Laundry and Linen Drivers and Industrial Workers Union, Local 847 v. CMP Group (1985) Ltd., 1993 CanLII 7870

[1993] OLRB Rep. December 1247

1922-93-U; 1923-93-R Laundry and Linen Drivers and Industrial Workers Union, Local 847, Applicant v. CMP Group (1985) Ltd., Responding Party

BEFORE: Brain Herlich, Vice-Chair.

APPEARANCES: E. M. Mitchell, Phillip Spurrell; Deirdre Hilary, Gurgit Pal Singh and Balwinder Sangha for the applicant; Brian W. King, Julie Padamsey and Salima Padamsey for the responding party.

DECISION OF THE BOARD; December 2, 1993

1. Board file 1923-93-R is an application for certification in which the applicant (also referred to as the "union") relies on section 9.2 of the Labour Relations Act. Board file 1922-93-U is an application under section 91 of the Act alleging violation of sections 65, 67, 71 and 81. The parties agreed that these two related matters ought to be heard together.

2. The Board is satisfied that the applicant is a trade union within the meaning of section 1(1) of the Act.

3. Having regard to the agreement of the parties the Board is also satisfied that:

all employees of CMP Group (1985) Ltd. in the Town of Oakville, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff,

constitute a unit of employees of the responding party (also referred to as the "company" or the "employer") appropriate for collective bargaining.

4. At the commencement of the hearing in these matters the parties agreed that the per­sons listed as #1 and #4 to Schedule D of the list of employees filed by the company ought to be deleted from that list. Subject to the union's assertion (which depends on the outcome of the sec­tion 91 application) that the grievors Baiwinder Sangha and Gurjit Pal Singh (both of whom were laid off prior to the certification application) ought to be added to the list, the parties were agreed that the lists filed by the employer for the purposes of the count were accurate. Regardless of the outcome of the section 91 application (which involves more than the layoff of the two named griev­ors), the union, in view of the membership evidence filed in support of the certification applica­tion, is in a dismissible position but for its claim under section 9.2.

5. The application under section 91 relates to the layoff of Balwinder Sangha (hereinafter referred to as "Sangha") on August 26, 1993 and of Gurjit Pal Singh (hereinafter referred to as "Gurjit") the following day. By decision of the Board (differently constituted) dated September 20, 1993 these two grievors were ordered reinstated on an interim basis pursuant to an application for interim relief in Board file 1924-93-M. The union also impugns the employer's conduct in rela­tion to a meeting of certain employees it conducted on August 26, 1993 and in relation to petitions it circulated and filed with the Board subsequent to the reinstatement of the two grievors. The applicant also claims that since his return to work, Gurjit has had his working hours unlawfully reduced by the company.

6. Hearing in this matter continued for five days; the Board heard the evidence of 12 wit­nesses; 32 documents were marked as exhibits. Many of the central witnesses for both parties testi­fied through Punjabi interpreters. The Board would be less than candid if it failed to acknowledge that evidence received in this fashion has not simplified its task. This is not a comment on the qual­ity of the translation provided~ but a general acknowledgement that certain nuances, inflections and other sometimes significant aspects of oral testimony may well go unappreciated by an adjudi­cator who is unable to understand a witness' evidence directly but must rely on the mediating effect of a third party translator. This is an unfortunate, but perhaps unavoidable infirmity inherent in a situation as the present one. However, I have felt compelled to comment on this not merely to acknowledge the difficulties generally posed by translated evidence, but because I felt there may well have been even further limitations in the present case. There were points in the evidence of certain witnesses (again, for both parties) where I felt genuinely perplexed. By way of general examples, on numerous occasions questions, which appeared to me to be relatively straightforward and simple, had to be repeated several times sometimes resulting in a series of answers which appeared only remotely related to the question posed and reposed. Similarly, a number of wit­nesses appeared to engage in what might best be described as semantic sparring in response to questions posed. It has been difficult to determine whether these types of incidents reflect mere translation difficulties, a broader cultural gap in relation to what may be an entire spectrum of mat­ters including conventions of interpersonal interaction (perhaps, even more specifically, in a litiga­tion environment) or, something the Board may be more familiar with - reluctant, evasive or even deceitful witnesses. While this layer of factors has not simplified the task before me, it does not, of course, absolve me of one of my primary responsibilities, that is to evaluate the evidence, including the credibility of all witnesses, and to arrive at my findings of fact in this matter. The consider­ations just outlined have provided some of the context of that process. In addition, in coming to my findings of fact, I have carefully considered all of the evidence before me and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examination, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances.

