United Brotherhood of Carpenters and Joiners of America v. Canac Kitchens Limited, 1994 CanLII 9871

[1994] OLRB Rep. August 972

0392-94-R; 0635-94-U United Brotherhood of Carpenters and Joiners of America, Applicant v. Canac Kitchens Limited, Responding Party

BEFORE: Pamela Chapman, Vice-Chair, and Board Members G. 0. Shamanski and P. V. Grasso.

APPEARANCES: Frank Manoni and J. Almeida for the applicant; W. J. McNaughton and J. Capone for the responding party.

DECISION OF PAMELA CHAPMAN, VICE-CHAIR, AND BOARD MEMBER G. 0. SHAMAN­SKI: August 31, 1994

1. This is an application for certification in which the applicant has requested relief pursu­ant to section 9.2 of the Act, together with a complaint under section 91 alleging that the respond­ing party has violated sections 65, 67 and 71 of the Act. The two matters were consolidated on con­sent of the parties at the first day of hearing.

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

3. Having regard to the agreement of the parties the Board further finds that:

all employees of Canac Kitchens Limited in the Town of Markham, save and except foremen, persons above the rank of foreman, office, clerical and sales staff, installer and truck drivers.

Clarity Note: For the purpose of clarity, the parties agree that Bill man is excluded under the clerical exclusion and the lead hand designation is included in the bargaining unit,

constitute a unit of employees of the responding party appropriate for collective bargaining.

4. The Board is satisfied on the basis of all evidence before it that not less than 40% of the employees of the responding party in the bargaining unit on May 4, 1994, the certification applica­tion date, had applied to become members of the applicant on or before that date. Thus, the appli­cant is in the position where it is entitled under section 8(2) of the Act to a representation vote. However, the applicant is seeking certification without a vote pursuant to section 9.2 of the Act, and thus this panel proceeded to hear evidence and representations concerning that request, and concerning the complaint under section 91 of the Act.

5. Most of the facts concerning the main sequence of events in this matter are not in dis­pute. The application was filed on May 4, 1994, one day after the release of a Board decision dis­missing an application for certification filed with respect to the same group of employees by Local 1072 of the applicant union. This decision also dismissed certain complaints made by the applicant under section 91 of the Act, and declined to order relief under section 9.2 of the Act. The allega­tions made by the union in that matter do not relate directly to those made in the present case, but relate instead to certain lay-offs effected by the employer during the course of the first organizing campaign.

6. The applicant union began organizing employees at the employer's plant for a second time the day after the last hearing in the first application for certification, on or about April 21, 1994. Shortly thereafter, this organizing activity came to the attention of the employer, and it issued a number of bulletins to employees concerning the actions of the employee organizers, on or about April 25 and April 27, 1994. In addition, on April 25, 1994 two of the organizers, Joao Toste and Quach Nhan Kiet were called into the office of the human resources manager, Joseph Capone, and warned that they should not campaign for the union during working hours.

7. On May 3, 1994, as the organizing campaign continued, the parties received the deci­sion of the board in the first application for certification. At approximately 5:00 p.m. that day, the president of the company, Karl Joseph Marcus, called a meeting of all employees. While aspects of his comments at that meeting are in dispute, it is not disputed that he expressed his pleasure with the outcome of the first application and thanked all of the employees who had not signed union cards. He then went on to say that Canac would be taking a more active role in listening to the con­cerns of employees and communicating with them, and announced a wage increase of 5% for all employees, effective May 1, 1994, and an increase in the employer's contribution to the benefit plan from 50% to 2/3 of the premium amount. He added that if the company continued to do well that he would consider increasing the premium contribution to 100%. He concluded his comments by speaking about the need for the employees to continue to work together "as a family" in order to ensure the continued success of the company.

8. As noted above, the second certification application was filed the day after this meet­ing, on May 4, 1994.

9. On May 6, 1994, Quach and Toste were again called in to the office of Capone and warned that they should not be campaigning for the union during working hours. They were each

given a written memorandum which repeated this warning and stated that if they continued to do so they would be "removed from the workplace". On the same day, the company issued a third bulletin to employees commenting on the second application for certification and the activities of the organizers.

10. The final incident dealt with in the evidence occurred after the start of the hearing in this matter, on June 4, 1994. On that day, Toste was approached by members of management as he left the premises at the end of his shift and asked about the contents of several bags which had been observed in the back of his vehicle. A dispute ensued, which ended with the police being called by Toste and the contents of the bags being examined by them. They were found not to con­tain any property of Canac, and Toste left. No discipline was imposed on Toste as a result of this incident.

11. The union alleges that each of the actions of the company outlined above, along with certain others described below, constituted violations of the Act, which had the effect of undermin­ing the organizing campaign and which will prevent the true wishes of the employees as to repre­sentation by the applicant from being ascertained by a representation vote. Some of the evidence as to these events was disputed, so we will review below that evidence, our factual findings~ and our legal conclusions with respect to each allegation. In making these findings of fact, the Board has assessed the credibility of the witnesses according to the usual criteria, and has weighed and assessed the testimony in the context of the relative credibility of the witnesses, the documentary evidence, and what is reasonably probable in the circumstances.

BULLETINS TO THE EMPLOYEES FROM THE EMPLOYER

12. Copies of each of the bulletins sent by the employer as outlined above were provided directly to employees, rather than simply being posted, although it was not clear in the evidence how each of the bulletins were distributed. The bulletins were also provided in translated versions to employees speaking Portuguese, Spanish and Vietnamese.

13. There was some evidence about the employer's previous practice of communicating with employees in writing. There was no dispute that the employer had issued a similar bulletin in May, 1989, during an attempt by the Steelworkers' union to organize Canac employees. That bul­letin was translated into Portuguese, Spanish, Vietnamese and Sri Lankan. The company also asserted that it had issued a bulletin to all employees in July, 1990, explaining why there would be no wage increase that year, which was also translated into several of the languages common to employees at the workplace. The union disputed the authenticity of that bulletin, suggesting that it had been created for the purposes of this litigation, but this suggestion cannot really be taken seri­ously given that one of their own witnesses, Mr. Quach, recognized the Vietnamese translation of the July, 1990 bulletin and thought that he recalled receiving it at around that time. It was clear, however, that the company only rarely communicated in such a fashion to its employees~ and that the most common reason for such an approach was their desire to comment on the need for a union at the workplace.

