[1995] OLRB Rep. April 505

2540-94-R; 2559-94-U Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. PCO Services Inc., Responding Party v. All Technicians Against Unionization, Intervenor #1 v. Michael A. Rankin, Intervenor #2; Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. PCO Services Inc., Responding Party

BEFORE: Roman Stoykewych, Vice-Chair.

APPEARANCES: Elizabeth Mitchell, Bill Hutton and Brian LaBrash for the applicant; James B. Noonan and Bernie McCarthy for the responding party; Tony Arruda and Eugene Campanelli for intervenor #1; and Michael A. Rankin on his own behalf.

DECISION OF THE BOARD; April 19, 1995

1. Board File No. 2540-94-R is an application for certification filed with the Board on October 18, 1994, in which the applicant Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union Local 351 ("the trade union") seeks to represent the employees of PCO Services Inc. ("PCO" or "the employer") in the following agreed upon bargaining unit:

all employees of PCO Services Inc. in the Municipality of Metropolitan Toronto and Woodbridge, save and except supervisors, persons above the rank of supervisor, office and clerical staff and quality assurance inspectors.

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

3. Board File No. 2559-94-U is an application pursuant to the provisions of section 91 of the Act, in which the trade union has alleged the employer is in violation of various of the "unfair labour practice" provisions of the Act. It is the thrust of the trade union's position that Brian LaBrash, an employee of PCO who was active in the organizing drive out of which the certification application arises, was discharged from his employment on October 12, 1994 for reasons related to his trade union activity. It is also alleged that the employer otherwise interfered in the trade union organizing drive by lending its material support to the anti-union campaign carried on by certain employees at the workplace, and by altering the terms and conditions of employment after the certification date without the consent of the trade union. In addition, in correspondence received by the Board on October 19, 1994, the trade union gave notice of its intention to rely upon the provisions of section 9.2 of the Act, asserting that, because of the violations of the Act by the employer, the true wishes of the employees respecting trade union representation cannot be ascertained.

4. The following are the provisions of the Labour Relations Act that pertain to this matter:

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.

65. 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.

66. 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.-…..

(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.

Nature of the Employer's Operations

5. The employer operates a large commercial and residential pest control service throughout Canada. The employer's "Toronto Region", whose approximately 60 employees are the subject of the present certification application, handles the employer's business in the Metropolitan Toronto area, as well as routes as far east as Belleville and as far north as King City. The Toronto Region, in turn, is broken down into seven administrative units called "districts", which denote both a geographical and functional division. Thus, in addition to five geographical areas of Toronto serviced by their own district offices, there is a "district" devoted exclusively to apartments, and another to night-time pest control. Further, although all the districts are administered separately, they do not each have separate offices: the Toronto West, Toronto Central and the Toronto Nights Districts are each housed in the employer's facility at Meteor Drive. It should also be noted that the Meteor Drive facility accommodates the offices of the Toronto Region, including those of its General Manager, Bernie McCarthy.

6. Each of the employees, called "technicians", are assigned to a particular district, whose office serves as their home base. Their work consists of extermination and pest control duties performed at the premises of the numerous clients serviced by the employer, as well as the sale of various pest control products marketed by it. For the most part, the technicians' work is carried on "on the road", and they are accorded a considerable degree of independence of function by the employer. Each technician is provided their own truck with which to service the employer's clients. The bulk of the technician's work is assigned by means of a list of approximately 150-225 clients that they are to service every month. Aside from a requirement that they perform a given proportion of their extermination work in each week of the month and that they observe certain prescribed practices and protocols, they are accorded little supervision of their work. While periodic meetings are scheduled by the employer, there is otherwise no set time for the technicians to appear at the office. However, because of the various paperwork requirements of the job, as well as the need for replenishing of supplies, technicians appear at their offices on a regular, if not daily basis.

7. Notwithstanding this independence of function, the technicians in the Toronto area form a coherent group. The evidence disclosed that they are assigned projects involving numerous technicians from various of the districts in Toronto, and that there are frequent meetings, particularly at the district level but also at the regional level, to discuss such issues as production, commissions, sales, and other employment-related issues. In addition, technicians participate at an office, district, and even national level in the employer's Health and Safety Committee and its "Employee Rep" committee. On a less formal level, technicians from offices in the Toronto area participate in various social events, including the company-sponsored industrial league hockey team. More generally, the technicians participate in the griping, gossiping and politicking typical of a workplace and in that respect I find that not only were the channels of communication between employees in the Toronto region (and beyond) in place, they appear to have been actively utilized.

Employer's Actions with Respect to Brian LaBrash

8. During the events giving rise to this application, Brian LaBrash was a Technician working out of the Queen Street office in Toronto. Mr. LaBrash was the first witness called by the trade union in this proceeding. He testified with respect to his organizing efforts and to the circumstances surrounding his alleged dismissal from employment. Mr. LaBrash's testimony alone spanned four hearings days, the substantial majority of which was devoted to his painstaking cross-examination by counsel for the employer. It is unnecessary to relate the results of this aspect of an otherwise acrimonious proceeding except to note that to the extent that the employer sought to have any discrepancies in the evidence resolved against Mr. LaBrash (as was initially proposed) or for the Board to accord his testimony no weight whatsoever (as was later submitted in argument)~ it has succeeded completely. It is clear to me that Mr. LaBrash engaged in numerous obvious falsehoods in the giving of his testimony. Furthermore, in the course of his evidence, he demonstrated a marked tendency toward exaggeration verging on distortion and a consistent practice of cloaking the rankest of speculations in the guise of fact. This can lead me to no other conclusion than that he attempted to extend his already substantial history of mendacity (which is unnecessary to relate here) into the present proceedings. In light of the foregoing, to the extent it may assist the applicant's case, I am not prepared to accord his testimony any weight whatsoever.

9. Nevertheless, I cannot agree with the further submission of counsel for the employer that the trade union's case depends "totally" upon Mr. LaBrash's credibility. While it is true that Mr. LaBrash was both the trade union's principal witness and a significant actor in the events giving rise to these matters, my refusal to believe his testimony does not, of itself, prevent me from making findings of fact with respect to matters that were the subject of his testimony (including his conduct, appearance, or overall significance in the trade union's organizing campaign) provided, of course, that there is credible evidence to support such findings in the testimony of the other witnesses. In this respect, the trade union presented the evidence of four other witnesses who testified with respect to the matters in issue. In general terms, I found those witnesses to have given their evidence in a forthright and credible manner. Moreover, the witnesses presented both by the employer and the employee objectors also gave evidence, which was subject to detailed cross-examination by counsel for the trade union, with respect to the matters arising out of the trade union's allegations, including the actions, statements and perceptions of Mr. LaBrash. As indicated above, I do not find it appropriate to accord the testimony of Mr. LaBrash any weight. However, there was, apart from the evidence of Mr. LaBrash, a considerable body of evidence touching upon the subject matter of this proceeding, and it is to an assessment of that evidence that I now turn.

