the explanation that Nyman had previously expressed

a willingness to take time off when the respondent was short of work. The evidence is clear, how­ever, that Nyman had offered to take some time off for a specific purpose earlier in the year when the respondent was cutting back the hours of work for employees. It was not an offer to take time off whenever the respondent was short of work. In any event, there is no evidence of any shortage of work between February 27th and March 12th.

50. The manner in which his hours of work were reduced is significant. Davidson had told Nyman at the end of the work day on February 27th, while the shop meeting was in progress, that he was to report to the Scarborough Red Lobster job the next day. Sometime between the end of the meeting and late the same night, he changed his mind about Nyman working on February 28th. Similarly, with respect to March 5th, Elliott called him late on Sunday night, March 4th, to tell him that he was not needed on the 5th. There is no evidence that Nyman was told on Friday, March 2nd, that he might not be needed for March 5th. Next, while he was given reasonable notice on March 5th that he was not needed for the 6th, that instruction was reversed on the morning of the 6th when Fairfax told him that he was needed for the Red Lobster job. There is no evidence to jus­tify such abrupt changes to his work schedule. The clear message is that, to the extent that Nyman relied on the income from his job, there was not going to be much. There is little wonder that, two days later, when Fairfax withheld his pay cheque without offering any reason, Nyman, having been told by Davidson before he left on vacation that his cheque had been left with Fairfax, thought they were trying to tell me something. Given that Fairfax had no reason to believe that Nyman would not still be employed the following week, the Board finds the reasons given at the hearing unconvincing; that is, that Nyman had not worked the forty hours covered by the cheque or that he might have owed the respondent money for tool purchases. Finally, on Davidson's own version of the events, when he returned from vacation on March 9th, he criticized Nyman for not showing up for work that day, and on March 5th and 6th while he was away. Since the two latter days are the ones for which Elliott, whom Davidson had left in charge, had told him not to work, that criticism, coming as it did on the heels of the reduction of his income and the holding back of his pay cheque, would be reasonable, additional cause for Nyman to be concerned about the security of his employment and skeptical about Davidson's call two days later telling him to report for work the next day.

51. If there were good business reasons for those actions, they were not given to the Board. Moreover they began immediately after the shop meeting on February 27th, at which Davidson speculated about Nyman's interest in the union and seriously breached sections 65 and 71 of the Act by making it clear to the employees, including Elliott and Fairfax, that their employment secu­rity was at risk if the respondent became unionized. Viewed in that context, the Board is satisfied that Davidson, Elliott and Fairfax took those actions because they believed Nyman to be a sup­porter of the applicant and to make his employment so difficult and unpleasant as to provoke him into quitting. He did quit, and the Board is satisfied that the actions of Davidson, Elliott and Fair­fax contributed significantly to Nyman's decision to quit. Therefore, because their actions were motivated by the belief that Nyman supported the union, the Board finds their actions to be a breach of section 65 and subsection 67(a) of the Act.

52. In the result, the Board finds that Kevin Beattie and Claas Nyman were discharged because of the respondent's unfair labour practices contrary to sections 65, 67 and 71 of the Act. Therefore, they continue to be employees of the respondent for purposes of the Act in accordance with subsection 1(2) of the Act and, but for the respondent's unlawful conduct, would have been at work on March 12, 1990 when this application was made. There is no dispute that Beattie would have been at work in the bargaining unit on that date, and the Board so finds. In Nyman's case, the Board must determine whether he would have been employed in the bargaining unit had he been at work on March 12th.

53. In an application for certification under the construction industry provisions of the Act, in order for an employee to be "counted" as employed in the bargaining unit, it is well settled in the Board's jurisprudence that the employee must actually be at work in the unit on the date of making of the application. Where, as here, the application for certification relates to the industrial, commercial and institutional sector of the construction industry and is made under subsection 146(1) of the Act, the applicant can represent only those employees in the trade which the Minister of Labour has designated the applicant to represent in collective bargaining in the industrial, com­mercial and institutional sector. For this applicant, that is journeymen and apprentices in the elec­trical trade, and for that trade, the Board defines the appropriate unit in terms of "all electricians and electricians' apprentices" in the employ of the respondent. See the unit described at paragraph 7 of this decision. In the circumstances of this application for certification, Nyman was not at work at all on the application date because of the respondent's unfair labour practices. Therefore, if he is to be counted, the Board must be able to infer reasonably from all of the evidence that, on the application date, he would have been at work as an electrician's apprentice.