7. It is also appropriate to comment briefly on evidence the Board did not hear. As will become clear, Parviz Padamsey (hereinafter referred to as "Parviz") who is a member of manage­ment and the wife of Julie Padamsey (hereinafter referred to as "Julie"), the company President and majority shareholder, played a significant role in a number of events we are about to detail. She did not testify. In reply evidence the employer sought to file medical evidence it asserted would explain her inability to testify. The union objected to the introduction of that evidence as improper reply evidence and also on the basis that it was not given notice or the opportunity to require the cross-examination of Dr. Y. Thobani, a family doctor and the author of the document. Even assuming that the document ought to be received as evidence (it was marked as an exhibit subject to the union's objection to its admissibility in the circumstances), I am not persuaded that its contents, the sum total of which are as follows:

"This patient has been under my care for the past 10 years. 5he is suffering from fibromyalgia and anxiety depression and is not fit to testify at the present time because of acute anxiety reac­tion.

are sufficient to adequately explain Parviz's failure to testify. In arriving at this conclusion I have considered the terseness of the note, which is not authored by a specialist, the lack of any further medical information or opportunity to cross-examine, and the other evidence regarding Parviz's ongoing ability to attend at work (she had overall joint responsibility for the operations in Julie's absence while the latter was in attendance at these hearings). I am not satisfied that it would have been impossible for Parviz to testify in these proceedings. However, while the union asked me to draw a negative inference from her failure to testify and while such a request may well be justified, I will not draw such a blanket inference in the circumstances. On the other hand, there were signif­icant points in the events concerned where Parviz's testimony would have been helpful. The very lack of that evidence has obviously not been of assistance to the employer and has perhaps reduced the number of instances of direct conflict in evidence.

8. The employer runs a laundry principally servicing hospital and airline clients. It employs roughly 30 full and part-time employees, a significant number of whom speak only Punjabi or Polish.

9. The union's organizing campaign began in late August. On August 25, 1993 Anna Parussini (hereinafter "Parussini"), an experienced business representative with the applicant, and Neelam Aeri (hereinafter "Aeri") stationed themselves outside the company plant. (We shall refer to these two individuals as the "union organizers".) This was the first time Ms. Aeri was involved in an organizing campaign. She is a member, not an employee of the union, although she holds a number of union positions in the bargaining unit (not the one which is the subject of this certifica­tion application) in which she is employed. She was conscripted to assist Ms. Parussini because of her facility with the Punjabi and Hindi languages.

10. Balwinder Singh (hereinafter "Balwinder") and Rajinda Mann (hereinafter "Mann"), employees of the company, left work and boarded a bus headed for a nearby GO station; the union organizers followed them. At the station the employees were approached by Aeri while Parussini circled around in her car to subsequently rejoin the group. The union organizers identi­fied themselves and indicated their interest in organizing employees of the company. The discus­sion continued while Balwinder got into the car Parussini was driving and Aeri and Mann stood just outside. The union organizers agreed to drive the two employees, who had now missed their bus, to Balwinder's home. Balwinder agreed to offer them a drink when they got there.

11. The four women spent a good deal of time at Balwinder's home discussing matters relating to employment and the possibility of unionizing the company's employees. Although there was conflicting evidence on the point, I am satisfied that the group would not have ended up in Balwinder's home and spent as much time there as they did unless Balwinder and Mann had, at least in the early stages of their meeting, given the union organizers some indication of their inter­est in and openness to the subject matter being discussed. The union organizers asked for names of other employees who might be interested in the union. Balwinder provided them with the name, telephone number and address of Sangha. She also mentioned the name of another employee, Sur­inder, but Aeri told Balwinder that because Surinder lived too far away the union organizers would not visit her at that stage. The union organizers asked about an employee they had seen driving away from the plant in a red car. Balwinder identified him as Gurjit and told the union organizers that he lived close to Sangha who could provide them with further information on how to contact him. I should note that both Balwinder and Mann denied providing the union organizers with the names or co-ordinates of any other employees. I prefer the evidence of the union organizers, par­ticularly because there is simply no other explanation available or advanced before me as to how the union organizers found their way to Sangha's home later that day.

12. To the surprise and chagrin of the union organizers, the climate of the meeting changed drastically when Balwinder advised them that not only was she not supportive of the union but that it was her intention to report the events of that afternoon to the employer the following day. The union organizers left Balwinder's home shortly after that and, after driving Mann to her home, proceeded to visit Sangha.

