United Food and Commercial Workers International Union, Local 633 v. Barton Feeders Inc., 1993 CanLII 7813

United Food and Commercial Workers International Union, Local 633 v. Barton Feeders Inc.

[1992] OLRB Rep. February 89

2733-91-U; 4006-91-U United Food and Commercial Workers International Union, Local 633, Complainant v. Barton Feeders Inc., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. A. Correll and P. Grasso.

APPEARANCES: Michael A. Church, Charles William Richardson, Leslie Smith, Terry Mole and Ted Cameron for the complainant; B. Litt and Patrick Melady for the respondent.

DECISION OF THE BOARD; February 1, 1993

1. These are two related unfair labour practice complaints dealing with five lay-offs or ter­minations and a number of statements by the employer alleged to be breaches of sections 3, 65, 67, 71, 81 and 82 of the Act.

2. The hearing of these matters consumed seven days of hearing. Brian Litt, the manager of the respondent's plant in Owen Sound gave evidence for the respondent. Grievors Terry Mole, Leslie Smith, John Van Rooyen, and David Flood gave evidence for the union.

3. The respondent runs a horse meat plant in Owen Sound which is European owned. Brian Litt is its manager, and the senior person in Canada. The number of employees varied but was between 10 and 20 during the period in dispute. It was Mr. Litt's evidence that the business was going from bad to worse during the period of the disputed lay-offs and that was the sole reason for the lay-offs, with the exception of Mr. Van Rooyen, who was terminated for threatening him. It is the union's contention that each of the terminations was motivated by Mr. Litt's reaction to his learning of the union's organizational activities which commenced in October, 1991.

4. This case turns on its facts. The Act and the Board's jurisprudence are clear that the onus of proof is on the employer respondent to demonstrate that its activities were not motivated even in part by anti-union sentiment. We have set out our findings of fact below, and indicated where necessary our resolutions of conflicts in the evidence. In doing so, we have had regard for the demeanour of each of the witnesses, the internal consistency of their evidence, as well as whether it accords with what appears probable in all the circumstances and the relative abilities of each of the witnesses to resist the pull of self-interest in giving their evidence. In this regard, we found the evidence of Mr. Litt to be unreliable in many respects. For instance, and most crucially, Mr. Litt gave several different dates as to when he learned of the union drive, depending on which event he was focused on. He started off saying he first learned of the union on November 19, 1991, then later said he did not learn of it until receiving notice from the Board, which would have been around November 25 or 27. It is clear from his own evidence that he knew at the latest by the time Bill Richardson, the union organizer, called him on November 19, and we have inferred from other events and his lack of consistency that he likely knew much earlier.

5. Contact was made with the union in early October, 1991. There was an organizational meeting on October 7, 1991, a few days after employees had been told that their afternoon break and Christmas bonus would no longer be available as a cost cutting measure.

6. With these general considerations in mind, we will deal with each of the allegations in turn in roughly chronological order.

Terry Mole's Lay-off

7. Terry Mole was laid off with no prior notice on October 23, 1991, together with another employee, Rose Heathers. The general reason given was lack of work. In Mole's case this was said to be because the main type of work he had been doing, referred to as Japanese injection, was declining, and was going to be phased out. He had at that point over four years of uninterrupted service, and had survived lay-offs earlier in the year. It is clear that he was considered a very good employee, as Litt had indicated less than two weeks before Mole's lay-off that if there was an increase in boning work as he hoped, Mole would head up that operation. Although the Japanese injection was phased out in December, 1991, there was still significant work in October. As well, orders were good for hind cuts, and Mole testified that they were quite busy with them just before his lay-off. Other employees were stunned at Mole's lay-off because Litt had "bragged" about Mole's prowess and speed on a number of occasions in the plant, and there were many less skilled people who were not laid off at the time.

8. Litt says he had discussed the possibility of lay-offs with the lead hands in advance, but had not told them he was laying Mole off in advance. Earlier he had said that he would usually tell his lead hands who was going to be laid off before the lay-offs happened.

