United Steelworkers of America v. Sidus Systems Inc., 1995 CanLII 9971

United Steelworkers of America v. Sidus Systems Inc.

[1995] OLRB Rep. June 873

3959-94-U United Steelworkers of America, Applicant v. Sidus Systems Inc., Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members W. H. Wightman and Pauline R. Seville.

APPEARANCES: Heather Alden and Brando Paris for the applicant; Steven McCormack, Fred G. Rose, Dorothy Fong, Paresh Shukla and Firoz Ahamed for the responding party.

DECISION OF LEE SHOULDICE, VICE-CHAIR, AND BOARD MEMBER PAULINE R. SEVILLE; June 1, 1995

I. Introduction

1. This is an application pursuant to section 91 of the Labour Relations Act (hereinafter "the Act"). This proceeding was expedited pursuant to section 92.2 of the Act, and the Board issued its decision in this matter on March 16, 1995, which decision read as follows:

2. This is an application pursuant to section 91 of the Labour Relations Act, alleging a violation of sections 2.1, 65, 67 and 71 of the Act. The hearing of this proceeding was expedited pursuant to section 92.2 of the Act. In accordance with section 92.2(4) of the Act, the Board hereby provides the parties with its decision in this matter.

3. For reasons to follow, the majority of the Board, Board Member Wightman dissenting, finds that the responding party violated section 67 of the Act when it laid off Terry Miller, David Beaumont, Noel Urquico and James Pring.

4. The Board hereby makes the following declarations and orders:

(a) the Board declares that the responding party has violated section 67 of the Labour Relations Act;

(b) the Board orders that the responding party immediately reinstate Terry Miller, David Beaumont, Noel Urquico and James Pring to their former employment, with full compensation for all losses suffered as a result of their unlawful layoff; and

(c) the Board orders the responding party to post the notice attached as Appendix" A" in conspicuous places in the workplace for a period of 60 days. The responding party is to make every reasonable effort to ensure that the posted notice is not defaced or obscured in any way.

4. The Board will remain seized with respect to the quantification of damages or any other matter arising from the implementation of this decision.

These are the reasons for that decision.

2. The applicant (hereinafter referred to as the "union") alleges that the responding party (hereinafter referred to as the "employer" or "Sidus") violated sections 2.1, 65, 67, and 71 of the Act as a result of the termination of employment of four individuals who acted as inside organizers for the union. The employer asserts that the terminations of employment were layoffs effected in the normal course of business and were untainted by any anti-union animus. An application for an interim order reinstating the four individuals (hereinafter referred to collectively as "the grievors") was brought by the union and heard by the Board, differently constituted, on February 16, 1995. By way of decision dated February 16, 1995, that panel of the Board declined to issue the interim order requested by the applicant. No reasons have yet been issued for that decision.

3. This proceeding came on for hearing on February 28, 1995 and continued until March 15, 1995. The Board heard testimony from seven witnesses, and accepted an agreed statement of fact as representing the testimony of a further witness. As is often the case in proceedings such as these, it was necessary for the Board to make certain assessments of credibility regarding the witnesses who testified before it. In making those assessments, and in arriving at our findings of fact, the Board has considered all of the evidence and taken into account such factors as the demeanour of the witnesses, the clarity of their evidence, and the apparent ability of the witnesses to recall events and to resist the tug of self-interest in their responses to the questions asked. Furthermore, the Board has taken into account what seems most reasonable and probable in all of the circumstances having regard to all of the evidence before it. We note here that we found the testimony of the grievors to be, in general, credible, although at times we found the testimony of Mr. Miller to be speculative rather than based on first-hand knowledge.

II. The Facts

4. The employer is a company engaged in the assembly and distribution of computers and computer products. It currently operates out of a facility located in Richmond Hill. It is apparent from the evidence before the Board that the employer has expanded its business in recent years and that certain structural alterations to its production cycle have recently been made reflecting a desire to operate its business in a more cost-effective and efficient fashion. It was in the context of one of these operational changes that this matter came before the Board.

5. On Friday, January 13, 1995, the employer's Production Manager, Mr. Paresh Shukla, terminated the employment of ten individuals working for the employer. On Monday, January 16, 1995, Mr. Shukla terminated the employment of one further individual. Various reasons for the terminations of employment were communicated to the employees. Of the individuals whose employment was terminated over those two working days, the grievors (Terry Miller, David Beaumont, Noel Urquico and James Pring) had a prominent role in organizing for the union. As noted above, the employer's explanation for the terminations of employment were that they were all effected in the normal course of business. In fact, the evidence before the Board established that on December 15, 1994, approximately one month earlier, seven employees of Sidus had been laid off as a result of a slow-down in work. On that date, the Vice-President of Operations, one George Koenigsmarck, terminated the seven least senior employees of Sidus. Of the seven individuals discharged, four were production employees (or "assemblers") and three were technical employees (or "technicians").

6. The evidence, before the Board establishes that Mr. Koenigsmarck made it known to the entire work force at the time of the December 1994 layoffs that further layoffs would be effected in the near future. In testimony, none of the grievors stated that he was unaware of the possibility of further downsizing of the employer's operations. Sidus had increased its work force during the previous months because of a particularly large contract it had acquired from I.B.M., and the contract had been completed for all intents and purposes by mid-December, 1994. It was this business reality that led to the layoff of the seven individuals on December 15,1994, and which caused Mr. Koenigsmarck to plan for further reductions in the workforce.

7. Throughout December, 1994, Mr. Koenigsmarck consulted with two individuals regarding the identities of those who would be laid off in the second round of downsizing, namely Mr. Shukla and Firoz Ahamed, the Production Foreman. It is at this point that the evidence becomes more difficult to reconcile, as each of the witnesses has a markedly different recollection of the individuals "targeted" for layoff, and the approximate date that the "final list" containing the names of those to be laid off was completed.

8. It was the testimony of Mr. Koenigsmarck that the list of individuals to be laid off in January, 1995 was prepared with the input of both Mr. Shukla and Mr. Ahamed, although the latter had more discussions with him than the former because Mr. Shukla was (at that time) directly responsible for the technicians and therefore would determine the identities of the technical people slated to be terminated. Mr. Ahamed, who was directly responsible for the production employees, acted as a resource to Mr. Keoningsmarck with respect to the assemblers to be laid off. Mr. Koenigsmarck indicated in testimony that he, Mr. Shukla and Mr. Ahamed utilized as a criterion for the second round of layoffs that of "versatility" and not "seniority". A factor also considered was that of duplication; that is, if two individuals were performing a job function that was considered by management to be capable of performance by one individual, then one of the two people performing that job function were likely to be laid off. Mr. Ahamed did not testify as to his understanding of the criteria utilized in the making of these decisions, and Mr. Shukla stated that "performance" was the key factor in his mind.

9. At this point, it is appropriate to outline some structural changes to the workplace which had influence on the identities of those slated to be laid off. In the late fall of 1994, certain members of senior management at Sidus directed to both Mr. Koenigsmarck and Mr. Shukla a copy of a New York Times article which described a successful assembly configuration utilized by Compaq Computer Corporation. Discussions were held amongst management regarding what changes, if any, could be effected to the assembly of computers at Sidus. To that time, the employer utilized one long assembly line, at which various different orders for computers would be completed. The newspaper article described Compaq's success with the use of "cells" of assemblers. Although Mr. Koenigsmarck questioned the utilization of "cells" at Sidus, eventually it was decided that two shorter assembly lines would be established at the plant. This new structure would facilitate the completion of both large contracts and contracts for smaller numbers of machines at a far greater speed. It was in conjunction with this structural alteration that Mr. Koenigsmarck determined who would be laid off in early January, 1995. These structural alterations were effected during the week following Christmas, such that the new line structure was up and running at Sidus during the week of January 2, 1995.