10. It was the unshaken evidence of all of the witnesses called by the applicant that Brian LaBrash was a prominent and active participant in the trade union drive giving rise to the present application. According to Bob Pickard, an employee at the employer's Woodbridge office, and who initially was himself involved in the organizing campaign, Mr. LaBrash "spearheaded" the employees' efforts in that regard. It appears that Mr. LaBrash had been engaging his co-workers at the Queen Street office in general discussions concerning the possibility of forming a trade union at the workplace since at least early 1994 and, although by no means the sole enthusiast in favour of unionization, was clearly and prominently associated with that effort for some considerable time. However, the actual collection of membership evidence with respect to this application as well as any other involvement of the applicant commenced only as of the evening of October 11, 1994, at which time a number of employees met at Brian LaBrash's home in order to sign application for membership cards which were ultimately submitted to the Board. Also present at the meeting was William Hutton, an organizer for the applicant.

11. The very next day, on October 12, 1994, the applicant asserts that the employer attempted to terminate Mr. LaBrash's employment for reasons related to his trade union activity. The employer denies this allegation and indeed does not accept the characterization of its actions on that day as terminating Mr. LaBrash's employment. Instead, it is the position of the employer that on that day, for reasons related exclusively to legitimate employer concerns, it commenced a process of negotiation with Mr. LaBrash that would lead to a mutually satisfactory parting of their ways. Given the centrality of this issue to the present proceeding, it is useful to review in some detail both the circumstances leading up to the alleged dismissal and the events subsequent to it.

12. On October 12, 1994, the technicians at the Queen Street office were scheduled to attend at a monthly lunch-hour meeting called by the employer. The dual purpose of the meeting was the discussion of the previous month's sales figures as well as the taking of blood samples for testing the technicians' exposure to the chemicals with which they work. The meeting was held in the lunchroom of the Queen Street office and was attended by a large majority of the technicians, including Brian LaBrash. As is usual for such meetings, employees were provided pizzas and soft-drinks by the employer.

13. Although the evidence of the witnesses differs in some minor respects in this regard, it is clear that there was talk of unionization "in the air". Shortly before the meeting, approximately six employees of the Queen Street office had met in a nearby restaurant to further discuss strategies for the applicant's drive. It appears that the discussion in the restaurant flowed into the subsequent meeting at the Queen Street office. Unlike the restaurant meeting, the participants of the subsequent meeting were clearly not of one mind as to the virtues of unionization. Thus, while waiting for members of management to attend to commence the meeting, a somewhat heated discussion ensued with respect to the merits and demerits of unionization amongst the employees attending.

14. Shortly before the scheduled commencement of the meeting, Gordon Tucker, the manager of the Queen Street office, appeared in the doorway of the lunchroom in which the technicians had assembled and requested that Mr. LaBrash leave the room in order to speak with Bernie McCarthy, the General Manager of the Toronto Region. Mr. LaBrash complied with the request in mid-pizza, as it were, and did not thereafter return to the meeting.

15. Mr. McCarthy was the principal witness called by the employer. According to Mr. McCarthy, he met with Mr. LaBrash that day in order to commence negotiations that would lead to Mr. LaBrash's voluntary departure from PCO. Mr. McCarthy testified that, for some time prior to October 12, 1994, he and other managerial personnel had developed concerns regarding both the quality of Mr. LaBrash's performance as well as his apparent interest in pursuing other career options. Rather than pursue what he perceived to be the time-consuming and costly process involved in a termination and an ensuing wrongful dismissal action, Mr. McCarthy stated that he felt it appropriate to attempt a negotiated settlement of the question of Mr. LaBrash's continued employment with the company by making what he characterized as an "offer". Thus, during the course of the meeting, Mr. McCarthy discussed with him a number of areas of Mr. LaBrash's performance and conduct which he perceived to be problematical and then provided Mr. LaBrash with the following letter under the employer's letterhead dated October 12 and addressed to Mr. LaBrash:

Dear Brian:

It has become obvious that you are not happy working for PCO Services. There have been numerous instances of policy infractions and verbal comments from you to substantiate this point. Employee management cooperation is a critical part of our district function, [sic] Brian you have repeatedly been uncooperative with both Kevin and Gord.

To meet the district goals we need all parties working together. To make this happen, we are prepared to make a reasonable offer of six weeks severance in lieu of notice, plus holiday pay and commissions outstanding.

PCO will maintain your benefits except for short and long term disability for the severance period.

Yours truly,

PCO SERVICES INC.

Bernie McCarthy

General Manager

I agree to the above and accept this as reasonable.

____________________ Witness

___________________ Date

16. Mr. McCarthy denied that he sought to terminate Mr. LaBrash's employment at this time but that he merely initiated a process by which a mutually agreeable parting of ways might occur. However, the evidence is far from clear as to precisely what the employer's "offer" might relate. On the one hand, the course of action taken by Mr. McCarthy is consistent with the intention not to have Mr. LaBrash return to the workplace, regardless of what Mr. LaBrash might say or do. Even before Mr. LaBrash indicated that he wanted more time to consider the offer, he was told that he was not to continue to work at PCO, was asked to remove his personal effects from his truck, and to turn in his keys both to the truck and to the facilities that he serviced. Moreover, Mr. McCarthy conceded in cross-examination that the representations made to Mr. LaBrash throughout the negotiation process did not indicate a possibility of a return to work. On the other hand, Mr. McCarthy agreed to allow Mr. LaBrash a further extension of time until October 19, 1994 to permit him to consult with a lawyer and, upon Mr. LaBrash's suggestion, met with Mr. LaBrash on Saturday, October 15, 1994 in an effort to resolve the matter. Finally, Mr. LaBrash was never removed from the employer's payroll and, upon the expiry of the period of time permitted him to consider the offer, he was advised in correspondence dated October 19 (but, it appears, transmitted by fax only on the next day) that the employer was "not prepared to leave you on paid leave of absence indefinitely" and was asked to return to work. Mr. LaBrash in fact returned to work in his former position on October 21, 1994.

