United Food & Commercial Workers International Union, Local 175 v. Price Club St. Laurent Inc., 1994 CanLII 9872

United Food & Commercial Workers International Union, Local 175 v. Price Club St. Laurent Inc.

[1994] OLRB Rep. August 1029

1535-92-R; 1602-92-R; 1467-92-U; 1615-92-U; 2124-93-U United Food & Commercial Workers International Union, Local 175, Applicant v. Price Club St. Laurent Inc. c.o.b. as Price Club Westminster, Responding Party v. Group of Employees, Objectors; United Food & Commercial Workers International Union, LocaL 175, Applicant v. Price Club St. Laurent Inc. c.o.b. as Price Club Westminster, Responding Party

APPEARANCES: Douglas J. Wray, Vincent Gentile and Rick Wauhkonen for the applicant; E. L. Stringer, Gail Warnica and Michael Sharrard for the responding party; Mario Fiorino, Paul Davis and others for the objectors.

DECISON OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER W. A. CORRELL, August 8, 1994

1. These matters are two applications for certification (for a full-time and a part-time bargaining unit), including a request under what was section 8 (now section 9.2 in a somewhat different form) and related unfair labour practice complaints. The applicant union will be referred to below as the union or UFCW and the responding party as the company, the employer or Price Club. The alleged unfair labour practices include the discharge of a union supporter and a series of company communications to employees, as well as alleged violations of the freeze provisions of the Act. The company denies all the allegations.

2. A further complaint under section 91, file 2124-93-U was adjourned sine die on consent of the parties by Board decision dated January 20 1994, for a period not to exceed three months, and then requested to be relisted for hearing on April 18, 1994.

3. Issues relating to the bargaining unit and the level of membership support were dealt with by decisions of the Board (differently constituted) dated October 15, 1992 [now reported at [1992] OLRB Rep. Oct. 1098] and November 5, 1992. As a result of those decisions and the membership evidence submitted by the union, the union had just 55% membership support in the full-time unit. It is necessary to determine the issue of the discharge of Mr. Darnell in order to know if the union is in a position to be automatically certified in the full-time unit, because if his card is counted, UFCW would have the request level of support of more than 55%. In the part-time unit the union is in a position where the application would be dismissed, unless the application under section 8 is successful.

4. An application for interim relief was rejected by decision of the Board (also differently constituted) dated March 2, 1993, the reasons for which are now reported as Price Club Canada Inc.,[1993] OLRB Rep. July 635.

5. The matters before this panel which predate the Board's expedited scheduling system, required 27 days of hearing, over the course of a year, during which the Board heard evidence from 22 witnesses. Because of the number of allegations and the length of evidence and argument, only the most salient points are set out below, although all of it was carefully considered.

6. Several issues arose during the course of the hearing relating to the admissibility of notes taken by a union organizer of conversations with witnesses who gave evidence. The Board admitted the notes during the direct examination of the witnesses, over the objection of employer counsel, when they satisfied certain conditions: they had been used by the witness to refresh memory prior to giving evidence, they were made contemporaneously with the events to which they related, and they were verified by the witness as accurate at or close to the time they were made. When they were not used by the witness to refresh memory, but were tendered as evidence by the maker of the notes rather than the person who had made the statements recorded, they were not admitted. See the discussion in The Law of Evidence in Canada, Sopinka and Lederman, p. 850 and following. The Board declined to order the production of notes prepared by a business agent of interviews between counsel and witnesses, as they were prepared in contemplation of litigation. See Sopinka and Lederman, p. 653 and following.

Exclusion Order

7. An order excluding witnesses was in place throughout the hearing of the evidence in this matter. A number of issues arose about its implications for interviews between counsel and witnesses after the exclusion order was in effect and the evidence had commenced as well as the appropriate manner for one side to ascertain whether an exclusion order is being respected. During the hearing it became clear that a representative of the employer was accompanying union witnesses out into the Board's corridors in order to observe whether breaches of the exclusion order were taking place and the Board was asked for direction on this. A concern had been raised earlier that petitioners' witnesses were being observed closely by union representatives. We said the following orally:

In the exercise of our discretion to control our own procedure and to ensure that testifying at the Board is not perceived as an occasion for surveillance, the Board directs that neither side is to monitor the activities of the other side's witnesses. Further issues relating to the exclusion order can be raised with the Board and dealt with on cross-examination. As the parties are aware, any breaches of the exclusion order may have serious effects on the weight the Board gives to the witnesses evidence.

8. For useful discussion on the purpose and ambit of exclusion orders, see Volkswagen Canada Inc., [1991] OLRB Rep. Dec. 1423 at (1425); Dobberthien v. The Queen, 1974 CanLII 184 (SCC), 50 D.L.R. (3d) 305 (S.C.C.) and Regina v. 0'Callaghan, (1982) 35 O.R. (2d) (Ontario High Court). See also The Law of Evidence in Canada, Sopinka and Ledeman at pages 826 to 828. In this case none of the matters raised about the exclusion order, particularly an allegation (which was denied) about preparation of witnesses together, became material to our findings. However, the fact that issues arose on a number of occasions underlines the prudence of conduct which gives no cause for concern - either in the area of sharing evidence or in the area of conduct of one side to the witnesses of the other which can be perceived as surveillance. In another case, such matters could become important to the Board's determination of issues including credibility and whether the true wishes of employees were likely to be ascertained.

Background

9. Price Club operates a series of warehouses in Ontario and elsewhere which are open to those enrolled as members. The company markets a wide range of products to its members according to a scheme which includes selling in bulk, with a very plain shelf presentation, in order to offer attractively low prices. The events in issue here took place at the London, Ontario warehouse, which opened in November, 1990. There are approximately 100 full-time and 85 part-time employees affected by these applications.

10. The UFCW started a campaign to organize the employees in the London Price Club warehouse in April of 1992. The campaign lasted throughout the summer of that year, and applications for certification were made for the full- time unit on August 26, 1992 and for the part-time unit on September 4, 1992. The allegations before us date mainly from the period of the campaign, although there are a number from earlier dates, as well as several from the period during which these hearings were held.

Pre-Campaign Allegations

11. It is alleged that even prior to the campaign by the UFCW, in 1990, 1991 and 1992, managers were told by their superiors to report union supporters, and briefed on how to respond to unionization, as well as to get rid of three named union supporters. The evidence is that early on the company asked its managers to be aware of unionization and problems that might lead to it. As well, the evidence indicated two managers told an assistant manager to be wary of three individuals who were thought to be supportive of unions in general and to write them up if they did anything wrong. However, evidence that these individuals either quit or were terminated on the basis of inability to attend work was not disputed. Thus, we do not find that the evidence warrants a conclusion that the departures of the employees referred to was motivated or caused by anti-union animus.

Sunday Premium

12. On June 19, 1992, the company introduced a $2 premium for Sunday work. The union says this was a very generous premium meant to respond to the union's organizing campaign. The company says that this was prompted by the Province's change of law on Sunday opening and was arrived at after a review of the competition's premiums. This occurred before the freeze was in effect. It is clear that it is not illegal per se to offer premiums for Sunday work which becomes permissible for the first time during the union campaign. Although generous, we are not persuaded by the evidence that the premium is illustrative of anti-union animus.

Ken Darnell Discharge

13. Cards were signed by UFCW staff and employee organizers starting on April 8, 1992. Ken Darnell, whose discharge in August, 1992 is in issue, signed a card on June 9, 1992. He indicated to Rick Waukhonen, the UFCW organizer responsible for the campaign, that he preferred not to solicit signatures, but would talk to employees about the union as he found the opportunity. He referred at least one employee to a collector to sign a card. We are of the view that Mr. Darnell is to be viewed as a supporter of the union campaign, whose views were known to a number of employees to whom he spoke. However, he was not one of the high profile union supporters. There was evidence of conversations between Mr. Darnell and more high profile employee and ex-employee organizers, observed by managers, from which it can be inferred that some management members knew or believed that Mr. Darnell had discussed the union with known union organizers. The company in general appeared to be reasonably well informed as to the identity of vocal union supporters.

14. On August 10, 1992 video surveillance of the cigarette aisle in the London warehouse showed Mr. Darnell with his back to the shelf, removing cigarettes and placing them in his maintenance cart. When Bernie Martin, a loss prevention clerk, reviewed the tape, he concluded that the manner in which Mr. Darnell had removed the cigarettes indicated concealment, and brought this to the attention of Peter Dimichele, the warehouse manager. After consulting with his superior, Jean Third, Mr. Di Michele told Mr. Darnell he was fired on August 11, 1992.

15. The central issue as to Mr. Darnell's discharge is whether the company's action is free of anti-union motivation or not. The company's position is that it had clear evidence of theft, and a strong policy of discharging for theft, which were the only considerations it had in discharging Mr. Darnell. The union says that this is not credible, given the timing of the discharge in the middle of the union campaign, and Mr. Darnell's known support for the union. The union says that the company chose to discharge to make an example of Mr. Darnell, to slow down or stop the union campaign. In support of this, the union brought evidence relating to information the company had both before and after the discharge decision, which in the union's view indicates that no cigarettes were missing at all. In this regard, the Board heard extensive evidence about cigarette audits.