14. The first bulletin begins by identifying Toste and Quach as union organizers, and sug­gesting that they are playing some sort of "game" with the employees. It goes on to refer to the first application for certification, describing the status of the Board's proceedings, and states that "(A)ny cards signed now will not help the Union, as the Labour Board will decide on only the cards already submitted and the evidence it has heard." The final paragraph of the bulletin reads:

"Our job security here is producing kitchens at very competitive prices, employees playing games about the Union doesn't help any of us. Lets all do our job here!".

15. The union complains that this bulletin, by identifying the organizers and suggesting that their motives were questionable and contrary to the interests of the company and the employees, effectively isolated the employee organizers from other employees by singling them out and mak­ing it clear that the company was displeased with them. The final paragraph is also of significant concern to the union, as it seems to suggest that employees' job security was endangered by the activities of the organizers. For these reasons~ the applicant asserts that the bulletin violated sec­tion 65 of the Act.

16. Section 65 provides as follows:

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

18. Thus, an employer is permitted to communicate with employees about issues relating to unionization, but, as noted in Viceroy Construction Co. Ltd., [1977] OLRB Rep. Sept. 562:

……by virtue of the Act, an employer's freedom of expression regarding possible union represen­tation of his employees is not absolute. While he is of course free to express his view of repre­sentation by a trade union he may not use that freedom of expression to make overt or subtle threats or promises motivated by anti-union sentiment which go to the sensitive area of changes in conditions of employment or job security. (emphasis added)

18. We have concluded that portions of the first bulletin went beyond simple communica­tion by the employer of its position and constitute violations of the Act. In particular, the repeated statement that the union organizers were "playing games" and the final suggestion that these games posed some threat to the job security of the employees would be likely to intimidate and/or threaten employees and thus violates section 65 of the Act. It seems clear as well that the bulletin was motivated in large part by the employer's desire to discredit and isolate the union organizers, in order to prevent employees from associating with them and, by implication, from signing cards, which constitutes interference within the meaning of section 65.

19. We have one further concern with the first bulletin which was not specifically identified by the union. By stating that any cards signed at that time would not help the union, presumably in reference to the first application for certification, the company may well have discouraged employ­ees from signing cards which would have been relevant to the second application. As they knew at that time that a second campaign had begun, this statement was really a material misrepresenta­tion, and certainly cannot be considered the expression of "views" within the meaning of section 65. As such, it too constitutes interference with the selection of a trade union and is a violation of the Act.

20. The second bulletin, issued a few days after the first, also contains statements which are of concern to the union. The organizers are once again identified and accused of "needlessly" bothering and harassing employees and playing games, as well as "trying to interfere with the com­pany and cause as much disruption to (our) work as possible". The bulletin repeats the message of the first one that nothing the organizers and the union do now can "help the Union" or "add any­thing" as the case is already before the Board. In these respects it can be seen as continuing and reinforcing the violations of the Act outlined above with respect to the first bulletin, albeit in a less explicit way.

21. The third bulletin was issued after the application was filed, a few days after the meeting between Marcus and the employees. It once again identifies the organizers and accuses them of bothering employees and upsetting the work of the company. It also accuses the employee organiz­ers of organizing during working hours and advises employees that they have been warned a sec­ond time that this conduct is not permitted by the Labour Relations Act. Toste is accused specifi­cally of breaching the Act by threatening employees. Most significant, according to the union, is the fourth paragraph, which states: "(W)e do not need a union here and we urge you not to sign any Union cards. You do not need to pay Union dues and you do not need outsiders interfering with our business."

22. Like the first two bulletins, this one continues to target the organizers and accuse them of various misconduct~ including, for the first time, an allegation that they were violating the Act. It also conveys directly the message that the company president does not want employees to sign union cards. While this statement might not, in and of itself, constitute a violation of section 65, it must be considered in the context of the pattern of statements issued in the three consecutive bul­letins, and also the meeting held with employees a few days earlier, which is discussed below. Given our findings about the earlier bulletins, and our conclusions about the meeting between Marcus and the employees which would have "set the stage" for the statements in this bulletin, we also find aspects of this bulletin to violate the Act.

23. For the reasons set out above, we have found that the employer violated section 65 of the Act by delivering bulletins to its employees containing certain elements which breached the Act. In reaching this conclusion, we have considered not only the content of each of the bulletins, but also the number of communications received by employees within a short period of time, the repetition of certain statements, the fact that the delivery of such bulletins was not a common prac­tice, and the fact that they were translated into several languages, unlike ordinary employer com­munications. These factors were likely to emphasize the importance of the bulletins to employees, and would thus amplify their coercive effect.

ALLEGED HARASSMENT OF UNION ORGANIZERS

24. In addition to the singling out of the organizers effected by the employer's bulletins, the union has alleged that the employer took certain other steps which had the effect of interfering with the organizers's activities, and discriminating against them in respect of their terms and condi­tions of employment, contrary to sections 65 and 67 of the Act.

25. The main incidents in this regard were the two meetings held by the company's human resources manager, Mr. Capone, with two of the employee organizers, Toste and Quach. The facts concerning these meetings were largely undisputed. On or about April 27, 1994, each of the employees were approached separately by their foremen and taken by them to Capone's office. Each of the foremen remained present during the meetings with their respective employees, and in the case of Quach, foreman Jimmy Tran provided translation of Capone's comments. Some other individual not identified to the Board was present to translate for Toste at his meeting with Capone. Each of the employees testified that Capone told them that they were not permitted to campaign for the union during working hours.

26. The second meetings, held on or about May 6, 1994, occurred in basically the same fashion, except that someone named Gino was present as a witness at these meetings, along with the foremen and Capone, and no translator was present at the meeting with Toste, although Toste stated that he had no difficulty understanding what was said by Capone. At the second meeting Capone accused both employees of continuing to campaign on company time, and each employee testified that he denied those accusations. Capone once again warned them that this was not per­mitted, and handed them a memo reiterating that warning. The memos stated in conclusion that "if you continue to do this you will be removed from the workplace". Toste testified that when he was summoned to Capone's office the second time he was afraid that he was going to be fired.

27. In its response, in its opening statement to the Board, and in the bulletins to employees discussed above, the company claimed that it issued these warnings to Toste and Quach in response to complaints received from other employees that the two organizers had approached them during working hours. The only evidence led by the company to substantiate that claim, how­ever, was the question put to Capone during direct examination as to whether subsequent to the completion of the evidence in the first hearing and before the decision was released he "became aware" that Quach and Toste were soliciting union members at the plant, to which he answered "yes". He then confirmed that he held two meetings with them at which time he warned the employees not to solicit during working hours, and that this was company policy which had been enforced during previous union campaigns. There was no further evidence offered by any manage­ment witness as to how or when information came to light which established that Quach and Toste were campaigning during working hours, and no employee witnesses were called to establish this fact first hand.