17. Having regard to all of the circumstances, I cannot accept that the interaction between Mr. LaBrash and Mr. McCarthy can be reasonably characterized by the degree of voluntariness and mutuality that the employer asks the Board to ascribe to it. Although the actions taken on October 12 by Mr. McCarthy may fall short of outright dismissal from employment, it is clear that as of that time, Mr. LaBrash was left with no realistic option to return to work. In this respect, I find Mr. McCarthy's subsequent characterization of his status as "on paid leave of absence" to be entirely disingenuous. Furthermore, I am persuaded that the representations made to Mr. LaBrash were such that they would reasonably be interpreted to mean that his continued employment at PCO was no longer a matter over which he exercised any power and that it was Mr. McCarthy's intention to convey precisely that message. Mr. McCarthy, who also testified at some length in this proceeding, impressed me as an experienced manager who was intelligent, perceptive, and articulate, and under the circumstances I see no reason to conclude that he did not mean what he wrote or said. In this regard, I do not accept that Mr. McCarthy's allowing Mr. LaBrash to return to work as indicative of a continuing intention on his part to negotiate the question of his continued employment with PCO. Rather, it is more likely the product of intervening reflection upon the wisdom of the course of action that he had undertaken. Finally, I do not accept that the employer's retention of Mr. LaBrash on the payroll assists it in establishing that it was not its intention to involuntarily remove Mr. LaBrash from his employment since that state of affairs is equally consistent with the effort to impose the severance "offer". On balance, I am satisfied that, as of October 12, 1994, the employer commenced a process aimed at the involuntary removal of Mr. LaBrash from employment on a permanent basis and to the extent that there was any scope for negotiation, it was limited to the size of the severance that might be obtained.

18. It was the further position of the employer that, however its actions might be characterized in terms of dismissal, suspension, leave of absence etc., they were motivated entirely by legitimate employer concerns with respect to Mr. LaBrash's performance as an employee and, more particularly, without reference to and knowledge of Mr. LaBrash's trade union activity. Mr. McCarthy was the sole employer witness to testify as to the decision-making process leading to the making of the October 12 offer. He stated that he concluded that Mr. LaBrash was "not happy" working at PCO on the basis of five concerns he enumerated with respect to Mr. LaBrash's conduct.

19. The first four of these Mr. McCarthy had been aware of for some time prior to October 12, 1994. In July of 1994, Mr. McCarthy became aware that Mr. LaBrash had taken steps toward the purchase of a pest control competitor operating under the name of "Abba", an action which Mr. McCarthy now viewed as sufficient cause for termination. In August of 1994, Mr. McCarthy became aware of Mr. LaBrash's attempts to seek employment at the Metropolitan Toronto Housing Authority. He inferred from this that Mr. LaBrash was unhappy at PCO, a matter that was of considerable concern to him since, in his view, morale and attitude were crucial to the successful running of a service industry such as the employer's. Also in August of 1994, Mr. McCarthy came to know that Mr. LaBrash had his driver's license suspended for his failure to pay fines arising out of speeding violations while operating the company truck but that he nonetheless continued to operate that vehicle. Finally, in September of 1994, Mr. McCarthy came to believe that Mr. LaBrash owned and operated a pest control equipment sales and service undertaking known as "G & B Industrial Services and Supply". Mr. McCarthy concluded at that time that this business was in competition with PCO insofar as it too was engaged in the sale of pest control products. According to Mr. McCarthy, there was "probably no greater breach of trust than running a competitor while employed" and offered that this was a "major problem" in the pest control industry.

20. Notwithstanding these highly significant concerns, some of which appear to be gross violations of an employee's obligations to his employer, Mr. McCarthy testified that until October 12, 1994, he took no action whatsoever except to ensure that Mr. LaBrash had managed to have his driver's license reinstated. The reason advanced by Mr. McCarthy for his inaction was that it was a "very busy summer" and that "an experienced technician is not easy to find". According to Mr. McCarthy, his action on October 12 was triggered by his recent discovery of certain discrepancies relating to a pizza franchise that Mr. LaBrash was required to service. According to Mr. McCarthy, his becoming aware of the pizza franchise incident was "the final straw" and, with the slow down in work after the busy summer, he now had sufficient time to deal with the matter of Mr. LaBrash's continued employment.

21. Mr. McCarthy testified that on October 11, 1994 he was advised by Kevin Shanahan, one of the managers at the Queen Street office, that the proprietor of the pizza outlet in question telephoned some time earlier to complain that certain scheduled extermination work had not been performed. To Mr. McCarthy's knowledge, Mr. LaBrash, who had been assigned the work, had been apprised of this situation by Mr. Shanahan some time earlier although, from Mr. McCarthy's account (Mr. Shanahan was not called to testify),it appears that the matter had not been treated with any particular degree of urgency at the time. The invoice sheets prepared by Mr. LaBrash represented that the work had been done and the service charge of approximately $15.00 recorded. A further review of the records indicated that the money had in fact been remitted by Mr. LaBrash and therefore, whatever else might have been the case, it did not appear to Mr. McCarthy that Mr. LaBrash was "pocketing" the money. According to Mr. McCarthy, it was less than clear to him what precisely the matter was, other than the fact that scheduled work had not been performed and that Mr. LaBrash, for whatever reason, had made representations to the contrary. He stressed that he considered the matter a very serious situation given the commercial importance of the pizza franchise contract and the apparent misrepresentation by Mr. LaBrash. However, because the issue had not yet been fully investigated, he explained, he declined even to mention the matter to Mr. LaBrash at their meeting on October 12, 1994.

22. Mr. McCarthy expressly denied knowing or even suspecting that Mr. LaBrash was involved in the trade union's organizing efforts until October 13, 1994. He conceded that he had heard rumours regarding a possible union organizing drive during the course of a major fumigation project involving numerous employees that he had supervised in Brampton approximately ten days previously. However, he stated that he was too busy at the time to make any inquiries of the managers who had reported the matter to him and that, to his knowledge, the rumours did not specifically mention Mr. LaBrash. Otherwise, he insisted that he simply did not connect Mr. LaBrash with the trade union organizing effort on October 12. However, the Board heard evidence from several employees present at the Brampton fumigation with respect to the rumours circulating amongst the employees. Each of these employees testified that Brain LaBrash's name figured prominently in these rumours.

23. There was no dispute as to the relevant legal principles applicable to this aspect of the matter. It is clear from the provisions of section 91(5) of the Act that in cases alleging that a person has been discharged, discriminated against, or otherwise dealt with contrary to the Labour Relations Act with respect to employment matters, the burden of proof lies upon the employer. Further, the test that the Board is to employ in reviewing the evidence is whether the action taken by the employer was motivated, in whole or in part, by anti-union considerations (The Barrie Examiner, [1975] OLRB Rep. Oct. 745). Finally, it was not disputed that inherent in any such inquiry by the Board is a careful examination of the circumstances surrounding the employer's actions and the making of inferences with respect to the motivation of the employer on that basis (Pop Shoppe, [1976] OLRB Rep. June 299).