13. Early in that meeting Sangha exhibited surprise that Balwinder had provided the union organizers with her name and address and expressed the view that, because of Balwinder's special relationship to management, Sangha's employment was now in jeopardy. In any event Sangha con­tinued to meet with the union organizers for close to an hour, expressed support for the union and undertook to talk to other employees, including Gurjit. That meeting concluded the union organiz­ers' activities for the day.

14. The next day Balwinder did indeed advise management of the events of the previous day. Both Balwinder and Mann did not punch in until approximately 8:45, just before the machines they normally work on start up. However both acknowledged arriving at the plant around 7:30 and spending most of the time from then until they punched in at their regular work areas (whether or not they or other employees were actually working or paid for this time is not particularly relevant to our inquiry). It was during this time that Balwinder advised apparently any­one who cared to listen about the events of the previous day. There was a variety of descriptions of Balwinder's apparent state of mind at the time, some witnesses described her outbursts as consti­tuting an unusual commotion, others apparently heard or noticed nothing. In any event, it was not disputed that Parviz was privy to the information volunteered by Balwinder. There is a significant dispute between the parties as to whether or not Balwinder communicated the names of the two grievors to management. Balwinder and Julie both deny that information was transmitted (Parviz did not testify). While there was no direct evidence that the grievors' names had been forwarded (directly or indirectly) to management, the union asked me to infer, on the basis of the evidence as a whole, that is precisely what happened. I shall return to this point.

15. Sangha arrived at work at approximately 8:45, after whatever commotion which may have been associated with Balwinder's account of the events of the previous day had subsided. It would appear that Julie was out of the plant on a delivery during most of this commotion. On his return he did, however, overhear at least part of what Balwinder was saying and understood her, in his limited knowledge of Punjabi, to be referring to "two women, one Italian, one Punjabi, GO station, union member". The precise parameters and sources of Julie's information about what Balwinder had reported remain vague. He denied any direct discussion with Balwinder. He acknowledged that on hearing her during his return to the plant, he went to the office to check with Parviz about what was going on. And although Parviz (who did not testify) was a major source of Julie's information, when he was asked in cross-examination if she mentioned the union he equivocated. According to Julie neither he nor Parviz can speak Punjabi. He also referred to at least one other unnamed employee who transmitted information to him and/or Parviz although the specific contents of that communication were not disclosed. Julie testified that he, at least initially, was sceptical of Balwinder's story; he couldn't imagine how a union could go and get people off a bus and make them sign a card. However, although Balwinder's account of the events in question, or at least Julie's understanding of that account, raised serious allegations, Julie denied making any attempt to get a direct account of those events (through a translator or otherwise) from the actual participants, Balwinder and Mann.

16. Later that day, at around 3:00 p.m., Julie delivered a written notice of permanent layoff to Sangha who initially resisted taking the written notice, preferring to return with her husband to accept it. The notice indicated that her final papers including termination pay could be picked up on the afternoon of September 10, 1993.

17. Less than an hour after delivering the layoff notice to Sangha, Julie convened a meeting of six of the company's Polish speaking employees. Julie, Parviz and their daughter, Salima, who works in the office, attended on behalf of management. It would appear that Balwinder was also in attendance. The employer taped the discussion at the meeting, although Julie and Christopher Makowski, an employee who translated Julie's remarks from English to Polish, were the only ones to speak. Minutes of the meeting were prepared by the employer. They indicate that the meeting lasted approximately 20 minutes, that the "Meeting was called by Polish staff, because of the lan­guage barrier in reference to the incident with Balwinder Singh, early this morning", and that no questions were raised subsequent to Julie's address. The full text of that address as recorded in the minutes is as follows:

"This meeting is to notify you because it's your right as employees to know what happened to Balwinder 5ingh and Rajinder Mann and what the commotion was about."

"From what we understand", Balwinder and Rajinder, after working hours were approached by two women, an Italian lady and a Punjabi lady at the GO Station drove Baiwinder and Rajinder to Balwinder's home because they had missed their bus.

"From what I can understand", Balwinder was harassed for the two hours that they were in her home, also, a threat was made by them against her husband who works at Ford, because she refused to sign some papers.

Balwinder was very upset and that's what happened this morning, and she was upset because her husband's job was threatened. She claims, that these ladies were Union, "I don't know the rules surrounding Union" but it is your political right as Canadians to be able to speak to them, but if you feel that you are being harassed or being threatened, in the same way that Balwinder was threatened, you can ask them to leave your home, car etc. Because they are not the police, they can not arrest you, charge you or threaten your husband's job.