16. In the context of the Board's jurisprudence on the reverse onus, the union urges the Board to draw the conclusion that the Darnell discharge was motivated, at least in part, by anti-union animus, by inference from all the facts considered together. The union points to the position of the company which was clearly opposed to the formation of the union from its early awareness of the campaign. The union argues that all the evidence would suggest that the company knew of Darnell's pro-union views before the discharge. If the company's denial of this is not credible, the other reasons given for the discharge should not be believed. In light of the reverse onus, the complaint should then be allowed. The fact that the company did not discipline more high profile union supporters should not assist the company; it should not be in a better position for being more sub-tie, argues the union. The union asserts that the company, given the opportunity presented by the video, chose to discharge Darnell, an older worker, who had been vocal in support of the job security the union was offering, to send a message to the young people who make up the great majority of the bargaining unit, that their jobs were not secure. The union alleges that the discharge caused much unrest amongst the employees and a chilling effect on the campaign, and that this is a predictable result of such a discharge at a critical time in the organizing campaign.

17. The union argues that what happened to Darnell is consistent with the evidence of the company's approach to the question of unionization even before there was an active organizing drive. The company did not plan to discharge union supporters without a case against them; they planned instead to build a case against them. Darnell was discharged once the company had something "on him", the video, ambiguous though it was in the union's view. Then the company would not backtrack in the face of evidence to the contrary, because they wanted to make their point about their control over employees' jobs. The union notes that the company made its decision to discharge Darnell and had all the papers drawn up, met and told him he was fired, before they asked for any explanation. Also contributing to the union's view of the case is that fact that there was no attempt to search Darnell or his locker on the day the theft occurred, or at all. Nor does the union believe the company has adequately explained why no criminal charges were laid when it is the company's policy to do so in cases of theft.

18. Further, Darnell knew there were surveillance cameras operating, and had a reasonable explanation of what had happened; the company was not interested in the explanation, submits counsel. Union counsel observes that there is no dispute that if Darnell did what he said, put damaged cigarettes in the merchandise return area, that was a proper thing for him to do. In light of this, the union argues the company's approach lacks credibility; for instance, when Ken Darnell gave his explanation, there was no attempt by the company to go see if the cigarettes were where he said they were.

19. Fatal to the company's case, in the union's submission is the failure to call Peter Dimichele as a witness. Warehouse manager at the time, he was instrumental in firing Ken Darnell. The fact that he was fired shortly after Darnell should not assist the company, in the union's submission.

20. By contrast, the company argues that the company fired Darnell for one reason: the well-founded conviction that he had stolen cigarettes. The company's policy, consistent with the practice in the retail industry, to discharge for theft, was well known. The company's position is that it had solid video documentation of theft, and the company merely implemented its policy. Counsel stresses that Mr. Darnell was not a high profile supporter or organizer for the union and that none of the known union supporters were disciplined throughout the campaign. There is no credible evidence of a campaign of anti-union activity in general, says company counsel. And the timing is four months after the company became aware of the campaign.

21. Company counsel argued that it was not necessary to call Mr. Dimichele as a witness to discharge its onus of proof. To start with, says counsel, there was no allegation that he was anti-union. The union's evidence about Mr. Dimichele was from a key union employee, Joe DaFonseca, who said that Peter Dimichele had said that he did not care if the union came in as long as sales stayed high. Counsel says that it is not Peter Dimichele who collected the information leading to the discharge, but Bernie Martin who gave evidence of coming across it in the normal review of the surveillance videos. Counsel submits that the Board has seen everything that DiMichele saw on the video and there is not the slightest absence of relevant evidence from not hearing from Mr. Dimichele. The Board has heard from Jean Third, the decision maker, and from Bernie Martin, who discovered the theft, as well as having seen the video itself. Noting the union's evidence about Dimichele's neutral animus, counsel submits there is no room for an adverse inference from the failure to call a discharged manager where there is no evidence that he would have had to account for.

22. Ms. Third, then Manager of Operations for Ontario, gave evidence that she directed Peter Dimichele to fire Mr. Darnell, that it was her decision. This aspect of the evidence was not challenged. She testified that she had a conversation with Peter Dimichele in which she asked him to describe the video to her, and that he told her her what he had seen, and that an OPP officer had viewed the video and expressed the opinion that it was clearly theft. Dimichele asked if she would give authorization to terminate. She asked him if he felt confident that it was theft. He assured her he did, and she gave the authorization to terminate, since it was her experience that there had never been a case of theft in which Price Club did not terminate. She did not even know who Ken Darnell was at the time, let alone if he was a union supporter.

23. After the decision to terminate, Ms. Third saw the video. She also looked at cigarette audits which told her, among other things, that there were ten cartons of cigarettes missing since August 10, the day the video had shown Darnell taking cigarettes. She concluded that the video clearly showed concealment because of his having his back to the shelf of cigarettes, and the rapidity of his movements which were unlike any other of his movements on the tape. She later looked at other audits to try to check out a warehouse rumour that there were no cigarettes missing. The summary she received from the auditor showed a loss of over $20,000 in cigarettes for the month of August alone, and each of the five weekly audits leading up to the week of the discharge showed cigarettes missing. She also concluded that the fact that there were cigarettes in the merchandise return area did not shed light on whether Mr. Darnell had stolen, since there are always some cigarettes in that area. Bernie Martin heard the explanation given by Ken Darnell, that he had returned the cigarettes to the merchandise return area because they were torn, and wondered how he could tell a carton was torn with his back to the shelf.

24. Counsel for the company says that the reason Ken Darnell was not searched was that they were satisfied when they saw the video that it was a theft. As well, searching Darnell several hours after the theft, or the merchandise return area 24 hours later, when Darnell gave his explanation at the discharge interview, would not have added reliable information, submits counsel. The company's position is that they had no way to tell what kind of cigarettes were taken. In any event, there is evidence from Guy Riopelle, a loss prevention clerk, that a short time after Darnell says he took the cigarettes to the merchandise return area, there were none of the brand he says he put there in the merchandise return slot. There were just the ones Mr. Riopelle had put there himself the night before.

25. As well, the company argues that the fact that Darnell knew there was a camera does not help him when he also knew only one was recording at a time and his body was positioned in a way to hide what he was doing from the camera.

26. Both sides lead considerable evidence about the meaning of audits done on a regular basis and after the theft. Given the attention given this subject at the hearing, we have considered it in detail. However, we have determined that the evidence was not determinative on the question of the company's motivation for the termination, and thus does not warrant lengthy analysis here. Suffice it to say that, by the end of the week of Darnell's discharge, Jean Third was in possession of a number of pieces of information from cigarette counts. This included information that could be interpreted to mean that none of the brand Mr. Darnell says he took were missing, as well as information that suggested that large quantities of cigarettes were missing overall. As well, the company was of the view that the video was obscure as to what brand Mr. Darnell had removed, and that too much time had elapsed to make the information conclusive in any event, since cigarettes previously hidden could have been retrieved and returned to the merchandise return area. It is our conclusion from all the evidence that the audit information was honestly considered by Ms. Third to be insufficient to exonerate Mr. Darnell in light of the company's view of the video as clearly demonstrating stealth.

27. This aspect of the case is one that falls to be determined mainly on the facts, because the law in this area is well settled. The onus is on the company to establish on a balance of probabilities that the discharge was motivated for valid business reasons and not, even in part by anti-union motivation. See Barrie Examiner, [1975] OLRB Rep. Oct. 745 among many others.

28. It is important to be clear that the reason the Board looks at evidence of the facts at the company's disposal surrounding the decision to discharge is not to decide whether or not Mr. Darnell was stealing. Rather, it is to decide if the company's motivation in firing him was a bona fide belief in his having stolen. If the theory put forward by the company for the discharge does not stand up to scrutiny, the union's theory of the case - that it was not theft, but union activity which explains the discharge - would take on more weight.

29. We have concluded that the company has discharged its onus of proof on the Darnell termination. We found the account of the company witnesses convincing as to how the video evidence triggered the discharge, and that the after-acquired audit evidence was not considered sufficiently compelling to change the result. Although we do not discount the possibility that Mr. Dimichele and Bernie Martin knew Mr. Darnell was a union supporter, we do not find there to be any persuasive evidence that Ms. Third knew that when she made the decision to fire him. We do not think, even accepting that the company knew Darnell supported the union, that this would be enough to outweigh the objective evidence of the video tape, which we find was honestly interpreted as theft by Bernie Martin and Jean Third, the witnesses we heard from on the subject.

30. The standard of proof is the balance of probabilities. In light of that standard we have concluded that the failure to call Mr. Dimichele is not fatal to the company's case, although it is the most troubling aspect of the case on the Darnell discharge. However, there is little in the evidence to lead us to suspect that Dimichele was acting out of a desire to send a message about union activity, rather than employee theft. Although Richard Adams gave some evidence that would suggest that Mr. Dimichele had at one time expressed concern about employees who appeared pro-union, at a time when there was no organizing drive, there is more pertinent evidence from the relevant time period that supports a finding that Mr. Dimichele was not anti-union in his orientation. For instance, the account of Mr. Dafonseca, a vocal union supporter, to Mr. Waukhonen shortly after the Darnell discharge of a conversation with Mr. Dimichele indicates that Dimichele had explained that the company always discharges for theft, and that he was sympathetic to Mr. DaFonseca's concerns about equal treatment for union supporters and opponents. He is quoted by Mr. DaFonseca as saying that he did not care if the union came in as long as sales stayed up, not an anti-union remark. Although there remains the possibility that anti-union animus co-existed in Mr. Dimichele's mind with the legitimate business reason for the discharge, a belief based in objective evidence that Mr. Darnell was stealing, it is a possibility only. We find the evidence insufficient to raise that possibility to the level of a finding that the company has not discharged its onus of proof, given that we are persuaded that Ms. Third based her decision only on her honest conviction that Mr. Darnell was stealing.

