Canadian Union of Public Employees v. Carleton University Students' Association Inc., 1993 CanLII 7915

Canadian Union of Public Employees v. Carleton University Students' Association Inc.

[1993] OLRB REP. OCTOBER 938

1498-93-R; 1496-93-U Canadian Union of Public Employees, Applicant v. Carleton University Students' Association Inc., Responding Party

BEFORE: Laura Trachuk, Vice-Chair, and Board Members W. A. Correll and R. R. Montague.

APPEARANCES: Michael Church, Robert A. Centa, J. W. Ross, Rent~e Twaddle, Peter Nogalo and Fouad P. Kanaan for the applicant; Stephen Bird and Lucy Watson for the responding party.

DECISION OF LAURA TRACHUK, VICE-CHAIR, AND BOARD MEMBER R. R. MONTAGUE; October 29, 1993

1This is an application under section 91 of the Labour Relations Act, as well as an appli­cation for certification seeking relief under section 9.2 of the Act. The applicant, Canadian Union of Public Employees (hereafter referred to as the "union") requested an expedited hearing of its section 91 application under section 92.2 of the Act. The application for certification and the appli­cation under section 91 were heard together on August 23, 24, 25, 26 and 31. The Board rendered a decision on September 2, 1993 in which it found, without reasons, that the responding party had violated the Labour Relations Act by discharging Rende Twaddle and John Wayne Ross. Board Member Correll concurred with that result but dissents with respect to the application of section 9.2 relief in these circumstances. Following is our decision with respect to the certification applica­tion, as well as the reasons for our determination that the responding party has violated sections 65, 67 and 71 of the Act.

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

3Section 9.2 of the Labour Relations Act provides as follows:

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.

On the first day of hearing, as a preliminary matter, the parties raised the issue of who bears the onus of proof under this section. We directed the responding party to proceed first on both appli­cations, and advised the parties that the issue of onus would be determined by the Board at the end of the day in the event that the evidence was so evenly weighted that a determination as to which party bore the onus became dispositive. However, the majority of this panel of the Board has found that the evidence clearly establishes that the responding party violated the Labour Relations Act and that a certificate under section 9.2 of the Act should issue. It is therefore unnecessary for us to determine who bears the onus of proof in this situation. (See The Barrie Examiner, [1975] OLRB Rep. Oct. 745.)

4The responding party elected not to call any witnesses on its own behalf, although it did cross-examine witnesses called by the applicant. The applicant called John Wayne Ross, Rende Twaddle, Fouad Kanaan and Stacy Fietz as witnesses. We found all of the witnesses to be credible, and as no contradictory evidence has been introduced by the responding party, we have accepted their testimony. On the basis of the evidence, therefore, we make the following factual findings.

5Carleton University Students' Association Inc. (hereafter referred to as "CUSA") is an organization funded by student fees, which is responsible for providing services to students at Carleton University. CUSA has an existing collective agreement with CUPE Local 3011 for its per­manent employees. It also employs a number of other people for terms of one year and it is these employees for whom the applicant is seeking certification in this matter. The parties have agreed on a description of the bargaining unit as follows: "all employees of Carleton University Students' Association Inc. in the City of Ottawa, save and except Department Heads, persons above the rank of Department Head and employees in bargaining units for which any trade union held bar­gaining rights as of August 5, 1993, and pending resolution of the Board, excluding as well Brenda Kennedy, classified as the Foot Patrol Coordinator".

6There were approximately 50 members of the bargaining unit as of the date of applica­tion. The bargaining unit includes, among others, the co-ordinators of various student services, employees of the store, bars and cafeterias and student security staff. It is our understanding that most, if not all, of the members of the bargaining unit work in the student centre called the "Uni­centre". Renée Twaddle and Fouad Kanaan were service co-ordinators who reported to the Direc­tor of Services, Theresa Cowan. Ms. Twaddle was the Co-ordinator of the Women's Centre and Mr. Kanaan was the Volunteer Bureau Co-ordinator. Mr. Ross was the Co-ordinator of the Stu­dent Academic Action Bureau ("SAAB") and reported to Gary Anandasangaree, Director of Academics. All three of these witnesses began their one-year terms in these positions at the begin­ning of May, 1993. All were required to compete for their positions.

7Shortly after becoming employed by CUSA, Ms. Twaddle and Mr. Ross decided to explore the possibility of unionization. Their approach was to begin by determining whether there was support for the idea among the other service co-ordinators by holding a number of meetings in the Women's Centre. These meetings were attended by six people who the witnesses referred to as the "core group". It included Ms. Twaddle, Mr. Kanaan, Mr. Ross and three other co-ordinators. At or around the same time, Mr. Ross and Ms. Twaddle were also meeting with representatives from the existing CUPE local and the national office. The CUPE representatives advised Ms. Twaddle and Mr. Ross that previous unionization attempts for this group had been unsuccessful. They were advised that they should move cautiously and be careful who they spoke to about it.

8Mr. Ross and Ms. Twaddle also contacted employees in the store operation run by CUSA, the food service operations called "Roosters" and the security staff. These contacts were of a very preliminary nature, but both witnesses testified that the response they received was favourable. Towards the end of May the core group decided to search for further support for the union and invited the two service co-ordinators from the Carleton Disability Awareness Centre ("CDAC") to attend their meetings. One of the CDAC co-ordinators attended two meetings with the core group with respect to the union. The evidence of the witnesses was that the response of the CDAC co-ordinators was initially positive. However, on June 2 the CDAC co-ordinators circu­lated a letter to all the service co-ordinators and, the witnesses believed, to Theresa Cowan, indi­cating that they did not support the union.

9On May 26, a few days before the letter from the CDAC co-ordinators was circulated, the service co-ordinators were all required by the responding party to relinquish their keys to the CUSA offices. The witnesses testified that it was their understanding that service co-ordinators had always had these keys and had had access to the CUSA offices in the past.

10On June 9 the service co-ordinators were requested to attend a meeting with the responding party. Present at that meeting were the President of CUSA, Lucy Watson, Theresa Cowan, Gary Anandasangaree, Mr. Ross, Ms. Twaddle, the other service co-ordinators and Brenda Kennedy, the Foot Patrol Co-ordinator. None of the witnesses were given any information as to what the meeting was to be about and no agenda was circulated either before or at the time of the meeting. Ms. Cowan opened the meeting by indicating that she wished to discuss the problems between the centres, the CUSA executive and the co-ordinators. However, shortly into the meet­ing, the president stated that she wanted to know "about the union and the letter". Ms. Cowan subsequently remarked that the union organization was exclusionary, as not all service centres had been included. Ms. Watson then advised the attendees that the union should not be discussed dur­ing office hours as that would result in some of the centres being closed during those times. She persisted that she wanted to discuss the union and wanted to discuss where the "letter" came from. We accept that the letter she was referring to was the letter circulated by the CDAC service co-or­dinators. The issue of the union was raised by members of management a number of times during the meeting. At one point, the following discussion ensued according to minutes submitted by the applicant which were not challenged by the responding party:

Ms. Cowan: "Unionizing usually involves financial problems like co-ordinators' salaries and ser­vice budgets. If you are negotiating for finances, you should know right now that CUSA won't be able to financially uphold all eight services".