9. Although having said earlier that the reason for Mole's lay-off was lack of work, Litt said on cross-examination that the suddenness of Mole's lay-off was due to the fact that there was meat missing on October 22 and that he suspected Mole of it. Several months before, Litt had sus­pected Mole as well as others; a police investigation ensued, but no charges were laid. Litt had never confronted Mole with any of his suspicions, but said this was because he was still trying to gather evidence on his own. There is no evidence corroborative of Litt's on this point. He said he had not even told the lead hands about the missing meat. His suspicions of Mole in October appar­ently related to his suspicions in March; we have no other evidence linking Mole with any missing meat in October.

10. Mole was one of the people Leslie Smith, the main in-plant organizer, had contacted about the possibility of unionization early on in her process of organizing, which started in the sec­ond week of October. When Mole was laid off, he asked Litt if it was because of anything he had done. Litt's response was to the effect that Mole should know that would be against the labour laws. Litt at first did not remember such a response at all, and then gave an unconvincing explana­tion that he had only made reference to labour laws in the context of requiring a separation slip. We prefer Mole's evidence on this point; his evidence was not subject to the same deficiencies as Litt's.

11. Litt gave Van Rooyen, another grievor, a different explanation of Mole's lay-off shortly thereafter; he said that Mole had had family problems. This apparently referred to a time over a year earlier when Litt had offered Mole leave to deal with a family crisis. At about the same time, Litt asked Van Rooyen if he had ever been a union steward.

12. The day before the lay-off, the other person laid off, Rose Heathers, had been asked if her husband was a union steward. Although her lay-off has not been grieved, this remark at least indicates that by his own admission a union matter was on Litt's mind the day before the lay-off of Mole and Heathers. Litt explains this remark as being related to something his secretary had raised from having played ball with Heathers' husband.

13. A few weeks after Mole's lay-off, Leslie Smith was laid off. Litt came to see her a few days later. One of the subjects discussed was Mole's lay-off. Smith told Litt that Mole had nothing to do with the organizing campaign and asked him why he did not let Mole go back to work. Her evidence was that his response was that he was still convinced he was an instigator and did not want to have anything to do with him. Litt used the word instigator in his evidence about Mole as well, although he said it referred to his suspicions about theft. We are persuaded that in the con­text of the conversation with Smith, it was clear that Litt had linked Mole with the union's organi­zational campaign in his mind. We have no evidence that missing meat was part of that conversa­tion at all.

14. Argument was made that a 28 day delay in filing the complaint about Mole's lay-off indicated it was not a valid complaint. This is not a delay of the magnitude that the Board has ever relied on to deny relief where it is otherwise warranted, and we decline to do so in this case.

15. We find that Mole was laid off in contravention of the Act. Although the business was having ongoing problems, there was no specific event that would explain Mole's lay-off without notice shortly after Litt had anticipated that he might be heading up the potentially expanded bon­ing operation. As well, on October 15, a fax from Belgium had suggested alternate crews rather than lay-offs as a means for dealing with the continued difficulties the business was experiencing. The fax had indicated that it was the owners' wish to keep everyone working. Mole's evidence as to his superior versatility to other workers with less experience who were retained was not seriously contested. If Litt had been genuinely concerned about Mole's honesty, it is improbable that he would have been contemplating giving him additional responsibility a short time before the lay-off. We are unpersuaded that the swiftness with which his lay-off followed the initial organizing activity in the plant was a coincidence. The fact that Litt gave several different reasons for Mole's lay-off also detracts from the overall credibility of his explanation of the lay-off.

Leslie Smith's and Daniel Fairbairn's Lay-offs

16. Leslie Smith was laid off on November 18, 1991. She was the key in-plant organizer, having contacted the union and collected membership evidence in the certification drive. Novem­ber 18 had been a normal day at work for Smith. However, at the end of the day, she had spoken to an employee, who later appeared at the certification hearing in opposition to the union, about signing a card. She had left this employee for last because she was unsure of his sympathies, but had decided that he had the right to have his say. During the course of the conversation he asked about Dan Fairbaim's views. Smith told him that he did not have to worry about Fairbairn, attempting to communicate that the employee should decide for himself. Later in the conversation she had cause to believe that he had taken it otherwise, and tried to clarify that Fairbairn was not an organizer of the union, and that people's wishes were to be confidential. The employee said he would think about it, and took a blank union card from Smith.

