Amalgamated Clothing and Textile Workers' Union, AFL-CIO, CLC v. Z-Lite Jenamees, 1995 CanLII 10041

Amalgamated Clothing and Textile Workers' Union, AFL-CIO, CLC v. Z-Lite Jenamees

[1995] OLRB Rep. February 212

3232-94-R; 3233-94-U Amalgamated Clothing and Textile Workers' Union, AFL-CIO, CLC, Applicant v. Z-Lite Jenamees, Responding Party

BEFORE: Janice Johnston, Vice-Chair.

APPEARANCES: T. Stephen Lavender, John Wensley, Shirley Stoker, Sue Gauvin and Pauline George for the applicant; Scott Zimmer, Marlene Gillespie and James Stewart for the responding party.

DECISION OF THE BOARD; February 20, 1995

1File No. 3232-94-R is an application for certification and File No. 3233-94-U is an application pursuant to section 91 of the Labour Relations Act (the "Act") alleging violations of sections 3, 65, 67, 71, 91 and 92.2 of the Act.

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

3The applicant (also referred to as the "union") takes the position that it should be certified pursuant to section 9.2 of the Act. Due to the conduct of the responding party (also referred to as the "employer" or the "company") it is the union's contention that the true wishes of the employees cannot be ascertained and that the Board should therefore exercise its discretion and certify the union.

4The application pursuant to section 91 of the Act deals with the layoffs of three individuals, Shirley Stoker, Sue Gauvin and Pauline George. The union asserts that these three individuals were laid-off because of their support for the union and their organizing attempts on behalf of the union.

5The other matter in dispute between the parties concerns the status of an employee, Ms. Gail Scions. It is the position of the union that Ms. Scions is managerial and as such should not be included in the bargaining unit pursuant to section 1(3) of the Act. The employer takes the opposite position.

6The employer was not represented by legal counsel in these proceedings. At the outset I made it clear that there is no requirement to retain counsel and that the Board often conducts hearings at which one or more parties are unrepresented. However, I stressed that the hearing was a legal proceeding and that persons appearing on their own behalf must bear the risks involved with doing so. I indicated that the employer must assume responsibility for the presentation of their case. At the outset and on many occasions throughout the hearing I explained the process to the employer. However, I made it clear that I could not provide the company with advice as this would be inconsistent with my role as adjudicator in the proceedings. In dealing with objections raised by counsel for the union, I explained to the company various rules of evidence such as the difference between examination-in-chief and cross-examination, what constitutes hearsay evidence, etc. I also explained the order of proceeding to the employer and clarified that they were to proceed first.

7The Board heard from seven witnesses over nine days of hearing. To a large extent the evidence given by the various individuals is consistent, it is the interpretation of what was said and why certain events transpired which is in dispute. The witnesses generally gave their evidence in a candid straight forward manner. However, I do have serious concerns with regard to the evidence given by Ms. Sylvia Beaver. It was obvious on the day that she gave the majority of her evidence that she was in the midst of a personal crisis. While it was never clarified, it appears that she was extremely worried about her daughter. Her evidence was vague and riddled with internal inconsistencies. While I do not believe Ms. Beaver was intentionally misleading the Board, it is clear that her evidence cannot be relied on. In addition, I do not accept some of the evidence given by Mr. Scott Zimmer, one of the owners of the company, as providing a complete explanation for events that occurred. Also, at times he was vague and appeared to have difficulty remembering events. Where his testimony and that of Ms. Shirley Stoker diverge I will accept the testimony of Ms. Stoker as she had a much clearer recollection of what had transpired.

8For the purposes of resolving the issues before me it is not necessary to set out all of the evidence in great detail. For example, I heard extensive evidence on health and safety matters which were of concern to some of the employees. Some of these health and safety concerns pertain to the physical plant and some to employee exposure to lead and its effects. I do not propose to review this evidence other than to observe that health and safety concerns were one of the factors which motivated Ms. Stoker to contact the union.

9Z-Lite-Jenamees is a small company located in Woodstock, Ontario. If Ms. Scions is included in the bargaining unit, there are thirteen employees. The company produces light fixtures and lamps. The majority of the work performed involves the production of tiffany lamps for residential use.

