Amalgamated Clothing and Textile Workers Union v. Royal Shirt Company Limited, 1993 CanLII 7930

[1993] OLRB Rep. November 1177

1226-93-U; 1238-93-R Amalgamated Clothing and Textile Workers Union, Appli­cant v. Royal Shirt Company Limited, Responding Party

BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. N. Fraser and P. V. Grasso.

APPEARANCES: Marisa Pollock and John Wensley for the applicant; Geoff Shaw, Sari Springer, Luigi D'Abbondanza, and Mary D'Abbondanza for the responding party.

DECISION OF M. A. NAIRN, VICE-CHAIR AND BOARD MEMBER P. V. GRASSO; November 12, 1993

1. Board File No. 1226-93-U is a section 91 complaint filed by the applicant on its own behalf and on behalf of three employees whose employment was terminated. Board File No. 1238-93-R is an application for certification in which the applicant is relying on section 9.2 of the Labour Relations Act (the "Act") by way of remedy.

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

3. On May 20, 1993, Anthony Bellisario, then employed as industrial engineer and plant manager, and Ricardo Zurito, responsible primarily for operating a computerized marker pro­gram, were terminated from their employment. On May 21, 1993, Marie Brown, employed in the shipping department, was terminated from employment. It is the position of the union that these decisions to terminate the employment of these employees was "tainted" by anti-union animus. It is the position of the responding party that these employees were terminated from employment for cause and not for any improper motive - It is not in dispute that the owners of the company made these decisions and that at the time of these terminations the owners were aware that the union had commenced an organizing drive with respect to its employees.

4. In addition to the terminations of the three employees, the applicant seeks to rely on certain other alleged employer conduct, occurring during the organizing campaign, to support its request for section 9.2 relief in its certification application and in its request for relief under section 91 of the Act.

5. The legal principles to be applied to the determination of the section 91 complaint were not in dispute. The parties referred to a number of the same earlier decisions of the Board in their submissions to the panel. It is clear that in assessing the reasons for discharge of an employee the Board is not seeking to determine whether there was just cause for the discharge, but rather whether the decision to terminate employment was in any way motivated by reason of union activ­ity. Two decisions, often cited, summarize the nature of the exercise. In The Barrie Examiner, [1975] O.L.R.B. Rep. Oct. 745 at paragraph 17, the Board stated:

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

6. The question of motive is a factual one based on all the circumstances. In Pop Shoppe (Toronto) Limited, [1976] O.L.R.B. Rep. June 299 at paragraph 5, the Board described the nature of the often inferential reasoning process when assessing the evidence:

7. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real rea­son or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowl­edge of it, usual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other "peculiarities". (See National Auto­matic Vending Co. Ltd. case 63 CLLC 16.278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most dif­ficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organiz­ing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sen­sitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.

8. Having set out the nature of the Board's inquiry regarding the section 91 complaint, and also having carefully reviewed the evidence and submissions of the parties, we are of the view that the employer did violate the Act. The extent of those violations and our reasons for so concluding follow.

9. At the outset a few remarks concerning the credibility of witnesses' is in order. These matters were heard over fifteen days. Much of the evidence was ultimately of only limited rele­vance to the issues in dispute and will not be referred to here. The Board's findings of fact have been made taking into account issues of credibility wherein we have assessed various factors including the witnesses' demeanour in giving their evidence, the consistency of that evidence when compared with other evidence of that witness and others, the apparent ability of a witness to resist their own self-interest and overall, assessing what was most reasonable and probable in the circum­stances. While much was said in submissions by the parties concerning various alleged inconsisten­cies or discrepancies in the evidence we note that many of those matters relied on reflected the dif­fering perspectives brought by various individuals to events and the various individual ways of expressing those different perspectives.

10. However, we note at this stage and will review examples as we review the evidence, that the evidence of the company's owners was oftentimes contradictory, both in relation to their own and each other's evidence. A number of assertions pressed in their examinations in chief were retracted or considerably qualified in cross-examination. Others were contradicted by the evidence of others called in their support. Both Luigi and Mary D'Abbondanza were quick to draw conclu­sions based only on speculation and Mr. D'Abbondanza asserted wrongdoing on the part of Marie Brown for the first time in his evidence, when such allegations had not been made earlier either in the pleadings or by Mrs. D'Abbondanza in her evidence.

11. The background facts relevant to these disputes can be summarized as follows. The responding party ("Royal Shirt" or the "company") manufactures fine quality shirts. It is owned by Luigi and Mary D'Abbondanza. (We note that we will refer informally to the owners and to the employees by their given names for ease of exposition) - This husband and wife team started tailor­ing shirts at home in the late 1960's. Over the years they have successfully developed the business and it has grown to a point where it now has facilities in the City of Vaughan and employs approxi­mately sixty people. The bulk of the manufacturing (approximately eighty-five percent) is done through the company's stock department. Many of its customers purchase shirts to be sold under the customer's own label. For example, the retailer Holt Renfrew is the company's largest cus­tomer, providing approximately thirty percent of its business. The shirts produced for Holt Ren­frew are then sold under its label. In addition to the stock department, the company produces cus­tom shirts for various clients. The operation is basically broken down into the stock department, the custom department, and the cutting room. There are approximately fifty-four people employed in the bargaining unit agreed to between the parties for the purposes of this application for certifi­cation. In addition, the company employs sales persons, a controller, and two or three office and reception staff.

12. Luigi and Mary D'Abbondanza perform active roles in the company. In addition to overseeing the operation in its entirety, Luigi works primarily with the patterns and markers at the beginning of the production phase. Mary spends time in day-to-day management and marketing. It is apparent that the two work very much as a team and are involved in all aspects of the business.

13. The company also employs other family members both in the plant and in the office. There are also a number of long term employees in the plant. The bargaining unit applied for includes those persons employed in the plant, save and except supervisors. This includes primarily sewing machine operators and other persons employed in the production process such as cutters or finishers, in addition to general labour and support services such as shipping.

14. On April 28, 1993 the applicant (or the "union") responding to tentative inquiries from employees of the company, decided to leaflet cars parked in the company's parking lot. To that end, John Wensley and Tony Pileggi, both staff representatives of the union, attended at the com­pany premises late in the afternoon and proceeded to place leaflets under the windshield wipers of cars parked there. That leaflet was to the attention of Royal Shirt employees and suggested, essen­tially, that if they were interested in better terms and conditions of employment they could join the applicant. It identified other shirt manufacturing companies where the union represented employ­ees and invited employees to call Mr. Pileggi or Mr. Wensley.

15. Having distributed the leaflets, the two men positioned themselves across the street in Mr. Pileggi's car to observe employees as they left work at the end of the day. Prior to that time however, Mr. Waxberg, an individual from a neighbouring company came out of the building and removed a small number of leaflets from the cars. He proceeded to enter Royal Shirt's premises. He spoke briefly with Luigi Squazzin, the company's Sales Director, for the purpose of showing him the leaflet. A few minutes later he left and walked across the street to a doughnut shop. On his return a few moments later he met with Mary D'Abbondanza who had just returned to the prem­ises whereupon he showed her the leaflet.

16. We heard detailed evidence including viewing photographs, concerning the events sur­rounding this exchange on April 28. There was conflicting evidence concerning whether Mr. Wax-berg then removed some or all of the leaflets, or whether Mary removed some leaflets and ulti­mately whether Mary had all of the leaflets in her possession on entering the Royal Shirt premises. Whether or not the removal of leaflets ultimately constituted some form of interference with the union's organizing attempt is unnecessary to determine in the circumstances. It is sufficient to note that at this time, Mary was aware that the union had visited the premises and was seeking to attempt to organize the employees, and that as a result of immediate discussion with members of the management team, they were similarly aware of the events of April 28, 1993. This included both Mary and Luigi D'Abbondanza, Anthony (Tony) Bellisario, and Luigi Squazzin. We note that everyone agreed that Tony was the most visibly upset by this information and on reviewing the leaflet challenged the claims that the union was asserting.

17. Even assuming that Mr. Waxberg left the leaflets under one windshield, it would have been apparent to Mr. Wensley and Mr. Pileggi that the employees of the company would not likely come to know of their attempt to communicate with them in this fashion. The union organizers assumed (as it turned out, correctly) that Mary was connected to the management of the company and that in all likelihood the company was therefore aware that the union had attempted this com­munication.

18. On Friday May 14, 1993, the union made another attempt at distributing its leaflet. This time, Mr. Pileggi and Andy Trevisan, also employed by the union, attended at the premises to hand out envelopes to the employees as they left work at 4:30 p.m. The envelope contained the leaflet and a union membership application card. After most of the employees had left, Mr. Pileggi was approached first by Luigi Squazzin who asked him for a copy of the leaflet. Mr. Pileggi would not give him one. Following a short discussion Mr. Squazzin returned inside. Subsequently, Ida D'Abbondanza (the owner's sister) approached Mr. Pileggi as well with the same request and was again turned down. Again, regardless of the specifics of these exchanges, it is apparent that man­agement members were aware that the union was again attempting to communicate with the employees, and that on this occasion, the union had been successful in distributing leaflets and cards to most if not all of the employees.

19. Mary and Luigi were not at work on May 14. The preceding Saturday they had left for a vacation in Florida, returning, according to Mary, about 6:00 p.m. on Sunday, May 16. Whether or not the D'Abbondanza's were called and informed of the union's visit immediately on the Friday afternoon, Mary testified that by Friday night she was aware of the events of that day as a result of a telephone conversation with Lisa D'Abbondanza, one of her daughters.

20. There was considerable activity in the shop on Monday, May 17. Mary and Luigi D'Ab­bondanza usually arrived at the shop early each day and had coffee in the cafeteria along with the employees as they arrived. The shift starts at 8:00 a.m. On this morning the D'Abbondanza's arrived quite early, as did an unusual number of employees, according to Miriam Llano, an employee called by the company. At the time Miriam was one of Tony's assistants and worked pri­marily in bundling, and she also did payroll. She testified that at about 6:40 a.m. she observed Luigi D'Abbondanza speaking with about twelve employees in the cafeteria in Italian. She noted that they seemed obviously interested in something but she was unable to see what and she left to go to work as Monday is her busy day doing payroll.