Ms. Twaddle: "Does this mean that CUSA will shut some of our services down?"

Mr. Anandasangaree: "I don't think that we're prepared at this time to make that statement".

Ms. Cowan: "No comment at this time, but you should know that".

Ms. Watson: "Does the steering committee know that Brenda's involved in this?"

(The "Brenda" referred to is the Foot Patrol Co-ordinator, who the responding party has chal­lenged as being a member of the bargaining unit). No one responded to that query and Ms. Watson then asked:

And Wayne, you are not a service centre. Are you involved?"

Mr. Ross indicated he did not know, and Ms. Watson queried again:

"Who is involved then?"

The service co-ordinators agreed that they would not use office hours to have union meetings. There was a brief discussion about the fact that keys had been taken from the co-ordinators, and the meeting was adjourned.

11Mr. Ross testified that subsequent to this meeting the organization drive slowed down, although he did get union cards from CUPE and had some signed on June 10. He acknowledged that his own attempts to organize the union slowed down at this time because he and the other co­ordinators were concerned about their positions. Both Mr. Ross and Ms. Twaddle testified that one of the members of the core group started to withdraw his support immediately after the June 19 meeting. Furthermore, service co-ordinators who had not previously been approached about the union were angry that they had learned about the campaign from management in such a fash­ton. Mr. Ross testified, however, that the organization drive was still proceeding, albeit more slowly and cautiously.

12On July 14 a lock was installed in the door between Mr. Ross and Ms. Kennedy's offices and Mr. Ross was advised that the door was to be kept closed. The door between these offices had previously been kept open for air circulation. Mr. Ross had not been informed that a lock was to be installed on these doors, and he discussed the matter with his supervisor Mr. Anandasangaree. Later that afternoon, Ms. Watson and Mr. Anandasangaree met with Mr. Ross and Ms. Kennedy in Mr. Ross' office. It appears that Ms. Watson left that meeting quite angrily, and fifteen minutes later Mr. Anandasangaree called Mr. Ross and advised him that he wished to meet with him the following day at 3:30. When Mr. Ross asked what the purpose of the meeting was, Mr. Ananda­sangaree indicated it was to review work and that only the two of them would be present. On July 15 at 3:30 Mr. Ross went to see Mr. Anandasangaree and was ushered instead into Ms. Watson's office where he was handed a letter. The letter was a notice of immediate termination. No explana­tion was offered to Mr. Ross except a vague suggestion that his work was inadequate. Mr. Ross had received no previous letters of warning or discipline.

13Earlier on July 15, Mr. Ross and Ms. Twaddle were on the bus with the core group member whose support for the union had diminished after the meeting of June 9. Mr. Ross told this co-ordinator that he had a union card if he wished to sign it. The co-ordinator advised that he was uncertain as to whether he wished to sign and that he wished to speak to his lawyer before he did. He indicated a concern with respect to the effect signing a card would have on his employment status. At the end of the day after Mr. Ross was fired, he and Ms. Twaddle went to see the co-ordi­nator, who advised that he did not wish to sign a union card. He stated he did not wish to "end up like" Mr. Ross. Harsh words were exchanged between Ms. Twaddle and the co-ordinator during this interaction.

14Mr. Ross was reinstated on an interim basis, without prejudice, as a result of a settle­ment of an application by the applicant for interim relief. His reinstatement was then confirmed by this panel in its September 2 decision. Mr. Ross testified that since his return to the workplace, some of the people he originally approached in the CUSA store and Roosters have responded to him with an air of hesitation. He also advised that the service co-ordinator who had formerly been a member of the core group told him that he was concerned about being seen with him because it could cause problems for the co-ordinator in the workplace. Since his reinstatement, Mr. Ross has been hesitant to approach any other employees with respect to unionization because he has now been identified as a union organizer, and he believes that being seen with him may put those employees in jeopardy.

15Immediately upon his return to the workplace, Mr. Ross received a letter from his supervisor containing "guidelines" of work he was to accomplish upon his return. The letter required him to attend a meeting with his supervisor on August 12. However, as a result of tele­phone contact between counsel, Mr. Ross was not required to attend this meeting.

16On Thursday, August 19 Mr. Ross requested permission to be absent from work for the purpose of attending the Board hearing. He had not received an answer by the end of that day and therefore the applicant caused a summons to be issued for him. The following day, he received notification from the responding party that he could attend the hearing, either as a leave of absence without pay, or that he would be paid but would have to make up the time later on in the year.

17We also heard evidence that a document shredder was installed in the CUSA office after the reinstatement of Ms. Twaddle and Mr. Ross in August.

18As co-ordinator of the Women's Centre Ms. Twaddle reports as an employee to the CUSA executive. However, she also reports to the Women's Centre collective and acts as a liaison between the collective and the CUSA executive. Ms. Twaddle was one of the union organizers and one of the people who originally contacted CUPE. Most of the original union organization meet­ings were held in her office at the Women's Centre.

19On May 27 Ms. Twaddle received a letter of reprimand from the CUSA President, Lucy Watson. This letter referred to an incident in which Ms. Twaddle had, during an "emergency response" organization meeting, criticized a member of the University administration. Her criti­cism had been directed to the way the administration member had handled an incident the year before in which the University had received death threats with respect to approximately 20 mem­bers of the female student body, whose pictures and student numbers had been stolen.

20During the same week of May 27 Theresa Cowan requested individual meetings with the service co-ordinators who reported to her. Ms. Twaddle met with her on June 1. During this meeting, Ms. Cowan advised Ms. Twaddle that she knew that secret meetings were being held and that Ms. Twaddle was a ringleader. Ms. Cowan wanted to know what the meetings were about. Ms. Twaddle responded that she did not know what Ms. Cowan was talking about. Ms. Cowan became critical of Ms. Twaddle's "attitude" and called her a derogatory name. Shortly after that meeting, Ms. Twaddle found a note with an apology and a bag of candies from Ms. Cowan on her desk.

21On July 7 Ms. Cowan called another meeting with the service co-ordinators and accused Ms. Twaddle of holding secret meetings in the Women's Centre. Ms. Twaddle denied that any secret meetings had been held since the June 9 meeting, although some of the service co-ordinators had been in her office for twenty minutes the week before. Ms. Cowan was able to name the peo­ple who had been in Ms. Twaddle's office the week before. Ms. Twaddle testified that she found this meeting intimidating, as it indicated that she was being watched.