The Issue Concerning Ms. Gail Scions

10Ms. Scions is employed as a glass cutter. She is a long term employee and has been with the company for five or six years, which is the approximate length of the company's existence. Ms. Scions provides some work direction to the employees whose primary work is the assembly of tiffany lamps. These individuals were referred to by the parties as the "assemblers". However, the evidence is clear that Ms. Scions does not hire or fire employees; grant raises or promotions; or demote or discipline employees. In addition, she does not make recommendations on any of the above matters. She is paid hourly and does not have an office or access to company files. By virtue of her experience Ms. Scions is involved in the training of employees. In the absence of the owner, Scott Zimmer, employees take questions or concerns to her. If she can deal with the issue she does, if not she tells the employee to wait for Mr. Zimmer's return and to deal directly with him. I have no doubt that the employees working as assemblers viewed her as someone who is knowledgeable about the company and as someone they could go to for assistance. However, it is also clear that Mr. Zimmer made the decisions and that Ms. Scions merely relayed these decisions to the workers.

11Section 1(3) of the Act provides:

1.- (3) For the purposes of this Act, no person shall be deemed to be an employee who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

12In the Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121 the Board summarized the purpose of what was then section 1(3)(b) [now section 1(3)] and the general approach taken by the. Board in its application to a particular situation. The Board stated:

2. Section 1(3)(b) excludes from collective bargaining persons who in the opinion of the Board exercise managerial functions. The purpose of the section is to ensure that persons who are within a bargaining unit do not find themselves faced with a conflict of interest as between their responsibilities and obligations as managerial personnel, and their responsibilities as trade union members or employees in the bargaining unit. Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are often divergent. Section 1(3)(b) ensures that neither the trade union, nor that its members will have "divided loyalties". This purpose has been succinctly stated by the British Columbia Labour Relations Board in Corporation of the District of Burnaby, [1974] CLRBR at page 3:

The explanation for this management exemption is not hard to find. The point of the statute is to foster collective bargaining between employers and unions. True bargaining requires an arm's length relationship between the two sides, each of which is organized in a manner which will best achieve its interests. For the more efficient operation of the enterprise, the employer establishes a hierarchy in which some people at the top have the authority to direct the efforts of those nearer the bottom. To achieve counter-vailing power to that of the employer, employees organize themselves into unions in which the bargaining power of all is shared and exercised in the way the majority directs. Somewhere in between these competing groups are those in management - on the one hand an employee equally dependent on the enterprise for his livelihood, but on the other hand wielding substantial power over the workinglife of those employees under him. The British Columbia Legislature, following the path of all other labour legislation in North America, has decided that in the tug of these two competing forces, management must be assigned to the side of the employer.

The rationale for that decision is obvious as far as the employer is concerned. It wants to have the undivided loyalty of its senior people who are responsible for seeing that the work gets done and the terms of the collective agreement are adhered to. Their decisions can have important effects on the economic lives of employees, e.g., individuals who may be disciplined for "cause" or passed over for promotion on the grounds of their "ability". The employer does not want management' identification in the activities of the employees union.

More subtly, but equally as important, the exclusion of management from bargaining units is designed for the protection of employee organizations as well. An historic and still current problem in securing effective representation for employees in the face of employer power is the effort of some employers to sponsor and dominate weak and dependent unions. The logical agent for the effort is management personnel. One way this happens is if members of management use their authority in the work place to interfere with the choice of a representative by their employees. However, the same result could happen quite innocently. A great many members of management are promoted from the ranks of employees. Those with the talents and seniority for that promotion are also the very people who will likely rise in union ranks as well. In the absence of legal controls, the leadership of a union could all be drawn from the senior management with whom they are supposed to be bargaining. If an arm's length relationship between employer and union is to be preserved for the benefit of employees, the law has directed that a person must leave the bargaining unit when is is promoted to a position where he exercises management functions over it.

3. The Labour Relations Act does not contain a definition of the term "managerial function", nor are there any specified criteria to guide the Board in reaching its opinion. The task of developing such criteria has fallen to the Board itself, and in recognition of the fact that the exercise of managerial functions can assume different forms in different work settings, the Board has, over the years, evolved various general approaches to assist it in its inquiry. In the case of so called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with the. Thus, the right to hire, fire promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. In the case of more senior managerial personnel whose decision-making may have less direct or immediate impact on bargaining unit employees, the Board has focused on the degree of independent decision-making authority over important aspects of the employer's business. It is evident that persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman.