31. For the above reasons, the complaint is dismissed in regards to the Darnell discharge.

The Petition

32. Because of the conclusion above about the Darnell discharge, his card will not be counted in the certification application. This means that the union has enough membership support for a vote, in the full-time unit, but not for automatic certification, unless the section 8 request is accepted. As the most that would be obtained if the Board found that the petition was a reliable voluntary expression of employee wishes is a vote, it is not necessary to determine the issues surrounding the petition. To the extent that the evidence heard about the petition is relevant to the issue of the section 8, we have considered it in coming to our conclusions below. However, we do not propose to deal with the lengthy evidence about the voluntariness of the petition as it is not necessary to do so.

Other Allegations

33. Generally, it is alleged that the company was engaged in a pervasive campaign to convince employees to reject the union, which is said to have included increased frequency of meetings with employees, extensive written material, various forms of inducement and breaches of the freeze provisions. The union alleges that in its various actions and communications, the company breached sections 3, 65, 67, 71, 81 and 82.

34. We will deal with these matters in two general headings: (i) written communications and (ii) other matters, including those falling generally into the categories of allegations of interference, inducement and breach of the freeze provisions.

i. Written Communications

35. Beginning in May, 1992, the company sent memos and letters to the employees, in response to becoming aware of the union campaign and various literature that the union was sending to the employees. The most recent written communications were sent during the hearing of these matters. We will summarize the disputed written communications and the parties' positions on them:

36. May 26, 1992: A one page letter from the company president, Pierre Mignault, invites employees to speak to their superior or company representative, should they have any questions or concerns. It indicates that the company does not believe in union bashing, but that employees should have the opportunity to come to a decision after considering all the facts. It includes the sentence, "While we believe that there is no need for a third party to intervene in our relationship with our employees, you should realize that the decision is yours to make and the company respects your right to do so." The union argues that this type of letter from the president is unprecedented and nothing like previous communications from the company about issues like the opening of a warehouse. The ones directed at the union campaign were attached to time cards or distributed with pay, rather than being left on tables in the cafeteria. Other letters were not just directed at one store's employees, appeared much less often, and were much more cursory.

37. May 29, 1992: Another letter from the president, four pages long, which indicates it is intended to help employees focus on the relevant facts and issues to weigh in making this important decision. It includes a section, "Let's look at the union sales pitch" which deals with the things the union is offering, says dues are $15 to 30 per month and expresses the view that if employees look at the issues and the company's track record of fairness and generosity, they will come to the conclusion that the union has nothing to offer for the money.

38. June 8, 1992: A memo from Peter Dimichele, the warehouse manager, announcing that management is setting up a question box for two weeks to give employees another avenue to ask questions, which could be anonymous. Jean Third testified that part of the reason for this was to give the company time to make sure the answers were in the bounds of the law.

39. June 9, 1992: Minutes of a meeting of part-time staff representatives which were posted in the workplace. They include questions and answers on issues such as when an employee who does not want to be part of a union will have to pay dues, how much dues are, and whether employees have the right to express their opinion. There is a question on whether it is possible to start a petition against the union, to which the company answers: As an employer we cannot give you advice. Only legal counsel that you seek yourself would be able to advise you.

40. August 7, 1992: A memo from Jean Third answering questions from the box set up in June and questions people had asked of managers. The union observes that this is the day after Joe DaFonseca told the personnel clerk that the union was in a certifiable position, and the day two supervisors were fired. One of the questions is whether Price Club can terminate someone for no reason. The answer assures employees that employees are only terminated for consistent refusal to comply with reasonable expectations, after having been informed of acceptable standards, except in the case of illegal conduct or repeated insubordination. The company deals with how it sets pay and benefits, in comparison to union and non-unionized workplaces, and that they are looking at the pension plan and Sunday pay premium. The memo states that Price Club does not believe its employees need a union and that unions see Price Club as a golden opportunity to generate much needed cash flow through union dues. The company says it truly believes the employees have nothing to gain from a union, because of its compensation, benefits and treatment of employees, including the open door policy. It offers the information that employees can write to the Labour Board, if they have changed their mind after signing a union card as unions usually won't give a card back. The memo states that the law limits what management can discuss, says that the union is allowed to visit employees but advises that individuals can tell them you do not wish to speak to them if that is how you feel. The memo says supervisors are going to be given training in September, details how the company's ratio of full-time employees compares favorably to the competition's, and invites employees to contact three senior managers with any additional concerns they may have.

The company argues that this is pure information, containing no encouragement about petitions, maintains no promises, and no inference employees should sign an anti-union petition.

The union argues that although this is not a letter saying that the company will close shop, no employee would have any doubt about the company's views: The union has nothing to offer and we'll review all the things that might be a problem without the union.

6. August 13, 1992: A one page memo from Jean Third communicating reassurance about job security after the three terminations in the past week (Darnell, and the two supervisors, Moody and Derbyshire). It states that the company cannot and will not terminate because of the union. It says that while the company thinks employees do not need a union, employees can make any decision they want without fear that this will lead to termination.

7. August 27, 1992: A two page notice from Gail Warnica, the Ontario Region Human Resources Manager, about the union's filing of its application for certification for the full-time unit. It includes statements to the effect that the union is not doing as well as they were saying, that employees should not be pressured into signing a card and that employees have the right to join or to oppose the union.

8. August 31, 1992: A memo from Jean Third in reaction to a letter from the union asking people not to sign an anti-union petition. It states that the law is that no one can pressure you regarding your decision to join or oppose a union. It invites employees to consider whether the union has done as well in regards to wage increases in other workplaces as at Price Club. It gives the company's view of the union's contract with a competitor, states that the union's promise of job security means lay-offs by seniority, and points out that Price Club has not laid anyone off. It asks employees if they think they will be better off for paying the union $300 a year.

Company counsel argues that this was in response to a union leaflet saying to make sure not to sign a petition, but that it says that no one can pressure you or interfere and is not a contravention of the Act. The union argues that the message was quite clear that the company was encouraging people to sign petitions against the union.

9. September 11, 1992: A memo from Jean Third indicating that the union had filed a certification application for the part-time unit on September 4, and giving the terminal date and noting their expectation that the part-time application would be heard together with the full-time one.

10. September 23, 1992: A letter from Jean Third noting that the union had filed a complaint alleging unlawful practices. It states that the company does not wish to debate the accusations in writing, but that it will be objecting strongly to the union's accusations at the Board. It says that it considers the union's unusual step of-sending a list of the allegations to all employees to be an indication of how desperate they are becoming to secure support from employees.

11. October 7, 1992: A letter from the company president, which constitutes a province wide response to a UFCW flyer on job security given to London and Vaughan warehouse employees. It states that even unionized employers have to take action when there is a sharp decline in a company's performance, but that this has not been the case at Price Club where over 1,000 new employees have been hired. It states the view that the growth of Price Club is employees' real job security and notes that even when the company was forced to close on Sundays it did not reduce the number of employees even though sales suffered. It mentions the company's open door policy for grievances and its written procedure of progressive discipline aimed at making sure employees are not released without just cause. It states the company's pride in the conditions of work it offers, and says that employees do not need to "stand up" to the company at the Labour Board to solve problems. It concludes with the line, "Do yourself a favour, consider whether you need a union here at Price Club."

The union says that the comment about standing up to the company at the Labour Board can only be an attempt to dissuade employees from testifying. The company maintains they just wanted not to have an adversarial relationship and were responding to union material which referred to the hearings of these applications as standing up to the employer at the labour board. Counsel points out that the letter also talks about hiring even without a union, a wage increase, and a personnel manager who will listen to their concerns.

12. October 19, 1992: A memo from Jean Third to London employees describing the Board's decision on the bargaining unit issues. It says that based on the count there will probably be a vote in the full-time unit and a dismissal in the part-time unit, although it notes that the hearings on the unfair labour practice complaints will have to occur first, and says the company will keep employees informed.

13. October 26, 1992" A letter from Pierre Mignault to all London employees, in response to the most recent UFCW communication. It states that the union likes to employer bash rather than give positive or relevant facts. It states that the union has told mostly a list of untruths and gives its view of the accurate facts concerning its rights to talk to employees about the union's organizing activity, its method of determining pay increases and protection from job loss among unionized employees. It concludes with the following paragraph: "As a sensible person working in the 90's you can and should decide for yourselves - but make sure that your decision is based on the relevant and truthful facts - and not on the union's name calling, employer bashing and long list of untruths."

14. November 4, 1992: A memo from Gail Warnica answering the union's flyer entitled, "Price Club Jumps the Gun Again", which took issue with the statements in Jean Third's October 19 memo. It states that the company was correct in the facts about the numbers that it is not engaging in illegal conduct by talking to employees, and that theft is just cause. Ms. Warnica writes that the company is trying to be honest and forthright about the process and invites employees to direct questions to managers.

15. November 25, 1992: A memo from Gail Warnica to London employees to answer union communications, which gives the company's position on the removal of last names from the schedules, the use of salary surveys and invites employees to make comparisons with collective agreements at the OLRB library.

16. March 22, 1993: A memo from Gail Warnica letter saying the Labour Board case is going very slowly and that the company has offered a secret ballot vote, and they do not understand why the union will not agree to that.