21. The union alleges, among other things, that Luigi required employees to return the

union envelopes to him, that he was visibly upset and angry, and that he compiled a list of employ­ees in order to keep track of who had handed in their pamphlet to him. Luigi denied these allega­tions. Mary testified that they were being congratulated for their 40th wedding anniversary by the employees. However it is not in dispute that there was some discussion of the union. According to Luigi, one employee threw the "paper" on the table and asked him what it was about and he advised her that if she was in favour of the union to sign the card and mail it in. While denying that he asked for their return, he acknowledged that a number of employees did give their envelopes to him at that time.

21. Subsequently, a number of other employees provided him with the envelope they had received. In one instance, Luigi testified that the employee said she had retrieved it from the gar­bage. He testified that she stated that she had been "telling the truth", which could be verified because the envelope had sauce on it. Luigi testified that these comments were not made as a result of any interest he held, but were directed at the other employees present. Again on his own evidence, another employee, Anjeska, secretly brought him her envelope and described to him that she had left it in the back of her car.

22. Miriam testified that she brought her envelope into work on Saturday, May 15 and showed it to Ida who took it and returned it to her later. Miriam left it in the office on a shelf but testified that on Wednesday, May 19, she gave it to Luigi because she thought that "maybe it was important for him to have it". In giving this evidence Miriam initially testified that she brought it in because it was interesting and she wanted to share it with someone. That was Ida, who is Luigi's sister, and is in charge of shipping and although not entirely clear, appears to be treated as a mem­ber of management. Having stated her interest however, Miriam then immediately denied that she had any concern or interest over the material distributed.

23. Ricardo and Marie both testified that Luigi asked for the return of their envelopes. Ricardo did not have one as he had left it with another employee. Marie told Luigi she did not have one and that even if she did, she would not give it to him because, in essence, it was none of Luigi's business. Luigi denies these conversations. In light of the other evidence, and having con­sidered the evidence of these witnesses, we are inclined to conclude that it is more probable than not that Luigi approached these employees for the return of their envelopes. Overall, the evidence supports the conclusion that explicitly or otherwise, Luigi made it clear to employees that it would be in their interest to deliver the envelope they had received from the union to him and that many of the employees had heard and understood that message. We note that Luigi described the shop as quiet that day - that as he walked about there were noticeably fewer than normal requests for his help.

24. On Tuesday, May 18, Mary and Luigi Squazzin attended at Holt Renfrew for a meeting to deal with the company's concerns about shipping problems by Royal Shirt. These problems included proper price labelling and incomplete or incorrect shipments. This was the third such meeting (although the first involving Mary) and the customer was not pleased that the problems had not been corrected. In discussion following the meeting, Mary and Luigi Squazzin attributed the problems to Marie Brown. On their return from Holt Renfrew, Mary met with Marie to review these problems and a discussion about Marie's general state of unhappiness in the shipping depart­ment ensued.

25. Mary testified that one reason she fired Marie was because of these problems with Holt Renfrew; the need to keep their biggest customer satisfied, and that Marie was not happy in the job in any event. At the conclusion of their meeting on Tuesday there had been no discussion of Marie being terminated. Mary did offer Marie some time off to look for other work and she was told she was being taken off the Holt Renfrew account. We have little doubt that at this stage, Mary was hoping that Marie would locate other work and any problem would then disappear.

26. On Tuesday, May 18 in the evening, the D'Abbondanza's decided to hire investigators to follow Tony Bellisario. They both asserted that this was in connection with their concern that he was stealing company information and selling it to a competitor or planning to go into business for himself. We return to that issue later.

27. On Wednesday, May 19, Tony was having lunch in the doughnut shop at the corner when Ricardo, Marie and another employee arrived for lunch. They had met on the way over and Tony was sitting with a supplier who had been at the shop that morning. They all sat at adjoining tables. Luigi Squazzin arrived and as he was getting his order, Marie asked him if he was spying on them. It was unusual for Mr. Squazzin to eat lunch there, although a number of other employees do. Mr. Squazzin joined them. Ricardo, Tony and Marie each testified that over lunch there was discussion concerning the union and that views were expressed, most particularly by Marie who suggested that it might be a good thing. Mr. Squazzin could recall arriving, being asked if spying, his reaction, being asked to sit down with the group, and the nature of the conversation he had with Tony and Mr. Price after the others left.

28. He could not however recall the nature of the conversation with the other employees, and denies that any discussion of the union occurred. He testified he felt he would remember if the union had been discussed as it was an issue because of the leaflets. Earlier in his cross-examination he had testified that the union's visit in April had not been important, in explaining why he could not remember if he had spoken to the owners about it. Mr. Squazzin stated that the union was not really an issue for him although he agreed that it was for the company. He was interested enough however to approach Mr. Pileggi on May 14 to attempt to secure a copy of what was being distrib­uted to employees and to offer money for it. He was bemused by Mr. Pileggi's guess or assumption that he was part of management. In chief Mr. Squazzin gave detailed evidence about employee performance concerns. He acknowledged open communication between he and the owners yet subsequently tended to downplay his interest and interaction with the owners when it was a matter concerning the union. There is little context for the spying comment in the absence of some per­ceived "taboo" subject. On balance we find that discussion of the union did occur, and that sympa­thetic views were expressed at least by Marie.

29. In addition it would appear that the investigator hired to follow Tony was also present in the doughnut shop and would have observed these employees together, even if he had been unable to overhear their conversation. It is reasonable to conclude in either event that the owners would have become aware that the employees, including Tony, had been together over lunch, and in the circumstances it is not unreasonable to conclude that the owners would also have been advised of the fact of discussions concerning the union and the views expressed (we have also noted Mary's evidence referred to at paragraph 65 infra).

30. On Wednesday, Ricardo told Luigi that he thought he was being followed. According to Luigi, he responded by asking Ricardo what he had done wrong.

31. On Thursday, May 20 in the late morning, both Tony and Ricardo were terminated from their employment. Letters of termination were provided to both and Tony was also for­warded a letter dated the same day from company counsel and filed as Exhibit 16. The letters of termination cite poor performance as the cause. Regardless of the precise events of their exit inter­views, it is undisputed that Tony was advised of his termination and escorted from the premises by two large men without being able to retrieve any personal possessions. Similarly, and a short time later, Ricardo was also advised of his termination, escorted out, and told not to return. The office and reception staff would have witnessed them leaving. Keith Crilly, the company's Controller, testified that the shop was quiet that day and he attributed it to his view that it was unusual to have employees escorted from the premises. The two men were the investigators hired by the D'Abbon­danza's. In Miriam's opinion, the shop was quiet three to four days later once employees found out, although she then attributed the silence to Tony's absence and therefore there was "no one to scream at".

32. On Friday, May 21, about 4:00 p.m., Keith Crilly terminated Marie Brown's employ­ment. His first notice that the owners had so decided was that morning. Marie was provided with a letter of termination setting out the reasons for termination as matters of poor performance.

33. At about 4:00 p.m. on Thursday, May 20, the D'Abbondanza's called a meeting of the employees in the cafeteria to distribute a letter concerning the company's view on unionization (Exhibit 20). It sets out the employee's right to freely choose and asks the employees to consider what the company has provided for them. Under "Job Security" and "Respect in the Work Place" the letter states as follows"

Job Security

You will be aware that we have had a difficult time over the past two years and orders have been down a lot. We have made a deliberate decision not to lay off any workers in the plant and each of you who has been with us through this time, has maintained your job while workers at other companies have been laid off. As well, Royal Shirt has not fired any of its workers for poor work performance and we are confident that jobs will continue to be secure at Royal Shirt.

Respect in the Work Place

We treat all workers at Royal Shirt with respect and fairness. No employee's employment has been terminated for poor job performance and we are very tolerant of those who are learning or those who may be having a difficult time. Your working conditions at Royal Shirt are excellent when compared to some of the other shirt manufacturers. We take all concerns raised about the working environment very seriously. We feel that fair and humane treatment of our workers is the only way to run a company like Royal Shirt and we intend to continue to treat all of our workers as we have in the past.

(emphasis added)

34. While in the abstract this letter is an acceptable expression of the employer's views, the highlighted portion is inconsistent with the events of that week. Mary could not recall the last time an employee had been fired for poor performance. Within twenty-four hours surrounding the dis­tribution of the letter, three employees were fired allegedly for poor performance. In the context of all the week's events, what conclusion is an employee likely to draw about the message being sent? The terminations and the distribution of the letter are so closely linked in time that it is prob­able that the initial employee reaction would certainly contain confusion as to the reasons why these three were suddenly fired, and would likely cause doubt in an employees' mind as to the lim­its of the employer's stated tolerance if performance is not the issue.

35. Approximately one week after distributing the envelopes, Mr. Pileggi and Mr. Wensley were unsuccessful in their attempts to have any further communications with employees, including those with whom they had had their first contact. They received one membership card through the mail dated May 20, 1993 which was filed in support of this application for certification.

36. Having set out an overview of the events in the workplace during the week of May 17,

following the union's distribution of the envelopes, it is necessary to review the reasons for termi­nation provided to the employees and relied on at the hearing. It is ultimately unnecessary to recount all of the evidence in its entirety. The issue that the panel must determine is whether or not the decisions to terminate the employees' employment was for any improper motive under the Act. We need not determine whether the employer had cause for termination, although as outlined at the outset, the existence or not of conduct that would support a finding of cause for termination may speak to the motive for the decision.

37. Determining whether the decisions to terminate the employment of the employees were improperly motivated in this case has been both more straightforward than in many cases and more unusual in at least one respect. The timing of the decisions, the reasons stated for the decisions, the rationale and conduct underlying those reasons, in light of other events in the workplace, in many cases on the basis of the evidence of the owners, satisfy us that the decisions were based at least in part on a belief that these employees were involved in the union campaign and that it was neces­sary at that particular time to "clean house"; to remove from the workplace the perceived ele­ments of support for the union. Both the D'Abbondanza's used that term in describing why they felt it necessary to terminate the employees' employment that week when problems relating to their performance had allegedly been apparent for some months. At the same time the case is unusual because one of those individuals was a member of management and we are not persuaded that he played any role in supporting the union or its campaign.