28. Employer counsel suggested in closing argument that it would have been inappropriate to call employee witnesses to substantiate the alleged complaints about the conduct of Quach and Toste, as such testimony would tend to disclose the wishes of the employees. It is not as clear to this panel as it appeared to be to counsel that only employees opposing the union would complain about being approached during working hours, but in any event it would certainly not be required of such witnesses that they expose directly their wishes as to representation, any more than that is required of witnesses called by the union. To take the proposition argued by counsel for the employer to its natural conclusion would mean that an employer could allege that certain employ­ees had complained that membership evidence had been obtained by a union in violation of the Act, without any evidence being called from employees to substantiate those allegations, and the Board would be bound to accept those allegations as fact due to our obligation not to disclose employee wishes pursuant to section 113(1) of the Act. We do not agree that the requirements of that section prevent testimony of that sort, any more than that it prevented the employer here from calling employee witnesses to establish that in fact the two employee organizers were guilty of the misconduct alleged, or at least that the employer had some reason to believe them guilty.

29. Even if the employer had nonetheless chosen not to call evidence from employees, there was no excuse for their failure to call some direct evidence from a management witness as to the company's reason for warning the two employees and eventually issuing a very serious threat to them by way of written memoranda. The first meeting could perhaps be explained as simply a wish by the employer to make the rules clear, but the second meeting, according to both employees, included a statement by Capone that the two employees had continued to organize on working time. This statement suggests both that he had some information that they had been doing so prior to the first meeting and that he believed them to be continuing, which would have been tanta­mount to insubordination, a very serious allegation. That these accusations were made by Capone was not contradicted by him in his testimony, so we can presume that they were indeed made; the seriousness of the warning memoranda, which include the statement "you have been campaigning on Canac work time", confirms that this was the basis for the second meeting. It is very troubling, therefore, that no evidence was called by the employer to establish that the organizers were in fact violating the employer's rules, or at least that they had some reliable source for their belief that this was occurring.

30. In light of this gap in the evidence, then, the employer's decision to call the two employ­ees into Capone's office, in a formal manner which would in and of itself have been somewhat threatening, can be seen as interference within the meaning of section 65 of the Act. This is not to say that an employer cannot issue and enforce a no-solicitation rule during working time; in fact, this Board has previously said that such rules are presumptively valid, but only in the absence of evidence that the rule was adopted for discriminatory purpose or applied unfairly (The Adams Mine, Cliffs of Canada Ltd., [1982] OLRB Rep. Dec. 1767) (emphasis added). Here, the absence of evi­dence as to the reason for the company's intervention to enforce the rule with respect to the two organizers, and in particular the lack of evidence about the second and quite serious intervention, leads us to conclude that the rule was applied arbitrarily and thus unfairly. As such, the employer's actions constituted a violation of section 65 of the Act, which was exacerbated by the employer's decision to publicize its assertion that the organizers were acting improperly and that they had been warned in several of the bulletins to employees. Furthermore, to the extent that the warnings contained in the memoranda issued on May 6 constituted a threat, presumably of dismissal, section 67(c) of the Act was violated as well.

31. In addition to the meetings with Capone, there were several further allegations of harassment made by union organizer Quach. Chief among these was his assertion that the produc­tion quota for his position was increased during the period he was organizing for the union, in an attempt to keep him too busy to work for the union, and also to try to fire or demote him because of his inability to meet the standard. This belief was confirmed, according to Quach, by a conversa­tion with his foreman which he testified occurred after the second meeting with Capone, during which his foreman said that if he continued to engage in union activity during working hours he could be assigned to another job which he might not like, like cleaning the toilets. He also asserted that Tran told him not to talk during work hours and that he watched him closely as if he was suspi­cious that he was talking about the union.

32. The evidence about the production standard applied to Quach's position is somewhat puzzling. It was not disputed that in the position of Upper Puller Quach was assigned a production standard measured in terms of the number of doors "pulled" during a shift. Early in 1993, Quach worked on a 7:00 a.m. to 5:00 p.m. shift and his production quota was 2300 doors. At the end of 1993 the company went to short hours due to a slowdown in work, and the production standaid was reduced correspondingly, to 1980 doors in a 7:00 a.m. to 3:30 p.m. shift. In April 1994, the company went back to the regular longer shift, and the standard was increased, originally to 2300 doors and then after a day or two to 2560 doors.

33. Quach testified that on a regular shift when the standard was 2300 doors he could some­times make that target, depending on how difficult the particular orders were, but that generally he pulled between 2100 and 2300 doors. He described the target of 2560 doors as "impossible", and said that he had expressed this opinion to other employees who agreed with him. There was no dis­pute that the same production standard was applied to both Quach and the other Upper Pullers.

34. There is some dispute as to whether or not Quach discussed the new production stan­dard with his foreman, Jimmy Tran. Quach says that when Tran gave out the forms containing the new standard that Tran said that this was the new standard according to Frank Converso,the plant manager, and that employees were expected to do their work "accordingly". He took this to mean that he was supposed to produce these numbers. Tran, on the other hand, said that Quach com­plained to him that the number of doors was too high, and that he told him just to do as many as he could, to do his best.

35. What was missing from all of the evidence, however, was an explanation of the increase from 2300 to 2560 doors, which according to the evidence of the company occurred sometime around May 2, 1994, in the middle of the organizing campaign. It was suggested in the company's opening statement that the increase to 2300 from 1980 doors would be explained by the increase in the hours, and this evidence was indeed undisputed. It was further suggested that the increase to 2560 was a mistake caused by some miscalculation, and that evidence would be called that foremen were aware of the correct, lower number and were to advise employees accordingly. None of these facts were adduced in the evidence of Tran, and in fact he seemed to be of the view that 2560 was the correct production standard. No further evidence was called to provide any further explana­tion. It thus remains puzzling that the production standard was increased at this time to a level which certainly Quach, and even Tran, seemed to acknowledge was unreachable.