17. May 26, 1993: A memo from Pierre Mignault about the closing of a Price Club warehouse in Surrey, British Columbia on May 29, 1993 for financial reasons. There is a heading "Job Security" which says that the company expects that the UFCW will suggest to all our employees that it they had been present in the Surrey warehouse there would not have been a closing. The company says this is not so, and that there are unionized workplaces which have closed. "..when the union talks about job security, it really means that lay-offs will occur based upon the principles of seniority, not prevented altogether." The memo assures employees that Price Club is strong and healthy and continues to grow with new warehouses opening.

Then there is a heading "Harassment" which precedes the closing two paragraphs which read as follows:

In addition, we feel you should be aware of the tactics which the U.F.C.W. is using in Ontario in an attempt to gain support for their organizing campaign. On Thursday, May 20, 1993, several individuals wearing U.F.C.W. t-shirts and baseball caps formed a human chain at the membership exit from the Mississauga warehouse forcing our members to pass through the chain and receive a union pamphlet calling on them to support the U.F.C.W.'s organizing campaign. These actions were clearly illegal.

We have received a number of telephone calls from our members complaining about this harassment. The U.F.C.W.'s conduct in harassing our members is illegal and irresponsible and will not be tolerated. Remember, we have a shared commitment to meeting our members' needs and expectations. Let's continue this commitment and ensure that they continue to shop with us. Do you really need a union which is responsible for annoying our members and thus potentially preventing us from increasing sales and employment?

The company does not back away from calling the union's activity harassment and irresponsible conduct. The company submits union organizers were interfering with the shoppers; that is not what section 11(1) permits. The legality of the union's conduct is not, however, an issue before us, and no evidence was called which challenged the veracity of the assertions made therein.

36. Company counsel submits that all the company communications are well within the boundaries of employer free speech, guaranteed by section 65. It is argued that the tone of the company material is moderate compared to the material from the union, more voluminous than the employer's, to which it was responding. Company counsel describes the union material as strident and insulting, in its frequent use of epithets such as company stooge and showing pictures of a crude, fat boss. It is submitted that, particularly in context, the moderate company response cannot be considered supportive of any general anti-union animus or the union's section 8 application.

37. The company argues that even if there were a few errors, such as in the exact level of union dues, the union had ample opportunity to correct them, which it took in a number of its communications. The union argues that this could be said of any remark. One could say the employer could make the most outrageous threats, but the union could respond; this does not take into account the responsive nature of the employment relationship.

38. The union sees the written material as clear evidence of a protracted campaign to interfere with the organizing campaign by discrediting the union and offering promises to employees.

39. It characterizes the last of the memos, as posing the question, "Do you really need a union who is responsible for annoying our members?" This is not the model of restraint company counsel describes, says union counsel.

40. The company has a right of free speech, set out in section 65, which is circumscribed by the qualifiers also set out in that section, that it must not be exercised to interfere with the formation of a trade union or to an extent that amounts to coercion, intimidation, threats, promises or undue influence. The Board has indicated on a number of occasions that a mere expression of opposition to unionization will not breach the section, as employees generally expect their employer to have reservations about unionization. However, if the employer uses its authority unfairly to sway employees, for instance by promises, or threats to job security, the employer's conduct will be found to have crossed the line into undue influence. See among many others, Seven-Up/Pure Spring Ottawa, [1984] OLRB Rep. Jan. 87.

41. In interpreting the Act, one of the most difficult lines to draw is between permissible and impermissible influence. The Board has made clear that incidental effects of legitimate employer action which might be said to interfere with the union's activities will not be illegal, but activities aimed at impeding the exercise of free choice by the employees will be.

42. There is no doubt that the employer in this case engaged in a vigorous campaign aimed at convincing employees that they had nothing to gain from a union. The argument on behalf of the company was that this was entirely within the bounds of free speech as the content was factual and informative, rather than coercive. The union's argument in essence is that it is not necessary to threaten to close a business to be engaging in undue influence.

43. The responsive nature of the employment relationship is something that the Board takes into account, to the extent that subtle wording or sophisticated approaches which are nonetheless coercive or unduly influential will be found to be breaches of the Act. However, the section specifically provides the right to express views and it is very likely that the legislature contemplated that the opinions an employer might like to communicate would be the preference to do business without what some employers view as the encumbrance of a union. Price Club was regularly communicating its desire to operate without a union, often couched in language indicating that employees had nothing to gain from unionization.

44. Within itself, the Act acknowledges the competing interests of the parties. Although it promotes collective bargaining as a matter of public policy, it recognizes there will b dissenting views. In view of that, the Board has been cautious when confronted with employer communications which are in the nature of propaganda, but stop short of coercion or undue influence. In our view, the touchstone for doing the somewhat delicate line drawing exercise required by the Act must be the idea of what is likely to impair freedom of choice. It is that which section 3 is aimed at. The Act protects employees' rights to choose, by regulating the parties' conduct, but it does not indicate that the debate and disagreement which are the necessary foundation of democratic choice are to be curtailed.

45. The line between acceptable persuasion and improper wielding of the economic power employers have over their employees is sometimes a very fine one. The matter is further complicated by the variability of employee response. Employees often range from those who are likely to take the slightest indication of employer preference as a "must do", to those who will be reinforced in allegiance to the union by the very fact that the employer is vocal in its preference to not deal with the union. Employees also include those who are independently minded in regards to both parties or who have great difficulty in knowing their own mind. The Board has attempted to use as its index no extreme of employee response, focusing instead on the concept of the reasonable employee. The Board knows that employees are very concerned about their livelihood, and has been quick to censure anything which links unionization to threats of job loss.

46. The evidence of the employees who testified in this hearing made clear that Price Club employees, too, cover a broad spectrum of response. Despite the receipt of all the above written material, at least one employee testified to not knowing what the employer's position was, although they either started with very similar views which they expressed in very similar language, or had internalized it. Others clearly considered things they heard from the employer as something to be considered and checked out. Undoubtedly others thought the material was just employer talk, to be rebutted or ignored.

47. We have carefully considered the above communications separately and together. They can be characterized as a frequent, vigorous assertion of the employer's views. We have come to the conclusion that none of them individually goes over the line into undue influence.

48. The tone of the memo concerning the union's tactics on May 20, 1993 is of potential concern. However, in the absence of any evidence disputing the assertions made, we are not persuaded it amounts to interference or undue influence. The number and regularity of the communications gives an aspect to this case which raises the question of whether the cumulative content amounts to undue influence or improper inducement by the employer to avoid unionization. Although we are not without our concerns in this regard, we have concluded that, in the context of such a lengthy campaign and given the amount of material distributed by the other side, the quantity of the material does not move it into illegality.

ii. Other Allegations: Interference, Inducement and Breach of the Freeze Frequency of meetings

49. The union alleges that once the employer became aware of the union's organizing drive it increased the frequency of meetings with employees and started providing food and beverages at employee meetings. The company denies this, saying that it has always had meetings with employees and provided food, and that, in any event, it would have the right to increase meetings because of its right to free speech. We did not find the evidence generally supportive of this allegation. There was some evidence that Peter Dimichele had not been holding all the meetings he was supposed to, but it seemed to relate to meetings with the managers reporting to him, rather than with employees. The company has always had very frequent meetings with employees, and continued to do so during the campaign. There was no evidence to substantiate the allegation that food and drink had not been provided in the past. The content of the messages delivered at those meetings will be dealt with below.

The freeze vs. reduction to zero

50. It is alleged that in a number of meetings early in the campaign, Nancy Oldroyd, the Personnel Manager, told employees that if the union came in benefits would be set to zero. She denies this, and testified that what she said instead was that wages and benefits freeze and then are negotiated into a contract.

51. One of the most straightforward witnesses we heard from was employee Jeff Renaud. He said he asked Nancy Oldroyd what would happen if a union came in, and she said that they would have to have a certain percentage, and if they were successful, at that point the wages and benefits would be set to zero. He also heard this from another employee, who had mentioned Ms. Oldroyd as her source. Confused because he had heard something different from union sources, Renaud clarified the point with both the union organizer and his father, and was satisfied his wages and benefit would not be set to zero.

52. Other employee witnesses also indicated having heard from Ms. Oldroyd that benefits would be set to zero. However, Ms. Oldroyd gave uncontradicted evidence that on one occasion, she gave a specific example to an employee named Mary Harder that wages and benefits were not set to zero. The example was that if she had a prescription to claim under a benefit plan she could still claim it during the freeze.

53. Four months into the campaign, Ms. Oldroyd's clerk, Natalie Floro, still held the view that benefits went to zero, which she expressed to Joe DaFonseca, a union supporter, on August 6. He corrected her on this point.

54. Other evidence indicates that on September 25, after the two certification applications had been filed, the receiving manager, Mike Harvey spoke at an employee meeting and said that because of the union, employees had zero benefits and mentioned changing hours of work. Carmen Gill, a union supporter, was angered by this remark, and responded that if employees had zero benefits it was not because of the union but because of the company.

55. We have concluded that it is likely that Ms. Oldroyd and Mr. Harvey, as well as non managerial employees, did at least on some occasions say words that were understood as that benefits would go to zero. It is also possible that employees misunderstood Ms. Oldroyd, and that their misunderstanding came from her point that terms and conditions of employment had to be negotiated with the union, working from ground zero, so to speak, in terms of a collective agreement. Confusion about the meaning of the freeze provisions is not hard to come by, even among lawyers.

56. However, we are of the view that we have insufficient basis to discount the evidence of witnesses such as Mr. Renaud, who gave evidence in a more forthright manner than Ms. Oldroyd. Although company counsel strenuously attacked the credibility of Ms. Gill, in the face of no evidence to the contrary, we accept her evidence about Mr. Harvey's statements as well. Ms. Floro acknowledged saying she believed benefits went to zero.