22On the morning of July 8 Ms. Twaddle found that someone had been in the file which contains all of her CUSA documentation, memos, correspondence, etc. She did not review the whole file at that time, but on July 12 she did and found that someone had taken the note with the apology that Ms. Cowan had given her. Whoever had been in the file had also removed a joke about Ms. Cowan which had been written by a co-worker and placed that piece of paper on the top of the file. On the morning of July 8, Ms. Twaddle had also found a note from Ms. Cowan on the bulletin board in her office requesting that they meet that day at 2:QO p.m. Ms. Watson, Ms. Cowan and other CUSA executive members have keys to Ms. Twaddle's office. Members of the collective also have access to a key.

23Ms. Cowan came to Ms. Twaddle's office on July 15 and asked if anything was missing from her office as she had been advised by Mr. Kanaan that some of his files were missing. Ms. Twaddle confirmed that something was missing and the next day Ms. Cowan, Ms. Watson and a security guard attended in Ms. Twaddle's office and she made a report. The guard asked Ms. Twaddle whether she suspected anyone and she denied that she did. However, later the guard advised her that Ms. Cowan and Ms. Watson would not have access to her report. Ms. Twaddle then advised the security guard that she suspected Ms. Cowan.

24Ms. Watson and Ms. Cowan both attended a meeting with Ms. Twaddle on July 8. Another member of the CUSA administration, Kelly Maunce, was also present at the meeting and was taking minutes, as was a member of the Women's Centre collective, Rudelle Paul, who attended at the invitation of Ms. Twaddle. Ms. Paul also took minutes. Ms. Twaddle was handed a letter which included a number of criticisms about her "attitude". The letter indicated that if her attitude and performance had not noticeably improved by July 29, her employment would be ter­minated. Ms. Cowan alleged that complaints had been made about Ms. Twaddle by members of the CUSA administration. Neither Ms. Cowan nor Ms. Watson would disclose any details with respect to the alleged complaints. Ms. Cowan again called Ms. Twaddle a ringleader and accused her of instigating problems with the other CUSA co-ordinators. Ms. Twaddle understood the ref­erence to her being a ringleader to be referring to her participation in the unionization drive, since the last time the term had been used it was with respect to the union meetings. Ms. Cowan again accused Ms. Twaddle of holding closed-door meetings in the Women's Centre. Ms. Twaddle denied such meetings had been held since June 9. Ms. Twaddle suggested that a mediator be used to assist in the relationship between herself and Ms. Cowan. Ms. Cowan indicated that she did not think she would have time for mediation but that she would get back to Ms. Twaddle about it. Ms. Cowan later advised Ms. Twaddle that she was not prepared to engage in mediation with her. Ms. Watson advised Ms. Twaddle that she was prohibited from disclosing what had gone on in the meeting to anyone. Ms. Cowan said that if anyone came to them to defend Ms. Twaddle or to criti­cize Ms. Watson or herself about the meeting, repercussions would be severe. It was then agreed that Ms. Twaddle could report the meeting to the collective, but to no one else.

25On July 8 Ms. Twaddle wrote a letter to Ms. Watson and Ms. Cowan thanking them for the "feedback" she had received at the meeting, assuring them that she was endeavouring to achieve the results desired by them, and requesting written guidelines with specifics as to her lack of performance and improvements needed. No guidelines were ever forwarded to Ms. Twaddle by Ms. Cowan or Ms. Watson. We accept that the letter of July 8 was an attempt by Ms. Twaddle to defuse the situation out of fear for her job.

26Ms. Twaddle did not discuss the meeting with the other members of the core group for a number of days. She found this isolation and silence extremely upsetting and several days later, did tell them what had occurred.

27After the meeting of July 8 and Mr. Ross' termination, Ms. Twaddle did not have much contact with other co-ordinators or co-workers as she was concerned that her own termination would follow. Ms. Twaddle did, however, speak to Ms. Fietz about signing a union card. Ms. Fietz advised that she was afraid to sign a card after what had happened to Mr. Ross. Ms. Twaddle also spoke to one of the secretaries (who she did not name) who indicated she would be in favour of a union but that she would not sign a card for fear of being found out. The same secretary would no longer eat with Ms. Twaddle or the other members of the core group because she was afraid of being seen with them. Several other co-ordinators would also no longer eat with the core group. The organizing drive was effectively shut down since Mr. Ross was no longer in the workplace and Ms. Twaddle was too intimidated to continue, and potential members were, in any case, too inti­midated to participate.

28Ms. Twaddle and Ms. Fietz testified that Mr. Ross' termination was widely known throughout the Unicentre. They both testified that everyone was talking about it, that an article mentioning it was in the student newspaper, and that it was also mentioned on the student radio station. Ms. Twaddle testified that many people asked her if Mr. Ross was fired because they were attempting to unionize and that she advised them that that is what she believed. The issue was also raised in a CUSA council meeting but the council went in camera to discuss the actual circum­stances surrounding Mr. Ross' termination. Ms. Twaddle testified that someone from Roosters, someone from the store, as well as one of the secretaries asked her about Mr. Ross' termination.

29Ms. Twaddle requested a meeting with Ms. Cowan on July 20 to discuss what Ms. Twaddle hoped would be perceived as an improvement in her performance and attitude. At this meeting, Ms. Cowan advised that she did not recall that Ms. Twaddle had requested written guide­lines. She also refused to engage in mediation with her. Ms. Cowan told Ms. Twaddle that she had received further complaints which she refused to disclose. Ms. Twaddle was informed that she had made no improvement whatsoever, and that she only had until "the following week", which Ms. Twaddle understood to mean she would be terminated the following week. At this meeting, Ms. Twaddle asked Ms. Cowan whether her threat with respect to "the following week" was because of the union. Ms. Cowan denied it and stated that she would be in favour of unionization if she thought it would help the student services.

30Ms. Twaddle had advised the members of the collective with respect to what was going on with CUSA. As a result, members of the collective sent letters supporting her to the CUSA executive.

31On July 29 at 3:30 Ms. Twaddle was called to a meeting with Ms. Watson and Ms. Cowan. She was required to wait until a lawyer for CUSA arrived. She was not expecting a lawyer to be present. The lawyer arrived at 3:40, and turned on a recording device which she put in her briefcase as she walked into the meeting. The Finance Commissioner, Rene Faucher, was in atten­dance at the meeting, as was Kelly Maunce, and a member of the Women's Centre collective who attended with Ms. Twaddle. Ms. Watson was on vacation and did not attend the meeting, although Ms. Cowan did. Ms. Twaddle was handed a letter of immediate termination which contained no reasons. She therefore asked a number of times why she was being fired. The CUSA lawyer answered repeatedly that her termination was at the employer's discretion and refused to provide any reasons.