54. The evidence relevant to this issue is set out at paragraphs 30, 31 and 32 of this decision. Having regard to that evidence and the submissions of counsel respecting which work Nyman was performing, the Board makes the following findings of fact. Nyman was registered as an electri­cian's apprentice under the Trades Act on February 23, 1990, pursuant to a contract of apprentice­ship with the Local Apprenticeship Committee of Central Ontario for the Electrical Trade ("the L.A.C.") entered into on the same date. The L.A.C. is an employer within the meaning of section I of the Trades Act. The respondent had no knowledge of the contract of apprenticeship or of Nyman's registration under the Trades Act prior to the termination of Nyman's employment. Prior to and after Nyman's registration as an electrician's apprentice, he was employed performing work which falls clearly within the work by which the trade of electrician is defined in clause (b) of sec­tion 1 of Regulation 32 under the Trades Act. This work which he did before he was registered included stringing wire, hooking up electrical fixtures, installing receptacles, switches, baseboard electrical heaters and cooling fans. The work which he did after his registration was on the Scar­borough Red Lobster job and included helping others pull wire, stringing wire for electrical outlets and pot lights, connecting pot lights, pulling wire through conduits, and strapping conduits to walls and ceilings.

55. In addition, he did the following work which Davidson described as labouring work and which the Board finds is work which is arguably covered by Regulation 32: installing ceiling T-Bars for the support of light fixtures, installing the fixtures and installing light tubes in the fixtures. Finally, he did trenching, which Davidson also considered to be labouring work. He did two to two-and-one-half days of this type of work on the Scarborough Red Lobster job and a few hours on an earlier job. The trenches were for electrical conductor enclosures, or ducts, for putting wir­ing underground. In the Board's experience, this type of work is done by construction labourers and by electrical tradesmen. For an example of this type of work and the issue of which of these two trades perform it, see K-Line Maintenance and Construction Ltd., [1979] OLRB Rep. Dec 1185. It is not uncommon for small electrical contractors to assign such work to electrician's apprentices. Therefore, since Nyman did trenching in conjunction with other electrical work, it would be reasonable to find that he was working in the trade when he was performing that work.

56. When the time spent performing all of the foregoing work is compared with the time he spent on other tasks which Davidson described as labouring work, the Board is satisfied that, for the majority of the time when Nyman was employed by the respondent, he was performing work of the electrician trade, whether before or after his registration as an electrician's apprentice.

57. Counsel for the respondent and for the objectors argue that, for it to be inferred that Nyman was employed in the bargaining unit on the date of making of the application, he must be more than an electrician's apprentice registered under the Trades Act that is, he must be employed as an apprentice. In that respect, Nyman did nothing to make the respondent aware that he was party to a contract of apprenticeship and did nothing to establish the day to day reality of that con­tract. Counsel for the objectors argued more specifically that there must be a contract of employ­ment at common law which included a condition that Nyman was to be employed as an electri­cian's apprentice. There is no evidence of any meeting of minds between the respondent and Nyman in that respect. Objectors' counsel argues further that the requirement for a common law contract of employment which includes employment as an electrician's apprentice is reinforced by section 14 of the Trades Act which, he contends, requires that Nyman be party to a contract of employment as an electricians' apprentice in order to work in the trade. In addition, respondent counsel argues that the Board should not infer that Nyman would have been employed in the bar­gaining unit on the application date because he would not have been working as an electrician's apprentice. This is because the Scarborough Red Lobster job, on which he had been working before the termination of his employment, was winding down and most of the respondent's employees were working on it. In those circumstances, he argues, it would make sense that Nyman, who was hired and paid as a labourer and had no prior electrical experience, would have been used to do labouring work.