24. There can be no question that the concerns advanced by the employer, whether taken separately or as a whole, are in themselves entirely plausible bases for the employer to take action of the sort taken by Mr. McCarthy. Indeed, it appears that Mr. LaBrash provided Mr. McCarthy something of an embarrassment of riches in this respect in that he had at his disposal not only sufficient, but overwhelming grounds for termination for at least several weeks prior to the taking of his action. However, the plausibility of Mr. McCarthy's account of his decision to take action on October 12 (and in particular, his insistence that union activity simply did not enter into his mind as a consideration) must be assessed in the context of his extraordinary inaction up to that date, and, in turn, measured against the inferences that may be drawn from the temporal coincidence between the decision to take such action and Mr. LaBrash's participation in the trade union organizing drive.

25. Having regard to the evidence, I am not satisfied that considerations relating to Mr. LaBrash's trade union activity did not enter into the employer's decision to make Mr. LaBrash the October 12 "offer". On balance, it is difficult to accept that the extraordinary course of forbearance demonstrated by Mr. McCarthy up to October 12 was interrupted so dramatically by the pizza franchise incident without reference to the question of Mr. LaBrash's possible trade union activity. First, it is difficult to accept that the matter held the significance or was as pressing as Mr. McCarthy claims given that, up to that time, management had not dealt with it on an urgent basis. Furthermore, the "triggering" quality of that incident, as characterized by the employer, is significantly undermined by the fact that Mr. McCarthy, despite discussing a whole series of matters relating to Mr. LaBrash's employment at the October 12 meeting, did not find it appropriate to bring the matter to his attention, even in passing. In this respect, the reason Mr. McCarthy advanced for failing to do so simply does not withstand scrutiny. If Mr. McCarthy was concerned that the matter was "still under investigation", it is far from clear why any such investigation would not include a discussion with Mr. LaBrash. Conversely, if the matter of investigation was as significant as Mr. McCarthy claims, no satisfactory reason was advanced why meeting with Mr. LaBrash could not be postponed for the several days during which any such investigation (whose nature, it should be noted, was unspecified) could take place. This is particularly the case in light of the fact that no action had been taken for several months with respect to matters significantly more serious.

26. Furthermore, I regard as implausible Mr. McCarthy's claim that he did not even suspect that Brian LaBrash was implicated in the trade union campaign as of October 12. It is important to note that Mr. McCarthy conceded that he had heard rumours regarding a trade union drive as much as ten days prior to that day. While it may be that the version of the Brampton rumour heard by him omitted any reference to Mr. LaBrash's participation, and it may be conceivable that as General Manager of the Toronto Region he was simply too busy to engage in discussions of rumours of unionization of the workplace for which he was responsible, it strains credulity to accept that, under the circumstances, a man of his obvious perceptiveness did not even suspect that Brian LaBrash was active in the union drive. Mr. McCarthy candidly conceded that he did not like Mr. LaBrash based on his extensive dealings with him, both during a three month period when Mr. McCarthy acted as manager of the Queen Street Office, and during Mr. LaBrash's tenure as the employee co-chair on the company's national Health and Safety Committee. It is clear that from his dealings with him, he found him to be abrasive, confrontational, and highly activist. From his managerial perspective based on his experience with Mr. LaBrash, it is clear that Mr. McCarthy was prepared to assume the worst. It would not, to borrow counsel for the employer's evocative expression, "take an Einstein" to develop a hypothesis that a union drive was Mr. LaBrash's handiwork, and under the circumstances I find Mr. McCarthy's failure to draw such an obvious inference most unlikely. Accordingly, I conclude that Mr. McCarthy was being less than entirely candid in his insistence that the matter of Mr. LaBrash's involvement in the trade union simply did not cross his mind.

27. Having regard to the foregoing, then, I am satisfied on a balance of probabilities that the employer's reasons for making the October 12 offer were not free of considerations related to Mr. LaBrash's trade union activity. I infer from the actions taken regarding Mr. LaBrash's employment in the midst of his union activity, and from the failure of the employer to provide a plausible explanation as to its conduct, that the employer's decision to act as it did was made at least partly in response to his trade union activity. In this respect, I conclude that "the final straw", more likely than not, included reference to Mr. LaBrash's trade union activity. Thus, having regard to the onus put upon the employer under section 91(5) of the Act, and to the Board's well-known case law in that regard, I find that the employer violated sections 65, 67 and 71 of the Labour Relations Act.

Employer Support of the Anti-Union Campaign

28. While the question of the presence of anti-union considerations in the action the employer took with respect to Mr. LaBrash has involved the Board in a rather difficult finding of fact, that connection appears to have been made immediately by the employees at the October 12 lunch meeting. As noted above, the removal of Mr. LaBrash from the lunchroom occurred in the context of a heated discussion regarding the virtues of unionization. The significance of Mr. LaBrash's abrupt absence certainly was not lost upon the employees. Although there is some question as to the precise time at which the discussion occurred, it appears that Mr. LaBrash's absence initiated a somewhat tense conversation, the most notable part of which was a statement by Mike Rankin to the effect that "Brian's forming a trade union and he's history". It appears that a general consensus to that effect was formed with respect to the matter in the ensuing discussion by the technicians. Somewhat later, Kevin Shanahan, the manager conducting the ensuing meeting, was repeatedly asked by the assembled technicians as to Mr. LaBrash's whereabouts. Mr. Shanahan initially refused to answer the question, and ultimately told the technicians to stop asking questions regarding Mr. LaBrash.

29. The fact of Mr. LaBrash's absence from work, if not its precise nature or cause, was a matter that was widely known and was the subject of considerable curiosity and controversy amongst the technicians. The employees in the Queen Street office, of course, learned of his absence in the dramatic fashion described above. Additionally, the Board heard evidence that managers, including Mr. McCarthy at the Meteor Drive Facility in Etobicoke and Kenneth Blodgett in Toronto East, within days of Mr. LaBrash's departure from work, were approached by technicians asking them to verify the rumour that Mr. LaBrash had been terminated and asking for further information on the matter.