4. The line between "employee" and "management" is often shaded, and while it is helpful to consider the principles articulated by the Board in previous cases, ultimately the determination must turn on the facts of the particular case. There is no litmus test which is universally applicable and dictates the result in every situation, and in assessing each case, the Board must have due regard to the nature of the industry, the nature of the particular business, and individual employer's organizational scheme. There must, of course, be a rational relationship between the number of superiors and subordinates, consultation or "input" should not be confused with decision-making, and neither technical expertise nor the importance of an employee's function can be automatically equated with managerial status. On the other hand, there may be individuals whose nominal authority appears to be limited, and who have no formal managerial position or title, but who nevertheless make recommendations affecting the economic destiny of their fellow employees which re so frequently forthcoming, and consistently followed by superiors, that it can be said that, in fact the effective decision is made by the challenged individual. It is this type of recommendation which the Board has characterized as an "effective recommendation" and the inclusion of these persons in the bargaining unit would raise the very king of conflict of interest which section 1(3)(b) was designed to avoid. Persons making "effective recommendations" of this kind are regarded as part of the "management team", and are excluded from the bargaining unit.

5. In each instance, the Board seeks to determine the nature and extent of the individual's authority as well as the extent to which that authority is actually exercised. It is not sufficient if an individual has only "paper powers" contained in a job description or a "managerial" job title, if managerial functions are not actually exercised. Even the performance of certain co-ordinating functions may not be determinative. Where numbers of people work at a common enterprise (especially in the white collar - service sector) many persons may be engaged in co-ordinating activities which are largely routine, carried out within a pre-established framework of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or exercise craft skills which have been acquired through years of training and experience, will necessarily have a considerable influence over unskilled employees or less experienced "journeymen" or technicians. These experienced personnel will commonly supervise the work of those who are less experienced, and it is part of their normal job function to train and direct such persons and to install good work habits. Often, it is only the most senior or skilled employees who will fully understand the technical requirements of the job and the tools and material required, and accordingly, it is they who will allocate work between themselves and the other employees in order to accomplish the task in a safe and efficient manner. In such circumstances, it is inevitable that they will have a special place on the "team" and will have a role to play in co-ordinating and directing the work of other employees; but this does not mean that they exercise managerial functions in the sense contemplated by the section 1(3)(b) and must therefore be excluded from the ambit of collective bargaining - especially when most of their time is spent performing functions similar to those of other individuals in the bargaining unit and there is little or no evidence of the kind of conflict which section 1(3)(b) is designed to avoid. The situation of persons who exercise some degree of control over others, but who also perform bargaining unit work was discussed by the Board in Falconbridge Nickel Mines Limited, [1966] OLRB Rep. Sept. 379, as follows:

Most of the persons in dispute have more than one function and generally speaking it is the weight or emphasis attached to the different functions which must determine on which side of the managerial line the persons fall. Senior or skilled employees often have more responsibilities than other rank and file employees and they exercise certain control and direction over the other employees because of their greater experience and skill. It is the Board's difficult task to determine whether the additional responsibilities are managerial functions within the meaning of section 1(3)(b) of the Act or are merely incidental to the prime purpose for which the employee is engaged (i.e., to perform work properly performed by persons within the bargaining unit). If the majority of a person's time is occupied by work similar to that performed by employees within the bargaining unit and such person has no effective control or authority over the employees in the bargaining unit but is merely a conduit carrying orders or instructions from management to the employees, the person cannot be said to exercise managerial functions within the meaning of section 1(3)(b) of the Act. On the other hand, if a person is primarily engaged in supervision and direction of other employees and has effective control over their employment relationship, even though the person occasionally performs work similar to the rank and file employees when an emergency arises or to relieve an employee during occasional periods of absence or even to perform a particularly important job requiring special skill and experience, such occasional work in no way derogates from his prime function as a person employed in a managerial capacity. When assessing a person's duties and responsibilities the Board does not look at any one function in isolation but views all functions in their entirety. As stated in the McDougall Case above referred top, titles alone are not much assistance in determining what person's functions really are...