17. Having finished the conversation with this employee, Smith went home. Within a very short time of reaching home, Smith received a call from Fairbairn saying he had been laid off. This was shocking news to Smith, since Fairbairn was a long service employee with a good reputation. Within minutes of hanging up from talking with Fairbairn, Smith received a call from Litt who laid her off as well. He told her they were "going down" and that there was all kinds of meat missing. He hung up and called back moments later to ask if she had taken any meat. The next morning Litt told Van Rooyen that Smith was the scum of the earth and that she had stolen meat.

18. Smith asked her lead hand about the missing meat Litt had referred to. He told her there had been none missing for months except from the airport, and that he knew nothing about her lay-off before it happened. Smith had taken some meat from the plant in March, 1991, relying on other occasions when Litt had given her permission to do so, since he was unavailable to ask at the time. When Litt made an issue of missing meat around the same time Smith went to Litt, despite her lead hand's advice not to, explained that he had been busy at the time, and that she had not gotten back to ask him. She returned the meat; Litt took no action against her. The matter of missing meat had not been mentioned at all to her in the eight months between March and her lay-off.

19. When Smith went to the plant to get her separation slip, Litt asked her how she could sleep at night putting fellow employees out of work like this. Litt denies making this remark, but we prefer Smith's evidence which was given in a very credible manner. In context, it is clear Litt's remark referred to the union campaign. An argument ensued after which Smith left the plant.

20. The following Saturday, Litt acknowledges he called Smith and asked if he could come talk to her. He came to her house and explained to her why he was afraid of having a union come in - that he thought the plant would close. He referred to Terry Mole as an instigator and said he could not tolerate that sort of employee. Litt told Smith that if the vacuum packed meat work picked up she could return to work. Smith "went to bat for" Fairbairn, trying to convince Litt to rehire him.

21. In his testimony, Litt said that Smith was laid off for lack of work. Although Smith was a versatile worker, she had specialized in "blood work" earlier and that had been phased out. Then she had done the Japanese meat work which was being phased out. Litt said he had received a phone call from Belgium which caused him to lay her off on that particular day. It was Smith's evidence that there was plenty of work in the plant at the time.

22. Smith also testified that the manner in which she was laid off in November differed dra­matically in tone and notice from the way she had been laid off in June for lack of work. In June, Litt gave notice of the impending lay-off and asked if there were any volunteers. Only after that had he designated individuals to be laid off. He had apologized to her profusely at the time, com­plimenting her as a worker and saying the lay-off had simply become necessary. By contrast, in November, she had no notice, and his tone was glacial.

23. Smith is said to not have been sufficiently versatile to be reassigned. The employer argues that the fact that Litt later offered her the potential of return to work if more volume returned after she had said she was central to the organizing campaign should be seen as evidence of the lack of anti-union motivation in this case. Further, the employer's alternative argument is that even if Smith had been retained until the end of the Japanese injection in December, she would have been laid off directly after that.

24. Litt said Fairbairn was laid off for lack of work, and because he was not as versatile as other workers. Litt acknowledged on cross-examination that there were workers junior to Fairb­aim with similar skills who were not laid off, but said Fairbairn was getting slow. He told Van Rooyen the day following the lay-off that it was because Fairbairn was too short that he was laid off. Van Rooyen testified that Fairbairn, who had over 15 years of experience with the company was not too short to do the job, and David Flood, another grievor, testified that he was quite fast. We have no evidence that Litt had raised any of these issues with Fairbairn or anyone else prior to his sudden lay-off.