30. It was in this context that Eugene Campanelli and Tony Arruda, technicians operating out of the Meteor Drive Facility, commenced their anti-union activities. Messrs. Campanelli and Arruda were granted standing by the Board to participate in this proceeding and, despite their lack of legal representation, participated fully, effectively, and ably in all aspects of this matter. The Board heard their evidence that they had long been opposed to unionization in general and of their own workplace in particular. Indeed, Mr. Campanelli explained that members of his family had been "fighting unions" since 1922, and that since that time, no family member had ever been represented by a trade union. They testified that for some years they had discussed the possibility of forming a non-union employees' committee at the workplace to replace what was in their view the inadequate representation being provided by the current company—run ''Employee Rep'' system. Although they were less than entirely forthright on this point, their current efforts were obviously mobilized by the advent of the applicant's union drive. Both Messrs. Campanelli and Arruda stated that they were pleased by the response that they received.

31. Messrs. Campanelli and Arruda testified that on Friday, October 15, 1994, they decided to send a communique to the technicians working at PCO seeking their support for the anti-union campaign. They were unaware that the trade union was seeking bargaining rights only for the employees in the Toronto Region, and out of what appears to be an extreme abundance of caution, decided to send their communique to all technicians working at the various PCO offices across Canada. Over the weekend, they jointly drafted the following letter, which on October 18, 1994 was sent to all such technicians:

TECHNICIANS AGAINST UNIONIZATION

This is a committee formed by PCO Technicians for Technicians. This Committee's objective is to deal with current working conditions, without the costly effects of a labour union.

It is, in our opinion, that [sic] working conditions at PCO Services Inc. are for the most part very good. We also understand that issues will always arise, but we can deal with them on our own.

It's time for you to consider all of the positive aspects of working for PCO under our present labour system, before jeopardizing it all over one or two issues.

We must tell the labour unions that the majority of us are happy with our jobs and we will control our future with management.

Also, that we cannot jeopardize the strength we have in the pest control industry as a member of the S.C. Johnson Wax family (a none [sic] union shop!), a strength we all enjoy.

Join us in saying, "This is OUR company, OUR future, OUR jobs and no union is going to push us out!".

Support the fight against unionization, sign now!

Please fax back to

Eugene Campanelli (102) West Metro Toronto Tony Arruda (208) Toronto Central

I support a none [sic] union workplace:

Signature

Print Name

Route #

For more information on this committee, you can contact either Eugene Campanelli or Tony Arruda at Meteor Drive Office, (416) 674-0600, especially if you wish to become actively involved in this committee.

32. The communique was sent out by Mr. Arruda on the employer's fax machine at its Meteor Drive office and, in turn, was received on the machines at the various company offices throughout Canada. It appears that, in accordance with a request on the cover letter attached to the letter that "all technicians receive a copy of this memo & have an opportunity to reply", the communique was distributed to the technicians, for the most part, by placing a photocopy of the document in each employee's mail slot. There was evidence that in certain offices, the communique was left in a manner in which it would be openly visible for several days, whereas in the Queen Street, Toronto East, and Woodbridge offices, the letter was posted on the office bulletin boards. In the case of the Toronto East office, the letter remained posted as late as the dates of this hearing. It should be noted that while the employer did not normally place restrictions as to what materials were permitted to be posted on its bulletin boards, it is nonetheless clear that it practised ultimate editorial control over the matter. In the case of the Queen Street office, Gordon Tucker, a manager, in some cases physically handed employees the communique and told them that each employee should have a copy and that they should read it. In other instances, Mr. Tucker told employees to make sure that they looked into their mailboxes and to read the fax "because it's important".

33. It is apparent that, upon its receipt in the various offices of the employer, members of management were fully aware of the distribution of the anti-union propaganda by means of the employer's fax machines and mail distribution systems. Not only did they do nothing to curtail such a process, but, as indicated above, in a number of instances managerial personnel actively assisted in its distribution. Similarly, managerial personnel did nothing to dissuade employees from responding to the petition portion of the communique, which, on its face, invites technicians to express their support for the anti-union campaign by contacting Messrs. Campanelli and Arruda by means of the employer's fax equipment. Indeed, Mr. Tucker's exhortations to employees described above strongly implies managerial encouragement in that respect. The evidence reveals that the approximately 94 responses received by Mr. Campanelli from across Canada, many of which originated in the Toronto Region, were, upon receipt, processed by the employer's clerical personnel and then directed to him. Thus, while I do not accept the trade union's submission that there was evidence to suggest that management was aware of the initial nation-wide faxing by Messrs. Campanelli and Arruda (which, given the state of the technology, is an act that would take no more than several minutes), it is abundantly clear that, contrary to its policies regarding the use of the fax machine for non-business related purposes, the employer was prepared to sanction the rather extensive further use of their communications equipment for the purposes of furthering the interests of the anti-union employees.

34. Having distributed the communiques, Messrs. Campanelli and Arruda harnessed their substantial organizational abilities to the task of arranging a meeting of their "Technicians for Technicians" committee. They testified that on Tuesday, October 18, they agreed that it would be appropriate to assemble the technicians in the Toronto area for a meeting the next day at the Meteor Drive offices. They stated that the purposes they had in mind for such a meeting was to discuss employment related problems experienced by the technicians and to approach management with such concerns in a non-union setting. To this end, they set into motion the "word of mouth" information process that, as noted above, operates effectively amongst the technicians in the Toronto Region.

35. On October 19, Mr. Campanelli approached Mr. McCarthy to make the necessary arrangements for the meeting of the technicians and for the subsequent meeting with members of senior management of PCO and its parent corporation, S.C. Johnson Wax Ltd. With respect to the former meeting, Mr. McCarthy testified that Mr. Campanelli simply asserted that such a meeting would be taking place at the Meteor Drive offices. Mr. McCarthy stated that in accordance with the "hands off' policy adopted by the employer upon the advice of recently-retained counsel (not their present counsel), he made no inquiries as to the purpose of such meeting and engaged in no further discussion of it. However, the purpose of the meeting would have been obvious to Mr. McCarthy, especially in light of his having only recently read the "Technicians Against Unionization" communique. Mr. McCarthy made no effort to prevent this meeting. Further, the evidence is somewhat unclear as to whether Mr. Campanelli "demanded" or "requested" a meeting with senior management on October 20, 1994. What is clear is that certain specific requirements were left with Mr. McCarthy as to the time, location, format, and the personnel that should be involved in such a meeting. Mr. McCarthy testified that, uncertain as to how he should apply the "hands off' policy in these circumstances, simply told Mr. Campanelli "I'll see what I can do".