18. Given the paucity of evidence concerning the precise content and sources of informa­tion provided to Julie, it is impossible for me to determine whether the account he provided to the Polish employees is an accurate reflection of the information provided to him. It is, however, clear to me that Julie's understanding of the events in question as typified by his evidence including the above address, diverges significantly from what actually transpired between the union organizers and the two employees. In general, I am satisfied that the level of harassment and coercion sug­gested and implied in Julie's and Balwinder's accounting of those events is seriously distorted. There is no evidence that the employees were spirited off the bus, as Julie suggested. While the union organizers were no doubt attempting to be persuasive, I am not satisfied that there was any inappropriate degree of compulsion involved; I am satisfied that the employees voluntarily accepted a ride from the union organizers, that Balwinder invited them into her home, freely offered them refreshment, and participated in the lengthy discussions that took place both before and after their arrival at her home. Similarly, having evaluated the conflicting evidence on the point, I am not persuaded that the union organizers made any threats directed at Balwinder's hus­band. It is utterly inconceivable to me that the union organizers, who did not previously know who Balwinder was or that they would end up at her home, would have been in possession of informa­tion about her husband's employment, as the evidence of Mann and Balwinder suggests. It is more likely that Balwinder misunderstood or deliberately distorted discussions the four women had about the availability of her husband's benefits in the event of his layoff and the desirability of seeking benefits for the company's employees even though some, like Baiwinder, may currently have access to benefits through a spouse's employment. These are some of the further consider­ations which have led me to favour the testimony of the union organizers and other union wit­nesses over that of Balwinder and Mann in cases where that evidence conflicts.

19. On August 27, 1993, the day following the layoff of Sangha and the meeting with the Polish employees, Balwinder approached Gurjit and asked if he had seen the women from the union, Gurjit replied in the negative, Balwinder accused him of lying and left. Later that same morning Julie delivered a written notice of layoff to Gurjit.

20. Not long after the layoffs the union filed the two instant applications as well as the application for an interim order in Board file 1924-93-M. That application was heard on September 17, 1993 and an oral ruling was delivered at the hearing (subsequently reduced to writing in a deci­sion dated September 20, 1993) [now reported at [1993] OLRB Rep. Sept. 824] directing the interim reinstatement of the grievors as well as the posting and delivery to individual employees of a notice attached to the Board's decision.

21. Subsequent to that oral ruling but prior to the actual reinstatement of the grievors, the company commenced a campaign which included the solicitation of employee signatures on "anti­union cards". The company prepared these cards, which read as follows:

September 19, 1993

I ---------------am a part/full time employee of CMP GROUP (1985) LTD. I do not wish to be a member of:

LAUNDRY AND LINEN DRIVERS AND INDUSTRIAL WORKERS UNION LOCAL

Signature:--------------------------

Date:------------------------------

22. At least two meetings of employees were held - one on September 19 attended primar­ily by Punjabi speaking employees and the other the following day attended primarily by the Polish speaking employees. Some haste was involved so that the employer could file these documents with the Board by the September 21st terminal date. (Even assuming the doubtful proposition that the Board might ever view a statement of desire originated and circulated by an employer to be a voluntary expression of employee wishes, the perception of the significance of the terminal date may well have been misguided in view of the provisions of section 8(4) of the Act.) At both meet­ings a bilingual employee translated Julie's remarks into the relevant language. Minutes of the meetings were kept by the employer and they indicate Julie's identical remarks as follows:

The laundry and linen drivers and industrial workers union local 847, wants to certify the union here. We are opposing it. The union members will be contacting you to get your signatures, just as we want your signatures. We have cards here and we want your free vote to sign if you don't want to join or be the member of a union and so we have cards if you want to support us for that.

23. Both meetings were held in the office during or just before or after regular working hours. Employees at least one if not both of the meetings were paid for their attendance. There was little discussion at these meetings and the vast majority of employees attending provided the signatures being solicited by the employer. The employer filed these petitions with the Board on the terminal date. There were a further 11 "anti-union cards" signed by employees whose names were not reflected in the relevant minutes as being present at either of the two meetings referred to. We have little evidence as to how those further signatures were solicited, though it appears clear from Balwinder's evidence and others that the two meetings recorded in the minutes are by no means exhaustive. The employer filed the petitions as part of its response and in support of its position that the certification application be dismissed; the union relied on the petitions and cir­cumstances surrounding them as evidence of further unfair labour practices by the employer. By the conclusion of the hearing the employer conceded that the petitions did not and could not advance its case and did not seriously dispute that its conduct in respect of originating and circulat­ing the petitions constituted an improper and unwarranted interference in the selection of a trade union.