10. According to Mr. Koenigsmarck, the "final list" containing the names of those individuals slated for termination of employment on January 6, 1995 was completed in or about late December, 1994 or early January, 1995, and was shared with both Mr. Ahamed and Mr. Shukla. This list contained the names of five individuals on the assembly side of the operations who were certain to be laid off, as well as four other names who would be laid off if he "had to go a step further". After effecting the five terminations, taking into account one employee who had resigned, and adding to it the layoffs of the four technical staff to be recommended by Mr. Shukla, the work force was expected to be reduced to the target number of 31, a number which Mr. Koenigsmarck had determined to be optimal as a result of a study he had earlier completed relating to the time taken to assemble a basic computer in the plant. The "final list" compiled by Mr. Koenigsmarck did not contain the names of the four grievors.

11. It was the testimony of both Mr. Ahamed and Mr. Shukla that they had never been privy to the exact identity of the individuals to be laid off by Mr. Koenigsmarck. Mr. Shukla stated that he had discussions with Mr. Koenigsmarck in December, 1994 regarding the appropriate number of individuals to be laid off and the identities of the workers, but had no further discussions with him up to and including January 6, 1995. He stated that he had no knowledge of the people on Mr. Koenigsmarck's list. Mr. Ahamed stated that, although he had seen a list on January 5, 1995, he had not seen the "final list" of individuals to be laid off.

12. Having regard to all of the circumstances, we are of the view that both Mr. Ahamed and Mr. Shukla were more likely than not aware of the identities of the individuals on Mr. Koenigsmarck's "list". It must be kept in mind that the layoffs were to be effected on January 6, 1995. The "list", which was produced by Mr. Koenigsmarck during his testimony, when compared with a schematic drawing of the new configuration of the plant prepared by the same individual, is a perfect fit; that is, the five individuals identified as terminations on the "final list" are the only individuals who are not specifically assigned a position on one of the two lines operating in the plant. These lines were up and running during the first week of January, 1995. We find it difficult to believe that Mr. Koenigsmarck would have kept both Mr. Ahamed and Mr. Shukla totally excluded from the identities of those scheduled to be laid off, and that both would not have known that those individuals not assigned to a fixed place on the two new lines would be those who would be laid off on January 6, 1995.

13. The knowledge of Mr. Ahamed and Mr. Shukla at that time is significant, because in fact there was only one termination of employment effected on January 6, 1995, that of Mr. Koenigsmarck. During the morning of January 6, 1995, Mr. Koenigsmarck was discharged. A member of senior management indicated to the employees later that day that Mr. Shukla would, from that point, be responsible for the entire production of computer products. As a result of Mr. Koenigsmarck's termination of employment, no workers were laid off on January 6, 1995. However, Mr. Shukla did approach the employer's Controller, Mr. Robert Lubinsky, for a payroll list to take home over the weekend, to review for the purposes of determining who he would ultimately layoff.

14. Mr. Shukla, in his testimony, stated that he considered the payroll list over the weekend, and on Monday, January 9, 1995 reproduced the list (save for the salary levels of employees) on his computer in his office. Later that morning, according to the testimony of both Mr. Ahamed and Mr. Shukla, the list was reviewed by both of them to identify those who would be laid off by the employer. During the course of his evidence, Mr. Ahamed went through the employee list and identified for the Board his recollection of the discussion he had had with Mr. Shukla regarding the performance of the employees on January 9, 1995. Mr. Ahamed recalled the names of various individuals who had been targeted for layoff during that conversation. He also outlined, to the best of his recollection, who had been added to or deleted from that list of names on both January 10, 1995 and January 11, 1995, when he and Mr. Shukla had further discussions. It was the testimony of Mr. Ahamed that the list of names had been finalized on January 11, 1995, and that Mr. Shukla had read from it to him. Mr. Shukla confirmed in testimony that his list had been finalized on that same date; he recalled, however, that he did not reduce the eleven names to writing until after Mr. Ahamed had left his office on January 11, 1995. In any event, the employer relies on the fact that Mr. Shukla's list was finalized on this day, and that the list contained the names of the four grievors.

15. It was not clear from the evidence of Mr. Shukla or Mr. Ahamed what criteria, if any, were utilized to determine the identities of those employees who would be laid off. In his examination in chief, Mr. Shukla stated that "performance" was the criterion used, with "seniority" used in the event that the performance of two individuals was equal. Subsequently, Mr. Shukla stated that Mr. Beaumont and Mr. Pring had been terminated because of "restructuring", noting their relatively short seniority at Sidus. There certainly was no evidence adduced through Mr. Shukla establishing that Mr. Beaumont or Mr. Pring were poor performers. We note here that, with regard to the other 7 employees laid off, Mr. Shukla attributed the cause of their discharges to be "a combination of restructuring and performance". Mr. Ahamed testified in more detail regarding the reasons for laying off the grievors, as discussed with Mr. Shukla. Mr. Beaumont was said to be a "slow" worker and "missed" things; Mr. Miller was "not cooperative"; Mr. Urquico, at times, only "pretended" to work and was not as cooperative as another prepackager. With respect to Mr. Pring, Mr. Ahamed could recall only that he and Mr. Shukla discussed his seniority. Mr. Ahamed could not recall any discussion with Mr. Koenigsmarck about Mr. Pring. Accordingly, there was no evidence before the Board to explain why Mr. Pring's performance justified termination from employment, and there was only the most cursory and contradictory explanation regarding the other three employees in question. No evidence of written warnings or verbal warnings was placed before us. The grievors denied any prior disciplinary action; in fact, some of the grievors had been provided with increases in income within 4 months of their termination of employment. In summary, there is no cogent explanation before us to explain why the grievors were chosen for layoff, as opposed to any of the other employees at Sidus.

16. Coincidentally with all of these developments, certain employees at Sidus had decided to commence discussions regarding union representation. On Monday, January 9, 1995, Mr. Miller, who had been absent from work on Friday, January 6,1995 due to a medical appointment, received a telephone call from Mr. Ahamed early in the morning. Mr. Ahamed inquired whether he could ride into work with Mr. Miller. This in fact occurred. Mr. Miller, during this ride into work, discussed with Mr. Ahamed that Mr. Koenigsmarck had been relieved of his duties the previous Friday. During work that day, Mr. Miller approached Mr. Urquico and discussed the possibility of organizing the employees. Mr. Urquico agreed with Mr. Miller's proposal and they both spoke to a number of workers (including Mr. Beaumont, who spoke to Mr. Pring) to advise of a meeting after work. Later in the day, Mr. Miller advised Mr. Urquico that the meeting would be held at Jack Astor's Restaurant at 5:00 p.m., and that he should inform those he had spoken to about the meeting. The testimony of the grievors established that each spoke to a number of other employees about the meeting, and that some were advised that it was merely a meeting to discuss the circumstances surrounding work, whereas others were told that it involved possible unionization. In any event, the meeting attracted between 23 and 25 individuals, including the four grievors.

17. It was during this meeting that it was unanimously agreed that Mr. Miller would seek out a trade union to come and speak to the employees during a later meeting. We note here that the testimony of the four grievors differed somewhat regarding the finer details of what happened at this first meeting. We do not believe that the differing recollections of the meeting in any way detracts from the overall credibility of the grievors. It is significant to note that there were S employees sitting in a booth at the restaurant, with the other 18 to 20 employees gathered around the booth leaning against or sitting at tables. The four grievors and one Travis Jasmins were seated at the booth. Mr. Miller was clearly the prime spokesperson at the meeting. We note here that Mr. Jasmins was amongst the group laid off on January 13, 1995; the union has not made any claim that Mr. Jasmins was improperly laid off, and accordingly we will make no comment regarding him, except to the extent required.