38. The letter of termination provided to Tony on May 20 states that his performance had not improved, but had degenerated despite discussions regarding improvement. It refers to a "blunt" admission on May 17 of an inability to handle staff, and that an ability to supervise and direct employees was a principal function of the job. It asserts that his failure to complete a num­ber of important projects without justifiable explanation has been considered a substantial item of non-performance. In its reply to this complaint, in addition to the matters raised in the letter, the company asserts Tony failed to report to the owners despite specific instruction to do so; failed to consistently meet schedules, made errors with respect to piecework and payroll; and improperly removed company property from the premises. Some of these additional matters are referred to in the letter from counsel also dated May 20 wherein they are stated to be in addition to those matters set out in the letter provided directly to him.

39. At the hearing the D'Abbondanza's concerns regarding Tony were twofold; there were performance issues that primarily involved his alleged failure to implement a piecework system for employees in the shop, and they suspected that Tony and Ricardo were stealing company informa­tion. The complaint of his alleged failure to implement a piecework system of wage rates included the concerns of failing to meet deadlines, making errors in piecework and payroll, and failure to complete important projects without justifiable explanation.

40. Tony was hired pursuant to a government program designed to enhance the technical skills available to manufacturers such as Royal Shirt. It was a three year contract wherein the gov­ernment picked up half of the employee's salary in the first year, and a decreasing amount in the second and third years. The goals of the project must be outlined and the company's proposal is reviewed by an industrial engineer, among others, to assess its appropriateness prior to approval.

41. Royal Shirt had wanted to implement a pure incentive system for some time. Tony's educational background is that of an industrial engineer in the textile and apparel industry and he had experience with piecework systems from prior work. He learned of a new software package designed, essentially, to track all aspects of the production process in the context of a piecework system. We heard evidence from Mordie Geist, the designer of the program. For example, once piecework rates were established for an operation, a ticket could be computer-generated to move with the fabric and enable each operator to track her output. That information from the operator is inputted to the computer by means of "wanding" (an electronic scan) and that information is then utilized to generate payroll information. Information concerning all aspects of the production pro­cess can also be gathered in order to assist in determining problem areas, inventory controls, etc.

42. Tony approached Mary in the fall of 1991 in the hope of convincing her to purchase this system and hire him to get it up and running. Together they completed the application form for the program, with Tony supplying much of the technical information and Mary relying on his expertise for that. In late 1991 and early 1992 Tony worked with the company in anticipation of the introduc­tion of the computer system. Mary testified that Tony was part of the "package" that they pur­chased from Mr. Geist. Luigi testified in chief that Tony began employment in the fall of 1991 and that Tony told him the piecework system would be running by January or February 1992, and that the company was paying Tony for this time. In fact none of this was the case and Tony only began receiving remuneration for his work in March 1992 when he went on the company payroll pursuant to the approved grant program. This is important in the context of the time frames that the D'Ab­bondauza's assert for the appropriate completion of work by Tony.

43. According to Mr. Geist, the system was installed in January 1992 and he surmised that it would take approximately 6-7 months to get it to ninety percent completion. What he meant by "completion" is not entirely clear but he stated that by that time Tony would be trained and have a basic understanding of the program; that he would be capable of putting product (a shirt) on the computer and breaking it down into the required operations. We note that each shirt requires approximately 50 operations in its manufacture and because of the variety in styling there are over 400 operations performed in the production of shirts in the stock department alone.

44. In order to get the system implemented, Mr. Geist testified it was first necessary to determine all the operations in order to be able to produce a ticket for each. This is done in the ini­tial absence of the piecework rates being established. Then for each operation, time studies are conducted so as to determine the appropriate time standard for each operation. These are described in minutes, calculated to three decimal points. Base rates and rate structures must also be determined so that an operator is aware of both the standard time and the applicable rate con­sidered to represent one-hundred percent efficiency for each operation. Once fully implemented a piecework system contemplates that employees are paid based on the number of operations per­formed, and if above the amount set for the standard, the employee will earn more (they will, in effect, be performing at greater that one hundred percent efficiency).

45. The introduction of such systems is often fraught with anxiety for employees as they wait to see if rates and times are set fairly or whether they will be "pushed" in order to continue to be able to earn the same as before the implementation of the system, or, that once efficiencies meet or exceed one-hundred percent will standards be adjusted to the advantage of the employer. This potential was recognized by Tony and by Mr. Geist who testified that it was necessary to earn the trust of the employees first through the complete and correct implementation of the tickets before piecework rates are implemented, and that there is an ongoing process of review and adjustment in conjunction with the operators.

46. At Royal Shirt two individuals had previously attempted to implement a piecework sys­tem and had not been successful. When Tony arrived, employees were being paid a guaranteed hourly rate plus a production bonus. There were piecework rates available from the work done earlier but neither Mr. Geist nor Tony felt they were very good. However they initially used these rates to, in a sense, "test-run" the system for producing tickets. However these would not have

been used in the final program and Mr. Geist agreed, as did the owners, that Tony was required to do time studies in order to revise these numbers.

47. From the outset of their evidence both D'Abbondanza's asserted that Tony promised them that the stock department would be on piecework by May 1992. In support of that assertion they referred to a schedule filed as Exhibit 3, produced by Tony in March 1992. That document is a listing of the operations in the stock department. Some have been highlighted and a completion date for the setting of the rate for that operation is given. About one-third of the total operations for the department have been highlighted and the last date is noted as May 31, 1992. The conclu­sion asserted by the owners is simply untenable. There is nothing in the document to support a conclusion that the stock department would be on piecework by May 1992, and in light of the nature of the work involved a two month time frame in order to be at that point is highly improba­ble. The overall objectives outlined in the grant application contemplated a three-year time frame. Both D'Abbondanza's denied that that time frame was relevant in any way.

48. The D'Abbondanza's repeatedly stated that they relied on Tony's own estimations of time and his own assertions concerning the completion of various tasks and that he failed to meet his own deadlines. Yet neither the document nor Tony's evidence supports the conclusion that he planned to have a piecework system up and running by the end of May, 1992. This is perhaps the clearest example of exaggeration on the part of the owners, in terms of their purported expectation of performance and the alleged failure in that regard.

49. Mr. Geist testified, as did Tony, that the owners had made it clear that they were not happy with the amount of time being taken for the implementation of piecework. Luigi was partic­ularly impatient and according to his evidence, was prepared to fire Tony in the summer of 1992 because he had failed to have the system implemented by May 1992. Mr. Geist's evidence was clear however that the progress of the implementation of the piecework system, while a little slow, was within the normal expected range. He acknowledged that the owners were unhappy with that but stressed that it had to be done correctly or the employees would not accept it and it would not work. These unrealistic expectations of the owners concerning the initial implementation of the piecework system fostered mistrust from the beginning. It seems they quickly began second-guessing many of Tony's decisions. In October, 1992, Keith Crilly did contact a representative of the program to find out if they could replace Tony if the company was unhappy with his work, but no action was taken.

50. On December 1,1992 a meeting was called by Tony to attempt to review individuals' responsibilities on the floor in order that the piecework could be implemented as smoothly as pos­sible. We heard considerable conflicting evidence concerning the various exchanges and reactions in the meeting and the consequences. Ultimately it is of little assistance.

51. While much was made of the meeting by the owners we note that it was a meeting called by Tony to discuss production issues, not a meeting to deal with problems in his perfor­mance. He was confronted with the frustration felt by the owners and by Keith Crilly and he expressed his frustration with what he no doubt saw as an unwillingness to cooperate with him. We have little doubt that Tony understood that the D'Abbondanza's were unhappy, however the D'Abbondanza's also had an interest in keeping Tony employed. As Mary testified, they wanted to protect their investment. They were closer to having a piecework system implemented than they had ever been, and it would have been costly and time-consuming to start over yet again with someone new. Tony apologized for his behaviour on his return to each individual at the meeting. Keith testified he thought Tony was "stressed out" and needed a vacation.

52. In any event, Mary testified that on December 1 Tony promised to get the stock department on piecework by March 1993 and that by March things had improved as the system was in place, and so Tony was not fired then. We note that in January 1993 the program representative that had spoken with Keith in October brought a consultant to meet with Mary and suggested he spend time with Tony. Tony was not aware of this visit, nor was the offer followed up by the own­ers.

53. While both D'Abbondanza's were adamant that Tony had done little, if anything expected of him, within a year of his arrival the stock room was on a piecework system and overall production had increased, according to Keith, from about 260 shirts a day to about 410 shirts per day, an increase of close to sixty percent. While Mary disputed these production numbers, there was no reason to disbelieve Keith. He testified that the numbers are posted on a bulletin board in the shop, although he also testified that it was thanks to Elizabeth, the new floorlady, that produc­tion had increased, not Tony (though Tony had hired her). Mary did agree however that by March 1993 production had increased significantly and she attributed that to being on piecework. While all the company witnesses were quick to hold Tony responsible for all the problems in the shop, they were not willing to attribute any part of these successes to his efforts.

54. The alleged precipitating event leading to Tony's termination was his failure to have the custom department on piecework by the time the D'Abbondanza's returned from vacation in May and his alleged admission that he couldn't handle the staff. The D'Abbondanza's assert that Tony had promised to have the custom department on piecework by their return. Tony denies having ever made such a promise. There is nothing in the documentation filed that supports a conclusion that Tony advised the owners that custom would be on piecework by their return. Exhibit 10 dated April 27, 1993 advised that Tony planned to start spending his entire day on the custom depart­ment with a goal of putting the employees on piecework. It sets out the engineering activities required to be completed. On a review of those activities it is difficult to understand how someone could conclude that the work would be completed and implemented within less than a month. Sim­ilarly to the stock department, the custom work involves a large number of operations. Tony testi­fied that as he began the studies he realized that, because of the nature of custom work, there were more operations than originally anticipated. The D'Abbondanza's asserted that they told Tony that if custom was not so operating, he would be fired on their return from vacation on May 17, 1993.