24. Before considering in greater detail whether the employer has violated the Act and whether certification under section 9.2 is available and warranted, I shall deal briefly with two arguments advanced by the employer.

25. The company argued that the union's certification application ought to be dismissed as a result of the threats the employer alleged the union organizers had made against Balwinder's hus­band's employment. Whatever the merits of the legal theory underpinning this argument, I have already found (see, for example, paragraph 17 above) that the alleged threats were not made. Con­sequently, this argument is rejected.

26. The employer advanced another novel argument. It asserted that the certification appli­cation ought to be dismissed because the evidence was at variance with the applicant's allegations and the declaration filed by Sangha. It argued by analogy to cases like Pebra Peterborough Inc., [1988] OLRB Rep. Jan. 76 in which an application for certification was dismissed because the Form 9 filed in support of that application was defective.

27. The employer's argument, however, improperly conflates pleadings and the Form 9. The latter (which is now Form A-4) is an adjunct to the membership evidence that the Board relies upon in determining a certification application. It is important to the Board because the member­ship evidence upon which it routinely relies is of a hearsay nature. Pleadings, generally speaking, are a pre-hearing indication of the case a party intends to prove by way of viva voce evidence which will be subject to the rigours of cross-examination. Failure to prove critical allegations set out in a party's pleadings may well result in a dismissal of its application. Not every variation between pleadings and evidence will have the same result. The case will, however, ultimately be decided on the basis of the evidence not the pleadings.

28. In the present case there were some variations between the pleadings (and Sangha's declaration) on the one hand, and the evidence on the other. None of these discrepancies, how­ever, were of the significance suggested by the employer. In some cases certain allegations were withdrawn at the commencement of the hearing or not seriously pursued at its conclusion. Other discrepancies may have resulted from language barriers (in this respect the union would certainly have been better advised to have had a Punjabi translator available not only when all of the rele­vant information was gathered from Sangha but also when the declaration prepared on the basis of that information was executed). In any event none of these discrepancies, apart from weakening the union's ability to pursue certain aspects of its case, lead me to conclude that its entire case ought to be dismissed or that the union knowingly filed material it knew was false. The fact of the matter is that with respect to most, and certainly the most significant aspects of its case, the evi­dence the union called was entirely consistent with the material it had filed. Consequently, this aspect of the employer's argument must be rejected as well.

29. The union's certification application can only succeed if it is granted pursuant to section 9.2 of the Act which provides:

9.2 If the Board considers that the true wishes of the employees of an employer or of a member of an employers' organization respecting representation by a trade union are not likely to be ascertained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, 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.

30. Thus, unless it is established that the employer has contravened the Act, the application for certification must be dismissed. We turn now to a more specific review of the evidence with a view to determining whether there has been any violation of the Act as alleged by the union.

31. The union's allegation that since returning to work pursuant to the Board's interim order, Gurjit has seen his hours of work reduced from approximately 40 hours per week to approx­imately 25 hours per week was not seriously pressed in argument and is not supported by the evi­dence. This aspect of the union's complaint is dismissed.

32. The company's conduct, as it virtually conceded, in soliciting signatures on petitions in opposition to the union is clearly a violation of section 65 of the Act which prohibits an employer from interfering in the formation, selection or administration of a trade union or the representation of employees by a trade union. The gravity of this violation and its impact on the availability of relief under section 9.2 will be discussed later in this decision.

33. The union has alleged that the meeting held by the employer on August 26, 1993 was in contravention of the Act. While I have considerable doubts as to the bona fides of the company's conduct and motives in this regard, I have determined that, in view of the other findings of viola­tion and the remedies flowing therefrom (which will become evident later in the decision)~ it is not necessary for me to determine whether this aspect of the employer's conduct constitutes a breach of the Act.

34. Not surprisingly, it was the layoff of Sangha and Gurjit which was the major subject of the parties' arguments in respect of the section 91 complaint. The Board's task and the application of the reverse onus in a case such as the present one has been described in The Barrie Examiner, [1975] OLRB Rep. Oct. 745 (at paragraph 17) in the following terms:

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 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.