36. The meeting of technicians proceeded as scheduled at approximately 4:30 p.m. on October 19 in the meeting room at the Meteor Drive offices of the employer and lasted for approximately three hours. Despite the extremely short notice, the meeting was attended by approximately 25 technicians from the various districts in the Toronto Region. No members of management were present, and to that effect, there were signs on the outside of the meeting room making it clear that the meeting was "For Technicians Only". The meeting itself was chaired by Messrs. Campanelli and Arruda, who by all accounts ran it with a rather firm hand. Although the various accounts of the meeting differ somewhat, it is clear that during the course of the meeting employees' concerns relating to employment conditions were canvassed for the purpose of presenting these matters to members of senior management. According to the evidence, the employees issued forth with various complaints and concerns in an uncharacteristically forthright manner. It appears that Mr. Campanelli had assured the technicians that he had "demanded" a meeting with executives of S.C. Johnson to discuss the technicians' concerns, and that he had assurances that such a meeting would take place the next day. To that end, a four member delegation was elected - comprised of Messrs. Campanelli, Arruda, and two other technicians - to represent the employees and to present their concerns to management.

37. Somewhat inexplicably, given the context, both Messrs. Campanelli and Arruda insisted that the meeting had "nothing to do with the trade union" and explained at the hearing that their earlier literary efforts simply were unrelated to the purpose of the meeting, which was the business of representation of employees by their committee. On that basis, they explained further, although the meeting canvassed the whole range of employee concerns, and employees were free to address any issue of interest to them, they were not permitted to discuss the trade union and, in particular, Mr. LaBrash's circumstances. The evidence is undisputed that on numerous occasions employees attempted to raise questions related to Mr. LaBrash but were told by the two co-chairs of the meeting that discussion of this issue would not be "tolerated". Both Messrs. Campanelli and Arruda characterized the situation between Mr. LaBrash and the employer as a "private employment matter" at the meeting but, during their testimony, nonetheless insisted that they knew nothing of Mr. LaBrash's predicament or even of his involvement in the trade union at the time. Given its self-contradictory nature and its inherent implausibility, I cannot accept Messrs. Campanelli and Arruda's evidence either as a reliable description of the events that took place during, nor as an accurate characterization of, the meeting of October 19. While I am not convinced that either of them intentionally sought to deceive the Board, their evidence was presented in a manner that did little to reassure me that their interest in the matter did not significantly affect the colouring of the evidence they gave. As a result, because it is far more consistent with the inherent probabilities in the circumstances, I have no hesitation in preferring the evidence of Steve Parsons, a technician present at the meeting who observed that the obvious purpose of the meeting was to avert the unionization of the workplace. Similarly, I do not accept Mr. Campanelli's assertion that he advised employees merely that he "hoped" that senior management from S.C. Johnson would listen to their concerns.

38. While the evidence of Mr. McCarthy was that he gave Mr. Campanelli no assurances as to whether there would be a meeting, the meeting did in fact take place at the Ontario Region offices of the employer the next day. There was no evidence as to what further arrangements had been made as between Mr. Campanelli and members of management beyond Mr. McCarthy's "I'll see what I can do", although it is obvious from the events that transpired thereafter that some further arrangements must have been made. The meeting took place precisely as had been prescribed by Mr. Campanelli, except in one significant respect. Before turning to the meeting itself, it is important to note that Mr. McCarthy seemed to be at some pains to ensure that Mr. Campanelli's requests were complied with to the letter. Upon the Committee delegation's arrival at the employer's head offices on Robert Speck Parkway in Mississauga at 4:00 p.m. on October 20, Mr. Campanelli expressed his dissatisfaction with the composition of the management team that was assembled to meet them. It appears that the employer had assembled Gary Muldoon, the Vice-President of PCO Services Ltd., Gerald Kuhi, a senior official of S.C. Johnson, and Mr. McCarthy to meet with the employees. It is noteworthy that a meeting with members of S.C. Johnson management was an unprecedented occurrence at this workplace. Nevertheless, apparently unimpressed with this rather august grouping, Mr. Campanelli "demanded" that Mike Chuchera, the employer's controller also be present. The evidence was that Mr. Campanelli told Mr. McCarthy: "I told you that they were all to be here, and unless they are here, there's no meeting". The evidence is undisputed that Mr. McCarthy then stated words to the effect of: "Oh yes, I do remember you mentioning that Mike Chuchera be here to listen". He then left the room to dispatch the controller, and several minutes later, when the two arrived, the meeting commenced.

39. The meeting itself lasted approximately one and one half hours, during which time the management representatives listened to the list of concerns and grievances compiled at the October 19 meeting and presented to them by the employees. However, the members of management restricted their participation in the meeting to listening to these complaints. At the outset of the meeting, it was made clear to the employees that such a restriction would be placed upon the employer's participation and further, they were advised that management could and would make no assurances that the concerns presented to them would be dealt with to the employees' satisfaction. Indeed, the employees received no feedback with respect to their concerns, let alone assurances and, in that respect, they considered the meeting something of a disappointment.

40. Nevertheless, the trade union asserts that the employer's subsequent representations to the technicians in the Toronto area made it clear to employees that the efforts of the anti-union group were at least partially responsible for certain promised improvements in working conditions. It appears that shortly after the application for certification, representatives of S.C. Johnson visited various PCO workplaces outside the Toronto region to solicit from employees their concerns with respect to working conditions. Although a number of allegations arose with respect to these actions, I am satisfied that nothing presented to me in the evidence indicates that, in so doing, the employer has violated the Act. In particular, it should be noted that, except as set out above, there was no evidence before me to suggest that similar meetings took place in the Toronto area. In apparent response to the concerns expressed at the meetings outside the Toronto area, the employer, under S.C. Johnson letterhead dated November 23, 1994, directed correspondence to the homes of employees outside the Toronto Region indicating that certain improvements in working conditions would be effected. There was no evidence that the employer directed this correspondence to the employees in the Toronto Region, and the evidence of these employees' knowledge of this letter was scant. However, in early December, 1994, employees in the Toronto Region received a substantially similar letter, in which they were advised that, with the consent of the trade union, a wide range of improvements with respect to their working conditions would be made. Although not identical, these changes in large measure reflect the concerns expressed in the technicians' meeting at Meteor Drive and subsequently forwarded to the members of management assembled at Robert Speck Parkway.