55. Keith testified that he understood that Tony had been warned by the owners that if the stock department was not on piecework by mid-March he would be dismissed, but he was unaware of any such ultimatum as regards the custom or cutting departments. Keith testified that late in the day on May 17, 1993 Luigi told him to remind Tony that he was serious about getting rid of Tony if custom was not done. Keith let the remark pass and said nothing to Tony as he believed it to be a passing comment not to be taken seriously. We are not persuaded that Tony's job was in jeopardy on the basis of whether or not the custom department was put on piecework by May 17. If an ulti­matum had been given, and putting custom on piecework was really the issue, why was he not fired immediately on their return on May 17? The response to this question was the assertion by the D'Abbondanza's that by then they were becoming suspicious. Luigi answered that he had to dis­cuss it with his wife - they had to "clean house" and they needed more time to catch Tony in the act. We will return to this later in the deciston.

56. While other matters of Tony's performance were gone over at length in the evidence, in many instances the circumstances were such that it was not possible to determine where the responsibility lay or whether the problems were more than expected day to day production prob­lems. Exhibits 2, 7, and 9 were produced as evidence of mistakes made. They were not shown to Tony at the time.

57. In January the owners and Keith were upset with Tony because he presented them with

a series of options with described advantages and disadvantages to each, for discussion concerning wage rates. Keith wanted Tony to choose an option and advance it, rather than merely presenting options. It is unclear how this reflects a performance problem as opposed to merely a differing management style.

58. Mary asserted in chief that Tony had unilaterally increased employees' wages without her approval. Exhibit 5 was produced in support of that assertion. According to Mary that form was to be filled out for any rate changes, including changes to piecework rates. According to Keith, Exhibit 5 only applied to new employees coming off probation who were entitled to an increase to the then guaranteed hourly rate if approved by Mary. That latter interpretation is con­sistent with the form itself which refers to an increase in the employee's guaranteed hourly wage.

59. It became clear in the evidence that the increases referred to regarding Tony were increases to an operator's wage as a result of different piecework rates being implemented. While rates no doubt changed with the revision and implementation of the piecework system, that would be expected. While a general assertion was made that some operator's rates jumped considerably over various weeks, no supporting documentation was provided from the payroll. Keith referred to one employee whose rate he said jumped from ninety-five percent to one-hundred and seventy percent over one week in late April or early May. We have no evidence of the circumstances. He did not tell Tony. He did tell the owners. The anomaly did not occur again.

60. While some anomalies may have been brought to Tony's attention at the time, the evi­dence does not support a conclusion that he was told that the owners considered them to be a uni­lateral increase to wages and inappropriate conduct on his part. It is more likely that with the implementation of the piecework system errors required correction and adjustments were war­ranted.

61. We note that Exhibit 17, a second letter to Tony from company counsel, asserts that Tony arbitrarily increased wages of those employees who indicated support for the union. In this letter, sent to Tony's counsel in the context of a wrongful dismissal action, Tony is identified by the company as being a key union organizer. The letter asserts improper conduct on Tony's part, including providing the union with confidential company information, and the assertion of his uni­laterally increasing the wages of union supporters.

62. Mary testified that it was only after she saw the complaint filed in this proceeding that she linked Tony to the union's organizing campaign. The complaint makes reference in paragraph 4 of its particulars to a conversation between Luigi and Tony following the April 28 events. Because this was a conversation between management members only, the fact that it was pleaded in the union's complaint led Mary to conclude, she said, that Tony was a union organizer.

63. In cross-examination however, she was asked if prior to that she had been suspicious. Mary responded by saying that her "main problem was where Tony was taking my information" and then she agreed with the statement that what she could not believe before, she believed now, referring to her belief that Tony was involved in the union's campaign. This is consistent with Mary's evidence concerning the report of the investigators. While the nature of that report was not disclosed in evidence, the D'Abbondanza's agreed that the investigators had found no evidence of stealing in their short investigation. In chief, in response to the question, did she have any belief that Tony was involved in the organizing campaign, Mary testified she did not, that, "when the detective came back and gave his report - I did not believe it". There can be little doubt that the investigator somehow tied Tony in with the union.

64. The D'Abbondanza's relied on their assertion that Tony had failed to report to them on May 17 on their return from vacation as part of their decision to fire him. They testified that his failure to report and his statement that he could not handle the employees was a kind of final straw. Luigi testified that they waited to see if he would report to them and that they met with him later in the afternoon. Tony was asked why he hadn't reported earlier.

65. The evidence about the conversation is contradictory. The D'Abbondanza's testified that they thought Tony would come to them to report that the custom department had started on piecework. We note that the D'Abbondanza's would have readily known that piecework in custom had not been implemented. Luigi testified that the fact that Tony spent the day taking videos for time studies made no sense - that it seemed Tony was just trying to impress him.

66. Tony testified that he thought the D'Abbondanza's were inquiring as to why he had not informed them of the union's activity on the Friday before. Tony (correctly) believed that they already knew so there was no need for him to report it. The D'Abbondanza's deny they were mak­ing any such inquiry. They testified that during the conversation Tony referred to the employees as liars and backstabbers. Mary testified she did not understand these remarks. Luigi testified that he thought that Tony was "trying to identify himself' in these terms "because of what was happening here". In that regard Luigi refers to his belief that Tony was stealing information from the com­pany. It is difficult to understand why, if true, Tony would be risking that type of admission.

67. The D'Abbondanza's asserted that it was during this conversation that Tony stated he could not handle the employees and that it was an admission that confirmed to them that he was not capable of performing his supervisory functions. This statement if made, is difficult to reconcile in the context of a conversation supposedly concerning the implementation of piecework in the custom department. When asked initially in her cross-examination, Mary confirmed that she did not see a control problem in the shop - that the employees in the shop were supervised appropri­ately. We note too that that is primarily the floorlady's responsibility. Later when asked to then explain her concern over Tony's alleged remark on May 17, she eventually explained that by con­trol she meant getting the operators on piecework. This undermines the assertion that supervision was an issue at all. In addition the reason that custom was not as yet on piecework was because the necessary studies had not been completed.

68. In addition to the alleged statement about a lack of control there is the alleged assertion about employees as "liars" and backstabbers". Tony denies making these remarks. If we were to accept Tony's evidence, there is no basis for the owners drawing the conclusion they asserted - that Tony was admitting an inability to properly supervise staff. However if we accept the evidence of the owners their stated concern is also not substantiated by their own evidence as we have noted.

69. The comments attributed to Tony by the owners are more consistent with Tony's asser­tion that he was being asked why he had not reported to them about the union. In this context, an assertion that he could not handle the employees and comments that employees were liars and backstabbers is more consistent with an attempt by Tony to assert that he was not responsible for the views or actions of ungrateful employees regarding the union. This is also consistent with his reaction to learning of the union's first visit in April.

70. The owners' denial that they were interested in discussing the union is also inconsistent

with Luigi's conduct on May 17 and other evidence. Luigi D'Abbondanza testified he had two con­versations with Tony concerning the union - one after the leaflets were left on the cars in April and another after the union returned in May. Regardless of the contents of the April discussion, there is no real dispute that Luigi asked Tony early in the week of May 17 to find out the number of employees that wanted a union.

71. Luigi testified that if enough people were interested he would approach the union him­self to see what it could offer. Tony testified that Luigi asked him to recover the envelopes from those employees who had not yet turned them in and that he refused to do so. Luigi denied this. He acknowledged that Tony had asked him the number of envelopes that he already had. Luigi testified that he would not tell Tony this as the employees had come to him in secret, although he could not explain why. Further, he had not counted the number he had. Luigi testified he asked Tony to speak to the employees as it would be inappropriate for him to do so; that the employees might be afraid of him, but not Tony.

72. While Luigi denied having said to Tony words to the effect that the number of enve­lopes was not important as the employee may have retained the membership card (contrary to Tony's evidence), the evidence is clear that Luigi was not a disinterested observer and that he was aware of the potential impact of his participation on the employees.

73. Throughout his evidence Luigi D'Abbondanza stated that the arrival of the union on the scene was viewed as a neutral if not positive event. In discussing the events of the week of May 17, he stated that matters of the union went in one ear and out the other as he was interested in trying to catch the thief in his workplace. He described how he thought that a union might help them better manage the shop as other shirt manufacturers who were already unionized had stan­dardized rates. When asked to explain, he suggested that Royal Shirt could use the same standard­ized rates and thereby implement the piecework system that much faster. How this involved the presence of the union was not clear nor does it necessarily logically follow. Keith Crilly testified that he had told the D'Abbondanza's that having a union would not be such a bad thing in that they could then implement layoffs when there was downtime. He agreed however that the com­pany had that option in any event and that in circumstances where work was slow in one area, the company's normal practice had been to reassign employees to other work.

74. Generally, the suggestion that the D'Abbondanza's would have been open to the arrival of the union is highly improbable in light of evidence concerning their management style and observing their demeanour over approximately four days of the hearing. This couple have built the company from the ground - working extremely hard. They have been and appear to continue to be successful, but are recently feeling the effects of the general economic climate and feel understand­able concern. They employ a number of family members. They speak of the company as a family where events in employees' lives are shared and participation extends beyond the doors of the shop. No doubt that is true. However, the other aspect to that family existence is retention of a parental role in the workplace by the owners. The evidence is clear that they involve themselves in every aspect of the business. Part of their difficulty it seems, is that the operation has grown to a size where it is very difficult for them to be able to keep abreast of all matters. At the same time they are extremely reluctant to give up any role in the day to day management of the operation.

75. Tony was hired as industrial engineer and plant manager and it was one of the D'Abbondanza's complaints that he failed to manage the shop. From the outset the owners were second­ guessing his decisions. It may be that Tony had not developed the skills of a plant manager but one wonders whether he would have been hired at all if the owners felt he would make and implement decisions without consulting them first. There were many references in their evidence to "control­ling" the employees.

76. Keith testified he felt that the D'Abbondanza's often made decisions based on "emo­tional" rather than "business" reasons. This was referred to, for example, in the context of the outcome of the December 1, 1992 meeting with Tony; that Mary "let her heart decide". While proffered for the purpose of suggesting that Tony received the benefit of the doubt and was retained even though they felt he was not performing his job, Mary acknowledged that they were close to implementing the piecework system and that it would be more costly to start over with someone new. We have no doubt that Mary is a kind-hearted and generous person. She has helped employees in many ways and, for example, has provided time off to employees to look for other work when that is in their mutual interest. However, she is also still very much concerned with her business and would defend it vigorously if she felt it threatened, precisely because it does represent family to her.