The cases cited above would seem to indicate that while a person may have minor supervisory function or very limited confidential function in matters relating to labour relations, if such functions are merely incidental to their main function and are of such a nature that they cannot be said to materially effect the employment relationship of the respondent's employees, such persons should be excluded from collective bargaining reason or section 1(3)(b) of the Act. Unless a person who regularly performs work similar to persons in a bargaining unit has independent discretionary powers rather than merely incidental reporting functions which are subject to the discretion and authority of higher persons in management, there is no reason to exclude such a person from collective bargaining.

In other words, in determining an individual's status, one cannot look at a portion of his duties in isolation. If the functions of an allegedly "managerial" character occupy only a minor part of his time, it is unlikely that he will be excluded from the ambit of collective bargaining unless those functions involve a decisive impact on his fellow employees. (For example, a unilateral decision to fire an employee would be highly significant, even if the exercise of such power is infrequent; while incidental supervisory responsibilities do not raise the kind of conflict of interest underlying section 1(3)(b).

13After having carefully reviewed the evidence and the submissions of the parties I am of the view that Ms. Stoker does not exercise managerial functions which would result in the conflict of interest which section 1(3) of the Act was designed to prevent. Her role in the work place is that of a lead hand who provides work direction and assistance to her fellow employees. Accordingly, Ms. Stoker is an employee within the meaning of the Act and should be included on the list of employees.

The Remaining Issues

14Ms. Shirley Stoker was employed by the company as an assembler and worked there for approximately a year and a half. She was the primary in-house organizer for the union. Ms. Stoker's reasons for approaching the union were as already noted, concerns with regard to health and safety and the manner in which lead was dealt with in the plant, a lack of pay raises and mandatory overtime (which it appears she felt was excessive). Ms. Stoker contacted the union and arrangements were made for a meeting on November 9, 1994 with Mr. John Wensley, an organizer for the union.

15The meeting on November 9,1994 was held at Ms. Stoker's house. Ms. Stoker, Ms. George and one other employee attended this meeting with Mr. Wensley. All three employees signed membership cards at this meeting. The discussions at this meeting primarily dealt with concerns about health and safety matters in the plant including exposure to lead. A date was set for a second meeting with Mr. Wensley to take place on November 16, 1994.

16Ms. Stoker made the arrangements for the meeting on November 16, and personally invited all of her co-workers except for one individual. She did not invite this one individual as she understood that the person was a heavy drinker and therefore, in her opinion, unable to understand the issues. On Sunday November 12, 1994, Ms. Stoker contacted Ms. Sylvia Beaver, who was employed at the company as an assembler. Ms. Stoker told Ms. Beaver that there was going to be a union meeting on November 16 at her house. She told Ms. Beaver that one meeting had already taken place, that she felt there was strong support for the union, that membership cards had been signed (although she didn't tell her who had signed cards) and that health and safety matters had been discussed.

17The next morning while Ms. Beaver and Ms. Stoker were working Ms. Beaver indicated that she was going to attend the meeting but that she wasn't going to sign a union card as she felt union dues were excessive. Ms. Stoker informed her that this wasn't true and after a bit more discussion the subject was dropped.

18On Wednesday November 16, Ms. Beaver called Mr. Zimmer at 6:45 a.m. and told them that there was going to be a union organizing meeting that evening at Shirley Stoker's house. It appears from the evidence that Mr. Zimmer was quite surprised by this information and that the conversation was very brief.

19Ms. Stoker invited Ms. Scions to the meeting in a telephone conversation after work on November 16, 1994. In the course of the conversation they discussed the reasons why some employees wanted a union. Ms. Scions indicated that she knew Scott and that he would probably close the plant or move it to another location if a union was successful in organizing the employees. Ms. Stoker responded that she felt he couldn't do that as he had government money tied up in the plant and had hired people through Jobs Ontario. Ms. Scions was also concerned that the union would try to close the company down. Ms. Stoker indicated to her that the employees in favour of the union weren't out to close anybody down, but were only trying to clean the place up. Ms. Scions responded that she was just trying to protect her job. Ms. Stoker advised Ms. Scions that there had already been one union meeting and that membership cards had been signed, although she didn't indicate who had attended the meeting or who had signed the cards. Ms. Stoker told Ms. Scions that she felt very sure that they would get the support they needed to bring in the union and that she expected most employees to attend the meeting that night. Ms. Scions said that she wasn't interested in the union and the conversation concluded.