32Ms. Twaddle continued to come into the office for the next few days. She stated that she did not wish the Women's Centre to fall apart and that she was still a collective member and therefore entitled to attend the Centre and do whatever the collective wished her to do. However, Ms. Cowan ordered her to leave the office. At first Ms. Twaddle refused and then agreed to leave when Ms. Cowan said she wanted to take an inventory at the office to see if anything was missing. Ms. Twaddle did not return until she was reinstated.

33Ms. Twaddle spoke to Ms. Stacy Fietz the day after her termination. Ms. Fietz advised that because of Ms. Twaddle's termination she did not wish to sign a union card. Ms. Twaddle tes­tified that since her reinstatement a lot of workers would not talk to her or even say "Hi" to her, some would not eat lunch with her, some have told her they did not want to be seen with her and others have told her privately they want to remain friends but do not want to be involved.

34Ms. Twaddle requested a leave of absence to attend the hearing on August 17. She had not received a response by August 19 and therefore counsel for the applicant faxed summonses for herself and Mr. Ross. The summonses were left on her desk and had disappeared by the next day. Ms. Twaddle did receive a response from Ms. Watson on the afternoon of August 20 indicating she could have a leave of absence without pay or could make up the hours later in the year. The lock on Ms. Twaddle's office had been changed twice since she was reinstated. Ms. Twaddle also testi­fied that she had two pieces of paper with respect to a reply to CUSA's response to the application on her desk that week which disappeared when she left the office for lunch.

35On the afternoon of August 19 Ms. Watson attended at the Women's Centre. It was Ms. Twaddle's evidence that Ms. Watson had never previously utilized the Women's Centre. On this occasion, Ms. Watson asked Ms. Twaddle if she would mind if she sat in the Centre and read for a while. Ms. Watson sat on the couch reading material she brought with her. Ms. Twaddle testi­fied that she found this uncomfortable and left. Ms. Twaddle also testified that CUSA had failed to pay her after her interim reinstatement.

36Mr. Fouad Kanaan testified. He was the Volunteer Bureau co-ordinator and shared an office with another co-ordinator. He and the other co-ordinator had keys to the office as did CUSA executive members. His immediate supervisor was Theresa Cowan. He was a member of the "core group" and a union supporter. On July 12 Mr. Kanaan discovered that certain docu­ments which he had placed in a "put-away" file on his desk were missing, and that documents had been erased from a diskette which was sitting on top of his computer. The whole disk was not erased, only certain documents, specifically letters relating to personnel matters between himself and CUSA, and in particular correspondence between himself and Theresa Cowan. The hard copy documents which were removed from the put-away file were also correspondence between Mr. Kanaan and Ms. Cowan. He had not looked at the documents for a number of days and therefore was not certain on which day the documents had been taken. Mr. Kanaan contacted Ms. Cowan when he realized the documents were missing and asked her to supply her copies of them to him, which she did. The campus security also became involved and Mr. Kanaan filed a report.

37Mr. Kanaan had a difficult relationship with Ms. Cowan and the CUSA executive. He testified that he was frightened after Mr. Ross was terminated as he felt that he might also be fired. However, Mr. Kanaan resigned from his position on July 29, 1993 because of the working relations between himself and CUSA and the working environment. He testified that if none of the events involving CUSA's treatment of the union supporters had occurred he would not have resigned.

38Stacy Fietz also testified under summons by the union. She is a publications officer and began working for CUSA on January 4. She provides graphic design and artwork production for printed matter for the service centres. Ms. Fietz was not involved in the union organizing cam­paign, but Mr. Ross had mentioned to her the possibility of a union being organized on July 6. Ms. Fietz testified that she was originally ambivalent in her response but that she believed she was giv­ing positive feedback to Mr. Ross because she generally believes unions are "good things". The next time Ms. Fietz spoke to Mr. Ross about the union was the day he was fired. She testified that her reaction was dismay and shock and that she was somewhat fearful.

39The following week Ms. Twaddle made an appointment to meet with Ms. Fietz after office hours. At that meeting Ms. Twaddle asked Ms. Fietz to sign a union card. Ms. Fietz would not sign it as she felt she needed time to consider. She testified that she thought at that point she would not sign the card because she was worried about the consequences. She did not know who might find out. She was concerned that in light of what had happened to Mr. Ross, it would affect her relationship with the employer if it found out she had signed a card. She testified that after her conversation with Ms. Twaddle she would not sign a card because she felt that her position with CUSA would be jeopardized by demonstrating any support for these "troublemakers". Ms. Fietz was also advised by Ms. Twaddle and Mr. Kanaan the day that Ms. Twaddle was terminated and Mr. Kanaan resigned. She testified that as of that day she would definitely not have signed a card because it was a symbol and a commitment and she was not prepared to take the consequences of that commitment.

40Ms. Fietz was asked whether she tried to rally any colleagues to carry on with the orga­nization campaign. Her answer was "No, because at that time we were talking about a few people against a large authority which seems to be able to do what it wants and I was sure the employer would want to subvert any efforts in this direction".

41Ms. Fietz testified that the atmosphere after Ms. Twaddle was terminated was that the employees were "high strung" and worried and that she began closing her door instead of leaving it open as she had in the past. It was her opinion that other CUSA employees would not sign union cards as a result of what had happened to Mr. Ross and Ms. Twaddle, and that their wishes would not be ascertainable by a vote. However, she testified that she herself would probably be able to vote her mind since she had now declared herself in the hearing anyway. She testified that other CUSA employees came into her office after the terminations and wanted to talk about them. In response to a question in cross-examination she replied that while she did not expect retribution from the employer, she did expect that "things would change" now that she had testified.

Araument

42Although the responding party chose not to call any evidence through witnesses of its own, it did not concede any of the applicant's allegations. It submitted that the Board should view the evidence and allegations in the context of this particular workplace. We should take into account the fact that both the executive and the members of the bargaining unit were only appointed for one-year terms and that in this situation students are supervising other students. It was pointed out that the executive members were unlikely to have any training or knowledge of the Labour Relations Act. Counsel conceded that this ignorance was not a defence but submitted that it was an explanation for some of the conduct which might have been inappropriate.