41. Having regard to this evidence, I find that the employer has not merely condoned, but, through its actions, has provided material support for the opponents of the trade union. Although, as noted, I reject the trade union's contention that the employer sanctioned the initial distribution of the "Technicians Against Unionization" communique, it is abundantly clear that, thereafter, members of management facilitated the distribution of the anti-union propaganda and the return of the "petition" portion through its communications system, it posted or permitted to be posted this communique in some offices, and in one office, actively encouraged employees to read it. Furthermore, the employer permitted the holding of a meeting on its premises of what was, in effect, a rally for employees opposed to unionization, in circumstances where the nature of the meeting would be plain to it. On the next day, high-level members of management met with a delegation of employees selected at that meeting to listen to their concerns with respect to employment conditions. Finally, while I do not accept the union's submission that the subsequent promises made to the Toronto employees clearly demonstrated to employees that management was prepared to give effect to the demands of the anti-union forces, at the same time they would do little to assuage any such suspicions that, quite understandably, might have been aroused.

42. I do not accept the submission of employer counsel that the employer's actions in these respects, while "stupid, did not cross the line". The employer, of course, is accorded a freedom of speech with respect to the issue of whether or not its business is to be subject to unionization, and, in that respect, there is no prohibition as to making its views known to employees in regard to that matter. However, while the employer is free to express its views as to the choices made by the employees, it cannot become an active participant in the making of that choice to the significant extent it has in the present case. (See, for example, CMP Group (1985) Ltd., [1993] OLRB Rep. Dec. 1247, Kuhlman Plastics of Canada Ltd., [1988] OLRB Rep. Dec. 1284, Empco-Fab Ltd., [1982] OLRB Rep. Aug. 1162, University of Toronto, [1988] OLRB Rep. Mar. 325, Skyline Hotels Limited, [1980] OLRB Rep. Dec. 1811.) In the circumstances of this case, that crucial distinction was obliterated by the actions of the employer. It is important to note that the actions of the employer occurred in the context of an organizing drive that featured a determined effort by the committee headed by Messrs. Campanelli and Arruda to avert the unionization of the workplace. The substantial support it lent the Committee not only permitted the Committee to more effectively disseminate its views but, even more importantly, gave to those views a particularly powerful thrust. In particular, by appearing to condone if not encourage its activity and by agreeing to meet its delegation with a high-level management team, including a representative of the parent corporation, the committee was permitted to score what amounted to a substantial political victory over the proponents of unionization.

43. The extent of that victory, of course, must be calculated while keeping in mind that, during the time that Mr. Campanelli was advising employees that his committee would be meeting with senior members of management to discuss their concerns, the employee who had spearheaded the trade union's efforts at certification was involuntarily removed from his employment, for reasons that, I have found and at least a substantial portion of the employees assumed, were related to such efforts. Employees attending this meeting would have placed before them, on the one hand, the option of a non- union committee, with the advantage both of apparent employer support if not sanction as well as the prospect of tangible results, and, on the other hand, the option of unionization with its manifest risk to job security. In this regard, I reject completely Mr. McCarthy's suggestion that such circumstances were merely the results of the "hands off' policy with respect to employee choice. While there is no direct evidence that he provided assurances to Mr. Campanelli that a meeting with senior management would take place on the terms requested, the meeting in fact took place almost precisely as specified. Significantly, the evidence relates that Mr. McCarthy took some extraordinary steps to ensure that the committee's wishes were complied with. With even the slightest reference to the context in which they occurred, these efforts are entirely inconsistent with an expressed intention to act even-handedly. Instead, especially when seen in the context of his removal of Mr. LaBrash from employment (which, I have found, in itself constitutes a violation of the Act), I am satisfied that members of management, including Mr. McCarthy, were fully aware that, in taking the measures that they did to assist the committee headed by Messrs. Campanelli and Arruda, they would be assisting their efforts to convince employees to reject unionization as well as making the prospect of unionization itself a far less attractive option to employees than it otherwise might be.

44. Accordingly, I find that the employer has intentionally interfered in the formation of a trade union and, therefore, has violated section 65 of the Act.

Certification Pursuant to Section 9.2

45. In determining whether it should issue a certificate pursuant to its discretion under section 9.2, the Board is required to ascertain whether the wishes of employees are unlikely to be ascertained because of the misconduct of the employer. The Board, of course, is aware that employee decisions with respect to unionization are not made in a vacuum but, normally, are responsive to a wide range of factors, including anxieties relating to the effect that unionization may have upon the economic viability of the employer and, in particular, their individual job security. There is nothing in the Act, nor any sound argument, to suggest that such matters should not be of concern to employees in the course of choosing whether to be represented by a bargaining agent. In the ordinary course, employees of reasonable fortitude are expected to be able to make their decisions in light of such factors. However, the provisions of section 9.2 of the Act recognize that, in instances where the employer has acted in violation of the Act, the factor of concern with respect to job security may become so overwhelming that these normal expectations may not obtain. Thus, based on the objective circumstances prevailing as a result of the employer's illegal conduct, it is the task of the Board to make a pragmatic assessment of whether the possibility still exists for a meaningful decision with respect to the selection of a bargaining agent by the employees.

46. In circumstances of the present workplace, especially having regard to the employer's actions in involuntarily removing from the work the leading employee advocate favouring unionization, and by otherwise entering the fray by lending material support to employees seeking to avert unionization, I am satisfied that a reasonable opportunity for the employees' expression of desire with respect to unionization is an unlikely event. As described in this decision, the employer has significantly altered the landscape for employee decision-making with respect to unionization by tilting it significantly in favour of the non-union option. The Board has long recognized that the dismissal of union supporters during the course of an organizing campaign has a particularly severe "chilling effect" upon employees' expression of trade union support and, at least until his return to work, it is fair to describe Mr. LaBrash's situation as cause celebre at the workplace. Whether it intended to do so or not, by its actions in this respect the employer sent a clear message to employees that trade union activity would be dealt with swiftly and decisively. Especially with respect to the employees attending the October 12 meeting in which Mr. LaBrash was removed virtually in the midst of a discussion concerning the pros and cons of unionization, it is difficult to imagine circumstances in which the link between trade union activity and decreased job security would be more dramatically highlighted. While it may be that the effect of the employer's subsequent misconduct in themselves would be insufficient to trigger the provisions of section 9.2, nevertheless, taken in conjunction with the removal of Mr. LaBrash from the workplace, I am satisfied that an employee of reasonable fortitude would not be in a position to freely express his desires with respect to unionization in such circumstances.