20Shortly after her conversation with Ms. Stoker, Ms. Scions tried to contact Mr. Zimmer at his home. Mr. Zimmer wasn't at home so she spoke to Ms. Marline Gillespie, the co-owner of the company and Mr. Zimmer's spouse. Ms. Scions advised Ms. Gillespie that a union organizing meeting was to take place that evening at Shirley Stoker's house. Ms. Gillespie suggested to Ms. Scions that she attend that meeting that evening and to use Ms. Scions words "voice her opinions along with the other employees". Ms. Scions decided she did not want to attend the meeting and did not do so.

21The meeting on November 16 was attended by seven out of the thirteen individuals invited. The three individuals who attended the first meeting and four additional individuals were at the meeting. Although three more cards were signed that evening only two of them correspond to the names on the schedule of employees agreed to by the parties. Ms. Gauvin attending this meeting as did Ms. Sylvia Beaver. After discussions had taken place regarding concerns in the work place Ms. Gauvin indicated that if it took a union to get things straightened out then she was prepared to give it her full support. Ms. Pauline George was also at this meeting. She too expressed support for the union and at one point stated that if everyone at the meeting signed a card the union would no doubt get in. Ms. Beaver reacted to this statement and indicated that she was not going to sign a card. She stated that Mr. Zimmer had not sent her to the meeting (although no one had suggested this) and that Mr. Zimmer deserved another chance. She suggested that a list of concerns be brought to Mr. Zimmer's attention and that he be given an opportunity to correct things. Ms. Beaver left the meeting early. Ms. Gauvin signed a union membership card at this meeting, after Ms. Beaver had gone.

22The next day at work Ms. Beaver went to Mr. Zimmer's office to discuss the possibility of a meeting to deal with employee concerns. She requested that Ms. Stoker join them. Mr. Zimmer left Ms. Beaver in his office and went to get Ms. Stoker at her work station. He requested that she come to his office for a few minutes and they returned to Mr. Zimmer's office. A brief discussion ensued and an agreement was reached to hold a meeting. Ms. Beaver asked that Ms. Scions be present at this meeting and Mr. Zimmer indicated that he would like Ms. Gillespie to attend.

23Although it was originally agreed to try to have the meeting earlier, it in fact took place on Monday, November 21, 1994 in the cafeteria. Prior to the commencement of the meeting, Mr. Zimmer went and got Ms. Stoker at her work station. She accompanied him to the cafeteria where the meeting took place. The meeting lasted approximately twenty minutes and was attended by Ms. Stoker, Ms. Beaver, Ms. Scions, Mr. Zimmer and Ms. Gillespie. Various concerns regarding health and safety and exposure to lead were discussed.

24The assemblers work two per table in an open room. The door to the cafeteria is within sight of the assemblers. Ms. George saw Mr. Zimmer approach Ms. Stoker and Ms. Stoker accompany him to the cafeteria. If the other assemblers were looking up, they too could have observed Mr. Zimmer and Ms. Stoker go to the cafeteria together.

25On Tuesday November 22, 1995 a third union meeting was held. Although it is not clear exactly how many employees were invited, at least two or three individuals who had not yet attended a meeting were invited. Only the three grievors Ms. Stoker, Ms. Gauvin and Ms. George came to this meeting. I have no evidence that any other attempts were made to solicit support for the union, other than the three meetings already described.

26On Thursday November 24, 1994 Ms. Gauvin and Ms. Stoker approached Mr. Zimmer and asked to speak to him. They told him that they had concerns with regard to the lead levels in their blood and requested workers' compensation forms. Ms. Stoker and Ms. Gauvin had concluded that their lead levels were dangerously high based on information contained in what may have been a government booklet on lead regulations in the work place. They also had both visited their doctors recently and had been advised that their blood lead levels were higher than normal. Mr. Zimmer did not have the workers' compensation forms on the premises but arranged for them to be filled out and picked up by Ms. Stoker and Ms. Gauvin the next morning. After Ms. Stoker and Ms. Gauvin left the premises Mr. Zimmer informed the other employees that the two individuals had gone off on workers' compensation due to their high lead levels. He cautioned the other employees to follow proper hygiene practices and to ensure that they washed their hands. Mr. Zimmer spoke to the other employees to make certain that they were doing everything possible to protect themselves.