57. The question relevant to this decision is whether these statements were the result of management's delivery of misinformation in order to interfere with the union's campaign. We have concluded that a violation is not made out on these particular facts. We have no indication that Ms. Oldroyd, Mr. Harvey or Ms. Floro intended to misinform or interfere with the campaigning. And we have concluded that on balance this incorrect information did not likely interfere to any great extent with the union's campaign. The above people were not the only source of information on this, as some employees had heard of the freeze from friends, family, or the union's organizers and written material. As well, employees did not lose any benefits during the campaign, or afterwards, something that should have spoken clearly. As well, it is clear that employees such as DaFonseca corrected this idea when it was expressed.

The company's position that employees do not need a union

58. The evidence is clear that managers including Ms. Third and Ms. Oldroyd regularly communicated orally the idea that management did not think employees needed a union because of the company's open door policy, a position also communicated in the memos and letters to employees distributed throughout the campaign. Ms. Oldroyd seems to have taken every opportunity she found in conversation with employees to make her points in this regard. Nonetheless, we find what she said to be within the bounds of employer free speech, as discussed above.

First names only

59. During the organizing campaign, the company stopped using employee last names in a warehouse newsletter, on work schedules and on time cards. The company says that employees were accusing the company of giving names and addresses to the union. Company counsel argues that there is no requirement for the company to assist the union by listing last names, and that there was nothing wrong with taking last names off. It is argued the company was trying to protect employees' confidentiality and action was taken on a province-wide basis.

60. The union argues that Jean Third admitted that part of the reason for using first names only was to not make it easy for the union, an acknowledgement that it was intending to hinder the union effort. Union counsel says there is no evidence to support the company's assertion that it was because of London employee requests about confidentiality that they did this.

61. It is clear on the evidence that management was partially motivated by a desire to make things more difficult for the union, which in our view amounts to an action taken with an intent to interfere in breach of section 65. While the evidence indicates there were some employee complaints, there were other ways to counter the suggestion that the company was giving the union names, and the timing indicates the campaign was the reason for the change. Although it may not have had a major impact on the campaign, we are not persuaded it was without its effect.

Solicitation for the union on company property

62. It is alleged that in August 1992, a loss prevention clerk and two managers interfered with the union organizing campaign by telling Winnie Campbell that soliciting was not allowed on company property.

63. The various accounts of this incident were quite consistent with each other. Mr. Martin, the loss prevention clerk, during a routine perimeter check of the property, saw Winnie Campbell who was on scheduled vacation, in his car with another employee. Mr. Martin went over and said, "Just checking on you guys", and noticed that there was union literature in the car. He reported this, apparently immediately, to his superior, Joseph Campbell, Mr. Martin said his understanding was that there was to be no soliciting of any kind on company property. Although he had never been told to report soliciting to management, he felt he should report this because it was against the company policy. Mr. Martin was later himself engaged in asking people on the property to sign a petition opposing the certification of the union; he says the difference is that he had no pamphlets at the time, while Winnie Campbell had pamphlets in the car.

64. When Mr. Martin's supervisor received his report, he and Winnie Campbell's supervisor, Nancy Dewar, went out into the parking lot. Ms. Dewar said something to Winnie Campbell to the effect that she had heard he was selling something on company property. Joseph Campbell said, "Yeah, union stuff," to which Nancy Dewar retorted, "maybe not union stuff, but other stuff', and she did not want him selling or soliciting anything on the property.

65. There was no evidence of any behaviour on the part of Winnie Campbell or the other employee in the car, other than the presence of the union pamphlets, which caused this intervention by supervision. Joseph Campbell, if not Nancy Dewar, was clearly motivated by a concern that they were soliciting for the union when he approached the car, as was Bernie Martin when he reported it. Nor is there any indication that there was any rule against employees being on company property when on vacation, or off duty. There was evidence to the contrary, indicating employees are allowed to shop at the warehouse, and that employees came into discuss the union with management on their days off.

66. The company argues there was no breach here; Winnie Campbell was not disciplined. He was merely spoken to in a situation where he had no right to be there, since this occurred prior to Bill 40's becoming law in January, 1993.

67. The union argues this should be viewed in the context of the fact that he was on vacation and in the parking lot, rather than at work or in the warehouse.

68. An incident with Joe DaFonseca in February, 1993 is related in theme. It is alleged that Joe DaFonseca was told by the new warehouse manager that he was not allowed to talk about the union on company property. Ferland says he only said that one could not talk about the union during working hours.

69. It appears that some managers and employees thought there was a rule that would prohibit organizing for the union on company property, even on non-work time. But this was not universal. Nancy Dewar's remark to Winnie Campbell that maybe he wasn't selling union stuff, seemed to indicate that she thought she should not be relying on "union stuff' to caution Winnie Campbell. Nancy Oldroyd, the Personnel Manager, repeatedly told employees that they were free to vocalize their views for and against the union, and gave no direction that it was to be off company property. And it is clear that employees were regularly discussing the union, for and against, throughout the warehouse and grounds. We see no magic in Winnie Campbell's possession of pamphlets. It would be, in our view, solicitation with or without pamphlets, as was Bernie Martin's activity concerning the anti-union petition. The evidence leads us to conclude that a lot of solicitation for and against the union went on on company property, with the knowledge of management, without sanction. Despite this general situation, employees stationed by the roadway into the parking lot soliciting signatures for the petition against the union were told by the security guard to make sure they were off the property. And there was evidence of managers intervening to prevent or break up discussions of union matters on work time.

70. Section 72 of the Act, which existed prior to Bill 40, provides as follows:

72. Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refrain from becoming or continuing to be a member of a trade union.

Part of the Bill 40 amendments, which came into effect in January, 1993 was section 11.1(2) which provides as follows:

11.1-(2) Employees and persons acting on behalf of a trade union have the right to be present on premises described in subsection (1) for the purpose of attempting to persuade employees to join a trade union. Attempts to persuade the employees may be made only at or near but outside the entrances and exits to the employees' workplace.

71. Long before Bill 40, the Board dealt with no-solicitation rules in the manner set out in The Adams Mine, Cliffs of Canada Ltd.,[1982] OLRB Rep. Dec. 1767. Section 72 does not authorize nor does it prohibit soliciting during working hours. An employer who enforces a no-solicitation rule that has the effect of preventing employees from soliciting on behalf of the union will be found to have improperly interfered with the union drive, unless it can show that it was doing so to preserve property, prevent serious disturbance, or to ensure productivity or safety. See also Sobeys Inc., [1993] OLRB Rep. July 675.

72. We are of the view that although Winnie Campbell was not formally disciplined, he was warned against soliciting for the union on company property. Joseph Campbell and Bernie Martin were, on the evidence, enforcing what they believed to be a rule against such solicitation on company property. There was no indication that there was anything even remotely disruptive about what the two employees were doing in the car. We are of the view that there was no regular application of the company's no solicitation rule to conversations about the union, for or against. However the incident with Winnie Campbell was an exception, which we find was a breach of section 65. We are not of the view that the fact that section 11.1(2) was not yet law means that Winnie Campbell had no right to be on the property on his vacation when it is clear that other employees were regularly allowed on the property when they were off duty for a wide variety of purposes.

73. Whether Andre Ferland was similarly warning Mr. DaFonesca is less clear. We found both Mr. Ferland and Mr. DaFonseca to be straightforward on the stand, and it is difficult to tell which of them is mistaken in his recollection, although one of them must be. On balance, we have concluded that it is unnecessary to resolve the conflict in their evidence, as it would not add in remedy to the consequences of what we have found to be a breach in the situation with Mr. Campbell above.

Terminations of 2 supervisors

74. Natalie Floro is the clerk in Personnel, excluded from the bargaining unit as in a position confidential as to labour relations. She was on friendly terms with Joe DaFonseca, a vocal union supporter. In the same conversation referred to above which included references to benefits going to zero, Ms. Floro admits questioning him about who signed for the union. Mr. DaFonseca told her that was confidential and did not give her the information, but told her that the union was close to having sufficient numbers to get in. Mr. DaFonseca also told her during this conversation that he was fed up with his front end supervisors, Derbyshire and Moody.

75. The following morning, August 7, 1992, Ms. Floro passed on Mr. DaFonseca's comments to her manager, Nancy Oldroyd, the personnel manager. She in turn told the warehouse manager, Peter Dimichele about this on August 7. Later the same day, Ms. Oldroyd heard from Ms. Third that the two supervisors about whom DaFonseca had complained were being terminated. Ms. Oldroyd in turn let Ms. Floro know this late on the 7th when she called her at home to let her know what to expect for the following day as she was not going to be in. Ms. Floro saw Mr. DaFonseca at a baseball game that evening as well, and according to her testimony, in a generalized attempt to cheer up Mr. DaFonseca, encouraged him to go to work tomorrow and be happy. She testified that it was before she heard from Ms. Oldroyd that the two were going to be terminated that she made this remark to Mr. DaFonseca. Mr. DaFonseca says the comment was much more specific, that Ms. Floro told him that something would happen at work to make him happy, at that then he could come see her. When he went to work the following day, he learned of the termination of the two supervisors of whom he had complained, and concluded that Ms. Floro had been telling him this would happen when she made the remark at the ball game. In our view, in the final analysis, little turns on whether Ms. Floro knew before or after her remark to Mr. DaFonseca. It was acknowledged that the information about Mr. DaFonseca's complaints reached the ears of the managers who fired Ms. Derbyshire and Moody. It is the use of that information which is the more important issue for this case.