35. At the time the layoffs were imposed the employer cited "economic reasons", no fur­ther explanations were provided. In its response to the present application "economic reasons" were again cited as the explanation for the layoffs in question, again without any further explana­tion. At the hearing the meaning of economic reasons was amplified. The employer relied upon what it asserted has been a significant downturn in business. The major example pointed to is a series of negotiations with a major client in which a significant portion of the work under contract to the company was lost. A series of correspondence commencing in May of 1992 and culminating in July of this year was filed. The work in question was lost, however, as of June of 1992. For a few months following that loss, the customer permitted the employer to increase its charges for the remaining work but as of December 1, 1992, the previous lower charges on the remaining work were reinstated. We were not advised of any significant changes in price or volume of work under that contract since that date. It is difficult to accept those events, particularly given their vintage, as the real or exclusive explanation for layoffs which were implemented within 48 hours of the commencement of the union organizing campaign.

36. Julie testified that, within hours of their layoffs, both of the grievors were given the option to return to work which each refused. He testified that he agreed to allow Gurjit to return to work and that Parviz made a similar offer to Sangha. I prefer the evidence of the grievors that no such offers were made. I would note that while the company found it necessary or advisable to use the services of a Punjabi translator when soliciting employee signatures in opposition to the union, it apparently felt no corresponding need in the context of offers Julie testified were made to the grievors. I would also note that to the extent one might even accept that such offers were made but perhaps ineffectively communicated, the company's rationale for requiring the layoffs in the first instance is undermined. This is particularly evident in Sangha's case. The timing of her layoff coincides with the departure of another employee on maternity leave - she was replaced while San­gha was laid off. The resulting unnecessary quality of Sangha's layoff (something which the employer conceded, at least after the fact) points to other considerations at work in the decision to lay her off. In Gurjit's case the company's assertion that he had effectively quit by not reporting for work after the employer allegedly rescinded his layoff is bolstered by an employer letter to him dated August 30, 1993 asserting that view. However, that letter refers to a Friday afternoon meet­ing which I am satisfied (given Gurj it's evidence, which I accept, surrounding the timing of his mother's visit from India) did not take place. Furthermore, while the letter bears the date of August 30th, no attempt was made to transmit it or its contents to Gurjit prior to September 10th when he collected his final papers from the employer. Finally, I do not have the benefit of Parviz' s evidence regarding these events although she appears to have had significant involvement in them.

37. The company also advanced (for the first time at the hearing) explanations for why (as­suming the economic necessity for some layoffs) Sangha and Gurjit were selected. These were related to what can perhaps best be described as attempts to resurrect incidents which were rela­tively trivial (there was no written documentation in relation to either of the allegations at the time they occurred) and transform them, after the fact, into justifications for the selection of the griev­ors for layoff.

38. The company's evidence as a whole and, in particular regarding the justification for lay­offs and the selection of the grievors to be laid off, simply does not ring true. It represents an arti­fice of layers of improbable and sometimes conflicting explanations for its conduct. I am not per­suaded that the reasons advanced by the company are the real or complete explanation for its decision to lay off the grievors.

39. The grievors' names were provided to the union organizers by Balwinder. Balwinder reported the meeting with the union organizers to the employer. Although there is no direct evi­dence on the point, taking the evidence as a whole, including my assessments of credibility, I find that it is more probable than not that the grievors' names were communicated to the employer who thereupon effected their layoffs at least partly because of its belief that they were members of a trade union or were exercising rights under the Act. In any event, the employer has not persuaded me that its conduct was not at least tainted by improper motives.

40. I should note that the evidence and material filed clearly discloses that both of the griev­ors have supported and participated in the lawful activities of the union. In Gurjit's case, however any such activity took place subsequent to his layoff, as the union had not previously contacted him. In other words, any belief the employer may have had about Gurjit's union activities was mis­taken or, perhaps more accurately, premature. The employer did not, however, dispute the propo­sition that the Act proscribes the discharge or layoff of employees for tainted, albeit mistaken, motives.

41. In all of the circumstances I am satisfied that the layoffs of Sangha and Gurjit were con­trary to section 67 of the Act. They are to be forthwith reinstated and compensated for all losses flowing from this violation of the Act.

42. Having determined that the employer has violated the Act we turn finally to a consider­ation of the remedies flowing from those violations including the union's claim for certification under section 9.2.

43. A contravention of the Act is a necessary but insufficient condition precedent to the exercise of the Board's power under section 9.2. We must now determine whether the employer's contraventions are of such a nature that the true wishes of employees respecting trade union repre­sentation are not likely to be ascertained. If it is determined that such wishes are not likely to be ascertained, the Board may exercise its discretion to certify the applicant. We should note that, as a result of recent amendments to the Act, the Board (as it was under the former section 8) is no longer directed to determine whether the applicant has membership support adequate for the pur­poses of collective bargaining as a condition precedent to the exercise of the Board's jurisdiction under section 9.2. Consequently, it was not suggested that the applicant's admittedly meagre mem­bership support in this case was a bar to certification under section 9.2.