43The responding party divided the various allegations of the applicant into two catego­ries, one was described as trivial and the other as more serious. In the trivial category, CUSA included the allegation that its failure to respond in an expeditious manner to the leave of absence requests was a breach of the Act. It argued that this allegation was not supported in the evidence because the time in which it responded was reasonable. CUSA also submitted that Ms. Watson's presence in the Women's Centre after Ms. Twaddle's reinstatement did not constitute continuing harassment and intimidation and was not a breach of the Labour Relations Act. CUSA argued fur­ther that the installation of a shredder was not harassment or anti-union activity and did not consti­tute an unfair labour practice. With respect to the theft of materials from Mr. Kanaan and Ms. Twaddle's files. It was argued that there was no evidence which could link the thefts in any way to the organization campaign, nor was there any evidence upon which we could find that Ms. Cowan herself had removed the documentation. We were advised that even if we found that such thefts did occur, they were not harassment and did not constitute an unfair labour practice.

44The allegations which CUSA considered to be more serious included the retrieval of the keys to the CUSA offices from the service co-ordinators, the meeting of June 9 and the termina­tions of Ms. Twaddle and Mr. Ross. Counsel submitted that at the time that the keys were retrieved there was no evidence that anyone in management knew about the organizing campaign and that reducing the number of keys available made good sense. With respect to the June 9 meet­ing, CUSA noted that the core group was meeting amongst themselves during working time behind closed doors with the result that no one was staffing the offices of the service centres. It wanted to know what was going on because the core group were not sharing information with their supervi­sors or with the other co-ordinators and were not providing services to the students. Counsel sub­mitted that viewed in that context, the meeting of June 9 and Ms. Cowan's questions with respect to these "secret" meetings made sense. CUSA argued that the union was discussed at this meeting because some people had been excluded and that this was not the "CUSA approach". Counsel noted that there is no reason to think that the responding party would be trying to discourage unionization as they already had a collective bargaining relationship with the permanent staff. CUSA submitted that the evidence suggested that the meeting had in fact strengthened the resolve of the core group, as they went immediately to the CUPE representatives and got union cards. He also noted the meeting was a closed meeting and only those persons involved knew about it.

45With respect to the terminations, CUSA argued that there were ongoing complaints with respect to Mr. Ross and Ms. Twaddle, which led in both cases to a termination of employ­ment. Counsel argued that on the totality of the evidence we could not find that the purpose of ter­minating them was to crush the unionization campaign.

46CUSA submitted that the test under section 9.2 of the Act is whether the true wishes of the employees in the bargaining unit can be ascertained, and if they cannot, is it because of the employer's actions? Counsel pointed out that the remedial authority is discretionary as the section states, that the Board may certify the trade union. CUSA submitted that the union had the onus under section 9.2 and that this is an exceptional remedy to which we should only resort if we find that employees are unable to exercise free choice in this matter. Counsel referred us to the follow­ing decisions: Charterways Transportation Limited, [1982] OLRB Rep. Apr. 552; J. Sousa Contrac­tor Limited, [1988] OLRB Rep. Oct. 1027; Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848; Ontario Bus Industries Inc., [1989] OLRB Rep. Nov. 1115; Primo Foods Limited, [1983] OLRB Rep. Apr. 593, and Repla Limited, [1990] OLRB Rep. Dec. 1319.

47Counsel addressed the removal by the Legislature of what was a third criterion for remedial relief under what is now section 9.2 and what was formerly section 8 of the Labour Rela­tions Act. Section 8 provided as follows:

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

CUSA submitted that although part three of the test, i.e., whether "a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit" has been removed from section 9.2, it still forms part of the analysis. Counsel argued that evidence of support for the union forms part of the determination of whether the true wishes of employees can be ascertained.

48CUSA also argued that section 18 of the Interpretation Act suggests that the fact of a change in legislation does not necessarily mean that the substance of the section is any different. Section 18 of the Interpretation Act reads as follows:

18. The amendment of an Act shall be deemed not to be or to involve a declaration that the law under the Act was or was considered by the Legislature to have been different from the law as it has become under the Act as so amended.

49It was argued that there was evidence before us that the preference for unionization was not equally shared even at the beginning of the campaign by the service co-ordinators. It submitted that in this case there was no evidence that the true wishes of employees could not be ascertained, that there was evidence, rather, of a poorly-conducted organizing drive. CUSA also noted that the original application did not include approximately 20 members of the bargaining unit and the union could not therefore have been trying to organize a significant part of the bargaining unit. It was submitted that there was no evidence that the majority of the members of the potential bargaining unit even knew of the terminations of Mr. Ross and Ms. Twaddle, and that the only witness for the union who spoke specifically to whether or not she could vote her mind was Stacy Fietz, who indi­cated that she would be able to do so. CUSA argued therefore that the union had called insuffi­cient evidence for the Board to be able to conclude that the true employee wishes are not ascer­tainable.

50CUSA requested that we order a vote and noted that we could order it to post notices. It was argued that those measures would be sufficient to ensure that the employees' true wishes were ascertained and that it would not be appropriate to grant the union a certificate in these cir­cumstances. CUSA argued finally that we should not grant a certificate in light of the slim support the union has shown in the evidence.

51The union argued that the responding party committed repeated violations of the Labour Relations Act. It asserted that there is no decision in which the Board has found that a union organizer was terminated contrary to the Act in which a certificate did not issue. The union argued that the first criterion, that is whether or not CUSA committed unfair labour practices, had essentially been determined by the responding party's failure to call evidence and that the only issue remaining before us is whether or not the true wishes of the employees are likely to be ascer­tained.

52The applicant referred us to jurisprudence under the former section 8 of the Act which it claimed firmly established that where the Board has found that unfair labour practices have occurred as a result of an employer making economic threats to employees or discharging union organizers during an organizing drive, a certificate will follow. The applicant referred to the follow­ing cases: Robin Hood Multifoods Limited, [1976] OLRB Rep. May 250; Winson Construction Limited, [1976] OLRB Rep. Nov. 314; Ex-Cell-O Wildex, [1977] OLRB Rep. July 466; Radio Shack, [1979] OLRB Rep. March 248; Brinks Canada Limited, [1982] OLRB Rep. Aug. 1140; Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848; DI-AL Construction Limited, [1983] OLRB Rep. March 356; Toronto Fabricating Company, [1985] OLRB Rep. Oct. 1528; Maplehurst Hospital Limited, [1986] OLRB Rep. July 996; Nepean Bus Lines Inc., [1990] OLRB Rep. Mar. 295; Royce Dupont Poultry Packers, [1989] OLRB Rep. May 492; David Chapman's Ice-cream Limited, [1990] OLRB Rep. July 778; Repla Limited, [1990] OLRB Rep. Dec. 1319; Mikes Paint­ing & Decorating Ltd., [1991] OLRB Rep. Jan. 67; Win. J. Davidson Electric Inc., [1992] OLRB Rep. Jan. 101; Royal Homes Limited, [1992] OLRB Rep. Feb. 199; Beaver Lumber, [1992] OLRB Rep. May 553; Grant Development Corporation, [1993] OLRB Rep. Jan. 21; Loeb Highland, [1993] OLRB Rep. March 197; Loeb IGA Highland, [1993] OLRB Rep. March 208.