58. Applicant counsel argued that the question for the Board is whether, on the application date, Nyman would have been doing bargaining unit work for the majority of his time. To answer that question, he submits, the Board must focus on whether the work which he was doing at the material time, was work of the electrical trade and whether he was registered under the Trades Act to perform that work. In that respect, counsel argues, Nyman had met all of the requirements of the Trades Act for registration as an electrician's apprentice and was in fact so registered. His par­ticular employment relationship with the respondent, including whether there was a contract of employment at common law which included a condition that Nyman be employed as an electri­cian's apprentice, is not relevant to whether he was doing work of the electrical trade and was reg­istered under the Trades Act to do it.

59. With respect to whether Nyman was doing work of the electrical trade at the material time, applicant counsel submits that Nyman had been working on the Scarborough Red Lobster job prior to the termination of his employment performing a variety of work covered by Regula­tion 32 under the Trades Act for the trade of electrician, and that he had performed similar work on earlier jobs, in each case using the tools of the electrical trade. During the time when he was performing that work on the Scarborough Red Lobster job, he was registered as an electrician's apprentice under the Trades Act. Applicant counsel submits also that any question about what consequences for the respondent or Nyman, if any, might flow from the fact that the respondent was unaware of Nyman's contract of apprenticeship was a matter of enforcement of the Trades Act, and not any issue for the Labour Relations Act. Nor is it the Board's responsibility to enforce the Trades Act, counsel submits.

60. The parties did not refer the Board to any legal authorities for their submissions on Nyman's status, other than their references to the Trades Act, and its regulations.

61. The trade of electrician is designated as a certified trade under the section 11 of the Trades Act. In order to be lawfully employed in that trade under the Trades Act, a person must either hold a certificate of qualification in the trade or be an apprentice in the trade. The Board is not responsible for enforcing provisions of the Trades Act, but, being a statute of general applica­tion, whenever the Board is determining an application for certification under subsection 146(1) of the Act involving a specific certified trade, the Board looks to the Trades Act as a guide to decid­ing whether a person is employed in that trade and is to be "counted" in a bargaining unit confined to that trade. See O. J. Pipelines Incorporated, [1989] OLRB Rep. Sept 976. When the Board decides who is to be counted, it is discharging its mandate under subsection 7(1) of the Act to "...ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union..." at the relevant time. Therefore, when the Board is dealing with a specific, certified trade, as here, it does not include in the unit any person who is not qualified pursuant to the requirements of the Trades Act to work in the trade even though the person may have been performing the work of the trade. One of the factors which the Board considers when deciding whether a person is an apprentice qualified in the certified trade is whether the person is registered under the Trades Act as an apprentice in the trade. If the person is a registered apprentice in the trade, then what is important and relevant to deciding whether the person is to be counted in the unit is the work which the person was doing for the employer at the time material to the application. The Board does not, and ought not, con­sider whether a registered apprentice is also under a contract of employment at common law which includes a condition that the person be employed as an apprentice.

62. Nyman is registered as an electrician's apprentice and the Board has found that he has spent the majority of his time, both before and after registration, employed performing work of the electrician trade for the respondent. The Board disagrees with respondent counsel's argument that it would not be reasonable to infer that Nyman would have been so employed on the date of making of the application because Nyman would have been doing labouring work on the Scarbor­ough Red Lobster job. Most of the work which Davidson had described as labouring work has been found by the Board to be work of the electrician trade. Even if he was hired as a labourer, the evidence as a whole about the work he performed for the respondent suggests to the Board that it is more likely that he would have spent the majority of his time performing work of the elec­trical trade, and the Board so finds. Therefore Nyman is an employee in the bargaining unit described at paragraph 7.

63. The list of employees is now settled. The respondent's employees who were employed in the bargaining unit on the date of making of this application are Duane Elliott, Ted Pitura, Kevin Beattie and Claas Nyman. Two of them were members of the applicant within the meaning of the Act on March 28, 1990, the terminal date fixed for this application. Therefore, but for sec­tion 8 of the Act, the only way for the applicant to be certified would be to win a representation vote. The Board turns now to the application of that section to the facts of this application.