77. Luigi stated that he is sometimes not told of events because his family is concerned he will "have a heart attack" or that he will "scream". This seemed a recognition, at least by others, of a tendency on his part to over-react to events. This also suggests that Luigi would not necessarily be the easiest person to work with. He was quick to react to Tony's attempt in December to discuss production problems by saying he need not listen "to this garbage". In discussing the annual review of wage rates in February 1993 and a suggestion by Mary and Tony to give a small percent­age increase he stated he would "not give the employees a dime" unless he got something back, and that "if the employees did not like it they could quit". This occurred in the context of two prior years of no increase in wages and an increase in production over the previous year of more than fifty percent. Luigi was quick to state in evidence that Tony would be lying to say he started with the company in March 1992 (a readily verifiable fact) which date was confirmed by Keith. While testifying is no doubt a trying experience for most, the manner in which Luigi gave evidence in response to relatively straightforward questions suggests he readily feels his authority challenged and is quick to respond in a way consistent with his view of his own self-interest.

78. We find it highly improbable that the owners viewed the union as anything but an intruder.

79. Ricardo Zurito's letter of termination sets out two reasons for his termination; that the computer system for which he was responsible was not being used at full capacity, resulting in problems with outdated files and problems with markers, and being continuously late for work. The reply to the complaint adds three reasons; not following specific instructions by the owners resulting in unproductive time, and taking extremely lengthy periods to complete projects; and an allegation that Ricardo created a false company letter and forged a signature on it.

80. We heard evidence about the company's concern that Ricardo had forged a false letter of employment. While at times it appeared to be raised as part of the reasons for his termination, the most that can be said, even accepting the owners' evidence, is that as of May 20, 1993, Mary suspected that Ricardo had forged the letter. She did not make it part of the letter of termination -nor was it raised with Ricardo. Whether or not the employer would be entitled to take into account Ricardo's conduct in support of a wrongful dismissal action is irrelevant to these proceedings. The issue before us is to assess the true reasons behind the decision to dismiss him from employment on May 20, 1993.

81. We were urged to disregard Ricardo's evidence on the basis that his credibility was affected by this conduct. Under the protection of both the Canada and Ontario Evidence Acts, Ricardo testified as to his involvement. Although other aspects of his evidence were exaggerated, where his evidence conflicts with Mr. D'Abbondanza and there is some support for that evidence, we have preferred the evidence of Ricardo Zurito.

82. Ricardo had been employed by the company for about five years at the time of his ter­mination. Following university training in Mexico he immigrated to Canada and started working for Royal Shirt. He performed a number of jobs in the company acquiring greater responsibility over time. At the time of his termination his primary responsibilities were looking after the custom department and operating the Lectra machine.

83. The Lectra machine is a computerized system for making pattern markers, and plays an important part in the production process in terms of cost, output, and quality. It is also used in grading (creating the different sizes for one pattern). In producing a shirt the pattern pieces must be laid out on the fabric for cutting. In a manufacturing process the goal is to lay out of those pieces in such a way that the least amount of fabric is used (while accounting for fabric consider­ations such as stripes). Once laid out, a "marker" is created for a length of fabric, which then goes to the cutters. The cutters cut a very large number of layers of fabric from each marker. Those pat­tern pieces are then "bundled" and move to the operators for sewing.

84. The evidence concerning Ricardo's alleged performance problems came primarily from Luigi, as the two work very closely in this stage of production. Luigi spends much of his time work­ing with patterns and markers. Although oriented to the Lectra system, Luigi does not have the same training as Ricardo in using the computerized equipment.

85. The primary complaints with Ricardo's performance were his alleged mistakes in the creation of the markers and an alleged unwillingness to follow Luigi's instructions. There was very little in the way of specific examples that included sufficient detail so as to try and determine whether there were mistakes and if so, whether Ricardo bore responsibility for them. Ricardo acknowledged that he had made some mistakes, and that he relied on Luigi's greater experience in creating the marker to help him. His role was to translate their efforts into a computer-produced marker rather than a manually-produced marker, and to continually search for ways to improve the layout. Luigi referred to one occasion where he asserted that Ricardo had given a marker to a cutter without it being checked and as a result of mistakes, a week's worth of work had been lost. He testified this occurred a couple of years ago. Ricardo started working on the Lectra machine in January 1992.

86. Luigi testified that every day they would fight - that he would tell Ricardo "to go right" and Ricardo "would go left". Were the circumstances truly as Luigi described we have consider­able difficulty in understanding why action was not taken sooner. Luigi testified that he wanted to fire Ricardo a long time ago but could not because he did not want to revert to the old system of creating markers. There is no evidence to support a conclusion that Ricardo could not have been replaced. To the contrary, since his termination from employment the D'Abbondanza's daughter, Anita, has been making the markers apparently without complaint.

87. Similarly with respect to the allegations that Ricardo was continuously late for work and took too long to complete projects, we have difficulty understanding why, if true, action was not taken sooner, even in the absence of any formal disciplinary process. The latter assertion of taking too long to complete projects would seem to include the assertion in evidence that Ricardo worked a considerable amount of overtime. However, on being told at the outset of the week of May 10 not to work any overtime, he stopped. Had this been of such a concern earlier, it apparently could easily have been remedied.

88. Mary asserted that Ricardo was continuously late for work and that, particularly on May 17, 18 and 19, 1993, he was late and had left no work for the cutters, resulting in downtime to them. This assertion was raised as a form of culminating incident to the decision to terminate his employment that week. Time cards were entered for the purpose of showing that during the week of May 17, 1993, Ricardo punched in after 8:00 a.m.; and he was therefore late. The evidence is clear however that Ricardo did not have a particular start time. It varied from some time after 7:00 a.m. to as late as 8:30 a.m. The time cards, when looked at for the whole period made available, support this conclusion. Consequently, even if Mary had raised the issue of his start time with Ricardo on May 17, it would in all likelihood have been for the first time. To conclude otherwise would mean that Ricardo had openly defied instructions for a considerable period of time and no action had been taken. Also, given Ricardo's response to being told to stop overtime, we find it highly improbable that Mary raised his start time with him even on May 17 and that he continued to defy her.

89. Ricardo also denies that there was no work for the cutters on these days. Overall, we are inclined to prefer his evidence on this point. Ricardo testified that he tries to keep ahead of the cutters by a few day's to a week's worth of work, in order that this problem not arise. There was no other evidence to substantiate Mary's assertion.

90. Marie Brown's letter of termination sets out various reasons for her termination includ­ing her failure to perform satisfactorily as a receptionist, mistakes made in her role in the shipping department (including discussion on May 18 concerning performance problems), and continuing to make up invoices in defiance of instructions not to do so.

91. Marie was hired in January 1990 as receptionist. She had previously worked at the com­pany through a temporary employment agency. In early 1993 she was moved to the shipping department because there were concerns about her conduct as receptionist - that she was too famil­iar and made inappropriate remarks to clients and suppliers.

92. Everyone agreed (whether they found it to be a positive or negative trait) that Marie was the kind of person who spoke her mind. In her evidence she was forthcoming about the prob­lems in her performance at work, and the occasions on which these problems had been drawn to her attention. She freely acknowledged she felt that her move from reception to shipping had been a demotion even though it paid more money, and she agreed that she had told Mary that she was not happy in the shipping job.

93. The D'Abbondanza's asserted as well that Marie was insubordinate by refusing to fol­low instructions to stop creating invoices. In this regard we accept the evidence of Marie Brown. As receptionist, it was her responsibility to create invoices. When she was moved to the shipping area she trained the new receptionist to create custom invoices and stopped doing that work herself unless the receptionist had a problem. Keith Crilly acknowledged that by the end of February (some 3-4 weeks after she started) the new receptionist had started doing custom invoicing. How­ever Marie continued to create invoices for the stock department and it was her evidence that it was not until Mary's return from vacation in May that Mary told her Sylvia would teach stock invoicing to the receptionist. Again, to accept the D'Abbondanza's evidence would require a con­clusion that Marie repeatedly ignored their instruction to their knowledge. While the company may not have had any formal disciplinary system in place, if the matter was of real concern, some action, even in the absence of discipline, would likely have been taken.

94. The owners had legitimate concerns about the problems created by Marie's mistakes in

the shipping area, such as mixing up shipments between customers, sealing the boxes prior to them being checked, sending incorrect shipments, and the concerns raised by Holt Renfrew. Yet it did not appear that as of Tuesday, May 18, following her meeting with Marie, that Mary had formu­lated any decision to terminate her employment. Rather, it seemed she was hoping that Marie would find another job and offered her some time off to look for one. This is consistent with the way that Mary has dealt with employees in the past where there have been some concerns. In testi­fying about the letter given to employees on May 20, Mary agreed that she preferred to work out mutually agreeable arrangements so that an employee could move on and the company's concerns would be met. Prior to these occasions, as stated, Mary could not recall the last time that the com­pany had fired someone for poor performance.

95. Between Tuesday May 18, and Friday May 21, the owners learned that Marie was voic­ing support for the union and that she had been discussing the union with Tony and Ricardo. She had refused to return the envelope to Luigi.

96. Having assessed the reasons for termination and the underlying basis for them, we now consider the evidence of suspicious behaviour and the D'Abbondanza's alleged concern that Ricardo and Tony were stealing information from the company with the intent to sell it or start their own business. We note that this evidence was led primarily to explain the timing of the deci­sions to terminate. However, at times the owners blurred the distinction between the reasons for the termination and the reasons for the timing of those decisions.

97. What was the nature of this suspicious behaviour? The evidence surrounding these issues causes us considerable concern about the apparent willingness of the owners to either fabri­cate events or severely exaggerate otherwise innocuous circumstances to make serious allegations of improper conduct which, in all respects, they admit they have been unable to prove. The employees involved deny having engaged in any such improper conduct.