53Counsel argued that in this case there was evidence of surveillance, of interrogation and monitoring of union organizers, of intimidation and harassment through theft of materials, captive audience meetings, threats to economic security, discharges of two union organizers and pressuring a union supporter to quit. The union argued that these incidents established a pattern of harass­ment and intimidation over a period of two months. It was submitted that in light of these breaches of the Labour Relations Act, the true wishes of employees are not ascertainable. The union argued that we will never know if the campaign would have run out of steam or would have been success­ful, and once the employer has "poisoned the well", the Board cannot clean it through the mea­sures suggested by the responding party. Counsel submitted that there was extensive publicity with respect to the discharges, and putting Ms. Twaddle and Mr. Ross back to work would not be suffi­cient to remove the chilling affect. It was argued that a secret ballot would not ensure that employ­ees' true wishes would be ascertained.

54The union noted that the test under section 9.2 is that the true wishes were not likely to be ascertained and that the Board does not have to be certain that they are not ascertainable. We were also referred to the approach in British Columbia which province, it was submitted, has mate­rially different language from section 9.2. Subsequently, counsel forwarded further decisions from British Columbia to the Board. The responding party forwarded written submissions with respect to those decisions. As the legislation in British Columbia is significantly different from that in Ontario, we do not find the decisions provided to be of assistance.

55The union also addressed the third criterion which was found in the former section 8 of the Act and has been deleted. It noted that the removal of that section reflected a concern that that criterion allowed an employer to come down hard on the union at the beginning of an organizing campaign with no consequences because the union would never be able to get the kind of support required to meet it. It was argued that it would be inappropriate now for the Board to consider any evidence of adequacy of union support under section 9.2. It was asserted that it was irrelevant that members of the union had not approached all of the employees in the potential bargaining unit, or that it had not identified the full extent of the bargaining unit as of the time of the application. It was pointed out that if the union had the ability to organize without interference, it may well have determined the full extent of the bargaining unit prior to application. It was argued that in any case, the test is not how well the campaign would have succeeded had it been allowed to proceed, but whether or not the true wishes of the employees may be ascertainable following the employer's commission of unfair labour practices.

56Counsel requested that we issue a certificate for the bargaining unit agreed to by the parties, that we confirm the reinstatement of Ms. Twaddle and Mr. Ross, and that we order the employer to offer Mr. Kanaan a chance to return to his position. Counsel also requested the usual postings, an order that it be permitted to hold a meeting with all employees in the bargaining unit during working hours on the responding party's premises, an order that Ms. Twaddle and Mr. Ross and all the other union supporters who attended the hearing on behalf of the union be compen­sated for any financial loss as a result of attending the hearing, and that they should be compen­sated for their costs in travelling and staying in Toronto for the hearing. In the alternative, the union requested the fullest relief that the Board could order, shy of a certificate, including post­ings, publicity of the employer's unfair labour practices and a secret ballot vote.

57In reply, the responding party argued that the Board's extensive case law in this area did not stand for the proposition that a certificate would automatically follow the termination of union organizers, and that each case had to be viewed on its facts to determine the ascertainability of employee wishes on the basis of subjective evidence submitted by the union. It argued that the subjective evidence submitted in this case was insufficient to meet the union's onus. Counsel also denied that we had the remedial authority to order the employer to offer Mr. Kanaan the opportu­nity to return to his position, and that it was contrary to Board policy for us to order the respond­ing party to pay costs of anyone in this matter.

Decision

58We have carefully considered the evidence submitted in this matter and find that the responding party has violated sections 65, 67 and 71 of the Labour Relations Act. However, we do not find that a number of the union's allegations about which evidence was introduced constituted violations of the Act. Specifically, we do not find that the failure to grant Mr. Ross and Ms. Twad­dle leaves of absence to attend the hearing until August 20 nor the purchase and installation of a shredding machine to be violations of the Act. We are also unable to conclude on the evidence that anyone acting on behalf of CUSA was responsible for the disappearance of the documents from Mr. Kanaan's or Ms. Twaddle's files or from Ms. Twaddle's desk since so many people had access to their offices.

59We do find, however, that other evidence supports the allegations that the responding party embarked on a scheme of harassment and intimidation of union organizers and supporters. Specifically, we find that Ms. Watson's attendance at the Women's Centre after Ms. Twaddle was reinstated, the requirement to close and lock the door between Mr. Ross and Ms. Kennedy's offices and the requirement that employees return keys to the CUSA office, were part of this scheme. We do not accept that these incidents were merely coincidental with the organizing drive, and our perception of them is coloured by the June 1 meeting with Ms. Twaddle at which she was called a "ringleader", as well as by the termination of Mr. Ross and Ms. Twaddle. As CUSA has also chosen not to call any witnesses to provide any other explanation for these actions, we are sat­isfied that they were motivated by anti-union considerations.

60We find that the responding party intimidated and harassed employees who wished to form a union by requiring them to attend the June 9 meeting at which it raised the issue of unioni­zation and identified or attempted to identify union supporters. We also find that CUSA intimi­dated and threatened employees by suggesting that some of the student services would not be sup­ported in the event that a union organization drive was successful.

61We also find that the responding party's treatment of Ms. Twaddle, including the numerous meetings she was required to attend and the letters of reprimand she received were part of the scheme of intimidation and harassment which was motivated, at least in part, by her involve­ment in the union organizing campaign. We accept that the termination of both Mr. Ross and Ms. Twaddle was motivated by their involvement in the organizing campaign, and was an attempt to punish them for that involvement as well as an attempt to prevent the union from successfully organizing the workplace. We note that there was no evidence that Mr. Ross had any previous dis­ciplinary record, and that both he and Ms. Twaddle had only been employees for a few months. We also note that although a number of complaints were made to Ms. Twaddle about her "atti­tude", these complaints were not substantiated and that she had been identified as a "ringleader" by Ms. Cowan. We find that CUSA's problems with Ms. Twaddle's "attitude" were related at least partially to her being a "ringleader" in the union organizing campaign. The one specific complaint levelled against Ms. Twaddle was that she had criticized a member of the University administration for the way he had handled a very serious threat to women members of the student body the prevt­ous year. We note that Ms. Twaddle was not terminated for that interaction at the time at which it occurred. Furthermore, given Ms. Twaddle's position as co-ordinator of the Women's Centre and, in that role an advocate for women on campus, it was unlikely that she would have been termi­nated for that reason. It was for these reasons that we ordered that Mr. Ross and Ms. Twaddle be reinstated to their positions in our decision of September 2, 1993.