36. Despite these reservations about the lack of information provided to us, however, we are unable to conclude that the increase in the production standard was motivated by any anti-union animus, or even that it was directed specifically at Quach for any reason as it was applied across the board. There was no evidence that Quach was actually required to meet this standard, and certainly no suggestion that he was or would be disciplined or otherwise affected by his inabil­ity to do so. In fact, Tran acknowledged frankly that none of the employees met the new standard. While Quach's apprehension about the new standard is understandable, then, particularly as it came during an already stressful time for the organizers, there is simply no evidence to support that the imposition of the new production quota constituted a violation of the Act.

37. The final evidence concerning alleged harassment of Quach by Tran related to the con­versations in which Tran said that Quach might end up cleaning toilets, and in which Tran told Quach not to speak to other employees during working hours, along with a general allegation that Tran watched Quach closely. Tran does not dispute that two conversations of the general nature described by Quach occurred, but there is some disagreement as to timing, particularly with respect to the first conversation. Tran says that he did suggest to Quach that he might end up doing another job, perhaps cleaning toilets, but that this was in reference to poor performance on his part shortly after his return from layoff, which would have been sometime in March or early April, before the organizing campaign began. Quach is adamant that the conversation occurred after May 6, 1994, and that it was referenced to him engaging in union activity during working hours. The conversation was not attributed to any time period in the particulars filed by the union on May 19, 1994. On cross-examination, Tran admitted that other employees do not always meet the produc­tion standard, but that he had never threatened an employee other than Quach with a job change if they did not do so. He also admitted that Quach was an "OK" employee, as good as the other pul­lers.

38. With respect to the second conversation and the allegation that Tran watched Quach closely, Quach's evidence was less than clear about the particulars of these complaints. Tran admit­ted that he had told Quach shortly after his return from layoff not to talk to other employees, after another employee who was passing from reception stopped to speak to Quach. On cross-examina­tion, Tran admitted that it was the other employee who initiated the conversation by visiting Quach at his workstation, and acknowledged that Quach continued to work while he talked. Quach gave no evidence about the timing of this conversation, and absolutely no particulars about the allegation that Tran watched him closely. Tran was not cross-examined directly about that alle­gation.

39. Given the evidence on these further allegations of harassment by Tran of Quach, we are simply unable to make any clear findings as to the motivation of Tran and/or the relationship of these events with Quach's union activity. While it is clear that Tran did threaten Quach at some point with the prospect of cleaning toilets, which would be a reasonably intimidating statement, we cannot conclude, given the conflicts and inconsistencies in the evidence, that this threat was directed at limiting or ending Quach's union activity. Similarly, it appears that Tran gave Quach an unusual directive that he not speak to employees during his working hours, but the union failed to establish that this even occurred during the timeframe of the organizing campaign. Tran really pro­vided no explanation for his conduct in these respects, despite admitting that he did not impose comparable restrictions or make similar threats to other employees, making his actions somewhat suspicious. On the evidence led, however, we cannot conclude that his actions constituted viola­tions of the Act.

40. As noted above, there was also evidence about further alleged harassment of union organizer Toste during an incident which occurred on June 4, 1994, after the hearings in this mat­ter had begun. While some of the facts relating to this incident were disputed, most were not. On Saturday, June 4, 1994, the plant was operating, with employees scheduled to work until 11:00 a.m. At approximately 9:30 a.m., Toste asked his foreman, Carmen DiFrancesca, if he could leave work at 10:00 a.m. DiFrancesca told him that he would prefer him to stay until the end of the shift at 11:00 a.m., but agreed that Toste could go to see another employee before the end of the shift. Toste claims that DiFrancesca should have known from what he said about this errand that he would be meeting Ferreira at the end of his shift, outside of the plant, to pick something up. DiFrancesca stated, however, that he was surprised to learn that Toste had left the plant, as Fer­reira worked in the same building. Balancing all of the evidence on this point, we have concluded that Toste did not make it clear that he would be leaving the plant building, or that he would be picking something up which he would leave in his car.

41. Toste's car was observed leaving the plant parking lot to meet Ferreira down the street at another company lot, and then returning, by Vince Bruno, the customer service manager who was patrolling the parking lots. He testified that he patrols the lots in his car in part because there is a problem with theft from the company. He considered Toste's departure from and return to the lot during working hours to be unusual, and thus alerted Lou Farrace, the chief financial officer, to whom he reports. When Farrace and Bruno approached Toste's car, they observed it to contain several full green garbage bags. Bruno had not seen Toste transfer the bags to his car from Ferreir­a's, as he could not see that far from his vantage point in the plant parking lot. Neither Bruno nor Farrace knew to whom the car belonged, but they eventually identified Toste as the driver with the assistance of DiFrancesca.

42. After identifying the car as Toste's, DiFrancesca returned to the work area, and spoke to Toste, expressing concern that he had left the plant and that he was gone so long. Because DiFrancesca said nothing about the bags or any allegation of theft, Toste suggested that there was a plan to ambush him at the car. We accept the evidence of DiFrancesca and Farrace, however, that DiFrancesca did not approach closely enough to see the bags in the car and that he was not told of their presence initially.

43. DiFrancesca examined Toste's time card and determined that he had not punched out when he left the plant; and reported this to Farrace. At this point he was advised that there had been bags in Toste's car and that there was some concern about a possible theft. In the interval, Farrace had consulted with the plant manager, Frank Converso, who had advised him to do what­ever he felt appropriate. Farrace resolved to speak to the employee and ask about the bags, and testified that he felt it most appropriate to do this at the vehicle where the bags were located in case the employee wanted to show him what was in the bags.

44. Just after 11:00 a.m., Farrace and DiFrancesca walked out to the lot and approached Toste's vehicle. There is a dispute as to what then occurred. Farrace and DiFrancesca both testi­fied that they approached the car as Toste and two passengers were getting into it, and that Farrace politely asked Toste what was in the bags in the car. Toste's response was to get extremely agitated and to begin screaming at them that he had not stolen anything. He is also alleged to have said sev­eral times that maybe there was something belonging to Canac in the bags. It is not disputed that he began insisting that the police be called, and that eventually one of the employees travelling with him, Ram Geer, went into the plant office and called them. By the time this occurred, Farrace and DiFrancesca had left the area of the car and returned to the plant.

45. In the version of events alleged by Toste and the two employees present, they were all in the car, it had been started and they had begun to pull out of the spot when Farrace and DiFrancesca approached. They testified that Farrace and/or DiFrancesca threw up their hands and shouted, in a violent fashion, that they must stop the car as something had been stolen from Canac and they wanted to search. From there, the description of the altercation resembles that of the management witnesses, with all witnesses agreeing that Toste got extremely agitated and did not always make sense. None of the union witnesses, however, testified that Toste had ever said that there were things belonging to Canac in the bags.