44. Having considered the nature of the employer's violations as well as other aspects of the case before me, I am persuaded that the true wishes of employees are unlikely to be ascertained and that this is an appropriate case for certification under section 9.2.

45. There is no doubt that the employer's response came early in the organizing campaign -Sangha was laid off within approximately half a day after its commencement; Gurjit less than 24 hours after that. Their lay off would clearly have had a chilling effect on other employees contemp­lating or who might otherwise have contemplated support for the union. And while the union was successful in achieving the interim reinstatement of the grievors through an application to the Board, the employer's next violation of the Act and its timing are significant. The employer acted in the limited interval between the Board's oral ruling on the interim order and the actual return of the grievors to the workplace. The notice which the Board directed to be posted in the workplace and mailed to individual employees listed a number of employee rights including:

………the right to remain neutral. To refuse to sign documents opposing the union or to refuse to sign a union membership card.

46. This, of course, is a reference to the freedom individual employees have to determine whether or not they wish to support or otherwise participate in union activities. It is a choice to be made by employees. And while an employer is free to express views on the subject, it is not to be a participant in the choice. Immediately after confirming the employees' individual choices by way of the notice prepared by the Board, this employer waded into the fray and unlawfully interfered with its employees selection of a trade union. Contrary to the employer's assertions, this was not a vio­lation which the Board views as either minor or merely technical. In the face of the Board's interim reinstatement order, the employer conducted captive audience meetings of employees where it exercised its, at least implicit, economic power over those employees to encourage them to sign documents opposing the union. The Board has long observed that the coercive nature of such con­duct does not depend on the express articulation of economic or physical threats. It would not be unreasonable for an employee confronted with such conduct to conclude that there may be employment consequences visited on those who do not conduct themselves in accordance with an employer's express or implied instructions or preferences.

47. The clear and unambiguous combined effect of the employer's conduct and its timing can perhaps best be appreciated in considering the evidence of a number of witnesses and in partic­ular that of two employees called to testify on behalf of the company.

48. Surinder Kaur was called to testify in reply to evidence Sangha had given. In particular, Kaur testified in chief that she had had lunch with Sangha on the day the latter was laid off. What is perhaps most notable about her evidence is what she could not testify to. She claimed not to know of Sangha's lay off at the time it happened or even the subsequent day when she had a tele­phone conversation with her, and although she was at work at the time of Balwinder' s "commo­tion", she had no recollection of it and couldn't recall having any discussions with anyone on that day regarding the visit of the union organizers to Balwinder's home. Finally, despite her certainty in chief about having had lunch with Sangha on the 26th, she conceded on cross-examination that she had no specific recollection of lunch on that date.

49. Similar peculiarities arose in the evidence of Mann. While she was present for the dura­tion of the meeting with the union organizers she had great difficulty recalling the specifics of the discussions with them. One of the few exceptions to this was her recollection of the threats she (and Balwinder) claimed were made against Balwinder's husband. While I have already dealt with that issue and determined that those threats were not made (again, Mann's evidence on this point, like Balwinder's, may well have been mistaken rather than simply dishonest), one cannot escape the conclusion that Mann would have perceived it to be in the employer's interest to give such tes­timony. In a similar vein, Mann was simply unable to answer on whose instructions she had pre­pared the declaration filed in the interim application and made an exhibit in these proceedings. Her discomfort in response to the question was palpable. Again her response and deportment were one of an employee perhaps more concerned with the employment consequences of her evidence than with its completeness.

50. These observations are not inconsistent with another in relation to Sangha's evidence. The union initially alleged that on reporting for work on the day of her layoff she was assigned unusual jobs and was isolated from her usual coworkers. The employer made much of this allega­tion and related evidence. The union withdrew a number of its allegations in this regard and much of this area of evidence is of questionable significance. What is clear, however, is that Sangha felt isolated and shunned by her coworkers, something she was not accustomed to. Whether that was the result of deliberate instructions by the employer begs the question. Sangha's perception along with the comportment of the witnesses just described is eloquent testimony to the climate of anxi­ety and fear which appear to have so completely permeated the workplace that its traces were evi­dent in the hearing room. That climate is the result, in large measure of the employer's unlawful conduct. And it is that climate which convinces me that the true wishes of the company's employ­ees respecting representation by the union are not likely to be ascertained.