62The union also requested that we order the responding party to offer Mr. Kanaan the opportunity to return to his former position. The evidence disclosed that Mr. Kanaan had a diffi­cult relationship with the CUSA executive. We accept that that situation was exacerbated by Mr. Kanaan's involvement as a union supporter and we also accept that it is possible that Mr. Kanaan may also have had his employment terminated had he not quit. However, Mr. Kanaan did choose to quit his employment. His resignation was not in circumstances in which the employer had indi­cated to him that if he did not quit, he would be terminated. Under the circumstances, we find that it would not be appropriate to order the responding party to offer him reinstatement.

63The union also requested that we order the responding party to pay the costs of Ms. Twaddle, Mr. Ross and other union supporters who attended the hearing. We do not believe these are appropriate circumstances in which to reconsider the Board's general policy of not ordering costs.

64In our decision of September 2 we made the following orders: Accordingly, the Board:

(1) declares that the responding party Carleton University Students Association Inc. has contravened sections 65, 67 and 71 of the Labour Relations Act;

(2) orders that Renée Twaddle and John Wayne Ross be reinstated to employment in their former positions on a permanent basis, with full compensation for losses of income and benefits, including interest as calculated in the usual manner;

(3) directs that the responding party post for 60 consecutive days in conspicuous places in the workplace the Notice to Employees attached as Appendix "A" hereto.

APPENDIX "A"

THE LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE ONTARIO

LABOUR RELATIONS BOARD

We have issued this notice in compliance with an Order of the Ontario Labour Relations Board issued after a hearing in which both Carleton University Students' Association Inc. and Cana­dian Union of Public Employees had the opportunity to present evidence. The Ontario Labour Relations Board found that we violated the Ontario Labour Relations Act in terminating the employment of Ren~e Twaddle and John Wayne Ross and has ordered us to inform our employees of their rights.

The Act gives all employees these rights:

To organize themselves;

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

To act together for collective bargaining;

To refuse to do any and all of these things.

We assure all of you that:

WE WILL NOT do anything that interferes with these rights.

WE WILL NOT intimidate or exert undue influence upon you, whether through meetings, individual conversations or otherwise, to prevent you from exercising your right to associate and participate in the lawful activities of a union.

WE WILL NOT layoff, discharge or threaten to lay off or discharge any employee because of that employee's union activity or sympathies.

WE WILL NOT in any other manner interfere with or restrain or coerce our employ­ees in the exercise of their rights under the Act.

WE WILL comply with all directions of the Ontario Labour Relations Board.

Carleton University

Students Association Inc.

Per:

(Authorized Representative)

DATED THIS 2ND DAY OF SEPTEMBER, 1993

65We find that the responding party violated sections 65, 67 and 71 of the Labour Rela­tions Act in the manner described in the paragraphs above and that, as a result, the true wishes of the employees are not likely to be ascertained.

66We find that CUSA's suggestion at the June 9 meeting that a successful unionization campaign would affect the provision of student services and by implication, the co-ordinators' posi­tions, was an economic threat made to employees in the process of an organizing drive. The effect of such a threat on employees would be to instill fear, with the result that their true wishes are not likely to be ascertained. (See Radio Shack, supra; Brinks Canada Limited, supra; Manor Cleaners Limited, supra, Win. J. Davidson Electric Inc., supra; J. Sousa Contractor Limited, supra.)

67We also find that the termination of the two union organizers in these circumstances would have a chilling effect on the members of the bargaining unit by demonstrating to them that CUSA is prepared to use its economic power to penalize employees who seek to exercise their rights under the Act, and makes it unlikely that their true wishes may be ascertained. (See Radio Shack, supra; DI-AL Construction Limited, supra; Toronto Fabricating Company, sup ra; Maplehurst Hospital Limited, supra; Nepean Bus Lines Inc., supra; Royce Dupont Poultry Packers, supra; David Chapman's Ice-cream Limited, supra; Repla Limited, supra; Win. J. Davidson Elec­tric Inc., supra; Royal Homes Limited, supra; Grant Development Corporation, supra; J. Sousa Contractor Limited, supra.)

68It is unnecessary for us to consider whether or not the union has adequate support for collective bargaining. The removal of the third criterion from section 9.2 is, in our view, a clear direction to the Board that the question of whether a trade union has membership support ade­quate for purposes of collective bargaining is not one which we should any longer consider. This view is consistent with the ordinary rules of statutory interpretation which suggest that the specific deletion of a substantive requirement from legislation be understood to mean that that require­ment is no longer necessary. We do not accept CUSA's argument that section 18 of the Interpretation Act should lead us to conclude otherwise. We interpret section 18 of that Act to mean that a change in the law should not lead to the conclusion that the former law was different from the amended Act, not vice versa, as argued by CUSA. We also do not accept the responding party's argument that membership support is a factor which should be considered under the crite­rion of ascertainability. To accept such an argument would be to reintroduce a requirement for sec­tion 9.2 relief that the Legislature has clearly decided to dispense with.

69Finally, even assuming that the potential success of the union's organizing campaign is a relevant consideration in these circumstances (a proposition about which we are not absolutely convinced), we are not satisfied that the campaign would necessarily have been doomed regardless of CUSA's unfair labour practices.

70The only issues for the Board to decide are whether the true wishes of employees are likely to be ascertained, and if not, is it because of the employer's contraventions of the Act. We have found that employee wishes are not likely to be ascertained as a result of CUSA's violations of the Act. We order that the union be certified for the following bargaining unit to which the par­ties have agreed, on an interim basis, until the outstanding bargaining unit dispute is resolved:

all employees of Carleton University Students' Association Inc. in the City of Ottawa, save and except Department Heads, persons above the rank of Department Head and employees in bar­gaining units for which any trade union held bargaining rights as of August 5, 1993, and, pend­ing resolution by the Board, excluding as well Brenda Kennedy, classified as the Foot Patrol Co­ordinator.

A Labour Relations Officer is hereby appointed to inquire into and report to the Board with respect to the duties and responsibilities of the disputed individual.

71We also order the responding party to post copies of this decision and the Notice to Employees attached as Appendix "A" hereto for 60 consecutive days in conspicuous places in the workplace. We further order that the applicant be permitted to hold a meeting with all employees in the bargaining unit during working hours on the responding party's premises.

72A final certificate must await the determination of the bargaining unit issue in dispute.

73We remain seized with respect to any matters arising with respect to the implementation of this decision.