27The following day, November 25, Ms. Stoker and Ms. Gauvin went to the company to pick up the workers' compensation forms and their paycheques. Included in the envelope with their paycheque was a notice that they had been laid-off effective December 9, 1995. Ms. George also received a notice of lay-off. The notices were dated November 23, 1995 and although he could not be certain, Mr. Zimmer thought that the decision to lay these employees off had been made the previous weekend, on November 19 or 20. Mr. Zimmer did not mention the impending lay-off to Ms. Stoker or Ms. Gauvin when they informed him they were going on workers' compensation although the decision had been made by this point.

28On December 9, 1995 Ms. Gauvin and Ms. Stoker went to the company to pick up their paycheques, records of employment and vacation pay. They each received the following notice at the same time:

DEC09 1994

("NAME")

THIS IS TO NOTIFY YOU THAT YOUR EMPLOYMENT WITH JENAMEES IS NO LONGER NEEDED, AS YOUR JOB HAS BEEN ELIMINATED DO TO A DECLINE IN ORDERS AND RESTRUCTURING AND THEREFORE LAYOFF IS PERMANENT AS OF DEC 09 1994.

"MARLENE GILLESPIE"

Ms. George received a notice utilizing the same wording.

29Ms. George continued to work after the receipt of her notice of lay-off on November 25th. On December 7, 1994 while employees were on break in the cafeteria (no members of management were present), Ms. Scions decided to bring up the topic of the union in an attempt to relieve what she referred to as the tension in the room. She indicated that she knew no one wanted to talk about it but that she wondered why people thought that a union could help them. A discussion ensued in which some people spoke in favour of the union and some spoke against it. Ms. George voiced the opinion that the union could give her job security. Ms. Scions replied that a union couldn't prevent her from being laid-off. Another individual argued that if there was a union then Ms. George would have to be recalled. Ms. Beaver asked Ms. Scions if she thought Mr. Zimmer might close the plant if the union got in. Ms. Scions replied that she didn't know but probably.

30Mr. Zimmer could not remember if he and Ms. Beaver discussed what transpired at the meeting on November 16, 1995. Given that Ms. Beaver was in his office when Ms. Stoker arrived the next day, it is reasonable to infer that they did. As both Ms. George and Ms. Gauvin had expressed support for the union at the November 16 meeting in Ms. Beaver's presence, it is reasonable to conclude that Mr. Zimmer was aware of their views. As Mr. Zimmer and Ms. Gillespie were aware that Ms. Stoker had hosted the union meetings, her support for the union would have been obvious.

31I heard extensive evidence that the layoffs of the three grievors were necessitated by a decline in orders and work. Some reference was also made to a company restructuring whereby instead of producing lamps at the company, homeworkers or contractors would assemble lamps in their homes. As the number of contractors increased, the number of employees needed would decease. Mr. Zimmer justified the choice of these three individuals for lay-off on the basis that they had low productivity and poor attendance.

32The union has alleged that the employer has contravened the Act. The relevant sections of the Act are sections 3, 65, 67, 71, 91 and 92.2. They read as follows:

3. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

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

5. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

91.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

(4.1) For the purpose of remedying a contravention of section 41.1, the Board shall not settle any provision of an adjustment plan on terms determined by the Board.

(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

(6) A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(7) Where a proceeding under this Act has been settled, whether through the endevours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

92.2-(2) If the trade union requests an expedited hearing of the complaint, the Board shall begin its inquiry into the complaint within fifteen days after the later of,

(a) the day on which the request is filed with the Board; and

(b) the day on which the request is delivered to the respondent named in the complaint.

33While I accept that there was a reduction in the orders and consequently the work, the fact that a lay-off was chosen as the remedy and the timing of the layoffs gives me concern. In the past when there were work shortages, the company went to a four day work week. No explanation was provided for the failure to do so on this occasion. With regard to the timing of the decision to lay-off the three grievors, it was made shortly after the employer learned of the union organizing drive and the involvement of the grievors in it. The decision was made while there was overtime still being worked and the lay-off was changed from a temporary one to a permanent one without explanation.