25. After Fairbairn asked Litt for his job back, Litt recalled Fairbairn a few days later. Litt says that Fairbairn explained to him skills he had that he had not known about. As Litt had worked with Fairbairn over the course of more than 15 years, it is difficult to believe that he did not really know what the man was capable of. No one else was laid off at the time of Fairbairn's recall, which tends to undercut Litt's testimony that the lay-off had been necessary because of lack of work.

26. The union alleges that Litt made a deal with Fairbairn that if he signed the petition against the union he would be recalled. Fairbairn was not at work when the petition was circulated, but the union alleges that his signature would be likely to be found on the petition submitted against the certification. It is not necessary to deal with this point as the other evidence is quite suf­ficient to support our conclusions in this matter. Further, it is inappropriate, both on general prin­ciples and in light of section 113 [formerly section 111] of the Act, to disclose who did or did not sign for or against the union except where necessary or the person concerned has disclosed it them­selves. Fairbairn did not testify, nor do we have any evidence that he otherwise publicly disclosed whether or not he signed the petition.

27. We have no hesitation in finding that both Smith and Fairbairn were laid off in contra­vention of the Act. Although as above, we accept that the company was having financial difficul­ties, the timing of the above sequence of events, together with the remarks made by Litt, make it highly improbable that Smith's union activities and Litt's perception of Fairbairn's did not play a major part in their lay-off at that time. There was no cogent explanation for the timing of these lay­offs. In light of the onus of proof and Litt's overall credibility, it is difficult to believe that the news of Fairbairn and Smith having been related to the union campaign had not reached Litt's ears and played a part in the motivation for their sudden lay-offs. The statement made to Smith that she might later be recalled, which had not materialized by the time of the hearing is insufficient to out­weigh the above considerations.

November 19

28. On November 19 several things happened at the plant. John Van Rooyen was laid off.

Litt made remarks to employees throughout the plant about the union and he received a call from

Bill Richardson, the union's business agent telling him that the union was organizing in the plant.

29. Van Rooyen's lay-off is defended on the basis that Van Rooyen agreed to it, or quit. The night before this lay-off Van Rooyen had been called at home for the first time in his employ­ment history and told he might have to be laid off. Shortly before Mole's and Heather's lay-off, discussed above, Litt asked Van Rooyen if he had been a union steward to which he had responded in the affirmative. On the day of Van Rooyen's lay-off, Litt approached Van Rooyen; a conversation ensued. Litt's and Van Rooyen's evidence differ somewhat, although the general parameters of the discussion are agreed. We prefer the evidence of Van Rooyen where it conflicts with that of Litt. It is clear that Litt was in an upset state that day, and we are not persuaded that his memory of the details is particularly clear. Litt told Van Rooyen he had heard that he had been at an organizing meeting with union lawyers. Van Rooyen told him his informants were wrong, but that he had supported the union. Litt told him he could not understand where his loyalty lay.

30. By the end of the discussion, Van Rooyen was convinced he was being laid off, and left the plant. It was Litt's evidence that this conversation with Van Rooyen was the first he had heard of the union, but we prefer Van Rooyen's evidence that Litt raised the issue of the union with him. We have concluded Litt knew about union activity before this conversation, as is evident from our conclusions about the Mole, Smith and Fairbairn lay-offs. We are persuaded that the motivation for the phone call to Van Rooyen the night before and the conversation the following morning was Litt's upset at the idea of union activity. Even if Van Rooyen "agreed" with the lay-off, it was clearly only because of the pressure from Litt, and Litt's new found lack of trust in him, which we find had its source in the news of union activity. Not long before this, Litt had demonstrated suffi­cient confidence in Van Rooyen to suggest he head up the Japanese meat section, which Van Rooyen declined because he was hoping to find other work. However he had not been able to get other work; we are satisfied that at the time of the November 19 lay-off, Van Rooyen did not plan to quit or independently wish to be laid off. We will deal with this further below.