18. Mr. Miller contacted the applicant on January 11, 1995, and spoke first to Mr. Brando

Paris, and then to Mr. George Casselman. Mr. Casselman agreed to meet with Mr. Miller and the Sidus employees at Jack Astor's Restaurant at 5:00 p.m. on the next day, Thursday, January 12, 1995. Mr. Miller contacted Mr. Beaumont at Sidus shortly after speaking to Mr. Casselman and told him when and where the meeting would be held. Mr. Beaumont subsequently advised Mr. Urquico of the time, place and date of the meeting. Each of Mr. Beaumont and Mr. Urquico spoke to a number of Sidus employees about the meeting. According to Mr. Beaumont, one of the individuals that he spoke to about the meeting was Mr. Robert Sowah, who works in the employer's packaging department. Mr. Beaumont told the Board that Mr. Sowah indicated that he could not make the meeting because of a course he was taking at Ryerson Polytechnic University, but asked Mr. Beaumont to keep him informed. This discussion occurred on Thursday, January 12th.

19. A further discussion occurred on Thursday, January 12, 1995, one between Mr. Miller and Mr. Shukla. By that date, Mr. Miller was no longer in regular attendance at Sidus because of a cyst in his wrist. Mr. Miller called Mr. Shukla and advised him that he was going to have his doctor provide him with a cortisone injection for the cyst, rather than undergoing surgery. This, he told Mr. Shukla, would mean only a one-week absence from work rather than a three-week absence which would result from surgery. Mr. Shukla advised Mr. Miller that this sounded "much better" to him. Mr. Miller indicated to Mr. Shukla that his doctor had indicated that the injury was work-related, and he advised Mr. Shukia that he would be coming into the plant on Monday to complete the appropriate forms and to provide the required medical notes.

20. On that same day, Mr. Miller met Mr. Casselman at approximately 5:00 p.m. at Jack Astor's Restaurant. Fifteen employees arrived for the meeting by 6:00 p.m.. Mr. Casselman outlined the basic' certification process for those present. At that point, approximately 10 employees

signed applications for membership in the union. It was also agreed at that time that Noel Urquico would be the only employee to take blank membership cards away from the meeting. Ten of these membership cards were given to Mr. Urquico at the end of the meeting.

21. At 8:45 a.m. on Friday, January 13, 1995, Mr. Beaumont and Mr. Pring arrived by car at the employer's parking lot adjacent to the plant. Mr. Sowah pulled into the parking space beside that occupied by Mr. Beaumont's vehicle as Mr. Beaumont and Mr. Pring were alighting from the car. It would also appear that Mr. Urquico was, by that time, also in the parking lot and making his way to the entrance to the building. A discussion occurred between these individuals, and although the recollections of each of the participants that testified were slightly different, there is no doubt that Mr. Sowah was advised that the meeting of the night before went well and it was suggested to him that he sign a card. It is not clear from the testimony what response Mr. Sowah had to the inquiry made of him, although there is no dispute that Mr. Sowah did not sign a card at that time.

22. Upon entering the facility, Messrs. Beaumont, Pring and Urquico went to the cafeteria for coffee and thereafter to their workstations. Very shortly thereafter, Mr. Ahamed was asked by Mr. Shukla to locate each of the above three individuals, as well as Mr. Travis Jasmins, and Ms. Dahlia Spence, and to have them all go to his office. There is some difference in the testimony regarding when this happened. Mr. Shukla stated that this meeting with the employees occurred around 10:00 a.m. that day. It would appear, however, that the meeting occurred much earlier, as Mr. Lubinsky, the Controller, recalled meeting with the terminated employees in the cafeteria (after they had waited some time for him to appear) at 9:45 that morning. It was Mr. Urquico's evidence, which we accept, that he was asked by Mr. Ahamed to attend at Mr. Shukla's office at 9:06 or 9:07 that morning, just after he had started his shift. Others testified that they had been approached by 9:15 a.m. that day. Accordingly, we find that by 9:15 a.m. that day the above five individuals had gathered at Mr. Shukla's office.

23. The testimony of all of the witnesses established that each of the employees to be terminated arrived at about the same time. When they gathered at the door to Mr. Shukla's office (which had previously been occupied by Mr. Koenigsmarck), Mr. Sowah was also present. According to Mr. Beaumont, Mr. Pring and Mr. Urquico, Mr. Sowah went into the office with them and remained there throughout the meeting, and exited with them when the meeting broke up. These witnesses were rigorously cross-examined on this point but did not move from their testimony that Mr. Sowah was present in the room while the group of employees was being terminated. Mr. Urquico, for example, recalled Mr. Sowah's presence because after the group had been terminated, and on the way out of the office, he turned to Mr. Sowah and stated his view that they were being terminated due to their organizing activity. According to Mr. Urquico, Mr. Sowah pushed Mr. Urquico away from him when the comment was made. Mr. Shukla stated in testimony that Mr. Sowah was not in his office but he did not testify where Mr. Sowah was, if he was in the general location of Mr. Shukla's office. We note here that Mr. Shukla was not called to offer reply evidence on any of these matters, although he was physically present at the Board's offices on the last day of testimony.

24. We are of the view that Mr. Sowah was clearly in the room when Mr. Shukla terminated the employment of Messrs. Beaumont, Pring, Urquico, Jasmins, and Ms. Spence. We are not satisfied that Mr. Shukla accurately testified regarding those in attendance in his office. Both Mr. Beaumont and Mr. Pring testified that Mr. Shukla spent most of the meeting with his eyes focused on the floor. This evidence was uncontradicted and would suggest that Mr. Shukla had little opportunity to observe who was in attendance. As well, Mr. Shukla could not recall whether he had spoken to Mr. Sowah, or any other employee, prior to 9:00 a.m. that morning. Furthermore, his testimony was inaccurate regarding the time that the termination meeting occurred. Mr. Shukla testified that he was quite "stressed" by the layoffs that day, and it may well be that the stress inherent in laying off employees has affected his recollection of those in attendance at the meeting. In any event, we find that Mr. Sowah was present that morning.

25. It is important, at this point, to set out the words used by Mr. Shukla to terminate the employees that morning. According to Mr. Shukla's own testimony (which in this regard did not differ in many salient respects from that of others present), he advised those in the room "that there was no work so we have to lay a few people off. You are some of the people chosen for layoffs." Ms. Spence apparently indicated her expectation that she would be laid off, and Mr. Urquico stated that the layoffs had not been effected according to seniority. Mr. Shukla replied that the layoffs were not based "just on seniority but they are based on performance." At that point, according to Mr. Shukla, Mr. Beaumont interjected that "this is b.s. or something like it." Mr. Shukla then stated to the group that if there were any further questions, they should be directed to Mr. Lubinsky. Although Mr. Shukla did not testify to this fact, the others present who testified stated that Mr. Shukla directed them to depart by way of an exit located close by.

26. The actual words spoken by Mr. Shukla are important because when all of the terminated employees departed from Mr. Shukla's office, they all had assumed that Mr. Sowah had been terminated as well. It is apparent that Mr. Shukla did not at any time indicate that Mr. Sowah was exempted from termination nor would Mr. Sowah be aware that he would have been exempted from termination in light of the words used by Mr. Shukla. However, it is evident that the four grievors, at the very least, had concluded that Mr. Sowah had been fired. Immediately after the meeting with Mr. Shukla, the employees all walked "as a loose group" through the assembly area, advising some of their colleagues that they had been laid off. The testimony of the grievors was that Mr. Sowah did not stay with their group, and did not gather with them shortly thereafter at the reception area or in the cafeteria while awaiting Mr. Lubinsky. Mr. Miller confirmed this fact, as did Mr. Casselman, for it was Mr. Miller's recollection (which we accept) that he was called at home by the group of terminated individuals while they were awaiting Mr. Lubinsky's arrival, and that at that time he was advised that Mr. Sowah may well have been laid off too. Mr. Miller's subsequent call to Mr. Casselman contained this same speculation. It is now known that Mr. Sowah was not laid off on that day, but in fact returned to work that morning.