34While low productivity and the alleged poor attendance of the three grievors may have been factors taken into account by Mr. Zimmer in determining who would be laid-off, I cannot accept that they were the only reasons for the choice of these three particular individuals. It is obvious to me and I have no difficulty concluding that the involvement of the three grievors in attempts to unionize the company was also a factor taken into account in the layoffs.

35The Board's jurisprudence is extensive in support of the principle that if an employer's actions are motivated even in part by anti-union considerations, that these actions constitute a violation of the Act notwithstanding that the employer's decision was primarily motivated by legitimate business reasons. See for example Barrie Examiner, [1975] OLRB Rep. Oct. 745, The Corporation of the London, [1976] OLRB Rep. Jan. 990, Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848.

36Having regard to the findings set out above, I conclude that the employer's lay-off of Ms. Stoker, Ms. Gauvin and Ms. George was prompted by anti-union animus and was a violation of section 65 and section 67 of the Act.

37In final argument counsel for the union contended that the employer solicited employee grievances during the organizing drive and that this constituted a violation of the Act. Counsel also took the position, for the first time in final argument, that Ms. Beaver was sent to the meeting on November 16 by Mr. Zimmer as a spy and that Ms. Gillespie tried to send Ms. Scions as a spy. The evidence does not support these allegations and they are accordingly dismissed.

38Counsel for the union also suggested, for the first time in final argument, that the employer had made inquiries of the employees as to their connection with the union's organizing drive and that these inquiries were an unfair labour practice in and of themselves. This argument was based on some extremely vague evidence from Mr. Zimmer of events which may have happened after the employer received the application for certification and on remarks made by the employer in final submissions. These allegations are without substance and accordingly are also dismissed.

39Counsel for the union took the position that the comments made by Ms. Scions with regard to the possible closure or moving of the company also constituted a violation of the Act. I will deal with this allegation later in this decision when I am dealing with the union's application for certification pursuant to section 9.2 of the Act.

40Section 9.2 of the Act states:

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

41In determining whether or not to exercise the discretion contained in section 9.2 of the Act, the Board must first determine that there has been a violation of the Act and then that as a result of that violation the true wishes of the employees respecting representation by a trade union are not likely to be ascertained. Having concluded that the employer has violated the Act I now turn to whether or not the true wishes of the employees may be ascertained.

42The facts of this case are somewhat unusual. It is very difficult to determine what effect the layoffs of the grievors had on the remaining employees. On November 24, 1995 Ms. Stoker and Ms. Gauvin took themselves out of the workplace by initiating claims for workers' compensation. All of the employees knew that was the reason they were no longer coming into work everyday. There is no evidence that the other employees knew until some time in December that they had been in fact laid-off. I heard evidence from the three grievors concerning conversations they had with other individuals, most of whom it appears were employees. It is clear that at some point the grievors told fellow employees that they had been laid-off. As the remaining employees, at least initially, thought that Ms. Stoker and Ms. Gauvin had gone on workers' compensation it is unlikely that their layoffs had much, if any, effect on the remaining workers. However, the layoff of Ms. George was known to the other workers. This layoff sent the clear message that if you were a union supporter, your job was at risk, notwithstanding the employer's stated business reasons for the layoff.

43I would like to now turn to the comments made by Ms. Scions to the effect that she felt Mr. Zimmer would close or move the company if the union was successful in organizing the employees. The union has taken the position that these remarks constitute an unfair labour practice and that the fact that they were made means that the true wishes of the employees can no longer be ascertained. Ms. Scions voiced her opinions concerning what the employer might do if the company was unionized on at least two occasions. I have no doubt that Ms. Scions was viewed as someone who is close to Scott Zimmer, very knowledgeable and in a position of some authority. However, she took it upon herself to tell employees what she thought Mr. Zimmer might do. He did not ask her to do so, did not sanction her doing so, was not present when she was doing so and was not even aware she was doing so until much later.