98. Mary testified that the precipitating event had been the discovery of the electrical room door being left open. They were concerned that property could be removed from the premises through this back exit which was normally kept locked. It was in the vicinity of Ricardo's work area. It was not clear when this became an issue, although it was advanced as a sort of final straw. According to Mary it was reported to her by her daughter while on vacation. Luigi's evidence seemed to refer to an earlier time frame. Luigi testified that Ricardo started using the back door and that a neighbour told him Ricardo would leave a box near the garbage container to be picked up at night. This had never been followed up by the owners, nor was Ricardo questioned. No dates or other circumstances were identified and we did not hear from either the neighbour or the D'Ab­bondanza's daughter. Luigi testified he told Keith to keep an eye on the door. Keith testified he was unaware that there was any concern regarding the door. Luigi testified to one instance where, according to Luigi, he spoke to Ricardo who told him that the service person for the Lectra machine had used that exit. Apart from the assertion that this explanation was not to be believed, there was no evidence that anyone had ever seen Tony or Ricardo use the door or leave it open.

99. Other events, although not previously attracting particular attention, then became sus­picious. In July 1992, Tony had asked an employee to make sample collars and cuffs in order to help familiarize the new floorlady. The samples had been missing for some time. Tony had also asked Ricardo to print out some patterns. Luigi and Mary asserted that they told Ricardo not to do this yet he kept printing them. While no specific occasions were identified clearly by the D'Abbon­danza's, Ricardo recalled one occasion in 1992 when Tony asked him for certain patterns and Ricardo had provided them. In order to accept the D'Abbondanza's evidence it would be neces­sary to conclude that Ricardo repeatedly and to their knowledge ignored their instructions. Also inherent in their assertions is the view that there would be no circumstance in which Tony would have a need to review patterns in the performance of his work, a proposition that is unlikely in the context of the implementation of a piecework system and the management of the shop. In the case of both the samples and the patterns, Tony was not questioned or confronted either at the time or at the time of his termination.

100. Also raised was the fact that Tony often took the computer home at night. All the wit­nesses agreed that it was common knowledge that Tony did so. Luigi testified that he had told Tony not to do so on many occasions but that Tony too, had, in essence, defied his orders. While Luigi may have raised concerns about the possibility of theft or damage to the computer while out­side the shop it is unlikely in our view that if he had made it clear that he wanted the computer to remain on the premises that Tony would not have complied. On Saturday, May 15, Anita did advise Tony that Luigi had called and instructed her to tell him not to take the computer home anymore and while frustrated, Tony complied.

101. The D'Abbondanza's were also concerned that Tony kept the bag for the computer "locked", and they did not know what material or information he was carrying with him. It is unclear whether "locked" simply meant zippered, but at no time did they seek to inquire of the bag's contents. Reference was made and we heard evidence from Miriam concerning one occasion where Tony took a "blue diskette" home with him even though he was going on vacation. Miriam identified this as a suspicious incident and went so far as to assert that she believed he was taking the disc to the United States with him in order to sell it. In her own words this occurred in circum­stances where Tony had offered to drive her home, had indicated he had forgotten something, returned with the disc and did not hide it. She agreed that Tony would have believed that she would tell the owners about anything that was going on. She did not raise a concern with the D'Abbondanza's at the time.

102. The disappearance of a pair of Luigi's scissors in 1992 was also taken by Mary as evi­dence of suspicious conduct on Tony's part. There was no evidence connecting any employee with the event. She also asserted that she had heard a rumour that Tony was working elsewhere. There was no evidence to support either the rumour or the assertion.

103. Luigi testified in chief that Tony had purchased shirts from the company (a usual occur­rence) but then sought to exchange shirts that were not his size; suggesting that Tony had stolen other shirts and assuming that all the shirts he had purchased were for himself. In cross-examina­tion he then variously asserted that from Christmas 1992 to April 1993 Tony had bought three shirts and returned four or six, and that Ida had brought this to his attention. He suggested it hap­pened as many as five times. There was no evidence to support these assertions.

104. When asked if this conduct was not proof enough of improper behaviour to warrant Tony's termination from employment, Luigi responded that he wanted to catch Tony in the act, that otherwise Tony could have made some excuse. Yet in May, Tony was fired it seems partly on the basis of mere suspicion.

105. The company keeps a file box of cards containing employee information. It is stored in a locked cabinet in Keith's office. Tony had told Keith in January or February 1993 that he was inputting the information onto the computer. Keith did not see that as any breach of trust on Tony's part at the time. In early May, according to Keith, Tony asked for and was given the box for this purpose. Keith then needed the cards in order to draft a letter. Ida D'Abbondanza went to retrieve the box from Tony's office and found only those cards for ex-employees. Keith testified that Tony told him he had taken the others home to work on. Tony testified they were in his office.

According to Keith, the cards were returned to him the next day. In asserting that this constituted suspicious behaviour, the D'Abbondanza's challenged this use of Tony's time, suggesting that as it was a clerical function, Tony ought not to have been spending his time on it, particularly when he had committed to spending all of his time to getting custom on piecework. Mary learned of this incident on her return from vacation; that "it came up in discussion" while they were "trying to fig­ure out what was going on". Mary could not recall whether it was Keith or Ida who told her of it. Keith was not aware at the hearing that the owners were accusing the employees of dishonesty. Ida D'Abbondanza was the only other person, apart from Tony, apparently aware of the incident.

106. The discrepancy in the evidence between Keith's assertion that Tony told him the cards were at home and were brought in the next day and Tony's assertion that they were in his office is troubling. We are inclined to prefer Keith's evidence in this regard. However, the suspicious nature of that conduct remains to be examined.

107. When asked to explain why Ricardo was fired, Luigi stated that he was not doing his job, there were things missing, and there were rumours that he was taking patterns home, so he decided it was time to clean house. He also referred to having spies who told him that Ricardo had a customer list and that he had had Ricardo under suspicion for a couple of years.

108. There was no evidence to connect Ricardo with things missing or that he was taking pat­terns home. In support of the assertion that Ricardo was collecting company information, a photo­copy of a notebook that Ricardo kept on his desk was entered as Exhibit 14. It contains for exam­ple names of customers, phone numbers, shirt styles ordered and phone numbers of other employees. All of the information contained in the book is information that Ricardo would make use of in his work, particularly with respect to overseeing the work of the custom department. It was left in full view on his desk. The code information found in it was available in two other unlocked locations in the office. On this evidence, the conclusion that Ricardo was collecting com­pany information for some improper purpose is one that this panel is not prepared to make.

109. Luigi testified in cross-examination that on his return from vacation he had tried to pull up a marker on the computer and found that the codes had been changed and that this made him very suspicious. He originally thought it was his own mistake. It then became apparent that Luigi had known that the codes had been changed for "a long time".

110. Keith and Mary testified that Ricardo had changed stock numbers prior to June 1992 and that it had wreaked havoc in other departments. Keith had asked Ricardo about it, who told him it made things easier for Ricardo, and Keith had not followed it up. At the time, Ricardo was not told to revert to the old numbers and these changed ones were still being used at the time of the hearing.

111. Much of this evidence speaks to the exaggerated nature of the performance issues now being raised and to the credibility of the owners concerning their alleged suspicions and the reasons for them.

112. To the extent that Miriam testified to other examples of what she felt were suspicious behaviour (for example, the fact that when he first arrived, Tony had requested that a lock be put on the office door containing the computer), or to the extent that Miriam and Keith Crilly were asked to provide their views concerning Tony's performance, and those matters were not relied on by the D'Abbondanza's, they are irrelevant here.

113. While the D'Abbondanza's asserted at various times that their suspicions were such that they had decided prior to and during their vacation to take some action, Mary also testified that it was on their return from vacation that it all started coming together; that events that had not previ­ously been suspicious, became so. She referred to the "pieces of the puzzle" starting to fit.

114. Luigi asserted that he had been suspicious of both Tony and Ricardo for some time. When asked why he did not act on his suspicions earlier, he answered that he wanted to catch the employees in the act. Then when asked why he had acted on only his suspicions in May, he answered that they had been waiting and waiting until one day they had to make a decision. This prompts the question of why they felt they had to make the decision that particular week. The D'Abbondanza's testified that it was as a result of discussions and decisions made over their vaca­tion. If that were the case, why wait until later in the week to fire the employees? How can that be reconciled with the evidence that on the Tuesday evening they came to believe Tony was stealing company information and hired the investigators. When asked why the employees were fired in two days, Mary answered that it had not been two days, but "months and months of agony". More telling perhaps is Mary's comment at the end of her examination that having taken a week to cele­brate, on her return she felt like "the world was collapsing". The more reasonable and probable explanation is that over the course of the weekend they discussed the turn of events with other family members employed and became suspicious (even if they did not as yet fully believe), that these employees were involved in, or were supporting the union's campaign. While counsel for the company was correct in arguing that timing, in and of itself, should not immediately lead to a con­clusion that the Act had been violated, the evidence of conduct here does not at all suggest an unrelated coincidence to the timing of the union's activities.

115. At the hearing, although not relied on or referred to by Mary D'Abbondanza, and not referred to in the pleadings or in her letter of termination, Luigi included in his reasons for termi­nating Marie Brown's employment that in his view she was working with Tony and Ricardo to steal information from the company. In his view, Marie, in shipping, could help Ricardo remove prop­erty from the shop. On that factor, arguably his sister would also be suspect. Did the fact that she was making mistakes make her conduct more suspicious? These speculations are improbable and there was no evidence to support the assertion. The evidence that ties these employees together is the fact of their lunch together on May 19. The evidence suggests that the connection between Marie, Tony and Ricardo arose for Luigi because he believed that Marie was supporting the union and he suspected, if not believed, that Tony and Ricardo were also supporting the union.

116. In discussing these concerns of alleged suspicious behaviour, Mary testified that the pat­terns were her main concern, in that they could be used in order to compete with the company for business. In assessing the validity of the company's assertion that the employees were involved in some kind of conspiracy to steal company information, it is information concerning the company's product and customers that would be of primary concern. With that information a competitor could attempt to offer the same or similar product at competitive pricing to that same pool of buy­ers. There can be no doubt that the theft of such information would be a serious concern to any manufacturer.

117. In attempting to assess the owners' thinking, it is instructive then to review Exhibit 16 which Mary agreed she instructed be sent to Tony. It is dated May 20, 1993 and contains a specific allegation that Tony has removed a list of employees, together with personal information, from the premises. It does not specifically assert the removal of other company information. The letter goes on to say that "We have suspicions that you have removed these documents for ulterior motives..." and requests the return of the list immediately together with any other lists of custom­ers or company items. It further instructs Tony not to divulge that information to any third party. It does not identify the suspected ulterior motive. It does however appear to place concern over employee lists above any concern for customer lists or patterns.