27. Subsequent to the morning layoffs, Mr. Shukla laid off a further three assemblers late in the day. Both the morning layoffs and the afternoon layoffs of production employees were confirmed to Mr. Lubinsky and other senior managers by Mr. Shukla by way of e-mail. Mr. Shukla indicated in the e-mail message sent on the morning of January 13 that Mr. Miller's employment would be terminated on Monday. In his testimony before the Board, Mr. Shukla stated that he did not terminate Mr. Miller on the Friday because Mr. Miller was not at work on that day, and because it had been a hectic day and he had been "stressed" by the layoffs.

28. That being said, Mr. Shukia terminated Mr. Miller's employment on Monday, January 16, 1995 at approximately 10:00 a.m., by way of telephone call. According to Mr. Miller, Mr. Shukla called him before he had left his residence to go to Sidus to complete the forms relating to his injury. At that time, Mr. Shukla indicated that Mr. Miller was being fired for bad work performance. Mr. Miller denied that he was a poor performer, and asked Mr. Shukla why he was being fired over the phone. Mr. Shukla did not reply to this query, and advised Mr. Miller that if he had any questions, he could speak to Mr. Lubinsky.

29. Over the previous weekend, a number of significant events had occurred. Mr. Beaumont and Mr. Pring attended at Mr. Koenigsmarck's residence on the evening of January 13, 1995. Although the detailed recollection of the three individuals at this meeting is somewhat difficult to reconcile, it is undisputed that Mr. Koenigsmarck told Mr. Beaumont and Mr. Pring that prior to his layoff he had prepared a list identifying those who he felt should be terminated, and that neither of them were on that list. The list was shown to Mr. Beaumont and Mr. Pring, but no copy was made of the list at that time. The existence of the list was communicated to Mr. Miller by Mr. Pring by way of telephone.

30. Also of significance is a telephone call which was placed by Mr. Koenigsmarck to Mr. Ahamed at his home on Sunday, January 15,1995. Mr. Koenigsmarck testified that during that discussion the issue of the union meeting arose (Mr. Koenigsmarck having been advised of the meetings on the prior Friday night) and Mr. Ahamed indicated that he knew about a meeting, but had been unable to attend because of car problems. Mr. Koenigsmarck told the Board that Mr. Ahamed advised him of the names of some of those in attendance at the meeting. Mr. Ahamed, in reply testimony, recalled two telephone calls from Mr. Koenigsmarck; one respecting the tools Mr. Koenigsmarck left behind at Sidus; and a second one, on January 15, 1995, in which the issue of the union meeting was discussed. He testified that he told Mr. Koenigsmarck during that conversation that he had not been in attendance at any union meeting. He denied stating that his non-attendance at the meeting was due to car difficulty, and he also denied telling Mr. Koenigsmarck the names of people in attendance. It was also Mr. Ahamed's testimony that he did not advise Mr. Shukla of his knowledge of a union organizing drive until January 19, 1995, when it came to his attention that three of the grievors were attempting to sign employees of Sidus to union membership cards outside of the Sidus plant. Mr. Ahamed stated that, because he knew nothing of the meeting, he really had nothing to tell Mr. Shukla prior to January 19, 1995. Mr. Shukla testified that he had no knowledge of the organizing drive until January 19, 1995, when Mr. Ahamed advised him.

31. On balance, we are of the view that Mr. Koenigsmarck's recollection of this discussion is more probable than the account testified to by Mr. Ahamed. It seems unlikely to us that Mr. Ahamed, upon receiving information from Mr. Koenigsmarck on January 15, 1995 that some of the employees had met to discuss organizing, would not tell his superior for a full four days that he had received such information. To keep that information to himself for that period of time quite frankly defies belief. Furthermore, we note that Mr. Koenigsmarck recalled Mr. Ahamed making a reference about not attending the initial employee meeting because of car problems. Mr. Ahamed denied the comment. However, the first meeting of employees occurred on January 9, 1995, the day that Mr. Ahamed called Mr. Miller and requested a ride to work. There is no evidence before us that Mr. Koenigsmarck had any prior knowledge of the car difficulties being experienced by Mr. Ahamed. We note here that in making our factual assessment we are cognizant that Mr. Koenigsmarck displayed at times during his testimony a great deal of bitterness towards his former employer. Notwithstanding this, we are satisfied that Mr. Koenigsmarck's recollection of this discussion is more accurate than that of Mr. Ahamed.

32. As noted above, on Monday, January 16, 1995, Mr. Miller's employment with Sidus was terminated by Mr. Shukla by way of telephone call. Later that same day, Mr. Miller attended at the home of Mr. Koenigsmarck with Mr. Jasmins. At that time, he reviewed the "final list" which had been prepared by Mr. Koenigsmarck prior to January 6, 1995, and obtained from Mr. Koenigsmarck a handwritten sheet containing the names of those who had been slated for layoff. This sheet was provided to Mr. Casselman two days later, on January 18, 1995.

33. On January 17, 1995, Mr. Shukla met with Mr. Lubinsky in order to provide the latter with the information he required to have Records of Employment prepared. Mr. Lubinsky testified that Sidus' bankers actually prepared the Records of Employment. The exhibits establish that

each employee terminated during this round of layoffs was provided with two Records of Employment; one dated January 18, 1995, and an amended form dated January 27, 1995, the latter typically reflecting termination payments or vacation pay payments made to the employees. The Records of Employment for Beaumont and Pring were initially marked "quit", and the forms for Miller and Urquico were initially marked "dismissed". Upon revision, the forms for the latter two workers were unchanged insofar as the reason for dismissal was concerned; those of Beaumont and Pring were altered to reflect "other" as the reason for termination. Mr. Lubinsky testified that six of the eleven forms were improperly marked due to "bank keying errors", and although it is somewhat hard to believe that the bank would make such a large number of random keying errors on eleven forms, it would appear from a review of all of the forms that the errors were not limited to the four inside organizers; nor do they reflect in substance any type of different treatment of the grievors. Accordingly, we are satisfied that no improper motivation can be read into the errors reflected by the Records of Employment.

34. Evidence was also adduced before the Board regarding the need by the employer to engage certain temporary agency workers subsequent to the layoff of the grievors. The applicant submitted that the evidence supported the conclusion that the grievors ought to have been "recalled" to do this work, and that the failure to "recall" one or more of the grievors reflected a violation of the Act or, at the very least, supported the proposition that the employer had terminated the grievors' employment in violation of the Act. Having regard to all of the evidence, we conclude that no such improper motive can be gleaned from the evidence. The evidence of Mr. Shukla was not free of contradiction. However, the evidence established that the employer had, historically, regularly utilized temporary workers from agencies in similar circumstances, and that the need for temporary help arose well after the layoffs and was not anticipated nor of significant duration. Accordingly, we are satisfied that the employer's engagement of these workers (instead of the grievors) was not in violation of the Act.

35. We note that we also heard some evidence from Messrs. Beaumont, Pring and Miller regarding efforts made by them on January 19, 1995 to sign employees to union membership cards outside the plant gates. In our view, it is unnecessary to make any specific reference or findings respecting these events, as they do not, strictly speaking, bear any relevance to the application before us. Accordingly, the salient facts before the Board are those reflected above.

III. Evidentiary Matters

36. At this point, we wish to outline certain evidentiary matters which arose during the course of the hearing. As is evident from the above description of this matter, this is an application pursuant to section 91 of the Act which attracts the reverse burden of proof reflected by section 9 1(5) of the Act. As is usually the case in such a proceeding the employer proceeded first to call its evidence. Called on behalf of the employer were Mr. Paresh Shukla, Mr. Firoz Ahamed, and Mr. Robert Lubinsky. As noted above, each of these individuals testified to various matters respecting the employer's explanation for its conduct which had been put into question by the applicant.