46. Once the police arrived, the dispute was quickly resolved. The police looked into the bags and confirmed that they contained clothes, and spoke to management in the plant office. Geer and the other employees then left. No discipline resulted from this incident.

47. The union asks us to conclude that the employer's intervention with Toste concerning the bags in his car was motivated by anti-union animus, and also that the way in which they han­dled the incident, which was alleged to be unduly confrontational, was dictated by their knowledge that Toste was a union organizer. While the timing of the incident was unfortunate, and undoubt­edly affected the way both parties reacted to it, we are unable to conclude that there was any anti-union animus on the part of Farrace or DiFrancesca when they approached Toste concerning the bags. Nor are we convinced, as the union alleged, that Farrace's decision to confront Toste at the car was dictated by anti-union animus on the part of plant manager Frank Converso. Rather, we are satisfied that Farrace was legitimately concerned about the implication of the rather unusual conduct witnessed by Bruno that morning, together with the presence of the bags in the car. While as it turned out these activities had a perfectly rational explanation, none of the members of man­agement were in possession of sufficient information at the time these events came to light to explain them without the assistance of Toste.

48. As is clear from the facts recited above, Toste completely refused to co-operate in pro­viding additional facts which would have quickly resolved the matter, despite even the suggestion from Bhaam Prasad, one of the employees present, that he simply reveal what was in the bags. While Toste's reaction may not have been surprising given his previous experiences as a union organizer, including the events detailed above, his agitation only served to further inflame an already difficult situation.

49. We are also unable to conclude that the management officials present at the altercation handled it in an overly confrontational manner, or that their approach was dictated by their knowl­edge of Toste as a union supporter. Of all the witnesses we heard from about the events that day, we prefer the testimony of DiFrancesca, Toste's foreman, and an individual who was somewhat removed from the events, as he did not make the decision to intervene with Toste and had not been directly involved in any of the other allegations made concerning management's response to the union campaign. In addition, DiFrancesca openly acknowledged during cross-examination that he and Toste have always had a good relationship during the 12 years that they have worked together, and that he believed that it was impossible that Toste could have stolen something given his knowledge of the man. He even confirmed that he had stated this to Farrace at the time of the incident. We were impressed by the straightforward manner in which DiFrancesca gave his evidence, and for all these reasons have concluded that it is more likely than not that the approach by management to the vehicle was as described by him. There was nothing in that approach which was inappropriate given the information that the two managers possessed at that time.

50. For these reasons, we have concluded that the actions of Farrace and DiFrancesca on June 4, 1994, did not constitute violations of the act.

MEETING BETWEEN MARCUS AND THE EMPLOYEES ON MAY 3.1994

51. Most of the facts concerning this incident were not in dispute, and are reviewed in para­graph 7 above. The meeting called by Marcus appears to have been organized fairly quickly, imme­diately after the employer received the news of the Board's decision on the afternoon of May 3, 1994. It is also clear that a meeting between the owner and the employees was a very unusual event: the employer suggested that such a meeting had taken place in 1990, when no wage increase was given, but this fact was never asserted conclusively in the evidence. Otherwise, it appears that such a meeting had never occurred before.

52. The only real dispute as to the statements made by Marcus are whether or not he said that employees must not sign cards for the union, and what exactly he said about the level of wage increases obtained at other workplaces. Marcus and Capone, who was present at the meeting and produced notes that he claimed to have made shortly after its conclusion, both testified that Mar­cus did not say that employees should not sign union cards. They also recall that Marcus said that the average wage increase was 1.7 %, which information was obtained from an article in the Toronto Star dated February 25, 1994, which was admitted into evidence. The same article said that unionized employees were receiving average increases of 1.3%.

53. Ram Geer, an employee who was present at the meeting, was the chief witness for the union with respect to Marcus' comments. He repeated basically the same comments as Capone had recorded, with two exceptions. He recalled that Marcus commented that "the union was only giv­ing 1.3%", while he would be giving an increase of 5%. This could certainly be interpreted as a reference to the average increase for unionized employees cited in the same Star article. He also recalled that Marcus told employees that they must not sign any cards for the union or any paper. It was suggested to Geer on cross-examination that he might be recalling the statements made by Marcus in the bulletin distributed to employees on or about May 6, 1994, in which he said "we urge you not to sign any Union cards", rather than any comments made orally during the meeting. Geer continued to insist, however, that this statement had been made at the meeting.

54. The only other witness called by the union who testified as to the meeting was Quach, who testified through an interpreter that he only understood some of Marcus' comments as his English is not very good. He recalled the announcement of the wage and benefit increases, and also that Marcus said that Canac won and the union lost. He did not, however, testify that he heard anything about not signing union cards.

55. Having heard Quach testify as to his comprehension of various conversations in English with others, including his statement that he is able to communicate well enough with his lawyer, Mr. Manoni, and that he understood, before translation, what Capone said to him in the meetings about organizing, we think it likely that he would have understood and recalled if Marcus had said anything as direct about the union as was suggested by Geer. This finding, combined with the lack of any other employee witnesses claiming to have heard Marcus forbid the signing of union cards, and the confusion that could well have arisen in the mind of Geer between the statement made in the meeting and the statements made in the bulletin released almost immediately thereafter, leads us to the conclusion that the comment concerning the signing of cards attributed to Marcus by Geer was not made in the meeting on May 3, 1994. (It is also possible that Geer felt that this mes­sage was implicit in Marcus' comments about employees who had and had not signed cards in the first campaign, which are discussed below.)

56. We are less certain as to what exactly was said concerning average wage increases in other workplaces. In its particulars filed May 5, 1994, the union claimed that Marcus had said dur­ing the meeting that "unions are negotiating 3% increase". That was subsequently changed to 1.3% in the testimony of Geer. Capone's notes, meanwhile, say that Manoni "announced the wage issue talking about the average being 1.7% in the workforce". Given that both figures, 1.7% for workplaces generally and 1.3% for unionized workers, appear in the newspaper article that the employer claims was its source for the comments, it does seem likely that the 1.3% figure was men­tioned by Marcus during the meeting; if it was not, it is hard to explain how the union could have happened upon at first 3% and then 1.3% (an easy mistake for a listener) as the figures they claim were cited with respect to employees represented by unions. It is most likely, we find, that both figures were cited during Marcus' talk.