44In the course of an organizing campaign much is said by both sides that may or may not be true and may or may not occur. Emotions run high at such times as people are often strong supporters of or strong opponents of unionization. The Board on many occasions has been called upon to deal with allegations of intimidation and coercion by union supporters who in the course of their collection of membership evidence make ill advised and inappropriate comments. The Board recognizes the realities of what might occur in the workplace during an organizing campaign, and is conscious of not imposing artificial standards upon persons who inevitably end up choosing sides and may engage in heated workplace exchanges. In Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331, the Board stated:

Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representation. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, are clearly contrary to section 70 of the Labour Relations Act and are grounds for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympathize with their employer, are to be held against the principal parties to an application for certification. The Board can no more hold against a union a verbal threat made to an employee's job security by an indiscreet employee who is neither a union officer nor a collector of union membership cards than it can hold against an employer similar threats made by a fervently anti-union employee acting on his own. Evidence of widespread threats which are made by neither the employer nor the union might, of course, cause the Board to resort to the further evidence of a representation vote.

Unless the Board views comments as creating a climate of fear that might reasonably call into question the true wishes of the employees, the Board does not disregard the membership evidence gathered in these circumstances (see Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444). In this case, Ms. Scions was simply voicing her opinion as did other employees at various times.

45After having carefully reviewed the evidence, particularly with regard to the context in which Ms. Scions made her remarks, I cannot conclude that the expression of Ms. Scions' views constituted an unfair labour practice. Accordingly, the allegation raised by the union is dismissed.

46Although I feel that it is a close call, I am convinced that the true wishes of the employees cannot be ascertained at this point. The layoff of Ms. George, the fact that Mr. Zimmer took Ms. Stoker off the floor and into meetings on two occasions immediately after the November 16 meeting and the remarks made by Ms. Scions make it impossible at this time for the Board to ascertain the true wishes of the employees. Viewed objectively, it is reasonable to conclude that employees would have had serious concerns with regard to their job security and consequently would have avoided the union. The actions of the employer and the comments made by Ms. Scions resulted in the "chilling" of the union's campaign. As has been observed by the Board on other occasions, if I were to direct a representation vote, at this point employees would be choosing between continued employment rather than representation by the union. (See for example, Manor Cleaners, [1982] OLRB Rep. Dec. 1848 and Beaver Lumber, [1992] OLRB Rep. May 553.)

47Having regard to the agreement of the parties the Board is satisfied that:

all employees of Z-Lite-Jenamees in the City of Woodstock save and except supervisors, persons above the rank of supervisors, office, clerical and sales staff,

constitute a unit of employees of the employer appropriate for collective bargaining.

48As the statutory preconditions to the granting of a certificate under section 9.2 of the Act have been met, the Board hereby certifies the applicant for the bargaining unit set out above. In addition, the Board hereby:

(1) Directs the responding party to reinstate Shirley Stoker and Sue Gauvin with full compensation for all losses suffered as a result of their unlawful lay-off subject to the usual principles of mitigation and their availability to return to work.

(2) Directs the responding party to reinstate Pauline George with full compensation for all losses suffered as a result of her unlawful lay-off subject to the usual principles of mitigation.

(3) Directs that representatives of the applicant be allowed to convene a meeting of bargaining unit employees in the absence of members of management for a period of not more than one hour on company premises during normal working hours without loss of pay for employees attending such meetings.

(4) Directs the responding party to give to each employee in the bargaining unit a copy of the notice attached as Appendix A to the decision.

49The Board will remain seized with regard to the quantification of damages or any other matter arising out of the implementation of this decision.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE GIVEN YOU A COPY OF THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT Z-LITE-JENAMEES VIOLATED THE LABOUR RELATIONS ACT BY LAYING-OFF SHIRLEY STOKER, SUE GAUVIN AND PAULINE GEORGE.

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

THE ONTARIO LABOUR RELATIONS BOARD HAS ALSO CONCLUDED THAT THE TRUE WISHES OF THE EMPLOYEES WERE NOT LIKELY TO BE ASCERTAINED AND HAS CERTIFIED THE UNION AS BARGAINING AGENT FOR THE GROUP OF EMPLOYEES DESCRIBED AS,

ALL EMPLOYEES OF Z-LITE-JENANEES IN THE CITY OF

WODOSTOCK SAVE AND EXCEPT SUPERVISOR, PERSONS

ABOVE THE RANK OF SUPERVISOR. OFFICE, CLERICAL

AND SALES STAFF.

THE ONTARIO LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS.

TO ORGANIZE THEMSELVES,

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL

ACTIVITIES OF A TRADE UNION,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TD DO ANY AND ALL OP THESE THINGS.

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

Z-LITE-JENANEES

PER:

(AUTHORIZED REPRESENTATIVE)

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