37. The unfair labour practice application filed by the union was filed immediately after the interim order application described above. The substance of the union's allegations are attached to the unfair labour practice application form as part of an "Appendix A" to the application. "Appendix A" contains a general description of the facts contained in the declarations attested to by those who signed declarations in the interim order proceeding. These declarations are attached to the application and the facts set out therein are specifically incorporated into the application by reference. Likewise, the employer's response contains a general description of the facts relied upon by the employer, in addition to a specific incorporation by reference of the facts contained in the declarations attested to by those who signed declarations on behalf of the employer in the interim order proceeding. In other words, for the purpose of this proceeding, the declarations used in the interim order application served as pleadings. We note here that the parties at times also used the declarations as previous inconsistent statements, often noting the differences between the testimony of the witness before the Board and his prior declaration. We state here that, for the most part, the differences were of little significance. Although it is imperative that declarations utilized in interim applications be full and accurate, the Board recognizes that the expedition typically required to prepare those declarations often results in minor inaccuracies.

38. It is evident from the declarations relied upon by the union that the union was alleging that Robert Sowah had communicated to Mr. Shukla that one or more of the union's inside organizers were organizing at the facility. The declarations of Mr. Urquico, Mr. Beaumont and Mr. Pring all state that one or more of them had had discussions with Mr. Sowah literally minutes before their employment was terminated. Each declaration also relates that Mr. Sowah was inside Mr. Shukla's office when the group of five employees was fired on January 13, 1995. It is also stated in the declarations that Mr. Sowah was, in fact, not terminated from the employer's payrolls. In our view, it is clear from the declarations, utilized in the capacity of pleadings, that the union was suspicious of this set of circumstances. In unfair labour practice proceedings, it is rare for the employer to have openly communicated any anti-union animus. Accordingly, a trade union, in most cases, can only raise for an explanation circumstances that it considers suspicious. In our view, the pleadings in this case raise such suspicions regarding the possible involvement of Mr. Sowah in the termination of the grievors.

39. The employer did not, however, call Mr. Sowah in its evidence-in-chief to explain any of these circumstances. Instead, Mr. Shukla testified. No questions were put to Mr. Shukla in his examination-in-chief relating to Mr. Sowah's involvement in the terminations of the grievors; nor was any question directed to him in examination-in-chief respecting Mr. Sowah's presence in Mr. Shukla's office during the time that the discharges were effected. In cross-examination, Mr. Shukla was asked if he recalled speaking to Mr. Sowah prior to 9:00 a.m. on January 13, 1995. He responded that he could not recall such a conversation. He was then asked directly if Mr. Sowah was in the room during the course of the terminations. Mr. Shukla responded in the negative. No further questions regarding Mr. Sowah were put to Mr. Shukla in cross-examination or in re-examination.

40. After the completion of the employer's case, the union proceeded to call five witnesses. Four of the five witnesses were employees terminated on January 13 and 16, 1995, and three of those four were present in Mr. Shukla's office on January 13, 1995 when Mr. Shukla terminated the employment of the five employees. All three people who were present in Mr. Shukla's office at the pertinent time testified that Mr. Sowah was inside the office while the terminations of employment were effected. As noted earlier, Mr. Urquico specifically stated that on the way out of the office (although perhaps physically outside of the office) Mr. Sowah pushed his arm away. The questions put to these witnesses in examination-in-chief were not objected to; in fact, in cross-examination the recollections of the witnesses were challenged and although some minor concessions were gained from the witnesses, we repeat here that at the end of the day all three witnesses were unshaken in their recollection that Mr. Sowah was in the room while Mr. Shukla was effecting their discharge from employment.

41. During the course of the evidence adduced by the union, the Board on two occasions asked both parties how many further witnesses would likely be called in support of their respective cases. On one occasion, counsel for the employer advised the Board that two individuals would possibly be called to provide reply evidence, remarking that "obviously, [they would be] two who had already given evidence". On the second occasion, which was relatively close to the completion of the union's case, employer's counsel confirmed that he would be calling in reply two witnesses, namely Mr. Shukla and Mr. Ahamed.

42. At that point, the Board felt that it was appropriate to speak to counsel in camera in the hope that we could encourage settlement of this matter without the need of a formal Board decision. During the course of this discussion, counsel for the employer stated that he wished to call Mr. Sowah in reply. At that juncture, the Board indicated that if Mr. Sowah were to be offered by the employer as a reply witness, it first wished the parties to address the issue of whether the evidence of Mr. Sowah would constitute proper reply evidence. It was agreed to complete the evidence of Mr. Pring in the afternoon, and as it developed Mr. Ahamed testified in reply that same day. At the outset of the next day of hearing, Mr. McCormack announced his intention to call Mr. Sowah in reply. At that point, the Board entertained argument on the issue of whether Mr. Sowah's evidence would constitute proper reply evidence.

43. After hearing the submissions of the parties, and recessing to consider the submissions made, the Board reconvened and ruled (Board Member Wightman dissenting) that the evidence sought to be called from Mr. Sowah was not proper reply evidence, and would not be entertained by the Board. These are the reasons for that decision.

44. It is important to recognize that there is a very limited right of reply in most litigious proceedings. In Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Butterworths, 1992), at p. 880 et seq.,the authors observe as follows:

A. Limits on Reply Evidence

At the close of the defendant's case, the plaintiff or Crown has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. The general rule in civil cases is that matters which might properly be considered to form part of the plaintiffs case in chief are to be excluded. As for criminal cases, Martin JA. said in R. v. Campbell:

The general rule with respect to the order of proof is that the prosecution must introduce all the evidence in its possession upon which it relies as probative of guilt, before closing its case.

Two very practical rationales for this rule were articulated by Wigmore:

…..first, the possible unfairness of an opponent who has unjustly supposed that the case in chief was the entire case which he had to meet, and, second, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning....

In civil cases the discretion is wider and should be exercised in light of the broad principles which are the basis for the restriction on reply evidence. These principles are designed to ensure that the defendant knows the case to be met and that the plaintiff not be permitted to split his or her case. The rationale for the latter principle is that trials should not be unduly prolonged by creating a need for surrebuttal. Within these broad parameters the trial judge has a discretion to permit reply evidence when it is the reasonable and proper course to follow. (emphasis added and footnotes omitted)

In civil proceedings, therefore, a party is entitled to call reply evidence for the purpose of addressing those matters raised by the opposing party for the first time in its case; that is, to address those matters which could not have fairly been anticipated by the party when initially calling its case. The rationale for such a limited rule was recently touched upon by the Board in Tate Andale Canada Inc., [1993] OLRB Rep. Apr. 383, where, in circumstances similar to those before this panel of the Board, the following was stated:

41. I ruled that the evidence of ReIf was not proper reply evidence and declined to hear it. From the beginning of these proceedings, one of the very issues in dispute between the parties, raised by the company, has been the alleged threat from Rod Cake to Cecil Persaud. It is the responsibility of a party putting in its case, to put in all of the evidence that it can adduce through reasonable diligence, in support of its case. The evidence of Mr. ReIf is not in response to anything new in the union's case, but goes to the heart of the issues which have been in dispute from the beginning. I note that if it was not so apparent earlier, it also became abundantly apparent during the union's detailed cross-examination of Mr. Persaud what the nature of Mr. Cake's testimony would be.

42. Counsel should be well aware of the restricted scope of reply evidence and the dominant policy reason for it: quite simply, a party responding to a case is entitled to know the entire case that it must meet, because it will have no further opportunity to call evidence. The Board's decision in Luciano D'Alessandro and Donato Marinaro, [1985] OLRB Rep. Feb. 241, to which I was referred, provides a useful summary of the principles of reply evidence:

2...