57. Counsel for the union submitted that the comments made by Marcus at the meeting and the provision of a wage increase constituted undue influence upon the employees. Counsel for the employer urged us to find that the provision by an employer of a wage increase in these circum­stances, outside of the statutory freeze period as the first certification application had been dis­missed and the second not yet filed, was not a violation of the Act. In fact, he asserted that for the employer to have not given the increase because of the organizing campaign would have itself con­stituted a violation of the Act. This argument was considered by the Board in Ottawa General Hospital, [1981] OLRB Rep. Oct. 1461, in which the Board concluded that section 64 (now section 65) must be read in conjunction with section 79(2) (now section 81(2) in determining the propriety of the increase. This conclusion, however, seems to relate very particularly to the facts in that case, which involved "the implementation of a wage increase that was planned by the respondent and announced to employees before the respondent was notified of the application for certification" (at para 21). In those circumstances, it is not surprising that the Board was concerned that a failure to implement the planned wage increase would have constituted a violation of the freeze provisions in the Act.

58. In the present case, it is not clear that any wage increase, much less one of 5%, had been decided upon prior to Marcus' meeting with the employees. The only evidence from the employer as to its plans in that regard is that of Capone, who said that there had been "rumblings back and forth" about whether or not there would be a wage increase, and if so of how much, prior to May 3,1994, but that there had been no formal meeting. He stated further that it was Marcus' decision. When asked what he knew of Marcus' intentions, he said simply that Marcus intended during the speech to give an increase of 5% across the board. This gives us no clue as to when Mar­cus made up his mind, and leaves open the possibility that he decided only after he learned of the Board's decision, or after he learned that the union was once again attempting to organize the employees. Marcus did not testify on this issue, so the question of the timing, and thus the spectre of anti-union animus playing a role in his decision, remains open. These facts distinguish the case clearly from Ottawa General Hospital, supra.

59. On the other hand, it is clear that annual wage increases, when they are granted, have always been implemented in May. The previous year an increase of 3% had been granted effective May 1, 1993, the first increase since 1989. An exhibit filed at the hearing suggests that in 1989 and 1988 5% increases were implemented. Wages were not raised in 1990, 1991 and 1992, we were told, because Canac and the kitchen cabinet industry generally had been hard hit by the recession. While the union suggests that this pattern discloses that the company only raises wages when threatened by unionization, as they were in 1989 and again in 1994, this theory doesn't explain the increases in 1988 and 1993. Rather, it seems clear that increases have varied depending on the per­formance of the company. This could explain the 1994 increase, as we were told that the company was doing well and had recently obtained several large orders.

60. The increase in the employer contribution to benefit premiums was also explained in terms of the company's improved performance. In 1990, the same year that a wage increase was first denied, the company reduced its contribution to the employee benefit plan to only 50% of the premium amount. Evidence confirmed that this was an extremely unpopular move. At the meeting on May 3, 1994, Marcus announced a return to the previous level of contribution, and also stated that he would consider paying a full 100% of the premiums if the company continued to do well.

61. In The Globe and Mail, [1982] OLRB Rep. Feb. 189, the Board considered the mischief that may arise from an employer granting benefits or soliciting employee grievances during the course of a union organizing campaign:

62. There is nothing in the Act which prohibits an employer whose employees are unorganized and who are not the subject of a union organizing campaign, from providing terms and condi­tions of employment [sic] which are designed to, and may have the effect of causing employees to turn their back on the option of collective bargaining. However, once a trade union begins to organize, it is protected by the provisions of section 64 of the Act and the employer is prohibited from acting with an intention to interfere with the selection of a trade union or the representa­tion of his employees by a trade union. The section enshrines the employer's freedom to express his views but makes it an offence to use "coercion, intimidation, threats, promises or undue influence" as a means of thwarting the rights of the trade union and/or its employees. The grant­ing of benefits or the solicitation of employee grievances during the course of a union organizing campaign if motivated even in part by a desire to undermine the trade union, breaches these prohibitions. Regardless of whether this type of activity is characterized as an attempt to threaten employees, as it has been by the United States Supreme Court in Exchange Parts, or as an attempt to make unlawful promises or as an attempt to unduly influence employees, it consti­tutes an unlawful interference with the trade union and with the right of employees to choose a trade union.

63. The threatening aspect of this type of employer conduct arises, in the words of the U.S. Supreme Court, because "employees are not likely to miss the inference that the source of bene­fits now conferred is also the source from which future benefits must flow and may dry up if it is not obliged." Employees may as easily infer from this type of employer conduct that the bene­fits conferred, which have not heretofore been enjoyed, will continue or that the grievances solicited, which have heretofore not been considered, will be addressed, if the union is defeated. When considered in this light the conferring of benefits or the solicitation of grievances during the course of a union organizing campaign may also be described as a form of promise that con­ditions will be maintained if the efforts being made by employees to form a trade union are dis­continued.

64. The Labour Relations Act, in addition to prohibiting threats and promises designed to inter­fere with rights under the Act, makes it an offence for an employer to interfere with the repre­sentation of employees by a trade union by resort to "undue influence". The meaning of that term, as used in section 64 of the Act, is defined in K-Mart Canada Limited, [1981] OLRB Rep. Jan. 60 at p. 70 as follows:

In Words and Phrases Legally Defined (London, 1970) undue influence is defined in part as:

"The unconscientious use by one person of power possessed by him over another to induce the other to enter into a contract."

In the context of The Labour Relations Act undue influence includes the unconscien­tious use by an employer of its power or authority over employees in order to induce them to forego their rights in relation to a union. An employer exerts undue influence on its employees, and thereby breaches the Act, when it takes unfair advantage of its position and authority in an attempt to sway the will of the employees. The line between legitimate employer expression and undue influence is not easy to draw in the abstract, and can only be assessed on a case by case basis.

The Board has long recognized the sensitive nature of the employer-employee relationship and the position of dominance enjoyed by the employer. The employer decides who will work and under what terms and conditions of employment. The employer is in a position to respond to employee concerns or to ignore them. The scheme of collective bargaining provided under the Act is designed to place employees on a more equal footing with their employer. If, when faced with a move by employees to avail themselves of collective bargaining, an employer uses his authority to confer benefits or to otherwise improve the terms and conditions of employment, and does so with a purpose of undermining the trade union, must it be found that the employer, given the extent of his authority within the employment relationship, has exercised undue influ­ence? The answer, regardless of the coexistence of a business motive, if yes. An employer who takes advantage of and relies upon his control over the employment relationship in this manner unduly influences his employees in contravention of the Act.