31. Later on November 19, Litt made it clear to employees throughout the plant that he was very unhappy a union was being considered, and let all the employees know that he thought the plant would close if a union came in. Litt acknowledged most of these events, with some slight qualifications on some of the finer points. He testified that he felt betrayed by the idea that some­one would organize a union in the plant, that they would be disrespectful to the company and make trouble. Litt acknowledged he told the employees that Belgium would take a dim view of unionization and that it was up to the employees to choose in such hard economic times. Litt also told a story about an employee of his brother-in-law's who had stabbed him in the back after he had tried to help her, which some employees concluded was a thinly veiled reference to Leslie Smith. She had had some medical problems which Litt had treated sympathetically, to the knowl­edge of other employees, and had then contacted the union.

32. Litt said his comments about the union were in response to a phone call from the union, about which more will be said later. However, we are convinced he was confused about the sequence for a number of reasons. Firstly, we are persuaded that he was already upset about the union the night before and during the conversation of that morning with Van Rooyen. Secondly, it seems a reasonable inference that Richardson called when he did in response to the activities of Litt in the lunchroom, rather than vice versa. Flood testified that Litt came screaming through the plant asking everyone if they had signed a union card and saying that if the union got in the plant would close and said he would find a lawyer to tell him how to legally be an "asshole" to anyone who signed a card. Whether one accepts Litt's milder version of events or Flood's more dramatic one, it is clear that Litt was threatening employees as to the loss of their jobs if they exercised their rights under the Act. This is clearly illegal.

33. Given the above findings we find it unnecessary to make a finding on whether or not Litt was responsible for the posting of the article on the bulletin board highlighting the closure of a unionized plant.

34. Later on November 19, Van Rooyen came back to get his separation slip. He passed Litt on the phone. Litt, in an agitated state, tried to give Van Rooyen the phone, saying, "Here, it's Bill Richardson [the name of the union's business agent], you talk to him." Van Rooyen told Litt he did not know the man.

November 20 to December 31

35. On November 20, a vote was held in the plant by a number of employees. The ballots from this vote were later submitted to the Board as a petition in opposition to the certification of the union. Grievor David Flood testified that his lead hand had called him on the evening of the November 19 to ask him to do this petition. The Board, differently constituted in part, dealt with this petition in a decision dated January 28, 1992 declining to rely on it.

36. On November 21, Litt phoned Van Rooyen and asked him to return to work. Van Rooyen asked him if he would harass him and Litt said he would not. Van Rooyen returned to work a few days later. This is also the date that the first complaint in this matter was filed, although it is not clear if Litt had notice of it at that point. On November 22, 1991, the green sheets from the Board, giving notice of the application for certification, were posted.

37. Sometime in November, the evidence is not certain on what date, Litt was interviewed on a local radio station and said on air that Belgium would likely close the doors of the plant if it were unionized.

38. On December 4,1991 the Board received the ballots from the vote. Based on all the evidence before us, it would not appear that all the employees who signed a ballot were at work on November 20, the date when all of the ballots were said to have been collected.

39. On December 15, 1991, the Japanese meat injection processing was stopped.

Van Rooven's termination

40. On January 7, 1992, a hearing was held on the application for certification. The follow­ing morning, Mr. Litt spoke to David Flood about it. He communicated his disenchantment with the Board, who had ruled that the petition would not be relied on to have a representation vote. Litt told Flood he knew that there were four "yes" votes still in the plant, referring to the fact that it had become clear at the hearing that four employees had not signed the petition. Flood and Van Rooyen testified that Litt said he would make it miserable for those four. The next four people laid off are said to be the four who did not sign the petition. Litt says this had nothing to do with it; things were merely getting worse in the business. He says three were laid off for lack of work and Van Rooyen was fired for cause because he threatened him with a knife.

41. During the month of January, as well as earlier, Litt says he was trying to get productiv­ity improvements in the plant because of pressure from the European owners. He says that the interactions which the union labels harassment had to do with his effort to get figures on productiv­ity and to identify who were the most efficient workers. For Litt, the exchange which resulted in Van Rooyen's termination was but one example of his uncooperativeness.