76. Jean Third testified about the terminations, which were her decision at Peter diMichele's request. She acknowledged that complaints about favouritism, which included comments to the effect that these supervisors were harder on union supporters, were part of the reason they were terminated, but explained that they had already been on probation for a number of months. She said there had been no discussion in management about weakening support for the union by terminating these people. The evidence is unclear as to whether she had heard Mr. DaFonseca's comments about the union being close. The timing of these terminations the day after Mr. DaFonseca's complaint was not specifically explained although Ms. Third said their unsatisfactory performance was a subject of discussion throughout the summer.

77. The company argues that the statements of Ms. Floro, a clerk with no managerial authority, cannot support a section 8, that this is one rank and file employee chatting to another. The company did not ask the questions about union support, and they should not be held against the company, in counsel's submission. By contrast, the union argues that not only is Ms. Floro in a confidential capacity; she lives with a supervisor. As to the terminations of Derbyshire and Moody, company counsel argues that they cannot be contraventions of the Act because they were not exercising rights under the Act, as they were not employees under the Act. The union argues that this is part of the company's solicitation of complaints and fixing them in a manner the Board found to be illegal in Globe & Mail, [19821 OLRB Rep. Feb. 189. They underline that these were the first two of what was to become four terminations in a little over two weeks.

78. Usually it is discharges of union supporters which are pleaded to be breaches of the Act. The unusual circumstance of this aspect of the case is the allegation that a termination of managers was used as an inducement to employees to stop supporting the union because it demonstrated the employer's willingness to solve problems without the intervention of a third party. We will deal with this issue together with the other allegations about Ms. Third's August interventions below.

Price Club has its own rules

79. It is also alleged that on August 11, Nancy Dewars, a supervisor, during a regular meeting with the employees in her department, made reference to the union and said Price Club has its own set of rules. Having heard the various accounts of this incident, we are convinced that it was not a contravention of the Act. When an employee said words to the effect that, "If the union comes in, nothing that Price Club has given you can be taken away", she responded, "Oh, I don't know about that," and that Price Club had its own rules. The employees had raised issues about the union; it is clear that she was attempting to be non-committal.

August 14 meeting with Jean Third

80. On August 14, 1992, Vince Gentile, a union representative, advised Ms. Third that an unfair labour practice complaint was going to be filed dealing with the Darnell discharge. That same day, she held a meeting with six employees, which the union alleges was for the purpose of soliciting problems from known union supporters to convince them they could be dealt with without a union. Ms. Third said that she had not chosen the people to attend, but earlier in the week had asked her managers to send people who would speak their minds. This resulted in over half the employees in attendance being known union supporters. As to the allegation that the purpose of the meeting was to demonstrate that the employees did not need a union to solve problems, she said that all the meetings are for the purpose of showing the employees that the issues they raise will be solved and quickly.

81. In the course of the meeting it is clear that the Darnell discharge was raised by employees, and that Ms. Third said she would look into the rumour that no cigarettes were missing. Employees spoke their mind about various supervisors, and she may have told them the company was planning training for them. She says she may have said that Price Club did not believe that the employees needed a union. However, in general she tried to avoid discussing the union, so as not to say anything that would be misconstrued.

82. The union argues that what is unusual about this meeting is that it is the first meeting Jean Third had at the London store by herself with employees. Secondly, the selection of people to attend was unusual. There are regular meetings with other managers, but not with Third, and the evidence is that employees attended on a rotational basis. Here certain employees were directed to attend. Normally the warehouse director would have been present but this time he was not.

83. The union sees this meeting in the context of Jean Third, a senior manager, coming in to "clean things up" at a critical time in the union campaign. James Paddison testified that things were better in the warehouse after this, that problems were solved, and the campaign slowed down. He clearly saw the meeting as an attempt to demonstrate to employees, in particular union supporters, that problems could be solved without a union.

84. The company says that, given the evidence that the company knew about the campaign in April, this meeting has to be seen in the context of 4 1/2 months of no clean up. Ms. Third was always in the London warehouse on a weekly basis, and had sat in on meetings with employees before. This was also the last day the warehouse manager worked; he went on vacation the following week, during which Jean Third managed the warehouse. He was fired upon his return from vacation on August 24, and Ms. Third acted as warehouse manager until his replacement arrived in the early fall. On August 28, the application for certification in the full-time unit was filed.

85. We are not persuaded that the holding of the meeting itself should be considered an inducement to the employees to abandon the union. The only unusual aspect of the structure of the meeting is that the warehouse manager was not present. In the context that she was about to become the acting warehouse manager this is less remarkable. However, it is clear that by this time Ms. Third had concluded that the London warehouse necessitated attention and action. She had in less than two weeks been asked to authorize three terminations, one for theft and two for problems which included complaints of favouritism to anti-union employees. She had on August 7, the same day she authorized the terminations of Derbyshire and Moody, issued an extensive question and answer memo dealing with union and job security issues. She issued another memo dealing with job security on August 13 shortly after Darnell's termination. The August 14 meeting which had been planned early in the week after the Derbyshire and Moody terminations, followed the termination of Darnell by only a few days. We have found that the Darnell termination was not illegal. The Derbyshire and Moody discharges, although not of bargaining unit employee, became part of the general turmoil in the warehouse which was also being fed by the division among the employees over the union campaign. The question to be decided is whether the company's response to the problems in the warehouse was motivated by its expressed preference to remain union-free, and if so, whether it exceeded the bounds of section 65 in doing so. The company's response also included in the union's submissions, the discharge of the warehouse manager and the promulgation of a new discipline policy, which it is appropriate to address as part of this sequence.

Dimichele's Termination

86. Jean Third testified about her decision to fire the warehouse manager Peter Dimichele on August 24, 1992. Problems with his performance had been identified a year earlier, when she started in her position as Ontario Operations Manager. His difficulties included how he managed managers, his style being too autocratic. Ms. Third had a serious meeting with him in August, 1991, at which point he said he would try to improve, but Ms. Third concluded he did not totally agree there was a problem. His pay raise did not go through in January because of a tough evaluation, an unprecedented move. Then there was a two to three month review date, at which point he had shown some improvement and Ms. Third put his salary increase through. Then in late spring and summer, she found out Mr. Dimichele was not necessarily holding meetings he said he was, or should have been such as meeting one on one meetings with his own managers. It had also taken him too long to hire an assistant manager. Because no assistant manager had been hired yet, she decided to spend time at the warehouse while he was on holidays the week of August 16 to 21, 1992. She found out that policies had not been followed, and important supplies had not been bought to cut costs. Senior management decided this was a deterioration in performance that warranted dismissal. Ms. Third resisted the suggestion that on the last day of Mr. Dimichele's work she met with union supporters to try to convince them that real change can happen without a union, and then fired him to show that she meant it. For instance, she testified that those employees did not have complaints about Mr. Dimichele. The union pleaded to the effect that he was fired because he was not anti-union enough for the corporation.

87. Essentially the Board's task is to determine if the employer's actions throughout the campaign, and concentrated in the three weeks preceding the union's application for certification in the full-time unit, were motivated by a desire to interfere with the union campaign. The problem from an analytical perspective of course, is that everything a corporation does in its own interest during an organizing campaign can be seen as interference with the union campaign. Any exercise of managerial prerogative is a demonstration of an employer's power over the economic lives of its employees. Use of employer power is also consistent with a message that that very power can be used against individuals acting in a manner not considered to be in the best interests of the employer. In most cases of this kind which come before the Board, and this one is no exception, employers do not see unionization as in their interest. Employees seldom miss that fact, and it is clear that Price Club employees were no less able than any others to get the point. The problem of sorting out motivation of events that are consistent both with the employer's interest as it would exist at any time and with its expressed desire to remain union free during a campaign is uniquely well framed in this case by the range of allegations about the three managerial discharges. It is alleged to have been illegal to fire managers perceived to be acting in an anti-union manner (Derbyshire and Moody) and the one who was allegedly "soft" on unions (Dimichele). And the facts of this case would be complex even without the somewhat unusual element of an allegation that firing managers is anti-union. That is because the company had in place, long before the union campaign, a system of regular meetings for the express purpose of soliciting and resolving employee complaints and grievances. In this respect this case is quite unlike Globe & Mail, cited above~ where the Board found that unprecedented solicitation of employee grievances together with a "blank cheque" response to fixing them during a union campaign violated what is now section 65 of the Act. However there is a similarity to Globe & Mail in that the fact that although all three managers were on probation, the decisive action did not happen until the union campaign had gained momentum and was seen as having potential for success. In Globe & Mail, problems had been identified before the campaign, but little had been done to correct them.

88. The company says the timing here is not suspicious; the campaign was into its fifth month when these decisions were taken. The union points to Mr. DaFonseca's August 6 communication to Ms. Floro that the union was "close" as an indicator that the employer's actions were surely aimed at the union, as well as what was likely a chronic managerial problem at the warehouse.

89. The timing of the Derbyshire and Moody terminations immediately after Mr. DaFonseca's complaints were relayed to senior management warrants the inference that this complaint was the last straw. However, the fact that the operative part of the problem with these managers was a preference for anti-union employees cuts in both directions on the question of motivation. And we do not believe it cuts equally. We find that it is somewhat more probative of an attempt to remain even-handed in its treatment of the factions for and against the union than it is of an attempt to thwart the union campaign. In saying this we have considered carefully Ms. Third's level of sophistication. Her approach was nuanced and we are acutely aware of the potential of a fist inside the velvet glove, a problem explored at length in Globe & Mail. Having weighed all the factors including her straightforward demeanour in giving evidence, we have come to the conclusion that her motivation was within the bounds of the law.