Since the majority of the Board's hearing time yesterday was taken up by submissions of counsel concerning whether or not certain evidence could properly be adduced as reply evidence, it may be useful for the Board to rule not only on the specific point which has been argued (most recently) but, also to provide a more general indication of what we perceive to be the proper scope of reply evidence. During his submissions in support of his contention that evidence concerning the Union meeting of May 12, 1983 may properly be called in reply, counsel for the complainants contended that he could call certain witnesses to testify about that meeting as part of his case in chief and hold another witness in reserve to be called in reply in the event that the respondents called witnesses to contradict evidence on that point given by the complainants' witnesses in chief. Apart from a general reference to Phipson on Evidence, without referring the Board to any particular page or passage in that text, counsel cited no authority for that proposition.

It is well established in the law of evidence and in the Board's jurisprudence that a plaintiff or complainant cannot split his case in the manner suggested by counsel for the complainants. As noted in Phipson on Evidence (12th Ed. 1976) at paragraph 616, "[e]vidence in reply . . . must, as a general rule, be strictly confined to rebutting the defendant's case, and must not merely confirm that of the plaintiff. See also Wilco-Canada Inc., [1983] OLRB Rep. Jan. 165, in which the Board wrote as follows at paragraph 13:

The normal scope of reply evidence is aptly described in the following passage from Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at page 517:

"At the close of the defendant's case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiffs case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons:

……first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case [he] had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning' [6 Wigmore on Evidence, s. 1873, p. 511].

(See also Alicock Laight & Westwood Limited v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 OR. 18 (C.A.)

Having considered the submissions of the parties, we are not satisfied that the evidence concerning the meeting of September 8, 1983 which complainant's counsel seeks to adduce as reply evidence through Gerry Varrichio could not, through the exercise of due diligence, have been adduced as part of their case in chief, as was done through the testimony of Frank Garrett on October 18, 1984, particularly in view of the fact that Mr. Minsky notified Mr. Garrett during cross-examination that he intended to call Dan D'Andrea to contradict Mr. Garrett's evidence in respect of that matter. Failing that, we are not satisfied that through the exercise of due diligence, in preparing for his cross-examination of Dan D'Andrea, complainant's counsel could not have placed himself in a position to satisfy the requirements of the rule of Browne v. Dunn in respect of that evidence. In this regard, we note that at the request of complainant's counsel, the hearing was recessed on December 12, 1984 one and one half hours in advance of the time to which the Board had earlier indicated it was prepared to sit, in order to afford complainant's counsel time to prepare for his cross-examination of Dan D'Andrea. When the hearing resumed on the following morning, complainants' counsel made no suggestion that he had not had sufficient time to prepare for the cross-examination or to explore any appropriate avenues of investigation with respect to it. Accordingly, we are of the view that this evidence cannot properly be called in reply, either on the basis of the rule which precludes a complainant from splitting his case, or on the basis of the rule in Browne v. Dunn, as explained in our earlier ruling today. Accordingly, Mr. Minsky's objection is upheld.

We agree with the principles outlined by these Board decisions.

45. In the circumstances of this case, we are of the view that the evidence sought to be called by the employer in reply is not properly characterized as reply evidence. The union had clearly particularized its suspicions regarding the conduct of Mr. Sowah in its application. It could hardly have been lost on the employer that Mr. Sowah's testimony would be of significance in this case. The testimony to be adduced from Mr. Sowah is clearly evidence which ought to have been called by the employer during its case in chief. Counsel for the employer did not dispute that the general rule is that the party which proceeds first is required to call all of its evidence on all of the issues in dispute. To not do so, and to subsequently call evidence from a witness who ought to have testified earlier is clearly "splitting one's case", and is usually inappropriate.

46. It is clear from both the Act (in particular, section 104(13)), and the Statutory Powers Procedure Act (in particular, section 15), that the Board has the authority, notwithstanding the nature of the evidence sought to be called, to allow such testimony to be called by the employer, and permit the union the right to firm up its case through surrebuttal evidence. Such an option was considered by the Board but rejected for a number of reasons. First, the evidence before the Board disclosed that none of the union's witnesses had been put on notice of the expected testimony of Mr. Sowah. Accordingly, the employer would, ultimately, argue that Mr. Sowah's testimony ought to be accepted over that of the union's witnesses, without having put those same witnesses on notice that Mr. Sowah's testimony would be different than their testimony, and without having notified them of the substance of the difference. The unfairness of such a result is obvious. Arguably, the unfairness could be remedied by allowing the union to recall its witnesses in surrebuttal. However, that itself would lead to substantial unfairness in this case. The proceeding had, as at that date, occupied nine hearing days over three consecutive weeks and the union's representative indicated that she would be required to recall at least three, if not all five, of her previous witnesses to testify, as well as one other individual who had not yet testified specifically because Mr. Sowah had not. These witnesses live outside of the Metropolitan Toronto area and the travelling requirements would be significant. One of the witnesses had been secured only by way of summons and it may well have required significant effort and one or more adjournments to ensure that that witness (and the others) returned to testify.

47. All of the difficulties listed above have to be considered in the context of the nature of the proceeding before us. The union asserts that the four individual grievors were terminated from employment as a result of their efforts to organize the employer's workplace, which efforts are protected by the Act. The union had not been successful in its effort to obtain an interim order returning the four grievors to work pending the disposition of this proceeding; as a result, the four grievors were, at the time of the hearing, unemployed. To allow the employer to call Mr. Sowah in reply, and then to permit further surrebuttal evidence from the union, would clearly delay the determination of this proceeding, one which section 92.2 of the Act clearly mandates should be dealt with in an expedited fashion. The employer indicated that it was quite willing to provide Ms. Alden with any adjournments required to complete the case. However any such adjournments would merely have limited one type of unfairness to the union - surprise - by establishing or aggravating another - delay. In our view, to permit the employer to call Mr. Sowah in reply would have been extremely unfair to the union in light of all of the circumstances before us. On balance, we felt that the scales easily tipped towards the conclusion that the employer should not be permitted to call Mr. Sowah to provide reply evidence.

48. We note one further point. Counsel for the employer argued that Ms. Alden herself had failed to put to Mr. Shukla the anticipated evidence of Messrs. Pring, Beaumont and Urquico to the effect that Mr. Sowah was in the room at the time of the terminations. This, submitted counsel, should be enough to permit the employer to call Mr. Sowah in reply. That is, counsel asserts that by not satisfying the rule in Browne v. Dunn, the union led him to conclude that Mr. Shukla's testimony was sufficient to satisfy the Act. This is a plausible argument but one which fails on a close review of the facts. It is quite true that Ms. Alden did not put the anticipated evidence of her witnesses to Mr. Shukla. However, she nonetheless called evidence from her witnesses in chief which specifically and directly contradicted that of Mr. Shukla. Employer counsel did not object at any time to the calling of that evidence. From this failure to object the Board can only conclude that counsel for the employer was not surprised by the evidence called by the union; in fact, the pleadings and the cross-examination of Mr. Shukla fortifies that conclusion, as they both highlighted the issue.

49. In addition, though, we note that counsel for the employer indicated, twice, that he would not be calling Mr. Sowah in reply. Accordingly, it is difficult for us to conclude that the failure of Ms. Alden to put the grievors' anticipated evidence to Mr. Shukla somehow led counsel to not call Mr. Sowah in chief. If counsel had, in fact, been misled that way, one would have expected that he would have signalled much earlier in this case his desire to call Mr. Sowah in reply. The fact that the desire to call Mr. Sowah was raised so late in the day leads us to conclude that the failure to call Mr. Sowah was not one caused by the union's calling of evidence but was rather a strategic decision made by the employer not to rely on his evidence.