42. On January 20, 1992, Litt asked Van Rooyen several times how long it would take him to bone a hind. Van Rooyen answered that he did not know - that there were a lot of variables and that he did not time himself. This was not an acceptable answer to Litt, who kept asking. Van Rooyen finally said about 15 minutes. Van Rooyen found this interaction to be further evidence of what he found to be a completely changed relationship with Litt after he came back from the certi­fication hearing.

43. It is unnecessary to set out all the details of the final exchange between Litt and Van Rooyen. We prefer Van Rooyen's evidence of it. He gave his evidence very candidly, and did not leave out portions uncomplimentary to himself. Litt's account of Van Rooyen's threatening him with a knife is less credible in all the circumstances. We find that Litt and Van Rooyen had a tense exchange, that Van Rooyen asked Litt to back up so he would not get hurt, not as a threat, but as a precaution, since he felt he had to keep working with the knives while Litt asked him questions, given Litt's attitude at the time. Litt's behaviour during the whole transaction was provocative, for example, accusing Van Rooyen of laughing when he had not been. Despite Litt's apology a few moments later and admission that his statement that Van Rooyen was laughing was not truthful, in his evidence Litt made much of Van Rooyen's having called him a liar.

44. It is argued on behalf of the employer that the fact that Van Rooyen returned to work despite the fact that he had told Litt on November 19 that he voted for the union is further evi­dence of the lack of anti-union sentiment on Litt's part. Alternatively, it is submitted that he would have been gone by March 6, the last day of work for Ian Adamson.

45. Based on the considerations set out earlier, we find that Van Rooyen's initial lay-off was motivated by anti-union sentiment. His recall a few days later was never explained, but it demonstrates that lack of work was not an urgent situation at the time. It does not prove lack of anti-union sentiment in the face of all of the other evidence and does not undo the harmful effect in labour relations terms of the initial lay-off. The above sequence which resulted in Litt's accusation that Van Rooyen threatened him must be viewed in light of Litt's earlier promise to make it miser­able for the four remaining "yes" votes, of whom he knew Van Rooyen was one from the conver­sations in November. On all the evidence before us, we do not accept that Litt's view of the inci­dent was correct. Rather, we find the discharge was in contravention of the Act because it was motivated at least in part by anti-union sentiment. It is extremely likely that, even if Litt thought at the time he had cause to fire Van Rooyen, this conclusion was coloured by his anger at Van Rooyen for having supported the union.

The lay-offs of Flood, Adamson and Cooper

46. About three weeks after Van Rooyen's lay-off, David Flood was laid off. A week after that Ian Adamson was terminated. Another five weeks later Mike Cooper was terminated. None of these men signed the petition against the union. The three were senior to Flarity, the petitioner, who was laid off three weeks after Cooper's termination.

47. These three terminations are challenged as the result of Litt's fulfilling his promise of early January to make things miserable for the remaining union supporters. Flood testified that Litt had been very hard on him for a few weeks after the certification hearing, but that things had improved a few weeks before he was laid off. Flood also said that on the day of Van Rooyen's ter­mination Litt asked him if he read the Bible and referred to a passage in the Bible about traitors. Litt denies this incident occurred. We prefer Flood's evidence on the point.

48. Flood had missed work one day in March 1991. Litt had seen him in an inebriated state the night before and wrote on his time card "dismissed". Before Flood had seen this, he had asked Litt if he still had his job, and Litt said yes. The employer argues that this was a firing and rehiring, and not a continuous employment. However, Flood's seniority on the sheet provided by the employer during negotiations before this point was in issue indicates his date of hire as previous to this incident. The employer says that a decline on the volume of vacuum packed meat caused Flood's lay-off.

49. We have some evidence that Cooper and Adamson were also subject to increased scru­tiny, and the union alleges that their terminations in advance of the petitioner Flarity further underscores their allegations about the grievors Flood and Van Rooyen. Flarity had been laid off before and then survived these lay-offs - the reverse of the situation with the grievors. Mole and Van Rooyen had been retained through the June lay-off. Litt said those he recalled in September, which included Smith, Flood, Cooper, Adamson and Flarity, were recalled because they were the best workers. Others who were laid off in June were never recalled.