47. Moreover, I am satisfied that the effects of the employer's actions were of a continuing nature and were not, as employer counsel submitted, dissipated by its subsequent actions. In particular, counsel referred to the return to work of Mr. LaBrash as well as the employer's correspondence to employees dated October 20, 1994 (and presumably received by employees a short time thereafter) advising them that they were free to choose whether or not to have union representation and that the employer would respect their decision in this regard. On that basis, it was suggested that, whatever impact Mr. LaBrash's removal from work may have had upon the employees, its effect would have been spent by employees recognizing that the employer intended to respect their right to choose trade union representation. While it may be that subsequent employer action may "cure" the deleterious effects of its misconduct, that would appear to be an improbable result in these circumstances. It is important to note that the purportedly curative measures taken by the employer coincide precisely with the meetings of October 20 and 21, and in this respect any reassurances directed to the employees that the employer would cease to interfere in the employees choice would be manifestly lacking in credibility. Moreover, as late as the first week of December, 1994, the employer had made promises of significantly improved working conditions that, at the least, reinforced the suggestion that the employer continued to be more responsive to the representations of the anti-union group. As a result, I am not persuaded that the representations made by the employer were sufficiently unequivocal as to dissipate the effects of the "chill".

48. Having regard to all of the circumstances, then, I am satisfied that, because of the employer's illegal conduct, the Board is unlikely to be able to ascertain the wishes of the employees in the workplace sought to be organized by the present applicant. In this respect, I am further satisfied that none of the remedial responses the Board has at it disposal are sufficient to restore the conditions of the workplace so that a meaningful expression of desire might occur and indeed, at the hearing, none were suggested by the employer. Accordingly, I find that the statutory preconditions to granting a certification under section 9.2 have been met and that this is otherwise an appropriate case for certification.

Employer's Application to Re-Open Case

49. After sixteen days of hearings that continued on what was for the most part a day-to-day basis, final submissions were completed on December 15, 1994, at which time I advised the parties that I would reserve upon my decision with respect to the disposition of this matter. In correspondence directed to the Registrar of the Board from counsel for the employer dated January 11, 1995, it was requested that the proceedings be re-opened for the purposes of calling further evidence. Although it was not stated directly in the correspondence, it would appear to be the responding party's intention to lead evidence in relation to the subsequent misconduct by and discharge of Mr. LaBrash, since attached to counsel's correspondence was a copy of a discharge letter addressed to him dated January 11, 1995, and which outlined a series of particularly serious acts of misconduct by Mr. LaBrash. However, it is important to note that counsel's request was a conditional one, requesting the re-opening of the case only:

"1. If the applicant seeks to contest Mr. LaBrash's termination as being contrary to the provisions of the Labour Relations A ct; or

2. If the Board intends to rely on any evidence given by Mr. LaBrash in the recently concluded proceedings for any finding of act [sic] in its decision;"

50. I take it to be clear from the context that counsel intended the latter condition to be related to "any finding of fact", particularly since, in his response to the position of applicant counsel that any such evidence would be irrelevant, he clarified in correspondence dated January 16, 1995 that:

…….if a further hearing in this matter is held my client believes it can prove that Mr. LaBrash further perjured himself with reference to some of the evidence which he gave during the course of the proceedings which concluded on December 16, 1995 [sic].

51. In a decision dated January 25, 1995, I determined that the employer's request to re-open the case would not be granted. The following are my reasons for so ruling.

52. In the absence of any submission to the contrary, it appears that the sole issue that would be addressed by the fresh evidence that the responding party sought to adduce is the question of the credibility of Brian LaBrash. As indicated in the body of this decision, that is a matter over which a substantial amount of hearing time was spent. Furthermore, as the decision also makes clear, although I did not accept counsel for the employer's argument that the matter was dispositive of the section 91 application, I found the evidence of Mr. LaBrash to be incredible and did not accord it any weight in the course of making any other determination in this matter. Further, upon my review of the purported factual basis upon which the discharge was effected, it was clear to me that even if proven as true, it would not affect any other determination I had made with respect to the matter, nor would the fact of Mr. LaBrash's discharge be relevant to any other determination. Indeed, it is important to note that there was no suggestion in counsel's correspondence that the proposed fresh evidence would touch upon any issue other than Mr. LaBrash's credibility. y January 25, 1995 it was clear to me that the calling of any further evidence with respect to the issue of Mr. LaBrash's credibility would be entirely superfluous and unnecessary and, accordingly, the responding party's request was rejected.

53. In summary, then, I have found that, because of the employer's violations of the Act as set out in this decision, the wishes of the employees with respect to representation by the applicant are unlikely to be ascertained and that this is an appropriate case for certification pursuant to the provisions of section 9.2 of the Act. A certificate will therefore issue to the applicant with respect to the bargaining unit described in paragraph 1 of this decision. With respect to the remedies arising out of the section 91 complaint, the Board hereby:

(a) declares that, by removing Brian LaBrash from the workplace on October 12, 1994, the employer has intentionally interfered in the formation of a trade union and therefore is in violation of sections 65, 67 and 71 of the Act;

(b) declares that by materially assisting the efforts of the anti-union group of employees in the workplace, the employer has intentionally interfered in the formation of a trade union and, therefore, is in further violation of section 65 of the Act;

(c) directs the responding party to post the notice attached as Appendix "A" in conspicuous places in each of the offices in the Toronto Region for a period of 60 days and to give each employee in the bargaining unit a copy of the said notice. The responding party is to make every reasonable effort to insure that the posted notice is not defaced or obscured in any way.

54. The Board shall remain seized to resolve any dispute as to the implementation of these orders.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION, THE COMPAN'Y AND EMPLOYEES PARTICIPATED. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT PCO SERVICES INC. VIOLATED THE LABOUR RELATIONS ACT BY REMOVING BRIAN LABRASH FROM WORK BETWEEN OCTOBER 12 AND 21,1994 AND BY MATERIALLY ASSISTING THE EMPLOYEES OPPOSED TO UNIONIZATION. THE ONTARIO LABOUR RELATIONS BOARD FURTHER CONCLUDED THAT AS A RESULT OF THESE VIOLATIONS. THE TRUE WISHES OF THE EMPLOYEES WERE NOT LIKELY TO BE ASCERTAINED AND THE ONTARIO LABOUR RELATIONS BOARD CERTIFIED THE UNION AS BARGAINING AGENT FOR THE GROUP OF EMPLOYEES DESCRIBED AS,

ALL EMPLOYEES OF PCO SERVICES INC. IN THE MUNICIPALITY OF METROPOLITAN TORONTO AND WOOOBRIDOE. SAVE AND EXCEPT SUPERVISORS, PERSONS ABOVE THE RANK OF SUPERVISOR, OFFICE AND CLERICAL STAFF AND QUALITY ASSURANCE INSPECTORS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES,

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

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

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

PCO SERVICES INC.

PER,

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced. This notice must remain posted for 60 consecutive working days.

DATED THIS 19TH DAY OF APRIL. 1995.