62. In this case, the union asks us to find that the comments of Marcus to employees con­cerning his intention to improve communication with employees and to listen to their concerns, and most importantly his announcement of retroactive wage and benefit increases, constitute undue influence in the sense it was described in The Globe and Mail, supra. Having carefully examined the circumstances surrounding the announcement of these improvements, and in particu­lar the previous pattern of providing such benefits, we are not convinced that the increase, in and of itself, constituted a violation of the Act. We are satisfied, however, that the manner in which the company chose to announce the increase did constitute undue influence upon the employees, within the meaning of section 65 of the Act.

63. As noted above, meetings of this sort, particularly with the owner himself, were extremely unusual, and had certainly not been standard procedure for informing employees of wage and benefit increases. Marcus began the meeting by speaking of the union's previous applica­tion to the Board, and expressing his pleasure at the defeat of that application. He went on to thank all employees who had not signed cards, and to say of those employees who had supported the union that he had nothing to say about them. These comments about the union were then fol­lowed immediately by the announcements about a new approach to dealing with employee con­cerns and both wage and benefit increases. We have concluded that by linking this conferring of benefits and solicitation of employee grievances with the earlier comments about the union and about union supporters, which carried the clear message that Marcus wanted employees to defeat the union and that he would happy with those who assisted in this effort (and, conversely, unhappy with those who did not), Marcus sent an implicit message to employees that his generosity was related to the company remaining non-union. The weight of this message was enhanced by Marcus' status as the owner, a person with whom most employees would have little contact, and was rein­forced by the bulletins employees received both before and after the meeting, also from Marcus, making his views about unionization clear. In this particular context, then, the announcement of a wage and benefit increase, and the comments about soliciting employee grievances, constituted violations of section 65 of the Act.

REMEDY

64. We have found that several of the actions of the employer in this matter constituted vio­lations of sections 65 and 67 of the Act. In order to grant certification without a vote pursuant to section 9.2 of the Act, however, as requested by the applicant, we must also be satisfied that these violations have resulted in a situation where the true wishes of the employees are not likely to be ascertained by a representation vote. As numerous previous decisions of this Board have made clear, this requirement makes relief under section 9.2 an exceptional remedy.

65. The Board has generally granted certification without a vote pursuant to section 9.2 in one of two types of situation, as reviewed in The Globe and Mail, supra, at paragraphs 60 and 61:

where an employer has "made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified"; and also "where the cumula­tive effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reason­able employee is presumed to have and which gives a reasonable employee the confidence to make a free choice".

66. In the present case, aspects of both of these types of violations are present: threats to the job security of the employees were implicit in statements made in the bulletins, particularly the first one, and also in some of the comments made by Marcus at the meeting with employees; and we have found a pattern of violations extending over the whole period of the organizing campaign. Nonetheless, we are not convinced that the misconduct which we have identified would be likely to prevent the true expression of employee wishes in a vote. In reaching this conclusion we have con­sidered a number of factors: the absence of any direct threats to the employees about job security, or about involvement with the union; the fact that the interference with union organizers was not substantial and was to a large extent kept quite private (excepting the comments in the bulletins); and, the fact that no dismissals or even serious discipline of union organizers or supporters were carried out.

67. Most importantly, we have considered the availability of other remedial responses to redress the unfair labour practices we have found, and to restore an environment conducive to a free expression of wishes by way of a vote. One factor in assessing the likely effect of such remedial efforts on the environment for a vote is the size of the workforce, as employees in a small work­place are likely to feel less protected by the confidentiality requirements of a secret ballot. In this case, there are more than 400 employees in the bargaining unit. We are satisfied, therefore, that intervention by the Board to remedy the unfair labour practices in the manner set out below, carrieed out before the holding of a representation vote, should enable employees to make a voluntary decision as to whether or not to support the applicant, and that the true wishes of the employees can thus be ascertained by way of a vote.

68. For the foregoing reasons, the Board hereby declares that the responding party has con­travened sections 65 and 67 of the Labour Relations Act, and orders that the responding party:

(1) post immediately copies of the attached notice marked as "Appen­dix" in English, Portuguese, Spanish and Vietnamese, after being duly signed by Karl Marcus, in conspicuous places in its plant, where they are likely to come to the attention of employees, and keep the notices posted for sixty consecutive working days; take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material;

(2) distribute a copy of the attached notice marked as:

"Appendix" to each employee in the bargaining unit, in the lan­guage of that employee if it is Portuguese, Spanish or Vietnamese, otherwise in English, in the same fashion as the bulletins issued by the employer between April 24 and May 6, 1994 concerning the activities of the union were distributed, whether by hand delivery, mail to employees' homes, or enclosure in a pay envelope; such dis­tribution is to be completed at least one week prior to the taking of the representation vote in this matter;

(3) permit the applicant access to its plant during working hours for the purpose of convening a meeting of up to one hour, at a time satisfac­tory to the applicant and in any event prior to the taking of the repre­sentation vote in this matter, to address employees with respect to unionization, out of the presence of any member of management; and,

(4) rescind the written warnings received by Quach and Toste in respect of union solicitation during working hours, and remove them from their employment records.

The Board shall remain seized to resolve any disputes arising out of the implementation of these orders.

69. Having regard to the findings in paragraph 4 above, a representation vote will be taken of the employees of the responding party in the bargaining unit. All those employed in the bargain­ing unit on August 31, 1994, who are so employed on the date the vote is taken, will be eligible to vote.

70. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the responding party.

71. A Labour Relations Officer is hereby appointed to confer with the parties with respect to the arrangements for the taking of the representation vote directed by the Board.

DECISION OF BOARD MEMBER P. V. GRASSO: August 31, 1994

1. I dissent with respect of the majority decision in ordering that a representation vote be taken of the employees in the bargaining unit.

2. I concur with the majority decision in finding that the employer has contravened sec­tions 65 and 67 of the Ontario Labour Relations Act.

3. Paragraphs 18 and 19 of this decision state:

4. We have concluded that portions of the first bulletin went beyond simple communication by the employer of its position and constitute violations of the Act. In particular, the repeated statement that the union organizers were "playing games" and the final suggestion that these games posed some threat to the job security of the employees would be likely to intimidate and/or threaten employees and thus violates section 65 of the Act. It seems clear as well that the bulletin was motivated in large part by the employer's desire to discredit and isolate the union organizers, in order to prevent employees from associating with them and, by implication, from signing cards, which constitutes interference within the meaning of section 65.