DECISION OF BOARD MEMBER W. A. CORRELL; October 29, 1993

1. I do not agree with that part of this award which grants an automatic certification of the union.

2. One of the unusual factors of this case has been the nature of the organization which is involved. It is a student executive council and a group of employees (CUSA), many of them stu­dents supplying certain services to the student body. Some of these services are supplied through the offices of co-ordinators. The student executive is in office for a one year term which terminates in May 1994. The student co-ordinators are hired by the executive and paid an honorarium for their term which is also one year and terminates May 1994. This is not a normal management-em­ployee relationship and it is unlikely that many applications for certification have been made in cir­cumstances where the tenure of both employees and employer are temporary in nature.

3. The importance of this factor in this case is evident in the quality of the management process and the lack of management experience among the members of the executive. This led in great part to the discharge of the two people. It also led to my support of that part of this decision to reinstate those two people. I do not agree that there is sufficient evidence to establish an anti-union animus and given that there is already another full-time union of employees of CUSA. In my view there was certainly bad feelings between individuals and there were incidents of inappropriate behaviour and misunderstanding but not sufficient to warrant discharge.

4. A further part of this factor of inexperience is the ineptness of the organizing campaign by the employees. Evidence of this includes the length of time taken by the organizers to expand their initiatives from the "core group", the hesitant approach to a few people outside of that group, the fact that only four cards were signed out of an estimated 50 potential bargaining unit members that no one outside of the core signed cards and the late approach by the "core group" to the Union and that party's failure to supply cards promptly. In addition the "secret meetings" which were held "by the core group" on the employer's premises and during working hours added to uncertainty, mystery and bad feeling in the work place over a period of some three months. Against this background other aspects of this case must be weighed.

5. The Act provides the Board with a discretion to certify the union under section 9.2 without a vote. The Board "may" do so if it is satisfied "that the true wishes... are not likely to be ascertained".

6. It must follow therefore that the Board having such a discretion must carefully analyse each situation to discover why it is granting or not granting automatic certification. It is not a case of certification under any circumstances and each case has to be considered on its own merits.

7. The majority have decided that the Legislature, in deleting certain words from the for­mer section 8 of the Act, have sent the message that the Board should not consider as a factor the level of adequate union support in exercising its discretion. Counsel for CUSA, the student execu­tive, disagrees with this on the basis of the Interpretation Act.

8. For my part, I support the views of counsel for CUSA. In addition to his argument, it is my opinion that given the Board's discretion it is natural among other things to assume, in its anal­ysis that a union must have a distinct measure of adequate support of the membership it seeks to represent. Not to do so would be a denial of fairness to those who have other views particularly if those views were held by a substantial majority. It would also be a burden upon both parties to any subsequent agreement. For instance management might well be sceptical if the union in presenting its proposals at negotiations or challenging an action of management under the collective agree­ment could not demonstrate to management that it spoke from a position of strength. Similarly it places management in a dilemma in formulating any policy decision if there is doubt in their minds about the adequacy of the support of the union by its members. This produces a situation that is not conducive to sound Labour Relations. This Board in its analysis of any situation under section 9.2 should continue to investigate the level of union support in exercising its discretion.

9. At no time during the hearings of this case was there evidence of substantial support of the union organization drive. First, it is a broad and varied bargaining unit encompassing employ­ees in counselling activities, educational support, tavern and recreation activities, restaurant ser­vice, cleaning and security. Most of these people are part-time and students, with some as full-time workers. We heard only from the "core group" who are co-ordinators plus one witness from the graphics communications centre. Vague references were made to contact with bar employees and security people, but no witnesses came forward. In total it appears that no more than four people from these other groups were contacted and they were only engaged in general conversation. The bargaining unit it is estimated will include about 50 people, but no cards were signed outside of four of the "core members". No commitment of support came from others. The campaign appeared by this evidence to be slow, disjointed and without focus or continuity. There was cer­tainly no groundswell of support or dedication to unionization by others.

10. I would, aside from the above, question the appropriateness of posting any notice about employee rights which is designed to educate or punish a management group that will not exist after May 1994. It would be likened by most including any student of law or labour relations to shooting a dead horse.

11. A more suitable and progressive solution should be considered. It was clear in the evidence that those employees involved in this case did not understand the nature and process of the vote as a remedy. They did not understand the degree of secrecy of the ballot provided by the Act, the degree of supervision provided by the Board's officers in conducting the secret ballot and the overall protection provided by the process for the confidentiality of the voters. This structure for secret ballot voting has been carefully constructed and managed by the Board over the years so that the privacy of the individual is respected and so that the voters true wishes can be ascertained. That has been the goal and it has been successful. I know of no failures in this regard.

12. There is another factor in this case that encourages voters to express their true wishes and it is a powerful one. The Board has reinstated the discharged employees with full compensa­tion. That in itself carries a clear message to those in the bargaining unit. Management cannot act arbitrarily with impunity.

13. In addition and for this unusual situation a different notice could be posted to replace the Board's standard form. It would be more appropriate for those, who might be apprehensive to inform them about their rights and the nature of the standard voting process.

14. The notice could explain the employee rights and announce a meeting to be held on the employer's premises with those attending paid their appropriate wage for the time. The meeting would not be for the sole benefit of the union but supervised by a Board officer with representation of the union and the student executive also present. The purpose would be to instruct all con­cerned about their rights, to describe the Act's function in this respect, to inform all present about the voting procedure, its nature and its protection of privacy as well as the time and date of the vote.

15. For the above reasons I do not agree with the majority award and urge that the above proposal for a different scenario be considered and implemented as a more practicable way of introducing the Board's approach to its responsibilities under the revised Act. The majority may prevail in this case but this alternative may be applicable in other situations.

16. I would order that for the above reasons a vote be held in accordance with the above process.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE VITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING ARISING OUT OF THE EFFORTS OP THE CANADIAN UNION OP PUBLIC EMPLOYEES TO BECOME THE COLLECTIVE BARGAINING AGENT FOR THE EMPLOYEES OF THE CARLETON UNIVERSITY STUDENTS' ASSOCIATION INC. THE ONTARIO LABOUR RELATIONS BOARD HAS FOUND THAT WE HAVE VIOLATED THE LABOUR RELATIONS ACT FOR REASONS DESCRIBED IN ITS DECISION OF OCTOBER 29. 1993 WHICH WE ARE ALSO ORDERED TO POST. THE BOARD HAS ISSUED A CERTIFICATE TO THE CANADIAN UNION OF PUBLIC EMPLOYEES BECAUSE OF THE CARLETON UNIVERSITY STUDENTS' ASSOCIATION INC.'S BREACH OF THE LABOUR RELATIONS ACT. THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES;

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES

OP A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY OR ALL OF THESE THINGS.

CARLETON UNIVERSITY STUDENTS'

ASSOCIATION INC.

PER:

(AUTHORIZED REPRESENTATIVE)

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

This notice must remain posted for 60 consecutive working days.