50. For these reasons, we declined to hear the evidence of Mr. Sowah in reply. We note here that immediately after making the above ruling, Mr. McCormack indicated that he had no further reply evidence to call, and requested that the Board adjourn so as to provide him reasons in writing for this ruling. Counsel indicated that the purpose of the adjournment was to seek instructions from his client regarding what actions, if any, should be taken as a result of this ruling. After hearing submissions from both parties as to their positions on the request, the Board refused to adjourn the hearing and requested that the parties proceed to argument after an extended lunch break. The Board notes that this ruling is in accordance with section 17 of the Statutory Powers Procedure Act, and long-standing Board jurisprudence (see, for example, Zaidan Realty Corporation [1990] OLRB Rep. Dec. 1357).

IV. Reasons for Decision

51. The parties did not dispute the legal principles to be applied to the case before us. Ms. Alden, on behalf of the union, provided the Board with one precedent, Kautex of Canada Inc., [1992] OLRB Rep. Nov. 1197, and referred the Board specifically to paragraphs 36 and 37 where the following excerpts of two seminal Board decisions are contained:

52. In The Barrie Examiner, [1975] OLRB Rep. Oct. 745, the Board set out its approach to allegations where section 91(5) applies:

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

54. Subsequently, the Board reiterated in The Corporation of the City of London, [1976] OLRB Rep. Jan. 990 that the anti-union motivation does not have to be the sole reason, or even the predominant reason for the activity complained of to violate the Act, so long as it is one of the reasons. Then in Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, the Board described the difficulties inherent in this kind of proceeding:

55. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti-union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti-union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.

We agree, of course, that the approach to be taken by the Board in this case is reflected by the above authorities. In our view, the application of those principles leads to the conclusion that this application must be successful.

52. Counsel for the employer focused in argument on the knowledge of Mr. Shukla on January 13, 1995. In counsel's view, the decision was made to terminate the four grievors, as part of a larger, legitimate layoff, on January 11, 1995. As of that date, there was no knowledge by Mr. Shukla of the organizing attempts made by the employees. Accordingly, the decision, made without anti-union animus, and untainted by any further knowledge prior to January 13, 1995, could not have constituted a violation of the Act when carried out two days later.

53. We disagree with counsel's assessment of the evidence. First and foremost, we have concluded, as noted above, that Mr. Ahamed became aware on or about January 9, 1995 that the employees were going to meet at Jack Astor's Restaurant to discuss their employment situation. Although some of the union's witnesses indicated that they did not communicate to invitees the "unionization" purpose of the initial meeting, it is clear that some of the organizing employees did mention that possibility to invitees, and it would not be unusual to expect that such information would come to the attention of the foreman, Mr. Ahamed, who spent quite a bit of his time on the floor in the assembly area with the same employees who were spreading the information. In point of fact, Mr. Ahamed's indication to Mr. Koenigsmarck that he did not attend the meeting because of car difficulties confirms his potential knowledge of the union organizing as early as January 9, 1995. Rather significantly, Mr. Ahamed was never asked in his testimony when it first came to his knowledge that the employees were considering unionization (Mr. Shukla was). Accordingly, we cannot conclude, on the evidence before us, and on the balance of probabilities, that management was unaware prior to January 11, 1995 that some employees were, at the very least, contemplating unionization. As noted above, it is highly unlikely that that information would not have been shared with Mr. Shukla prior to the layoffs of the 11 employees on January 13 and 16, 1995. In fact, it is more than likely that the information would have been shared with Mr. Shukla prior to January 11, 1995.

54. A very close review of Mr. Shukla's conduct on January 13 and 16, 1995 leaves the Board with many unanswered questions respecting the motivation for the terminations of the four grievors. As noted above, the terminations of employment involving three of the four main union organizers occurred at approximately 9:15 in the morning of January 13, 1995. With the exception of Mr. Koenigsmarck's dismissal, no one who testified could recollect any previous layoffs being effected in the morning. Yet, five individuals were laid off very early in the morning on that Friday. Mr. Shukla stated that he laid off these five individuals in the morning because it would not inconvenience the assembly operations for the rest of the day; yet Mr. Beaumont and Mr. Pring were the only two "line feeders" working on the two assembly lines, performing what must be considered to be essential tasks to the smooth operation of the lines. Mr. Ahamed, in fact, testified that Mr. Shukla had told him that the people on the line would be laid off after 4:00 p.m. to ensure that they would perform their work that day. The evidence established that Mr. Lawrence Pun was asked to replace both Mr. Beaumont and Mr. Pring as a line feeder that day, and that Mr. Shukla felt that the job could be performed by one individual. However, it still makes little sense to lay off those two individuals (plus Mr. Jasmins, who also worked on the line) early on their last working day, particularly when Mr. Shukla still planned to lay off others at the end of the day, in any event, unless Mr. Shukla had a reason to expel these workers from the plant early. No such reason was disclosed in his testimony.

55. We are also troubled by the presence of Mr. Sowah in the room during the terminations of employment of the four grievors. As noted above, Mr. Sowah was aware of the identity of at least three of the four union activists and his presence in the office during the terminations of employment is unexplained. Most significantly, the fact that he did not join the "loose group" of employees after Mr. Shukla's address suggests that he was aware before the termination of employment occurred that he was not amongst the group to be laid off. This clearly suggests that Mr. Sowah had some prior discussions with Mr. Shukla regarding, at the very least, the identities of who would be laid off and, far more significantly, the organizing activities of the employees. Counsel for the employer submitted in argument that Mr. Shukla, should he have had improper motives, would hardly have been so unwise as to request Mr. Sowah's presence at the meeting. In our view, the totality of the evidence before us suggests that Mr. Shukla has very little, if any, human resources training or, for that matter, sensitivity to employee relations matters. We do not ascribe the same degree of wisdom to Mr. Shukla as does counsel for the employer.

56. We are also suspicious of Mr. Shukla's motives as a result of the timing of Mr. Miller's termination of employment on Monday, January 16, 1995. Mr. Shukla asserted that one of the reasons for not terminating Mr. Miller's employment on the previous Friday was that he was not at the plant. Yet Mr. Shukla terminated Mr. Miller's employment over the telephone on the next working day when he was aware that Mr. Miller would be attending at the workplace that same day. The explanation for this course of events is hardly consistent. We are not convinced, on balance, that Mr. Shukla did not merely decide that he did not want to have the main union organizer back at the plant, and accordingly terminated Mr. Miller's employment by way of telephone.

57. All of these conclusions are, of course, reached in the context of our findings of fact set out above relating to Mr. Ahamed's and Mr. Shukla's knowledge of the individuals to be laid off by Mr. Koeningsmarck. We have not considered Mr. Shukla's and Mr. Ahamed's testimony to be entirely free of inaccuracies and inconsistencies. At the end of the day, we are faced with the layoff of four of the union's inside organizers, each of which had sat at the centre of the initial meeting on January 9, 1995, and each of which had been spared the possibility of layoff by Mr. Koenigsmarck three days earlier. Although it is quite true that Mr. Shukla need not consider himself to be bound by the decisions made by Mr. Koenigsmarck (and, in fact, determined to layoff a greater number of workers (and a different mix of assemblers and technicians) than that proposed by Mr. Koenigsmarck), in circumstances such as those described above far more consistent and credible evidence must be adduced to satisfy the Board that the decisions made were made without anti-union animus.

V. Remedy

58. For the reasons set out above, the majority of the Board found that the employer had not satisfied its obligation to establish, on the balance of probabilities, that the layoffs of the four grievors, namely David Beaumont, James Pring, Noel Urquico and Terry Miller, were effected for reasons devoid of anti-union animus. Accordingly, the Board made the declarations and orders referred to above. We note here for clarity, although it does not affect the orders made, that the conduct of the employer is also a violation of sections 65 and 71 of the Act, and we so declare.

59. There are two final matters respecting remedy which require elaboration. First, the union requested, as part of the relief in this proceeding, that the Board order "that a meeting be held at the responding party's workplace between all employees and a Labour Relations Officer", in order that the Officer "inform the employees of their rights under the Act". We have declined to order such relief. In our view, a posting as was ordered in this proceeding is sufficient to describe to employees their rights under the Act. Labour Relations Officers are not "partisan" players in these matters and ought not to be placed in a position where their neutrality may be questioned by a party to any Board proceeding.