118. With the exception of the forged signature, at no time even up to the hearing, were the D'Abbondanza's able to confirm any of their suspicions of improper conduct. They did hire the investigators but then limited the investigation to one day, Wednesday, May 19. They did not explain how their suspicions came to link Tony and Ricardo as working together to steal informa­tion. In the absence of any confirmation and without confronting the employees, they decided to fire them. Mary referred to having to start over and put an end to the whole thing.

119. While the D'Abbondanza's probably did feel that a conspiracy was underway at that point, what was the nature of that conspiracy to their mind? They were concerned about the possi­bility of a list of employees being disclosed to a third party. They did not explain why that informa­tion would be of use to a competitor. However, that is the kind of information that is valuable to a union in an organizing drive, as it provides them with a means of direct access to employees in order to attempt to persuade them to join.

120. Of what effect is the fact that there is no evidence that these employees were union organizers? Certainly in cases where employees are alleged to have been fired for performance rea­sons, a union will often lead evidence to establish that the individual was involved with the union and that the employer was aware of that, in asserting that the reason of poor performance, even if established, was not the only reason for the termination (see, for example, the comments in Speedex Company, [1981] OLRB Rep. Dec. 1829, at paragraph 13).

121. We do not have that kind of evidence and this case is no doubt somewhat different in that respect. The issue however is to determine the employer's real reasons for termination. If an employer suspects or believes that an employee is engaging in union activity and acts pursuant to that view, the fact that the employee was not so engaged is irrelevant. In addition to reasons of performance, the owners made their decisions to terminate employment in the context of "suspi­cious behaviour". While the letters of termination do not take this behaviour into account as part of their reasons, in Luigi's evidence particularly, the owners had difficulty at different times in sep­arating that behaviour from their reasons. It was also taken into account in trying to explain the timing of the decisions, and while that timing was explained as a factor of discussing long-standing problems over their vacation, the evidence is not consistent with that conclusion. There has been no adequate explanation as to how Tony and Ricardo came to be linked in the employers' minds, and we have reviewed the addition of Marie Brown to the allegations of suspicious conduct by Luigi. The evidence concerning many of the issues of performance has been highly exaggerated or simply not made out, leaving open the conclusion that they were not the real or exclusive reasons. The coincidence of timing of the terminations with the union's reappearance, the actions of Luigi D'Abbondanza in seeking the return of the envelopes, the hiring of investigators but the short-circuiting of the investigation, is then too strong to ignore. The most reasonable and probable con­clusion is that the owners suspected, if not believed, that these employees were involved in or were supporting the union and that that formed at least part of their reasons for terminating their employment.

122. We are satisfied therefore that the company violated sections 65, 67, and 71 of the Labour Relations Act in terminating the employment of Tony Bellisario, Ricardo Zurito, and Marie Brown and by Luigi D'Abbondanza's conduct in attempting to secure the return of the envelopes from employees. We need not make any further findings in the circumstances.

123. The union argues that by virtue of the company's actions, the true wishes of the employees are unlikely to be ascertained, and it therefore seeks to be certified pursuant to section 9.2 of the Act. That section states:

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.

124. The section sets up two criteria that must be met in order for this remedial provision to apply. Having concluded that the company has violated the Act, it remains to be determined whether or not the true wishes of the employees are likely to be ascertained in the face of those violations.

125. Until the recent amendments to the Act, a third criteria existed as well, that being an assessment of whether or not the trade union had membership support adequate for collective bar­gaining. The employer argued that as a result of the deletion of that criteria our approach to the application of section 9.2 ought to be, in essence, more restrictive. Otherwise a trade union might be certified when employees did not wish one, and counsel pointed out that in this case only one membership card had been filed. Counsel argued that to take the conduct in issue and conclude that the true wishes of the employees could not now be ascertained carried with it an "extra leap of faith", that panels previously were not required to make because of the additional requirement for adequate membership support. The union argued that this approach would have the effect of inap­propriately reintroducing the criteria of adequate membership support.

126. The legislative and policy background to this section of the Act are set out in Trulite Industries Limited, [1983] OLRB Rep. May 821 starting at paragraph 19. Some of the comments concerning the factual underpinnings to that case may also have some application in the circum­stances of this case. The Board wrote:

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

128. the respondent employer has contravened the Act;

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

130. that the applicant union has membership support adequate for collective bargaining.

131. There is no doubt that the respondent's conduct in this case involves serious contraventions of the Act even though, to some extent, its actions are understandable, and, in the Board's experience not all that unusual in today's troubled times. Peter Alexander testified that he and his partner were deeply concerned about the prospect of dealing with a union, and like many other small businesses in recent years, they have been experiencing severe financial difficulties. A collective bargaining relationship was regarded as but one more burden which they feared would destroy their business. Alexander was also convinced that support for the union was restricted to a small vocal minority of new employees whose presence had disrupted the family" atmosphere which he had sought to maintain with the employees since the company was formed in 1975 - hence his decision to fire the "agitators". Indeed, Alexander candidly admits that his actions were improper and an overreaction attributable to the financial pressures which he had been under for some months; and we have no reason to doubt the reality of those pres­sures. The four discharged employees were eventually reinstated pursuant to a without preju­dice settlement of their section 89 complaint.

132. The scenario present in this case is not a new one, and the Board is not unsympathetic to the situation of the small businessman pressed by creditors and high interest rates, and anxious about the very survival of his business. Having no direct experience with collective bargaining and fearing its consequences, such employers sometimes do overreact and interfere with their employees' statutory rights - particularly where, as here, they act precipitately and without pro­fessional advice. But our appreciation of the context does not obscure the gravity of what has happened here. In his remarks on March 23rd, Mr. McInnes told the employees that their jobs would be jeopardized if they opted for trade union representation, that the plant would close, that the business would be "killed", and that certain benefits or opportunities then in place (e.g., overtime) would no longer be available. The very next day four employees identified as supporters of the union were summoned before the co-owner of the company and summarily discharged. It is hardly surprising that, thereafter, there was little enthusiasm or support for the union even among persons who had previously expressed considerable interest. The employer has indicated in the most graphic way possible that employees who support the union do so at the risk of their jobs. We do not think this "message" is likely to be forgotten easily.

133. We have found that the respondent has contravened the Act; and if ever there was a case where the true wishes of the employees are not likely to be ascertained by the conventional means now available, this appears to be it. But does the applicant have "membership support adequate for the purposes of collective bargaining"? This phrase was added to section 8 (then section 7(a)) in 1975 in place of the requirement that the union have the support of more than fifty per cent of the employees in the bargaining unit. It is clear, therefore, that the phrase "membership support adequate for collective bargaining" is not simply a reference to majority support. Even more striking is the removal of the reference to a representation vote which appeared in the statutory predecessor of section 8. By doing so, the Legislature appears to have contemplated the possible application of the new section 8, even where the applicant's member­ship support falls below the minimum level required for entitlement to a representation vote (see Lorain Products, [1977] OLRB Rep. Nov. 734). In other words, the section can now apply to situations where the employer's illegal response is so massive and so early as to prevent a trade union from ever attaining the level of support needed for a representation vote.

134. That is what has happened here. Had it not been for the unlawful interference of the respon­dent, the applicant might well have garnered at least the thirty-five per cent support necessary for the taking of a pre-hearing representation vote. As it is, the applicant obtained the support of about ten employees on March 22nd - 23rd, but none after the captive audience speech of March 23rd, and the discharges of March 24th. The fact that the union gained the support of about 30% of the potential unit and that a number of employees were interested enough to make their way to the union hall to sign cards lends credence to the evidence of the applicant's witnesses that there was considerable interest in trade union representation, which might have matured had it not been stifled.

135. The competing policy considerations which underlie section 8, are aptly set out by the Brit­ish Columbia Labour Relations Board in commenting on a similar provision in its own statute. In International Brotherhood of Boilermakers, Lodge 359 and Forano Limited (1974) 1 Can. L.R.B.R. 13, the Board observed at page 20:

……Certification without a vote.. .creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful con­duct... .However, that is just part of the case for this remedy, because the party pri­marily affected by the certificate is the employees. We can assume that the Legisla­ture did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means... I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used...

25. As the above comments indicate, the wishes of the employees are always the Board's pri­mary concern, and the remedy is not meant to be punitive; moreover, where support is not really there, the Board would not be placing the union in an enviable position by granting a cer­tificate. Without the support of the employees the union would have a difficult time negotiating a collective agreement, and it would ultimately face the prospect of a termination application. On the other hand, the Board must not hesitate to consider the provisions of section 8 when it is the employer's own misconduct that impairs the Board's ability to ascertain with more certainty what the wishes of the employees really are. As the British Columbia Board went on to say:

……The Board must not be afraid to use it [the certification remedy] when it appears appropriate. The Legislature conferred it for the very good reason that there is another equally serious risk to employee freedom. The majority in a unit may really want collective bargaining but have been intimidated from choosing it openly. The only way they will get it, is for the Board to certify the union...

26. These policy considerations are clearly reflected in the present application. Some thirty per cent of the employees in the bargaining unit signed membership. cards on March 22nd - 23rd and, according to the evidence of the union, a number of others had expressed interest. But the employer's speech on March 23rd and its discharge of four union supporters on March 24th would obviously dissuade any reasonable employee from signifying support for the union lest such support be communicated to the employer and result in the same kind of reprisals visited upon Pamenter, Mullen, Briceland and Edmindson. The obligation of the Board to make this admittedly somewhat speculative assessment about the depth of the union's support only arises because the employer had intentionally destroyed the more reliable and conventional means of ascertaining employee wishes.

27. Under that section, the second criteria required an assessment of the effects of illegal employer conduct on employees' ability to freely express their views, and applied so as to disentitle an employer from benefiting from its illegal conduct. There was a recognition at the same time, that it would be undesirable for employees to have a union which they really did not want. The third criteria acted as a measure, albeit as noted a speculative one, of this concern about the depth of the union's support. (See the discussion at paragraphs 20-21 of Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848 concerning this exercise of assessing whether or not the trade union had membership support adequate for collective bargaining).