51. I should note as well that this description of the climate at the workplace is consistent with the evidence of both Gurjit and Philip Spurrell, an organizer with the union, both of whom testified about their ongoing efforts to recruit further union members among the company's employees. Although they were able to secure two additional cards, the bulk of their evidence demonstrates that they have been met for the most part with fear and reluctance to talk.

52. The employer argued that its violations of the Act were not significant enough to war­rant certification without a vote. It suggested that a representation vote would in fact be the appro­priate remedial response in this case although it was unable to point with any specificity to where the Board might find the authority to direct such a vote in a case such as the present one (where the union's level of membership support was well below even the 35 percent required for the tak­ing of a pre-hearing representation vote). In fairness, the employer submission was premised on its solicitation of anti-union petitions as the extent of its unlawful conduct. I do not have to decide whether that violation, standing alone would warrant certification under section 9.2. since the employer's violations in this case were more extensive. It obviously makes little sense, however, to consider the directing of a vote as the appropriate remedial response in a case where it has been determined that the true wishes of employees are unlikely to be ascertained. No other options were canvassed by the employer. In any event, I am satisfied that the statutory preconditions to the granting of certification under section 9.2 have been met and that this is an appropriate case for such a certification as well as other remedies, detailed below, in relation to the section 91 applica­tion. A certificate will issue to the applicant in respect of the bargaining unit set out at paragraph 3 above.

53. In summary the Board has found that:

(a) the layoffs of Sangha and Gurjit were contrary to sections 65 and 67 of the Act;

(b) the employer's conduct in soliciting anti-union petitions was in viola­tion of section 65 of the Act; and

(c) as a consequence of the employer's unlawful conduct, the true wishes of employees respecting representation by the trade union are unlikely to be ascertained.

54. As a consequence, and in addition to the certification of the applicant, the Board hereby:

(d) directs the responding party to reinstate Balwinder Sangha and Gur­jit Pal Singh, with full compensation for all losses suffered as a result of their unlawful layoff;

(e) directs that representatives of the applicant trade union be allowed to convene up to two meetings of bargaining unit employees, in the absence of members of management, for a combined period of not more than three hours, on company premises during normal working hours without loss of pay for employees attending such meetings;

(f) directs that the responding party forthwith provide to the applicant a list of names of all employees in the bargaining unit, together with their addresses and telephone numbers;

(g) directs that the responding party provide the applicant union for a period of one year from the date herein reasonable access to an employee notice board in the plant for the posting of union notices concerning all aspects of the employees' representation including the negotiation of a collective agreement with their employer; and

(h) directs the responding party to post the notice attached as Appendix "A" in conspicuous places in the workplace for a period of 60 days and to give to each employee in the bargaining unit a copy of the said notice. The responding party is to make every reasonable effort to insure that the posted notice is not defaced or obscured in any way.

55. The Board will remain seized with respect to the quantification of damages or any other matter arising from the implementation of this decision.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OP THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT CMP GROUP (1981) LTD. VIOLATED THE LABOUR RELATIONS ACT BY LAYING OFF BALWINDER SANONA AND GURJIT PAL SINGH AND BY SOLICITING AND OBTAINING THE SIGNATURES OF EMPLOYEES ON ANTI-UNION PETITIONS.THE ONTARIO LABOUR RELATIONS BOARD FURTHER CONCLUDED THAT AS A RESULT OF THESE VIOLATIONS. THE TRUE WISHES OP THE EMPLOYEES WERE NOT LIKELY TO BE ASCERTAINED. AND THE ONTARIO LABOUR RELATIONS BOARD CERTIFIED THE UNION AS BARGAINING AGENT FOR THE GROUP OF EMPLOYEES DESCRIBED AS.

ALL EMPLOYEES OF CMP GROUP (1985) LTD. IN THE TOWN OF OAKVILLE. SAVE AND EXCEPT SUPERVISORS. PERSONS ABOVE THE RANK OP SUPERVISOR. OFFICE. CLERICAL AND SALES STAFF.

THE ONTARIO LABOUR RELATIONS BOARD HAS ORDERED THE COMPANY TO REINSTATE AND COMPENSATE THE EMPLOYEES WHO WERE LAID OFF AND TO ALLOW THE UNION TO MEET WITH EMPLOYEES IN THE BARGAINING UNIT DURING NORMAL WORKING HOURS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES,

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A

TRADE UNION,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

CMP GROUP (1985) LTD.

PER,________________________________________

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 2^ND day of DECEMBER, 1999.