90. On the question of the discharge of Dimichele, the timing is also ambiguous. The reason Ms. Third found herself in the London warehouse during Dimichele's vacation was one of the reasons she found his performance inadequate: he had not gotten around to hiring an Assistant Manager who could have replaced him. There was no allegation that the timing of the vacation was suspicious. Once installed for the week, it appears Ms. Third concluded that Mr. Dimichele was beyond rehabilitation. This view of the timing is not a cause for concern.

91. The alternate view is of concern. That is that Ms. Third was "cleaning house" in a rather dramatic way as part of a pervasive campaign to undermine the union campaign. On this view of the facts, the minute she heard that the union had enough support to be "close" she reactivated the company's campaign which had already included numerous memos aimed at the union. (There was no evidence of any public employer response between putting out the question and answer box in early June, and the publication of its response to those questions the day of the terminations of Derbyshire and Moody).

92. Although the union pleaded that Dimichele's comments to Mr. DaFonseca that he did not care if the union came in as long as sales stayed up explains his discharge, the evidence is not persuasive that that comment figured in Ms. Third's decision to fire Dimichele. There was no evidence she had heard that remark. But even if she had, or she thought Dimichele was not anti-union, there was no evidence to contradict her reasons for firing Dimichele.

93. Turning to the reasons given, we have concluded that Ms. Third found the London warehouse to have problems which Mr. Dimichele had failed to solve. That she thought the union campaign was one of many symptoms of that is likely, although there is no direct evidence of that. Ms. Third's view of Mr. Dimichele's inadequate performance predated the union's campaign, and we have no reason to doubt its sincerity. The only issue for decision here is whether the firing was an act of interference in the union's organizing drive. The timing lends force to that argument. However, timing is not all. The evidence does not persuade us that Dimichele's termination would have been associated with the union in the employee's minds. Even those who testified that they felt Ms. Third's August 14 meeting was an attempt to solve problems without the union did not link the warehouse managers to the same lime of thinking. The line of reasoning by which the Dimichele discharge would become illegal if it can be considered a promise or illegal interference under section 65. This is not a case like AAS Telecommunications, [1976] OLRB Rep. Dec. 751 or Royal Shirt, [1993] OLRB Rep. Nov. 1177 where managers were associated in employees' minds with the union and thus their discharges carried a strong anti-union message.

New disciplinary policy

94. It is alleged that during the campaign, employees were told disciplinary records would be cleared and a new system introduced. Company witnesses gave the context for this: starting in November, 1991, managers were engaged in a process aimed at achieving consistency throughout the province on the specifics of the discipline policy. A draft of revisions to the policy was developed by May, 1992, and further revisions were done in June and July, which became effective August 19, 1992.

95. As to the allegation that employees were told that their discipline records would be cleared, Ms. Oldroyd testified that there was discussion among the London managers that when the new policy came into effect~ managers were to review discipline records to see if they were in conformity with the new policy. As a result of this, revisions to three files were made to change references to verbal warnings to the new terminology of corrective consultation. She says they also told managers they could tell employees they could view their personnel files, although a substantial majority of employees had nothing on their records in any event.

96. The August, 1992 version includes much more detail than its predecessor, the March, 1992 version. It appears aimed at managers, as it contains information on how to conduct corrective consultations, a term that was also used in earlier policies. A suspension step is added, a twelve month limit for verbal and written warnings that was in an earlier version is not mentioned, and examples of what infractions should attract what penalty are given. The basic structure, that of a progressive discipline policy, is unchanged. The March, 1992 version of the discipline policy had a paragraph on sexual harassment policy and a time limit for warnings which were not present in the one dated March, 1991.

97. Several employees gave evidence about what they recalled being told about this issue. Their recollections varied, as did their managers. Weighing the various accounts, it seems clear that a number of employees were told that discipline records would be cleared under the new system, but there were qualifications, such as that people with repeated warnings would not be affected. Others were merely told there was to be a new system, or that new terms would be used for warnings.

98. The company argued that even if managers said that the records were going to be cleared and that is found to be illegal, it was so long ago, it would have no impact on a vote. By contrast, the union argues that the discipline policy was put out at a critical time in the campaign, after three firings and the meeting with Jean Third and shortly before the firing of Peter Dimichele. It is our view that the timing of the release of the revised discipline policy is likely related to Ms. Third's attempts to reassure people after the August firings, attempts which had included two earlier memos underlining that Price Club only terminated for cause and usually after a discipline process, with opportunities for employees to correct their behaviour. The issue is whether the timing of the release, together with statements to employees that their records would be wiped clean was an inducement. At least one of the managers' remarks was just shortly before the deadline for the petition opposing the union. It is argued that the promise was for the purpose of getting people to sign the petition.

99. On balance, the evidence is not persuasive that the release of the policy in the midst of the campaign where it had been amended before as recently as March~ was not at least partially intended as a promise that there would be a fair discipline policy even without the union. The issue of consistency of discipline was a live one during the campaign and it seems clear the company's interest in promising a new system was aimed partially at interfering with the campaign. Thus we find that the promulgation of the policy and the offer to wipe records clean was in breach of section 65.

Remarks by Kirk Mair

100. On August 26 a supervisor named Kirk Mair is alleged to have told employees that if they were approached by the union they should say that it's company time, as well as to have asked employees why anyone would want to pay a union $325 a year for nothing. Mair did not deny making a remark to that effect but said it was prompted by an employee, who did not give evidence, saying that he was having trouble working because people were interrupting him to talk about the union. The subject of the union came up because of this and another employee expressed concerns about not feeling he could go to his supervisor with his problems. Mair emphasized the company's open door policy, and expressed the view that it was better than waiting months for a union grievance procedure to come to a conclusion.

101. Although employee witnesses versions differed somewhat, it was not in a manner which changes the thrust of the remarks. This is a situation in which a manager made remarks which clearly indicate his opposition to unions. However, there was no linkage to threats to job security, as in Sobeys Inc. [1992] OLRB Rep. Sept. 1020, and we are persuaded that these remarks fall within the ambit of employer free speech.

Allegations about change of hours

102. Coincident with the union campaign, there was an issue in the merchandising department about the hours of work and whether they could be changed. Employees were divided on the issue and there was much discussion about it. It is alleged that when one of the employees spoke to Jean Third about this issue, on September 4, she said the union had put a freeze on company policies, wage increases and schedules of work and that the company was not allowed to change hours of work. This is complained of in the context that a few weeks earlier she had not seen a problem with changing the merchandising start time from 4:30 to 6:00 a.m. Ms. Third testified that what she would have said about the freeze was that conditions of work, and salaries outside of what we normally do, was what was covered by freeze. She said she never contacted the union about hours of work because she never took the decision to change hours. We find this unobjectionable under the Act.

A newspaper article

103. On September 3, a newspaper article concerning wage cuts agreed to by UFCW at a company known as Trillium Meats was posted on the employee bulletin board, by someone in management. Company counsel refers to a newspaper article distributed by the union saying that it got a good contract at A & P. There is nothing wrong with that, but why then should it be illegal for the company to put up a newspaper article about a not-so-good contract, queries counsel. The union sees this as part of the company's ongoing anti-union campaign.

104. We are of the view that posting the article did not go beyond the company's right to express views set out in section 65.

The Roadshow

105. On October 1,1992, there was a meeting of employees with senior staff of the company, referred to by various witnesses as the "Roadshow". It is alleged that employees were told that management people were losing a lot of sleep over the union, that the company was looking at a 5% wage increase for November 1, and that various ergonomic improvements would be made in the cashiers' work area. As well, it is said that the managers said that Price Club was very generous to its employees, was hiring full-time employees while certain competitors employed mostly part-time people, that Price Club planned to expand, and that Pierre Mignault, the Canadian president, would answer questions about the union after the meeting. Various witnesses remember the meeting slightly differently. Having weighed all the evidence, we have concluded that something quite close to what is alleged was said. We also note tht Jean Third's evidence that roadshows are held about twice a year was not contradicted. Nor was there any evidence that the type of topics addressed - company values, planned improvements, and upcoming wage reviews - were out of the ordinary. We have concluded that this meeting cannot be considered something designed specifically to deal with the union campaign, although it is clear that the campaign found itself on the agenda. Ms. Third testified that no one gave the figure 5% as a contemplated increase; rather she believed it had been a reference to a 5% increase given the two previous years. Her evidence, which we accept, indicates that the company did not make any specific promises, but gave a review and update on what had been occurring elsewhere in the Price Club organization, including expansion plans.

106. The union argues that all through the campaign the company told employees that their wages are frozen, and gave no indication they would get a regular wage increase until the roadshow.

107. The aspect of this meeting which aimed at improving employee morale and identification with the company's goals is unobjectionable. The issue to be decided is whether the reference to the stress engendered by the union campaign, the invitation to ask the company president questions about the union at the end of the meeting and/or the references to planned improvements in wages and working conditions are illegal.

108. We are of the view that nothing said in the meeting crosses the line into undue influence. We have concerns about the solicitation of questions about the union, in the context of the Board's concerns about soliciting grievances set out in Globe & Mail, referred to above. However, there was no allegation about, or evidence of, the content of any conversation in response to Mr. Mignault's invitation, and thus no basis for a finding of illegality in that respect.