28. As paragraph 22 from Trulite Industries Limited, supra, describes, there was legislative recognition that the earlier there is improper employer interference in a union organizing cam­paign, the more difficult it often is for a union to be able to acquire the necessary levels of mem­bership support. As a consequence, the required level of membership support for the application of this section has declined. With the recent amendments to the Act, it has been eliminated. The employer argued that as a result, the employees' right to freely choose whether they want a union to represent them or not has not been given meaning. If the union does not have the support of the employees, it may face an application to terminate its bargaining rights. Whether or not the entire exercise, even in the presence of first contract arbitration, ultimately proves to be a costly one (both financially and in other ways) for the union, the employer, and the employees remains to be seen in each case. However, there can be little doubt that the effect of the amendment is to make the level of membership support irrelevant in determining whether or not a union is entitled to be certified pursuant to section 9.2, and that there is, in effect, a broader disincentive to employers to engage in illegal conduct such that the true wishes of the employees' are not likely to be ascer­tained. However, we do not view the approach to the consideration of the remaining criteria to have been changed as a result of the amendment.

29. Are the true wishes of these employees unlikely to be ascertained as a result of the employer's illegal conduct? In submissions, while cases were referred to, neither party specifically addressed the evidence in support of their opposing views.

30. There are a number of conflicting and troubling factors evident in the circumstances of this case. Many are a result of the owners' varying justifications for their decisions to terminate, and their explanation of the timing of those decisions. The effect on employees must be viewed from the perspective of employees, both in terms of what information they would likely be privy to, and the conclusions that they are likely to draw from that information.

31. In assessing this question, the conduct of Luigi D'Abbondanza causes us great concern. Requiring the return of the union envelope is direct interference with the employees' rights, and includes elements of both coercion and threat. It is also direct interference in the union's cam­paign. What better way to stop that campaign than by ensuring that the employees do not have the means to join the union, and, at the same time, send a message to the employees that the employer does not want the union, and does not trust or want the employees to make that decision on their own. That threat was heard and understood. It is clear that a considerable number of employees were present during the morning of May 17 and gave him their envelopes, and that a number of employees were sufficiently concerned that they felt obliged to follow up, to bring their envelopes to him so that he knew that they had not sent in the card or were supporting the union.

32. What effect would the terminations have? In circumstances where these employees were known to be union supporters, fired directly on the heels of the union's reappearance (which for most employees would likely be understood as its arrival, given the events of April 28), in light of Luigi D'Abbondanza's conduct in connection with the return of the envelopes, we have little doubt that the message the employees would understand was that if you vote for, or support the union, you will be risking your job security, and that in those circumstances there would be little question of the appropriateness of the application of section 9.2. (See Di-Al Construction Limited, [1983] OLRB Rep. Mar. 356, at page 360; J. Sousa Contractor Limited, [1988] OLRB Rep. Oct. 1027; Zest Furniture Industries Limited, [1987] OLRB Rep. Feb. 299; and the cases cited therein).

33. What is unusual in this case is that employees might be less likely to connect Tony's ter­mination from employment to anything concerning the union because he was a member of man­agement. There had also not been any prior union activity by employees in the workplace as the campaign was in its infancy. Marie had been vocal. It is reasonable to conclude that some employ­ees would likely have been aware of her views, as she had expressed them in the doughnut shop and she had refused Luigi's request to return the envelope.

34. It could be argued that the employees might have believed that Tony was fired because of his failure to implement piecework in custom, that Ricardo was fired because he had forged a signature on a company document, and that Marie was fired because of the problems with the Holt Renfrew account. These are the strongest assertions that can be made by the employer. Yet those assertions were either not made at the time of termination, were only made in part, or were exag­gerated in their conclusion. Assuming that the employees' understanding of the reasons for termi­nation are relevant in the absence of clear union involvement, we have no evidence that reasons for termination were given to the employees. If employees understood those reasons to be as described in this proceeding, they were, at best, fraught with inconsistencies, and occurred in the context of unsubstantiated "suspicious behaviour" that is dealt with by the company only coinci­dent with the union’s arrival.

35. While there may have been confusion in employees' minds concerning the reasons for the three terminations, there would be no doubt that the week of May 17 was highly unusual in the company's experience. The shop was quiet on the Monday, the Thursday, and early the following week. Following Monday's events, two employees were escorted off the premises on Thursday and shortly thereafter the owners convened a meeting of employees. Employees were told that the employer did not think there was a need for a union, and while there is reference to the employees' choice in the matter, there is a mixed message arising from the comments about not firing employ­ees for poor performance. The following day an employee is fired allegedly for poor performance; an employee who has refused to turn in her envelope.

36. It is also clear that the owners now believe and assert that Tony was a key union organ­izer. While they assert this in defence of the wrongful dismissal action, Mary testified that she had discussed Tony’s union role with some employees. It was from these conversations that Mary drew the conclusion that Tony was arbitrarily increasing the wages of employees supportive of the union. (Some of these individuals allegedly received higher earnings as a result of the piecework system, although Mary agreed that she did not do a comprehensive comparison with other employ­ees to see how other earnings had been affected).

37. At least Ida, Anita, Miriam, and an employee named Lavinia are aware of the connec­tion that the D’Abbondanza’s have made between the union and Tony. They are also aware that the D’Abbondanzas linked Ricardo and Tony together as engaging in suspicious behaviour. Fol­lowing the terminations, Miriam and Anita searched for anything that might be missing. It is a rel­atively small workplace. While we are hard-pressed to accept that there is the level of rumour­mongering suggested by much of the owners’ evidence, we thing it is reasonable to conclude, given the family, cultural, and social attachments, that there is a considerable “grapevine” in the shop. It is, we believe, reasonable to conclude that employees would be aware of this activity and the rea­sons for it. While the employer asserts Tony’s connection to the union for reasons of breach of trust, we think it unlikely that employees would appreciate such a distinction. Rather, they are likely to assume that the same view of union activity and consequences would apply to them as well, particularly in light of the connection and consequences to Ricardo and Marie.

38. On balance, and particularly in light of Luigi’s conduct early in the week of May 17, we are persuaded that the true wishes of the employees are not likely to be ascertained, and that it is appropriate to apply section 9.2 in the circumstances and certify the applicant.

39. Providing remedies other than certification, would not in our view alleviate the effect of the unfair labour practices on the employees’ ability to freely express their choice. Tony would be reinstated to a position in the bargaining unit. In this regard, we adopt the reasoning in A.A.S. Telecommunications Ltd. and Zipcall Ltd., [1976] OLRB Rep. Dec. 751. This might well be inter­preted by employees as a demotion. A posting and access to the employees by the union may not overcome the powerful influence that Luigi appears to be able to exercise over employees, particu­larly in circumstances where the union has been deprived of the opportunity to build any base of support because of the employer’s very early and serious interference in the campaign.

40. Therefore, by way of remedy, we hereby:

1. direct the responding party to make an offer of employment to Tony Bellisario to a position in the bargaining unit described in point 5 herein. On written notice of the offer, Mr. Bellisario is to have ten days from the date of the offer in which to accept or reject the offer. Whether or not such offer is accepted, the responding party is ordered to compensate Tony Bellisario for all wages and other bene­fits lost, from the date of his termination to the date of his reinstate­ment or to his declining of the offer of employment, subject to the usual principles of mitigation.

2. direct the responding party to reinstate Ricardo Zurito and Marie Brown, with full compensation for wages and benefits lost, subject to the usual principles of mitigation.

3. direct the responding party to post the notice attached as Appendix A in conspicuous places in the workplace for a period of 60 days. The responding party is to make every reasonable effort to ensure that the notice is not defaced or obscured in any way.

4. direct that representatives of the applicant be allowed to convene a meeting of employees in the bargaining unit, in the absence of mem­bers of management, for a period of not more than two hours, on company premises during normal working hours.

5. certify the applicant for the bargaining unit agreed to between the parties, described as: all employees of Royal Shirt Company Limited in the City of Vaughan, save and except supervisor, persons above the rank of supervisor, office and sales staff.

6. direct the responding party to provide to the applicant a list of names of all employees in the bargaining unit, together with their addresses and phone numbers. We note that this is information to which the union would now be entitled to in the context of negotiations.

141. We remain seized concerning any matter arising out of these remedial orders and direc­tions.

DECISION OF BOARD MEMBER W. N. Fraser; November 12, 1993

1. I agree with the facts as presented.

2. I agree that it is appropriate to apply section 9.2 and certify the applicant.

3. I do not agree that Tony Bellisario, the Industrial Engineer and Plant Manager and clearly a member of management, should be offered employment as a member of the bargaining unit.

4. I agree with the remedy directed with respect to Ricardo Zurito and Marie Brown.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

E NAVE POSTED THIS NOTICE IN CONPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT ROYAL SHIRT COMPANY LIMITED VIOLATED THE LABOUR RELATIONS ACT BY DISCHARGING ANTHONY BELLISARID. RICARDO ZURITO AND MARIE BROWN FROM THEIR EMPLOYMENT IN MAY. 1395. AND BY SEEKING THE RETURN OF MATERIALS PROVIDED TO YOU BY THE UNION. THE ONTARIO LABOUR RELATIONS BOARD FURTHER CONCLUDED THAT AS A RESULT OF THESE VIOLATIONS. THE TRUE WISHES OF 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 OP ROYAL SHIRT COMPANY LIMITED IN THE

CITY OF VAUGHAN. SAVE AND EXCEPT SUPERVISOR.

PERSONS ABOVE THE RANK OF SUPERVISOR. OFFICE AND

SALES STAFF.

THE ONTARIO LABOUR RELATIONS BOARD HAS ORDERED THE COMPANY TO REINSTATE AND/OR COMPENSATE THE EMPLOYEES WHO WERE DISCHARGED AND TO ALLOW THE UNION TO NAVE A MEETING WITH EMPLOYEES IN THE BARGAINING UNIT DURING NORNAL WORKING HOURS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES:

TO FORN. 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.

ROYAL SHIRT COMPANY LIMITED

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 12^th day of NOVEMBER, 1993.