5. We have one further concern with the first bulletin which was not specifically identified by the union. By stating that any cards signed at that time would not help the union, presumably in reference to the first application for certification, the company may well have discouraged employees from signing cards which would have been relevant to the second application. As they knew at that time that a second campaign had begun, this statement was really a material misrepresentation, and certainly cannot be considered the expression of "views" within the meaning of section 65. As such, it too constitutes interference with the selection of a trade union and is a violation of the Act.

6. At paragraph 20, making reference to the second bulletin issued by the employer, the majority finds:

……The bulletin repeats the message of the first one that nothing the organizers and the union do now can "help the union" or "add anything" as the case is already before the Board. In these respects it can be seen as continuing and reinforcing the violations of the Act outlined above

5. At paragraph 22, making reference to the third bulletin issued by the employer the majority finds:

6. Like the first two bulletins, this one continues to target the organizers and accuse them of various misconduct, including, for the first time, an allegation that they were violating the Act. It also conveys directly the message that the company president does not want employees to sign union cards.

……Given our findings about the earlier bulletins, and our conclusions about the meeting between Marcus and the employees which would have "set the stage" for the statements in this bulletin, we also find aspects of this bulletin to violate the Act.

6. In paragraph 30 the majority have found that the employer contravened sections 65 and 67.

7. Again, the employer was found in contravention of the Act in paragraphs 62 and 63 of this decision which states:

8. In this case, the union asks us to find that the comments of Marcus to employees concerning his intention to improve communication with employees and to listen to their concerns, and most importantly his announcement of retroactive wage and benefit increases, constitute undue influence in the sense it was described in The Globe and Mail, supra. Having carefully examined the circumstances surrounding the announcement of these improvements, and in particular the previous pattern of providing such benefits, we are not convinced that the increase, in and of itself, constituted a violation of the Act. We are satisfied, however, that the manner in which the company chose to announce the increase did constitute undue influence upon the employees, within the meaning of section 65 of the Act.

9. As noted above, meetings of this sort, particularly with the owner himself, were extremely unusual, and had certainly not been standard procedure for informing employees of wage and benefit increases. Marcus began the meeting by speaking of the union's previous application to the Board, and expressing his pleasure at the defeat of that application. He went on to thank all employees who had not signed cards, and to say of those employees who had supported the union that he had nothing to say about them. These comments about the union were then fol­lowed immediately by the announcements about a new approach to dealing with employee con­cerns and both wage and benefit increases. We have concluded that by linking this conferring of benefits and solicitation of employees grievances with the earlier comments about the union and about union supporters, which carried the clear message that Marcus wanted employees to defeat the union and that he would be happy with those who assisted in this effort (and, con­versely, unhappy with those who did not), Marcus sent an implicit message to employees that his generosity was related to the company remaining non-union. The weight of this message was enhanced by Marcus' status as the owner, a person with whom most employees would have little contact, and was reinforced by the bulletins employees received both before and after the meet­ing, also from Marcus, making his views about unionization clear. In this particular context, then, the announcement of a wage and benefit increase and the comments about soliciting employee grievances, constituted violations of section 65 of the Act.

10. In view of the findings of contravention of the Act by my colleagues as above indicated, I find that the employer unlawfully interfered with the union organizing campaign, and in the cir­cumstances of this case the preconditions necessary to the issuing of a certificate pursuant to sec­tion 9.2 of the Act have established.

11. How many times does an employer have to be in contravention of the Act before sec­tion 9.2 is triggered? As noted by the majority, this employer has contravened the Act at least a half a dozen times.

12. Having unanimously found numerous contraventions of the Act by this employer, I would have found on the evidence before us, that the true wishes of the employees are not likely to be ascertained in a representation vote. I would have certified the applicant.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN OROER OF THE ONTARIO LASOUR RELATIONS BOARD, ISSUED AFTER A NEARING ARISING OUT OF THE EFFORTS OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA TO BECOME THE COLLECTIVE BARGAINING AGENT FOR OUR EMPLOYEES. THE ONTARIO LASOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY CERTAIN OF THE STATEMENTS CONTAINED IN BULLETINS DISTRIBUTED TO EMPLOYEES. CERTAIN STATEMENTS MADE BY ME AT A MEETING WITH EMPLOYEES OM MAY 3, 1994, AND BY CERTAIN STATEMENTS MADE TO MR. QUACH AND MR. TOSTE ABOUT SOLICITING FOR THE UNION. THE DETAILS OF THESE FINDINGS ARE SET OUT IN THE FULL DECISION OF THE BOARD IN BOARD FILES 0392-94-R / 0635-94-U.

THE BOARD HAS ALSO ORDERED THAT A REPRESENTATION VOTE OF EMPLOYEES BE HELD, TO DETERMINE WHETHER OR NOT EMPLOYEES WISH TO BE REPRESENTED BY THE UNITED BROTHERHOOD OP CARPENTERS AND JOINERS OF AMERICA IN THEIR EMPLOYMENT RELATIONS WITH CANAC. DETAILS OF THE REPRESENTATION VOTE WILL BE POSTED AS SOON AS THEY ARE PROVIDED BY THE BOARD.

THE BOARD HAS ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS.

TO ORGANIZE THEMSELVES;

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

TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY OR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING TO INTERFERE WITH THESE RIGHTS,

WE WILL DISTRIBUTE A COPY OF THIS NOTICE TO EACH EMPLOYEE IN THE BARGAINING UNIT. IN THE LANGUAGE OF THAT EMPLOYEE IF ST IS PORTUGUESE. SPANISH OR VIETNAMESE. OTHERWISE IN ENGLISH;

WE WILL PROVIDE THE UNION WITH ACCESS TO OUR PLANT DURING WORKING HOURS FOR THE PURPOSE OF CONVENING A MEETING OF UP TO ONE HOUR TO ADDRESS EMPLOYEES WITH RESPECT TO UNIONIZATION OUT OF THE PRESENCE OF ANY MEMBER OF MANAGEMENT;

HE WILL RESCIND WRITTEN WARNINGS THAT WERE ISSUED IN RESPECT OF UNION SOLICITATION DURING WORKING HOURS AND REMOVE THEM FROM OUR RECORDS;

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

CANAC KITCHENS LIMITED

PER: ___________________________________

KARL J. MARCUS

C.E.O.

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 31^st day of AUGUST, 1994.