60. Finally, shortly after the issuance of this decision, the applicant wrote to the Board and

asserted that the employer was not abiding by the terms of the Board's order set out in paragraph 1, above. In essence, the applicant stated that the grievors had not all been returned to their predischarge positions, and had not been compensated for their losses. The employer asserted that it had complied with the Board's order respecting reinstatement, had paid the compensation into a trust account pending release of these reasons, and asserted that the union was not providing sufficient information respecting mitigation of damages. By way of Board endorsement dated April 6, 1995 the Board stated as follows:

1. The Board has reviewed the correspondence received from the applicant dated March 29, 1995, and the response filed by the counsel for the employer dated April 3, 1995. We do not believe that it is necessary to reconvene this panel at this time. We are of the view that the following clarification of our decision dated March 16, 1995, and other comments, should permit the parties to resolve the remaining issues identified in the correspondence.

2. First, the Board's intention when ordering that the four employees be returned "to their former employment" was that each be returned to the position he occupied immediately prior to his termination from employment. This endorsement should clarify any confusion and should be considered part of the initial order of the Board.

3. Second, with regard to the issue of compensation it appears to us that:

(a) any obligation owed by the employees regarding the overpayment of Unemployment Insurance Benefits is owed jointly by the employer, and any repayable amounts ought to be remitted to the Unemployment Insurance Commission out of any sums payable to the employees pursuant to our earlier order;

(b) the "confirmations" requested by the employer outlined in paragraph 21(a) to (c) of the letter dated April 3, 1995 in lieu of mitigation evidence are not unreasonable and ought to be compiled with by the applicant; and

(c) the employer's decision to withhold back pay, and to pay it into a trust account, is in direct contravention of our previous order. It appears to us that, rather than to require the employees to sign the written authorization attached to the employer's letter of April 3,1995, it would be more appropriate to request any reviewing court to make such an order regarding repayment (see the Employment Standards Act, R.S.O. 1990, cf. 14, as amended, s. 8 and Reg. 325, R.R.O. 1990, as amended, s. 14(1)(b)).

4. Should it not be possible for the parties to resolve all of the remaining disputed matters, the parties can contact the Registrar of the Board.

The Board has not been contacted since the decision of April 6, 1995. It would, therefore, appear that the parties have settled this particular dispute. However, if there remains any matter in dispute which arises out of this decision, we will remain seized of this proceeding.

DECISION OF BOARD MEMBER W. H. WIGHTMAN; June 1, 1995

1. In dissenting from the majority I would preface my remarks with an observation that I view the Browne v. Dunn rule in a different light in civil matters as opposed to criminal cases.

2. The reasons for stringent application of the rule in criminal cases, while perhaps self-evident, is clearly stated in Sopinka and Lederman, The Law of Evidence in Canada, at pages 881 in quotations from Martin J.A. in R. v. Campbell:

“……first, the possible unfairness of an opponent who has unjustly supposed that the case in chief was the entire case which he had to meet, and, second, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning".

Martin J. A. articulated slightly different purposes in Campbell relevant to criminal trials:

"The rule prevents the accused being taken by surprise, and being deprived of an adequate opportunity to make proper investigation with respect to the evidence adduced against him. The rule also provides a safeguard against the importance of a piece of evidence, by reason of its late introduction, being unduly emphasized or magnified in relation to the other evidence".

3. In the matter before us it is contended that the responding party should have known Sowah's presence or absence in Shukla's office on January 13th, along with the complainants, would be in contention based on the declarations filed and that Sowah should therefore have been called in chief. In not having done so, the majority now find Mr. McCormack is precluded from calling Sowah in reply.

4. In my view it is Shukla's credibility which is being called into question. Thus it was for the applicant to challenge Shukla in cross-examination as to who was present. This was not done and, such being the case, Mr. McCormack was entitled to consider he had an unchallenged witness and hence no need to call a witness whose only evidence regarding the meeting would be that, indeed, he was not there.

5. When the applicant proceeded to call four witnesses who asserted Sowah's presence tn Shukla's office on the morning of January 13th, Mr. McCormack argues he became entitled to call evidence in rebuttal of this challenge to Shukla's credibility. In my view rules of evidence and natural justice should allow for such rebuttal.

6. Apart from my view that the decision is reviewable on the basis that the decision not to allow Sowah to testify was in error I feel the responding party succeeded in meeting the required proof that the decision to terminate the complainants was free of anti-union animus.

7. The evidence is clear that while George Koenigsmarck may not have intended to include his friend Beaumont, nor Pring, nor Urquico nor Miller in the next lay-off, once Koenigsmarck had been fired on January 6th the task of deciding how the workforce should be reduced fell to Shukia. It is the further evidence that Shukla did not share Koenigsmarck's reservations as to the efficacy of the COMPAQ model, nor his views as to the individuals who could most readily be let go in the interest of cost reduction.

8. Shukla's responsibilities for supervision of technicians occasioned him to have some knowledge of the work performance of assemblers. Having been given Koenigsmarck's responsibilities for overall supervision of both production and technical matters he reviewed the entire list of assemblers to form his own conclusions as to who should be terminated. Having done so he then consulted with Ahmed whose knowledge of their performance he recognized as being more intimate than his own. The result was a revised list which included Beaumont, Pring, Urquico, Miller and Jasmins. This decision was arrived at on January 11th, well before he or any of member of supervision or, indeed even Sowah, would have had knowledge of union organizing activity.

9. Whatever Sowah's activities may have been on the morning of January 13th I regard it as incredulous that between 8:45 a.m. in the parking lot and 9:07 a.m. (the parameters given us through the evidence of the applicanf) Sowah would have informed Shukla that he had been approached by Beaumont in the parking lot to sign a card at 8:45 a.m. and that on the strength of that information Shukla would have accelerated his decision to terminate the four applicants in a hastily summoned meeting at 9:07 a.m. when it was his intention to terminate them, along with Dahlia Spence in any event.

10. To conclude otherwise in the total absence of any allegations as to impropriety on the

part of management in the pleadings requires a cynical view of employers in general. Perhaps such a view is understandable given that the very role of the Board entails dealing with the pathology of industrial life. This is true not only of Board adjudicators but, as well, of those dealing with rights arbitrations. We do indeed encounter instances of arbitrariness and anti-union animus on the part of employers because it is to us that prayers for relief from such actions are brought. However the representative nature of Board panels was intended, inter alia, to ensure that the Board does not make the mistake of generalizing from the specific and thereby concluding that the pathology we encounter is representative of the employer/employee relationship in general.

11. Mr. McCormack quite properly invited us to consider that if the timing and actions of the employer in terminating the four complainants was suspicious in light of "union activity", even more suspicious is "union activity" on the part of the four complainants following so closely on terminations which had been forecast a month earlier.

12. As to the relative credibility of witnesses I note the considerable attention and weight given to that of Mr. Koenigsmarck by the majority. The reasons for his discharge are not known to us, nor need they be, however from the recitation of the evidence by the majority it can be seen that he continued to take a lively interest in the affairs of both the company and, in particular his friend Mr. Beaumont in the days and weeks following his discharge. Suffice to say I do not believe his role in these proceedings was that of a "friend of the court".

13. Of particular interest to me was Mr. Koenigsmarck's evidence regarding a conversation with Mr. Ahmed in which he avowed that Ahmed feared for his own job based on remarks made by Shukla which included a suggestion that Ahmed's "wages were on the high side". Notwithstanding Ahmed's concerns for his own job security, Koenigsmarck agreed that Ahmed n ver suggested that Shukla's decision as to who would be terminated was influenced by union activity.

14. As previously mentioned I believe the decision is reviewable but in any case I would dismiss the complaint.