64. The Board discussed the purpose of section 8 of the Act and the conditions required to be met in order for a union to be certified under the section in Trulite Industries Limited, [1983] OLRB Rep. May 821, the only authority referred to the Board respecting the section 8 applica­tion. The Board stated at paragraph 19:

65. Certification without a vote under section 8 was designed as a deterrent to illegal employer interference in union organizing campaigns, and a device to provide a meaningful remedy in those cases when the employer's interference undermines his employee' statutory rights, and, in addition, precludes the Board from undertaking its usual determination of employee wishes through a representation vote or an assessment of the union's membership evidence. In other words, section 8 is a kind of "second best" solution, to be applied where the employer's miscon­duct not only frustrates the union's organizing drive, but also impairs the Board's ability to ascertain whether the majority of the employees do or do not wish to be represented by a union. In order for a union to be certified under section 8 of the Act, the Board must be satisfied that:

1. the respondent employer has contravened the Act;

2. the contravention is of such nature that the true wishes of the employees are not likely to be ascertained in a representation vote or otherwise; and

3. the applicant union has membership support adequate for collective bar­gaining.

65. The Board has determined that the respondent has committed serious breaches of sec­tions 65, 67 and 71 of the Act, including the discharge of Beattie a few days after the shop meeting in which Davidson had made it clear to Beattie and to the other employees that membership in the union and employment with the respondent were incompatible. The Board has stated previously that, where an employee who is believed to be a union supporter has been discharged, there can be no more serious threat to the job security of those left behind. This is particularly so where, as here, there are only a few employees who on any day might be in the bargaining unit. In this case, there was the additional threat to the employees' job security in Davidson's statements that the respondent would close if the union came in. Nyman had started talking to employees two weeks before the shop meeting. He stated that the employees to whom he had spoken showed a sincere interest in the union. Beattie had been alluding generally to the union in comments to employees during January and February and then, immediately after the February 27th shop meeting, he started to explain the union to employees. He succeeded in developing an interest in some employ­ees for more information on the union and what it could do for them. A few days later he was gone, and a week later, so was Nyman. It is extremely unlikely in those circumstances that the applicant would have been able to develop enough support after their departures to be certified without a vote. In face of the respondent's contraventions of the Act, it is just as unlikely that the true wishes of the employees would be ascertained by a representation vote, even though the appli­cant has demonstrated enough support to be entitled to a representation vote. In these circum­stances, the Board is satisfied that the applicant has demonstrated that it has adequate support for collective bargaining.

66. Accordingly, the Board finds that, on all of the evidence before it, the applicant is entitled to and should be certified pursuant to section 8 of the Labour Relations Act without the taking of a representation vote. Since, in final argument, the applicant did not request any other remedy for the respondent's violations of the Act, the Board makes no other remedial order.

67. Section 146(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate to a successful applicant under subsection (1):

…..the board shall certify the trade unions as the bargaining agent of the employees in the bar­gaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 146(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 5 above in respect of all electricians and electri­cians' apprentices in the employ of Win. J. Davidson Electric Inc. in the industrial, commercial and institutional sector of the construction industry in the province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

68. Further, pursuant to section 146(2) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians' apprentices in the employ of Win. J. Davidson Electric Inc. in all sectors of the construction industry in the Regional Municipality of Hamilton-Wentworth, the City of Burlington, that portion of the geographic Township of Beverly annexed by North Dumfries Township and that portion of the Town of Milton within the geo­graphic Townships of Nassagaweya and Nelson, excluding the industrial, commercial and institu­tional sector, save and except non-working foremen and persons above the rank of non-working foreman.

69. In summary, having found that the respondent breached sections 65, 67 and 71 of the Labour Relations Act, the Board has exercised its discretion under section 8 of the Act to certify the applicant and has issued certificates to it pursuant to subsection 146(2) of the Act.