50. The union did not dispute that times were difficult for Barton Feeders throughout the disputed period. However, it questions the timing of the last three disputed lay-offs. The union observes that despite several threats of plant closure for lack of work, nothing happened after the November lay-offs until after the certification hearing.

51. The employer says that even if seniority had been the governing criterion as the union wishes, all these people would have been laid off. For instance, it is said that Flarity and Adamson would have been gone in the Fall if seniority had been used, rather than the established employer policy that the best workers continue to work at time of lay-off.

52. It was submitted that the fact that the plant has continued despite the lay-offs demonstrates that they were necessary for economic survival. The lay-offs were described as business as usual in bad economic times. Argument on behalf of the employer stressed that declining volume was the only reason for the lay-offs. As well, it was observed that the employees demonstrated an awareness of the potential for lay-offs with declining work. It was the employer's memo addressing financial problems by cutting breaks and bonus that lead to contact with the union in the first place. It was further submitted by the employer that only four lay-offs would have been done if there had just been a campaign against the union supporters. Six were done and there has been no occasion to rehire since May of 1992.

53. With respect to the last three lay-offs, there is no doubt that the time were troubled for the business and that the three had low seniority. Further, other lay-offs were done subsequently. However, the timing of the lay-offs was not well explained by the respondent. Litt's general asser­tions that union activity had nothing to do with the lay-offs cannot be given a lot of weight in light of our earlier observations. We have accepted as credible the evidence of Litt's promise that things would be difficult for the four remaining yes votes. The next termination (Van Rooyen) and three lay-offs were those four. Although kill levels were not what they had been in previous times, there were not dramatic decreases that sufficiently explain the lay-offs. The average monthly kill was not generally much lower than before the post-certification promise, in December, when there were no lay-offs.

54. On balance, we find the respondent has not discharged its onus of proof. We are not persuaded that the lay-offs of Flood, Cooper and Adamson were not also tainted by anti-union ani­mus. Thus we find that their lay-offs were also in violation of the Act.

Remedy

55. We have found that all of the grievors were laid off in violation of the Act as their lay­offs were partly or wholly motivated by anti-union sentiment. They are to be reinstated as of the date of their lay-offs. They are all to be compensated, with interest, for their losses due to the unlawful lay-offs. In making this order we are aware that their lay-offs might well have taken place at some subsequent time for legitimate business reasons. We remit the question of whether or not they will actually return to work as well as the issue of quantum of compensation to the parties. We hereby authorize a labour relations officer to confer with the parties to assist them with the resolu­tion of any issues between them on these subjects. We will remain seized if the parties are unable to come to an agreement on the amount of compensation or the question of return to work for the grievors.

56. In the circumstances of the case, we are of the view that the most effective way to bring this decision to the attention of the employees in the bargaining unit is to order the attached notice to be mailed by the respondent to each of the members of the bargaining unit at their home address within fourteen days of the date of this decision. This is in further remedy for the above violations and the violations of threats to the workers' jobs if they exercised their rights under the Act.

57. For all the above reasons the complaints are allowed.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

By Order of the Ontario Labour Relations Board

We have issued this Notice in compliance with an order of the Ontario Labour Rela­tions Board issued after a hearing in which both the company and the United Food and Commer­cial Workers International Union, Local 633 had the opportunity to present evidence and argu­ment. The Ontario Labour Relations Board found that we violated the Labour Relations Act in respect of the lay-offs of Terry Mole, Leslie Smith, John Van Rooyen, David Flood, Michael Coo­per and Ian Adamson. It also found we violated the Act in threatening that the plant would close if the union came in.

The Act gives all employees these rights:

To organize themselves;

To form, join and participate in the lawful activities of a trade union;

To bargain as a group, through a representative of their own choosing;

To act together for collective bargaining;

To refuse to do any or all of these.

Barton Feeders Inc.

Per: (Authorized Representative)

DATED at Toronto this 1st day of February, 1993