Freeze provision complaints

109. Certain company initiatives which occurred after the applications for certification were filed are also alleged to breach section 81, known as the freeze provisions.

110. On November 7, 1992, wage increases ranging from 3 to 7%, were announced, together with a regrouping of a number of employees to a higher wage level, and a lump sum bonus to be paid at Christmas. With the exception of the regrouping of callers and cashiers into a new classification, front-end clerk, these changes were without the consent of the union. These increases followed an October salary survey which the company had been doing in Ontario for 5 years, resulting in uniform wages in the Ontario warehouses. The survey showed that some competitors had increments for service that Price Club did not, so they added a further increment. The lump sum, a new feature, was also determined at the time of the October review. Ms. Oldroyd testified that she understood the lump sum to be an equalization of the wages for full-time employees across the year. It was not given to part-time employees because their wages were competitive throughout the year. There was no explanation of why it was formulated as a Christmas bonus.

111. The company acknowledges that the wage increases were done without the union s consent but argues that it was normal practice. The union says it was a very generous wage increase and a lump sum payment which had never been done before. Besides, the material accompanying it refers to collective agreements with less of an increase.

112. The union also complains of a change of start time in the receiving area from 7 a.m. to 6 a.m. without the agreement of the union. Ms. Third's uncontradicted evidence was that this was the usual practice prior to Christmas time across the province and therefore she felt there was no need to consult the union.

113. The purpose of the freeze provisions is to ensure that following the filing of an application for certification and during the period required by the Board to resolve the issues relevant to the application, no interruption will occur in the existing employment relationship which may influence employees with respect to representation by the union. See Beaver Electronics Limited, [1974] OLRB Rep. March 120 and Molson's Brewery (Ontario) Limited, Toronto, [1977] OLRB Rep. August 526. It is clear that the pr-existing employment relationship here included an October wage survey with increases implemented before Christmas. The extent of the wage increase given in November, 1992, although generous in relation to comparators, was not shown to be such a departure from the previous pattern as to constitute a breach of the freeze. The lump sum bonus given at Christmas is another matter. While the decision to give it was made at the same time as the general wage increase, there was no evidence that persuades us that it was part of the previous pattern of dealing with remuneration. The memo announcing the wage increase, including the bonus, makes reference to collective agreements with small increases and many companies' giving none at all. The rationale for the bonus was not explained persuasively.

114. Further, in the context of the memo provided and the entire sequence of events leading up to this, we are not persuaded that the giving of the bonus was free of anti-union animus. See Anderson's City Farm Valu-Mart, [1987] OLRB Rep. January 1; Globe & Mail cited above; and Knob Hill Farms, [1987] OLRB Rep. Dec. 1531.

Monthly Award

115. The union says the company eliminated a $25 monthly award. Nancy Oldroyd gave uncontradicted evidence that this award was just redeployed; it was not eliminated. Since January, 1992, each department has decided what to do with its own award, such as go out to lunch or use it as an award. There is nothing objectionable in this under the Act.

Cafeteria Video

116. The company agrees that starting in early March 1993, the company played a video in its cafeteria, lasting about five minutes on a continuous basis. In it, the Director of Human Resources explains why it is that the Union is allowed on company property and states that if employees feel pressured or harassed, they should speak to the warehouse manager or area manager. The tape also purports to explain how the Union obtained employees' home addresses - from licence plate numbers, time cards and schedules. Evidence indicated that this was the first time a video had been playing continuously in the cafeterias although videos have been shown during orientation and seminars.

117. Although unprecedented, there is nothing coercive in the message delivered, as pleaded. We have concluded it is within the bounds of employer free speech.

Allegations of discrimination - DaFonseca

118. The union alleges that on April 15, 1993, Andre Ferland called Joe DaFonseca, a vocal union supporter, to a meeting, and told him he had a severe attitude problem, that if he wanted to play hardball, Mr. Ferland could play hardball too and would use the discipline process. Mr. Ferland admits he sent for Joe that day, over a parking problem. Mr. DaFonseca had repeatedly parked his car in an unauthorized location where he thought it was safer from vandalism than in the employee area. The meeting in question was prompted because it was the seventh or eighth time Mr. DaFonseca had been spoken to about this. Mr. DaFonseca said he was being picked on and Ferland disagreed. Mr. Ferland agrees he got mad because Mr. DaFonseca continued to argue a point that he thought should be very clear. Mr. Ferland did not discipline him, although he acknowledges telling him if he wanted to play stupid or hard ball, he could do it too.

119. Mr. DaFonseca acknowledged parking in the wrong place, but seemed to feel that others were allowed to do so when he was not, and that he was justified in parking where he wanted because of vandalism and notes of both a prank and threatening nature that had been left on his car. However, he declined to give names to Mr. Ferland of who was being allowed to park in unauthorized locations.

120. We find nothing objectionable under the Act in this meeting. Support for the union does not insulate an employee from criticism for failure to comply with rules, including parking rules. We have no persuasive evidence that Mr. DaFonseca was being singled out in a discriminatory way. He was spoken to in a formal way after repeated infractions, and was not written up. That Mr. Ferland became annoyed at what he saw as Mr. DaFonseca's argumentative behaviour, is not something we find had anything to do with Mr. DaFonseca's position on the union, on the evidence before us.

121. Similarly we are unpersuaded that Mr. DaFonseca was being discriminated against or picked on for his union views when a manager told him not to use a washroom which was being cleaned or spoke to him about a hat he was wearing.

Unsubstantiated Allegations

122. Certain allegations had no evidence to support them. These include the allegation that Nancy Oldroyd had said that unions were "real bad", that the personnel clerk told an employee who had come to pick up a pay cheque that she hated a key union supporter because he had brought in the union, that on August 6, a supervisor named Smibert told an employee named Lee Baker the names of two union supporters whom she accused of soliciting for the union, and that anti-union remarks were made to an employee named Alan Carr by two managers.

The section 8 application

123. By the time this matter came on for hearing, Section 8 had been replaced by section 9.2, but it was common ground that this case falls to be determined under the previous legislation. The former section 8 provided that:

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

124. The union summarizes by saying that even apart from the Darnell discharge, the company made its opposition to the union clear, encouraged employees to refuse to deal with the union representatives, encouraged signing of the petition, made various attempts to improperly influence employees, by making promises about virtually everything that concerned employees: Sunday premiums, wiping disciplinary records clean, firing supervisors about whom a union supporter complains, sending supervisors for training. They collect the union organizers during a critical period and promise to deal with their concerns. As well, managers emphasized everything was frozen or zero throughout the campaign, and then the company gave an unprecedented increase. The explicit message was you're doing fine here; all the union wants is your money.

125. The union alleges that the cumulative effect of the company actions said to be in violation of the Act is that a situation now exists where the true wishes of the employees is not likely to be ascertained, and that the level of support for collective bargaining is adequate for certification. The union organizer Rick Waukhonen testified that after the four terminations in August, it became increasingly difficult to get employees to talk about the union, and that the cards that were signed after that were the product of much greater investment of time and effort by organizers. Once the idea spread that there were no cigarettes missing after the Darnell discharge, some employees became fearful for their jobs. Jean Third acknowledged in her evidence that the staff were very upset and anxious after the terminations.

126. The union argues that the fact that the union was still able to sign up cards although with difficulty is not evidence that the company's actions had no effect, but is a testament to the strength of the support for the union. Whether without the company's conduct the union could have gotten majority support in both units will never be known, but that is because of the company's conduct, and that is what section 8 is for, submits counsel. The union referred to Beaver Lumber, [1992] OLRB Rep. May 553 for the proposition that if it is impossible to assess whether or not the campaign was naturally spent, rather than chilled by the employer's actions, the doubt will be resolved in favour of the union where that is one of the effects of improper interference by the employer.

127. The union says that the effect of the violations has not been spent and that the delay in litigating this matter plays into the company's hands, rather than the union's. Union counsel acknowledged that the company's approach was not heavy handed, and often couched in terms of pro-choice. Nonetheless, the message got through. The union sees the company's response to the organizing effort as a sophisticated and pervasive one, which included firing four people at a critical point in the campaign.

128. By contrast, the company argues that there has been no contravention of the Act, but that even if there had been, the fact is that the campaign was not affected by the employer's actions in firing the four people. In the month of the discharges, August, the union signed up 15 full timers, 10 after the Darnell discharge, which is a better rate of progress than in either of May or July. The company argues that this was a 4 1/2 month old campaign with people outspoken on both sides. There were simply two camps, the organizing effort was arduous all the way, and the union made what progress it could. The Board is urged to find that there is no support for the chill allegation.

129. We have found that the company did not violate the Act in discharging Ken Darnell, or three managers, and that a number of other allegations are not established. However we find that it did violate the Act in telling Winnie Campbell he could not solicit for the union on company property, promising to clear discipline records, removing last names and offering the Christmas bonus to employees partly as an inducement to avoid dealing with the union, and thus interfered with the union's organizing drive.

130. However, are not of the view that the violations found above are so serious that the true wishes of the employees cannot be ascertained, if other remedies are put in place. Nor is the evidence that the campaign was chilled significantly clear. For instance, the rate of card signing did not drop after the discharges and when presented with the opportunity to change their minds and sign a petition, only a handful of union supporters did so. However, we have not heard the case on Board File No. 2124-93-U which contains allegations which the union argued were potentially relevant to its application under section 8. We hereby direct that the parties address the Board in writing within ten days as to their position on whether we should finally determine the section 8 application before hearing that matter. We remain seized as to all remedial matters.

131. Board Member D. A. Patterson dissents from the above decision.